UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-K

 

x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended December 31, 2016

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from _______ to ______

 

Commission File Number: 000-53443

 

COOL TECHNOLOGIES, INC.

(Exact name of registrant as specified in its charter)

 

Nevada

75-3076597

(State or other jurisdiction of incorporation or organization)

(I.R.S. Employer Identification No.)

 

8875 Hidden River Parkway, Suite 300

Tampa, Florida 33637

(Address of principal executive office)

 

Registrant's telephone number, including area code: (813) 975-7467

 

Securities registered pursuant to Section 12(b) of the Act:

None

 

Securities registered pursuant to Section 12(g) of the Act:

Common Stock, $0.001 par value

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No  ¨

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer

¨

Accelerated filer

¨

Non-accelerated filer

¨

Smaller reporting company

x

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No x

 

The aggregate market value of the shares of voting and non-voting common stock held by non-affiliates based upon the closing price of $0.08 per share of such common stock as of June 30, 2016, was $5,788,298.

 

Indicate the number of shares outstanding of each of the registrant's classes of common stock, as of the latest practicable date: 116,572,312 shares of common stock as of April 12, 2017.

 

 
 
 
 

  TABLE OF CONTENTS

 

Item No.

 

 

Page No.

 

PART I

1

Business

 

 

3

 

1A

Risk Factors

 

 

14

 

1B

Unresolved Staff Comments

 

 

14

 

2

Properties

 

 

14

 

3

Legal Proceedings

 

 

14

 

4

Mine Safety Disclosures

 

 

16

 

 

 

PART II

 

5

Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

 

 

17

 

6

Selected Financial Data

 

 

19

 

7

Management's Discussion and Analysis of Financial Condition and Results of Operations

 

 

19

 

7A

Quantitative and Qualitative Disclosures About Market Risk

 

 

30

 

8

Financial Statements and Supplementary Data

 

 

31

 

9

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

 

 

32

 

9A

Controls and Procedures

 

 

32

 

9B

Other Information

 

 

33

 

 

 

PART III

 

10

Directors, Executive Officers and Corporate Governance

 

 

34

 

11

Executive Compensation

 

 

38

 

12

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

 

 

42

 

13

Certain Relationships and Related Transactions, and Director Independence

 

 

45

 

14

Principal Accounting Fees and Services

 

 

47

 

 

PART IV

 

15

Exhibits, Financial Statement Schedules

 

 

48

 

SIGNATURES

 

 

51

 

 
2
 
 

 

PART I

 

Item 1. Business

 

As used in this Annual Report on Form 10-K (this "Report"), references to the "Company," the "registrant," "we," "our" or "us" refer to Cool Technologies, Inc. and our 95% owned subsidiary, Ultimate Power Truck, LLC ("UPT"), unless the context otherwise indicates.

 

Forward-Looking Statements

 

This Report contains predictions, estimates and other forward-looking statements that relate to future events or our future financial performance. In some cases, you can identify forward-looking statements by terminology such as "may," "will," "should," "expects," "plans," "anticipates," "believes," "estimates," "predicts," "potential," "continue" or the negative of these terms or other comparable terminology.

 

Forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. Forward-looking statements represent our management's beliefs and assumptions only as of the date of this Annual Report. You should read this Report and the documents that we have filed as exhibits to this Report completely and with the understanding that our actual future results may be materially different from what we expect.

 

All forward-looking statements speak only as of the date on which they are made. We undertake no obligation to update such statements to reflect events that occur or circumstances that exist after the date on which they are made, except as required by federal securities and any other applicable law.

 

Corporate History

 

We were incorporated on July 22, 2002 in the State of Nevada under the name Bibb Corporation. On September 3, 2010, we changed our name to Z3 Enterprises, Inc. ("Z3"), and on April 5, 2012, to HPEV, Inc. ("HPEV") and on August 19. 2015 our stockholders voted to approve a name change to Cool Technologies, Inc. Our 95% owned subsidiary, Ultimate Power Truck, LLC ("UPT"), was formed on April 17, 2014 in the State of Florida.

 

On March 29, 2011, we entered into a share exchange agreement (which was amended on June 14, 2011) with HPEV, Inc., a Delaware corporation ("the Share Exchange Agreement") to acquire 100 shares, constituting all of the issued and outstanding shares of HPEV, Inc. in consideration for the issuance of 22,000,000 shares of common stock. Upon closing of the share exchange on April 15, 2011, HPEV, Inc. became our wholly owned subsidiary. There was a change of control of our company on April 15, 2011 as a result of the issuance of 21,880,000 shares of our common stock to the original shareholders of HPEV, Inc. pursuant to the terms of the Share Exchange Agreement. An additional 120,000 shares were issued during the fourth quarter of 2011 which completed the issuance of 22,000,000 shares of common stock under the terms of the amended Share Exchange Agreement. 

 

As of April 12, 2017, we have six patents and six patent applications pending in the area of composite heat structures, motors, and related structures, heat pipe architecture, (applications commonly referred to as 'thermal' or 'heat dispersion technology') and a parallel vehicle power platform. We also have a Patent Cooperation Treaty ("PCT") application filed for a heat pipe cooled brake system, a parallel power input gearing system (PPIG) and radial vent thermal technology. The Company intends to commercialize its patents by licensing its thermal technologies and applications to electric motor, pump and vehicle component manufacturers; by licensing or selling a mobile electric power system powered by the Company's proprietary gearing system to commercial vehicle and fleet owners; and by licensing a plug-in hybrid conversion system for heavy duty trucks, buses and tractor trailers to fleet owners and service centers.

 

 
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On October 7, 2016, our Board of Directors and the holders of all of the issued and outstanding shares of Series B Stock of the Company representing 66 2/3% of the voting stock of the Company adopted resolutions which authorized the Company to act on a proposal to effect a reverse stock split on the issued and outstanding shares of common stock of the Company on a 15:1 basis.

 

We filed an amendment to our Articles of Incorporation with the Secretary of State of the State of Nevada increasing our authorized shares of common stock, from 140,000,000 shares to 350,000,000 shares, effective March 22, 2017. We currently believe that the increase in authorized share capital eliminates the need for any other type of corporate action such as a reverse stock split.

 

Business Description

 

We have developed and are commercializing thermal dispersion technologies in various product platforms, and have developed and are commercializing a parallel power gearing system around which we have designed a vehicle retrofit system. In conjunction, we have applied for trademarks for one of our technologies and its acronym. The Company currently has one trademark: TEHPC which is an acronym for Totally Enclosed Heat Pipe Cooled. We believe that our proprietary technologies, including our patent portfolio and trade secrets, can help increase the efficiency and reduce manufacturing cost structure in several large industries beginning with motor/generator and fleet vehicles.  

 

  

The markets for products utilizing our technology include consumer, industrial and military markets, both in the U.S. and worldwide. Our initial target markets include those involved in moving materials and moving people, such as:

 

 

·

Motors/Generators,

 

·

Mobile auxiliary power,

 

·

Compressors,

 

·

Turbines (Wind, Micro),

 

·

Bearings,

 

·

Electric Vehicles: rail, off-highway, mining, delivery, refuse,

 

·

Brakes/rotors/calipers,

 

·

Pumps/fans,

 

·

Passenger vehicles: auto, RV, bus, train, aircraft,

 

·

Commercial vehicles: SUV, light truck, tram, bucket truck

 

·

Military: boats, Humvee, truck, aircraft, and

 

·

Marine: boats ranging in size from 30 feet to 120 feet and beyond.

 

 
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Our Technologies

 

Our technologies are divided into two distinct but complementary categories: heat dispersion technology and mobile power generation (MG).

 

Heat Dispersion Technology

 

Heat is an undesirable byproduct of anything that moves, especially motors and generators. Historically, a large percentage of the cost of manufacturing any motor has been in the technology necessary to remove heat during its operation to prevent failure and increase power. Heat can destroy motors, generators and many other types of machinery, and the energy necessary to remove heat can limit output.

 

Our patented thermal dispersion technology removes heat via composite heat structures and heat pipe architecture. Heat pipes have been utilized for more than 50 years, but we have a proprietary process and design technology that makes our heat pipes usable in many applications that have previously not been effective. The key is that our heat pipes move heat in any direction in a system that requires little or no maintenance and can be applied to almost any motor, generator or industrial product. We believe that this allows for more efficient, smaller, and higher output machines, resulting in cooler motors and a longer operating life.

 

Our patent portfolio covers the application and integration of our heat pipes into various cooling schemes for enhanced heat removal in motors, generators and numerous other industrial applications including marine, aviation and military. We believe that our technologies have the potential to deliver power output increases and cost reductions, depending on the machine type or motor/generator size, as follows:

 

1.

Increase power density of current motor platforms by 20% to 40%,

2.

Reduce total product cost by 12.5% to 25%,

3.

Increase motor and generator efficiency by 1% to 2%, and

4.

Increase motor and generator life.

 

We also believe that products produced with our technologies have the potential to deliver operational savings as well, including savings from:

 

-

reduced maintenance costs,

-

the standardization of multiple platforms down to a single platform,

-

the standardization of drawings and data around existing platforms,

-

the ability to use standard designs and standard insulation systems versus customization, and

-

the ability to integrate and produce on existing production lines with no retooling and no additional, or minimal, capital investment.

 

Recent tests by independent laboratories showed a 200% increase in horsepower capability for a dry pit submersible pump and a 25 to 35% increase in power density for a 650 kVA alternator.

 

On December 6, 2013, ESSCO Pumps and Controls, a member of the Hydraulic Institute, conducted the tests in accordance with standards set forth by the Institute. The tests examined the tolerances of an industrial electric motor in an extreme situation. The tolerances determine the amount of power that can be driven through pumps run by the motor and are a strong predictor of the maintenance and other service downtime the pump will require. The original pump motor is rated to run, without submersion, for up to 15 minutes before the pump's protective circuits will turn it off to prevent overheating. This heat limitation restricts the output of the motor. The test pump used the same industrial electric motor, except with Cool Tech's thermal dispersion technology incorporated. The result: the test pump ran without submersion for more than two hours at or above full power without reaching critical temperatures that would have caused an automatic shutdown.

 

 
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On December 13, 2013, Mohler Technology, Inc. of Boonville, Indiana completed tests of an alternator enhanced with our thermal technology. A 650kVA alternator (generator) was run at full load to test its operational limits. The heat produced by generators of that size must be removed or controlled in order for the alternator to operate effectively. Manufacturers' current best practice is to add either a liquid cooling system or an extra large frame around the motor to provide additional surface area to help dissipate the heat. Both practices increase the cost and complexity of the generators.

 

The alternator tested used our thermal technology with no other cooling of any kind. The results showed a minimum of 25% improvement in power density over the manufacturer's rating for the alternator when operating without water cooling. In fact, the alternator achieved power densities comparable to a liquid-cooled or over-framed one.

 

The tests confirmed our belief that our heat pipe cooling system equals the effectiveness of a more complex water-cooled system. Extrapolating the results leads us to believe that simple designs incorporating our thermal technology combined with the increase in potential output will result in lower costs to manufacture by reducing the amount of material needed to produce a product with a specific output.

 

 

 

In October 2015, Kato Engineering, a business unit of Nidec, conducted two heat run tests. The tests were performed at a 0.8 power factor and tested rated load temperature using the Emerson LS 625KVA generator with and without the our heat dispersion system. Our results were then compared with results of tests performed at a 0.8 power factor using the generator's standard-issue, totally enclosed water-to-air cooled (TEWAC) system.

 

A comparison of all test results produced by the various testing agencies revealed a minor variance in some readings. A plan has been designed to optimize our technology to produce consistent results within a specific parameter. We believe this should enable an OEM (original equipment manufacturer) to offer our technology as an option.

 

The successful testing also represents a significant advance in our product development agreements with manufacturing partners. We anticipate that we will begin to enter into license agreements upon completion of the required design refinements and field testing to industry or governmental standards. At this point, the product will be ready to be manufactured on the licensee's regular production line. Any additional field tests will be at the discretion of the licensee.

 

 
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We also plan to incorporate heat pipes in vehicle components which generate heat such as brake calipers, resistors and rotors. The new brake components should be incorporated in conversion vehicles when revenues justify their testing and production.

 

Our revenue model for the heat dispersion technology is to license the technology in exchange for royalties.

  

Thermal Technology Target Markets: Generators

 

 

 

Large kilowatt:

 

prime power

Stationary:  

 

emergency back-up

Commercial Mobile:

 

construction, utilities, mining, drilling

Consumer:

 

home standby, recreation

Rental:

 

mobile + light towers, pumps, compressors

  

Mobile Power Generation (MG)

 

The Company has a proprietary gearing system, which is used to power an on-board generator, eliminating the need for some commercial vehicles to tow a mobile generator to a work site. Management believes that there is a need for on-board, continuous generation of up to 200 kilowatts (kW) of power to remote jobsites, as well as mobile generation of emergency power in the event of an outage or disaster. We intend to offer an on-board generator installation kit as a stand-alone (Mobile Generator) for third parties and as part of an in-house brand (Ultimate Work Truck).

 

Company management, along with key directors and members of the Board of Advisors have utilized 2016 to do extensive market research, interview prospective customers, hold up-fitter meetings and perform channel-to market evaluation. They have put the plans in place for coverage for upfront sales, specification influence, full up-fitting capabilities with aftermarket parts and service as we currently intend to launch our MG30-MG80 products in the first half of 2017. In the fourth quarter of 2016, we demonstrated the Mobile Generation system to associates of the Company and potential customers. In the first quarter of 2017, we provided the first public demonstration of a 30 kilovolt amp (kVA) MG system at the North American International Auto Show in Detroit, Michigan. 

 

Our revenue model for Mobile Generation will be driven by the efforts of partner up-fitters and truck body builders along with regional sales teams and independent representatives.

 

We believe that in head-to-head competition with tow behind generators, our mobile generation technology should prove very disruptive. Operators in such markets as utility, telecom and tree service, to name a few, will be able to work in remote locations without having to tow or drop in a generator. We believe that the reduction in overall weight and size should also deliver significant operating efficiencies and savings to work truck fleets. 

 

 
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Weight of 55 kW tow behind: 6,367 lbs .

 

Weight of Cool Tech 55 kW MG System: 1,005 lbs.

  

Competition

 

Heat Dispersion Technology

 

Cooling solutions to remove or control heat produced by industrial electric motors, generators and alternators are provided by the manufacturers. Their current best practices are based on technology that's over 50 years old. They either add a liquid cooling system to the motor or build an extra large frame around the motor to provide additional surface area to help dissipate the heat. Both practices increase the cost and complexity of their products.

 

The Company is not aware of any new alternatives on the market.

 

Mobile Electric Power (MG30-MG200)  

 

Management believes that the Company can compete in the mobile electric power market because there is a need for on-board generators, as opposed to trailer-mounted generators towed behind a vehicle. A primary benefit will be that the under-chassis installation will allow a truck to tow other trailers and equipment, however, we anticipate that the greatest selling point will be value. In comparison to the purchase price of a new Doosan towable generator, we believe we can provide up to 200 kilowatts ("kW") of auxiliary mobile power to any location for less than half the production cost of a towable, trailer-mounted generator, which may weigh over 10,000 pounds. We intend to deliver the same power at under 3,000 pounds. Our Mobile Generation system will also offer the same features of a tow behind generator including single and three phase outputs as well as a full function generator panel with enhanced capabilities including a touchscreen, digital controls and optional telematics.

 

Our target markets will initially center on industries and entities that rarely or never unhook their tow-behind generators from their work trucks. In industry parlance, they are always plugged in.

 

Mobile Generation System Target Markets Target

Markets by Size

 

 

Truck Up-fitters & Service Centers

 

Asia

Global Construction

 

North America

Global Energy

 

Africa

Utilities

 

Latin America

Military

 

Middle East

 

 
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We believe our competition in the mobile generator market will be from well-established companies such as Cummins, Caterpillar, Doosan, Wacker Neuson, Multi Quip and Generac. All of them offer towable, trailer-mounted generators. Only Cummins Onan offers an onboard generator and it is specifically engineered for mobile emergency vehicle use.

 

Portable generators also address a need for mobile electric power in the commercial, leisure and residential markets. As outputs tend to range from 1 to 20 kilowatts, the competition they provide is only at the lowest end of our power output spectrum and only from the higher power, higher quality and higher price commercial level units. Onan, Honda and Kohler are among the well-established brand names in the market. There are more than 40-manufacturing companies in the U.S that produce portable generators.

 

A standard option that is usually ordered from the manufacturer when purchasing a truck is a power take-off or PTO. PTOs are mounted to a truck’s drivetrain and redirect engine power to operate onboard equipment. Integrated power systems use the PTO to run an alternating current generator.

 

Real Power from Contour Hardening, Inc. offers one and three phase AC power systems driven by a PTO. According to their website, system voltages range from 10 to 200 kW. Systems under 100 kW retrofit under the beds of diesel trucks as small as Ford F-250s. Systems larger than 100 kW require Class 6 diesel trucks and a side mount. The retrofits integrate with the fuel system and generator speed is controlled automatically by the vehicle’s engine.

 

Modular integrated systems offer varying combinations of air compressors, welders, hydraulics and generators. Vanair Manufacturing, Inc’s Underdeck uses a PTO to power air compressors, hydraulics and either 6.6 or 9.6 kW generators, according to the company’s website. Their truck-mounted Air ‘n’ Arc All in One Power system adds welding and battery charger/booster capabilities and exports 4.2 to 7 kW from generators run by a second separate engine.

 

HIPPO Multipower packages hydraulic, air, electric and welding into a single unit. The company website showcases two models, one which connects to a truck’s PTO. The other is powered by a separate diesel engine. Power exported ranges from 5.2 to 9 kW. Units are traditionally mounted on the side or in the bed of a work truck.

 

The Miller Enpak from Miller Electric Manufacturing Company which is owned by Illinois Tool Works, Inc. offers the same package powered by a separate diesel engine that exports 6 kW of power, according to Miller’s website.

 

Many electric vehicles (“EV”) and plug-in hybrid electric vehicles (“PHEV”) can use excess battery capacity to provide exportable power with no idling. Most can be recharged from either the electrical grid or the vehicle’s engine.

 

According to the VIA Motors Inc. website, the company is converting Chevrolet Silverado pick-up trucks into hybrids with a panel to provide AC power through 115 and 240 volt electrical plugs. The optional power export module provides 14.4 kW at 60 amps. The company is also working on a utility-grade output module to deliver 50 kW. VIA Motors is producing crew-cab versions with prices in the $65,000 range, according to a January 2015 article in Bloomberg.com.

 

Workhouse Group, Inc. has announced on their website plans to offer 7.2 Kilowatts of exportable power with an option for 14.4 kilowatts from their Plug-in Electric Pickup Truck. The company is taking pre-orders.

 

Odyne Systems, LLC, is a manufacturer of hybrid systems for medium and heavy-duty work trucks over 14,000 pounds. According to their website, the systems are capable of exporting 6 to 18 kW of AC power.

 

Another way EV and PHEV can power onboard equipment is through an ePTO or electric power take-off which is essentially a battery-powered version of a PTO.

 

 
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Terex’s Corporation’s hybrid-electric system, HyPower, targets the utility industry, specifically aerial lift, bucket truck and digger derrick applications. According to the company’s website, it features a plug-in ePTO that harnesses stored energy from rechargeable batteries to power onboard equipment and export up to 3.8 kW of power for up to six hours before needing to be recharged.

 

Efficient Drivetrains, Inc. (“EDI”) develops and markets a range of PHEV and EV drivetrain systems. The drivetrain integrates with light, medium, or heavy duty vehicle designs. Their exportable power options provide 50 up to 120 kW of power for up to 12 hours. As noted in their website, the company recently introduced a Class 6 plug-in hybrid electric truck that exports as much as 160 kW of power.

 

We believe that EDI is one of the few companies that offers an option to export synchronized power that enables the vehicle to connect directly to the utility power grid.

 

According to their website, Electric Vehicles International, LLC, is developing a plug-in series hybrid truck that will have a 100 kW exportable power option.

 

Other companies use a vehicle's engine to charge on-board batteries, which then run the generator when the vehicle is stopped. While this eliminates idling, output tends to be less than 50 kilowatts (kW) and lithium-ion batteries typically power the system. The batteries have limited runtimes and a shorter lifespan than acid batteries. In addition, they must be cooled to operate properly.

 

Altec Inc. JEMS (Jobsite Energy Management System) is an integrated plug-in system that uses stored electrical energy to power equipment and provide up to 18.3 kW of exportable power, according to the company’s website.

 

Two companies dominate belt driven systems: Aura Systems, Inc. and Mobile Electric Power Solutions, Inc. ("MEPS"). Both systems use a vehicle's engine to power a generator and produce electricity whenever the engine is running. The interface to the vehicle is under the hood via a separate belt system. Both are very efficient, capable of delivering the rated power at or near the engine's idle revolutions per minute ("RPM").

 

MEPS uses the alternator to power a belt-driven system that provides up to 15 kW. Both companies provide clean power to operate sophisticated electronic equipment. MEPS delivers alternating current ("AC") power, whereas Aura Systems outputs both AC and direct current ("DC").

 

A variety of MEPS engine or transmission-based electrical power take-off systems also provide exportable power. They tend to output small amounts in the range of 7 kW of 110/220 volt power. MEPS is able to align two generators to double the output to 15 kW.

 

Our Mobile Generation system can also be used as a Level 2 charging unit for electric vehicles. ‘Levels’ indicate the charging power. The higher the level, the higher the power. More power equals shorter charging times. Level 2 is typically 240 volt AC current. It is compatible with most electric and plug-in hybrid vehicles. Depending on the battery technology, it takes about 4 to 6 hours to fully charge an electric vehicle. By utilizing the system’s telematics capability and its associated connection to the Internet, an MG retrofitted truck can be alerted by either the driver or the electric vehicle itself.

 

We currently intend to offer Level 3 charging which relies on 480 volt DC (direct current) power within a year. Most Level 3 chargers provide an 80% charge in 30 minutes. At that point, we believe that the system should become a viable and cost effective substitute for a standard charging station.

 

The only competition for mobile electric vehicle charging of which we are aware is Real Power, a division of Contour Hardening, Inc. Their self-contained system allows for Level 3 DC fast charging of compatible electric vehicles and uses a PTO driven generator.

 

 
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Some of our potential competitors are significantly larger than we are, have been in business much longer than we have, and have significantly more resources at their disposal and may be able to respond more quickly and efficiently to changes in the marketplace, whether as a result of technological, economic or customer requirements or preferences.

 

This also enhances their ability to obtain top engineering talent as well as sales representatives with strong industry ties. Plus, their greater market clout could effectively overwhelm our promotional and marketing efforts.

 

Equipment

 

As a company that intends to commercialize or license its proprietary technology for others to install, manufacture and/or distribute, our equipment needs are project specific and temporary. We do not intend to purchase any production equipment to implement our business operations, but instead we will rent, lease or outsource as needed.

 

Manufacturing

 

We do not plan to manufacture in-house. The Company plans to partner with manufacturers utilizing their assets and system integrators to up-fit our Mobile Generation technology. For our thermal technologies, the Company plans to rely on product development agreements with manufacturers who will then pay a license or royalty per unit. We anticipate that such agreements will delineate the respective intellectual property owned by both companies, describe the goal of the testing to verify the savings and value to a particular company, the equipment to be modified, the criteria that constitute successful testing, how and where the tests will be conducted and the next steps to be taken in the event of successful testing.

 

Suppliers

 

For mobile power generation, the required software and its vehicle integration will be supplied by Inverom Corporation along with partner truck up-fitters.

 

Production level quantities will be handled by KATO Engineering, a business unit of Nidec Corporation, with a backup of multiple other sources, if needed, such as Regal Beloit, Generac, etc. As for a supplier of our PPIG gearing system, we have identified and are working with both North American and Asian partners. We hope to obtain the balance of the components from a number of other suppliers.

 

For the thermal technology applications in electric motors, Thermacore, Inc. will supply the heat pipes and mechanical structure, which combine to make the heat exchangers. We will coordinate with Thermacore to combine our thermal technology with Thermacore technology in the creation of heat exchangers.

 

For dry pit submersibles, we intend to purchase the wound stator and the rotor-shaft from Nidec Motor Corporation or other partner sources such as Baldor Electric, Regal Beloit and others. We intend to purchase the fully-machined castings from the Quality Castings Company, located in Orville, Ohio. We intend that these components will then be assembled and tested by Consulting Point, Inc. located in Brownsville, Texas or another partner assembler in the USA. 

 

Intellectual Property

 

Our success depends in part on our ability to protect our technology and intellectual property. To accomplish this, we rely on a combination of patents, patent applications, trade secrets, copyright laws, trademarks, intellectual property licenses and other contractual rights to establish and protect our proprietary rights. Currently, we have no licenses or contractual rights in place to protect our technology and intellectual property, only patents or patents pending.

 

As of April 12, 2017, we own six US patents and have six patent applications pending in the area of composite heat structures, motors, and related structures, heat pipe architecture, applications and a parallel vehicle platform We also have a PCT application filed for a heat pipe-cooled brake system. In addition, we have applied for and received a trademark for an acronym for one of our technologies: "TEHPC".

 

 
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Our success will likely depend upon our ability to preserve our proprietary technologies and operate without infringing the proprietary rights of other parties. However, we may also rely on certain proprietary technologies and know-how that are not patentable.

 

We strive to protect such proprietary information, in part, by the use of confidentiality agreements with our employees, consultants and contractors. The Company has a policy of not disclosing its patent applications in order to protect the underlying technology. 

 

The following table sets forth the patents we own or license which we believe support our technology.

  

Number

Patent

Country

Filing

Date

Issue

Date

Expiration

Date

Title

8,283,818 B2

US

February 4, 2010

October 9, 2012

October 9, 2032

Electric Motor with Heat Pipes

8,134,260 B2

US

July 31, 2009

March 13, 2012

March 13, 2032

Electric Motor with Heat Pipes

8,148,858 B2

US

August 6, 2009

April 3, 2012

April 3, 2032

Totally Enclosed Heat Pipe Cooled Motor

8,198,770 B2

US

April 3, 2009

June 12, 2012

June 12, 2032

Heat Pipe Bearing Cooler Systems and Methods

7,569,955 B2

US

June 19, 2007

August 4, 2009

August 4, 2029

Electric Motor with Heat Pipes

9,543,809

 

US

 

February 25, 2014

January 10, 2017

 

January 10, 2017

 

Radial Vent Heat Pipes

 

Government and Industry Regulation

 

We intend to conduct business worldwide and, therefore, we must comply with local, state, federal, and international regulations, both in operations and for our products.

 

As a company, we do not plan to manufacture any of our products. Therefore, the government regulations we will be subject to will be limited to storage and involve rotating the shafts of stored electric motors on a regular basis.

 

Applicable laws and regulations include those governing, among other things, the handling, storage and transportation of materials and products as well as noise and employee safety. 

 

In addition, some of our products are subject to various laws and regulations relating to, among other things, emissions and fuel requirements.

 

Accordingly, we may be required or may voluntarily determine to obtain approval of our products from one or more of the organizations engaged in regulating product or environmental safety. These approvals could require significant time and resources from our technical staff and, if redesign were necessary, could result in a delay in the introduction of our products in various markets and applications.

 

Although we believe that our operations and products are in material compliance with current applicable regulations noted within this section, there can be no assurance that changes in such laws and regulations will not impose costly compliance requirements on us or otherwise subject us to future liabilities. New regulations could also require our licensees to redesign their products which could cause us to redesign our technologies which, consequently, could affect market growth for our products.

 

As our thermal technologies are incorporated in existing motors, generators and other manufactured products that are already subject to regulation. The regulatory burden will fall on the original equipment manufacturers that license our technology. 

 

 
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The Company intends to add a mobile power generation system to Class 3-5 work trucks. In addition to an existing generator incorporating our thermal technology, the stand-alone version of our auxiliary mobile power system will include a specialized gearing package, which connects the drive train to a generator that will be added on-board. We believe that the vehicle and drive train will operate normally in accordance with manufacturer's specifications and that no regulations will be violated or exceeded as well. Nonetheless, in some markets, the Company will have to certify that it meets federal, state or local noise and emission regulations.

 

Our designs comply with current EPA emission standards and we believe they will comply with future requirements.

 

No original vehicle parts will be significantly modified in the retrofitting process. There will be some additional parts (generator, gearing system, touchscreens, software, sensors and controls) added, but these parts will not change how the vehicle operates in any way. Although we will be adding a gearing package to connect the drive train to the generator, the rest of the drive train will operate according to the manufacturer's specifications. Therefore, we believe that the original warranty will remain in effect and we do not believe that the conversion will violate the Magnuson-Moss Act.

 

The Magnuson-Moss Warranty Act is a federal law that protects consumers by barring a vehicle manufacturer from voiding the warranty on a vehicle due to an aftermarket part unless the manufacturer can prove that the aftermarket part caused or contributed to the failure in the vehicle. It’s is likely the Company will warranty the Parallel Power Input Gearbox it has designed and commissioned . All of our other components (generator, human machine interface, software, controller/sensors) will be warranted by their respective manufacturers.

 

The Department of Transportation, National Highway Traffic Safety Administration ("NHTSA") is charged with writing and enforcing safety and fuel economy standards for motor vehicles through their Federal Motor Vehicle Safety Standards. These standards require manufacturers to design their electrically powered vehicles so that, in the event of a crash, the electrical energy storage, conversion, and traction systems are either electrically isolated from the vehicle's chassis or their voltage is below specified levels considered safe from electric shock hazards. Our planned no-idle version of our Mobile Generation system will be designed to meet or exceed these requirements.

 

In addition, the total weight of the additional components should remain within the vehicle's gross vehicle weight rating. As a result, we believe that our conversions will be in compliance with federal and state transportation regulations.

 

Most of our other components (motor, drive, controller/sensors) will be warranted by their respective manufacturers.

 

While we do not create and market our products around government subsidies and tax incentives, an MG truck equipped with a charger can provide a Level II charge to one or more electric vehicles. Our 200 kVA truck will enable Level III DC fast charging capability. Assuming the MG truck qualifies as a charging station.at least 26 states and a number of municipalities offer tax credits or rebates for electric vehicle charging stations.

 

If we fulfill all elements of our business plan, we will have to prepare for, understand and ultimately meet emerging product environmental regulations around the world. Our products will have to comply with the current emission standards that went into effect in the European Union in 2015. as well as the standards in other international markets, including Japan, Mexico, Australia, Brazil, Russia, India and China that are becoming more stringent. 

 

Employees

 

As of April 12, 2017, we had three full time employees and no part time employees. We hope to hire additional employees, on an as-needed basis, subject to sufficient funding, as products and services are developed.

 

Research and Development

 

During the years 2016 and 2015, we incurred research and development costs of $251,722 and $824,711, respectively. Such costs were not borne directly by customers.

 

 
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Item 1A: Risk Factors

 

As a smaller reporting company, we are not required to provide the information required by this Item.

 

Item 1B. Unresolved Staff Comments

 

Not applicable.

 

Item 2. Properties

 

The Company rents a virtual office, which it uses as its corporate headquarters for a monthly rent of $300. The office is located at 8875 Hidden River Parkway, Suite 300, Tampa, Florida 33637. We believe that currently this space is adequate. The Company rents a standalone commercial building located at 13800 US Highway 19 North, Clearwater, Florida 33764, which it uses as the headquarters for UPT, under a 36 month lease commencing July 1, 2014 for a monthly rent of $2,568. The lease is renewable by the Company for two additional 36- month terms, subject to rental adjustment.

 

Item 3. Legal Proceedings

 

U.S. District Court Action, District of Nevada

 

Effective May 1, 2015, we executed a First Amendment to Settlement Agreement (the "Amendment") with Spirit Bear and the parties identified as the assignees of Spirit Bear who are signatories to the Amendment, which amends certain provisions of the Settlement Agreement. In accordance with the terms of the Amendment, Jay Palmer, Carrie Dwyer and Donica Holt, the Spirit Bear holdover directors, tendered their resignations from the Board of Directors of the Company. Spirit Bear also agreed that it will no longer have any rights to appoint nominees to the Board of Directors. Pursuant to the Amendment, the Company agreed to file a registration statement on Form S-1 covering an aggregate of 14,845,072 shares of common stock, preferred stock and warrants on behalf of Spirit Bear and its assignees no later than July 15, 2015, which was filed with the SEC on July 15, 2015. A representative of Spirit Bear agreed that the obligation to register the shares on a Form S-1 need only include shares of common stock and shares of common stock issuable upon conversion of the Series A Stock and exercise of the warrants held by Spirit Bear and its assignees. The Company agreed to issue replacement warrants for certain previously-issued warrants, which will be canceled in connection with the replacement issuance. Within 10 business days of June 1, 2015, the parties agreed to dismiss all of the pending litigation between and among them.

 

On August 28, 2015, the parties filed a Stipulation to dismiss the direct claims of the Company against Spirit Bear and of Spirit Bear against the Company in the Nevada Lawsuit. By Order dated September 1, 2015 and filed September 2, 2015, the Court ordered dismissal of all direct claims in the Nevada Lawsuit.

 

Additionally, on February 20, 2015, the Court issued its preliminary approval to the derivative action settlement agreement (the "DASA") which would lead to the ultimate dismissal of the derivative suit also filed by Spirit Bear in the same action. The Court scheduled a fairness hearing for November 20, 2015 to consider giving its final approval to the DASA. No shareholder filed any objections to the DASA by April 30, 2015 which was the deadline established by the Court for filing objections. However, on October 22, 2015, Peak Finance, LLC (“Peak”) filed a Motion to Intervene in the action seeking, among other things, approval to file a new derivative complaint in this matter. The Company opposed this Motion.

 

At the November 20, 2015 fairness hearing, the Court denied Peak’s Motion to Intervene. However, the Court did allow Peak Finance to formally argue its objections to the DASA. The Court ordered additional briefing on certain issues. The Court ordered another hearing to consider the DASA on April 1, 2016.

 

On April 1, 2016, Peak and the Company advised the Court that they had agreed in principle to a settlement that would include withdrawal of Peak’s objection to the DASA. On April 20, 2016, the parties filed a Stipulation and Proposed Order for Withdrawal of Objection to DASA which was granted by the Court on April 21, 2016. On May 3, 2016, the Court issued an Order which fully and finally approved the DASA and dismissed the case, with prejudice.

 

 
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Spirit Bear Ltd.

 

Effective May 1, 2015, we executed a First Amendment to Settlement Agreement (the "Amendment") with Spirit Bear and the parties identified as the assignees of Spirit Bear who are signatories to the Amendment, which amends certain provisions of the Settlement Agreement. In accordance with the terms of the Amendment, Jay Palmer, Carrie Dwyer and Donica Holt, the Spirit Bear holdover directors, tendered their resignation from the Board of Directors of the Company. Spirit Bear also agreed that it will no longer have any rights to appoint nominees to the Board of Directors. Pursuant to the Amendment, the Company agreed to file a registration statement on Form S-1 covering an aggregate of 14,845,072 shares of common stock, preferred stock and warrants on behalf of Spirit Bear and its assignees no later than July 15, 2015, which was filed with the SEC on July 15, 2015. A representative of Spirit Bear agreed that the obligation to register the shares on a Form S-1 need only include shares of common stock and shares of common stock issuable upon conversion of the Series A Stock and exercise of the warrants held by Spirit Bear and its assignees. The Company agreed to issue replacement warrants for certain previously-issued warrants, which will be canceled in connection with the replacement issuance. Within 10 business days of June 1, 2015, the parties agreed to dismiss all of the pending litigation between and among them.

 

On August 28, 2015, the parties filed a stipulation to dismiss the direct claims of the Company against Spirit Bear and of Spirit Bear against the Company in the Nevada Lawsuit. By order dated September 1, 2015, and filed September 2, 2015, the court ordered dismissal of all direct claims in the Nevada Lawsuit.

 

Additionally, on February 20, 2015, the Court issued its preliminary approval to the derivative action settlement agreement (the “DASA’), which would lead to the ultimate dismissal of the derivative suit also filed by Spirit Bear in the same action. The Court has scheduled a fairness hearing for November 20, 2015, to consider giving its final approval to the DASA. No shareholder filed any objections to the DASA by April 30, 2015, which was the deadline established by the Court for filing objections. On October 22, 2015, however, Peak Finance, LLC (“Peak Finance”) filed a Motion to Intervene in the action seeking, among other things, approval to file a new derivative Complaint in this matter. The Company has opposed this Motion.

 

At the November 20, 2015 fairness hearing, the Court denied Peak Finance’s Motion to Intervene. However, the Court did allow Peak Finance to formally argue its objections to the DASA. The Court ordered additional briefing on certain issues which has now been completed. The Court further ordered another hearing to consider the DASA on April 1, 2016.

 

On April 1, 2016, Peak Finance and the Company advised the Court that they had agreed in principle to a settlement that would include withdrawal of Peak Finance’s objection to the DASA. On April 20, 2016, the parties filed a Stipulation and Proposed Order for Withdrawal of Objection to DASA which was granted by the Court on April 21, 2016. On May 3, 2016, the Court issued an Order which fully and finally approved the DASA and dismissed the case, with prejudice.

 

On November 4, 2016, Spirit Bear agreed to the withdrawal of the registration statement in exchange for confirmation that the warrants owned by Spirit Bear and its associate which were subject to a separate court action shall not expire even if the court action continued beyond the warrants’ initial expiration date. The registration had not been declared effective by the SEC and the Company filed a request to withdraw the Registration Statement on November 14, 2016.

 

  SEC Subpoena

 

On September 18, 2013, separate and distinct from the settlement of the lawsuit discussed above, the Securities and Exchange Commission served the Company with a subpoena entitled In the Matter of HPEV, Inc. The subpoena requested documents relating to several matters, including Spirit Bear, Robert Olins and all of their respective affiliates. The company has not heard anything further concerning the investigation. 

 

 
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U.S. District Court, District of Nevada

 

On August 31, 2015, the Company received notice of a summons in the matter styled Peak Finance, LLC, Derivatively on Behalf of Nominal Defendant, HPEV, Inc. v. Hassett, et al., No. 2:15-cv-01590-GMN-CWH, filed in the United States District Court for the District of Nevada (the “Peak Finance Claim”). Plaintiff Peak Finance, LLC (“Peak Finance”) alleges that certain members of the Company’s Board of Directors and officers caused a misleading proxy statement to issue and breached alleged fiduciary duties from and after June 18, 2013. Peak Finance further alleges that its claim is related to the Spirit Bear Lawsuit described above. The Company has not determined that there is any merit to the allegations, and has decided to submit the claims to an Independent Director Committee consisting of Directors Christopher McKee, Richard J. “Dick” Schul, and Donald Bowman for their review and consideration. Additionally, on September 28, 2015, the Company filed a motion to dismiss the initial Complaint filed by Peak Finance. On October 22, 2015, rather than oppose the motion to dismiss, Peak Finance filed an amended complaint in this case in addition to the Motion to Intervene in the pending Spirit Bear litigation set forth above. On November 9, 2015, the Company filed a new motion to dismiss the first amended complaint filed by Peak Finance on October 22, 2015. No hearing is presently scheduled on this motion to dismiss.

 

On April 20, 2016, the parties filed a Stipulation and [Proposed] Order Regarding Settlement. This Stipulation sought the Court’s preliminary approval of a settlement agreement negotiated between the parties (“Settlement Agreement”) which, if fully and finally approved by the Court, would lead to the dismissal of this action. By Order dated May 18, 2016, the Court, subject to receipt and consideration of any objections filed by non-party shareholders, preliminarily approved the proposed Settlement Agreement. The Court further set a deadline of July 29, 2016 for filing objections to the Settlement Agreement. No objections to the Settlement Agreement were filed by July 29, 2016. The parties intend on filing a stipulation seeking final approval of the Settlement Agreement and dismissal of the case as soon as practicable.

 

On October 11, 2016, the United States District Court, District of Nevada orally approved the derivative action settlement agreement (“Peak Settlement Agreement”) reached in Peak Finance, LLC v. Timothy J. Hassett et. al., Case No. 2:15-cv-01590-GMN-CWH. Noting that no non-party shareholder filed any objections to the Peak Settlement Agreement, the District Court specifically found that it is “fundamentally fair, reasonable and adequate” and serves the best interest of the Company. The Court further directed that counsel for the parties prepare a proposed formal written order finally approving the Peak Settlement Agreement and dismissing the case.

 

On October 20, 2016, the Derivative Action Settlement Agreement was formally approved and the case was formally dismissed with prejudice.

 

Subsequent to the dismissal, an Independent Directors Committee consisting of directors Christopher McKee, Richard J. "Dick" Schul and Donald Bowman reviewed the allegations made by Peak Finance, LLC to determine a proper corporate response. On December 6, 2016, a quorum of the members of the Independent Directors Committee met with Peak Finance, LLC in New York City, in order to fulfill the judges’ final orders. No further action is required by the Company in this matter.

 

On October 7, 2016, the Company received a complaint, Wang et al v. Cool Technologies, Inc. et al, filed on July 28, 2016 in the U.S. District Court for the Eastern District of New York (Brooklyn) Civil docket #1:16CV04101RRMPK against the Company and Timothy Hassett, the Company’s Chief Executive Office alleging damages of $1,100,000 for breach of contract for failing to register shares sold to the Plaintiffs in February and March 2014. The Company is contesting the suit and has filed motions to dismiss.

 

Item 4. Mine Safety Disclosures

 

Not applicable.

 

 
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PART II

 

Item 5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

 

Market Information

 

Our common stock was quoted on the OTC Bulletin Board from July 30, 2009 to March 26, 2010 under the symbol BIBB. Prior to September 2010, there was no active market for our common stock. Our common stock is currently quoted on the OTCQB under the trading symbol WARM.

 

The following table sets forth the high and low sales prices as reported on the OTCQB. The quotations reflect inter-dealer prices, without retail mark-up, mark-down or commission, and may not represent actual transactions.

 

Quarter Ended

 

High

 

 

Low

 

 

 

 

 

 

 

 

March 31, 2016

 

$ 0.53

 

 

$ 0.16

 

June 30, 2016

 

$ 0.30

 

 

$ 0.08

 

September 30, 2016

 

$ 0.18

 

 

$ 0.02

 

December 31, 2016

 

$ 0.17

 

 

$ 0.09

 

March 31, 2015

 

$ 0.74

 

 

$ 0.46

 

June 30, 2015

 

$ 0.58

 

 

$ 0.37

 

September 30, 2015

 

$ 0.43

 

 

$ 0.17

 

December 31, 2015

 

$ 0.30

 

 

$ 0.10

 

 

The last reported sales price of our common stock on the OTCQB on April 12, 2017, was $0.24.

 

As of April 12, 2017, there were 212 stockholders of record of our common stock..

 

Dividend Policy

 

The Company has never paid dividends on its common stock and does not anticipate that it will pay dividends in the foreseeable future. It intends to use any future earnings for the expansion of its business. Any future determination of applicable dividends will be made at the discretion of the board of directors and will depend on the results of operations, financial condition, capital requirements and other factors deemed relevant. 

 

Securities Authorized for Issuance under Equity Compensation Plans

 

The following table provides information regarding our equity compensation plans as of December 31, 2016:

 

Equity Compensation Plan Information

 

Plan category

 

Number of securities to be issued upon exercise of outstanding options, warrants and rights

 

Weighted-average exercise price of outstanding options, warrants and rights

 

Number of securities remaining available for future issuance under equity compensation plans

 

Equity compensation plans approved by security holders

 

--

 

--

 

--

 

Equity compensation plans not approved by security holders

 

7,474,090

(1)

 

$

1.28

 

--

______________  

(1)

Represents (i) options to purchase 1,000,000 shares of common stock at $2.00 per share to each of Timothy Hassett and Mark Hodowanec; (ii) options to purchase 2,000,000 shares of common stock at $2.00 per share to Judson Bibb; and (iii) warrants to purchase 3,474,090 shares of common stock as set forth in Note 7 to the financial statements under Item 8 of this Annual Report on Form 10-K.

 

 
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Recent Sales of Unregistered Securities

 

On October 7, 2016, we issued 4,304,229 shares of our common stock upon partial conversion of a warrant originally issued in connection with $400,000 of principal and interest of convertible debt.

 

On October 7, 2016, we issued 5,469,113 shares of our common stock upon partial conversion of a warrant originally issued in connection with $400,000 of principal and interest of convertible debt

 

On November 7, 2016, we sold 100,000 shares and a three-year warrant to purchase 100,000 shares of our common stock at an exercise price of $0.07, to an accredited investor in a private offering. We received $5,500 as consideration for the sale of such securities. The warrant may be exercised on a cashless basis.

 

On November 10, 2016, we issued 800,000 shares of common stock to Gemini Master Fund, Ltd and 200,000 shares of common stock to Black Mountain Equities, Inc. in connection with the sale of promissory notes in the principal amounts of $180,000 and $45,000, respectively.

 

On November 14, 2016, pursuant to the issuance of a convertible promissory note for $110,000, we issued 350,000 shares of common stock as inducement shares to Lucas Hoppel.

 

On November 30, 2016, we issued 147,393 shares of our common stock upon conversion of principal and interest of convertible debt of $10,490.73 to Tangiers Global, LLC..

 

On November 7, 2016, we issued 300,000 shares of our common stock to Spirit Bear upon conversion of 6 shares of our Series A convertible preferred stock (“Series A Stock”)

 

On December 23, 2016, we sold 650,000 shares of our common stock and a five-year warrant to purchase 650,000 shares of our common stock at an exercise price of $0.12 and a five-year warrant to purchase 650,000 shares of our common stock at an exercise price of $0.15 to an accredited investor in a private offering. We received $65,000 as consideration for the sale.

 

On December 30, 2016, we issued 50,000 shares of our common stock and a five-year warrant to purchase 50,000 shares of our common stock at an exercise price of $0.16 to Christian Pacetti in exchange for partial payment of an outstanding invoice for services provided to the Company.

 

On December 30, 2016, we issued a three- year warrant to purchase 100,000 shares of our common stock at an exercise price of $0.01 per share to a consultant for accounting services provided to the Company.

 

On January 17, 2017, we issued 800,000 shares of common stock to Sprit Bear upon the conversion of 16 shares of our Series A Stock.

 

On February 8, 2017, we issued 34,076 shares of our common stock upon conversion of interest on convertible debt of $54,650 by Tangiers Global, LLC.

 

On February 9, 2017, pursuant to the issuance of a convertible promissory note for $110,000, we issued 200,000 shares of common stock as inducement shares to Lucas Hoppel.

 

On February 16, 2017, we issued 1,250,000 shares of our common stock to Bellridge Capital LP as a commitment fee for a $5,000,000 Equity Line of Credit.

 

On March 14, 2017, we issued 200,000 shares of our common stock to Bellridge Capital LP as a commitment fee for a 5% Convertible Note.

 

On March 20, 2017, we issued 750,000 shares of common stock to Spirit Bear upon the conversion of 15 shares of our Series A Stock .

 

 
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On April 6, 2017, we issued 600,000 shares of common stock to Sprit Bear upon the conversion of 12 shares of our Series A Stock.

 

On April 6, 2017, pursuant to the issuance of a convertible promissory note for $165,000, we issued 300,000 shares of common stock as inducement shares to Lucas Hoppel.

 

None of the above issuances involved any underwriters, underwriting discounts or commissions, or any public offering and we believe are exempt from the registration requirements of the Securities Act of 1933 by virtue of Section 4(2) thereof and/or Regulation D promulgated thereunder.

 

Item 6. Selected Financial Data

 

As a smaller reporting company, we are not required to provide the information required by this Item. 

 

Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations

 

Our Management's Discussion and Analysis contains not only statements that are historical facts, but also statements that are forward-looking. Forward-looking statements are, by their very nature, uncertain and risky. These risks and uncertainties include international, national and local general economic and market conditions; demographic changes; our ability to sustain, manage, or forecast growth; our ability to successfully make and integrate acquisitions; raw material costs and availability; new product development and introduction; existing government regulations and changes in, or the failure to comply with, government regulations; adverse publicity; competition; the loss of significant customers or suppliers; fluctuations and difficulty in forecasting operating results; changes in business strategy or development plans; business disruptions; the ability to attract and retain qualified personnel; the ability to protect technology; and other risks that might be detailed from time to time in our filings with the SEC.

 

Because forward-looking statements are inherently subject to risks and uncertainties, the actual results and outcomes may differ materially from the results and outcomes discussed in the forward-looking statements. The following discussion and analysis of financial condition and results of operations of the Company is based upon, and should be read in conjunction with, the audited financial statements and related notes elsewhere in this Annual Report on Form 10-K.

 

We opened our UPT headquarters in Largo, Florida in May 2014. We use the facility to perform research and development for our mobile generator business and it will serve as a sales showroom in the future.

 

Plan of Operation

 

We have not generated any revenues to date. We generated our first Mobile Generation order during the quarter ended June 30, 2014, and received a partial deposit in advance of completing the sale. There can be no assurances that we will be able to fulfill the order, however, a laboratory mobile electric power system has been successfully tested and is being readied for future field testing. Currently, we primarily incur expenses to commercialize our products, which include costs for research and development, professional fees and general operations.

 

We have developed and intend to commercialize thermal dispersion technologies in various product platforms, a parallel power input gearbox around which we have designed a mobile generator system and an electric load assist technology around which we have designed a vehicle retrofit system. As part of the commercialization efforts, we have applied for and received a trademark for our Totally Enclosed Heat Pipe Cooled technology or 'TEHPC'.

 

Management is currently negotiating additional funding arrangements to support completion of the initial phases of our business plan, which is to license our thermal technologies and applications; to license or sell a mobile electric power system powered by the Company's proprietary gearing system; and to license it submersible motor dry pit technologies and/or to bring to market its technologies and applications through key distribution partners.

 

 
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Recent Developments

 

PGC Investments

 

On July 1, 2014, we entered into a 36-month independent contractor agreement ("PGC Agreement"), with PGC Investments LLC, a Florida limited liability company ("PGC") to provide the full-time services of Dennis Campbell to manage the day-to-day operations of UPT. Under the PGC Agreement, PGC and Mr. Campbell may not solicit or hire any of the Company's current or former (within one year) employees, consultants or contractors for six months following the termination of the PGC Agreement. Either party to the PGC Agreement may terminate the PGC Agreement upon 30 days' notice to the other party. The Company may immediately terminate the PGC Agreement for "cause" (as defined in the PGC Agreement), subject to a 10-day cure period. Until the Sign-On Warrants become exercisable, upon termination, PGC shall be entitled to a severance payment equal to three months of consulting fees and any earned bonuses, warrants and shares. As consideration for such consulting services, PGC will be paid monthly consulting fees (payable at the end of each month) of $10,000 during the first year, with a $10,000 bonus to be paid upon the opening of the Tampa Bay store; $12,000 in the second year with a $10,000 bonus payable in the last month of the second year upon satisfactory performance; and $13,500 in the third year with a $10,000 bonus payable in the last month of the third year upon satisfactory performance.

 

Under the PGC Agreement, on July 1, 2014, we also issued PGC three-year warrants as a sign-on bonus ("Sign-On Warrants") to purchase an aggregate of 350,000 shares of our common stock at an exercise price of $1.00 per share exercisable upon the Company receiving revenues in excess of $1,000,000. 

 

PGC will be entitled to (i) a three-year (commencing upon vesting) cashless warrant to purchase an aggregate of 1,530,000 shares of common stock exercisable at $1.00 per share that vests ratably upon reaching incremental revenues of $3,000,000 (from MG product sales which result from the efforts of Dennis Campbell and PGC) with a total target revenue of $100,000,000 and (ii) a three-year cashless warrant to purchase an aggregate of 720,000 shares of common stock at an exercise price of $1.00 that vests ratably on a quarterly basis; and (iii) 500,000 shares of our common stock that vest upon reaching revenues of $100,000,000 or upon sale of the Company. PGC will also be entitled to a $25,000 cash bonus at sales milestones for every $5,000,000 in new revenue.

 

On July 30, 2014, we reached preliminary terms on a LLC Agreement (the "Preliminary LLC Agreement") with Alfred A. Cullere ("Cullere") concerning the governance and operations of UPT. Under the terms of the Preliminary LLC Agreement, we would own 95% of the membership interests and Cullere would own 5%. Cullere's interest cannot be diluted, even if additional membership interests are issued. These terms may change upon formalizing the final agreement.

 

The Company's current operations include product development with Inverom and other companies developing products that include the Company's intellectual property.

 

On October 31, 2016, the Company filed an amended and restated Series B Preferred Stock Certificate of Designation (which was originally filed with the Secretary of State of Nevada on April 19, 2016, and amended on August 12, 2016) to designate 3,636,360 shares as Series B Preferred Stock and to provide for supermajority 66 2/3% voting rights for the Series B Preferred Stock. The Series B Preferred Stock will not bear dividends, will not be entitled to receive any distributions in the event of any liquidation, dissolution or winding up of the Company, and will have no other preferences, rights, restrictions, or qualifications, except as otherwise provided by law or the articles of incorporation of the Company. The holders of Class B Stock shall have the right, at such holder’s option, at any time to convert such shares into common stock, in a conversion ratio of one share of common stock for each share of Class B Stock. If the common stock trades or is quoted at a price per share in excess of $2.25 for any twenty consecutive day trading period, (subject to appropriate adjustment for forward or reverse stock splits, recapitalizations, stock dividends and the like), the Series B Stock will automatically be convertible into the common stock in a conversion ratio of one share of common stock for each share of Series B Stock. The Series B Stock may not be sold, hypothecated, transferred, assigned or disposed without the prior written consent of the Company and the holders of the outstanding Series B Preferred Stock.

 

 
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Bellridge Capital, LP

 

On December 6, 2016, we entered into a securities purchase agreement and a registration rights agreement (the “Registration Rights Agreement”) with Bellridge, pursuant to which Bellridge has agreed to purchase from us up to $5,000,000 in shares of our common stock, subject to certain limitations from time to time over a 36 month period commencing on the date of effectiveness of the registration statement which provides for the resale of such shares pursuant to the Registration Rights Agreement. We may direct Bellridge, at our sole discretion and subject to certain conditions, to purchase a minimum of $25,000 and a maximum of $500,000 of shares (each a “Draw Down”) that is no more than 300% of the average trading volume of our common stock during the 10 day period immediately prior to the Draw Down. In addition, we may direct Bellridge to purchase shares only if during the fifteen consecutive days following a Draw Down request by us, the common stock equals or exceeds $0.06 per share. We will control the timing and amount of any sales of common stock to Bellridge but we may not request a Draw Down less than ten business days apart. The proceeds received by us are expected to be used for general corporate purposes. The securities purchase agreement limits our sales of shares of common stock to Bellridge to no more than the number of shares that would result in the beneficial ownership by Bellridge, at any single point in time, of more than 4.99% of the then outstanding shares of our common stock. However, the 4.99% limitation may be increased by Bellridge up to 9.99% upon at least 61 days’ prior notice to us. As consideration for its commitment to purchase shares of common stock pursuant to the securities purchase agreement, we issued to Bellridge 1,250,000 shares of common stock on February 16, 2017.

 

On December 6, 2016, we also entered into a note purchase agreement which provides for the purchase by Bellridge of up to an aggregate of $150,000 principal amount of convertible promissory notes (the “Notes”). The Notes have a 5% original issue discount and bear interest at 5% per annum (or the lesser of 22% per annum or the maximum amount permitted by applicable law in the event of a default as described in the Notes). On December 7, 2016, $85,000 was paid pursuant to the initial Note (after the deduction of $10,000 for Bellridge’s legal expenses) which is due on December 5, 2017. On December 28, 2016, after the filing by the Company of a registration statement with the SEC, the Company issued Bellridge another Note in the original principal amount of $50,000 for $47,500.

 

The Notes may be prepaid in whole or in part by the Company at a 115% premium if within 120 days of the issue date or 125% after 120 days of the issue date. The Notes are convertible into common stock (“Conversion Shares”) at a 30% discount to the lowest trading price for the ten trading days immediately prior to the delivery of a conversion notice, provided that the conversion price will not be less than $0.06 per share. If the price per share of the common stock closes at less than $0.06 for any five out of ten consecutive trading days after the sooner to occur of the filing of the registration statement, (the “Market Price Decline Period”), or six months from the date of the Note, the Company has the right to prepay the Note at an amount equal to 125% of the then principal and interest due on the Note. However, if the Company fails to prepay the Note in its entirety during the thirty days following a Market Price Decline Period, then the conversion price floor of $0.06 per share will no longer be applicable.

 

If the Company fails to timely deliver shares to Bellridge upon conversion of the Notes, Bellridge will be entitled to liquidated damages of $10 per trading day for each $1,000 being converted (and $20 per day after the tenth trading day). If the Company fails to timely deliver share certificates and Bellridge is required by its brokerage firm to purchase, or its brokerage firm otherwise purchases, common stock to deliver in satisfaction of a sale by Bellridge of the Conversion Shares which Bellridge was entitled to receive, then the Company will (A) pay in cash the amount by which (x) Bellridge’s total purchase price for the common stock so purchased exceeds (y) the product of (1) the aggregate number of shares of common stock that Bellridge was entitled to receive from the conversion multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed and (B) at the option of Bellridge, either reissue (if surrendered) the Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to Bellridge the number of shares of common stock that would have been issued if the Company had timely complied with its delivery requirements.

 

The Notes may not be converted to the extent that after giving effect to the conversion Bellridge and its affiliates would beneficially own in excess of 4.99% of the number of shares of the common stock outstanding, which percentage may be increased to 9.99% upon not less than 61 days’ prior notice to the Company.

 

The Notes includes antidilution protection in the event of certain subsequent equity sales and dilutive issuances, purchase rights in subsequent rights offerings and pro rata distributions in the event of a dividend or other distribution by the Company. If the Company engages in a fundamental corporate action as described in the Notes, Bellridge will be entitled to receive shares or other consideration that it would have received for each share that would have been issuable upon conversion immediately before such fundamental corporate action.

 

 
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So long as the Notes are outstanding, unless with the consent of the holders of the majority in principal amount of the then outstanding Notes, the Company will not create certain indebtedness, amend its charter to adversely affect Bellridge, or enter into transactions with affiliates, unless at arm’s length and approved by the majority of disinterested directors.

 

The Note Purchase Agreements also provided that it is an event of default if the Company does not obtain FINRA’s approval to effectuate a 1:15 reverse stock split no later than January 15, 2017, which was subsequently extended by Bellridge to April 24, 2017. On February 16, 2017, Bellridge agreed that in lieu of a reverse stock split the Company increase its authorized shares of common stock.

 

The Company also agreed to reserve the greater of (i) 1,000,000 shares of common stock or (ii) 300% of the maximum aggregate number of shares issued or issuable to Bellridge (without giving effect to any beneficial ownership restrictions).

 

So long as Bellridge owns the Notes and the shares issuable under the Notes, if the Company fails to satisfy certain current public information requirements under Rule 144 for more than 30 consecutive days, the Company will be required to pay liquidated damages to Bellridge in cash equal to 5% of the aggregate conversion price of the Note(s) on the day of a such failure and on every 30th day thereafter. If the Company fails to make such liquidated damages payments in a timely manner, such payments will bear interest of 1.5% per month until paid in full.

 

On March 14, 2017, the Company entered into an additional securities purchase agreement pursuant to which we issued Bellridge a one-year 5% convertible note in the principal amount of $78,750 for which we received $75,000. The terms of the securities purchase agreement entered into and the note issued to Bellridge on March 14, 2017 are the same as the terms of the securities purchase agreement and Notes dated December 6, 2016 described above.

 

We filed an amendment to our Articles of Amendment with the Secretary of State of the State of Nevada increasing our authorized shares of common stock, from 140,000,000 shares to 350,000,000 shares, effective March 22, 2017. We currently believe that the increase in authorized share capital eliminates the need for any other type of corporate action such as a reverse stock split.

 

Craftsmen Industries, Inc.

 

As a consequence of the first public demonstration of the MG 30 kilovolt amp (“kVA”) system at the North America International Auto Show in Detroit in January, the Company entered into an agreement in principle, dated February 21, 2017, with Craftsmen Industries, Inc.(“Craftsmen’), a company engaged in the design, engineering and production of mobile marketing vehicles, experiential marketing platforms and industrial mobile solutions.

 

Beginning in April of 2017, Cool Technologies will deliver to Craftsmen Industries, a Class III Vehicle (Ford F-350 dually) up-fitted with a production-ready MG 30 kVA (single phase/three phase) system. For up to 60 days, the two companies will test, tune and finalize the system’s design to ensure it meets the technical criteria required by Craftsmen’s customer base and Cool Tech’s target customers.

 

Subsequently, Craftsmen invited the Company to demonstrate its mobile generation technology and the potential benefits for Craftsmen products at Craftsmen’s 35 th Anniversary Party on April 27, 2017. Over 400 current and prospective Craftsmen customers are expected to be in the audience for the demonstrations. In addition, the Company believe that prospective customers and important industry contacts will accept invitations to be in attendance as well.

 

Classification and reclassification of common share equivalents

 

We determined that as of September 30, 2016, we did not have sufficient authorized shares of our common stock available for issuance under our outstanding convertible notes, warrants, options and convertible preferred stock. As a result, the common share equivalents that exceeded our authorized but unissued shares of common stock were reclassified from equity to derivative liabilities.

 

This reclassification resulted in a $8,285,484 increase to our derivative liability and a corresponding reduction to our additional paid-in capital. The derivative liability was subsequently marked to fair value and we recorded a gain of $4,555,523 as of December 31, 2016. The Company amended its Articles of Incorporation, effective March 22, 2017, to increase the number of authorized shares of common stock from 140,000,000 to 350,000,000 shares. Consequently, the Company currently has sufficient authorized shares for issuance pursuant to its outstanding securities that were reclassified as derivative liabilities. We anticipate that the Company’s financial statements for the quarter ending March 31, 2017, will reflect common share equivalents as equity marked to fair value and reclassified as additional paid-in capital.

 

While we understand that these adjustments are required under current accounting guidance, nonetheless, we believe that the volatility they introduce to our financial statements does not fully reflect the underlying economics of the Company and its common share equivalents.

 

As of September 30, 2016 and December 31, 2016, a substantial portion of our common share equivalents were out of the money and accordingly, may not have been economically beneficial to exercise or convert. In addition, many of the common share equivalents that were in the money as of September 30, 2016 and December 31, 2016 were subject to contractual limitations regarding their exercisability or convertibility.

 

Under these circumstances, we do not believe that the Company was ever in a position where it would have been unable to settle its common share equivalents. To date, the Company has fulfilled all exercise and conversion requests it has received.

 

Going Concern

 

As a result of our financial condition, we have received a report from our independent registered public accounting firm for our financial statements for the years ended December 31, 2015 and 2016, which includes an explanatory paragraph describing the uncertainty as to our ability to continue as a going concern. To continue as a going concern, we must raise additional capital to begin to generate revenue from our two product lines, so that we can fund our operations from our sales and licensing. If we are not able to do this, we may not be able to continue as an operating company.

 

 
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Results of Operations

 

The following table sets forth, for the periods indicated, consolidated statements of operations data. The table and the discussion below should be read in conjunction with the accompanying consolidated financial statements and the notes thereto, appearing elsewhere in this report.

 

 

 

Year ended December 31,

 

 

 

 

 

 

 

 

2016

 

 

2015

 

 

Change

 

 

%

 

Revenues

 

$ --

 

 

$ --

 

 

 

N/A

 

 

 

N/A

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Payroll and related expenses

 

 

553,199

 

 

 

803,426

 

 

 

(250,227 )

 

 

(31.1 )%

Consulting

 

 

2,081,714

 

 

 

867,356

 

 

 

1,214,358

 

 

 

140.0 %

Professional fees

 

 

332,767

 

 

 

614,935

 

 

 

(282,168 )

 

 

(45.9 )%

Research and development

 

 

251,724

 

 

 

824,711

 

 

 

(572,987 )

 

 

(69.5 )%

General and administrative

 

 

738,816

 

 

 

1,939,230

 

 

 

(1,200,414 )

 

 

(61.9 )%

Total operating expenses

 

 

3,958,220

 

 

 

5,049,658

 

 

 

(1,091,438 )

 

 

(21.6 )%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other income and (expense)

 

 

3,102,334

 

 

 

(1,889,832 )

 

 

4,992,166

 

 

 

(264.2 )%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net loss

 

 

(855,886 )

 

 

(6,939,490 )

 

 

6,083,604

 

 

 

(87.7 )%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Less: Non controlling interest

 

 

(11,717 )

 

 

(16,390 )

 

 

4,673

 

 

 

(28.5 )%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net loss to shareholders

 

$ (844,169 )

 

$ (6,923,100 )

 

$ 6,078,931

 

 

 

(87.8 )%

 

Revenues

 

During the years ended December 31, 2016 and 2015, and since inception, we have not generated any revenues. We generated our first Mobile Generation order during the quarter ended June 30, 2014, and received a partial deposit in advance of completing the sale with companies controlled by the individual who is a 5% owner of UPT and a shareholder of our company

 

Operating Expenses

 

Operating expenses decreased during the year ended December 31, 2016 compared to the year ended December 31, 2015, due primarily to a reduction in general and administrative costs which accounts for $1,200,414 of the decrease. During the year ended December 31, 2016, the Company’s officers received reduced salaries and had limited travel expense. The remaining decrease was due primarily to a decrease in research and development costs of $572,987, necessitated by limited funds.

 

 
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Other Income and Expense

 

Interest expenses during the years ended December 31, 2016 and 2015 related primarily to our debt. The change in fair value of derivative liability reflects the change in fair value of the warrants and conversion features embedded in the convertible debt agreements entered into in February, May, August, November and December 2016 as well as September and December 2015, and also includes the change in fair value of common share equivalents previously reclassified to derivative liability as a result of insufficient authorized but unissued shares. The legal settlement expense in 2016 represents the difference between the value of the original warrants and the replacement warrants issued to Spirit Bear under the Waiver of Performance and Second Amendment to Settlement Agreement with Spirit Bear. 

 

Net Loss and Noncontrolling Interest

 

Since we have incurred losses since inception, we have not recorded any income tax expense or benefit. Accordingly, our net loss is driven by our operating and other expenses. Noncontrolling interest represents the 5% third-party ownership in UPT, which is subtracted to calculate Net loss to shareholders.

 

Liquidity and Capital Resources

 

We have historically met our liquidity requirements primarily through the public sale and private placement of equity securities, debt financing, and exchanging common stock warrants and options for professional and consulting services. At December 31, 2016, we had cash and cash equivalents of $62,291.

 

Working capital is the amount by which current assets exceed current liabilities. We had negative working capital of $8,257,987 and $3,252,314, at December 31, 2016 and 2015, respectively. The decrease in working capital was due to an increase in derivative liability, accounts payable, amounts due to related parties, and incurring debt for working capital purposes.

 

September 2015 Convertible Note -- In September 2015, we entered into a convertible note agreement, which allows us to borrow up to $250,000, bearing interest at 10%, with principal and interest payable on September 15, 2017. We borrowed $75,000 in September 2015 and $50,000 in November 2015, for a total of $125,000 due on September 15, 2017. At the holder's option, a portion or all of the unpaid principal and interest may be converted into shares of our common stock at the lesser of $0.305 per share or 65% of the volume weighted average price of our common stock during the five consecutive trading days immediately preceding the applicable conversion date. We determined that the conversion feature meets the requirements for derivative treatment and have recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet. In February 2016, the $75,000 note and interest of $16,667 was settled in exchange for 531,429 shares of our common stock.

 

On May 30, 2016, we executed an amendment to the convertible note agreement. In consideration for removing limitations, until November 15, 2016, on sales of securities of at least $500,000 including variable rate transactions, convertible notes and third party transactions set forth in the Securities Purchase Agreement signed on December 3, 2015 as well as authorizing the withdrawal of a registration statement filed on January 11, 2016, we agreed to file a new registration statement covering the shares issuable to the holder of the Notes.

 

In consideration for amending the Notes to permit borrowings by the Company of up to $6,500,000, we agreed to amend the Notes to enable the conversion price to be equal to the lesser of $0.12 and 70% of the average of three VWAPs from the 20 trading days prior to the notice of conversion. Furthermore, we agreed that if it were to issue new notes with greater discounts than those detailed above, the existing Notes would be reset to match the lower conversion price. Finally, we agreed to lower the exercise prices (from $0.21 to $0.168, and from $0.175 to $0.140, respectively) on two existing warrants totaling 500,)000 shares previously issued to the holder of the Notes and to issue a cashless, two year warrant to purchase 250,000 shares at an exercise price of $0.168 per share.

 

 
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December 2015 Convertible Note -- In December 2015, we entered into a convertible note agreement, bearing interest payable quarterly at 10% allowing us to borrow up to $248,000, with principal due December 1, 2016. In December 2015, we received $200,000 under the convertible note agreement, with an original issue discount of $20,350 and $20,000 distributed to the lender's legal course for a total amount of $240,350, with $40,350 recorded as debt discount. In January 2016, we received the remaining $48,800 with an original issue discount of $5,850, for a total amount of $54,650 due on February 26, 2017. At the holder's option, a portion or all of the unpaid principal balance may be converted into shares of our common stock at a rate of $0.12 per share. In the event of a default, the conversion price becomes 70% of the volume weighted average price of our common stock during the three consecutive trading days immediately preceding the applicable conversion date. We also issued warrants to purchase 500,000 shares of our common stock in two separate tranches for 250,000 shares each, with exercise prices of 125% and 150% of our common stock price on the day prior to closing the agreement, or $0.175 per share and $0.21 per share. We determined that the conversion feature and the warrants meet the requirements for derivative treatment and have recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet. The convertible note has prepayment penalties of 115%, 120%, 125% and 130%, respectively, in the event the note is settled within 45 days, 46-90 days, 91-120 days, and 121 days through the due date. We placed 13,291,667 shares of our common stock in escrow as collateral for this agreement. 

 

February 2016 Convertible Note – In February 2016, we entered into a convertible note agreement. We received $125,000, with an original issue discount of $15,500 in lieu of interest, for a total amount of $140,500 due on August 10, 2016. In the event of default, the interest rate will be 22% per annum. At any time following an event of default, the lender has the right to convert a portion or all of the unpaid principal balance at a rate of 65% of the average of the three lowest closing prices in the twenty trading days immediately preceding the request for conversion date. We determined that the conversion feature meets the requirements for derivative treatment and have recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet.

   

May 2016 Convertible Note – In May 2016, we entered into a convertible note agreement. We received $120,600, bearing interest at 12%, with principal and interest payable on September 15, 2017 in a total amount of $141,102. In the event of default, the interest rate will be 18% per annum. At any time following the 180th day from the date of issuance, the lender has the right to convert a portion or all of the unpaid principal balance at a rate of 60% of the average of the lowest trading price in the fifteen trading days immediately preceding the request for conversion date. We determined that the conversion feature meets the requirements for derivative treatment and have recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet.

 

On July 18, 2016, the lender increased the share reserve from 7,000,000 to 18,572,365 shares. Following a request on August 19, 2016 to increase the share reserve to 48,000,000 shares that we could not accommodate, the company paid off the principal of $120,600 on August 29, 2016 and interest of $4,243 on August 30, 2016. On September 7, 2016, the lender declared the company in default and the Company commenced negotiations on a final pre-payment fee. On October 3, 2016, a settlement agreement was signed and on October 4, 2016 $42,210 was wired to the lender.

 

August 2016 Convertible Note – In August 2016, the Company entered into a senior convertible note agreement. We received $400,0000, bearing interest at 3%, with principal and interest payable on August 24, 2018. In addition, the Company received the right to require the buyer to purchase from the company four million restricted shares of common stock at a purchase price of $0.05 per share and a warrant to purchase four million shares of common stock with an exercise price of $0.06 per share. At the same time, the Company granted the buyer the right to require the company to sell to the buyer four million restricted shares of common stock at a purchase price of $0.05 per share and a warrant to purchase four million shares of common stock with an exercise price of $0.06 per share. In the event of default, the interest rate will be 18% per annum, require the Company to (i) redeem all or any portion of the note at a premium of 150% or (ii) convert any portion of this note then held by noteholder into shares of common stock at the conversion price of $0.025, equal to a number of shares of common stock equal to the principal amount outstanding on the note (divided by 0.025) and multiplied by the premium of 150%.

 

 
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The note may be converted at any time into shares of the common stock at the conversion price pursuant to the terms of the note. The buyer may not, however, convert more than 50% of the note’s purchase price prior to September 30, 2016. We determined that the conversion feature meets the requirements for derivative treatment and have recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet.

 

The note may be converted at any time into shares of the common stock at the conversion price pursuant to the terms of the note. The buyer may not, however, convert more than 50% of the note’s purchase price prior to September 30, 2016. We determined that the conversion feature meets the requirements for derivative treatment and have recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet.

 

September 2016 Promissory Notes – In September 2016, we sold two promissory notes in the aggregate principal amount of $225,000. The notes totaled $180,000 and $45,000, respectively. Each note bears the same terms: 5% interest per annum with a maturity date of June 30, 2017. In the event of a default, the interest rate will increase to 18%.

 

November 2016 Convertible Note – In November 2016, we entered into a convertible note agreement. We received $100,000 with an original issue discount of $10,000 in lieu of interest for a total amount of $110,000 due on June 9, 2017. In exchange, the lender received 350,000 inducement shares and the right to convert a portion or all of the unpaid principal balance and interest at a conversion price of $0.07 per share. In the event of default, the outstanding balance will increase by 25%. Shares reserved for future conversions total 1,571,450.

 

December 2016 Equity Line of Credit -- On December 6, 2016, we entered into a securities purchase agreement and a registration rights agreement with Bellridge, pursuant to which Bellridge has agreed to purchase from us up to $5,000,000 in shares of our common stock, subject to certain limitations from time to time over a 36 month period commencing on the date of effectiveness of the registration statement which provides for the resale of such shares pursuant to the Registration Rights Agreement. We may direct Bellridge, at our sole discretion and subject to certain conditions, to purchase a minimum of $25,000 and a maximum of $500,000 of shares that is no more than 300% of the average trading volume of our common stock during the 10 day period immediately prior to the Draw Down. In addition, we may direct Bellridge to purchase shares only if during the fifteen consecutive days following a Draw Down request by us, the common stock equals or exceeds $0.06 per share. We will control the timing and amount of any sales of common stock to Bellridge but we may not request a Draw Down less than ten business days apart. The proceeds received by us are expected to be used for general corporate purposes. The securities purchase agreement limits our sales of shares of common stock to Bellridge to no more than the number of shares that would result in the beneficial ownership by Bellridge, at any single point in time, of more than 4.99% of the then outstanding shares of our common stock. However, the 4.99% limitation may be increased by Bellridge up to 9.99% upon at least 61 days’ prior notice to us. As consideration for its commitment to purchase shares of common stock pursuant to the securities purchase agreement, we issued to Bellridge 1,250,000 shares of common stock on February 16, 2017.

 

December 2016 Convertible Promissory Notes -- On December 6, 2016, we also entered into a note purchase agreement which provides for the purchase by Bellridge of up to an aggregate of $150,000 principal amount of the Notes. The Notes have a 5% original issue discount and bear interest at 5% per annum (or the lesser of 22% per annum or the maximum amount permitted by applicable law in the event of a default as described in the Notes). On December 7, 2016, $85,000 was paid pursuant to the initial Note (after the deduction of $10,000 for Bellridge’s legal expenses) which is due on December 5, 2017. On December 28, 2016, after the filing by the Company of a registration statement with the SEC, the Company issued Bellridge another Note in the original principal amount of $50,000 for $47,500.

 

The Notes may be prepaid in whole or in part by the Company at a 115% premium if within 120 days of the issue date or 125% after 120 days of the issue date. The Notes are convertible into common stock at a 30% discount to the lowest trading price for the ten trading days immediately prior to the delivery of a conversion notice, provided that the conversion price will not be less than $0.06 per share. If the price per share of the common stock closes at less than $0.06 for any five out of ten consecutive trading days after the sooner to occur of the filing of the registration statement, or six months from the date of the Note, the Company has the right to prepay the Note at an amount equal to 125% of the then principal and interest due on the Note. However, if the Company fails to prepay the Note in its entirety during the thirty days following a Market Price Decline Period, then the conversion price floor of $0.06 per share will no longer be applicable.

 

 
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If the Company fails to timely deliver shares to Bellridge upon conversion of the Notes, Bellridge will be entitled to liquidated damages of $10 per trading day for each $1,000 being converted (and $20 per day after the tenth trading day). If the Company fails to timely deliver share certificates and Bellridge is required by its brokerage firm to purchase, or its brokerage firm otherwise purchases, common stock to deliver in satisfaction of a sale by Bellridge of the Conversion Shares which Bellridge was entitled to receive, then the Company will (A) pay in cash the amount by which (x) Bellridge’s total purchase price for the common stock so purchased exceeds (y) the product of (1) the aggregate number of shares of common stock that Bellridge was entitled to receive from the conversion multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed and (B) at the option of Bellridge, either reissue (if surrendered) the Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to Bellridge the number of shares of common stock that would have been issued if the Company had timely complied with its delivery requirements.

 

The Note may not be converted to the extent that after giving effect to the conversion Bellridge and its affiliates would beneficially own in excess of 4.99% of the number of shares of the common stock outstanding, which percentage may be increased to 9.99% upon not less than 61 days’ prior notice to the Company.

 

The Note includes antidilution protection in the event of certain subsequent equity sales and dilutive issuances, purchase rights in subsequent rights offerings and pro rata distributions in the event of a dividend or other distribution by the Company. If the Company engages in a fundamental corporate action as described in the Note, Bellridge will be entitled to receive shares or other consideration that it would have received for each share that would have been issuable upon conversion immediately before such fundamental corporate action.

 

So long as the Note is outstanding, unless with the consent of the holders of the majority in principal amount of the then outstanding Notes, the Company will not create certain indebtedness, amend its charter to adversely affect Bellridge, or enter into transactions with affiliates, unless at arm’s length and approved by the majority of disinterested directors.

 

The Note Purchase Agreement also provides that it is an event of default if the Company does not obtain FINRA’s approval to effectuate a 1:15 reverse stock split no later than January 15, 2017, which was extended by Bellridge to January 20, 2017, then extended to February 15, 2017 and further extended to April 24, 2017. As part of the last extension to April 24, 2017, Bellridge agreed to add an increase in the authorized share capital of the Company as another method to avoid the triggering of an event of default. The increase in amounts required under the 3 convertible notes held by Bellridge necessitated that the Company amend its Articles of Incorporation. This was accomplished on March 22, 2017.

 

The Company also agreed to reserve the greater of (i) 1,000,000 shares of common stock or (ii) 300% of the maximum aggregate number of shares issued or issuable to Bellridge (without giving effect to any beneficial ownership restrictions).

 

So long as Bellridge owns the Notes and the shares issuable under the Notes, if the Company fails to satisfy certain current public information requirements under Rule 144 for more than 30 consecutive days, the Company will be required to pay liquidated damages to Bellridge in cash equal to 5% of the aggregate conversion price of the Note(s) on the day of a such failure and on every 30th day thereafter. If the Company fails to make such liquidated damages payments in a timely manner, such payments will bear interest of 1.5% per month until paid in full.

 

March 2017 Convertible Note . On March 14, 2017, the Company entered into a note purchase agreement which provides for the purchase of a $78,750 convertible promissory note. The note has a 5% original issue discount and bears interest at 5% per annum. The maturity date is March 14, 2018.

 

The Note may be prepaid in whole or in part at a 115% premium if within 120 days of the issue date or 125% after 120 days of the issue date. The Note is convertible into common stock at a 30% discount to the lowest trading price for the ten trading days immediately prior to the delivery of a conversion notice, provided that the conversion price will not be less than $0.06 per share.

 

 
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The Note Purchase Agreement also provides that it is an event of default if the Company does not obtain FINRA’s approval to effectuate a 1:15 reverse stock split no later than January 15, 2017. On February 16, 2017, Bellridge agreed to extend the deadline to April 24, 2017 and that in lieu of a reverse stock split, the Company may increase its authorized shares of common stock. On March 22, 2017, the Company amended its Articles of Incorporation and increased its authorized shares from 140,000,000 to 350,000,000.

 

The Company also agreed to reserve the greater of (i) 1,000,000 shares of common stock or (ii) 300% of the maximum aggregate number of shares issued or issuable to Bellridge (without giving effect to any beneficial ownership restrictions).

 

So long as Bellridge owns the Notes and the shares issuable under the Notes, if the Company fails to satisfy certain current public information requirements under Rule 144 for more than 30 consecutive days, the Company will be required to pay liquidated damages to Bellridge in cash equal to 5% of the aggregate conversion price of the Note(s) on the day of a such failure and on every 30th day thereafter. If the Company fails to make such liquidated damages payments in a timely manner, such payments will bear interest of 1.5% per month until paid in full.

 

As consideration for its commitment to purchase shares of common stock pursuant to the securities purchase agreement, we issued to Bellridge 200,000 shares of common stock on March 14, 2017.

 

Off Balance Sheet Arrangements

 

We currently have no off-balance sheet arrangements. 

 

Cash Flows

 

Our cash flows from operating, investing and financing activities were as follows:

 

 

 

Year ended December 31,

 

 

 

2016

 

 

2015

 

Net cash used in operating activities

 

$ (1,324,076 )

 

$ (2,240,049 )

Net cash used in investing activities

 

 

(12,968 )

 

 

(18,634 )

Net cash provided by financing activities

 

 

1,388,453

 

 

 

2,097,694

 

 

Net cash used in operating activities decreased primarily due to managing expenses, in particular travel costs. Our investing activity relates to the development of patents, which has remained steady since inception, and the purchase of test vehicles. Net cash provided by financing activities decreased due to fewer sales of our common stock, which was partially offset by debt borrowings.

 

The Company's capital requirements for the next 12 months will consist of $6 million with anticipated expenses of $1.5 million for salaries, public company filings, and consultants and professional fees.

 

Management believes the Company's funds are insufficient to provide for its projected needs for operations for the next 12 months. The Company is currently negotiating additional funding to support product development or for other purposes.

 

Critical Accounting Policies

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities, and the amounts of revenues and expenses. Critical accounting policies are those that require the application of management's most difficult, subjective or complex judgments, often because of the need to make estimates about the effect of matters that are inherently uncertain and that may change in subsequent periods. In applying these critical accounting policies, our management uses its judgment to determine the appropriate assumptions to be used in making certain estimates. Actual results may differ from these estimates.

 

 
28
 
Table of Contents

 

We define critical accounting policies as those that are reflective of significant judgments and uncertainties and which may potentially result in materially different results under different assumptions and conditions. In applying these critical accounting policies, our management uses its judgment to determine the appropriate assumptions to be used in making certain estimates. These estimates are subject to an inherent degree of uncertainty.

 

Impairment of long-lived assets

 

When facts and circumstances indicate that the carrying value of long-lived assets may not be recoverable, management assesses the recoverability of the carrying value by preparing estimates of revenues and the resulting gross profit and cash flows. These estimated future cash flows are consistent with those we use in our internal planning. If the sum of the expected future cash flows (undiscounted and without interest charges) is less than the carrying amount, we recognize an impairment loss. The impairment loss recognized, if any, is the amount by which the carrying amount of the asset (or asset group) exceeds the fair value. We may use a variety of methods to determine the fair value of these assets, including discounted cash flow models, which are consistent with the assumptions we believe hypothetical marketplace participants would use.

 

If actual results are not consistent with our assumptions and estimates, or our assumptions and estimates change due to new information, we may be exposed to an impairment charge in the future.

 

Derivative financial instruments

 

When we issue debt that contains a conversion feature, we first evaluate whether the conversion feature meets the requirements to be treated as a derivative: a) one or more underlyings, typically the price of the company's stock; b) one or more notional amounts or payment provisions or both, generally the number of shares upon conversion; c) no initial net investment, which typically excludes the amount borrowed; and d) net settlement provisions, which in the case of convertible debt generally means the stock received upon conversion can be readily sold for cash. There are certain scope exceptions from derivative treatment, but these typically exclude conversion features that provide for a variable number of shares.

 

When we issue warrants to purchase our common stock, we must evaluate whether they meet the requirements to be treated as a derivative. Generally, warrants would be treated as a derivative if the provisions of the warrant agreement create uncertainty as to a) the number of shares to be issued upon exercise; or b) whether shares may be issued upon exercise.

 

If the conversion feature within convertible debt or warrants meet the requirements to be treated as a derivative, we estimate the fair value of the derivative liability using the Black-Scholes Option Pricing Model upon the date of issuance. If the fair value of the derivative liability is higher than the face value of the convertible debt, the excess is immediately recognized as interest expense. Otherwise, the fair value of the derivative liability is recorded as a liability with an offsetting amount recorded as a debt discount, which offsets the carrying amount of the debt. The derivative liability is revalued at the end of each reporting period and any change in fair value is recorded as a change in fair value in the consolidated statement of operations. The debt discount is amortized through interest expense over the life of the debt. Derivative instrument liabilities and the host debt agreement are classified on the balance sheet as current or non-current based on whether settlement of the derivative instrument could be required within twelve months of the balance sheet date.

 

The accounting treatment of derivative financial instruments requires that the Company record the embedded conversion option and warrants at their fair values as of the inception date of the agreement and at fair value as of each subsequent balance sheet date. Any change in fair value is recorded as non-operating, non-cash income or expense for each reporting period at each balance sheet date. The Company reassesses the classification of its derivative instruments at each balance sheet date. If the classification changes as a result of events during the period, the contract is reclassified as of the date of the event that caused the reclassification. As a result of entering into warrant agreements, for which such instruments contained a variable conversion feature with no floor, the Company has adopted a sequencing policy in accordance with ASC 815-40-35-12 whereby all future instruments may be classified as a derivative liability with the exception of instruments related to share-based compensation issued to employees or directors.

 

Contingent liabilities

 

We accrue a loss for contingencies if it is probable that an asset has been impaired or a liability has been incurred, and when the amount of loss can be reasonably estimable. When no accrual is made because one or both of these conditions do not exist, we disclose the contingency if there is at least a reasonable possibility that a loss may be incurred. We estimate contingent liabilities based on the best information we have available at the time. If we have a range of possible outcomes, we accrue the low end of the range. 

 

The accounting treatment of derivative financial instruments requires that the Company record the embedded conversion option and warrants at their fair values as of the inception date of the agreement and at fair value as of each subsequent balance sheet date. Any change in fair value is recorded as non-operating, non-cash income or expense for each reporting period at each balance sheet date. The Company reassesses the classification of its derivative instruments at each balance sheet date. If the classification changes as a result of events during the period, the contract is reclassified as of the date of the event that caused the reclassification. As a result of entering into warrant agreements, for which such instruments contained a variable conversion feature with no floor, the Company has adopted a sequencing policy in accordance with ASC 815-40-35-12 whereby all future instruments may be classified as a derivative liability with the exception of instruments related to share-based compensation issued to employees or directors.

 

 
29
 
Table of Contents

 

Share-based Payments

 

All of our share-based awards are classified as equity, as they may only be settled in shares of our common stock.

 

We recognize expense for fully-vested warrants at the time they are granted. For awards with service or performance conditions, we generally recognize expense when the service is complete; however, there may be circumstances in which we determine that the performance condition is probable before the actual performance condition is achieved. In such circumstances, the amount recognized as expense is the pro rata amount, depending on the estimated progress towards completion of the performance condition. Nonemployee share-based payments are measured at fair value, based on either the fair value of the equity instrument issued or on the fair value of the services received. Typically, it is not practical to value the services received, so we determine the fair value of common stock grants based on the price of the common stock on the measurement date, and the fair value of common stock warrants using the Black-Scholes option-pricing model ("Black-Scholes"). We use historical data to estimate the expected price volatility, the expected stock option life and expected forfeiture rate. The risk-free interest rate is based on the United States Treasury yield curve in effect at the time of grant for the estimated life of the stock option. For awards that are recognized when a performance condition is probable, the fair value is estimated at each reporting date. The cost ultimately recognized is the fair value of the equity award on the date the performance condition is achieved. Accordingly, the expense recognized may change between interim reporting dates and the date the performance condition is achieved.

 

We issue two types of common stock options to employees: 1) fully-vested at the time of grant and 2) market price-based vesting. We recognize expense for fully-vested stock options on the date of grant at the estimated fair value of the options using Black-Scholes. We recognize expense for market price-based options at the estimated fair value of the options using the lattice-based option valuation model ("Lattice Model") over the estimated life of the options used in the Lattice Model. We use historical data to estimate the expected price volatility, the expected stock option life and expected forfeiture rate. The risk-free interest rate is based on the United States Treasury yield curve in effect at the time of grant for the estimated life of the stock option. In the event, we modify the terms of a nonvested share-based payment award, we would incur additional expense for the excess of the fair value of the modified share-based payment award over the fair value of the original share-based payment award. The incremental expense would be recognized ratably over the remaining vesting period.

 

Income taxes

 

We recognize deferred income tax assets and liabilities for the expected future tax consequences of temporary differences between the income tax and financial reporting carrying amount of our assets and liabilities. We monitor our deferred tax assets and evaluate the need for a valuation allowance based on the estimate of the amount of such deferred tax assets that we believe do not meet the more-likely-than-not recognition criteria. We also evaluate whether we have any uncertain tax positions and would record a reserve if we believe it is more-likely-than-not our position would not prevail with the applicable tax authorities. We have significant net operating loss carryforwards, for which we have established a valuation allowance. If our estimate of the amount of such deferred tax assets change, we may recognize a benefit in the future. UPT is a limited liability company ("LLC"), which is treated as a partnership for income tax purposes, where all tax obligations flow through to the owners of the LLC during the period in which income taxes were incurred.

 

Item 7A. Quantitative and Qualitative Disclosures about Market Risk

 

As a smaller reporting company, we are not required to provide the information required by this Item.

 

 
30
 
Table of Contents

 

ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTAL DATA

 

INDEX TO FINANCIAL STATEMENTS

 

Consolidated Financial Statements

 

Page

 

 

 

 

Report of Independent Registered Public Accounting Firm

 

F-1

 

 

 

 

Consolidated Balance Sheets as of December 31, 2016 and 2015

 

F-2

 

 

 

 

Consolidated Statements of Operations for the years ended December 31, 2016 and 2015

 

F-3

 

 

 

 

Consolidated Statement of Stockholders’ Deficit from December 31, 2014 through 2016

 

F-4

 

 

 

 

Consolidated Statements of Cash Flows for the years ended December 31, 2016 and 2015.

 

F-5

 

 

 

 

Consolidated Notes to Financial Statements

 

F-6

 

 

 
31
 
 

 

Report of Independent Registered Public Accounting Firm

 

To the Board of Directors and Stockholders

Cool Technologies, Inc.

 

We have audited the accompanying consolidated balance sheets of Cool Technologies, Inc. (the "Company") as of December 31, 2016, and 2015, and the related consolidated statements of operations, changes in stockholders' deficit and cash flows for the years then ended. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

 

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States of America). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that we considered appropriate under the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

 

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2016, and 2015, and the results of their operations and their cash flows for the years then ended; in conformity with accounting principles generally accepted in the United States of America.

 

The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the consolidated financial statements, the Company has had no revenues and incurred an accumulated deficit of $40,188,414 since inception. These conditions, among others, raise substantial doubt about the Company's ability to continue as a going concern. Management's plans concerning these matters are also described in Note 1, which includes the raising of additional equity financing. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.

 

/s/ Anton & Chia, LLP                

 

Newport Beach, CA 

April 12, 2017

 

 
F-1
 
Table of Contents

  

Cool Technologies, Inc.

Consolidated Balance Sheets

 

 

 

December 31,

 

 

 

2016

 

 

2015

 

ASSETS

 

 

 

 

 

 

Current assets:

 

 

 

 

 

 

Cash

 

$ 62,291

 

 

$ 10,882

 

Prepaid expenses

 

 

--

 

 

 

95,175

 

Total current assets

 

 

62,291

 

 

 

106,057

 

Intangibles

 

 

166,402

 

 

 

153,434

 

Equipment, net

 

 

71,664

 

 

 

97,600

 

Total assets

 

$ 300,357

 

 

$ 357,091

 

 

 

 

 

 

 

 

 

 

LIABILITIES AND STOCKHOLDERS’ DEFICIT

Current liabilities:

 

 

 

 

 

 

 

 

Accounts payable

 

$ 1,595,883

 

 

$ 1,278,307

 

Accrued liabilities – related party

 

 

553,953

 

 

 

591,870

 

Customer deposits – related party

 

 

400,000

 

 

 

400,000

 

Accrued payroll

 

 

93,512

 

 

 

33,737

 

Debt, current portion

 

 

825,170

 

 

 

697,903

 

Derivative liability

 

 

4,851,760

 

 

 

356,554

 

Total current liabilities

 

 

8,320,278

 

 

 

3,358,371

 

 

 

 

 

 

 

 

 

 

Debt, long-term portion

 

 

18,311

 

 

 

77,803

 

Total liabilities

 

$ 8,338,589

 

 

$ 3,436,174

 

 

 

 

 

 

 

 

 

 

Commitments and contingencies (Note 6)

 

 

--

 

 

 

--

 

 

 

 

 

 

 

 

 

 

Stockholders’ deficit:

 

 

 

 

 

 

 

 

Preferred stock Series A, $.001 par value; 15,000,000 shares authorized; 116 and 136 shares issued and outstanding at December 31, 2016 and 2015, respectively

 

 

--

 

 

 

--

 

Preferred stock Series B, $.001 par value; 15,000,000 shares authorized: 3,636,360 and 0 issued and outstanding on December 31, 2016 and 2015, respectively.

 

 

3,636

 

 

 

--

 

Common stock, $.001 par value; 140,000,000 shares authorized; 111,438,236 and 66,600,367 shares issued and outstanding at December 31, 2016 and 2015, respectively

 

 

110,865

 

 

 

65,929

 

Additional paid-in capital

 

 

31,891,116

 

 

 

36,038,551

 

Common stock issuable

 

 

125,500

 

 

 

180,900

 

Preferred stock issuable

 

 

51,000

 

 

 

--

 

Common stock held in escrow

 

 

8,441

 

 

 

8,441

 

Accumulated deficit

 

 

(40,188,414 )

 

 

(39,344,245 )

Non controlling interest

 

 

(40,376 )

 

 

(28,659 )

Total stockholders’ deficit

 

 

(8,038,232 )

 

 

(3,079,083 )

 

 

 

 

 

 

 

 

 

Total liabilities and stockholders’ deficit

 

$ 300,357

 

 

$ 357,091

 

 

See accompanying notes to consolidated financial statements.

 
 
F-2
 
Table of Contents

 

Cool Technologies, Inc.

Consolidated Statements of Operations

 

 

Year ended December 31,

 

2016

 

2015

 

 

 

 

 

 

 

 

 

 

Revenues

 

$

--

 

$

--

 

Cost of revenues

 

--

 

--

 

Gross profit

 

--

 

--

 

Operating expenses

 

Payroll and related expenses

 

553,199

 

803,426

 

Consulting

 

2,081,714

 

867,356

 

Professional fees

 

332,767

 

614,935

 

Research and development

 

251,724

 

824,711

 

General and administrative

 

738,816

 

1,939,230

 

Total operating expenses

 

3,958,220

 

5,049,658

 

Operating loss

 

(3,958,220

)

 

(5,049,658

)

 

Other income and (expense)

 

Interest expense, net

 

(1,186,008

)

 

(75,145

)

Change in fair value of derivative liability

 

4,959,062

 

(50,237

)

Loss on extinguishment

 

(628,510

)

 

-- 

 

Legal settlement – replacement warrants

 

(1,764,450

)

Legal settlement – other

 

(42,210

)

 

--

 

Net loss

 

(855,886

)

 

(6,939,490

)

Net loss attributable to non controlling interest

 

(11,717

)

 

(16,390

)

 

Net loss attributable to Cool Technologies, Inc.

 

$

(844,169

)

 

$

(6,923,100

)

 

Net loss per common share:

 

Basic and diluted

 

$

(0.01

)

 

$

(0.10

)

 

Weighted average common shares outstanding:

 

Basic and diluted

 

84,894,351

 

64,586,781

   

See accompanying notes to consolidated financial statements

 

 
F-3
 
Table of Contents

 

Cool Technologies, Inc.

Consolidated Statements of Changes in Stockholders’ Deficit  

 

 

 

Preferred Stock

 

 

Common Stock

 

 

Additional Paid-in

 

 

Common Stock

 

 

Preferred

Stock

 

 

Common Stock

Held in

 

 

Accumulated

 

 

Non-

Controlling

 

 

 

 

 

 

Shares

 

 

Amount

 

 

Shares

 

 

Amount

 

 

Capital

 

 

Issuable

 

 

Issuable

 

 

Escrow

 

 

Deficit

 

 

Interest

 

 

Total 

 

December 31, 2014

 

140

 

$ --

 

 

61,439,134

 

$ 60,767

 

$ 30,864,669

 

$ 435,930

 

$ --

 

$ 8,441

 

$ (32,421,145 ) $ (12,269 ) $ (1,063,607 )

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sale of common stock

 

--

 

 

--

 

 

2,809,251

 

 

2,810

 

 

1,082,190

 

 

105,020

 

 

 

 

 

--

 

 

--

 

 

--

 

 

1,190,020

 

Issuance of common stock issuable

 

--

 

 

--

 

 

753,001

 

 

753

 

 

410,197

 

 

(410,950

)

 

 

 

--

 

 

--

 

 

--

 

 

--  

Cashless warrant exercises

 

--

 

 

--

 

 

288,968

 

 

289

 

 

(289 )

 

--

 

 

 

 

 

--

 

 

--

 

 

--

 

 

--

 

Conversion of preferred stock to common stock

 

(4 )

 

--

 

 

200,000

 

 

200

 

 

(200 )

 

--

 

 

 

 

 

--

 

 

--

 

 

--

 

 

--

 

Stock issued for services

 

--

 

 

--

 

 

1,110,013

 

 

1,110

 

 

550,497

 

 

50,900

 

 

 

 

 

--

 

 

--

 

 

--

 

 

602,507

 

Warrants issued for services

 

--

 

 

--

 

 

--

 

 

--

 

 

59,037

 

 

--

 

 

 

 

 

--

 

 

--

 

 

--

 

 

59,037

 

Employee stock options

 

--

 

 

--

 

 

--

 

 

--

 

 

1,308,000

 

 

--

 

 

 

 

 

--

 

 

--

 

 

--

 

 

1,308,000

 

Replacement warrants – legal settlement

 

--

 

 

--

 

 

--

 

 

--

 

 

1,764,450

 

 

--

 

 

 

 

 

--

 

 

--

 

 

--

 

 

1,764,450

 

Net loss

 

--

 

 

--

 

 

--

 

 

--

 

 

--

 

 

--

 

 

 

 

 

--

 

 

(6,939,490 )

 

--

 

 

(6,939,490 )

Noncontrolling interest

 

--

 

 

--

 

 

--

 

 

--

 

 

--

 

 

--

 

 

 

 

 

--

 

 

16,390

 

 

(16,390 )

 

--

 

December 31, 2015

 

136

 

 

--

 

 

66,600,367

 

$ 65,929

 

$ 36,038,551

 

$ 180,900

 

$ --

 

$ 8,441

 

$ (39,344,245 ) $ (28,659 ) $ (3,079,083 )

Sale of stock

 

2,727,270

 

 

2,727

 

 

2,480,770

 

 

2,481

 

 

550,292

 

 

65,000

 

 

51,000

 

 

 

 

 

 

 

 

 

 

 

671,500

 

Issuance of common stock issuable

 

 

 

 

 

 

 

529,654

 

 

529

 

 

119,871

 

 

(120,400 )

 

 

 

 

 

 

 

 

 

 

 

 

 

--

 

Cashless warrant exercises

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

--

 

Conversion of Series A preferred stock to common stock

 

(20 )

 

 

 

 

1,000,000

 

 

1,100

 

 

(1,100 )

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

--

 

Series B preferred stock issued for services

 

909,090

 

 

909

 

 

1,806,812

 

 

1,807

 

 

334,374

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

337,090

 

Stock issued for short term payables

 

 

 

 

 

 

 

143,188

 

 

143

 

 

22,767

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

22,910

 

Stock issued with debt

 

 

 

 

 

 

 

1,350,000

 

 

1,350

 

 

213,650

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

215,000

 

Warrants issued for services

 

--

 

 

--

 

 

--

 

 

--

 

 

1,623,958

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1,623,958

 

Warrants issued with debt

 

 

 

 

 

 

 

 

 

 

 

 

 

35,579

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

35,579

 

Employee stock options

 

--

 

 

--

 

 

--

 

 

--

 

 

327,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

327,000

 

Debt Converted

 

 

 

 

 

 

 

37,527,445

 

 

37,526

 

 

987,509

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1,025,035

 

Reclassification of common share equivalents to derivative liabilities

 

 

 

 

 

 

 

 

 

 

 

 

 

(9,194,736 )

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(9,194,736 )

Conversion of convertible notes

 

 

 

 

 

 

 

 

 

 

 

 

 

833,401

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

833,401

 

Net loss

 

--

 

 

--

 

 

--

 

 

--

 

 

--

 

 

--

 

 

 

 

 

--

 

 

(855,886 )

 

 

 

 

(855,886 )

Noncontrolling interest

 

--

 

 

--

 

 

--

 

 

--

 

 

--

 

 

--

 

 

 

 

 

--

 

 

11,717

 

 

(11,717 )

 

--

 

December 31, 2016

 

3,636,476

 

 

3,636

 

 

111,438,236

 

 

110,865

 

 

31,891,116

 

 

125,500

 

 

51,000

 

 

8,441

 

 

(40,188,414 )

 

(40,376 )

 

(8,038,232 )

 

See accompanying notes to consolidated financial statements

 

 
F-4
 
Table of Contents

 

Cool Technologies, Inc.

Consolidated Statements of Cash Flows

 

 

 

Year ended December 31,

 

 

 

2016

 

 

2015

 

Operating Activities:

 

 

 

 

 

 

Net loss

 

$ (855,886 )

 

$ (6,939,490 )

Adjustments to reconcile net loss to net cash used in operating activities:

 

 

 

 

 

 

 

 

Stock issued for services

 

 

337,090

 

 

 

602,507

 

Warrants issued for services

 

 

1,623,958

 

 

 

59,037

 

Legal settlement – replacement warrants

 

 

--

 

 

 

1,764,450

 

Loss on extinguishment of debt

 

 

628,510

 

 

 

 

 

Employee stock options

 

 

327,000

 

 

 

1,308,000

 

Non-cash interest expense

 

 

370,718

 

 

 

 

 

Change in fair value of derivative liability

 

 

(4,959,062 )

 

 

50,237

 

Amortization of debt discount

 

 

743,051

 

 

 

57,038

 

Depreciation expense

 

 

25,936

 

 

 

25,853

 

Changes in operating assets and liabilities:

 

 

 

 

 

 

 

 

Prepaid expenses

 

 

95,175

 

 

 

(38,157 )

Accounts payable

 

 

317,576

 

 

 

748,571

 

Accrued liabilities – related party

 

 

(37,917 )

 

 

102,335

 

Customer deposits – related party

 

 

--

 

 

 

--

 

Accrued payroll liabilities

 

 

59,775

 

 

 

19,570

 

Net cash used in operating activities

 

 

(1,324,076 )

 

 

(2,240,049 )

 

 

 

 

 

 

 

 

 

Investing Activities:

 

 

 

 

 

 

 

 

Expenditure for Intangible assets

 

 

(12,968 )

 

 

(13,634 )

Expenditure for Equipment

 

 

--

 

 

 

(5,000 )

Net cash used in investing activities

 

 

(12,968 )

 

 

(18,634 )

 

 

 

 

 

 

 

 

 

Financing Activities:

 

 

 

 

 

 

 

 

Proceeds from sale of common stock, net

 

 

671,500

 

 

 

1,190,020

 

Proceeds from debt

 

 

1,091,715

 

 

 

925,000

 

Payments on debt

 

 

(374,762 )

 

 

(17,326 )

Net cash provided by financing activities

 

 

1,388,453

 

 

 

2,097,694

 

 

 

 

 

 

 

 

 

 

Net change in cash

 

 

51,409

 

 

 

(160,989 )

 

 

 

 

 

 

 

 

 

Cash, beginning of period

 

 

10,882

 

 

 

171,871

 

 

 

 

 

 

 

 

 

 

Cash, end of period

 

$ 62,291

 

 

$ 10,882

 

 

 

 

 

 

 

 

 

 

Cash paid for:

 

 

 

 

 

 

 

 

Interest

 

$ 29,161

 

 

$ 5,458

 

Income taxes

 

 

 

 

 

 

--

 

 

 

 

 

 

 

 

 

 

Non-cash transactions:

 

 

 

 

 

 

 

 

Derivative liability offset by debt discount

 

$ 492,405

 

 

$ 305,667

 

Reduction of common stock issuable by issuing stock

 

 

120,400

 

 

 

410,950

 

Debt and interest settled for common stock

 

 

1,025,035

 

 

 

--

 

Stock issued for short term payables

 

 

22,910

 

 

 

 

 

Stock issued with debt

 

 

215,000

 

 

 

 

 

Warrants issued with debt

 

 

35,579

 

 

 

 

 

Reclassification of common share equivalents to derivative liabilities

 

 

9,194,736

 

 

 

 

 

Conversion of convertible notes

 

 

833,401

 

 

 

 

 

 

See accompanying notes to consolidated financial statements.

 

 
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Cool Technologies, Inc. and subsidiary

Notes to Consolidated Financial Statements

 

Note 1 – Description of Business and Summary of Significant Accounting Policies

 

Description of Business

 

Cool Technologies, Inc. and subsidiary, (we, us, our, the "Company" or "Cool Technologies") was incorporated in the State of Nevada in July 2002. In April 2014, we formed Ultimate Power Truck, LLC ("Ultimate Power Truck" or "UPT"), of which we own 95% and a shareholder of Cool Technologies owns 5%. We were formerly known as Bibb Corporation, as Z3 Enterprises, and as HPEV, Inc. On August 20, 2015, we changed our name to Cool Technologies, Inc.

 

We have developed and intend to commercialize heat dispersion technologies in various product platforms, and have developed and intend to commercialize an electric load assist technology around which we have designed a vehicle retrofit system. In preparation, we have applied for trademarks for one of our technologies and its acronym. We currently own one trademark: TEHPC. We believe that our proprietary technologies, including our patent portfolio and trade secrets, can help increase the efficiency and positively affect manufacturing cost structure in several large industries beginning with motors/generators and fleet vehicles. The markets for products utilizing our technology include consumer, industrial and military markets, both in the U.S. and worldwide.

 

Our technologies are divided into three distinct but complementary categories: a) mobile power generation, b) heat dispersion technology and c) electric load assist. As of December 31, 2016, we have five US patents and seven patent applications pending in the area of composite heat structures, motors, and related structures, heat pipe architecture, applications (commonly referred to as "thermal" or "heat dispersion technology") and a parallel vehicle power platform. We intend to commercialize our patents by licensing our thermal technologies and applications to electric motor, pump and vehicle component manufacturers; by licensing or selling a mobile electric power system powered by our proprietary gearing system to commercial vehicle and fleet owners; and by licensing a plug-in hybrid conversion system for heavy duty trucks, buses and tractor trailers to fleet owners and service centers.

  

Basis of Presentation, Use of Estimates and Principles of Consolidation

 

The accompanying consolidated financial statements include the accounts of Cool Technologies, Inc. and Ultimate Power Truck, LLC. Intercompany accounts and transactions have been eliminated. Our financial statements are prepared in accordance with accounting principles generally accepted in the United States ("GAAP"). The preparation of our financial statements requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses. Although these estimates are based on our knowledge of current events and actions we may undertake in the future, actual results may ultimately differ from these estimates and assumptions. Furthermore, when testing assets for impairment in future periods, if management uses different assumptions or if different conditions occur, impairment charges may result.

 

Noncontrolling interest represents the 5% third-party interest in UPT. There are no restrictions on the transfer of funds or net assets from UPT to Cool Technologies.

 

 
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Going Concern and Management’s Plan

 

The accompanying consolidated financial statements have been prepared assuming we will continue as a going concern. We have incurred net losses of $40,188,414 since inception and have not fully commenced operations, raising substantial doubt about our ability to continue as a going concern. Our ability to continue as a going concern is dependent on our ability to generate revenue, achieve profitable operations and repay our obligations when they come due. These consolidated financial statements do not include any adjustments relating to the recoverability and classification of recorded asset amounts, or amounts and classification of liabilities that might result from this uncertainty. As of the filing date of this Annual Report on Form 10-K, management is negotiating additional funding arrangements to support completion of the initial phases of our business plan: to license its thermal technologies and applications, including submersible dry-pit applications and to license and sell mobile generation retrofit kits (our Ultimate Power Truck business) driven by our proprietary gearing system. There can be no assurance, however, that we will be successful in accomplishing these objectives. 

 

Summary of Significant Accounting Policies

 

Cash and cash equivalents

 

Cash and cash equivalents include cash on hand, deposits with banks, and investments that are highly liquid and have maturities of three months or less at the date of purchase.

 

Intangible assets

 

Our intangible assets consist of patents on our technology, recorded at cost. Cost is based on third party expenditures for patent applications. We will begin amortizing our intangibles over their estimated remaining useful life when we begin revenue-producing activities. We will determine the useful lives of our intangible assets after considering the specific facts and circumstances related to each intangible asset. Factors we consider when determining useful lives include the contractual term of any agreement related to the asset, the historical performance of the asset, our long-term strategy for using the asset, any laws or other local regulations that could impact the useful life of the asset, and other economic factors, including competition and specific market conditions.

 

Equipment

 

Equipment consists of vehicles we use for testing and demonstrating our technology to potential customers. Depreciation is recorded using the straight-line method over five years, the estimated useful life.

 

Impairment of long-lived assets

 

When facts and circumstances indicate that the carrying value of long-lived assets may not be recoverable, management assesses the recoverability of the carrying value by preparing estimates of revenues and the resulting gross profit and cash flows. These estimated future cash flows are consistent with those we use in our internal planning. If the sum of the expected future cash flows (undiscounted and without interest charges) is less than the carrying amount, we recognize an impairment loss. The impairment loss recognized, if any, is the amount by which the carrying amount of the asset (or asset group) exceeds the fair value. We may use a variety of methods to determine the fair value of these assets, including discounted cash flow models, which are consistent with the assumptions we believe hypothetical marketplace participants would use. We have not recorded any impairment expense on our long-lived assets as of December 31, 2016.

 

 
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Debt – original issue discount

 

When we issue notes payable with a face value higher than the proceeds we receive, we record the difference as a debt discount and amortize it through interest expense over the life of the underlying note payable.

 

Derivative financial instruments

 

When we issue debt that contains a conversion feature, we first evaluate whether the conversion feature meets the requirements to be treated as a derivative: a) one or more underlyings, typically the price of the company's stock; b) one or more notional amounts or payment provisions or both, generally the number of shares upon conversion; c) no initial net investment, which typically excludes the amount borrowed; and d) net settlement provisions, which in the case of convertible debt generally means the stock received upon conversion can be readily sold for cash. There are certain scope exceptions from derivative treatment, but these typically exclude conversion features that provide for a variable number of shares.

 

When we issue warrants to purchase our common stock, we must evaluate whether they meet the requirements to be treated as a derivative. Generally, warrants would be treated as a derivative if the provisions of the warrant agreement create uncertainty as to a) the number of shares to be issued upon exercise; or b) whether shares may be issued upon exercise. 

 

If the conversion feature within convertible debt or warrants meet the requirements to be treated as a derivative, we estimate the fair value of the derivative liability using the Black-Scholes Option Pricing Model upon the date of issuance. If the fair value of the derivative liability is higher than the face value of the convertible debt, the excess is immediately recognized as interest expense. Otherwise, the fair value of the derivative liability is recorded as a liability with an offsetting amount recorded as a debt discount, which offsets the carrying amount of the debt. The derivative liability is revalued at the end of each reporting period and any change in fair value is recorded as a change in fair value in the consolidated statement of operations. The debt discount is amortized through interest expense over the life of the debt. Derivative instrument liabilities and the host debt agreement are classified on the balance sheet as current or non-current based on whether settlement of the derivative instrument could be required within twelve months of the balance sheet date.

 

The accounting treatment of derivative financial instruments requires that the Company record the embedded conversion option and warrants at their fair values as of the inception date of the agreement and at fair value as of each subsequent balance sheet date. Any change in fair value is recorded as non-operating, non-cash income or expense for each reporting period at each balance sheet date. The Company reassesses the classification of its derivative instruments at each balance sheet date. If the classification changes as a result of events during the period, the contract is reclassified as of the date of the event that caused the reclassification. As a result of entering into warrant agreements, for which such instruments contained a variable conversion feature with no floor, the Company has adopted a sequencing policy in accordance with ASC 815-40-35-12 whereby all future instruments may be classified as a derivative liability with the exception of instruments related to share-based compensation issued to employees or directors.

 

Research and development costs

 

Internal costs related to research and development efforts on existing or potential products are expensed as incurred. External costs incurred for intangible assets, such as attorney fees for patents, are capitalized.

 

Share-based payments

 

All of our share-based awards are classified as equity. We do not have any liability classified share-based awards. Each warrant or stock option is exercisable for one share of our common stock.

 

Nonemployees We may enter into agreements with nonemployees to make share-based payments in return for services. These payments may be made in the form of common stock or common stock warrants. We recognize expense for fully-vested warrants at the time they are granted. For awards with service or performance conditions, we generally recognize expense over the service period or when the performance condition is met; however, there may be circumstances in which we determine that the performance condition is probable before the actual performance condition is achieved. In such circumstances, the amount recognized as expense is the pro rata amount, depending on the estimated progress towards completion of the performance condition. Nonemployee share-based payments are measured at fair value, based on either the fair value of the equity instrument issued or on the fair value of the services received. Typically, it is not practical to value the services received, so we determine the fair value of common stock grants based on the price of the common stock on the measurement date (which is the earlier of the date at which a commitment for performance by the counterparty to earn the equity instruments is reached, if there are sufficient disincentives to ensure performance, or the date at which the counterparty's performance is complete), and the fair value of common stock warrants using the Black-Scholes option-pricing model ("Black-Scholes"). We use historical data to estimate the expected price volatility, the expected stock option life and expected forfeiture rate. The risk-free interest rate is based on the United States Treasury yield curve in effect at the time of grant for the estimated life of the stock option. For awards that are recognized when a performance condition is probable, the fair value is estimated at each reporting date. The cost ultimately recognized is the fair value of the equity award on the date the performance condition is achieved. Accordingly, the expense recognized may change between interim reporting dates and the date the performance condition is achieved.

 

 
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Employees – We issue two types of common stock options to employees: 1) fully-vested at the time of grant and 2) market price-based vesting. We recognize expense for fully-vested stock options on the date of grant at the estimated fair value of the options using Black-Scholes. We recognize expense for market price-based options at the estimated fair value of the options using the lattice-based option valuation model ("Lattice Model") over the estimated life of the options used in the Lattice Model. We use historical data to estimate the expected price volatility, the expected stock option life and expected forfeiture rate. The risk-free interest rate is based on the United States Treasury yield curve in effect at the time of grant for the estimated life of the stock option.

 

Modification of share-based payment awards – In the event we modify the terms of a nonvested share-based payment award, we would incur additional expense for the excess of the fair value of the modified share-based payment award, measured at the date of modification, over the fair value of the original share-based payment award. The incremental expense would be recognized ratably over the remaining vesting period.

 

Sale of common stock with warrants – When we sell common stock we may also issue common stock warrants. We treat the value of these warrants as equity issuance costs. Accordingly, the value of the common stock warrants is included as a component of additional paid-in capital upon recording the sale of common stock.

 

Nonemployee stock option – In 2012, we issued an equity-based award in the form of stock options to a nonemployee, which have been aggregated and classified with nonemployee common stock warrants, as the terms are similar to the common stock warrants we issued to nonemployees. The stock options were exercised on a cashless basis in 2013. 

 

Cashless exercise – Most of our common stock warrants and stock options may be exercised on a cashless basis. The number of shares of our common stock received upon exercising on a cashless basis is based on a) the volume weighted-average price of our common stock for three trading days immediately preceding the exercise date; b) the exercise price of the warrant or option; and c) the number of common shares issuable under the instrument.

 

Income taxes

 

We recognize deferred income tax assets and liabilities for the expected future tax consequences of temporary differences between the income tax and financial reporting carrying amount of our assets and liabilities. We monitor our deferred tax assets and evaluate the need for a valuation allowance based on the estimate of the amount of such deferred tax assets that we believe do not meet the more-likely-than-not recognition criteria. We also evaluate whether we have any uncertain tax positions and would record a reserve if we believe it is more-likely-than-not our position would not prevail with the applicable tax authorities. Our assessment of tax positions as of December 31, 2016 and 2015, determined that there were no material uncertain tax positions.

 

UPT is a limited liability company ("LLC"), which is treated as a partnership for income tax purposes, where all tax obligations flow through to the owners of the LLC during the period in which income taxes were incurred.

 

 
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Fair value of financial instruments

 

Our financial instruments include cash and cash equivalents, accounts payable, accrued liabilities, and debt. The carrying value of these financial instruments is considered to be representative of their fair value due to the short maturity of these instruments. The carrying amount of our debt approximates fair value, because the interest rates on these instruments approximate the interest rate on debt with similar terms available to us. Our derivative liabilities were adjusted to fair market value at the end of each reporting period, using Level 3 inputs.

 

Fair value is defined as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability, in an orderly transaction between market participants on the measurement date. Valuation techniques used to measure fair value must maximize the use of observable inputs and minimize the use of unobservable inputs. The fair value hierarchy is based on three levels of inputs, of which the first two are considered observable and the last unobservable, as follows:

 

Level 1 – Quoted prices in active markets for identical assets or liabilities.

 

Level 2 – Inputs other than Level 1 that are observable, either directly or indirectly, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.

 

Level 3 – Unobservable inputs that are supported by little or no market activity and that are significant to the measurement of the fair value of the assets or liabilities.

 

Reportable segments

 

We have identified our operating segments, our chief operating decision maker ("CODM"), and the discrete financial information reviewed by the CODM. After evaluating this information, we have determined that we have one reportable segment.

 

Recently Issued Accounting Pronouncements

 

Financial Accounting Standards Board, or FASB, Accounting Standards Update, or ASU 2016-02 "Leases (Topic 842)"– In February 2016, the FASB issued ASU 2016-02, which will require lessees to recognize almost all leases on their balance sheet as a right-of-use asset and a lease liability. For income statement purposes, the FASB retained a dual model, requiring leases to be classified as either operating or finance. Classification will be based on criteria that are largely similar to those applied in current lease accounting, but without explicit bright lines. Lessor accounting is similar to the current model, but updated to align with certain changes to the lessee model and the new revenue recognition standard. This ASU is effective for fiscal years beginning after December 18, 2018, including interim periods within those fiscal years. We are currently evaluating the potential impact this standard will have on our consolidated financial statements and related disclosures. 

 

FASB ASU 2015-17"Income Taxes (Topic 740)" – In November 2015, the FASB issued ASU 2015-17, which simplifies the presentation of deferred tax assets and liabilities on the balance sheet. Previous GAAP required an entity to separate deferred income tax liabilities and assets into current and noncurrent amounts on the balance sheet. The amendment requires that deferred tax liabilities and assets be classified as noncurrent in a classified balance sheet. This ASU is effective for annual periods beginning after December 15, 2017, and interim periods within annual periods beginning after December 15, 2018. We are currently evaluating the potential impact this standard will have on our consolidated financial statements and related disclosures.

 

FASB ASU 2015-16 "Business Combinations (Topic 805)," or ASU 2015-16 - In September 2015, the FASB issued ASU 2015-16, which requires that an acquirer recognize adjustments to provisional amounts that are identified during the measurement period in the reporting period in which the adjustment amounts are determined. This ASU is effective for interim and annual reporting period beginning after December 15, 2016, including interim periods within those fiscal years, with the option to early adopt for financial statements that have not been issued. We are currently evaluating the potential impact this standard will have on our consolidated financial statements and related disclosures.

 

 
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FASB ASU 2015-11 "Inventory (Topic 330): Simplifying the Measurement of Inventory," or ASU 2015-11 - In July 2015, the FASB issued ASU 2015-11, which requires an entity to measure in scope inventory at the lower of cost and net realizable value. Net realizable value is the estimated selling prices in the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation. The amendments apply to inventory that is measured using first-in, first-out (FIFO) or average cost. This ASU is effective for interim and annual reporting periods beginning after December 15, 2016, with the option to early adopt as of the beginning of an annual or interim period. We do not expect the adoption of this ASU to have a significant impact on our financial position, results of operations and cash flows.

 

FASB ASU 2015-03 "Interest - Imputation of Interest (Subtopic 835-30): Simplifying the Presentation of Debt Issuance Cost," or ASU 2015-03 - In April 2015, the FASB issued ASU 2015-03, which requires debt issuance costs to be presented in the balance sheet as a direct deduction from the associated debt liability. We do not expect the adoption of this ASU to have a significant impact on our financial position, results of operations and cash flows.

 

FASB ASU 2015-02 "Consolidation (Topic 810): Amendments to the Consolidation Analysis," or ASU 2015-02 - In February 2015, the FASB issued ASU 2015-02, which changes the analysis that a reporting entity must perform to determine whether it should consolidate certain types of legal entities. This ASU is effective for annual reporting periods beginning after December 15, 2015 and we are currently assessing the impact of adoption of this ASU on our consolidated results of operations, cash flows and financial position.

 

FASB ASU 2014-09 "Revenue from Contracts with Customers (Topic 606)," or ASU 2014-09 - In May 2014, the FASB issued ASU 2014-09, which supersedes the revenue recognition requirements of Accounting Standards Codification, or ASC, Topic 605 "Revenue Recognition." This ASU is effective for annual reporting periods beginning after December 15, 2017, with the option to adopt as early as December 15, 2016. We are currently assessing the impact of adoption of this ASU on our consolidated results of operations, cash flows and financial position.

 

Note 2 – Equipment

 

Equipment consists of the following:

 

 

 

December 31,

 

 

 

2016

 

 

2015

 

Test vehicles

 

$ 124,687

 

 

$ 124,687

 

Other

 

 

5,000

 

 

 

5,000

 

 

 

 

129,687

 

 

 

129,687

 

Less: accumulated depreciation

 

 

(58,023 )

 

 

(32,087 )

 

 

$ 71,664

 

 

$ 97,600

 

 

Depreciation expense for the years ended December 31, 2016 and 2015, was $25,936 and $25,853, respectively. 

 

Note 3 – Customer deposits – Related party

 

These represent advance payments of $400,000 received on orders that have not yet been fulfilled, with companies controlled by the individual who is the 5% owner of UPT and is a shareholder of Cool Technologies.

 

Note 4 – Debt

 

Debt consists of the following:

 

 

 

December 31,

 

 

 

2016

 

 

2015

 

Notes payable -- original issue discount

 

$ 225,000

 

 

$ 400,000

 

Convertible notes payable

 

 

641,129

 

 

 

365,350

 

Test vehicle financing

 

 

61,811

 

 

 

77,075

 

Note payable – related party

 

 

237

 

 

 

22,910

 

Note payable – UPT minority owner

 

 

250,000

 

 

 

250,000

 

 

 

 

1,178,177

 

 

 

1,115,335

 

Debt discount

 

 

(334,696 )

 

 

(339,629 )

 

 

 

843,481

 

 

 

775,706

 

Less: current portion

 

 

(825,170 )

 

 

697,903

 

Long-term portion

 

$ 18,311

 

 

$ 77,803

 

 

 
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Notes payable – original issue discount

 

In October 2015, we received $350,000 under two notes payable with an original issue discount of $50,000, in lieu of interest. The $400,000 principal balance is payable in full on March 31, 2016. In the event of default, the interest rate will be 18% per annum.

 

Negotiations to extend the maturity date commenced before the end of March and were concluded with the signing of the Forbearance and Amendment Agreement on April 28, 2016. $377,142 and $102,857 for a total of $480,000 plus a forbearance fee of $5,000 payable to each holder of a note payable. In exchange the holders agreed to refrain from taking legal action until May 16, 2016.

 

An Extension and Amendment Agreement signed on May 23, 2016 extended the Maturity Date of one of the Note until September 30, 2016. And amended Conversion Rights at a price equal to 75% of the VWAP for the preceding 12 business days. The outstanding principal amount including interest, forbearance fees, liquidated damages and expenses was amended to $458,571 from the previous $382,142 and the original $314,285. The second note holder exchanged his debt with a third party for a payment of $104,801 on May 24, 2016.

 

A series of conversions from June 7 to August 15, 2016 reduced the outstanding principal to the remaining noteholder to $60,751. The note was extinguished with a payment on August 26, 2016.

 

Convertible notes payable

 

September 2015 Convertible Note -- In September 2015, the Company entered into a convertible note agreement, which allows us to borrow up to $250,000, bearing interest at 10%, with principal and interest payable on September 15, 2017. The Company borrowed $75,000 in September 2015 and $50,000 in November 2015, for a total of $125,000 due on September 15, 2017. At the holder’s option, a portion or all of the unpaid principal and interest may be converted into shares of our common stock at the lesser of $0.305 per share or 65% of the volume weighted average price of our common stock during the five consecutive trading days immediately preceding the applicable conversion date. The Company determined that the conversion feature meets the requirements for derivative treatment and has recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet. In February 2016, the $75,000 note and interest of $16,667 were converted in exchange for 467,740 shares of our common stock. In May and June, 2016, the remaining $50,000 note and $14,256 of interest were converted in exchange for 649,450 shares of our common stock.

 

December 2015 Convertible Notes -- In December 2015, the Company entered into a convertible note agreement, bearing interest payable quarterly at 10%, allowing us to borrow up to $248,800. In December 2015, the Company received $200,000 under the convertible note agreement, with an original issue discount of $20,350 and $20,000 distributed to the lender’s legal counsel, for a total amount of $240,350 due on December 1, 2016, with a debt discount of $40,350. In January 2016, the Company received the remaining $48,800 with an original issue discount of $5,850, for a total amount of $54,650 due on February 26, 2017. At the holder’s option, a portion or all of the unpaid principal balance may be converted into shares of our common stock at a rate of $0.12 per share. In the event of a default, the conversion price becomes 70% of the volume weighted average price of our common stock during the three consecutive trading days immediately preceding the applicable conversion date. The Company also issued warrants to purchase 500,000 shares of our common stock in two separate tranches for 250,000 shares each, with exercise prices of 125% and 150% of our common stock price on the day prior to closing the agreement, or $0.175 per share and $0.21 per share. The Company determined that the conversion feature and the warrants meet the requirements for derivative treatment and have recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet. The convertible notes have prepayment penalties of 115%, 120%, 125% and 130%, respectively, in the event the note is settled within 45 days, 46-90 days, 91-120 days, and 121 days through the due date. The Company placed 13,291,667 shares of our common stock in escrow as collateral for this agreement.

 

 
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On May 30, 2016, the Company executed an amendment to the convertible note agreement. In consideration for removing limitations, until November 15, 2016, on sales of securities of at least $500,000 including variable rate transactions, convertible notes and third party transactions set forth in the Securities Purchase Agreement signed on December 3, 2015 as well as authorizing the withdrawal of a registration statement filed on January 11, 2016, the Company agreed to file a new registration statement covering the shares issuable to the holder of the Notes.

 

The Company tested the amendment to ascertain if it should be accounted for as a modification to the notes or treated as an extinguishment. As a result of the change in the fair value of the conversion feature and warrants, the Company determined that the amendment qualifies for extinguishment treatment. Accordingly, the Company recognized a loss on extinguishment equal to the difference in the fair value of the conversion feature and warrants before and after the amendment of $34,673.

 

In consideration for amending the Notes to permit borrowings by the Company of up to $6,500,000, the Company agreed to amend the Notes to enable the conversion price to be equal to the lesser of $0.12 and 70% of the average of three VWAPs from the 20 trading days prior to the notice of conversion. Furthermore, the Company agreed that if it were to issue new notes with greater discounts than those detailed above, the existing Notes would be reset to match the lower conversion price. Finally, the Company agreed to lower the exercise prices (from $0.21 to $0.168, and from $0.175 to $0.140, respectively) on two existing warrants totaling 500,000 shares previously issued to the holder of the Notes and to issue a cashless, two-year warrant to purchase 250,000 shares at an exercise price of $0.168 per share.

 

The Company tested the two notes that replaced the other OID note to determine if they should be accounted for as modification of the original note or treated as an extinguishment. As a result of the impact on the present value of cash flows from the additional liquidated damages and the inclusion of a conversion feature, the Company determined that the new notes qualified for extinguishment treatment. Accordingly, the Company recognized a loss on extinguishment equal to the additional liquidated damages, accrued interest and fair value of the conversions options of $140,258.

 

From June 10 to August 16, 2016, a total of $240,350 were converted into 6,495,516 shares of common stock and on August 30, 2016, a total of $54,650 were converted into 4,313,339 shares of common stock. The Company paid interest fees of $4,119 on August 26, 2016 and $3,114 on September 15, 2016 and the notes were retired.

 

February 2016 Convertible Note – In February 2016, the Company entered into a convertible note agreement. We received $125,000, with an original issue discount of $15,500 in lieu of interest, for a total amount of $140,500 due on August 10, 2016. In the event of default, the interest rate will be 22% per annum. At any time following an event of default, the lender has the right to convert a portion or all of the unpaid principal balance at a rate of 65% of the average of the three lowest closing prices in the twenty trading days immediately preceding the request for conversion date. The Company determined that the conversion feature meets the requirements for derivative treatment and have recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet.

 

On August 5, 2016, the lender declared the company in default due to insufficient shares required to maintain the reserve. As a result, the Note began accruing interest at the default rate of 22% per annum. The lender also increased the outstanding balance by 15% or $21,075 bringing the total outstanding balance to $161,575. On August 17, 2016, the Company reached an agreement with the lender on a two week extension thereby extending the maturity date to August 24,2016. In exchange for granting the extension, the lender requested and received a $15,000 extension fee as well as the right to convert the extension fee and $10,000 in principal into common shares. On August 26, 2016, the lender was wired the balance of the principal and interest remaining: $152,945. On August 30, 2016, the lender received 1,953,125 common shares in exchange for the $25,000.

 

 
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May 2016 Convertible Note – In May 2016, the Company entered into a convertible note agreement. We received $120,600, bearing interest at 12%, with principal and interest payable on September 15, 2017 in a total amount of $141,102. In the event of default, the interest rate will be 18% per annum. At any time following the 180th day from the date of issuance, the lender has the right to convert a portion or all of the unpaid principal balance at a rate of 60% of the average of the lowest trading price in the fifteen trading days immediately preceding the request for conversion date. The Company determined that the conversion feature meets the requirements for derivative treatment and have recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet.

 

On July 18, 2016, the lender increased the share reserve from 7,000,000 to 18,572,365 shares. Following a request on August 19, 2016 to increase the share reserve to 48,000,000 shares that we could not accommodate, the company paid off the principal of $120,600 on August 29, 2016 and interest of $4,243 on August 30, 2016. On September 7, 2016, the lender declared the company in default and the Company commenced negotiations on a final pre-payment fee. On October 3, 2016, a settlement agreement was signed and on October 4, 2016 $42,210 was wired to the lender.

 

August 2016 Convertible Note – In August 2016, the Company entered into a senior convertible note agreement. We received $400,000, bearing interest at 3%, with principal and interest payable on August 24, 2018. In addition, the Company received the right to require the buyer to purchase from the company four million restricted shares of common stock at a purchase price of $0.05 per share and a warrant to purchase four million shares of common stock with an exercise price of $0.06 per share. At the same time, the Company granted the buyer the right to require the company to sell to the buyer four million restricted shares of common stock at a purchase price of $0.05 per share and a warrant to purchase four million shares of common stock with an exercise price of $0.06 per share. In the event of default, the interest rate will be 18% per annum, require the Company to (i) redeem all or any portion of the note at a premium of 150% or (ii) convert any portion of this note then held by noteholder into shares of common stock at the conversion price of $0.025, equal to a number of shares of common stock equal to the principal amount outstanding on the note (divided by 0.025) and multiplied by the premium of 150%.

 

The note may be converted at any time into shares of the common stock at the conversion price pursuant to the terms of the note. The buyer may not, however, convert more than 50% of the note’s purchase price prior to September 30, 2016.

 

November 2016 Convertible Note – In November 2016, the Company entered into a convertible note agreement. We issued 350,000 inducement shares of common stock and received $100,000, with an original issue discount of $10,000 in lieu of interest, for a total amount of $110,000 due on June 9, 2017. At the holder’s option, a portion or all of the unpaid principal and interest may be converted into shares of our common stock at $0.07 per share. 350,000 inducement shares. In the event of default, the outstanding balance will increase by 25%. At any time following an event of default, the lender has the right to convert a portion or all of the unpaid principal balance at a rate of 65% of the average of the three lowest closing prices in the twenty trading days immediately preceding the request for conversion date.

 

December 2016 Convertible Notes -- In December 6, 2016, the Company entered into a note purchase agreement which provides for the purchase of up to an aggregate of $150,000 principal amount of convertible promissory notes (the “Notes”). The Notes have a 5% original issue discount and bear interest at 5% per annum. On December 7, 2016, $85,000 was paid pursuant to the initial Note (after the deduction of $10,000 for legal expenses) which is due on December 5, 2017. On December 28, 2016, after the filing by the Company of a registration statement with the SEC, the Company issued another Note in the original principal amount of $50,000 for $47,500.

 

The Notes may be prepaid in whole or in part by the Company at a 115% premium if within 120 days of the issue date or 125% after 120 days of the issue date. The Notes are convertible into common stock at a 30% discount to the lowest trading price for the ten trading days immediately prior to the delivery of a conversion notice, provided that the conversion price will not be less than $0.06 per share.

 

 
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The Note Purchase Agreement also provides that it is an event of default if the Company does not obtain FINRA’s approval to effectuate a 1:15 reverse stock split no later than January 15, 2017, which was extended to January 20, 2017, then extended to February 15, 2017 and further extended to April 24, 2017. As part of the last extension to April 24, 2017, Bellridge agreed to add an increase in the authorized share capital of the Company as another method to avoid the triggering of an event of default. The increase in amounts required under the Notes held by Bellridge necessitated that the Company amend its Articles of Incorporation. This was accomplished on March 22, 2017.

 

The Company also agreed to reserve the greater of (i) 1,000,000 shares of common stock or (ii) 300% of the maximum aggregate number of shares issued or issuable. The Company determined that the conversion feature meets the requirements for derivative treatment and has recorded a derivative liability and a corresponding debt discount on the consolidated balance sheet.

 

Test Vehicle Financing

 

In October 2014, we entered into financing agreements for the purchase of test vehicles, bearing interest at 5.99% payable monthly over five years, collateralized by the vehicles. 

 

Note payable – related party

 

On February 3, 2016, an agreement was signed with the Secretary of Cool Technologies to retire a non-interest bearing note that was due on demand. The note was retired with the issuance of 143,187 shares of restricted common stock on June 24, 2016.

 

Note payable – UPT minority owner

 

Held by the 5% minority owner of UPT. The terms of the note have not been finalized.

 

Future contractual maturities of debt are as follows:

 

Year ending December 31,

 

 

 

2017

 

$ 765,375

 

2018

 

 

394,491

 

2019

 

 

18,311

 

2020

 

 

--

 

 

 

$ 1,178,177

 

 

Note 5 – Derivative Liability

 

Under the terms of the September 2015, December 2015, February 2016, May 2016 and December 2016 Convertible Notes, we identified derivative instruments arising from embedded conversion features, as well as warrants issued with the December 2015 Convertible Note.

 

Under the terms of the convertible note agreements, the Company identified derivative instruments arising from embedded conversion features, as well as warrants issued with the December 2015 Convertible Note.

 

The following summarizes the Black-Scholes assumptions used to estimate the fair value of the derivative liability at the dates of issuance and the revaluation dates:

 

 

 

Year ended December 31,

 

 

 

2016

 

 

2015

 

Volatility

 

108%-254%

 

 

102%-112%

 

Risk-free interest rate

 

0.2%-2.5%

 

 

0.5%-1.2%

 

Expected life (years)

 

0.0 - 10.0

 

 

0.9 - 3.0

 

Dividend yield

 

 

--

 

 

 

--

 

 

 
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We determined that as of September 30, 2016 we did not have sufficient authorized but unissued shares of our common stock available to settle all of the common share equivalents represented by our convertible notes, warrants, options and convertible preferred stock. As a result, the common share equivalents that exceeded our authorized but unissued shares of common stock were reclassified from equity to derivative liabilities on a last in, first out (LIFO) basis using the inception date of the related instrument.

 

Changes in the derivative liability were as follows:

 

 

 

Twelve Months Ended December 31, 2016

 

 

 

Level 1

 

Level 2

 

Level 3

 

Convertible debt and other derivative liabilities at December 31, 2015

 

 

 

 

 

 

356,554

 

$780,850 of convertible debt prior to amendment

 

 

 

 

 

 

(330,694 )

$780,850 of convertible debt as amended

 

 

 

 

 

 

733,185

 

Conversions of convertible debt

 

 

 

 

 

 

(833,401 )

Issuance of convertible debt and other derivatives

 

 

 

 

 

 

690,442

 

Reclassification of common share equivalents to derivative liabilities

 

 

 

 

 

 

9,194,736

 

Change in fair value

 

 

 

 

 

 

(4,959,062 )

Convertible debt and other derivative liabilities at December 31, 2016

 

 

 

 

 

 

4,851,760

 

 

Note 6 – Commitments and Contingencies

 

On December 12, 2012, we concluded negotiations on a debt settlement agreement by and among the Company, Phoenix Productions and Entertainment Group ("PPEG"), Action Media Group, LLC ("Action Media") and Spirit Bear Limited ("Spirit Bear") (PPEG and Action Media collectively, the "Debt Holders"). PPEG and Action Media were significant shareholders in our predecessor company and Spirit Bear is a related party through voting rights. The Debt Holders were to return to escrow a total of 4,676,000 shares of our common stock. 3,676,000 of these shares were returned and cancelled on January 14, 2013, following our filing a registration statement with the SEC on January 11, 2013. The remaining 1,000,000 shares will be purchased by the Company or a nominee of the Company at $0.40 per share (or $400,000) at the rate of $10,000 per month commencing within 90 days of the Company achieving $1,000,000 in gross revenues for products or services from business operations. PPEG and Action Media will divide the $400,000 on a pro rata basis, based on each company's respective amount of debt forgiven. The historical cost of the shares held in escrow are reflected in equity on the balance sheets as common stock held in escrow.

 

Effective May 1, 2015, we executed a First Amendment to Settlement Agreement (the "Amendment") with Spirit Bear and the parties identified as the assignees of Spirit Bear who are signatories to the Amendment, which amends certain provisions of the Settlement Agreement. In accordance with the terms of the Amendment, Jay Palmer, Carrie Dwyer and Donica Holt, the Spirit Bear holdover directors, tendered their resignation from the Board of Directors of the Company. Spirit Bear also agreed that it will no longer have any rights to appoint nominees to the Board of Directors. Pursuant to the Amendment, the Company agreed to file a registration statement on Form S-1 covering an aggregate of 14,845,072 shares of common stock, preferred stock and warrants on behalf of Spirit Bear and its assignees no later than July 15, 2015, which was filed with the SEC on July 15, 2015. A representative of Spirit Bear agreed that the obligation to register the shares on a Form S-1 need only include shares of common stock and shares of common stock issuable upon conversion of the Preferred Stock and exercise of the warrants held by Spirit Bear and its assignees. The Company agreed to issue replacement warrants for certain previously-issued warrants, which will be canceled in connection with the replacement issuance. Within 10 business days of June 1, 2015, the parties agreed to dismiss all of the pending litigation between and among them.

 

On November 4, 2016, Spirit Bear agreed to the withdrawal of the registration statement in exchange for confirmation that the warrants owned by Spirit Bear and its associate which were subject to a separate court action shall not expire even if the court action continued beyond the warrants’ initial expiration date. The registration had not been declared effective by the SEC and the Company filed a request to withdraw the Registration Statement on November 14, 2016.

 

 
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On August 28, 2015, the parties filed a Stipulation to dismiss the direct claims of the Company against Spirit Bear and of Spirit Bear against the Company in the Nevada Lawsuit. By Order dated September 1, 2015 and filed September 2, 2015, the Court ordered dismissal of all direct claims in the Nevada Lawsuit.

 

Additionally, on February 20, 2015, the Court issued its preliminary approval to the derivative action settlement agreement (the "DASA") which would lead to the ultimate dismissal of the derivative suit also filed by Spirit Bear in the same action. The Court scheduled a fairness hearing for November 20, 2015 to consider giving its final approval to the DASA. No shareholder filed any objections to the DASA by April 30, 2015 which was the deadline established by the Court for filing objections. However, on October 22, 2015, Peak Finance, LLC filed a Motion to Intervene in the action seeking, among other things, approval to file a new derivative Complaint in this matter. The Company opposed this Motion.

 

On August 31, 2015, the Company received notice of a summons in the matter styled Peak Finance, Derivatively on Behalf of Nominal Defendant, HPEV, Inc. v. Hassett, et al., No. 2:15-cv-01590-GMN-CWH, filed in the United States District Court for the District of Nevada (the “Peak Finance Claim”). Plaintiff Peak Finance, LLC (“Peak Finance”) alleges that certain members of the Company’s Board of Directors and officers caused a misleading proxy statement to issue and breached alleged fiduciary duties from and after June 18, 2013. Peak Finance further alleges that its claim is related to the Spirit Bear Lawsuit described above. The Company has not determined that there is any merit to the allegations, and has decided to submit the claims to an Independent Director Committee consisting of Directors Christopher McKee, Richard J. “Dick” Schul, and Donald Bowman for their review and consideration. Additionally, on September 28, 2015, the Company filed a motion to dismiss the initial Complaint filed by Peak Finance. On October 22, 2015, rather than oppose the motion to dismiss, Peak Finance filed an amended complaint in this case in addition to the Motion to Intervene in the pending Spirit Bear litigation set forth above. On November 9, 2015, the Company filed a new motion to dismiss the first amended complaint filed by Peak Finance on October 22, 2015.

 

At the November 20, 2015 fairness hearing, the Court denied Peak Finance's Motion to Intervene. However, the Court did allow Peak Finance to formally argue its objections to the DASA. The Court ordered additional briefing on certain issues which has now been completed. The Court has ordered another hearing to consider the DASA on April 1, 2016.

 

On April 1, 2016, Peak Finance and the Company advised the Court that they had agreed in principle to a settlement that would include withdrawal of Peak Finance’s objection to the DASA. On April 20, 2016, the parties filed a Stipulation and Proposed Order for Withdrawal of Objection to DASA, which was granted by the Court on April 21, 2016. On May 3, 2016, the Court issued an Order, which fully and finally approved the DASA and dismissed the Peak Finance and the Spirit Bear cases, with prejudice. On May 17, 2016, the Company filed a document to show cause as to the effect of the Stipulation and Proposed Order Regarding Settlement on the pending Motion to Dismiss Amended Complaint.

 

Also on May 17, 2016, Peak Finance and the Company filed a Stipulation and Proposed Order to Modify Stay of Proceedings so that the stay issued on January 6, 2016 could be modified to permit the Court to consider the Stipulation and Proposed Order Regarding Settlement and for the Court and all parties to take all necessary actions to seek final approval of a settlement prior to the Court ruling on the pending Motion to Dismiss.

 

On October 11, 2016, the United States District Court, District of Nevada orally approved the derivative action settlement agreement (“Peak Settlement Agreement”) reached in Peak Finance, LLC v. Timothy J. Hassett et. al., Case No. 2:15-cv-01590-GMN-CWH. Noting that no non-party shareholder filed any objections to the Peak Settlement Agreement, the District Court specifically found that it is “fundamentally fair, reasonable and adequate” and serves the best interest of the Company. The Court further directed that counsel for the parties prepare a proposed formal written order finally approving the Peak Settlement Agreement and dismissing the case.

 

 
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On October 20, 2016, the Derivative Action Settlement Agreement was formally approved and the case was formally dismissed with prejudice.

 

Subsequent to the dismissal, an Independent Directors Committee consisting of directors Christopher McKee, Richard J. "Dick" Schul and Donald Bowman reviewed the allegations made by Peak Finance, LLC to determine a proper corporate response. On December 6, 2016, a quorum of the members of the Independent Directors Committee met with Peak Finance, LLC in New York City, to fulfill the judges’ final orders. No further action is required by the Company in this matter.

 

On October 7, 2016, the Company received a complaint, Wang et al v. Cool Technologies, Inc. et al, filed on July 28, 2016 in the U.S. District Court for the Eastern District of New York (Brooklyn) Civil docket #1:16CV04101RRMPK against the Company and Timothy Hassett, the Company’s Chief Executive Office alleging damages of $1,100,000 for breach of contract for failing to register shares sold to the Plaintiffs in February and March 2014.

 

From time to time, we may be a party to other legal proceedings. Management currently believes that the ultimate resolution of these matters, and after consideration of amounts accrued, will not have a material adverse effect on our consolidated results of operations, financial position, or cash flow.

 

Note 7 – Equity  

 

Preferred Stock

 

The Company has 15,000,000 preferred shares authorized and 116 Series A and 3,636,360 Series B preferred shares issued and outstanding as of December 31, 2016. A total of 927,270 Series B preferred shares is issuable.

 

On August 12, 2016, the Company entered into a Securities Purchase Agreement with four accredited investors pursuant to which it sold 3,636,360 shares of the Company’s Series B Convertible Preferred Stock. Each share of the preferred stock is convertible into one share of company’s common stock. The conversion price of the preferred stock is equal to the $0.055.

 

In addition to the preferred stock, the Securities Purchase Agreement included warrants to purchase (i) 3,636,360 shares of the Company’s common stock at an exercise price of $0.07 per share. The aggregate purchase price of the preferred stock and warrants was $200,000, of which $150,000 was paid in cash and $50,000 was paid in services.

 

In connection with the sale of the Preferred Stock, on October 20, 2016, the Company filed with the Secretary of the State of Nevada, an amended Certificate of Designations of the Rights, Preferences, Privileges and Restrictions, which have not been set forth in the Certificate of Designation of the Series B Convertible Preferred Stock nor the first Amendment to Certificate of Designation filed on August 12, 2016.

 

The preferred stock has the same rights as if each share of Series B Convertible Preferred Stock were converted into one share of common stock. For so long as the Series B Convertible Preferred Stock is issued and outstanding, the holders of such Series B Convertible Preferred Stock vote together as a single class with the holders of the common stock and the holders of any other class or series of shares entitled to vote with the common stock, with the holders of Series B Stock being entitled to 66 2/3% of the total votes on all such matters.

 

In the event of the death of a holder of the Class B Preferred Stock, or a liquidation, winding up or bankruptcy of a holder which is an entity, all voting rights of the Class B Preferred Stock shall cease.

 

The holder of any shares of Class B Preferred Stock have the right to convert their shares into common stock at any time, in a conversion ratio of one share of common stock for each share of Class B Preferred. If the Corporation’s common stock trades or is quoted at a price per share in excess of $2.25 for any twenty consecutive day trading period, the Class B Preferred Stock will automatically be convertible into the common stock of the Corporation in a conversion ratio of one share of Common Stock for each share of Class B Preferred.

 

The holders of Class B Preferred Stock are not entitled to receive any distributions in the event of any liquidation, dissolution or winding up of the Corporation.

 

 
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The warrants cannot be exercised on a cashless basis.

 

On October 31 and November 1, 2016, three of the accredited investors provided $51,000 to the company and are due to receive an additional 927,270 Series B Preferred shares.

 

Preferred stock issuable on the consolidated balance sheet represents preferred stock to be issued for either cash received or services performed. As of December 31, 2016 and 2015, the number of shares of preferred stock to be issued was 927,270 and 0 shares, respectively.

 

Spirit Bear, a related party, holds 113 shares of our Series A preferred stock and KHIC, Inc., a related party, holds the remaining 3 shares of our Series A preferred stock. Each share of Series A Preferred Stock ("Preferred Stock") is convertible into 50,000 shares of common stock. Each share of Preferred Stock has voting rights as if they were converted into 50,000 shares of common stock. The holders of each share of Preferred Stock then outstanding shall be entitled to be paid out of the Available Funds and Assets (as defined in the "Certificate of Designation"), and prior and in preference to any payment or distribution (or any setting apart of any payment or distribution) of any Available Funds and Assets on any shares of common stock, an amount per preferred share equal to the Preferred Stock Liquidation Price ($2,500 per share). 

 

Common stock

 

On August 19, 2015, the stockholders voted to increase the number of authorized shares of common stock from 100,000,000 shares to 140,000,000 shares.

 

Common stock issuable on the consolidated balance sheet represents common stock to be issued for either cash received or services performed. As of December 31, 2016 and 2015, the number of shares of common stock to be issued was 821,364 and 701,018 shares, respectively.

 

Common stock warrants issued with the sale of our common stock

 

When we sell shares of our common stock the buyer also typically receives fully-vested common stock warrants with a maximum contractual term of 3-5 years. A summary of common stock warrants issued with the sale of our common stock as of December 31, 2016, and changes during the year then ended is presented below:

 

 

 

Number of Warrants

 

 

Weighted-average Exercise Price

 

 

Weighted-average Remaining Life (Years)

 

 

Aggregate

Intrinsic

Value

 

Outstanding, December 31, 2014

 

 

19,114,765

 

 

$ 0.56

 

 

 

 

 

 

 

Granted

 

 

10,466,539

 

 

 

0.35

 

 

 

 

 

 

 

Exercised

 

 

(1,084,597 )

 

 

0.35

 

 

 

 

 

 

 

Outstanding, December 31, 2015

 

 

20,726,707

 

 

 

0.49

 

 

 

 

 

 

 

Granted

 

 

14,392,309

 

 

 

0.12

 

 

 

 

 

 

 

Exercised

 

 

--

 

 

 

--

 

 

 

 

 

 

 

Forfeited or expired

 

 

(1,073,549 )

 

 

0.60

 

 

 

 

 

 

 

Outstanding, December 31, 2016

 

 

34,045,467

 

 

 

0.30

 

 

 

2.3

 

 

$ 345,591

 

Exercisable, December 31, 2016

 

 

34,045,467

 

 

 

0.30

 

 

 

2.3

 

 

$ 345,591

 

   

 
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Note 8 – Share-based payments

 

Amounts recognized as expense in the consolidated statements of operations related to share-based payments are as follows:

 

 

 

Year ended December 31,

 

 

 

2016

 

 

2015

 

Nonemployee common stock

 

$ 10,000

 

 

$ 602,507

 

Nonemployee preferred stock (Series B)

 

 

50,000

 

 

 

 

 

Nonemployee warrants – fully vested upon issuance

 

 

1,603,025

 

 

 

6,981

 

Nonemployee warrants – service and performance conditions

 

 

20,933

 

 

 

52,056

 

Employee common stock

 

 

277,090

 

 

 

--

 

Employee stock options – fully vested upon grant

 

 

--

 

 

 

--

 

Employee stock options – market price-based

 

 

327,000

 

 

 

1,308,000

 

Legal settlement – replacement warrants

 

 

--

 

 

 

1,764,450

 

Total share-based expense charged against income

 

$ 2,288,048

 

 

$ 3,733,994

 

 

 

 

 

 

 

 

 

 

Impact on net loss per common share:

 

 

 

 

 

 

 

 

Basic and diluted

 

$ (0.05 )

 

$ (0.05 )

 

Nonemployee common stock

 

UPT management agreement

 

In July, 2014, we entered into a three year agreement with the company managing the operations of UPT, whereby we would issue common stock under the following conditions:

 

Condition

 

Number of Shares

 

UPT recognizes $100 million of revenue or a change in control

 

 

500,000

 

UPT recognizes $100 million of revenue

 

 

150,000

 

 

 

 

650,000

 

 

As of December 31, 2016 and 2015, meeting these conditions was not deemed probable, so no expense was recognized under this agreement and no common stock was issued. The fair value of these unearned shares of common stock was $58,500 as of December 31, 2016.

 

Investor relations agreement

 

In June, 2014, we entered into an agreement with a company, which subsequently became a shareholder, to provide investor relations services. Under the terms of this agreement, we agreed to issue 60,000 shares of common stock each quarter through May 2015, for a total of 240,000 shares. We recognized expense of $61,200 and $91,800, respectively, during the years ended December 31, 2015 and 2014.

 

In January, 2016, we entered into a 2 month agreement with a company, which subsequently became a shareholder, to provide corporate consulting, communications and market outreach services. Under the terms of this agreement we agreed to pay $25,000 in fees and agreed to issue 150,000 one year warrants with an exercise price of $0.18 per share through February 2016, for a total of 300,000 warrants.

 

In March 2016, we renewed the agreement for a period ending December 31, 2016. Under the terms of this renewal, we agreed to pay a total of $102,000 in fees and agreed to issue a total of 425,000 shares of restricted common stock per and 575,000 warrants with an exercise price of $0.40 per share. We recognized expense of $70,151 during the year ended December 31, 2016.

 

 
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Financial advisory agreements

 

During the quarter ended June 30, 2015, we entered into separate agreements with three companies, which subsequently became shareholders, to provide financial advisory services, including developing, studying and evaluating a financing plan, strategic and financial alternatives, and merger and acquisition proposals. Under the terms of the agreements, we agreed to issue an aggregate of 333,332 shares of common stock each month through June 2016, as services were delivered, for a total of 5,000,000 shares over the term of the agreements. These agreements may be canceled by either party with a 30 day notice. During the three months ended June 30, 2015, we recorded expense at fair value of $510,007 for the issuance of 1,000,013 shares. If the services are provided and the agreements are not canceled, an additional 3,999,987 shares remain to be issued. At management's request, no further services have been provided, and no stock was earned or issued under these agreements after June 30, 2015. 

 

Other

 

During the years ended December 31, 2016 and 2015, we issued or accrued an additional 2,859,090 and 175,000 shares of common stock in exchange for services, with a fair value of $360,000 and $31,300, respectively.

 

Nonemployee common stock warrants -- Fully-vested upon issuance

 

We may issue fully-vested common stock warrants with a maximum contractual term of 5 years to non-employees in return for services or to satisfy liabilities, such as accrued interest. The following summarizes the activity for common stock warrants that were fully-vested upon issuance:

 

 

 

Number of Warrants

 

 

Weighted-average Exercise Price

 

 

Weighted-average Remaining Life (Years)

 

 

Aggregate

Intrinsic

Value

 

Outstanding, December 31, 2014

 

 

8,488,235

 

 

$ 0.69

 

 

 

 

 

 

 

Granted

 

 

94,333

 

 

 

0.48

 

 

 

 

 

 

 

Exercised

 

 

--

 

 

 

--

 

 

 

 

 

 

 

Forfeited or expired

 

 

(918,000 )

 

 

0.19

 

 

 

 

 

 

 

Outstanding, December 31, 2015

 

 

7,664,568

 

 

 

0.72

 

 

 

 

 

 

 

Granted

 

 

5,749,503

 

 

 

0.49

 

 

 

 

 

 

 

Forfeited or expired

 

 

(2,548,000 )

 

 

1.09

 

 

 

 

 

 

 

Outstanding, December 31, 2016

 

 

10,866,071

 

 

 

0.49

 

 

 

2.4

 

 

$ 8,000

 

Exercisable, December 31, 2016

 

 

10,866,071

 

 

 

0.49

 

 

 

2.4

 

 

$ 8,000

 

 

The following summarizes the Black-Scholes assumptions used to estimate the fair value of fully-vested common stock warrants:

 

 

 

Year ended December 31,

 

 

 

2016

 

 

2015

 

Volatility

 

102 – 272

%

 

121 – 173

%

Risk-free interest rate

 

0.5 – 1.5

%

 

1.4 -- 1.6

Expected life (years)

 

1.0 – 5.0

 

 

3.0 -- 4.0

 

Dividend yield

 

 

--

 

 

 

--

 

 

No fully-vested common stock warrants were exercised in 2016 and 2015.

 

 
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Nonemployee common stock warrants -- Service and performance conditions

 

The following summarizes the terms for warrants we granted that are subject to performance and service conditions.

 

UPT management agreement

 

In July, 2014, we entered into a three year agreement with the company managing the operations of UPT, whereby we would issue common stock warrants under the following conditions:

 

 

 

 

 

Number of

 

Vesting Condition

 

Category

 

Warrants

 

Fully vest upon UPT generating $1 million of revenue

 

Performance

 

 

350,000

 

45,945 warrants for every $3 million of revenue generated by UPT up to $100 million

 

Performance

 

 

1,530,000

 

60,000 warrants for every three months of completed service managing UPT

 

Service

 

 

720,000

 

 

 

 

 

 

2,600,000

 

 

The common stock warrants have a three year life and an exercise price of $1.00 per share. The grant date fair value was $2,586,000. As of December 31, 2016, we did not conclude that meeting the performance conditions was probable, so no expense was recognized and no common stock warrants vested. During the years ended December 31, 2016 and 2015, 240,000 of the common stock warrants under the service condition vested with the passage of time and we recognized expense of $20,933 and $52,056. As of December 31, 2016, the fair value of the 2,000,000 unvested common stock warrants, which is also the estimated unrecognized expense, was $84,693. We cannot estimate the period over which the expense for the performance awards will be recognized, if at all. The remaining service award expense will be recognized quarterly over a period of 0.5 years.

 

Financing advisory services

 

In March, 2014, we entered into an agreement with a company, which is also a shareholder, to provide financing advisory services, in return for 400,000 common stock warrants having a five year life and an exercise price of $2.50, with vesting in March, 2015 upon satisfactory performance under the agreement. In addition, a second issuance of 400,000 warrants with an exercise price of $2.50 would be due on the one year anniversary of the execution of the agreement. As of December 31, 2014, we deemed it probable that the vesting conditions will be met. Accordingly, during the year ended December 31, 2014, we recognized expense of $200,379. When the warrants vested in March 2015, the fair value was $179,964. The change in fair value between December 31, 2014 and March 2015, of $20,415 was recognized as a reduction of expense in 2015. The grant date fair value of these warrants was $352,000.

 

In May of 2015, the exercise price of the first and second issuance of warrants was reduced to $0.45. The fair value of the first issuance increased from $180,484 to $188,525 and the second issuance increased from $203,010 to $203,569.

 

In January of 2016, the exercise price of the first and second issuance of warrants was reduced from $0.45 to $0.30. The fair value of the first issuance decreased from $188,525 to $54,950 and the second issuance decreased from $203,569 to $74,464.

 

 
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Summary

 

The following summarizes the activity for warrants that have performance and service conditions. There were no grants in 2016.

 

 

 

Number of Warrants

 

 

Weighted-average Exercise Price

 

 

Weighted-average Remaining Life (Years)

 

 

Aggregate

Intrinsic

Value

 

Outstanding, December 31, 2013

 

 

--

 

 

 

 

 

 

 

 

 

 

Granted

 

 

3,000,000

 

 

 

1.20

 

 

 

 

 

 

 

Outstanding, December 31, 2014, 2015, 2016

 

 

3,000,000

 

 

 

1.20

 

 

 

0.7

 

 

 

 

Exercisable, December 31, 2016

 

 

1,000,000

 

 

$ 1.60

 

 

 

1.2

 

 

$ --

 

 

The following summarizes of the status of our nonvested common stock warrants with performance and service conditions as of December 31, 2016, and changes during the year then ended:

 

 

 

Number of

 

 

Weighted-average Grant Date

 

 

 

Warrants

 

 

Fair Value

 

Non vested, December 31, 2015

 

 

2,240,000

 

 

$ 0.99

 

Vested

 

 

(240,000 )

 

 

0.99

 

Non vested, December 31, 2016

 

 

2,000,000

 

 

$ 0.99

 

 

The following summarizes the Black-Scholes assumptions used to estimate the fair value of warrants with performance and service conditions:

 

 

 

Year ended December 31,

 

 

 

2016

 

 

2015

 

Volatility

 

121 -- 148

%

 

102 -- 184

%

Risk-free interest rate

 

0.7 -- 1.5

%

 

0.9 -- 1.4

%

Expected life (years)

 

 

3.0

 

 

3.0 – 5.0

 

Dividend yield

 

 

--

 

 

 

--

 

 

Legal settlement – Replacement warrants

 

Under the First Amendment to Settlement Agreement (the "Amendment") with Spirit Bear, we agreed to issue replacement warrants for certain previously-issued warrants. The 7,000,000 previously-issued warrants were issued in 2012, had exercise prices ranging from $0.35 to $0.75 per warrant, and expiration dates from April 2015 to April 2017. All of the replacement warrants have an exercise price of $0.25, while 6,000,000 expire in January 2017 and 1,000,000 expired in December 2015.

 

Under the terms of the February 2016 Waiver of Performance and Second Amendment to Settlement Agreement with Spirit Bear, we agreed to issued replacement warrants for previously amended and replaced warrants. Six million of the previously amended and replaced warrants owned by Spirit Bear and by Leonora Lorenzo had their expiration dates extended from January 29, 2017, until January 29, 2020, and had their exercise price reduced from $0.25 to $0.10 per share.

 

In addition, Spirit Bear consented to the withdrawal of a Registration Statement on Form S-1 that was pending before the Securities Exchange Commission (SEC). The proposed registration statement covered the common shares underlying the preferred shares owned by Spirit Bear and the common shares underlying the warrants owned by Spirit Bear and Leonora Lorenzo.

 

 
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When a replacement equity instrument is issued, expense is recorded if the fair value of the new instruments is greater than the fair value of the original instruments. We recorded expense of $423,973 associated with the replacement warrants. The following summarizes the Black-Scholes assumptions used to estimate the fair value of the previously-issued warrants and the replacement warrants:

 

 

 

Previously-issued

 

 

Replacement

 

Volatility

 

 

206 %

 

 

151 %

Risk-free interest rate

 

 

0.5 %

 

 

1.3 %

Expected life (years)

 

 

0.2

 

 

 

3.2

 

Dividend yield

 

 

--

 

 

 

--

 

 

Employee stock options – Fully-vested upon grant

 

We granted stock options to certain members of management in 2014 that were fully-vested at the date of grant. There were no grants in 2015 or 2016. In 2016, one member resigned and released the Company from all incentive compensation it owed to him including stock options. The following is a summary of fully-vested stock option activity with the resigning member’s stock options removed for 2016:

 

 

 

Number of

Shares

 

 

Weighted-average Exercise Price per Share

 

 

Weighted-average Remaining Contractual

Term

 

 

Aggregate

Intrinsic Value

 

Outstanding, December 31, 2013

 

 

--

 

 

 

 

 

 

 

 

 

 

Stock options granted

 

 

5,000,000

 

 

$ 2.00

 

 

 

 

 

 

 

Outstanding, December 31, 2015 and 2014

 

 

5,000,000

 

 

 

2.00

 

 

 

--

 

 

$ --

 

Stock options forfeited

 

 

(1,000,000 )

 

 

2.00

 

 

 

 

 

 

 

 

 

Outstanding, December 31,2016

 

 

4,000,000

 

 

 

2.00

 

 

 

--

 

 

 

--

 

Exercisable, December 31, 2016

 

 

4,000,000

 

 

$ 2.00

 

 

 

--

 

 

$ --

 

 

The following summarizes the Black-Scholes assumptions used to estimate the fair value of fully-vested stock option grants:

 

 

 

Year ended December 31, 2014

 

Volatility

 

 

325 %

Risk-free interest rate

 

 

2.7 %

Expected stock option life (years)

 

 

10

 

Dividend yield

 

 

--

 

 

We recognized expense at a fair value of $7,950,000 in the years ended December 31, 2014, for fully-vested stock option grants.

  

Employee stock options – Market price-based grants

 

We granted stock options in 2012 to a member of management that vest upon the achievement of certain stock prices for 20 days. He resigned effective October 1, 2016 and released the Company from all obligations to him including stock options.

 

As of December 31, 2016, there were no market price-based stock options. 

 

 
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Note 9 – Income Taxes

 

The components of our deferred tax asset are as follows:

 

 

 

December 31,

 

 

 

2016

 

 

2015

 

Net operating loss carryforwards

 

$ 8,194,178

 

 

$ 7,582,195

 

Equity-based instruments

 

 

9,629,824

 

 

 

8,703,465

 

Accrued liabilities

 

 

126,765

 

 

 

85,329

 

Deferred Revenue

 

 

150,520

 

 

 

--

 

Pass-through losses

 

 

182,966

 

 

 

--

 

Valuation allowance

 

 

(18,284,253 )

 

 

(16,370,989 )

Deferred tax asset

 

$ --

 

 

$ --

 

 

Our net operating loss carryforwards expire after 20 years, beginning in 2032.

 

A reconciliation of income taxes computed at the statutory rate to the income tax amount recorded is as follows:

 

 

 

Year ended December 31,

 

 

 

2016

 

 

2015

 

Income tax benefit at statutory rate

 

$ (291,001 )

 

$ (2,134,554 )

State income tax, net of Federal benefit

 

 

(31,069 )

 

 

(227,895 )

Convertible debt

 

 

(1,496,427 )

 

 

--

 

Other adjustments

 

 

(94,809 )

 

 

--

 

Meals and entertainment

 

 

42

 

 

 

14,542

 

Increase in valuation allowance

 

 

1,913,264

 

 

 

2,347,907

 

Income tax benefit

 

$ --

 

 

$ --

 

 

We had no gross unrecognized tax benefits that, if recognized, would favorably affect the effective income tax rate in future periods. We have not accrued any interest or penalties associated with income taxes. We file income tax returns in the United States federal jurisdiction. With few exceptions, we are no longer subject to U.S. federal, state or non-U.S. income tax examination by tax authorities on tax returns filed before January 31, 2010. No tax returns are currently under examination by any tax authorities. 

 

 
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Note 10 – Net Loss per Share

 

Basic net loss per share is computed by dividing net loss by the weighted-average number of common shares outstanding during the reporting period. Diluted net loss per share is computed similarly to basic loss per share, except that it includes the potential dilution that could occur if dilutive securities are exercised.

 

The following table presents a reconciliation of the denominators used in the computation of net loss per share – basic and diluted:

 

 

 

Year ended December 31,

 

 

 

2016

 

 

2015

 

Net loss available for stockholders

 

$ (844,169 )

 

$ (6,923,100 )

Weighted average outstanding shares of common stock

 

 

84,894,351

 

 

 

64,586,781

 

Dilutive effect of stock options and warrants

 

 

--

 

 

 

--

 

Common stock and equivalents

 

 

84,894,351

 

 

 

64,586,781

 

 

 

 

 

 

 

 

 

 

Net loss per share – Basic and diluted

 

$ (0.01 )

 

$ (0.10 )

  

Outstanding stock options and common stock warrants are considered anti-dilutive because we are in a net loss position. The following summarizes equity instruments that may, in the future, have a dilutive effect on earnings per share:

 

 

 

December 31,

 

 

 

2016

 

 

2015

 

Stock options

 

 

4,000,000

 

 

 

10,000,000

 

Common stock warrants

 

 

59,932,917

 

 

 

29,651,275

 

Common stock issuable

 

 

821,364

 

 

 

701,018

 

Common stock issuable – warrants

 

 

--

 

 

 

226,191

 

Convertible notes

 

 

19,287,020

 

 

 

3,586,915

 

Convertible preferred stock

 

 

9,436,360

 

 

 

6,800,000

 

Convertible preferred stock issuable

 

 

927,270

 

 

 

 

 

Total

 

 

94,404,931

 

 

 

50,965,399

 

Total exercisable at December 31

 

 

89,019,937

 

 

 

46,038,190

 

 

 
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Note 11 – Subsequent Events

 
On January 17, 2017, we issued 800,000 shares of common stock to Sprit Bear upon the conversion of 16 shares of our Series A Stock.


February 2 017 Convertible Note – On February 7, 2017, the Company entered into a convertible note agreement. We issued 200,000 inducement shares of restricted common stock and received $100,000, with an original issue discount of $10,000 in lieu of interest, for a total amount of $110,000 due on September 9, 2017. At the holder’s option, a portion or all of the unpaid principal and interest may be converted into shares of our common stock at $0.08 per share. In the event of default, the outstanding balance will increase by 25% and a daily penalty of $100 will accrue until the default is remedied.

 

On February 8, 2017, we issued 34,076 shares of our common stock upon conversion of interest on convertible debt of $54,650 by Tangiers Global, LLC.

 

February 2017 Convertible Note – On February 13, 2017, the Company entered into a convertible note agreement. We issued 150,000 inducement shares of restricted common stock and received $100,000, with an original issue discount of $10,000 in lieu of interest, for a total amount of $110,000 due on September 13, 2017. At the holder’s option, a portion or all of the unpaid principal and interest may be converted into shares of our common stock at $0.08 per share. In the event of default, the outstanding balance will increase by 25% and a daily penalty will accrue until the default is remedied.

 

On February 10, 2017, the board of directors and the holders of Series B Preferred shares voted to amend the Articles of Incorporation and increase the number of authorized shares to 350,000,000. A mending the Articles of Incorporation requires an affirmative vote from the holders holding at least a majority of the voting rights of the outstanding common stock. As per an amended and restated Certificate of Designation filed with the state of Nevada on October 31, 2016, the holders of Series B Preferred shares are entitled to sixty-six and two-thirds percent (66 2/3%) of the total votes on all such matters that shareholders are allowed to vote on.

 

On March 20, 2017, the Company filed an amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada increasing its authorized shares of common stock, par value $0.001 per share, from 140,000,000 shares to 350,000,000 shares. The amendment became effective March 22, 2017.

 

On February 16, 2017, we issued 1,250,000 shares of restricted common stock as a commitment fee to Bellridge Capital LP in connection with the securities purchase agreement entered into on December 6, 2016.

 

March 2017 Convertible Note . On March 14, 2017, the Company entered into a note purchase agreement which provides for the purchase of a $78,750 convertible promissory note. The note has a 5% original issue discount and bears interest at 5% per annum. The maturity date is March 14, 2018.

 

The Note may be prepaid in whole or in part at a 115% premium if within 120 days of the issue date or 125% after 120 days of the issue date. The Note is convertible into common stock at a 30% discount to the lowest trading price for the ten trading days immediately prior to the delivery of a conversion notice, provided that the conversion price will not be less than $0.06 per share.

  

The Note Purchase Agreement also provides that it is an event of default if the Company does not obtain FINRA’s approval to effectuate a 1:15 reverse stock split no later than January 15, 2017. On February 16, 2017, Bellridge agreed to extend the deadline to April 24, 2017 and that in lieu of a reverse stock split, the Company may increase its authorized shares of common stock. On March 22, 2017, the Company amended its Articles of Incorporation and increased its authorized shares from 140,000,000 to 350,000,000.

 

The Company also agreed to reserve the greater of (i) 1,000,000 shares of common stock or (ii) 300% of the maximum aggregate number of shares issued or issuable to Bellridge (without giving effect to any beneficial ownership restrictions).

 

So long as Bellridge owns the Notes and the shares issuable under the Notes, if the Company fails to satisfy certain current public information requirements under Rule 144 for more than 30 consecutive days, the Company will be required to pay liquidated damages to Bellridge in cash equal to 5% of the aggregate conversion price of the Note(s) on the day of a such failure and on every 30th day thereafter. If the Company fails to make such liquidated damages payments in a timely manner, such payments will bear interest of 1.5% per month until paid in full.

 

On March 14, 2017, we issued 200,000 shares of restricted common stock as a commitment fee to Bellridge Capital LP in connection with the note purchase agreement entered into on the same day.

 

On March 20, 2017, we issued 750,000 shares of common stock to Spirit Bear upon the conversion of 15 shares of our Series A Stock.

 

April Convertible Note – On April 5, 2017, the Company entered into a convertible note agreement. We issued 300,000 inducement shares of restricted common stock and received $150,000, with an original issue discount of $15,000 in lieu of interest, for a total amount of $165,000 due on November 5, 2017. At the holder’s option, a portion or all of the unpaid principal and interest may be converted into shares of our common stock at $0.10 per share. In the event of default, the outstanding balance will increase by 25% and a daily penalty of $100 will accrue until the default is remedied.

 

On April 6, 2017, we issued 600,000 shares of common stock to Sprit Bear upon the conversion of 12 shares of our Series A Stock.

 

 
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Item 9. Changes In and Disagreements with Accountants on Accounting and Financial Disclosures

 

None.

 

Item 9A. Controls and Procedures

 

Evaluation of Disclosure Controls and Procedures

 

The Company's management does not expect that its internal controls over financial reporting will prevent all error and all fraud. Control systems, no matter how well conceived and managed, can provide only reasonable assurance that the objectives of the control system are met. The design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake.

 

Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, control may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.

 

(a) Evaluation of Disclosure Controls and Procedures

 

Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, we conducted an evaluation of our disclosure controls and procedures, as such term is defined under Rule 13a-15(e) and Rule 15d-15(e) promulgated under the Securities Exchange Act of 1934, as amended, as of December 31, 2016. Based on this evaluation, our principal executive officer and principal financial officer have concluded that, based on the material weaknesses discussed below, our disclosure controls and procedures were not effective to ensure that information required to be disclosed by us in reports filed or submitted under the Securities Exchange Act were recorded, processed, summarized, and reported within the time periods specified in the Securities and Exchange Act Commission's rules and forms and that our disclosure controls are not effectively designed to ensure that information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act is accumulated and communicated to management, including our principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.

 

 
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(b) Management's Annual Report on Internal Control over Financial Reporting

 

Management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rule 13a-15(f) of the Exchange Act.

 

Internal control over financial reporting is defined under the Exchange Act as a process designed by, or under the supervision of, our CEO and CFO, and effected by our board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that:

 

 

--

Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of our assets;

 

 

--

Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and

 

 

--

Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on the financial statements.

 

Because we have only four officers and limited personnel, the Company's internal controls are not effective for the following reasons, (1) we have limited entity-level controls because of the limited time and abilities of the four officers, (2) we have not implemented adequate system and manual controls, and (3) there is no separate audit committee. As a result, the Company's internal controls have inherent material weaknesses which may increase the risks of errors in financial reporting under current operations and, accordingly, are not effective as evaluated against the criteria set forth in "Internal Control – Integrated Framework" issued by the Committee of Sponsoring Organizations of the Treadway Commission ("COSO") in 2013. Based on our evaluation, our management concluded that our internal controls over financial reporting were not effective as of December 31, 2016.

 

Even though there are inherent weaknesses, management has taken steps to minimize the risk. We use a third party consultant to review transactions for appropriate technical accounting, reconcile accounts, review significant transactions and prepare our financial statements. Invoices and other bookkeeping matters are reviewed by a third party Certified Fraud Examiner. Any deviation or errors are reported to management.

 

(c) Remediation of Material Weaknesses

 

We can provide no assurance that our internal controls over financial reporting will be compliant in the near future. As revenues permit, the Company will enhance its internal controls through additional software and other means. If and when it becomes a listed company under SEC rules, the Company will create an audit committee comprised of independent directors.

 

(d) Changes in Internal Control over Financial Reporting

 

There were no changes in our internal controls over financial reporting during our fourth quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

Item 9B. Other Information.

 

None.

 

 
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Table of Contents

  

PART III

 

Item 10. Directors, Executive Officers and Corporate Governance.

 

The following table sets forth the names, ages and positions of our current board members and executive officers:

 

Name

 

Age

 

Position(s)

 

Timothy Hassett

 

56

 

Chairman and Chief Executive Officer and Director

Quentin Ponder

 

87

 

Vice Chairman Chief Financial Officer and Director

Judson Bibb

 

60

 

Vice President, Secretary and Director

Mark Hodowanec

 

52

 

Chief Technical Officer

Christopher McKee

 

48

 

Director

Richard "Dick" Schul

 

70

 

Director

Donald Bowman

 

48

 

Director

Daniel Ustian

 

66

 

Director

 

Our directors are elected for a term of one year and serve such director's successor is duly elected and qualified. Each executive officer serves at the pleasure of the Board.

 

The Company has no nominating, audit or compensation committees at this time. 

 

BACKGROUND INFORMATION

 

The following summarizes the occupational and business experience of our officers and directors.

 

Timothy Hassett is a co-founder of the Company and has been its Chairman since its inception and Chief Executive Officer since April 5, 2012. Mr. Hassett began his career as a marketing and business manager, for Rockwell Automation Incorporated's Motor Special Products division from 1990 to 1995, where he launched new product platforms and developed and implemented global distribution initiatives and channels. Mr. Hassett worked at General Electric from January 1996 to February 1998, as a general manager of Distribution Services in the Industrial Systems Division and from February 1998 to March 2000, in the Electric Motors Unit of the Industrial Systems Division where he restructured the unit, consolidated product lines and grew the business. From March 2000 to August 2003, he served as President of Hawk Motors and Rotors, a division of Hawk Corporation, a brake manufacturer, where he restructured the company. From August 2003 to October 2005, Mr. Hassett served as Vice President and General Manager of Wavecrest Laboratories, a propulsion systems and controls start-up, where he led the development and launch of four new product platforms. From June 2006 to October 2010, Mr. Hassett served as President and Managing Director of LEMO USA, a Swiss-based connector company, where he restructured the company, helped contain costs and improved operating margins and business. From December 2010 to October 2011, Mr. Hassett served as President of Cavometrix, a connector company serving the medical, energy and alternative energy industries. Mr. Hassett has a BS in Mechanical Engineering from Cleveland State University and a BS in Physics from Youngstown State University. Mr. Hassett's patents and patents pending and his extensive experience and professional contacts in the electric motor industry led to the decision to appoint him to the Board.

 

 
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Quentin Ponder has served as President from October 20, 2011 until April 5, 2012, Secretary from October 20, 2011 until November 11, 2011 and Treasurer of the Company since October 20, 2011. On April 5, 2012, Mr. Ponder was appointed Chief Financial Officer and Vice Chairman. Mr. Ponder is a seasoned executive with over 40 years of management experience. From November 1962 to July 1967, Mr. Ponder served as Senior Manufacturing Engineer at General Electric where he worked in the development of a flow manufacturing system. From July 1980 to June 1985, he was President of Franklin Electric, Inc., an electric motor company, where he restructured the company which became a global leader in submersible motors for water wells. From July 1985 to March 1990, Mr. Ponder was President of Baldor Electric, Inc., an electric motor company, where he restructured the company. From April 1990 to May 1997, Mr. Ponder worked for Lincoln Electric, Inc., as a consultant. From May 1990 to the present, Mr. Ponder has worked as an independent management consultant. Mr. Ponder serves as a director and is a 33.3% owner of Reliable Electric Motor Company, Inc., an electric motor importer. Mr. Ponder is the sole owner and a director of Summit Management Consulting, Inc. and Capital Alternatives, Inc., a semi-trailer leasing company. Mr. Ponder earned a Ph.D. from Columbia University in general management, accounting, and economics. Mr. Ponder's extensive experience in the electric motor industry led to the decision to appoint him to the Board.

 

Judson W. Bibb has been a director of the Company since April 15, 2011. Mr. Bibb was appointed Secretary on November 11, 2011 and Vice President on April 5, 2012. He has worked exclusively for the Company since 2013. Prior to that, Mr. Bibb was a self-employed freelance multi-media producer since 1983. His services include: producer, writer, director, cinematographer, videographer, still photographer, audio and video editor, voiceover talent, marketer, ad designer and Internet search engine optimizer. Over the past five years, he has worked as a writer and director for Image Alliance Inc., writing and producing segments for KPMG, T. Rowe Price, Agstar Financial Services, Briggs & Stratton, Caterpillar, Georgia-Pacific, Lowes, Alaska Air, Pepsico, Hewlett-Packard, Bayer, Caremark, WellPoint and T-Mobile. Mr. Bibb graduated cum laude from the University of South Florida with a B.A. in mass communications-film. Mr. Bibb's broad background and wide variety of resources, including experience in marketing and public relations and business experience in automotive, trucking, electronics, retail, direct response and the Internet led to the decision to appoint him to the Board.

 

Mark Hodowanec has been Chief Technical Officer of the Company since February 14, 2014. Mr. Hodowanec was a program manager and lead engineer for Curtiss-Wright Corporation from September 2006 through February 2014. From May 2004 through September 2006 he operated his own consulting firm, MMH Consulting, assisting research and development, and product development companies develop custom motors solutions. From September 2004 through October 2005, Mr. Hodowanec worked at Wavecrest Laboratories. From May 1994 through February 2004, Mr. Hodowanec was at Siemens Energy & Automation as a Manager, Mechanical Engineering. Mr. Hodowanec received a B.S. and M.S. degree in mechanical engineering from the University of Akron and his M.B.A. from Xavier University. 

 

Christopher McKee has been a director of the Company since August 19, 2015. Mr. McKee joined GTT Communications, Inc. ("GTT") (NYSE GTT) in 2008 and is GTT's General Counsel and EVP, Corporate Development and Corporate Secretary for the GTT Board. Mr. McKee is responsible for all the company's corporate legal requirements, human resources and supplier management. Mr. McKee also oversees the development of strategic business opportunities for the company, including all merger and acquisition activities. Mr. McKee has over 20 years of broad legal experience in the telecommunications industry. Prior to joining GTT, he served as General Counsel for StarVox Communications where he was responsible for the company's legal department, mergers and acquisitions, employment law, litigation, and legal support for the sales teams. Mr. McKee also formerly served as Vice President and Assistant General Counsel for Covad Communications where he headed its Washington, DC office and directed its federal and state regulatory compliance and advocacy efforts. Mr. McKee previously worked for XO Communications, Net2000 Communications and was in private practice in Washington, DC as an associate at Dickstein Shapiro and Cooley LLP. Mr. McKee earned a law degree from Syracuse University and received his Bachelor of Arts from Colby College. Mr. McKee's background of supply chain, micro-cap and small cap as well as his M&A background and his knowledge and experience of regulatory compliance and company legal structure led to the decision to appoint Mr. McKee to the board.

 

 
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Richard J. "Dick" Schul has been a director of the Company since August 19, 2015. Since November 2013, Mr. Schul has been an independent management consultant providing management and strategic planning services to company executives. Mr. Schul started his career with Emerson Electric in St. Louis in 1981, where he held positions of increasing responsibility throughout, including marketing manager, director of marketing and vice president of marketing for Emerson Motors (a global leader in generator technology) through 1989. In 1990, Mr. Schul was named president of Alco Controls Division of Emerson in Maryland Heights. In 1997, Mr. Schul was named president of Emerson's Air Moving Motors Division. In 1998 Mr. Schul was named president of Specialty and Air Moving Motors and in 2000 was named group vice president of Emerson's Commercial Industrial Motors group. In 2004, Mr. Schul was named group vice president of Emerson Climate Technologies. Mr. Shul received the Richard Schultz award and the Distinguished Service Award (highest award given by the Air Conditioning, Heating, and Refrigeration Institute in November 2011. Mr. Schul retired from Emerson in November 2011 after 43 years in the HVACR industry. Mr. Schul continued to work part-time as a consultant for Emerson through 2013. Mr. Schul graduated from Indiana Institute of Technology with a BS in Mechanical Engineering in 1969 and an MBA from the University of Dayton in 1976. Mr. Schul's background in the motor and generator industries as well as his business relationships led to the decision to appoint Mr. Schul to the board.

 

Donald L. Bowman has been a director of the Company since August 19, 2015. Mr. Bowman has been Chief Executive Officer of BVU Authority (formerly known as Bristol Virginia Utilities) since November 2013. BVU Authority is a utility system that provides electric, water, wastewater and fiber optic telecommunication and information services to the City of Bristol and the surrounding area. From 2011 to November 2013, Mr. Bowman provided consulting services to the legal industry and various California businesses. Mr. Bowman served as Operations and Business Development Manager and consultant to the General Manager of Lemo USA Inc., from 2006-2011. Prior thereto from 2004 to 2006, Mr. Bowman served as Vice President and General Counsel of WaveCrest Laboratories LLC, a technology company in Northern Virginia ("WaveCrest"). Prior to WaveCrest, Mr. Bowman served as Associate General Corporate Counsel of MeadWestvaco from 2001 to 2004. Mr. Bowman was an associate at the law firm of Dickstein Shapiro in Washington D.C. from 1999 to 2001. Mr. Bowman's has a Juris Doctorate from the University of Virginia School of Law (1998), a Master in Engineering Management from the Florida Institute of Technology (1993), a Master in Civil and Environmental Engineering from Old Dominion University (1992), and a Bachelor of Science in Civil Engineering with Highest Honors from Virginia Military Institute (1990). He is a licensed professional engineer in the state of Virginia. He has been a registered patent attorney with the U.S. Patent and Trademark Office for over fourteen years. Mr. Bowman served five years on active duty as an officer with the United States Navy and retired as Commander from the U.S. Naval Reserves in 2011. Mr. Bowman's business and legal background led to the decision to appoint Mr. Bowman to the board.

 

Daniel C. Ustian has been a director of the Company since August 19, 2015. Mr. Ustian served as the Chairman of the Board of Navistar International Corporation, a holding company of Navistar, Inc. from February 17, 2004 until August 2012 and its Chief Executive Officer since February 19, 2003 and President from April 2002 to August 2012. Mr. Ustian served as the Chief Operating Officer of Navistar, Inc. and Navistar International Corporation from April 2002 to February 2003. Prior to this, Mr. Ustian served as the President of the Engine Group of Navistar, Inc. from 1999 to 2002. He served as Group Vice President and General Manager of Engine & Foundry from 1990 to 1999. Mr. Ustian served as a Director of AGCO Corporation from March 17, 2011 to October 25, 2012. Mr. Ustian served as a Director of Monaco Coach Corp. from June 2003 to June 4, 2009. He is a Member of the Society of Automotive Engineers and the American Foundry Association and participates in the Electrical Council for the Economy. He was a Member of the Business Roundtable, Society of Automotive Engineers. Mr. Ustian holds a Bachelor's degree in Business Administration from DePaul University in 1972. Mr. Ustian's business experience led to the decision to appoint Mr. Ustian to the board.

 

Family relationships

 

There are no family relationships among any of our officers or directors.

 

Involvement in legal proceedings

 

Other than described above in "Legal Proceedings", there are no legal proceedings that have occurred within the past ten years concerning our directors, or control persons which involved a criminal conviction, a criminal proceeding, an administrative or civil proceeding limiting one's participation in the securities or banking industries, or a finding of securities or commodities law violations, except for one of our directors, Daniel Ustian.

 

Mr. Ustian was Chairman and CEO of Navistar International Corporation from 2003 to 2012. The SEC filed a claim against Navistar and Mr. Ustian in March 2016 regarding proper disclosure of the difficulty Navistar was having in meeting emissions regulations on one of their truck models.

 

Navistar chose to settle this claim, without admitting or denying the charges, by paying a penalty. Mr. Ustian disagrees with the claims and decided not to settle.

 

The complaint alleges that Ustian violated Section 10(b) of the Exchange Act and Rules 10b-5 and 13a-14 thereunder and Section 17(a) of the Securities Act and that he is liable as a control person under Section 20(a) of the Exchange Act and for aiding and abetting Navistar's uncharged violations of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder and Section 17(a)(1) of the Securities Act, and its separately charged violations set forth in a settled order with Navistar.

 

Mr. Ustian is contesting all of these claims. Discovery on this civil action has been set to conclude in May 2018. A trial date has not been set. 

 

 
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Committees of the Board of Directors

 

The Company does not have an audit committee. We are not a "listed company" under SEC rules and are therefore not required to have an audit committee comprised of independent directors.

 

We do not currently have a "financial expert" within the meaning of the rules and regulations of the SEC.

 

The Company has no nominating or compensation committees at this time. The entire Board participates in the nomination and audit oversight processes and considers executive and director compensation. Given the size of the Company and its stage of development, the entire Board is involved in such decision making processes. Thus, there is a potential conflict of interest in that our directors and officers have the authority to determine issues concerning management compensation, nominations, and audit issues that may affect management decisions. We are not aware of any other conflicts of interest with any of our executive officers or directors.

 

Board of Advisors

 

The Company has a Board of Advisors which currently consists of eight members. Scott Van Dorn (appointed March 18, 2014), currently engineering director at Navistar Corporation, has more than 20 years of experience in global engineering and management in vehicles, engines electronics and design. Richard Schul (appointed December 31, 2013) is a veteran of the motor/generator industry. The other members include: Bill Finley (appointed July 7, 2014), Chief Technology Officer of Siemens Industry Drive Technology; Dan Ustian (appointed September 10, 2014), a former chief executive officer of Navistar; Chris McKee (appointed June 1, 2014), executive vice president and general counsel of GTT; Roman Kuropas (appointed September 17, 2014), founder and CEO of Inverom Corporation; Andrew Scherr (appointed May 21, 2014), an investor, entrepreneur and strategic consultant; and Gurminder Bedi (appointed January 1, 2016), managing partner at Compass Acquisitions, LLC.

 

Upon the signing of an Advisory Board Agreement, the Company issues a non-qualified 30-month warrant to purchase 200,000 shares of the Company's common stock at an exercise price that has varied from $0.35 to $0.80 per share depending on the Company's current share price. The warrant is immediately exercisable.

 

Code of Ethics

 

The Company has adopted a Code of Ethics that establishes the standards of ethical conduct applicable to all directors, officers and employees of the Company, including our principal executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions. A copy of our Code of Ethics is available on our web site at www.cooltechnologiesinc.com. We will provide a copy of our Code of Ethics free of charge to any person who requests a copy. Requests should be directed to the Secretary at Cool Technologies, Inc., 8875 Hidden River Parkway, Suite 300, Tampa, Florida 33637, or by telephone at (813) 975-7467.

  

Section 16(a) Beneficial Ownership Reporting Compliance

 

Section 16(a) of the Securities Exchange Act of 1934 requires our executive officers and directors, and persons who beneficially own more than 10% percent of our equity securities ("Reporting Persons") to file reports of ownership and changes in ownership with the SEC. Based solely on our review of copies of such reports and representations from the Reporting Persons, we believe that during the fiscal year ended December 31, 2016, Timothy Hassett failed to timely file one Forms 4 to report to the purchase of 625,000 shares of common stock and failed to file a Form 4 to report the assignment of 25,000 shares of common stock to a third party. Quentin Ponder failed to file one Form 4 to report the purchase of 400,000 shares of common stock. Theodore Banzhaf, our former President, failed to timely file one Form 4 to report the purchase of 500,000 shares of common stock. Judson Bibb failed to timely file one Form 4 to report the purchase of 750,000 shares of common stock. Richard Schul failed to timely file one Form 4 to report the purchase of 100,000 shares of common stock. Richard Schul, Daniel Ustian, Chris McKee and Donald Bowman, each failed to file a Form 3 reporting their appointment as directors of the Company. Daniel Ustian failed to file three Forms 4 to report the purchase of 909,090 shares of our Series B Stock, the purchase of 309,091 shares of our Series B Stock and the purchase of 1,000,000 shares of our common stock. Spirit Bear, when a 10% shareholder, failed to timely file two Forms 4 to report the sale of 40,146 shares of common stock and to report the conversion of 14 shares of Series A Stock, and assignment of 3 shares of Series A Stock to an unrelated third party. KHIC, LLC failed to timely file a Form 3 to report the acquisition of 14,914,144 shares of common stock based upon the conversion of a senior convertible note.

 

 
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Changes in Nominating Process

 

There are no material changes to the procedures by which security holders may recommend nominees to our Board.

 

Item 11. Executive Compensation.

 

Summary Compensation Table

 

The following table provides certain information regarding compensation awarded to, earned by or paid to persons serving as our Chief Executive Officer during fiscal 2016 and 2015 and our two other most highly compensated officers who had total compensation exceeding $100,000 for fiscal 2016 (each a "named executive officer").

 

Name and Principal Position

Fiscal Year
Ended 12/31

Salary
($)

Bonus
($)

Stock Awards
($)

Option Awards
($)(1)

All Other
($)

Total
($)

Timothy Hassett 

2016

210,000

(4)

--

--

--

10,315

(1)

225,433

CEO and Chairman 

2015

210,000

(5)

--

15,433

(1)

225,433

Judson Bibb 

Vice President, Secretary and Director 

 

2016

120,000

(6)

--

--

10,315

(1)

130,315

Theodore Banzhaf, 

2016

180,000

(7)

--

--

--

26,700

(2)

206,700

Former President(8) 

2015

240,000

--

32,753

(3)

272,753

Mark Hodowanec,

2016

175,000

(9)

--

--

--

10,315

(1)

184,715

Chief Technical Officer

 

2015

 

174,000

 

15,433

(1)

 

189,833

____________

(1) 

Represents health care insurance premiums paid by the Company.

 

(2)

Represents (i) automobile insurance of $2,729 and (ii) health insurance of $10,315 paid by the Company and (iii) $13,656 for Company car.

 

(3)

Represents (i) automobile insurance of $3,664 and (ii) health insurance of $15,433 paid by the Company and (iii) $13,656 for Company car.

 

(4) 

Mr. Hassett was paid $152,927 with the balance of $57,073 being earned and accrued.

 

(5)

Mr. Hassett was paid $107,000 with the balance of $103,000 being earned and accrued.

 

(6) 

Mr. Bibb was paid $34,250 with the balance of $85,750 being earned and accrued.

 

(7)

Mr. Banzhaf was paid $65,500.

 

(8)

Pursuant to a Resignation, Waiver and Release (the “Resignation”) with the Company, Mr. Banzhaf resigned as President of the Company, effective October 1, 2016, and was paid $10,000 as full and final payment for any amounts owed to him by the Company. The Resignation contains a release of the Company by Mr. Banzhaf for any liabilities and contains an 18-month non-competition provision. Mr. Banzhaf waived any rights and claims resulting from his employment with and/or service to the Company, including any amounts owing as salary or incentive compensation of any kind including stock options and severance.

 

(9)

Mr. Hodowanec was paid $85,800 with the balance of $89,200 being earned and accrued.

 

 
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Employment Agreement

 

We entered into an employment agreement, dated March 5, 2014, with Timothy Hassett to serve as our Chief Executive Officer for an initial annual salary of $210,000, to be paid in equal monthly installments. If the Company is cash flow positive for three consecutive months, the monthly compensation will increase to $25,000 per month. If the Company maintains profitability for four consecutive quarters, the monthly compensation will increase to $30,000 per month. The Company also agreed to reimburse Mr. Hassett for his healthcare costs until the Company adopts a healthcare plan (As of June 15, 2014, the company contracted with United Healthcare to provide a healthcare plan for its employees. Consequently, the company is no longer reimbursing Mr. Hassett for his healthcare costs). If Mr. Hassett's employment is terminated without cause, he will be entitled to severance in the amount of two years' salary in effect at such time to be paid by the Company in one payment or in four equal installments at the end of each quarter following termination, at the Company's discretion. Such severance obligation shall accelerate and become immediately payable upon change of control of the Company. The Company will also pay any excise tax on Mr. Hassett's behalf that may be triggered under the Internal Revenue Code as a result. Mr. Hassett will not compete with the Company during the term of the agreement.

 

We entered into an employment agreement, dated February 10, 2014, with Mark Hodowanec to serve as our Chief Technical Officer for an initial annual salary of $175,000, to be paid in equal monthly installments. Mr. Hodowanec's annual salary shall be increased to $210,000 upon commercialization of the 25/50 kW mobile generators; to $240,000 upon the Company generating $100,000 in revenues or $1,000,000 in new financing; to $300,000 upon the Company achieving profitability; and to $360,000 upon the Company maintaining profitability for four consecutive quarters. The Company also agreed to reimburse Mr. Hodowanec for his healthcare costs until the Company adopts a healthcare plan (As of June 15, 2014, the company contracted with United Healthcare to provide a healthcare plan for its employees. Consequently, the company is no longer reimbursing Mr. Hodowanec for his healthcare costs). If Mr. Hodowanec's employment is terminated without cause, he will be entitled to severance in the amount of two years' salary in effect at such time to be paid by the Company in one payment or in four equal installments at the end of each quarter following termination, at the Company's discretion. Such severance obligation shall accelerate and become immediately payable upon change of control of the Company. The Company will also pay any excise tax on Mr. Hodowanec's behalf that may be triggered under the Internal Revenue Code as a result. Mr. Hodowanec will not compete with the Company during the term of the agreement.

 

On August 9, 2016, we entered into an employment agreement with Judson Bibb to serve as our Vice President for an initial annual salary of $120,000, to be paid in equal monthly installments. Mr. Bibb's annual salary shall be increased to $150,000 upon the Company remaining cash flow positive for three consecutive months and to $180,000 upon the Company maintaining profitability for four consecutive quarters. The Company also agreed to include Mr. Bibb on its healthcare plan (As of June 15, 2016, the company contracted with Freedom Life Insurance Company of America to provide a healthcare plan for its employees.). If Mr. Bibb's employment is terminated without cause, he will be entitled to severance in the amount of two years' salary in effect at such time to be paid by the Company in one payment or in four equal installments at the end of each quarter following termination, at the Company's discretion. Such severance obligation shall accelerate and become immediately payable upon change of control of the Company. The Company will also pay any excise tax on Mr. Bibb's behalf that may be triggered under the Internal Revenue Code as a result. Mr. Bibb will not compete with the Company during the term of the agreement.

 

 
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Consulting Agreements

 

We entered into a consulting agreement with Summit Management in April 2011 for services provided by Quentin Ponder to the Company for a consulting fee of $5,000 per month which was increased to $7,500 per month effective January 1, 2012. During 2012, Mr. Ponder agreed to forgo four months' payment under the consulting agreement due to the financial condition of the Company. Mr. Ponder was paid $7,500 per month from January 2013 through July 2013 and accrued $2,500 during those months (except for the first month in which he accrued $1,250); was paid $10,000 per month from August 2013 through April 2014; and was paid $12,000 per month from May 2014 through December 2015. On December 28, 2016, the contract was renewed with Summit Management Consulting, Inc., to provide the services of Quentin Ponder for a monthly consulting fee of $12,000.

 

We entered into a consulting agreement with Timothy Hassett in April 2011 pursuant to which he received $5,000 per month. The consulting fee was increased to $10,000 per month effective January 1, 2012. During 2012, Mr. Hassett agreed to forgo four months' payment on the agreement due to the financial condition of the Company. Mr. Hassett was paid $10,000 per month from January 2013 through July 2013 and accrued $3,500 during those months (except for the first month in which he accrued $1,750) and was paid $13,500 per month from August 2013 through October 2013. Such consulting agreement terminated on November 1, 2013, the date Mr. Hassett became a full-time, salaried employee of the Company.

 

On May 1, 2012, we entered into a consulting agreement with Bibb Productions & Consulting for Judson Bibb's services for a monthly consulting fee of $6,000 conditional upon the financial ability of the Company. Mr. Bibb's monthly consulting fee under this agreement was accrued but unpaid from May 2012 through April 2013 and was paid to Mr. Bibb for the months of May, June, July and August 2013. Such consulting agreement terminated on January 1, 2014, the date Mr. Bibb became a full-time, salaried employee of the Company and was paid $8,000 per month. Mr. Bibb's compensation increased to $10,000 per month in May 2014. 

 

Outstanding Equity Awards

 

The table below reflects all outstanding equity awards made to any named executive officer that were outstanding at December 31, 2016. 

 

OUTSTANDING EQUITY AWARDS AT DECEMBER 31, 2016

 

 

 

Option Awards

 

 

 

 

 

Number of

 

 

Number of

 

 

 

 

 

 

 

 

 

 

 

Securities

 

 

Securities

 

 

 

 

 

 

 

 

 

 

 

Underlying

 

 

Underlying

 

 

 

 

 

 

 

 

 

 

 

Unexercised

 

 

Unexercised

 

 

Option

 

 

Option

 

 

 

 

 

Options (#)

 

 

Options (#)

 

 

Exercise

 

 

Expiration

 

Name

 

Grant Date

 

Exercisable

 

 

Unexercisable

 

 

Price ($)

 

 

Date

 

Timothy Hassett

 

3/31/14 

 

 

1,000,000

 

 

 

--

 

 

 

2.00

 

 

 

(1 )

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Judson Bibb

 

3/31/14

 

 

2,000,000

 

 

 

--

 

 

 

2.00

 

 

 

(1 )

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mark Hodowanec

 

3/31/14

 

 

1,000,000

 

 

 

--

 

 

 

2.00

 

 

 

(1 )

 _______________ 

(1) 

No expiration date. 

 

 
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Compensation of Officers

 

On January 13, 2014, pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"), and Section 14A of the Securities Exchange Act of 1934, as amended, our stockholders voted, on an advisory basis, to approve the compensation of the management team. This proposal, commonly known as a "say-on-pay" proposal, gave the Company's stockholders the opportunity to express their views on the compensation of the Chairman and Chief Executive Officer, Timothy Hassett, and the rest of the management team.

 

The compensation of the management team was approved by 77.46% of the shares voted.

 

On February 20, 2013, the Board approved the following compensation for its officers: (i) $13,500 per month for Timothy Hassett, as Chief Executive Officer, (ii) $10,000 per month for Quentin Ponder, as Chief Financial Officer and Treasurer, (iii) $12,500 per month for Theodore Banzhaf, as President, (iv) $14,500 per month for a still undesignated Chief Technical Officer and (v) $8,000 per month for Judson Bibb, as Vice-President and Secretary. Such compensation accrued commencing January 15, 2013 until July 2013 when the Company raised $1 million.

 

On February 20, 2013, the Board also approved increased compensation if and when the Company achieves certain milestones as follows: (1) generating $1 million in additional funding, (2) generating $100,000 in revenue or an additional $1 million in funding, (3) achieving profitability (being cash flow positive for three consecutive months) and (4) maintaining profitability for four consecutive quarters. With the achievement of the first milestone, the compensation for the President and the Chief Technical Officer will increase to $17,500 per month. With the achievement of the second milestone, the compensation for the Chief Executive Officer shall increase to $17,500 per month, the compensation for the Chief Financial Officer and Treasurer shall increase to $12,000 per month, the compensation for the President and the Chief Technical Officer shall increase to $20,000 per month, and the compensation for the Vice President and Secretary shall increase to $10,000 per month. With the achievement of the third milestone, the compensation for the Chief Executive Officer shall increase to $25,000 per month, the compensation for the Chief Financial Officer and Treasurer shall increase to $18,000 per month, the compensation for the President shall increase to $24,000 per month, the compensation for the Chief Technical Officer shall increase to $25,000 per month, and the compensation for the Vice President and Secretary shall increase to $12,000 per month. With the achievement of the fourth milestone, the compensation for the Chief Executive Officer shall increase to $30,000 per month, the compensation for the Chief Financial Officer and Treasurer shall increase to $24,000 per month, the compensation for the President shall increase to $29,000 per month, the compensation for the Chief Technical Officer shall increase to $30,000 per month, and the compensation for the Vice President and Secretary shall increase to $15,000 per month. The validity of the compensation is no longer an issue as litigation with Spirit Bear has been settled at described above in Item 3. Legal Proceedings. 

 

In addition, the Board authorized the Chief Executive Officer to make quarterly bonuses of $50,000 and/or 50,000 shares of, or options for Common Stock available for each officer in addition to performance payments from 5% of the Company's net income to be given for individual contributions, such as the awarding of patents or the signing of major customer contracts.

 

The Board also approved the decrease in the exercise price of the five outstanding options to purchase 1,000,000 shares held by Theodore Banzhaf, and to provide for cashless exercise of these options. The milestone stock prices were reduced to $2.00, $3.00, $4.00, $4.50 and $5.00 for 20 consecutive trading days each. These milestone stock prices had been changed from $2.00, $3.00, $5.00, $7.50 and $10.00. Once the stock has traded at these prices for 20 consecutive trading days, Mr. Banzhaf has the right to exercise an option to purchase 1,000,000 shares of common stock at each milestone stock price. These options expire one year after Mr. Banzhaf has been terminated without cause. In connection with Mr. Banzhaf’s resignation as President of the Company on October 1, 2016, he waived all rights to such options. 

 

On March 31, 2014, the Board approved the grant of options to Judson Bibb to purchase 2,000,000 shares of common stock at an exercise price of $2.00 per share and the grant of options to purchase 1,000,000 shares of common stock at $2.00 per share to each of Messrs. Hassett, Hodowanec and Banzhaf. In connection with Mr. Banzhaf’s resignation as President of the Company on October 1, 2016, he waived all rights to such options.

 

 
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Compensation of Directors

 

The Company has not yet established a compensation plan for its directors. Consequently, none of our directors received compensation for services rendered in their capacities as directors. However, Messrs. Hassett, Ponder and Bibb were compensated for services rendered in their capacities as officers of the Company. No arrangements are presently in place regarding compensation to directors for their services as directors.

 

In 2011, Judson Bibb received a gift of 5,000,000 shares from PPEG. For accounting purposes, the shares are being classified as compensation. The shares were subsequently returned on April 13, 2012 and no financial benefit was accrued.

 

On February 20, 2013, the Board granted Judson Bibb an option to purchase 2,000,000 shares of common stock, at a purchase price of par value, or $0.001 per share. The option was not exercised and on March 21, 2013, the Company and Judson Bibb signed an agreement rescinding such option grant.

 

On March 8, 2015, Christopher McKee was granted a 2.5 year warrant to purchase 200,000 shares of the Company's common stock at $0.80 per share for his participation on the Company's Board of Advisors. On February 3, 2016, Mr. McKee was granted a three-year warrant to purchase 100,000 shares of the Company's common stock at purchase price of $0.27 per share for his assistance in the Company's business development. The warrant may be exercised on a cashless basis. 

 

Richard J. "Dick" Schul was granted a warrant to purchase 200,000 shares of the Company's common stock at $0.50 per share for his participation on the Company's Board of Advisors. On February 22, 2016, Mr. Schul was granted a three-year warrant to purchase 100,000 shares of the Company's common stock at purchase price of $0.27 per share for his assistance in the Company's business development. The warrant may be exercised on a cashless basis. 

 

Dan Ustian was granted a warrant to purchase 200,000 shares of the Company's common stock at $0.80 per share for his participation on the Company's Board of Advisors. On February 3, 2016, Mr. Ustian was granted a three-year warrant to purchase 100,000 shares of the Company's common stock at purchase price of $0.27 per share for his assistance in the Company's business development. The warrant may be exercised on a cashless basis. 

 

Don Bowman was granted a five-year warrant to purchase 250,000 shares of the Company's common stock at $0.60 per share for legal services provided to the Company. The warrant may be exercised on a cashless basis.

 

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

 

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

 

The following table lists, as of April 12, 2017, the number of shares of common stock beneficially owned by (i) each person, entity or group (as that term is used in Section 13(d)(3) of the Securities Exchange Act of 1934) known to the Company to be the beneficial owner of more than 5% of the outstanding common stock; (ii) each of our named executive officers and (iii) all officers and directors as a group. Information relating to beneficial ownership of common stock by our principal stockholders and management is based upon information furnished by each person using "beneficial ownership" concepts under the rules of the SEC. Under these rules, a person is deemed to be a beneficial owner of a security if that person directly or indirectly has or shares voting power, which includes the power to vote or direct the voting of the security, or investment power, which includes the power to dispose or direct the disposition of the security. The person is also deemed to be a beneficial owner of any security of which that person has a right to acquire beneficial ownership within 60 days. Under the SEC rules, more than one person may be deemed to be a beneficial owner of the same securities, and a person may be deemed to be a beneficial owner of securities as to which he or she may not have any pecuniary interest. Except as noted below, each person has sole voting and investment power with respect to the shares beneficially owned and each stockholder's address is c/o Cool Technologies, Inc., 8875 Hidden River Parkway, Suite 300, Tampa, Florida 33637.

 

 
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The percentages below are calculated based on 116,572,312 issued and outstanding shares of common stock and 73 issued and outstanding shares of Series A Stock (each such share of Series A Stock has the voting right of 50,000 shares of Common Stock) as of April 12, 2017.

 

Name of Beneficial Owner

 

 

Number of Shares Beneficially
Owned

 

 

 

Percentage

 

5% or Greater Stockholders  

Spirit Bear Limited (1) 

1470 First Avenue, No. 4a 

New York, NY 10075 

9,500,000

(2)

7.79

%

Gemini Master Fund, Ltd. (3)

c/o Gemini Strategies, Inc.

619 Vulcan Avenue, Suite 203

Encinitas, CA 92024

 

14,471,379

(4)

 

11.11

%.

 

Mark Hodowanec 

7,100,000

(5)

6.04

%

 

Eric Paul Brown

1877 S. Wiesbrook Road

Wheaton, IL 60189

 

2,588,180

(6)

 

66.66

%(7)

 

Christopher J. Jones

1314 E. Forest Avenue

Wheaton, IL 60189

 

3,043,634

(8)

 

66.66

%(7)

 

Inverom Corporation (9)

16W235 83 rd St., Suite A

Burr Ridge, IL 60527

 

1,818,181

(10)

 

66.66

%(7)

 

KHIC, Inc. (11)

120 West 45 th Street

New York, NY 10036

 

24,444,914

(12)

 

17.35

%

Directors and named executive officers 

Timothy Hassett 

7,976,500

(13)

6.75

%

Quentin Ponder 

2,800,000

(14)

2.39

%

Daniel C. Ustian

 

5,180,806

(15)

 

66.66

%(7)

Judson Bibb

3,869,300

(16)

3.24

%

Christopher McKee

744,444

(17)

*

Richard J. "Dick" Schul

500,000

(18)

*

Donald Bowman

250,000

(19)

 *

All executive officers and directors as a group (8 persons)(20) 

28,421,050

22.50

%

_______

* less than 1%

 

(1) 

Jay Palmer, President of Spirit Bear, has sole voting and disposition power over shares held by Spirit Bear. 

(2) 

Includes (i) 3,500,000 shares of common stock underlying 70 of Series A Stock (having voting rights to 50,000 shares of common stock for each share of the Series A Stock) and (ii) currently exercisable warrants to purchase an aggregate of 5,400,000 shares of common stock.

(3)

Steven Winters, President of Gemini Strategies Inc., investment manager of Gemini Master Fund, Ltd. has sole voting and dispositive power over shares held by Gemini Master Fund, Ltd.

(4)

Includes currently exercisable warrants to purchase an aggregate of 13,671,379 shares of common stock.

(5) 

Includes options to purchase 1,000,000 shares of common stock at $2.00 per share. Excludes 80,000 shares held by Mr. Hodowanec’s minor children and 110,000 shares held by his spouse.

 

 
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(6) 

Includes (i) 1,218,181 shares of Series B Stock which are convertible by the Series B stockholder into Common Stock on a one to one basis and automatically convert into Common Stock on a one to one basis if the Common Stock trades in excess of $2.25 for any consecutive 20 day period, (ii) a warrant to purchase 1,218,181 shares of Common Stock at $0.07 per share and (iii) a warrant to purchase 60,909 shares of Common Stock at $0.75 per share.

(7) 

The Series B Stock votes together as a single class with the holders of the Common Stock, with the holders of Series B Stock being entitled to 66 2/3% of the total votes.

(8)

Includes (i) 1,218,181 shares of Series B Stock which are convertible by the Series B stockholder into Common Stock on a one-to-one basis and automatically convert into Common Stock on a one-to-one basis if the Common Stock trades in excess of $2.25 for any consecutive 20 day period, (ii) a warrant to purchase 1,218,181 shares of Common Stock at $0.07 per share and (iii) a warrant to purchase 243,636 shares of Common Stock at $0.75 per share.

(9)

Roman Kuropas, President of Inverom Corporation, has sole voting and dispositive power over the shares held by Inverom Corporation

(10)

Includes (i) 909,090 shares of Series B Stock which are convertible into Common Stock on a one-to-one

basis and automatically convert into Common Stock on a one-to-one basis if the Common Stock trades in excess of $2.25 for any consecutive 20day period and (ii) a warrant to purchase 909,090 shares of Common Stock at $0.07 per share. Excludes warrants to purchase 200,000 shares of Common Stock at $0.80 per share held by Roman Kuropas, President of Inverom.

(11)

Eric Hess, member and Secretary of KHIC, LLC, has sole voting and dispositive power over the shares held by KHIC, LLC.

(12)

Represents (i) 150,000 shares of common stock underlying 3 shares of Series A Stock (having voting rights to 50,000 shares of common stock for each share of Series A Stock), (ii) a currently exercisable warrant to purchase 4,000,000 shares of common stock at $0.06 per share, (iii) 14,994,914 shares of Common Stock issuable upon the conversion of a convertible promissory note at a conversion price of $0.025 per share, (iv) a currently exercisable warrant to purchase 650,000 shares of common stock at $0.15 per share, (v) a currently exercisable warrant to purchase 650,000 shares of common stock at $0.12 per share and (vi) the call right to purchase 4,000,000 shares of common stock until May 8, 2017.

(13) 

Includes (i) options to purchase 1,000,000 shares of common stock at $2.00 per share and (ii) a currently exercisable warrant to purchase 625,000 shares of Common Stock at $0.22 per share. Does not include an aggregate of 90,000 shares held by Mr. Hassett's minor children. 

(14)

Includes a currently exercisable warrant to purchase 400,000 shares of Common Stock at $0.22 per share.

(15)

Includes (i) 1,218,181 shares of Series B Stock which are convertible by Mr. Ustian into Common Stock on a one-to-one basis and automatically convert into Common Stock on a one-to-one basis if the Company’s common stock trades in excess of $2.25 for any consecutive 20 day period, (ii) a currently exercisable warrant to purchase 1,218,181 shares of Common Stock at $0.07 per share, (iii) a currently exercisable warrant to purchase 222,222 shares of Common Stock at $0.45 per share; (iv) a currently exercisable warrant to purchase 200,000 shares of Common Stock at $0.80 per share, (v) a currently exercisable warrant to purchase 100,000 shares of Common Stock at $0.27, and (vi) a currently exercisable warrant to purchase 1,000,000 shares of Common Stock at $0.22 per share.

(16)

Includes (i) options to purchase 2,000,000 shares of common stock at $2.00 per share, and (ii) a currently exercisable warrant to purchase 750,000 shares of Common Stock at $0.22 per share.

(17)

Includes (i) a currently exercisable warrant to purchase 222,222 shares of common stock at $0.45 per share and (ii) a currently exercisable warrant to purchase 200,000 shares of Common Stock at $0.80, and (iii) currently exercisable warrant to purchase 100,000 shares of Common Stock at $0.27 per share.

(18)

Represents (i) a currently exercisable warrant to purchase 200,000 shares of common stock at $0.50 per share, and (ii) a currently exercisable warrant to purchase 100,000 shares of common stock at $0.27 per share, and (iii) a currently exercisable warrant to purchase 100,000 shares of common stock at $0.22.

(19)

Represents a currently exercisable warrant to purchase 250,000 shares of common stock at $0.60 per share.

(20)

Includes Mark Hodowanec, Chief Technology Officer.

 

Change-in-Control Agreements

 

The Company does not have any change-in-control agreements with any of its executive officers, except that severance payments, if any, to which Messrs. Hodowanec, Hassett and Bibb may be entitled under their employment agreements, accelerate in the event of a change of control.

 

 
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Item 13. Certain Relationships and Related Transactions and Director Independence.

 

Certain Relationships and Related Transactions

 

UPT leases its Largo, Florida premises from Dennis Campbell, the managing member of PGC, a significant contractor running our UPT operations, under the Largo Lease for $2,140 per month. The current lease term commenced on July 1, 2014, expires on June 30, 2017 and is renewable for two additional 36-month terms, subject to rent adjustments.

 

In May 2014, Alfred Cullere, a selling stockholder, and 5% owner of UPT, made advanced payments to us of an aggregate of $400,000 by companies controlled by Mr. Cullere on purchase orders that have not yet been fulfilled by the Company. On January 5, 2015, Mr. Cullere also loaned UPT $250,000.

 

On March 31, 2014, the Board approved the grant of options to Judson Bibb, our Vice President and Secretary and a director, to purchase 2,000,000 shares of common stock at an exercise price of $2.00 per share and the grant of options to purchase 1,000,000 shares of common stock at $2.00 per share to each of Messrs. Hassett (Chairman and Chief Executive Officer), Hodowanec (Chief Technical Officer) and Banzhaf (former President). Mr. Banzhaf waived his rights to such option upon his resignation as President of the Company on October 1, 2016.

 

On March 3, 2015, we issued 288,968 shares of common stock to Spirit Bear, a 5% stockholder, upon the cashless exercise of 591,054 warrants.

 

On April 29, 2015, Mr. McKee, a director, purchased 222,222 shares of common stock and a five-year warrant to purchase 222,222 shares of common stock at an exercise price of $0.57 per share. We received $100,000 for the sale of such securities.

 

On May 1, 2015, Mr. Ustian, a director, purchased 222,222 shares of common stock and a five-year warrant to purchase 222,222 shares of common stock at an exercise price of $0.57 per share. We received $100,000 for the sale of such securities.

 

On August 12, 2015, we issued 200,000 shares of common stock to Spirit Bear, a 5% stockholder, upon the conversion of 4 shares of Series A Stock.

 

On February 3, 2016, we issued three-year warrants to purchase 100,000 shares of common stock at an exercise price of $0.27 per share to each of Richard Schul (a director and an advisory board member), Daniel Ustian (a director and advisory board member), Christopher McKee (a director and advisory board member) and Scott Van Dorn (an advisory board member) and a three-year warrant to purchase 200,000 shares of common stock to Gurminder Bedi (an advisory board member) at an exercise price of $0.31 per share, for serving on our board of advisors. The warrants may be exercised on a cashless basis.

 

On March 2, 2016, we issued 700,000 shares of common stock to Spirit Bear, a 5% stockholder, upon conversion of 14 shares of our Series A Stock.

 

June 24, 2016, we issued to our Chief Executive Officer, Timothy Hassett, 625,000 shares of our common stock and a five-year warrant to purchase 625,000 shares of our common stock at an exercise price of $0.22 for accrued salary. The warrant may be exercised on a cashless basis.

 

On June 24, 2016, we issued to our former president, Theodore Banzhaf, 500,000 shares of our common stock and a five year warrant to purchase 500,000 shares of our common stock at an exercise price of $0.22 per share, for accrued salary. The warrant may be exercised on a cashless basis. Mr. Banzhaf waived his rights to these warrants upon his resignation from the Company on October 1, 2016.

 

On June 24, 2016, we issued to Summit Management Consulting, Inc., a company owned by Quentin Ponder, our Chief Financial Officer, 400,000 shares of our common stock and a five-year warrant to purchase 400,000 shares of our common stock at an exercise price of $0.22 for accrued consulting fees of $64,000. The warrant may be exercised on a cashless basis.

 

 
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On June 24, 2016, we issued to our vice president, Judson Bibb, 750,000 shares of our common stock and a five year warrant to purchase 750,000 shares of our common stock at an exercise price of $0.22 per share, in payment for loans in the amount of $22,910 and accrued salary of $97,090. The warrant may be exercised on a cashless basis.

 

On June 24, 2016, for consideration of $16,000, we sold to a director, Richard Schul, 100,000 shares of our common stock and a five year warrant to purchase 100,000 shares of our common stock at an exercise price of $0.22. The warrant may be exercised on a cashless basis.

 

On June 24, 2016, for consideration of $160,000, we sold to a director, Daniel Ustian, 1,000,000 shares of our common stock and a five-year warrant to purchase 1,000,000 shares of our common stock at an exercise price of $0.22. The warrant may be exercised on a cashless basis.

 

On July 11, 2016, we issued 100,000 conversion shares of our common stock upon conversion of 2 shares of our Series A Stock to Spirit Bear, a 5% stockholder, which transaction was subsequently rescinded.

 

On August 12, 2016, for consideration of $50,000, we sold 909,090 shares of our Series B Stock and a five-year warrant to purchase 909,090 shares of our common stock at an exercise price of $0.07 to Daniel Ustian, a director. Each share of Series B Stock may be converted into common stock on a one-to-one basis and automatically converts into common stock on a one-to-one basis if the Company’s common stock trades in excess of $2.25 for any consecutive 20 day period and a currently exercisable warrant to purchase 909,090 shares of common stock at an exercise price of $0.07 per share.

 

On August 24, 2016, the Company issued KHIC, LLC, a 5% stockholder, a senior convertible promissory note in the principal amount of $400,000. The note accrues interest at 3% and matures on August 24, 2018. The note is convertible into shares of common stock of the Company at a conversion price of $0.025 per share and is senior to all other indebtedness of the Company and its subsidiaries. The conversion shares have registration rights. $368,703 is currently outstanding under the note.

 

On September 30, 2016, the Company issued Gemini Master Fund, Ltd., a 5% stockholder, a secured promissory note in the original principal amount of $180,000. The note accrues interest at 5% (18% in the event of an event of default) and matures on June 30, 2017. On November 10, 2016, we issued 800,000 shares of our common stock as partial consideration for the note to Gemini Master Fund, Ltd.

 

On October 7, 2016, we issued 5,469,113 shares of our common stock upon complete conversion of a warrant originally issued in connection with $400,000 of principal and interest of convertible debt to Gemini Master Fund, Ltd., a 5% stockholder.

 

On October 31, 2016, the Company received $17,000 from Dan Ustian on the same terms and conditions as his previous investment on August 12, 2016. 309,091 warrants were issued on October 31st. 309,090 shares of Series B Preferred stock have yet to be issued.

 

On November 7, 2016, we issued 300,000 shares of common stock to Sprit Bear upon the conversion of 6 shares of Series A Stock.

 

On December 23, 2016, we entered into a Securities Purchase Agreement with KHIC, LLC, a 5% stockholder, pursuant to which KHIC, LLC purchased for $65,000, 650,000 shares of common stock and a five-year warrant to purchase 650,000 shares of common stock at $0.12 per share and 650,000 shares of common stock at $0.15 per share.

 

On December 28, 2016, the consulting agreement with Summit Management Consulting Inc. for the services of Quentin Ponder, our chief financial officer, was renewed until such time as Quentin Ponder’s services are no longer needed for a monthly consulting fee of $12,000. Mr. Ponder is the sole owner and director of Summit Management.

 

On January 17, 2017, we issued 800,000 shares of common stock to Sprit Bear, a greater than 5% stockholder, upon the conversion of 16 shares of Series A Stock.

 

 
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On March 20, 2017, we issued 750,000 shares of common stock to Spirit Bear, a greater than 5% stockholder upon the conversion of 15 shares of Series A Stock.

 

Spirit Bear Limited

 

See "Item 3. Legal Proceedings" above for a description of the legal proceedings between the Company and Spirit Bear.

 

Insider Transactions Policies and Procedures

 

The Company does not currently have an insider transaction policy.

 

Director Independence

 

We currently do not have any independent directors as the term “independent” is defined by the rules of the American Stock Exchange.

 

While four of our seven directors, do not receive on-going consideration from the company for their service as directors or officers, three of the four have received consideration for their service on the Company's Board of Advisors. As the entire Board of Directors has yet to affirm that the respective individual directors do not have relationships that would interfere with the exercise of independent judgement in carrying out their directors' responsibilities, none of our directors can be defined as "independent".

 

Item 14. Principal Accounting Fees and Services.

 

Audit Fees

 

Audit fees consist of fees for professional services rendered for the audit of the Company's consolidated financial statements included in the Company's Annual Report on Form 10-K and the review of financial statements included in the Company's Quarterly Reports on Form 10-Q. The aggregate fees billed for professional services rendered by our principal accountant, Anton and Chia, LLP, for audit and review services for the fiscal years ended December 31, 2016 and December 31, 2015 were $77,613 and $55,105, respectively.

 

We incurred no non-audit related fees, tax fees or other fees for professional services rendered by our principal accountant for the years ended December 31, 2016 and 2015.

 

Administration of the Engagement; Pre-Approval of Audit and Permissible Non-Audit Services

 

We have not yet established an audit committee. Until then, there are no formal pre-approval policies and procedures. Nonetheless, the auditors engaged for these services are required to provide and uphold estimates for the cost of services to be rendered. The percentage of hours expended on Anton and Chia, LLP's respective engagement to audit our financial statements for the most recent fiscal year that were attributed to work performed by persons other than the principal accountant's full-time, permanent employees was 0%.

 

 
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PART IV

 

Item 15. Exhibits, Financial Statement Schedules.

 

Exhibit

Number

 

Description of Exhibit

3.1

 

Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Company's Form SB-2 filed with the SEC on August 9, 2007)

3.2

 

Certificate of Amendment to the Articles of Incorporation (incorporated by reference to Exhibit 2.1 to the Company's Form 8-K filed with the SEC on September 9, 2010)

3.3

 

Bylaws (incorporated by reference to Exhibit 3.2 to the Company's Form SB-2 filed with the SEC on August 9, 2007)

3.4

 

Bylaws (incorporated by reference to Exhibit 3.1 to the Company's Current Report on Form 8-K filed with the SEC on April 11, 2012)

3.5

 

Certificate of Amendment to the Articles of Incorporation of the Company (incorporated by reference to Exhibit 3.3 to the Company's Form 10-Q filed with the SEC on May 15, 2012)

3.6

 

Bylaws, dated February 20, 2013 (incorporated by reference to Exhibit 3.6 to the Company's Form 10-K filed with the SEC on April 15, 2013

3.6.1

 

Amendment to Article VII of the Bylaws (incorporated by reference to Exhibit 3.6.1 to the Company's Form 8-K filed with the SEC on June 27, 2013)

3.7

 

Amendment to Article II, Section 2 of the Bylaws (incorporated by reference to Exhibit 3.7 to the Company's Form 8-K filed with the SEC on January 17, 2014)

3.8

 

Certificate of Designation of the Series A Convertible Preferred Stock (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K filed with the SEC on December 20, 2012)

3.9

 

Amendment to the Certificate of Designation of the Series A Convertible Preferred Stock (incorporated by reference to Exhibit 4.1.1 to the Company's Current Report on Form 8-K filed with the SEC on June 27, 2013)

3.11

 

Amendment to Articles of Incorporation, dated March 20, 2017 (incorporated by reference to Exhibit 3.11 to the Company’s Current Report on Form 8-K filed with the SEC on March 24, 2017)

10.12

 

Consulting Agreement dated April 1, 2011 between Summit Management and HPEV, Inc. (incorporated by reference to Exhibit 10.12 to the Company's Form 10-K filed with the SEC on April 2, 2012)

10.13

 

Consulting Agreement dated April 1, 2011 between Timothy Hassett and HPEV, Inc. (incorporated by reference to Exhibit 10.13 to the Company's Form 10-K filed with the SEC on April 2, 2012)

10.14

 

Addendum to Summit Management Consulting Agreement dated January 2, 2012. (incorporated by reference to Exhibit 10.14 to the Company's Form 10-K filed with the SEC on April 2, 2012)

10.15

 

Addendum to Timothy Hassett Consulting Agreement dated January 2, 2012(incorporated by reference to Exhibit 10.15 to the Company's Form 10-K filed with the SEC on April 2, 2012)

10.16

 

Consulting Agreement dated February 13, 2012 between Lagoon Labs, LLC and HPEV, Inc. (incorporated by reference to Exhibit 10.1 to the Company's Form 10-Q filed with the SEC on May 15, 2012)

10.17

 

Warrant issued to McMahon, Serepca LLP for financial accommodations dated June 4, 2012 (incorporated by reference to Exhibit 10.2 to the Company's Form 10-Q filed with the SEC on November 19, 2012)

10.18

 

Spirit Bear Note and Warrant Purchase Agreement dated August 9, 2012 (incorporated by reference to Exhibit 10.3 to the Company's Form 10-Q filed with the SEC on November 19, 2012)

10.19

 

Spirit Bear Promissory Note B-1 issued pursuant to the Note and Warrant Purchase Agreement and dated April 27, 2012 (incorporated by reference to Exhibit 10.4 to the Company's Form 10-Q filed with the SEC on November 19, 2012)

10.20

 

Spirit Bear Promissory Note B-2 issued pursuant to the Note and Warrant Purchase Agreement and dated May 22, 2012. (incorporated by reference to Exhibit 10.5 to the Company's Form 10-Q filed with the SEC on November 19, 2012)

10.21

 

Spirit Bear Promissory Note B-3 issued pursuant to the Note and Warrant Purchase Agreement and dated June 28, 2012 (incorporated by reference to Exhibit 10.6 to the Company's Form 10-Q filed with the SEC on November 19, 2012)

10.22

 

Spirit Bear Promissory Note B-4 issued pursuant to the Note and Warrant Purchase Agreement and dated July 11, 2012 (incorporated by reference to Exhibit 10.7 to the Company's Form 10-Q filed with the SEC on November 19, 2012)

10.23

 

Spirit Bear Loan Extension Agreement for Note B-1 dated October 26, 2012 (incorporated by reference to Exhibit 10.8 to the Company's Form 10-Q filed with the SEC on November 19, 2012)

10.24

 

Securities Purchase Agreement, dated December 14, 2012, between Spirit Bear Limited and HPEV, Inc. (incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed with the SEC on December 20, 2012)

10.25

 

Registration Rights Agreement dated December 14, 2012, between Spirit Bear Limited and HPEV, Inc. (incorporated by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K filed with the SEC on December 20, 2012)

 

 
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10.26

 

Form of Common Stock Purchase Warrant, between Spirit Bear Limited and HPEV, Inc. (incorporated by reference to Company's Current Registration Statement on S-1filed with the SEC on January 11, 2013)

10.27

 

Form of Common Stock Purchase Warrant, between Spirit Bear Limited and HPEV, Inc (incorporated by reference to Company's Current Registration Statement on S-1filed with the SEC on January 11, 2013)

10.28

 

Form of Common Stock Purchase Warrant, between Spirit Bear Limited and HPEV, Inc (incorporated by reference to Company's Current Registration Statement on S-1filed with the SEC on January 11, 2013)

10.29

 

Patent and Security Agreement dated December 14, 2012, between Spirit Bear Limited and HPEV, Inc. (incorporated by reference to Exhibit 10.4 to the Company's Current Report on Form 8-K filed with the SEC on December 20, 2012)

10.30

 

Debt Settlement Agreement, dated December 11, 2012, by and among HPEV, Inc., Phoenix Productions and Entertainment Group and Action Media Group, LLC (incorporated by reference to Company's Current Registration Statement on S-1filed with the SEC on January 11, 2013)

10.32

 

Loan Agreement dated March 7, 2012 between HPEV and Action Media Group LLC (incorporated by reference to Exhibit 10.32 to the Company's Annual Report on Form 10-K filed with the SEC on April 15, 2013)

10.33

 

Warrant issued to McMahon, Serepca, LLP for financial accommodation dated August 6, 2012 (incorporated by reference to Exhibit 10.33 to the Company's Annual Report on Form 10-K filed with the SEC on April 15, 2013)

10.34

 

Rescission Letter dated March 21, 2013 between Judson Bibb and the Company (incorporated by reference to Exhibit 10.34 to the Company's Annual Report on Form 10-K filed with the SEC on April 15, 2013)

10.35

 

Rescission Letter dated March 24, 2013 between Theodore Banzhaf and the Company (incorporated by reference to Exhibit 10.32 to the Company's Annual Report on Form 10-K filed with the SEC on April 15, 2013)

10.36

 

Settlement Agreement dated April 12, 2013 between Spirit Bear Limited and the Company (incorporated by reference to Exhibit 10.36 to the Company's Annual Report on Form 10-K filed with the SEC on April 15, 2013)

10.38

 

Form of Subscription Agreement and Warrant Agreement (incorporated by reference to Exhibit 10.38 to the Company's Current Report on Form 8-K filed with the SEC on February 10, 2014)

10.39

 

Employment Agreement, dated February 14, 2014, between the Company and Mark Hodowanec (incorporated by reference to Exhibit 10.40 to the Company's Current Report on Form 8-K filed with the SEC on February 20, 2014)

10.40

 

Purchase Agreement, dated February 19, 2014, between the Company and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.40 to the Company's Current Report on Form 8-K filed with the SEC on February 24, 2014)

10.41

 

Registration Rights Agreement, dated February 19, 2014, between the Company and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.41 to the Company's Current Report on Form 8-K filed with the SEC on February 24, 2014)

10.42

 

Consulting Agreement, dated May 1, 2012 with Bibb Productions & Consulting (incorporated by reference to Exhibit 10.42 to the Company's Annual Report on Form 10-K/A filed with the SEC on April 23, 2014)

10.43

 

Employment Agreement, dated March 31, 2012 with Theodore Banzhaf (incorporated by reference to Exhibit 10.43 to the C 10.43 to the Company's Annual Report on Form 10-K/A filed with the SEC on April 23, 2014

10.46

 

Placement Agent and Advisory Services Agreement (incorporated by reference to Exhibit 10.44 to the Company's Annual Report on Form 10-K/A filed with the Sec on April 23, 2014)

10.47

 

Letter Agreement, dated May 28, 2014 between the Company and Cranshire Capital Master Fund Ltd. and Equitec Specialists, LLC (incorporated by reference to Exhibit 10.45 to the Company's Registration Statement on Form S-1 filed with the SEC on July 3, 2014)

10.48

 

Settlement and Release Agreement effective as of May 1, 2015 by and between Spirit Bear Limited and its assignees, and the Company (incorporated by reference to Exhibit 10.48 to the Company's Current Report on Form 8K filed with the SEC on May 5, 2015)

 

 
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10.49

 

First Amendment to Settlement Agreement effective as of May 1, 2015 between Spirit Bear Limited and its assignees and the Company (incorporated by reference to Exhibit 10.48 to the Company's Current Report on Form 8K filed with the SEC on June 4, 2015)

10.50

 

Settlement Agreement with Peak Finance LLC (incorporated by reference to Exhibit 10.49 to the Company's Current Report on Form 8K filed with the SEC on April 26, 2016)

10.51

 

Second Amendment to Settlement Agreement (incorporated by reference to Exhibit 10.52 to the Company's Current Report on Form 8K filed with the SEC on May 10, 2016)

10.52

 

Form of Subscription Agreement for Series B Stock (incorporated by reference to Exhibit 10.58 to the Company's Current Report on Form 8K filed with the SEC on November 11, 2016)

10.53

 

Form of Warrant for Series B Stock purchasers (incorporated by reference to Exhibit 10.59 to the Company's Current Report on Form 8K filed with the SEC on November 11, 2016)

10.54

 

Resignation, Waiver and Release of Theodore Banzhaf (incorporated by reference to Exhibit 10.60 to the Company’s Current Report on Form 8K filed with the SEC on November 11, 2016)

10.55

 

Securities Purchase Agreement, dated December 6, 2016, between the Company and Bellridge Capital, LP (incorporated by reference to Exhibit 10.61 to the Company’s Current Report on Form 8K filed with the SEC on December 12, 2016)

10.56

 

5% Convertible Promissory Note issued to Bellridge Capital, LP (incorporated by reference to Exhibit 10.62 to the Company’s Current Report on Form 8K filed with the SEC on December 12, 2016)

10.57

 

Securities Purchase Agreement, dated December 6, 2016, between the Company and Bellridge Capital, LP for the Equity Line (incorporated by reference to Exhibit 10.63 to the Company’s Current Report on Form 8K filed with the SEC on December 12, 2016)

10.58

 

Registration Rights Agreement, dated December 6, 2016, between the Company and Bellridge Capital, LP (incorporated by reference to Exhibit 10.64 to the Company’s Current Report on Form 8K filed with the SEC on December 12, 2016)

10.59

 

Employment Agreement, dated July 13, 2016, between the Company and Judson Bibb (incorporated by reference to Exhibit 10.59 to the Company’s Registration Statement on Form S-1 filed with the SEC on December 22, 2016)

10.60

 

Form of Advisory Board Agreement (incorporated by reference to Exhibit 10.60 to the Company’s Registration Statement on Form S-1 filed with the SEC on December 22, 2016)

10.61

 

Independent Contractor Agreement, dated July 1, 2014 with PGC Investments LLC (incorporated by reference to Exhibit 10.61 to the Company’s Registration Statement on Form S-1 filed with the SEC on December 22, 2016)

10.62

 

5% Convertible Promissory Note, dated December 28, 2016 issued to Bellridge Capital, LP (incorporated by reference to Exhibit 10.62 to the Company’s Registration Statement on Form S-1/ A filed with the SEC on January 25, 2017)

10.63

 

Letter, dated November 4, 2016, between the Company and Spirit Bear.

10.64

 

Agreement of Principal Terms, dated February 21, 2017, between Craftsmen Industries, Inc. and the Company

10.65

 

Securities Purchase Agreement, dated March 14, 2017, between the Company and Bellridge Capital, LP.

10.66

 

5% Convertible Promissory Noted, dated March 14, 2017, issued to Bellridge Capital, LP

21.1*

 

Subsidiaries of the registrant

31.1*

 

Certification of Chief Executive Officer filed pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

31.2*

 

Certification of Chief Financial Officer filed pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

32.1*

 

Certifications of Chief Executive Officer furnished pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

32.2*

 

Certifications of Chief Financial Officer furnished pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

_____________

* Filed herewith

 

 
50
 
Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

Cool Technologies, Inc.

Date: April 17, 2017

By:

/s/ Timothy Hassett

 

Timothy Hassett

Chairman and Chief Executive Officer,

(Principal Executive Officer)

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signature

 

Capacity

 

Date

 

/s/ Timothy Hassett

 

Chairman and Chief Executive Officer (Principal Executive Officer)

 

April 17, 2017

Timothy Hassett

 

/s/ Quentin Ponder

 

Vice-Chairman, Chief Financial Officer,

 

April 17, 2017

Quentin Ponder

 

Treasurer and director (Principal Financial and Accounting Officer)

 

/s/ Judson Bibb

Vice-President, Secretary and director

April 17, 2017

Judson Bibb

 

/s/ Donald Bowman

Director

April 17, 2017

Donald Bowman

/s/ Christopher McKee

Director

April 17, 2017

Christopher McKee

/s/ Richard Schul

Director

April 17, 2017

Richard Schul

/s/ Daniel Ustian

Director

April 17, 2017

Daniel Ustian

 

 

51

 

EXHIBIT 10.63

 

SPIRIT BEAR LIMITED

1470 First Avenue New York,
New York 10075

 

November 4, 2016

 

Mr. Timothy Hassett, CEO
Cool Technologies, Inc.

8875 Hidden River Parkway – Suite 300
Tampa, FL 33637

 

Re: Spirit Bear and Lorenzo Warrants and S-1

 

Dear Tim:

 

This letter shall serve to confirm that Cool Technologies, Inc., and Spirit Bear Limited agree as follows:

 

 

1. Cool Technologies, Inc. confirms that the terms of the February 2016 Waiver of Performance and Second Amendment to Settlement Agreement between Cool Tech and Spirit Bear that (1) extends the expiration date of the six million (6,000,000) warrants owned by Spirit Bear and by Leonora Lorenzo (the “SBL Warrants”) from January 29, 2017, until January 29, 2020, and (2) reduces the strike price of the SBL Warrants from .25/share to .10/share, will remain in effect even if the Bailey Kennedy matter, as provided for in the February 15, 2016, Conditions Agreement, shall not be resolved until after January 29, 2017.

 

 

 

 

2. Spirit Bear Limited agrees that, having received a Unanimous Written Consent confirming the above, signed by all the directors of Cool Technologies, Inc., it consents to the withdrawal of the S-1 currently pending before the United States Securities Exchange Commission pertaining to the proposed registration of common shares underlying preferred shares owned by Spirit Bear Limited and of common shares underlying warrants owned by Spirit Bear Limited and by Leonora Lorenzo.

 

 

  Sincerely,

SPIRIT BEAR LIMITED

       
By: /s/ Jay Palmer

 

Name:

Jay A. Palmer  
  its: President  

 

 

AFFIRMED AND AGREED TO:
COOL TECHNOLOGIES, INC.
     
By: /s/ Timothy Hassett

Name:

Timothy Hassett  
its: CEO  

 

EXHIBIT 10.64

 

AGREEMENT OF PRINCIPAL TERMS

 

This Agreement of Principal Terms is entered into this 21st day of February 2017 between Craftsman Industries, Inc. ("Craftsman Industries"), an S-corporation whose principal place of business is 3101 Elm Point Industrial Dr., St. Charles MO 63301 and Cool Technologies , Inc. ("CoolTech"), a Nevada corporation having a principal place of business at 8875 Hidden River Parkway, Suite 300, Tampa, Florida 33637 Craftsman Industries and CoolTech are sometimes referred to individually as a "party" and jointly as "parties").

 

WHEREAS

 

(a) CoolTech is an innovator, developer and manufacturer via outsource partners of Thermal Technologies and Mobile Generation products. When the technologies are fitted onto a Class 2 to Class 8 style vehicle, they can be utilized to produce mobile power outputs equal to or better than that of tow behind generators or stationary backup generators. These technologies produce output power in kVA at a 50% reduction in weight of tow behind generators from the vehicle engine or any other onboard power source such as batteries, solar, CNG, LNG and fuel cell.

 

(b) Craftsman Industries is the market leader in design, engineering, and production for Marketing Vehicles and Industrial Mobile Solutions..

 

(c) Craftsman Industries has entered into a full Non-Disclosure Agreement with CoolTech dated the 17th day of January 2017 ("Non-Disclosure Agreement") and is fully bound by the terms and conditions set forth in that Agreement.

 

(d) CoolTech wishes to enter into this Agreement and assist Craftsman Industries in reducing Craftsman total cost to produce its products as well as expanding and developing Craftsman Industries's customer base with CoolTech's patented and proprietary Mobile Generation technology.

 

(e) To help further discussions and co-operation, the parties have agreed to the following principal terms.

 

NOW, THEREFORE, the parties hereto agree, as follows:

 

1. Representations: Each of Craftsman Industries and CoolTech hereby warrants and represents to the other, as follows:

 

(a) that it is a legal person validly existing in its jurisdiction of establishment;

 

(b) that it has the full power and authority to enter into this Agreement and perform its contractual obligations and that its representative who is signing this Agreement has been authorized to do so pursuant to a valid power of attorney or board of directors' resolution.

 

 
1
 
 

 

2. CoolTech will furnish Craftsman Industries with one (1) MG30 prototype fitted onto a Class 3 to Class 5 truck within 60/90 business days of the signing of this Agreement. Craftsman Industries will have the use of the prototype for a period of 30/60 days ("Test Period").

 

(a) During the Test Period, CoolTech will provide technical assistance to Craftsman Industries to test the prototype and to meet the technical criteria established by Craftsman Industries and CoolTech, jointly.

 

(b) If the prototype MG30 does not meet the mutually agreed to specified technical criteria and cost out, at the end of the Test Period, Craftsman Industries shall return the Kit and or Ford 350 truck and the MG30 prototype and all confidential technology, data and know-how shall be either destroyed or kept confidential in accordance with the terms of the Non-Disclosure Agreement.

 

(c) Upon achieving the mutually agreed technical criteria in paragraph (b) Craftsmen Industries shall offer the CoolTech solution to its current and future customer base where applicable. Craftsmen industries shall be represented by both companies as a primary uplift and integration center for Cool Technologies, and their customers.

 

3. During the period that CoolTech is working with Craftsman Industries and providing it with trade secrets, technical and other assistance for the development of Mobile Generation systems, Craftsman Industries, its officers, directors and employees shall not, directly or indirectly, work with any competitor of CoolTech.

 

4. Either party may cancel this agreement with twelve months' notice. Both parties will remain bound by the NDA and confidentiality obligations associated with this agreement. Craftsmen Industries, Inc. agrees that it will not offer alternative power take off technologies of similar design on quotes that have included the CooITech product offerings. Craftsmen Industries, Inc. will be free to offer alternative similar technologies after termination of this agreement.

 

5. The Governing law for this Agreement of Principal Terms shall be that of the State of Nevada.


 

         

Signed on behalf of Craftsman Industries:

 

Signed on behalf of CoolTech:

 

 

 

 

 

 

By:

/s/ Mark Steele   By: /s/ Timothy Hassett  

Name:

Mark D. Steele   Name: Timothy J. Hassett  

Title:

President and Chief Executive Officer   Title:

Chief Executive Officer

 

 

 

 

2

 

EXHIBIT 10.65

 

SECURITIES PURCHASE AGREEMENT

 

This Securities Purchase Agreement (this “Agreement”) is dated as of March 14, 2017, between Cool Technologies, Inc. a Nevada corporation (the “Company”), and Bellridge Capital LP, a Delaware limited partnership (including its successors and assigns, a “Purchaser”).

 

WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an exemption from the registration requirements of Section 5 of the Securities Act contained in Section 4(a)(2) thereof and/or Rule 506(b) thereunder, the Company desires to issue and sell to Purchaser, Purchaser, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.

 

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and Purchaser agree as follows:

 

ARTICLE I.
DEFINITIONS

 

1.1 Definitions. In addition to the words and terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:

 

“Acquiring Person” shall have the meaning ascribed to such term in Section 4.7. “Action” shall have the meaning ascribed to such term in Section 3.1(j).

 

“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.

 

“Board of Directors” means the board of directors of the Company.

 

“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.

 

“Closing Date” means any Trading Day after all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchaser’s obligations to pay the portion of the Subscription Amount due at such Closing Date and (ii) the Company’s obligations to deliver the Securities to be issued and sold at such Closing Date, in each case, have been satisfied or waived, or such other date that the parties agree upon.

 

“Common Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.

 

“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

 

“Company Counsel” means David Lubin & Associates, PLLC.

 

“Conversion Price” shall have the meaning set forth in the Notes.

 

“DTC” means the Depositary Trust Company

 

 
1
 
 

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“GAAP” shall have the meaning ascribed to such term in Section 3.1(h).

 

“Indebtedness” shall have the meaning ascribed to such term in Section 3.1(x).

 

“Intellectual Property” means all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all U.S. and foreign patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, brand names, certification marks, trade dress, logos, trade names, domain names, assumed names and corporate names, together with all colorable imitations thereof, and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all trade secrets under applicable state Laws and the common Law and know-how (including formulas, techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (e) all computer software (including source code, object code, diagrams, data and related documentation), and (f) all copies and tangible embodiments of the foregoing (in whatever form or medium).

 

“Intellectual Property Agreement has the meaning set forth in Section 3.1(o).

 

“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.

 

“Material Adverse Effect” means: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, in the long term or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document; provided, however, that none of the following shall be taken into account in determining whether there has been, or could be, a Material Adverse Effect: (a) any adverse change, event, development, or effect (whether short-term or long-term) arising from or relating to (1) general business or economic conditions, including such conditions related to the business of the Company and its Subsidiaries, (2) any national or international political or social conditions, (3) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (4) changes in GAAP, (5) changes in laws, rules, regulations, orders, or other binding directives issued by any governmental entity, or (6) the taking of any action contemplated by any Transaction Document, (b) any failure to meet a forecast (whether internal or published) of revenue, earnings, cash flow, or other data for any period or any change in such a forecast, and (c) any existing event, occurrence, or circumstance with respect to which a Purchaser has knowledge as of the date hereof.

 

“Material Permits” shall have the meaning ascribed to such term in Section 3.1(m).

 

“Notes” mean the 5% Convertible Note issued to the Purchaser, in the form of Exhibit A attached hereto. The principal amount due on the Notes shall be payable one year from the issuance date of the Note subject to the right of the Company to prepay the Note as set forth in the Note.

 

“Permitted Liens” shall have the meaning set forth in the Notes.

 

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

 

“Pre-Notice” shall have the meaning ascribed to such term in Section 4.13(a).

 

 
2
 
 

 

“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.

 

“Purchaser Party” shall have the meaning ascribed to such term in Section 4.10. “Registration Statement” shall have the meaning ascribed to such term in Section 4.3(a). “Registrable Securities” shall have the meaning ascribed to such term in Section 4.3(a).

 

“Regulation FD” means Regulation FD promulgated by the SEC pursuant to the Exchange Act, as such Regulation may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such Regulation.

 

“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).

 

“Required Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future pursuant to the Transaction Documents, including any Shares issuable upon conversion of the Notes ignoring any exercise limits set forth therein.

 

“Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such Rule.

 

“SEC” means the United States Securities and Exchange Commission.

 

“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(h).

 

“Securities” means the Notes, the Shares and Commitment Shares.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Shares” means the Common Stock issuable upon conversion of the Notes.

 

“Subscription Amount” means, the aggregate amount to be paid by the Purchaser for the Notes purchased hereunder” in United States dollars and in immediately available funds.

 

“Subsidiary” means with respect to any entity at any date, any direct or indirect corporation, limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity of which (A) more than 30% of (i) the outstanding capital stock having (in the absence of contingencies) ordinary voting power to elect a majority of the board of directors or other managing body of such entity, (ii) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (iii) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such entity, or (B) is under the actual control of the Company.

 

 
3
 
 

  

“Trading Day” means a day on which the principal Trading Market is open for trading.

 

“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, the OTCQB or the OTCQX (or any successors to any of the foregoing).

 

“Transaction Documents” means this Agreement, the Notes, and any other documents or agreements executed in connection with the transactions contemplated hereunder.


“Transfer Agent” means Manhattan Transfer Register Company, the current transfer agent of the Company, with a mailing address of 531 Cardens Court, Erie, Colorado 80516 and any successor transfer agent of the Company.

 

ARTICLE II.
PURCHASE AND SALE

 

2.1 Closing . On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchaser agrees to purchase, for a purchase price of $75,000 $78,750 in principal amount of the Note on the date hereof.

 

The Purchaser shall deliver to the Company, via wire transfer, immediately available funds equal to its Subscription Amount and the Company shall deliver to the Purchaser its Note, as set forth in Section 2.2, and the Company and the Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the conditions set forth in Sections 2.2 and 2.3, the initial Closing shall occur at the offices of Sichenzia Ross Friedman Ference or such other location as the parties shall mutually agree.

 

2.2 Deliveries .

 

(a) On or prior to the initial Closing Date, the Company shall deliver or cause to be delivered to Purchaser the following:

 

(i) this Agreement duly executed by the Company; and

 

(ii) an originally executed Note registered in the name of Purchaser in the principal amount of $75,000(iii) a irrevocable transfer agent letter for the issuance of 200,000 shares of Common Stock (“Commitment Shares”) to the Purchaser.


(b) On or prior to the Closing Date, Purchaser shall deliver or cause to be delivered to the Company the following:

 

(i) this Agreement duly executed by such Purchaser; and

 

(ii) $75,000 representing the purchase price of the Note subject to the closing by wire transfer pursuant to the wire instructions provide by the Company to the Purchaser.

 

2.3 Closing Conditions .

 

(a) The obligations of the Company hereunder in connection with the closing are subject to the following conditions being met:

 

(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on a Closing Date of the representations and warranties of the Purchaser contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);

 

(ii) all obligations, covenants and agreements of Purchaser required to be performed at or prior to a Closing Date shall have been performed; and

 

(iii) the delivery by Purchaser of the items set forth in Section 2.2 of this Agreement.

 

 
4
 
 

 

(b) The obligation of the Purchaser hereunder in connection with the closing are subject to the following conditions being met:

 

(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on a Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);

 

(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to an applicable Closing Date shall have been performed;

 

(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
 

(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;


(v) from the date hereof to a Closing Date, trading in the Common Stock shall not have been suspended by the SEC or the Company’s principal Trading Market, and, at any time prior to a Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Purchaser, makes it impracticable or inadvisable to purchase the Securities at on the Closing Date.

 

ARTICLE III.
REPRESENTATIONS AND WARRANTIES

 

3.1 Representations and Warranties of the Company . Except as otherwise disclosed on a Disclosure Schedule, the Company hereby represents and warrants to each Purchaser:

 

(a) Subsidiaries . All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.

 

(b) Organization and Qualification . The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in a Material Adverse Effect and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.

 

(c) Authorization; Enforcement . The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

 

 
5
 
 

 

(d) No Conflicts . The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary (other than as provided in the Transaction Documents), or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as would not have or reasonably be expected to result in a Material Adverse Effect.

 

(e) Filings, Consents and Approvals . Except as set forth on Schedule 3.1(e), the Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant to Section 4.6 of this Agreement, (ii) application(s) to each applicable Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby, (iii) the Registration Statement and (iv) such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).

 

(f) Issuance of the Securities . The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Shares, when issued upon conversion of the Notes, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. No later than April 15, 2017, the Company will have reserved from its duly authorized capital stock a number of shares of Common Stock issuable pursuant to the Notes equal to the amount set forth in Section 4.11.

 

(g) Capitalization . The capitalization of the Company is as set forth on Schedule 3.1(g). The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.

 

 
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(h) SEC Reports; Financial Statements . The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing filed materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in accordance with GAAP in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.

 

(i) Material Changes; Undisclosed Events, Liabilities or Developments . Since the date of the latest audited financial statements included within the SEC Reports, (i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the SEC, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders (other than as required pursuant to the terms of any of its securities outstanding as of the date hereof) or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) except as set forth in the SEC Reports, the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing stock or option plans duly adopted for such purpose or upon approval by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non- employee directors established for such purpose for services rendered to the Company. The Company does not have pending before the SEC any request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement or as set forth on Schedule 3.1(i), no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.

 

 
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(j) Litigation . Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the issuance of the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof (in such capacity), is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of the Company. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.

 

(k) Compliance . Except as set forth on Schedule 3.1(k), neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, occupational health and safety, product quality and safety and employment and labor matters, except in each case of clauses (i), (ii), and (iii), as would not have or reasonably be expected to result in a Material Adverse Effect.

 

(l) Environmental Laws . The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (vi) are in compliance with all terms and conditions of any such permit, license or approval where, in each clause (i), (ii) and (iii), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(m) Regulatory Permits . The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit.

 

(n) Title to Assets . The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Permitted Liens. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.

 

 
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(o) Intellectual Property .

 

(i) The Company owns or possesses or has the right to use pursuant to a valid and enforceable written license, sublicense, agreement, or permission all Intellectual Property necessary for the operation of the business of the Company as presently conducted. The Company has made available to the Purchaser a true and complete copy of each such written license, sublicense, agreement or permission.

 

(ii) To the knowledge of the Company, the Intellectual Property does not interfere with, infringe upon, misappropriate, or otherwise come into conflict with, any Intellectual Property rights of third parties, and the Company has no Knowledge that facts exist which indicate a likelihood of the foregoing. The Company has not received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or conflict (including any claim that the Company must license or refrain from using any Intellectual Property rights of any third party). To the Knowledge of the Company, no third party has interfered with, infringed upon, misappropriated, or otherwise come into conflict with, any Intellectual Property rights of the Company.

 

(iii) The Company has no pending patent applications or applications for registration that either entity has made with respect to any Intellectual Property. Schedule 3.1(o) identifies each license, sublicense, agreement, or other permission that the Company has granted to any third party with respect to any of such Intellectual Property (together with any exceptions). The Company has made available to the Purchaser correct and complete copies of all such licenses, sublicenses, agreements, and permissions (as amended to date) (“Intellectual Property Agreements”). Schedule 3.1(o) also identifies each registered and unregistered trademark, service mark, trade name, corporate name, URLs or Internet domain name used by the Company in connection with its business and which is not licensed from a third party. With respect to each item of Intellectual Property required to be identified in Schedule 3.1(o):

 

 

(A)

The Company owns and possesses all right, title, and interest in and to the item, free and clear of any Lien, license, or other restriction or limitation regarding use or disclosure;

 

 

 

 

(B)

The item is not subject to any outstanding injunction, judgment, order, decree, ruling, or charge;

 

 

 

 

(C)

No Action, claim, or demand is pending or, to the knowledge of the Company, is threatened that challenges the legality, validity, enforceability, use, or ownership by the Company; and

 

 

 

 

(D)

The Company has not agreed to indemnify any Person for or against any interference, infringement, misappropriation, or other conflict with respect to the item.

  

(iv) Schedule 3.1(o)(iv) identifies each item of Intellectual Property that any third party owns and that the Company uses pursuant to license, sublicense, agreement, or permission, excluding off- the-shelf software purchased or licensed by the Company. The Company has made available to the Purchaser correct and complete copies of all such licenses, sublicenses, agreements, and permissions (each as amended to date) (each, a “Licensed Intellectual Property Agreement”). With respect to each Licensed Intellectual Property Agreement:

 

 

(A)

The Licensed Intellectual Property Agreement is legal, valid, binding, enforceable, and in full force and effect;

 

 

 

 

(B)

The Company is not in breach or default, and no event has occurred that with notice or lapse of time would constitute the Company’s breach or default or permit the counterparty rights to termination, modification, or acceleration thereunder, which as to any such breach, default or event could have a Material Adverse Effect on the Company;

 

 

 

 

(C)

No party to such Licensed Intellectual Property Agreement has repudiated any provision thereof;

 

 

 

 

(D)

Except as set forth in such Licensed Intellectual Property Agreement, the Company has not received written or verbal notice or otherwise has Knowledge that the underlying item of Intellectual Property is subject to any outstanding injunction, judgment, order, decree, ruling, or charge; and

 

 

 

 

(E)  

Except as set forth on Schedule 3.1(o)(iv), the Company has not granted any sublicense or similar right with respect to the license, sublicense, agreement, or permission.

 

 
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(v) Each Person who participated in the creation, conception, invention or development of the Intellectual Property currently used in the business of the Company (each, a “Developer”) which is not licensed from third parties has executed one or more agreements containing industry standard confidentiality, work for hire and assignment provisions, whereby the Developer has assigned to the Company all copyrights, patent rights, Intellectual Property rights and other rights in the Intellectual Property, including all rights in the Intellectual Property that existed prior to the assignment of rights by such Person to the Company. The Company has made available to the Purchaser copies of any such agreements and assignments from each such Developer (collectively, the “Developer Agreements”).

 

(vi) Each Developer has signed a non-disclosure agreement with the Company. The Company has made available to the Purchaser copies any such non-disclosure agreements from each such Person, if any.

 

(p) Insurance . The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary for entities with financial positions similar to the Company in the businesses in which the Company and the Subsidiaries are engaged. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.

 

(q) Transactions With Affiliates and Employees . None of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company, (iii) as disclosed in the SEC Reports and (iv) other employee benefits, including stock option agreements under any stock option plan of the Company.

 

(r) Certain Fees . No brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents.

 

(s) Investment Company . The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

(t) Registration Rights . Other than as set forth on Schedule 3.1(t) Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.

 

 
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(u) Application of Takeover Protections . The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to the Purchaser as a result of the Purchaser and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of the Securities and the Purchaser’s ownership of the Securities.

 

(v) Disclosure . Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided the Purchaser or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the SEC Reports. The Company understands and confirms that the Purchaser will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchaser regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the schedules to this Agreement, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The Company acknowledges and agrees that Purchaser has not made and does not make any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.

 

(w) No Integrated Offering . Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.

 

(x) Solvency . Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. As of the date hereof, the Company has no intention to file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. Schedule 3.1 (x) s sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $1,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $10,000 due under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness. Other than as set forth on Schedule 3.1(x), there are no existing Liens or security interest on any of the Company’s assets or any Subsidiary of the Company.

 

 
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(y) Tax Status . Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim.

 

(z) No Disqualification Events . With respect to the Securities to be offered and sold hereunder in reliance on Rule 506(b) under the Securities Act, neither the Company nor, to the knowledge of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, or any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has made available to the Purchaser a copy of any disclosures provided thereunder.

 

(aa) Foreign Corrupt Practices . Neither the Company, nor to the knowledge of the Company, any agent or other person acting on behalf of the Company, has: (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company (or made by any person acting on its behalf of which the Company is aware) which is in violation of law or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.

 

(bb) No Disagreements with Accountants and Lawyers; Outstanding SEC Comments . There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is or immediately after the Closing Date will be current with respect to any fees owed to its accountants which could affect the Company's ability to perform any of its obligations under any of the Transaction Documents. Except as set forth on Schedule 3.1(bb),there are no unresolved comments or inquiries received by the Company or its Affiliates from the SEC which remain unresolved as of the date hereof.

 

(cc) Acknowledgment Regarding Purchaser's Purchase of Securities . The Company acknowledges and agrees that the Purchaser is acting solely in the capacity of an arm's length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by the Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchaser's purchase of the Securities. The Company further represents to the Purchaser that the Company's decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.

 

 
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3.2 Representations and Warranties of the Purchaser . Purchaser, hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein):

 

(a) Organization; Authority . Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and performance by such Purchaser of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

 

(b) Understandings or Arrangements . Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution of such Securities (this representation and warranty not limiting such Purchaser’s right to sell the Securities in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business. Such Purchaser understands that the Securities are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is acquiring such Securities as principal for its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting such Purchaser’s right to sell such Securities in compliance with applicable federal and state securities laws).

 

(c) Purchaser Status . At the time Purchaser was offered the Securities, it was, and as of the date hereof it is, an “accredited investor” within the meaning of Rule 501 under the Securities Act.

 

(d) Experience of Such Purchaser . Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.

 

(e) Access to Information . Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded, subject to Regulation FD, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the Company nor anyone else has provided such Purchaser with any information or advice with respect to the Securities nor is such information or advice necessary or desired.

 

(f) Confidentiality . Other than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction).

 

 
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ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES


4.1 Increase of Authorized Stock . The Company shall have increased it’s the number of shares of common stock that it is authorized to issue to at least shares of Common Stock by April 15, 2017 (the “Authorized Share Increase”).

 

4.2 Removal of Legends .

 

(a) The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or Rule 144, (provided that the Purchaser provides the Company with reasonable assurances (in the form of seller and, if applicable, broker representation letters) that the Securities may be sold pursuant to such rule), to the Company or to an Affiliate of a Purchaser, or in connection with a pledge as contemplated in Section 4.2(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Security. The Company shall cause its counsel at the Company’s cost to prepare any required legal opinion (subject to the Purchaser’s compliance with applicable securities rules and regulations) for issuance and/or sale of the shares issuable upon conversion of the Note.

 

(b) The Purchaser agrees to the imprinting, so long as is required by this Section 4.2, of a legend on any of the Securities in substantially the following form:

 

NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.

 

The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge, but Purchaser’s transferee shall promptly notify the Company of any subsequent transfer or foreclosure of such Securities. The Company will not be responsible for any pledge relating to, or the grant of any security interest in, any Securities or for any agreement, understanding, or arrangement between any Purchaser and its pledgee or secured party. At the Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares may reasonably request in connection with a pledge or transfer of the Shares.

 

 
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(c) The legend set forth in Section 4.2(b) shall be removed and the Company shall issue a certificate without such legend or any other legend to the holder of the applicable Securities upon which it is stamped or issue to such holder by electronic delivery at the applicable balance account at the DTC, if: (i) a registration statement covering the resale of such Security is effective under the Securities Act (provided that, if the Purchaser is selling pursuant to the effective registration statement registering the Securities for resale, the holder agrees to only sell such Securities during such time that such registration statement is effective and not withdrawn or suspended, and only as permitted by such registration statement), (ii) such Shares are sold pursuant to Rule 144 (if the seller is not an Affiliate of the Company), (iii) such Shares are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Shares without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Section 4(a)(1), judicial interpretations and pronouncements issued by the staff of the SEC). Any fees associated with the removal of such legend shall be borne by the Company. The Company agrees that following such time as such legend is no longer required under this Section 4.2(c), it will, no later than three Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of (x) a legended certificate representing Shares (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer), (y) a notice of conversion pursuant the terms of a Note to effect the conversion of such Note in accordance with its terms, and, in each case, an opinion of counsel to the extent required by Section 4.2(a) (such third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to the Purchaser or the transferee of the Purchaser, as applicable, a certificate representing such Securities that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4.2. Certificates for Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the DTC system as directed by such Purchaser.

 

4.3 Registration Rights .

 

(a) The Company include shares of Common Stock issuable upon conversion of the Note shall be included on Registration Statement Number (the “Registrable Securities”).

 

(b) Purchaser hereunder acknowledges its primary responsibilities under the Securities Act and accordingly will not sell or otherwise transfer the Securities or any interest therein without complying with the requirements of the Securities Act and applicable law. While the Registration Statement remains effective, Purchaser hereunder may sell its Registrable Securities in accordance with the plan of distribution contained in the Registration Statement and if it does so it will comply therewith and with the related prospectus delivery requirements unless an exemption therefrom is available. Purchaser shall, if notified by the Company in writing at any time that the Registration Statement is not effective or that the prospectus included in such Registration Statement no longer complies with the requirements of Section 10 of the Securities Act, refrain from selling such Shares until such time as the Company notifies the Purchaser in writing that the Registration Statement is effective or the prospectus is compliant with Section 10 of the Securities Act, unless such Purchaser is able to, and does, sell such Registrable Securities pursuant to an available exemption from the registration requirements of Section 5 of the Securities Act. Purchaser agrees to promptly furnish to the Company such information that the Company reasonably requires from that Purchaser for use in the Registration Statement and consents to the inclusion of such information in the Registration Statement.

 

4.4 Furnishing of Information .

 

(a) Until the earliest of the time that Purchaser does not own any Securities the Company shall timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act. During such period, if the Company is not required to file reports pursuant to the Exchange Act, it will prepare and furnish to the Purchaser and make publicly available in accordance with Rule 144(c) such information as is required for the Purchaser to sell the Securities under Rule 144.

 

 
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(b) At any time during the period commencing on the date hereof and ending at such time that Purchaser does not own any Securities or such Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) for a period of more than 30 consecutive days or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) for a period of more than 30 consecutive days (a “Public Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Shares, an amount in cash equal to five (5%) of the aggregate Conversion Price of such Purchaser’s Note(s) on the day of a Public Information Failure and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public information is no longer required for the Purchaser to transfer the Shares and/or pursuant to Rule 144. The payments to which a Purchaser shall be entitled pursuant to this Section 4.4(b) are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.

 

4.5 Integration . The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2(a)(1) of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.

 

4.6 Securities Laws Disclosure; Publicity . The Company shall file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the SEC within four trading days of Purchaser’s purchase of each Note pursuant to this Agreement. From and after the issuance of such press release, the Company represents to the Purchaser that it shall have publicly disclosed all material, non-public information delivered to any of the Purchaser by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchaser or any of their Affiliates on the other hand, shall terminate. The Company and Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of Purchaser, or include the name of any Purchaser in any filing with the SEC or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the SEC and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchaser with prior notice of such disclosure permitted under this clause (b).

 

4.7 Shareholder Rights Plan . No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchaser.

 

 
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4.8 Non-Public Information . Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be disclosed pursuant to Section 4.6, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the SEC pursuant to a Current Report on Form 8-K. The Company understands and confirms that Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.

 

4.9 Use of Proceeds . The Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes

 

4.10 Indemnification of Purchaser . Subject to the provisions of this Section 4.10, the Company will indemnify and hold Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling Persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents, (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance) or (c) any untrue or alleged untrue statement of a material fact contained in any registration statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents., or gives rise to a Purchaser’s indemnification obligations under Section 4.3(c).The indemnification required by this Section 4.10 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.

 

 
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4.11 Reservation of Common Stock . Subsequent to the effectiveness the Authorized Share Increase but in any event no later than April 15, 2017, the Company will have reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, shares of Common Stock, subject to adjustment for stock splits and dividends, combinations and similar events, an amount at least equal to the greater of 1,000,000 shares of Common Stock (which amount will not be adjusted for reverse splits) or 300% of the Required Minimum for the sole purpose of issuance upon conversion of the Note free from preemptive rights or any other actual contingent purchase rights of Persons other than the Purchaser not less than such aggregate number of shares of the Common Stock as shall (subject to the terms and conditions set forth in the Purchase Agreement) be issuable (taking into account the adjustments and restrictions of Section 5 of the Note) upon the conversion of the then outstanding principal amount of the Note and payment of interest under the Note. The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable. The Company shall not enter into any agreement or file any amendment to its Articles of Incorporation (including the filing of a Certificate of Designation) which conflicts with this Section 4.11 while the Notes remain outstanding. No later than January 15, 2015, the Company shall have sent the Transfer Agent the irrevocable letter attached hereto as Exhibit B.

 

4.12 Trading of Common Stock . The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common Stock on the Trading Market on which it is currently listed or quoted. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all of the Shares, and will take such other action as is necessary to cause all of the Shares to be listed or quoted on such other Trading Market as promptly as possible.

 

4.13 Reserved .

 

4.14 Reserved .

 

4.15 Form D; Blue Sky Filings . The Company agrees to timely file a Form D with respect to the Securities as required under Regulation D and to provide a copy thereof, promptly to the Purchaser. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Securities for sale to the Purchaser of the Notes under applicable securities of “Blue Sky” laws of the states of the United States and shall provide evidence of such actions to the Purchaser.

 

4.16 Confidentiality . Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules. Notwithstanding the foregoing but subject to Section 4.22, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.6. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

 

4.17 Reserved

 

4.18 Conversion Procedures . The forms of Conversion Notice included in the Notes set forth the totality of the procedures required of the Purchaser in order to convert the Notes. No additional legal opinion, other information or instructions shall be required of the Purchaser to convert their Notes. Without limiting the preceding sentences, no ink-original Conversion Notice shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Conversion Notice or form be required in order to convert the Notes. The Company shall honor conversions of the Notes and shall deliver Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.

 

 
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4.19 Reserved .

 

4.20 Maintenance of Property . The Company shall use its commercially reasonable efforts to keep all of its property, which is necessary or useful to the conduct of its business, in good working order and condition, ordinary wear and tear excepted.

 

4.21 Preservation of Corporate Existence . The Company shall preserve and maintain its corporate existence, rights, privileges and franchises in the jurisdiction of its incorporation, and qualify and remain qualified, as a foreign corporation in each jurisdiction in which such qualification is necessary in view of its business or operations and where the failure to qualify or remain qualified might reasonably have a Material Adverse Effect.

 

4.22 No Short Sales . The Purchaser has and shall not, directly or indirectly, his, her or itself, through related parties, affiliates or otherwise, (i) sell "short" or "short against the box" (as those terms are generally understood) any equity security of the Company or (ii) otherwise engage in any transaction that involves hedging of the Purchaser's position in any equity security of the Company, until the later of (i) the date the Notes owned by the Purchaser is no longer owned by the Purchaser, or (ii) the Maturity Date (as such term is defined in the Debentures) and the Conversion Date.

 

ARTICLE V.
MISCELLANEOUS

 

5.1 Termination . This Agreement may be terminated by Purchaser by written notice to the Company parties, if the Closing Date has not been consummated on or before March 31, 2017.

 

5.2 Fees and Expenses . Except as expressly set forth below and in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same- day processing of any instruction letter delivered by the Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchaser..

 

5.3 Entire Agreement . The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.

 

5.4 Notices . Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered via email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via email to the email address set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. , provided notice may be sent to such addresses or in such manner as the parties may subsequently agree to in writing. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the SEC pursuant to a Current Report on Form 8-K.

 

5.5 Amendments; Waivers . No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchaser who hold at least a majority in interest of the then-outstanding Notes or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any amendment effected in accordance with accordance with this Section 5.5 shall be binding upon Purchaser and holder of Securities and the Company.

 

 
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5.6 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of Purchaser then holding outstanding Notes (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchaser.”

 

5.7 No Third-Party Beneficiaries . This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Sections 4.3 and 4.10 and this Section 5.7.

 

5.8 Governing Law; Exclusive Jurisdiction . All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company elsewhere in this Agreement, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.

 

5.9 Survival . The representations and warranties contained herein shall survive the Closing Date and the delivery of the Securities.

 

5.10 Execution . This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

 

5.11 Severability . If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired, or invalidated, as long as the essential terms and conditions of this Note for each party remain valid, binding, and enforceable. The parties shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.

 

 
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5.12 Remedies . In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchaser and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate.

 

5.13 Saturdays, Sundays, Holidays, etc . If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.

 

5.14 Construction . The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.

 

5.15 WAIVER OF JURY TRIAL . IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.

 

(Signature Pages Follow)

 

 
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 

 

COOL TECHNOLOGIES, INC.

 

Address for Notice:

 

 

 

8875 Hidden River Parkway, Suite 300

 

 

 

Tampa, FL 33637

By:

/s/ Timothy Hassett

 

Email: timhasseft@sbcglobal.net

Name:

Timothy Hassett

 

Title:

Chairman and Chief Executive Officer

 

 

 

 

 

 

Address for Notice: Email address for Notice

 

 

 

With a copy to (which shall not constitute notice):

 

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]

 

 
22
 
 

 

[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]

 

IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 

Name of Purchaser: Bellridge Capital LP.

 

Signature of Authorized Signatory of Purchaser : /s/ Robert Klimov

 

Name of Authorized Signatory: Robert Klimov

 

Title of Authorized Signatory: Managing Partner

 

Email Address of Authorized Signatory: robertk@gmail.com

 

Facsimile Number of Authorized Signatory: ________________

 

Address for Notice to Purchaser:

 

Address for Delivery of Securities to Purchaser (if not same as address for notice):

 

EIN Number: 81-3006329

 

[SIGNATURE PAGES CONTINUE]

 

 
23
 
 

 

DISCLOSURE SCHEDULE

 

This Disclosure Schedule (the “Disclosure Schedule”) is provided by Cool Technologies, Inc. (the “Company”), pursuant to the Securities Purchase Agreement (the “Agreement”), dated as of December 6, 2016, between the Company and Bellridge Capital, LP. (“Purchaser”)

 

Capitalized terms used in this Disclosure Schedule and not defined herein shall have the same meanings ascribed thereto in the Agreement.

 

Each representation and warranty of the Company in the Agreement shall be subject to: (i) any exception or disclosure set forth in the section of this Disclosure Schedule corresponding to the section in Article III of the Agreement in which such representation or warranty appears; (ii) any exception or disclosure cross-referenced in such part of this Disclosure Schedule by reference to another section of this Disclosure Schedule; and (iii) any exception or disclosure set forth in any other section of this Disclosure Schedule, if it is readily apparent on the face of the disclosure that it is applicable to such representation or warranty.

 

Matters, items and documents set forth in this Disclosure Schedule are not necessarily limited to matters, items and documents required by the Agreement to be set forth in this Disclosure Schedule. Such additional matters, items and documents are set forth for informational purposes only and do not necessarily include other matters, items or documents of similar nature. Matters, items and documents set forth in this Disclosure Schedule in response to representations and warranties in the Agreement that are qualified by “materiality,” “material adverse effect” or similar qualifications are not necessarily material. Accordingly, no reference to or disclosure of any matter, item or document in this Disclosure Schedule shall: (i) be construed as an admission or indication that such matter, item or document is material, that such matter, item or document has had, or would reasonably be expected to result in, a Material Adverse Effect, or that such matter, item or document is required to be referred to or disclosed herein; or (ii) otherwise establish a standard of materiality.

 

No disclosure in this Disclosure Schedule relating to any breach or violation of any agreement, law or regulation shall be construed vis-a-vis any third party as an admission or indication that any such breach or violation exists or has actually occurred. No disclosure in this Disclosure Schedule shall be construed as an admission against interest by the Company to any third party regarding any matter whatsoever, including without limitation: (i) that any agreement, law or regulation has been breached or violated; or (ii) that any agreement or document is enforceable or currently in effect or that there are any obligations remaining to be performed or any rights that may be exercised under such agreement or document.

 

To the extent that any information included or referenced in this Disclosure Schedule is subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such information is not intended to, and shall not, waive or diminish in any way the confidentiality of such information or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All information included or referenced in this Disclosure Schedule or provided by the Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges and under the joint defense doctrine.

 

This Disclosure Schedule and the disclosures and information contained in or attached to this Disclosure Schedule: (i) are disclosed solely for the purposes of the Agreement, (ii) are intended only to disclose information pursuant to, or qualify and limit, the representations and warranties of Company contained in the Agreement, and (iii) shall not be deemed to expand the scope of such representations and warranties. Where a summary or description of a matter is included in this Disclosure Schedule, such summary or description is qualified by reference to the complete documents, but only if and to the extent that the relevant portions of the documents have been made available to the Purchaser.

 

The headings contained in this Disclosure Schedule are included for convenience only, and are not intended to limit the effect of the disclosures contained in this Disclosure Schedule or to expand the scope of the information required to be disclosed in this Disclosure Schedule. The contents of all schedules, annexes and attachments to this Disclosure Schedule are incorporated by reference in this Disclosure Schedule as though fully set forth in this Disclosure Schedule.

 

This Disclosure Schedule and the disclosures and information contained in or attached to this Disclosure Schedule are confidential information of the Company, subject to the terms of Section 4.16 of the Agreement.

 

 
24
 
 

 

SCHEDULE 3.1(a)

 

SUBSIDIARIES

 

Nameof subsidiary

 

Jurisdiction

 

Ownership
Percentage

 

Ultimate Power Truck, LLC

 

Florida

 

 

95 %

HPEV, Inc.

 

Delaware

 

 

100 %

 

 
25
 
 

 

SCHEDULE 3.1(e)

 

CONSENTS AND APPROVALS

 

1.

Securities Purchase Agreement with KHIC, Inc., dated August 24, 2016 [Section 1.c. which provides that the Note ranks senior to all Indebtedness and Section 7.i. which states that there is no Indebtedness which is “senior to or otherwise has rights or payment priority over the Note without prior written consent.”]

 

 

2.

Securities Purchase Agreement with Lucas Hoppel, dated November 9, 2016 [Section 1(b)(iii) provides that notification is required of any more favorable security or favorable terms granted]

 

 

3.

Securities Purchase Agreement with SBI Investments LLC dated December 2, 2015 [Section 4.15 provides that the Company cannot enter into any variable rate transaction]

 

 
26
 
 

 

SCHEDULE 3.1(g)

 

CAPITALIZATION

 

 

 

IssueDate

 

# Shares

 

 

 

 

 

 

George Tweddel

 

11/8/2011

 

 

150,000

 

 

$ 0.3300

 

 

$ 49,500

 

Lagoon Labs

 

3/23/2012

 

 

1,000,000

 

 

 

 

 

 

$ 0

 

Ted Kaminski

 

6/12/2012

 

 

10,000

 

 

$ 0.5000

 

 

$ 5,000

 

Wayne Wilcox

 

6/12/2012

 

 

26,666

 

 

 

 

 

 

$ 0

 

Mark Crone

 

2/27/2013

 

 

25,000

 

 

 

 

 

 

$ 0

 

Crone Law Group

 

2/27/2013

 

 

90,000

 

 

 

 

 

 

$ 0

 

Alex Bankhead

 

6/13/2013

 

 

750,000

 

 

$ 0.3330

 

 

$ 249,750

 

Monarch Bay Securities

 

7/23/2013

 

 

200,000

 

 

 

 

 

 

$ 0

 

John Carlson

 

7/3/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Bruce Bayless

 

9/20/2013

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

John Carlson

 

10/10/2013

 

 

388,889

 

 

$ 0.4500

 

 

$ 175,000

 

Gabriel Wright

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

David Geske

 

9/20/2013

 

 

225,000

 

 

$ 0.2300

 

 

$ 51,750

 

Bruce Jaeger

 

7/12/2013

 

 

50,000

 

 

 

 

 

 

$ 0

 

Al Carlson

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Loubet Family Trust

 

9/20/2013

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Frank Fakinos

 

9/20/2013

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Alvin Cohn

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Tracy Maddock

 

9/23/2013

 

 

166,666

 

 

$ 0.4500

 

 

$ 75,000

 

Bruce Bayless

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Tracy Maddock

 

9/20/2013

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

Bill Laske

 

9/20/2013

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

Derek Goulette

 

9/20/2013

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

George Selekman

 

9/20/2013

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

Glenn Hetzel

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

David Geske

 

9/20/2013

 

 

166,667

 

 

$ 0.4500

 

 

$ 75,000

 

John Carlson

 

8/12/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Alex Bankhead

 

8/14/2013

 

 

336,956

 

 

$ 0.3300

 

 

$ 111,195

 

Bruce Bayless

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

David Serepca

 

8/19/2013

 

 

48,328

 

 

 

 

 

 

$ 0

 

James Burke

 

9/20/2013

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

Donald Geske

 

9/20/2013

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

David Geske

 

10/8/2013

 

 

196,875

 

 

$ 0.2300

 

 

$ 45,281

 

Jame Ballidis

 

10/16/2013

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Robert Mercer

 

1/29/2014

 

 

166,667

 

 

$ 0.3000

 

 

$ 50,000

 

Robert English

 

1/29/2014

 

 

100,000

 

 

$ 0.3000

 

 

$ 30,000

 

Jeffrey Blume

 

1/29/2014

 

 

166,667

 

 

$ 0.5000

 

 

$ 83,334

 

William Hobi

 

1/29/2014

 

 

100,000

 

 

$ 0.3000

 

 

$ 30,000

 

Tom Jeffries

 

1/29/2014

 

 

125,000

 

 

$ 0.4000

 

 

$ 50,000

 

John Karns

 

1/29/2014

 

 

125,000

 

 

$ 0.4000

 

 

$ 50,000

 

James Burke

 

1/31/2014

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Rod Rickenbach

 

1/31/2014

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Dennis Franco

 

2/1/2014

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Don Evenson

 

2/5/2014

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Lincoln Park Capital Fund, LLC

 

2/5/2014

 

 

444,445

 

 

$ 0.4500

 

 

$ 200,000

 

Equitec

 

3/6/2014

 

 

44,445

 

 

$ 0.4500

 

 

$ 20,000

 

Cranshire Capital

 

3/6/2014

 

 

177,778

 

 

$ 0.4500

 

 

$ 80,000

 

Anne H. Ross

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Bard Fund

 

3/6/2014

 

 

200,000

 

 

$ 0.4500

 

 

$ 90,000

 

 

 
27
 
 

 

Bourquin Trust

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Dale Snavely Trust

 

3/6/2014

 

 

100,000

 

 

$ 0.4500

 

 

$ 45,000

 

Deb. Dewing Trust

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Mark, Katherine Dickson

 

3/6/2014

 

 

150,000

 

 

$ 0.4500

 

 

$ 67,500

 

Michael, Patricia Johnson

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Seville Enterprises

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Sydney Herman

 

3/6/2014

 

 

100,000

 

 

$ 0.4500

 

 

$ 45,000

 

Timothy Johnson

 

3/6/2014

 

 

150,000

 

 

$ 0.4500

 

 

$ 67,500

 

Edward Sellers, Susan Boyd

 

3/6/2014

 

 

150,000

 

 

$ 0.4500

 

 

$ 67,500

 

Underwood Trust

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Kellogg Trust

 

3/6/2014

 

 

200,000

 

 

$ 0.4500

 

 

$ 90,000

 

Leonard Herman Trust

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Jack Battalion

 

2/10/2014

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

Eduardo Lepe

 

2/10/2014

 

 

88,889

 

 

$ 0.4500

 

 

$ 40,000

 

Lori Lepe

 

2/14/2014

 

 

88,889

 

 

$ 0.4500

 

 

$ 40,000

 

William Laske

 

2/24/2014

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

Ace Equity Group

 

2/24/2014

 

 

100,000

 

 

$ 0.4500

 

 

$ 45,000

 

Sue Noyes

 

2/24/2014

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Sagiv Israeli

 

2/25/2014

 

 

418,333

 

 

$ 0.6000

 

 

$ 251,000

 

Dawn Contreras

 

2/25/2014

 

 

40,000

 

 

$ 0.4500

 

 

$ 18,000

 

Lincoln Park Capital Fund, LLC

 

2/25/2014

 

 

671,785

 

 

 

 

 

 

$ 0

 

Tennant Securities

 

2/27/2014

 

 

144,444

 

 

$ 0.4500

 

 

$ 65,000

 

Phillip Caramico

 

2/28/2014

 

 

133,334

 

 

$ 0.4500

 

 

$ 60,000

 

Alfred Cullere

 

2/28/2014

 

 

444,445

 

 

$ 0.4500

 

 

$ 200,000

 

Lorraine Kouvatsos

 

2/28/2014

 

 

40,000

 

 

$ 0.4500

 

 

$ 18,000

 

Jimmy Shao

 

2/28/2014

 

 

100,000

 

 

$ 0.4500

 

 

$ 45,000

 

Joseph Gomes

 

2/28/2014

 

 

333,333

 

 

$ 0.4500

 

 

$ 150,000

 

Irwin Schwartz

 

2/28/2014

 

 

112,000

 

 

$ 0.4500

 

 

$ 50,400

 

Trinity Outreach

 

2.24.2014

 

 

11,111

 

 

$ 0.4500

 

 

$ 5,000

 

Kristi Lefferts

 

2/24/2014

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

Stanley Kam

 

3/1/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Fortune Plus, Inc.

 

3/1/2014

 

 

666,666

 

 

$ 0.4500

 

 

$ 300,000

 

Lin Xiu Ying

 

3/8/2014

 

 

11,112

 

 

$ 0.4500

 

 

$ 5,000

 

Yeung Wang

 

3/8/2014

 

 

22,223

 

 

$ 0.4500

 

 

$ 10,000

 

Li Xin

 

3/8/2014

 

 

33,334

 

 

$ 0.4500

 

 

$ 15,000

 

Cai Zhi-Feng

 

3/8/2014

 

 

22,223

 

 

$ 0.4500

 

 

$ 10,000

 

Tommy Chang

 

3/8/2014

 

 

22,223

 

 

$ 0.4500

 

 

$ 10,000

 

Sze Ping Cheng

 

3/8/2014

 

 

33,334

 

 

$ 0.4500

 

 

$ 15,000

 

Gary Kong

 

3/8/2014

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

Lin Chi-Chu

 

3/8/2014

 

 

11,112

 

 

$ 0.4500

 

 

$ 5,000

 

Kam Chow Kong

 

3/8/2014

 

 

11,112

 

 

$ 0.4500

 

 

$ 5,000

 

Fia Lam

 

3/8/2014

 

 

11,112

 

 

$ 0.4500

 

 

$ 5,000

 

Avery Ellis LLC

 

3/11/2014

 

 

166,667

 

 

$ 0.6000

 

 

$ 100,000

 

David Serepca

 

3/14/2014

 

 

172,688

 

 

 

 

 

 

$ 0

 

Monarch Bay

 

3/14/2014

 

 

128,986

 

 

 

 

 

 

$ 0

 

 

David Serepca

 

3/18/2014

 

 

273,043

 

 

 

 

 

$ 0

 

Michael Kahn

 

3/28/2014

 

 

250,000

 

 

 

 

 

$ 0

 

Spirit Bear, Ltd

 

3/28/2014

 

 

500,000

 

 

 

 

 

$ 0

 

Bruce Jaeger

 

3/28/2014

 

 

1,200,000

 

 

 

 

 

$ 0

 

Tasman Corporation

 

4/1/2014

 

 

200,000

 

 

 

 

 

$ 0

 

Stacy Bankhead

 

4/16/2014

 

 

12,147

 

 

 

 

 

$ 0

 

Leonora Lorenzo

 

4/22/2014

 

 

500,000

 

 

 

 

 

$ 0

 

Sagiv Israeli

 

4/23/2014

 

 

195,000

 

 

 

 

 

$ 0

 

Laurel Brown

 

5/1/2014

 

 

40,441

 

 

 

 

 

$ 0

 

Robert Knoll

 

5/6/2014

 

 

81,055

 

 

 

 

 

$ 0

 

       
 
28
 
 

 

Elite Bay LLC

 

6/26/2014

 

 

60,000

 

 

$ 0.5500

 

 

$ 0

 

Sagiv Israeli

 

6/26/2014

 

 

250,000

 

 

$ 0.5500

 

 

$ 0

 

Spencer Brown

 

10/1/2014

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

Eric Brown

 

10/1/2014

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

Bill Sterba

 

10/1/2014

 

 

181,818

 

 

$ 0.5500

 

 

$ 100,000

 

Christopher J. Jones

 

10/1/2014

 

 

363,636

 

 

$ 0.5500

 

 

$ 200,000

 

Zach Johnson

 

10/1/2014

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

Nikola Zaric

 

 

 

 

16,667

 

 

$ 0.5500

 

 

$ 9,167

 

David Anthony

 

10/7/2014

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

Doug Rothschild

 

11/4/2014

 

 

454,545

 

 

$ 0.5500

 

 

$ 250,000

 

Michael Callans

 

11/6/2014

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

Tom Welch

 

10/1/2014

 

 

181,818

 

 

$ 0.5500

 

 

$ 100,000

 

Kenneth Stickney

 

3/27/2015

 

 

181,818

 

 

$ 0.5500

 

 

$ 100,000

 

Abdalla Bamashmus

 

3/27/2015

 

 

50,000

 

 

$ 0.5500

 

 

$ 27,500

 

Aldo Bonfiglio

 

3/27/2015

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

Lorraine Kouvatsos

 

3/27/2015

 

 

6,000

 

 

$ 0.5500

 

 

$ 3,300

 

Phillip Caramico

 

3/27/2015

 

 

18,182

 

 

$ 0.5500

 

 

$ 10,000

 

Linda Cullere

 

3/27/2015

 

 

54,546

 

 

$ 0.5500

 

 

$ 30,000

 

Frank Finetto

 

3/27/2015

 

 

36,364

 

 

$ 0.5500

 

 

$ 20,000

 

Guy Fava

 

3/27/2015

 

 

100,000

 

 

$ 0.5500

 

 

$ 55,000

 

Richard Marchesi

 

3/27/2015

 

 

81,818

 

 

$ 0.5500

 

 

$ 45,000

 

Roger Howells

 

3/27/2015

 

 

36,364

 

 

$ 0.5500

 

 

$ 20,000

 

Jennifer Esno

 

1/7/2016

 

 

27,273

 

 

$ 0.5500

 

 

$ 15,000

 

William Laske

 

3/27/2015

 

 

18,181

 

 

$ 0.5500

 

 

$ 10,000

 

Irwin Schwartz

 

3/27/2015

 

 

37,000

 

 

$ 0.5500

 

 

$ 20,350

 

Spirit Bear, Ltd

 

3/2/2015

 

 

288,968

 

 

 

 

 

 

$ 0

 

Elite Bay, LLc

 

3/24/2015

 

 

60,000

 

 

 

 

 

 

$ 0

 

Elite Bay, LLc

 

3/24/2015

 

 

60,000

 

 

 

 

 

 

$ 0

 

Carl Willey (Cornerstone)

 

5/7/2015

 

 

333,333

 

 

$ 0.5500

 

 

$ 183,333

 

Lincoln Park Capital Fund, LLC (A)

 

5/5/2015

 

 

555,556

 

 

$ 0.4500

 

 

$ 250,000

 

Christopher McKee

 

5/12/2015

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

D. Ustian

 

5/12/2015

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

JFS Investment s

 

5/5/2015

 

 

250,004

 

 

 

 

 

 

$ 0

 

Manufacturers Hanover

 

5/5/2015

 

 

500,006

 

 

 

 

 

 

$ 0

 

Garden State Securities

 

5/5/2015

 

 

250,003

 

 

 

 

 

 

$ 0

 

Abdalla Bamashmus

 

5/12/2015

 

 

66,666

 

 

$ 0.4500

 

 

$ 30,000

 

Anthony Hansel

 

5/12/2015

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

Robert Barnes

 

5/12/2015

 

 

22,222

 

 

$ 0.4500

 

 

$ 10,000

 

Scott Livingston

 

5/12/2015

 

 

22,222

 

 

$ 0.4500

 

 

$ 10,000

 

Bernard Marcus

 

5/12/2015

 

 

22,222

 

 

$ 0.4500

 

 

$ 10,000

 

Aldo Bonfiglio

 

5/26/2015

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

Glen Biener (aka GB Financial)

 

5/26/2015

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

Carl Willey

 

7/29/2015

 

 

142,857

 

 

$ 0.3500

 

 

$ 50,000

 

Abdalla Bamashmus

 

7/29/2015

 

 

62,500

 

 

$ 0.4000

 

 

$ 25,000

 

Garden State Securities

 

6/25/2015

 

 

50,001

 

 

 

 

 

 

$ 0

 

 

Daniel J. Walsh

 

6/25/2015

 

 

100,001

 

 

 

 

 

$ 0

 

Ernest Pelligrino

 

6/25/2015

 

 

100,001

 

 

 

 

 

$ 0

 

John Nicholson

 

7/22/2015

 

 

100,000

 

 

$ 0.3000

 

 

$ 30,000

 

Peter Vaccaro

 

7/22/2015

 

 

83,333

 

 

$ 0.3000

 

 

$ 25,000

 

Rosenberg Family Trust

 

7/22/2015

 

 

166,667

 

 

$ 0.3000

 

 

$ 50,000

 

Robert Mercer

 

7/22/2015

 

 

83,333

 

 

$ 0.3000

 

 

$ 25,000

 

Jeffrey Blume

 

7/22/2015

 

 

333,333

 

 

$ 0.3000

 

 

$ 100,000

 

Nabil Hanna

 

7/22/2015

 

 

100,000

 

 

$ 0.3000

 

 

$ 30,000

 

Spirit Bear, Ltd

 

8/12/2015

 

 

200,000

 

 

$ 0.0500

 

 

$ 0

 

Monarch Bay Securities

 

11/2/2015

 

 

50,000

 

 

$ 0.2800

 

 

$ 0

 

  

 
29
 
 

 

James Mattiello

 

12/17/2015

 

 

85,714

 

 

$ 0.3500

 

 

$ 30,000

 

Monarch Bay Securities

 

1/8/2016

 

 

50,000

 

 

$ 0.2800

 

 

$ 0

 

Addalla Bamashmus

 

1/11/2016

 

 

115,385

 

 

$ 0.1300

 

 

$ 15,000

 

Aldo Bonfiglio

 

1/11/2016

 

 

115,385

 

 

$ 0.1300

 

 

$ 15,000

 

Richard Schul

 

2/22/2016

 

 

100,000

 

 

$ 0.1600

 

 

$ 16,000

 

Daniel Ustian

 

2/3/2016

 

 

1,000,000

 

 

$ 0.1600

 

 

$ 160,000

 

Tim Hassett

 

2/3/2016

 

 

625,000

 

 

$ 0.1600

 

 

$ 100,000

 

Judson Bibb

 

2/3/2016

 

 

750,000

 

 

$ 0.1600

 

 

$ 120,000

 

Quentin Ponder

 

2/3/2016

 

 

400,000

 

 

$ 0.1600

 

 

$ 64,000

 

Theodore Banzhaf

 

2/3/2016

 

 

500,000

 

 

$ 0.1600

 

 

$ 80,000

 

Spirit Bear, Ltd

 

3/2/2016

 

 

675,146

 

 

 

 

 

 

$ 0

 

Spirit Bear, Ltd

 

3/2/2016

 

 

24,854

 

 

 

 

 

 

$ 0

 

Aldo Bonfiglio

 

3/24/2016

 

 

125,000

 

 

$ 0.2000

 

 

$ 25,000

 

Abdalla Bamashmus

 

3/24/2016

 

 

125,000

 

 

$ 0.2000

 

 

$ 25,000

 

Betsy Budzinski

 

3/24/2016

 

 

150,000

 

 

$ 0.2000

 

 

$ 30,000

 

Michael Greenburg

 

3/24/2016

 

 

125,000

 

 

$ 0.2000

 

 

$ 25,000

 

Monica Loubet Family Trust

 

3/24/2016

 

 

125,000

 

 

$ 0.2000

 

 

$ 25,000

 

Lucas Hoppel

 

4/5/2016

 

 

50,000

 

 

$ 0.1500

 

 

$ 0

 

Lucas Hoppel

 

4/14/2016

 

 

60,000

 

 

$ 0.1500

 

 

$ 0

 

Lucas Hoppel

 

4/21/2016

 

 

100,000

 

 

$ 0.1300

 

 

$ 0

 

Lucas Hoppel

 

4/29/2016

 

 

200,000

 

 

$ 0.1200

 

 

$ 0

 

Lucas Hoppel

 

5/5/2016

 

 

200,000

 

 

$ 0.1100

 

 

$ 0

 

SRS Consulting

 

5/9/2016

 

 

25,000

 

 

$ 0.2000

 

 

$ 0

 

Lucas Hoppel

 

5/10/2016

 

 

161,429

 

 

$ 0.1100

 

 

$ 0

 

Lucas Hoppel

 

5/18/2016

 

 

300,000

 

 

$ 0.1000

 

 

$ 0

 

 

Tangiers Global LLC

 

6/2/2016

 

 

100,553

 

 

$ 0.0995

 

 

$ 0

 

Bratislav Kovacevic

 

6/6/2016

 

 

238,095

 

 

$ 0.2100

 

 

$ 50,000

 

Avraham Taragan

 

6/9/2016

 

 

95,238

 

 

$ 0.2100

 

 

$ 20,000

 

Gemini Master Fund

 

6/10/2016

 

 

471,549

 

 

$ 0.1072

 

 

$ 0

 

Lucas Hoppel

 

6/20/2017

 

 

99,450

 

 

$ 0.0745

 

 

$ 0

 

Gemini Master Fund

 

6/21/2017

 

 

647,959

 

 

$ 0.0784

 

 

$ 0

 

Gemini Master Fund

 

6/29/2016

 

 

842,409

 

 

$ 0.0606

 

 

$ 0

 

SBI Investments

 

6/29/2016

 

 

855,432

 

 

$ 0.0585

 

 

$ 0

 

Tangiers Global LLC

 

7/8/2016

 

 

194,250

 

 

$ 0.0515

 

 

$ 0

 

Gemini Master Fund

 

7/12/2016

 

 

1,094,350

 

 

$ 0.0500

 

 

$ 0

 

SBI Investments

 

7/19/2016

 

 

1,284,687

 

 

$ 0.0400

 

 

$ 0

 

Tangiers Global LLC

 

7/20/2016

 

 

405,036

 

 

$ 0.0400

 

 

$ 0

 

Gemini Master Fund

 

7/20/2016

 

 

2,540,640

 

 

$ 0.0400

 

 

$ 0

 

SBI Investments

 

8/8/2016

 

 

1,479,728

 

 

$ 0.0337

 

 

$ 0

 

Gemini Master Fund

 

8/8/2016

 

 

2,179,818

 

 

$ 0.0358

 

 

$ 0

 

Tangiers Global LLC

 

8/9/2016

 

 

498,422

 

 

$ 0.030095

 

 

$ 0

 

SBI Investments

 

8/15/2016

 

 

2,388,988

 

 

$ 0.0169

 

 

$ 0

 

Gemini Master Fund

 

8/15/2016

 

 

2,936,798

 

 

$ 0.0178

 

 

$ 0

 

Tangiers Global LLC

 

8/17/2016

 

 

637,207

 

 

$ 0.0301

 

 

$ 0

 

St. George Investments

 

8/30/2016

 

 

1,953,125

 

 

$ 0.0128

 

 

$ 0

 

SBI Investments

 

8/30/2016

 

 

4,313,229

 

 

$ 0.0127

 

 

$ 0

 

Gemini Master Fund

 

10/5/2016

 

 

5,469,113

 

 

$ 0.0200

 

 

$ 0

 

Black Mountain Equities

 

10/5/2016

 

 

4,304,229

 

 

$ 0.0200

 

 

$ 0

 

Todd Van de Putte

 

11/7/2016

 

 

100,000

 

 

$ 0.0550

 

 

$ 5,500

 

Spirit Bear Ltd

 

11/7/2016

 

 

300,000

 

 

$ 0.5000

 

 

$ 0

 

Gemini Master Fund

 

11/10/2016

 

 

800,000

 

 

$ 0.1100

 

 

$ 0

 

Black Mountain Equities

 

11/10/2016

 

 

200,000

 

 

$ 0.1100

 

 

$ 0

 

Lucas Hoppel

 

11/14/2016

 

 

350,000

 

 

$ 0.1300

 

 

$ 0

 

Nikola Zaric

 

11/16/2016

 

 

119,048

 

 

$ 0.2100

 

 

$ 25,000

 

 

 
30
 
 

 

Warrants

 

 

 

 

 

 

 

 

 

Leonora Lorenzo - A

 

1/29/2015

 

 

200,000

 

 

$ 0.10

 

 

 

24

 

 

1/29/2020

 

Leonora Lorenzo - B

 

1/29/2015

 

 

200,000

 

 

$ 0.10

 

 

 

24

 

 

1/29/2020

 

Leonora Lorenzo - C

 

1/29/2015

 

 

200,000

 

 

$ 0.10

 

 

 

24

 

 

1/29/2020

 

Peter Vaccaro

 

7/22/2015

 

 

83,333

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

John Nicholson

 

7/22/2015

 

 

100,000

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Rosenberg Family Trust

 

7/22/2015

 

 

166,667

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Robert Mercer

 

7/22/2015

 

 

83,333

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Jeffrey Blume

 

7/22/2015

 

 

333,333

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Nabil Hanna

 

7/22/2015

 

 

100,000

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Carl Willey

 

5/26/2015

 

 

142,857

 

 

$ 0.40

 

 

 

60

 

 

10/26/2020

 

Intracoastal Capital LLC

 

7/28/2015

 

 

44,445

 

 

$ 0.60

 

 

 

44

 

 

2/14/2019

 

Monarch Bay

 

7/15/2015

 

 

69,333

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Terry Tennant

 

7/20/2015

 

 

200,000

 

 

$ 0.27

 

 

 

37

 

 

8/20/2018

 

Avaraham Taragan

 

10/13/2015

 

 

47,619

 

 

$ 0.24

 

 

 

36

 

 

10/13/2018

 

James Mattiello

 

11/25/2015

 

 

30,000

 

 

$ 0.60

 

 

 

30

 

 

2/28/2018

 

SBI Investments LLC

 

12/2/2015

 

 

250,000

 

 

$ 0.17

 

 

 

36

 

 

12/2/2018

 

SBI Investments LLC

 

12/2/2015

 

 

250,000

 

 

$ 0.14

 

 

 

36

 

 

12/2/2018

 

Abdalla Bamashmus

 

1/9/2016

 

 

115,385

 

 

$ 0.18

 

 

 

60

 

 

1/9/2021

 

Aldo Bonfiglio

 

1/9/2016

 

 

115,385

 

 

$ 0.18

 

 

 

60

 

 

1/9/2021

 

Daniel Ustian

 

2/3/2016

 

 

100,000

 

 

$ 0.27

 

 

 

36

 

 

2/3/2019

 

Richard Schul

 

2/3/2016

 

 

100,000

 

 

$ 0.27

 

 

 

36

 

 

2/3/2019

 

Scott Van Dorn

 

2/3/2016

 

 

100,000

 

 

$ 0.27

 

 

 

36

 

 

2/4/2019

 

Chris McKee

 

2/3/2016

 

 

100,000

 

 

$ 0.27

 

 

 

36

 

 

2/5/2019

 

Gurminder Beti

 

2/3/2016

 

 

200,000

 

 

$ 0.35

 

 

 

30

 

 

7/31/2018

 

Richard Schul

 

2/22/2016

 

 

100,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Daniel Ustian

 

2/3/2016

 

 

1,000,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Tim Hassett

 

2/3/2016

 

 

625,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Judson Bibb

 

2/3/2016

 

 

750,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Quentin Ponder

 

2/3/2016

 

 

400,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Theodore Banzhaf

 

2/3/2016

 

 

500,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Aldo Bonfiglio

 

3/24/2016

 

 

62,500

 

 

$ 0.32

 

 

 

60

 

 

3/24/2021

 

Abdalla Bamashmus

 

3/24/2016

 

 

62,500

 

 

$ 0.32

 

 

 

60

 

 

3/24/2021

 

Betsy Budzinski

 

3/24/2016

 

 

75,000

 

 

$ 0.32

 

 

 

60

 

 

3/24/2021

 

Michael Greenburg

 

3/24/2016

 

 

62,500

 

 

$ 0.34

 

 

 

60

 

 

3/24/2021

 

Monica Loubet Family Trust

 

3/24/2016

 

 

62,500

 

 

$ 0.32

 

 

 

60

 

 

3/24/2021

 

SRS Consulting, Ltd

 

5/2/2016

 

 

75,000

 

 

$ 0.18

 

 

 

12

 

 

1/1/2017

 

Radius Consulting

 

5/2/2016

 

 

75,000

 

 

$ 0.18

 

 

 

12

 

 

1/1/2017

 

SRS Consulting, Ltd

 

5/2/2016

 

 

75,000

 

 

$ 0.22

 

 

 

12

 

 

2/1/2017

 

Radius Consulting

 

5/2/2016

 

 

75,000

 

 

$ 0.22

 

 

 

12

 

 

2/1/2017

 

SRS Consulting, Ltd

 

5/2/2016

 

 

75,000

 

 

$ 0.40

 

 

 

12

 

 

3/1/2017

 

Radius Consulting

 

5/2/2016

 

 

75,000

 

 

$ 0.40

 

 

 

12

 

 

3/1/2017

 

SRS Consulting, Ltd

 

5/2/2016

 

 

75,000

 

 

$ 0.30

 

 

 

12

 

 

4/1/2017

 

Radius Consulting

 

5/2/2016

 

 

75,000

 

 

$ 0.30

 

 

 

12

 

 

4/1/2017

 

SBI Investments LLC

 

5/30/2016

 

 

250,000

 

 

$ 0.17

 

 

 

24

 

 

5/30/2018

 

Dan Ustian

 

8/12/2016

 

 

909,090

 

 

$ 0.07

 

 

 

60

 

 

8/12/2021

 

Christopher Jones

 

8/12/2016

 

 

909,090

 

 

$ 0.07

 

 

 

60

 

 

8/12/2021

 

Inverom Corporation

 

8/12/2016

 

 

909,090

 

 

$ 0.07

 

 

 

60

 

 

8/12/2021

 

Eric Brown

 

8/12/2016

 

 

909,090

 

 

$ 0.07

 

 

 

60

 

 

8/12/2021

 

Todd Van De Putte

 

8/16/2016

 

 

100,000

 

 

$ 0.07

 

 

 

36

 

 

8/16/2019

 

Gemini Master Fund

 

8/22/2016

 

 

15,452,266

 

 

$ 0.0169

 

 

 

60

 

 

10/9/2021

 

Black Mountain Equities

 

8/22/2016

 

 

1,401,611

 

 

$ 0.0169

 

 

 

60

 

 

10/9/2021

 

KHIC, Inc.

 

8/24/2016

 

 

4,000,000

 

 

$ 0.06

 

 

 

60

 

 

8/24/2021

 

Nicola Zaric

 

11/22/2016

 

 

59,524

 

 

0.24

 

 

 

36

 

 

10/27/2018

 

Kovacevic Bratislav

 

11/22/2016

 

 

119,048

 

 

0.24

 

 

 

36

 

 

10/27/2018

 

 

 
31
 
 

 

Preferred Stock:

 

 

 

Series

 

Date

 

# of Shares

 

 

Conversion

Ratio

 

Spirit Bear Ltd

 

A

 

12/14/12

 

 

113

 

 

1:50,000

 

KHIC, LLC

 

A

 

3/9/2016

 

 

3

 

 

1:50,000

 

Daniel Ustian

 

B

 

8/12/2016

 

 

909,090

 

 

1:1

 

Christopher Jones

 

B

 

8/12/2016

 

 

909,090

 

 

1:1

 

Inverom Corporation

 

B

 

8/12/2016

 

 

909,090

 

 

1:1

 

Eric Brown

 

B

 

8/12/2016

 

 

909,090

 

 

1:1

 

 

 
32
 
 

 

SCHEDULE 3.1(i)

 

UNDISCLOSED EVENTS, LIABILITIES OR DEVELOPMENTS

 

None

 

 

 
33
 
 

 

SCHEDULE 3.1(j)

 

LITIGATION

 

On October 7, 2016, the Company received a complaint, Wang et al v. Cool Technologies, Inc. et al, filed on July 28, 2016 in the U.S. District Court for the Eastern District of New York (Brooklyn) Civil docket #1:16-CV-04101-RRM- PK against the Company and Timothy Hassett, the Company’s Chief Executive Office alleging damages of $1,100,000 for breach of contract for failing to register shares sold to the Plaintiffs in February and March 2014.

 

 
34
 
 

 

SCHEDULE 3.1(k)

 

COMPLIANCE

 

Default under the agreements with the persons and entities provided on Schedule 3.1(t) which have registration rights and for which a Registration Statement on Form S-1 is not yet effective.

 

In addition, the Company agreed to file a Form D subsequent to the closing of each of the transactions provided for on Schedule 3(e).

 

In addition, the Company also agreed to reserve sufficient shares for each of the transactions provided for on Schedule 3(e); until the effectiveness of the 1:15 reverse stock split, the Company is in breach of said agreements.

 

 
35
 
 

 

SCHEDULE 3.1(o)

 

INTELLECTUAL PROPERTY

 

(iii)

 

License of Company Intellectual Property to third parties: None The Company has the following trademark:

 

TEHPC – Issued April 1, 2014

 

The Company has five patents outstanding:

 

Name

 

Serial/Patent
Number

 

 

Issue
Date

 

Motor w/ Heat Pipes (US App)

 

 

7,569,955

 

 

8/4/09

 

Motor w/ Heat Pipes (Cont App) - Hermetic

 

 

8,283,818

 

 

10/9/12

 

Motor w/ Heat Pipes (CIP App) - new submersible

 

 

8,134,260

 

 

3/13/12

 

Bearing Cooler (US App)

 

 

8,198,770

 

 

6/12/12

 

Tot Encl'd Air-HP-Air Cooled (US App)

 

 

8,148,858

 

 

4/3/12

 

 

(iv)

 

Third Party Intellectual Property Used or Licensed by Company: None

 

 
36
 
 

 

SCHEDULE 3.1(q)

 

TRANSACTIONS WITH AFFILIATES

 

Al Cullere loaned $250,000 to Ultimate Power Truck, LLC, the Company’s 95% owned subsidiary.

 

 
37
 
 

 

SCHEDULE 3.1(t)

 

REGISTRATION RIGHTS

 

The following lists the holders that have registration rights:

 

COMMON SHARES

 

Date of
Pricing/Issuance

 

Shares

 

 

Share
Price

 

 

 Amount
Paid

 

George Tweddel

 

11/8/2011

 

 

150,000

 

 

$ 0.3300

 

 

$ 49,500

 

Ted Kaminski

 

6/12/2012

 

 

10,000

 

 

$ 0.5000

 

 

$ 5,000

 

Alex Bankhead

 

6/13/2013

 

 

750,000

 

 

$ 0.3330

 

 

$ 249,750

 

John Carlson

 

7/3/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

John Carlson

 

8/12/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Alex Bankhead

 

8/14/2013

 

 

336,956

 

 

$ 0.3300

 

 

$ 111,195

 

Bruce Bayless

 

9/20/2013

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Gabriel Wright

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

David Geske

 

9/20/2013

 

 

225,000

 

 

$ 0.2300

 

 

$ 51,750

 

Al Carlson

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Loubet Family Trust

 

9/20/2013

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Frank Fakinos

 

9/20/2013

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Alvin Cohn

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Bruce Bayless

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Tracy Maddock

 

9/20/2013

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

Bill Laske

 

9/20/2013

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

Derek Goulette

 

9/20/2013

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

George Selekman

 

9/20/2013

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

Glenn Hetzel

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

David Geske

 

9/20/2013

 

 

166,667

 

 

$ 0.4500

 

 

$ 75,000

 

Bruce Bayless

 

9/20/2013

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

James Burke

 

9/20/2013

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

Donald Geske

 

9/20/2013

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Tracy Maddock

 

9/23/2013

 

 

166,666

 

 

$ 0.4500

 

 

$ 75,000

 

David Geske

 

10/8/2013

 

 

196,875

 

 

$ 0.2300

 

 

$ 45,281

 

John Carlson

 

10/10/2013

 

 

388,889

 

 

$ 0.4500

 

 

$ 175,000

 

Jame Ballidis

 

10/16/2013

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Robert Mercer

 

1/29/2014

 

 

166,667

 

 

$ 0.3000

 

 

$ 50,000

 

Robert English

 

1/29/2014

 

 

100,000

 

 

0.3000

 

 

30,000

 

 

Jeffrey Blume

 

1/29/2014

 

 

166,667

 

 

$ 0.5000

 

 

$ 83,334

 

William Hobi

 

1/29/2014

 

 

100,000

 

 

$ 0.3000

 

 

$ 30,000

 

Tom Jeffries

 

1/29/2014

 

 

125,000

 

 

$ 0.4000

 

 

$ 50,000

 

John Karns

 

1/29/2014

 

 

125,000

 

 

$ 0.4000

 

 

$ 50,000

 

James & Lisa Burke

 

1/31/2014

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Rod Rickenbach

 

1/31/2014

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Dennis Franco

 

2/1/2014

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Don Evenson

 

2/5/2014

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

Lincoln Park Capital

 

2/5/2014

 

 

444,445

 

 

$ 0.4500

 

 

$ 200,000

 

Jack Battalion

 

2/10/2014

 

 

55,555

 

 

$ 0.4500

 

 

$ 25,000

 

Eduardo Lepe

 

2/10/2014

 

 

88,889

 

 

$ 0.4500

 

 

$ 40,000

 

Lori Lepe

 

2/14/2014

 

 

88,889

 

 

$ 0.4500

 

 

$ 40,000

 

William Laske

 

2/24/2014

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

Ace Equity Group

 

2/24/2014

 

 

100,000

 

 

$ 0.4500

 

 

$ 45,000

 

Sue Noyes

 

2/24/2014

 

 

111,111

 

 

$ 0.4500

 

 

$ 50,000

 

 

 
38
 
 

  

Kristi Lefferts

 

2/24/2014

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

Trinity Outreach

 

2/24/2014

 

 

11,111

 

 

$ 0.4500

 

 

$ 5,000

 

Sagiv Israeli

 

2/25/2014

 

 

418,333

 

 

$ 0.6000

 

 

$ 251,000

 

Dawn Contreras

 

2/25/2014

 

 

40,000

 

 

$ 0.4500

 

 

$ 18,000

 

Tennant Securities

 

2/27/2014

 

 

144,444

 

 

$ 0.4500

 

 

$ 65,000

 

Phillip Caramico

 

2/28/2014

 

 

133,334

 

 

$ 0.4500

 

 

$ 60,000

 

Alfred Cullere

 

2/28/2014

 

 

444,445

 

 

$ 0.4500

 

 

$ 200,000

 

Lorraine Kouvatsos

 

2/28/2014

 

 

40,000

 

 

$ 0.4500

 

 

$ 18,000

 

Jimmy Shao

 

2/28/2014

 

 

100,000

 

 

$ 0.4500

 

 

$ 45,000

 

Joseph Gomes

 

2/28/2014

 

 

333,333

 

 

$ 0.4500

 

 

$ 150,000

 

Irwin Schwartz

 

2/28/2014

 

 

112,000

 

 

$ 0.4500

 

 

$ 50,400

 

Stanley Kam

 

3/1/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Fortune Plus, Inc.

 

3/1/2014

 

 

666,666

 

 

$ 0.4500

 

 

$ 300,000

 

Equitec

 

3/6/2014

 

 

44,445

 

 

$ 0.4500

 

 

$ 20,000

 

Cranshire Capital

 

3/6/2014

 

 

177,778

 

 

$ 0.4500

 

 

$ 80,000

 

Anne H. Ross

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Bard Micro-Cap Value Fund

 

3/6/2014

 

 

200,000

 

 

$ 0.4500

 

 

$ 90,000

 

Bourquin Family Trust

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Dale Snavely Trust

 

3/6/2014

 

 

100,000

 

 

$ 0.4500

 

 

$ 45,000

 

Deb. Dewing Trust

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Mark, Katherine Dickson

 

3/6/2014

 

 

150,000

 

 

$ 0.4500

 

 

$ 67,500

 

Michael, Patricia Johnson

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Seville Enterprises

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

Sydney Herman

 

3/6/2014

 

 

100,000

 

 

$ 0.4500

 

 

$ 45,000

 

Timothy Johnson

 

3/6/2014

 

 

150,000

 

 

$ 0.4500

 

 

$ 67,500

 

Edward Sellers, Susan Boyd

 

3/6/2014

 

 

150,000

 

 

$ 0.4500

 

 

$ 67,500

 

Janet J. Underwood Trust

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

William K Kellogg Trust

 

3/6/2014

 

 

200,000

 

 

$ 0.4500

 

 

$ 90,000

 

Leonard Herman Trust

 

3/6/2014

 

 

50,000

 

 

$ 0.4500

 

 

$ 22,500

 

 

Lin Xiu Ying

 

3/8/2014

 

 

11,112

 

 

$ 0.4500

 

 

$ 5,000

 

Yeung Wang

 

3/8/2014

 

 

22,223

 

 

$ 0.4500

 

 

$ 10,000

 

Li Xin

 

3/8/2014

 

 

33,334

 

 

$ 0.4500

 

 

$ 15,000

 

Cai Zhi-Feng

 

3/8/2014

 

 

22,223

 

 

$ 0.4500

 

 

$ 10,000

 

Tommy Chang

 

3/8/2014

 

 

22,223

 

 

$ 0.4500

 

 

$ 10,000

 

Sze Ping Cheng

 

3/8/2014

 

 

33,334

 

 

$ 0.4500

 

 

$ 15,000

 

Gary Kong

 

3/8/2014

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

Lin Chi-Chu

 

3/8/2014

 

 

11,112

 

 

$ 0.4500

 

 

$ 5,000

 

Kam Chow Kong

 

3/8/2014

 

 

11,112

 

 

$ 0.4500

 

 

$ 5,000

 

Fia Lam

 

3/8/2014

 

 

11,112

 

 

$ 0.4500

 

 

$ 5,000

 

Avery Ellis LLC

 

3/11/2014

 

 

166,667

 

 

$ 0.6000

 

 

$ 100,000

 

Sagiv Israeli

 

4/23/2014

 

 

195,000

 

 

$ 1.8000

 

 

$ 0

 

Sagiv Israeli

 

6/26/2014

 

 

250,000

 

 

$ 0.5500

 

 

$ 0

 

Nikola Zaric

 

9/18/2014

 

 

16,667

 

 

$ 0.5500

 

 

$ 9,167

 

Spencer Brown

 

10/1/2014

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

Eric Brown

 

10/1/2014

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

William Bill Sterba

 

10/1/2014

 

 

181,818

 

 

$ 0.5500

 

 

$ 100,000

 

Christopher J. Jones

 

10/1/2014

 

 

363,636

 

 

$ 0.5500

 

 

$ 200,000

 

Zach Johnson

 

10/1/2014

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

Tom Welch

 

10/1/2014

 

 

181,818

 

 

$ 0.5500

 

 

$ 100,000

 

David Anthony

 

10/7/2014

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

Doug Rothschild

 

11/4/2014

 

 

454,545

 

 

$ 0.5500

 

 

$ 250,000

 

Michael Callans

 

11/6/2014

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

Kenneth Stickney

 

3/27/2015

 

 

181,818

 

 

$ 0.5500

 

 

$ 100,000

 

Abdalla Bamashmus

 

3/27/2015

 

 

50,000

 

 

$ 0.5500

 

 

$ 27,500

 

Aldo Bonfiglio

 

3/27/2015

 

 

90,909

 

 

$ 0.5500

 

 

$ 50,000

 

 

 
39
 
 

  

Lorraine Kouvatsos

 

3/27/2015

 

 

6,000

 

 

$ 0.5500

 

 

$ 3,300

 

Phillip Caramico

 

3/27/2015

 

 

18,182

 

 

$ 0.5500

 

 

$ 10,000

 

Linda Cullere

 

3/27/2015

 

 

54,546

 

 

$ 0.5500

 

 

$ 30,000

 

Frank Finetto

 

3/27/2015

 

 

36,364

 

 

$ 0.5500

 

 

$ 20,000

 

Guy Fava

 

3/27/2015

 

 

100,000

 

 

$ 0.5500

 

 

$ 55,000

 

Richard Marchesi

 

3/27/2015

 

 

81,818

 

 

$ 0.5500

 

 

$ 45,000

 

Roger Howells

 

3/27/2015

 

 

36,364

 

 

$ 0.5500

 

 

$ 20,000

 

William Laske

 

3/27/2015

 

 

18,181

 

 

$ 0.5500

 

 

$ 10,000

 

Irwin Schwartz

 

3/27/2015

 

 

37,000

 

 

$ 0.5500

 

 

$ 20,350

 

Lincoln Park (A)

 

5/5/2015

 

 

555,556

 

 

$ 0.4500

 

 

$ 250,000

 

Carl Willey (Cornerstone)

 

5/7/2015

 

 

333,333

 

 

$ 0.5500

 

 

$ 183,333

 

Christopher McKee

 

5/12/2015

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

D. Ustian

 

5/12/2015

 

 

222,222

 

 

$ 0.4500

 

 

$ 100,000

 

Abdalla Bamashmus

 

5/12/2015

 

 

66,666

 

 

$ 0.4500

 

 

$ 30,000

 

Anthony Hansel

 

5/12/2015

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

Robert Barnes

 

5/12/2015

 

 

22,222

 

 

$ 0.4500

 

 

$ 10,000

 

Scott Livingston

 

5/12/2015

 

 

22,222

 

 

$ 0.4500

 

 

$ 10,000

 

Bernard Marcus

 

5/12/2015

 

 

22,222

 

 

$ 0.4500

 

 

$ 10,000

 

Aldo Bonfiglio

 

5/26/2015

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

 

Glen Biener (aka GB Financial)

 

5/26/2015

 

 

55,556

 

 

$ 0.4500

 

 

$ 25,000

 

John Nicholson

 

7/22/2015

 

 

100,000

 

 

$ 0.3000

 

 

$ 30,000

 

Peter Vaccaro

 

7/22/2015

 

 

83,333

 

 

$ 0.3000

 

 

$ 25,000

 

Rosenberg Family Trust

 

7/22/2015

 

 

166,667

 

 

$ 0.3000

 

 

$ 50,000

 

Robert Mercer

 

7/22/2015

 

 

83,333

 

 

$ 0.3000

 

 

$ 25,000

 

Jeffrey Blume

 

7/22/2015

 

 

333,333

 

 

$ 0.3000

 

 

$ 100,000

 

Nabil Hanna

 

7/22/2015

 

 

100,000

 

 

$ 0.3000

 

 

$ 30,000

 

Carl Willey

 

7/29/2015

 

 

142,857

 

 

$ 0.3500

 

 

$ 50,000

 

Abdalla Bamashmus

 

7/29/2015

 

 

62,500

 

 

$ 0.4000

 

 

$ 25,000

 

James Mattiello

 

12/17/2015

 

 

85,714

 

 

$ 0.3500

 

 

$ 30,000

 

Jennifer Esno

 

1/7/2016

 

 

27,273

 

 

$ 0.5500

 

 

$ 15,000

 

Addalla Bamashmus

 

1/11/2016

 

 

115,385

 

 

$ 0.1300

 

 

$ 15,000

 

Aldo Bonfiglio

 

1/11/2016

 

 

115,385

 

 

$ 0.1300

 

 

$ 15,000

 

Daniel Ustian

 

2/3/2016

 

 

1,000,000

 

 

$ 0.1600

 

 

$ 160,000

 

Tim Hassett

 

2/3/2016

 

 

625,000

 

 

$ 0.1600

 

 

$ 100,000

 

Judson Bibb

 

2/3/2016

 

 

750,000

 

 

$ 0.1600

 

 

$ 120,000

 

Quentin Ponder

 

2/3/2016

 

 

400,000

 

 

$ 0.1600

 

 

$ 64,000

 

Theodore Banzhaf

 

2/3/2016

 

 

500,000

 

 

$ 0.1600

 

 

$ 80,000

 

Richard Schul

 

2/22/2016

 

 

100,000

 

 

$ 0.1600

 

 

$ 16,000

 

Aldo Bonfiglio

 

3/24/2016

 

 

125,000

 

 

$ 0.2000

 

 

$ 25,000

 

Abdalla Bamashmus

 

3/24/2016

 

 

125,000

 

 

$ 0.2000

 

 

$ 25,000

 

Betsy Budzinski

 

3/24/2016

 

 

150,000

 

 

$ 0.2000

 

 

$ 30,000

 

Michael Greenburg

 

3/24/2016

 

 

125,000

 

 

$ 0.2000

 

 

$ 25,000

 

Monica Loubet Family Trust

 

3/24/2016

 

 

125,000

 

 

$ 0.2000

 

 

$ 25,000

 

Lucas Hoppel

 

3/24/2016

 

 

50,000

 

 

$ 0.151578

 

 

$ 0

 

Lucas Hoppel

 

4/11/2016

 

 

60,000

 

 

$ 0.154665

 

 

$ 0

 

Lucas Hoppel

 

4/19/2016

 

 

100,000

 

 

$ 0.132048

 

 

$ 0

 

Lucas Hoppel

 

4/27/2016

 

 

200,000

 

 

$ 0.117432

 

 

$ 0

 

Lucas Hoppel

 

5/3/2016

 

 

200,000

 

 

$ 0.105462

 

 

$ 0

 

Lucas Hoppel

 

5/6/2016

 

 

161,429

 

 

$ 0.105462

 

 

$ 0

 

Lucas Hoppel

 

5/16/2016

 

 

300,000

 

 

$ 0.099792

 

 

$ 0

 

Lucas Hoppel

 

5/27/2016

 

 

250,000

 

 

$ 0.092547

 

 

$ 0

 

Bratislav Kovacevic

 

6/6/2016

 

 

238,095

 

 

$ 0.2100

 

 

$ 50,000

 

Avraham Taragan

 

6/9/2016

 

 

95,238

 

 

$ 0.2100

 

 

$ 20,000

 

SBI Investments, LLC

 

6/10/2016

 

 

486,681

 

 

$ 0.10270

 

 

$ 0

 

Lucas Hoppel

 

6/16/2016

 

 

99,450

 

 

$ 0.074466

 

 

$ 0

 

 

 
40
 
 

 

SBI Investments, LLC

 

6/29/2016

 

 

855,432

 

 

$ 0.05845

 

 

$ 0

 

SBI Investments, LLC

 

7/19/2016

 

 

1,284,687

 

 

$ 0.03892

 

 

$ 0

 

SBI Investments, LLC

 

8/8/2016

 

 

1,479,728

 

 

$ 0.03379

 

 

$ 0

 

SBI Investments, LLC

 

8/16/2016

 

 

2,388,988

 

 

$ 0.01689

 

 

$ 0

 

SBI Investments, LLC

 

8/30/2016

 

 

4,313,339

 

 

$ 0.01267

 

 

$ 0

 

Todd Van de Putte

 

11/7/2016

 

 

100,000

 

 

$ 0.0550

 

 

$ 5,500

 

Lucas Hoppel

 

11/14/2016

 

 

350,000

 

 

$ 0.1300

 

 

$ 0

 

Nikola Zaric

 

11/16/2016

 

 

119,048

 

 

$ 0.2100

 

 

$ 25,000

 

TOTAL

 

 

 

 

34,539,053

 

 

 

 

 

 

 

 

 

 

PREFERREDSHARES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Christopher Jones

 

10/4/2016

 

 

909,090

 

 

$ 0.0550

 

 

$ 50,000

 

Eric Brown

 

10/4/2016

 

 

909,090

 

 

$ 0.0550

 

 

$ 50,000

 

TOTAL

 

 

 

 

1,818,180

 

 

 

 

 

 

 

 

 

 

11.27.2016 Warrants

 

 

 

Date of
Pricing/
Issuance

 

Shares

 

 

Strike

Price

 

 

Expiration

(Months)

 

 

Expiration

Date

 

David Geske

 

9/16/2013

 

 

225,000

 

 

$ 0.66

 

 

 

30

 

 

3/8/2017

 

David Geske

 

7/11/2013

 

 

337,500

 

 

$ 0.60

 

 

 

30

 

 

1/12/2017

 

John Carlson

 

7/3/2013

 

 

111,111

 

 

$ 0.66

 

 

 

30

 

 

1/3/2017

 

Bruce Bayless

 

7/2/2013

 

 

222,222

 

 

$ 0.60

 

 

 

30

 

 

1/2/2017

 

Gabriel Wright

 

7/15/2013

 

 

111,111

 

 

$ 0.69

 

 

 

30

 

 

1/15/2017

 

Loubet Family Trust

 

7/15/2013

 

 

222,222

 

 

$ 0.69

 

 

 

30

 

 

1/15/2017

 

Al Carlson

 

7/16/2013

 

 

111,111

 

 

$ 0.66

 

 

 

30

 

 

1/17/2017

 

Alvin Cohn

 

7/18/2013

 

 

111,111

 

 

$ 0.59

 

 

 

30

 

 

1/18/2017

 

Bill Laske

 

7/24/2013

 

 

83,333

 

 

$ 0.49

 

 

 

30

 

 

1/24/2017

 

Derek Goulette

 

7/24/2013

 

 

55,555

 

 

$ 0.54

 

 

 

30

 

 

1/24/2017

 

Frank Fakinos

 

7/24/2013

 

 

222,222

 

 

$ 0.54

 

 

 

30

 

 

1/24/2017

 

Tracy Maddock

 

7/24/2013

 

 

222,222

 

 

$ 0.54

 

 

 

30

 

 

1/24/2017

 

Bruce Bayless

 

7/24/2013

 

 

111,111

 

 

$ 0.54

 

 

 

30

 

 

1/24/2017

 

John Carlson

 

7/25/2013

 

 

388,889

 

 

$ 0.54

 

 

 

30

 

 

1/25/2017

 

Glenn Hetzel

 

8/6/2013

 

 

111,111

 

 

$ 0.56

 

 

 

30

 

 

2/6/2017

 

David Geske

 

8/12/2013

 

 

250,000

 

 

$ 0.58

 

 

 

30

 

 

2/12/2017

 

John Carlson

 

8/12/2013

 

 

166,667

 

 

$ 0.58

 

 

 

30

 

 

2/12/2017

 

Bruce Bayless

 

8/23/2013

 

 

111,111

 

 

$ 0.37

 

 

 

30

 

 

2/23/2017

 

Donald Geske

 

9/9/2013

 

 

222,222

 

 

$ 0.43

 

 

 

30

 

 

3/9/2017

 

Jame Ballidis

 

10/16/2013

 

 

333,333

 

 

$ 0.52

 

 

 

30

 

 

4/16/2017

 

James & Lisa Burke

 

2/14/2014

 

 

111,111

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Rod Rickenbach

 

2/14/2014

 

 

222,222

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Dennis Franco

 

2/14/2014

 

 

111,111

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Don Evenson

 

2/14/2014

 

 

111,111

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Cranshire Capital Master Fund, LTD

 

2/14/2014

 

 

177,778

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Anne H. Ross

 

2/14/2014

 

 

50,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Bard Micro-Cap Value Fund, LP

 

2/14/2014

 

 

200,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

The Bourquen Family Trust

 

2/14/2014

 

 

50,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Dale F. Snavely Trust

 

2/14/2014

 

 

100,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Deborah B. Dewing Trust

 

2/14/2014

 

 

50,000

 

 

0.60

 

 

 

60

 

 

2/14/2019

 

Katherine B. & Mark A. Dickson

 

2/14/2014

 

 

150,000

 

 

$

0.60

 

 

 

60

 

 

2/14/2019

 

Leonard M. Herman Trust

 

2/14/2014

 

 

50,000

 

 

0.60

 

 

 

60

 

 

2/14/2019

 

 

 
41
 
 

  

T. Michael & Patricia Johnson

 

2/14/2014

 

 

50,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

M. Edward Sellers & Susan D. Boyd JTWROS

 

2/14/2014

 

 

150,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Seville Enterprises, LP

 

2/14/2014

 

 

50,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Sydney N. Herman

 

2/14/2014

 

 

100,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Timothy B. Johnson

 

2/14/2014

 

 

150,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Janet J. Underwood Trust

 

2/14/2014

 

 

50,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

William K. Kellogg 1992 Trust

 

2/14/2014

 

 

200,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Eduardo Lepe

 

2/14/2014

 

 

88,889

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Jack Batalion

 

2/14/2014

 

 

55,556

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Lori Lepe

 

2/14/2014

 

 

88,889

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Joseph Gomes

 

2/14/2014

 

 

222,222

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Lincoln Park Capital Fund, LLC

 

2/14/2014

 

 

444,445

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Sue Noyes

 

2/14/2014

 

 

11,111

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

William Laske

 

2/14/2014

 

 

55,556

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Ace Equity Group

 

3/14/2014

 

 

100,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Trinity Outreach

 

3/14/2014

 

 

111,111

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Dawn Contreras

 

2/15/2014

 

 

40,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Tennant Securities

 

3/14/2014

 

 

144,444

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Jimmy Shao

 

3/14/2014

 

 

100,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Phillip Caramico

 

3/14/2014

 

 

133,334

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Alfred Cullere

 

3/14/2014

 

 

444,445

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Lorraine Kuovatsos

 

3/14/2014

 

 

40,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Joseph Gomes

 

2/14/2014

 

 

111,111

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Irwin Schwartz

 

3/14/2014

 

 

112,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Stanley Kam

 

3/14/2014

 

 

50,000

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Fortune Plus / LAC THI Hoilien

 

3/14/2014

 

 

666,667

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Lin Xiu Ying

 

3/14/2014

 

 

11,112

 

 

$ 0.60

 

 

 

60

 

 

3/14/2019

 

Yeung Wang

 

3/14/2014

 

 

22,222

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Li Xin

 

3/14/2014

 

 

33,333

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Cai Zhi-Feng

 

3/14/2014

 

 

22,222

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Tommy Chang

 

3/14/2014

 

 

22,222

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Sze Ping Cheng

 

3/14/2014

 

 

33,333

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Gary Kong

 

3/14/2014

 

 

55,556

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Lin Chi-Chu

 

3/14/2014

 

 

11,111

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Kam Chow Kong

 

3/14/2014

 

 

11,111

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Fia Lam

 

3/14/2014

 

 

11,111

 

 

$ 0.60

 

 

 

60

 

 

2/14/2019

 

Paul Hodowanec

 

3/14/2014

 

 

400,000

 

 

$ 0.60

 

 

 

60

 

 

3/14/2019

 

Sagiv Israeli

 

3/14/2014

 

 

780,000

 

 

$ 0.60

 

 

 

60

 

 

3/14/2019

 

Scott Van Dorn

 

3/21/14

 

 

200,000

 

 

$ 0.80

 

 

 

30

 

 

9/21/2017

 

Andrew Scherr

 

5/21/2014

 

 

200,000

 

 

$ 0.80

 

 

 

30

 

 

11/18/2016

 

Spencer Brown

 

9/24/14

 

 

60,909

 

 

$ 0.75

 

 

 

36

 

 

9/24/2017

 

 

William Sterba

 

9/24/14

 

 

121,818

 

 

$ 0.75

 

 

 

36

 

 

9/24/2017

 

Christopher Jones

 

9/24/14

 

 

243,636

 

 

$ 0.75

 

 

 

36

 

 

9/24/2017

 

Eric Brown

 

9/24/14

 

 

60,909

 

 

$ 0.75

 

 

 

36

 

 

9/24/2017

 

Zach Johnson

 

9/24/14

 

 

60,909

 

 

$ 0.75

 

 

 

36

 

 

9/24/2017

 

David Anthony

 

9/24/14

 

 

60,909

 

 

$ 0.75

 

 

 

36

 

 

9/24/2017

 

Tom Welch

 

9/24/14

 

 

121,818

 

 

$ 0.75

 

 

 

36

 

 

9/24/2017

 

William Finley

 

7/30/2014

 

 

200,000

 

 

$ 0.80

 

 

 

30

 

 

1/27/2017

 

Roman Kuropas

 

9/18/2014

 

 

200,000

 

 

$ 0.80

 

 

 

30

 

 

3/18/2017

 

John Storer

 

8/25/2014

 

 

750,000

 

 

$ 0.83

 

 

 

36

 

 

8/24/2017

 

UPT - Management Agmt

 

9/30/2014

 

 

60,000

 

 

$ 1.00

 

 

 

36

 

 

9/29/2017

 

Doug Rothschild

 

10/3/2014

 

 

304,545

 

 

$ 0.75

 

 

 

36

 

 

10/2/2017

 

Michael Callans

 

10/31/2014

 

 

90,909

 

 

$ 0.70

 

 

 

60

 

 

10/30/2019

 

Richard Marchesi

 

3/27/2014

 

 

81,819

 

 

$ 0.75

 

 

 

36

 

 

3/26/2017

 

UPT - Management Agmt

 

12/31/2014

 

 

60,000

 

 

$ 1.00

 

 

 

36

 

 

12/30/2017

 

 

 

42

 

 

  

Kenneth Stickney

 

3/27/2015

 

 

181,818

 

 

$ 0.75

 

 

 

36

 

 

3/26/2018

 

Lorraine Kouvatsos

 

3/27/2015

 

 

6,000

 

 

$ 0.75

 

 

 

36

 

 

3/26/2018

 

Phillip Caramico

 

3/27/2015

 

 

18,182

 

 

$ 0.75

 

 

 

36

 

 

3/26/2018

 

Linda Cullere

 

3/27/2015

 

 

54,546

 

 

$ 0.75

 

 

 

36

 

 

3/26/2018

 

Frank Finetto

 

3/27/2015

 

 

36,364

 

 

$ 0.75

 

 

 

36

 

 

3/26/2018

 

Abdalla Bamashmus

 

3/27/2015

 

 

50,000

 

 

$ 0.70

 

 

 

60

 

 

3/25/2020

 

Aldo Bonfiglio

 

3/27/2015

 

 

90,909

 

 

$ 0.70

 

 

 

60

 

 

3/25/2020

 

Irwin Schwartz

 

3/13/2015

 

 

37,000

 

 

$ 0.55

 

 

 

36

 

 

3/12/2018

 

Guy Fava

 

3/27/2015

 

 

100,000

 

 

$ 0.75

 

 

 

36

 

 

3/26/2018

 

Roger Howells

 

3/27/2015

 

 

36,364

 

 

$ 0.75

 

 

 

36

 

 

3/26/2018

 

Jennifer Esno

 

3/1/2015

 

 

27,273

 

 

$ 0.65

 

 

 

36

 

 

2/28/2018

 

William Laske

 

2/6/2015

 

 

18,181

 

 

$ 0.65

 

 

 

36

 

 

2/5/2018

 

UPT - Management Agmt

 

3/31/2015

 

 

60,000

 

 

$ 1.00

 

 

 

36

 

 

3/30/2018

 

Carl Willey

 

4/21/2015

 

 

333,333

 

 

$ 0.57

 

 

 

60

 

 

4/19/2020

 

Lincoln Park

 

4/22/2015

 

 

555,556

 

 

$ 0.60

 

 

 

60

 

 

4/20/2020

 

Abdalla Bamashmus

 

5/11/2015

 

 

66,666

 

 

$ 0.60

 

 

 

60

 

 

5/9/2020

 

Anthony Hansel

 

5/11/2015

 

 

55,556

 

 

$ 0.60

 

 

 

60

 

 

5/9/2020

 

Robert Barnes

 

5/11/2015

 

 

22,222

 

 

$ 0.60

 

 

 

60

 

 

5/9/2020

 

Scott Livingston

 

5/11/2015

 

 

22,222

 

 

$ 0.60

 

 

 

60

 

 

5/9/2020

 

Bernard Marcus

 

5/11/2015

 

 

22,222

 

 

$ 0.60

 

 

 

60

 

 

5/9/2020

 

Dan Ustian

 

4/29/2015

 

 

222,222

 

 

$ 0.57

 

 

 

60

 

 

4/27/2020

 

Christopher McKee

 

4/29/2015

 

 

222,222

 

 

$ 0.57

 

 

 

60

 

 

4/27/2020

 

Aldo Bonfiglio

 

5/19/2015

 

 

55,556

 

 

$ 0.60

 

 

 

60

 

 

5/17/2020

 

Glen Biener (aka GB Financial)

 

5/20/2015

 

 

55,556

 

 

$ 0.60

 

 

 

60

 

 

5/18/2020

 

Howard Isaacs

 

6/15/2015

 

 

25,000

 

 

$ 0.70

 

 

 

48

 

 

6/14/2019

 

UPT - Management Agmt

 

6/30/2015

 

 

60,000

 

 

$ 1.00

 

 

 

36

 

 

6/29/2018

 

Peter Vaccaro

 

7/22/2015

 

 

83,333

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

John Nicholson

 

7/22/2015

 

 

100,000

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Rosenberg Family Trust

 

7/22/2015

 

 

166,667

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Robert Mercer

 

7/22/2015

 

 

83,333

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Jeffrey Blume

 

7/22/2015

 

 

333,333

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

 

Nabil Hanna

 

7/22/2015

 

 

100,000

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Carl Willey

 

5/26/2015

 

 

142,857

 

 

$ 0.40

 

 

 

60

 

 

10/26/2020

 

Intracoastal Capital LLC

 

7/28/2015

 

 

44,445

 

 

$ 0.60

 

 

 

44

 

 

2/14/2019

 

Monarch Bay

 

7/15/2015

 

 

69,333

 

 

$ 0.40

 

 

 

60

 

 

7/15/2020

 

Terry Tennant

 

7/20/2015

 

 

200,000

 

 

$ 0.27

 

 

 

37

 

 

8/20/2018

 

Avaraham Taragan

 

10/13/2015

 

 

47,619

 

 

$ 0.24

 

 

 

36

 

 

10/13/2018

 

James Mattiello

 

11/25/2015

 

 

30,000

 

 

$ 0.60

 

 

 

30

 

 

2/28/2018

 

SBI Investments LLC

 

12/2/2015

 

 

250,000

 

 

$ 0.17

 

 

 

36

 

 

12/2/2018

 

SBI Investments LLC

 

12/2/2015

 

 

250,000

 

 

$ 0.14

 

 

 

36

 

 

12/2/2018

 

Abdalla Bamashmus

 

1/9/2016

 

 

115,385

 

 

$ 0.18

 

 

 

60

 

 

1/9/2021

 

Aldo Bonfiglio

 

1/9/2016

 

 

115,385

 

 

$ 0.18

 

 

 

60

 

 

1/9/2021

 

Richard Schul

 

2/22/2016

 

 

100,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Daniel Ustian

 

2/3/2016

 

 

1,000,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Tim Hassett

 

2/3/2016

 

 

625,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Judson Bibb

 

2/3/2016

 

 

750,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Quentin Ponder

 

2/3/2016

 

 

400,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Theodore Banzhaf

 

2/3/2016

 

 

500,000

 

 

$ 0.22

 

 

 

60

 

 

2/3/2021

 

Aldo Bonfiglio

 

3/24/2016

 

 

62,500

 

 

$ 0.32

 

 

 

60

 

 

3/24/2021

 

Abdalla Bamashmus

 

3/24/2016

 

 

62,500

 

 

$ 0.32

 

 

 

60

 

 

3/24/2021

 

Betsy Budzinski

 

3/24/2016

 

 

75,000

 

 

$ 0.32

 

 

 

60

 

 

3/24/2021

 

Michael Greenburg

 

3/24/2016

 

 

62,500

 

 

$ 0.34

 

 

 

60

 

 

3/24/2021

 

Monica Loubet Family Trust

 

3/24/2016

 

 

62,500

 

 

$ 0.32

 

 

 

60

 

 

3/24/2021

 

SBI Investments LLC

 

5/30/2016

 

 

250,000

 

 

$ 0.17

 

 

 

24

 

 

5/30/2018

 

Dan Ustian

 

8/12/2016

 

 

909,090

 

 

$ 0.07

 

 

 

60

 

 

8/12/2021

 

 

Christopher Jones

 

 

8/12/2016

 

 

909,090

 

 

$ 0.07

 

 

 

60

 

 

8/12/2021

 

Inverom Corporation

 

 

8/12/2016

 

 

909,090

 

 

$ 0.07

 

 

 

60

 

 

8/12/2021

 

Eric Brown

 

 

8/12/2016

 

 

909,090

 

 

$ 0.07

 

 

 

60

 

 

8/12/2021

 

Todd Van De Putte

 

 

8/16/2016

 

 

100,000

 

 

$ 0.07

 

 

 

36

 

 

8/16/2019

 

KHIC, LLC

 

 

8/24/2016

 

 

4,000,000

 

 

$ 0.06

 

 

 

60

 

 

8/24/2021

 

Nicola Zaric

 

 

11/22/2016

 

 

59,524

 

 

$ 0.24

 

 

 

36

 

 

10/27/2018

 

Kovacevic Bratislav

 

 

11/22/2016

 

 

119,048

 

 

$ 0.24

 

 

 

36

 

 

10/27/2018

 

 

 

 

29,605,384

 

 

 

 

 

 

 

 

 
43
 
 

 

SCHEDULE 3.1(x)

 

INDEBTEDNESS

 

1. On September 30, 2016, the Company issued Gemini Master Fund, Ltd. a Secured Promissory Note in the original principal amount of $180,000. The Note accrues interest at 5% (18% in the event of an event of default) and matures on June 30, 2017.

 

2. On September 30, 2016, the Company issued Black Mountain Equities, Inc. a Secured Promissory Note in the principal amount of $45,000. The Note accrues interest at 5% (18% in the event of an event of default) and matures on June 30, 2017.

 

3. On August 24, 2016, the Company issued KHIC, LLC a Senior Convertible Promissory Note in the principal amount of $400,000. The Note accrues interest at 3% and matures on August 24, 2018. The Note is convertible into shares of common stock of the Company at a conversion price of $0.025 per share and is senior to all other indebtedness of the Company and its Subsidiaries. The conversion shares have registration rights. $368,703 is currently outstanding under the Note.

 

4. On November 9, 2016, the Company issued Lucas Hoppel a convertible promissory note in the principal amount of $110,000. The Note accrues interest at the rate of 5% and matures on June 9, 2017 and is convertible into shares of common stock at $0.07 per share.

 

5. On May 24, 2016, the Company issued a 10% Convertible Exchange Note to Tangiers Global, LLC which matures on May 24, 2017. There is currently $10.57 outstanding under the Note.

 

The Company’s subsidiary, Ultimate Power Truck, LLC (“UPT”) has the following indebtedness:

 

1. Loan of $250,000 from Al Cullere

 

2. Ford Motor Credit secured loan for three vehicles, $68,009 outstanding at 6% interest rate, due October 1, 2019.

 

 

 

44

 

EXHIBIT 10.66

 

NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.

 

Original Issue Date: March 14, 2017

 

$78,750

 

5% CONVERTIBLE NOTE

 

THIS 5% CONVERTIBLE NOTE is one of a series of duly authorized and validly issued 5% Senior Convertible Notes issued at a 5% original issue discount by Cool Technologies, Inc., a Nevada corporation (the “Company”) (this note, the “Note” and, collectively with the other notes of such series, the “Notes”).

 

FOR VALUE RECEIVED, the Company promises to pay to Bellridge Capital, LP its registered assigns (the “Holder”), or shall have paid pursuant to the terms hereunder, the principal sum of $78,750 (“Original Principal Amount”) on March , 2017 (the “Maturity Date”) or such earlier date as this Note is required or permitted to be repaid as provided hereunder, and to pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Note in accordance with the provisions hereof. This Note is subject to the following additional provisions:

 

Section 1 . Definitions . For the purposes hereof, (a) capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement and (b) the following terms shall have the following meanings:

 

“Alternate Consideration” shall have the meaning set forth in Section 5(e).

 

“Bankruptcy Event” means any of the following events: (a) the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company or any Significant Subsidiary thereof, (b) there is commenced against the Company or any Significant Subsidiary thereof any such case or proceeding that is not dismissed within 60 days after commencement, (c) the Company or any Significant Subsidiary thereof is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Company or any Significant Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company or any Significant Subsidiary thereof makes a general assignment for the benefit of creditors, or (f) the Company or any Significant Subsidiary thereof, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.

 

“Base Conversion Price” shall have the meaning set forth in Section 5(b).

 

“Beneficial Ownership Limitation” shall have the meaning set forth in Section 4(d).

 
 
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“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.

 

“Buy-In” shall have the meaning set forth in Section 4(c)(v).

 

“Change of Control Transaction” means the occurrence after the date hereof of any of (a) an acquisition after the date hereof by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of 50% of the voting securities of the Company (other than by means of conversion, exercise or exchange of the Notes or the Securities issued together with the Notes), (b) the Company merges into or consolidates with any other Person, or any Person merges into or consolidates with the Company and, after giving effect to such transaction, the shareholders of the Company immediately prior to such transaction own less than 50% of the aggregate voting power of the Company or the successor entity of such transaction, (c) the Company sells or transfers all or substantially all of its assets to another Person and the shareholders of the Company immediately prior to such transaction own less than 50% of the aggregate voting power of the acquiring entity immediately after the transaction, (d) a replacement at one time or within a three year period of more than one-half of the members of the Board of Directors of the Company (the “Board of Directors”) which is not approved by a majority of those individuals who are members of the Board of Directors on the Original Issue Date (or by those individuals who are serving as members of the Board of Directors on any date whose nomination to the Board of Directors was approved by a majority of the members of the Board of Directors who are members on the date hereof), or (e) the execution by the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth in clauses (a) through (d) above.

 

“Conversion” shall have the meaning ascribed to such term in Section 4.

 

“Conversion Date” shall have the meaning set forth in Section 4(a).

 

“Conversion Floor” means $0.06 per share.

 

“Conversion Price” shall have the meaning set forth in Section 4(b).

 

“Conversion Schedule” means the Conversion Schedule in the form of Schedule 1 attached hereto.

 

“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of this Note in accordance with the terms hereof.

 

“Default Interest Rate” shall have the meaning set forth in Section 2(a).

 

“Dilutive Issuance” shall have the meaning set forth in Section 5(b).

 

“Dilutive Issuance Notice” shall have the meaning set forth in Section 5(b).

 

“DWAC” means the Deposit or Withdrawal at Custodian system at The Depository Trust Company.

 

“Event of Default” shall have the meaning set forth in Section 7(a).

 

“Fundamental Transaction” shall have the meaning set forth in Section 5(e).

 

“Mandatory Default Amount” means the sum of (a) 125% of the outstanding principal amount of this Note, plus 125% of accrued and unpaid interest hereon, and (b) all other amounts, costs, expenses and liquidated damages due in respect of this Note.

 

“New York Courts” shall have the meaning set forth in Section 8(e).

 

“Note Register” shall mean the note register maintained by the Company.

 
 
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“Notice of Conversion” shall have the meaning set forth in Section 4(a).

 

“Option Value” means the value of a Common Stock Equivalent based on the Black Scholes Option Pricing model obtained from the "OV" function on Bloomberg determined as of (A) the Trading Day prior to the public announcement of the issuance of the applicable Common Stock Equivalent, if the issuance of such Common Stock Equivalent is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Common Stock Equivalent if the issuance of such Common Stock Equivalent is not publicly announced, for pricing purposes and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of the applicable Common Stock Equivalent as of the applicable date of determination, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of (A) the Trading Day immediately following the public announcement of the applicable Common Stock Equivalent if the issuance of such Common Stock Equivalent is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Common Stock Equivalent if the issuance of such Common Stock Equivalent is not publicly announced, (iii) the underlying price per share used in such calculation shall be the highest VWAP of the Common Stock during the period beginning on the Trading Day prior to the execution of definitive documentation relating to the issuance of the applicable Common Stock Equivalent and ending on (A) the Trading Day immediately following the public announcement of such issuance, if the issuance of such Common Stock Equivalent is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Common Stock Equivalent if the issuance of such Common Stock Equivalent is not publicly announced, (iv) a zero cost of borrow and (v) a 360 day annualization factor.

 

“Original Issue Date” means the date of the first issuance of the Notes, regardless of any transfers of any Note and regardless of the number of instruments which may be issued to evidence such Notes.

 

“Payment Date” shall have the meaning set forth in Section 2(b).

 

“Permitted Indebtedness” means (a) Indebtedness outstanding as of the Original Issue Date, (b) the indebtedness evidenced by the Notes, and (c) capital lease obligations and purchase money indebtedness incurred in connection with the acquisition of machinery and equipment.

 

“Purchase Agreement” means the Securities Purchase Agreement, dated as of March , 2017 among the Company and the original Holders, as amended, modified or supplemented from time to time in accordance with its terms.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Share Delivery Date” shall have the meaning set forth in Section 4(c)(ii).

 

“Successor Entity” shall have the meaning set forth in Section 5(e).

 

“Trading Day” means a day on which the principal Trading Market is open for trading.

 

“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, or any market of the OTC Markets, Inc. (or any successors to any of the foregoing).

 

“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted for trading on the OTCQB or OTCQX and if prices for the Common Stock are then reported by the OTC Pink marketplace published by OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (c) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Notes then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.

 

 
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Section 2 . Interest; Payments .

 

(a) Interest . Interest shall accrue to the Holder on the aggregate unconverted and then outstanding principal amount of this Note at the rate of five percent (5%) per annum, calculated on the basis of a 365-day year and shall accrue daily commencing on the Original Issue Date until payment in full of the outstanding principal (or conversion to the extent applicable), together with all accrued and unpaid interest, liquidated damages and other amounts which may become due hereunder, has been made. Following an Event of Default, until such Event of Default has been cured, interest shall accrue at the lesser of (i) the rate of 22% per annum, or (ii) the maximum amount permitted by law (the lesser of clause (i) or (ii), the “Default Interest Rate”). In the event that such Event of Default is subsequently cured, the adjustment referred to in the preceding sentence shall cease to be effective as of the calendar day immediately following the date of such cure; provided that the interest as calculated and unpaid at the Default Interest Rate during the continuance of such Event of Default shall continue to apply to the extent relating to the days after the occurrence of such Event of Default through and including the date of such cure of such Event of Default.

 

(b) Payments . Interest payments are due and payable on the sooner to occur of the date of any conversion of this Note (as to the portion of the Note being converted) on any Prepayment Date (as to such portion that is being prepaid) and on the Maturity Date, except as otherwise set forth in this Note. If any Payment Date is not a Business Day, then the applicable payment shall be due on the next succeeding Business Day. Each Monthly Payment shall be equal to all accrued but unpaid interest. The Company shall pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Note on the Maturity Date (the “Payment Date”) except as otherwise set forth in this Note. If any Payment Date is not a Business Day, then the applicable payment shall be due on the next succeeding Business Day. Each Monthly Payment shall be equal to all accrued but unpaid interest.

 

(c) Payment in Cash . All payments shall be made in cash on any Payment Date.

 

(d) Prepayment and Redemption . At any time while this note may be converted by the Holder, upon 10 days prior written notice to the Holder, the Company may prepay any portion of the principal amount of this Note and any accrued and unpaid interest. If the Company exercises its right to prepay any portion of this Note, the Company shall make payment to the Holder of an amount in cash equal to the sum of the then outstanding principal amount of this Note being prepaid and accrued interest thereon multiplied by 115% if the Note is prepaid within 120 days of the issue date of this Note or 125% of this Note is prepaid after 120 days of the date of this Note. The Holder may continue to convert the Note from the date notice of the prepayment is given until the date of the prepayment.

 

Section 3 . Registration of Transfers and Exchanges .

 

(a) Different Denominations . This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized denominations (of no less than $1,000 in principal amount), as requested by the Holder surrendering the same. No service charge will be payable for such registration of transfer or exchange.

 

(b) Investor Representations . This Note has been issued subject to certain investment representations of the original Holder set forth in the Purchase Agreement and may be transferred or exchanged only in compliance with the Purchase Agreement and applicable federal and state securities laws and regulations.

 

(c) Reliance on Note Register . Prior to due presentment for transfer to the Company of this Note, the Company and any agent of the Company may treat the Person in whose name this Note is duly registered on the Note Register as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.

 

 
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Section 4.Conversion .

 

(a) Voluntary Conversion . After the Original Issue Date until this Note is no longer outstanding, but subject to Section 4(d), this Note shall be convertible, in whole or in part, at any time, and from time to time, into shares of Common Stock at the option of the Holder. The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the principal amount of this Note to be converted and the date on which such conversion shall be effected (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required.To effect conversions hereunder, the Holder shall not be required to physically surrender this Note to the Company unless the entire principal amount of this Note, plus all accrued and unpaid interest thereon, has been so converted. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Note in an amount equal to the applicable conversion. The Holder and the Company shall maintain records showing the principal amount(s) converted in each conversion, the date of each conversion, and the Conversion Price in effect at the time of each conversion. The Company may deliver an objection to any Notice of Conversion within one Business Day of delivery of such Notice of Conversion. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error. The Holder, and any assignee by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted principal amount of this Note may be less than the amount stated on the face hereof. The Holder may assign or sell a portion or all of this Debenture.

 

(b) Conversion Price . The “Conversion Price” in effect on any Conversion Date means, as of any Conversion Date or other date of determination, shall be 70% of the lowest trading price for the Company’s Common Stock during the ten Trading Days immediately preceding the delivery by the Holder of a Notice of Conversion, provided that the Conversion Price shall not be less than Conversion Floor other than as set forth herein. Notwithstanding anything to the contrary herein, the Conversion Price and Conversion Floor will not be adjusted for any reverse splits of the Company’s Common Stock. The applicable prices shall be as reported by Bloomberg L.P. Notwithstanding the foregoing, in no event shall the Conversion Price be less then the par value of the Common Stock or less than the Conversion Floor (whichever is less) provided however, if the price per share of the Company’s Common Stock closes less at less than $0.06 for any five out of ten consecutive trading days after the sooner to occur of the filing of the Registration Statement (the “ Market Price Decline Period ”) or six months from the date of this Note, then the Company shall have the right to pre-pay the outstanding Principal and all accrued interest thereon at an amount equal to 125% of the then Principal and Interest due on the Note (for avoidance of doubt the amount will be all accrued interested due on the Note, plus any other amounts due on the Note, plus the principal amount outstanding multiplied by 125%), provided however, if the Company fails to prepay the Note in its entirety during the thirty business days following a Market Price Decline Period, then there shall be no limit on the Conversion Price (i.e., the floor of $0.06 per share shall no longer be applicable).

 

(c) Mechanics of Conversion or Prepayment .

 

(i) Conversion Shares Issuable Upon Conversion of Principal Amount . The number of Conversion Shares issuable upon a conversion hereunder shall be determined by the quotient obtained by dividing (x) the outstanding principal amount of this Note to be converted by (y) the Conversion Price in effect at the time of such conversion.

 

(ii) Delivery of Certificate Upon Conversion . Not later than three (3) Trading Days after each Conversion Date (the “Share Delivery Date”), the Company shall deliver, or cause to be delivered, to the Holder any certificate or certificates required to be delivered by the Company under this Section 4(c).

 

(iii) Failure to Deliver Certificates . If, in the case of any Notice of Conversion, such certificate or certificates are not delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time on or before its receipt of such certificate or certificates, to rescind such Conversion, in which event the Company shall promptly return to the Holder any original Note delivered to the Company and the Holder shall promptly return to the Company the Common Stock certificates issued to such Holder pursuant to the rescinded Conversion Notice.

 

 
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(iv) Partial Liquidated Damages . If the Company fails for any reason to deliver to the Holder such certificate or certificates pursuant to Section 4(c)(ii) by the Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of principal amount being converted, $10 per Trading Day (increasing to $20 per Trading Day on the tenth Trading Day after such Conversion Date) for each Trading Day after such Share Delivery Date until such certificates are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section 7 hereof for the Company’s failure to deliver Conversion Shares or, if applicable, cash, within the period specified herein and the Holder shall have the right to pursue all remedies available to it hereunder, at Law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable Law.

 

(v) Compensation for Buy-In on Failure to Timely Deliver Certificates Upon Conversion . In addition to any other rights available to the Holder, if the Company fails for any reason to deliver to the Holder such certificate or certificates by the Share Delivery Date pursuant to Section 4(c)(ii), and if after such Share Delivery Date the Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Conversion Shares which the Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy- In”), then the Company shall (A) pay in cash to the Holder (in addition to any other remedies available to or elected by the Holder) the amount, if any, by which (x) the Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that the Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of the Holder, either reissue (if surrendered) this Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued if the Company had timely complied with its delivery requirements under Section 4(c)(ii). For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of this Note with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at Law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock upon conversion of this Note as required pursuant to the terms hereof.

 

(vi) Reservation of Shares Issuable Upon Conversion . Effective upon the contemplated reverse stock split, but in any event no later than January 15, 2017, the Company covenants that it will reserve and keep available out of its authorized and unissued shares of Common Stock for the purpose of issuances upon conversion of this Note and the issued with this Note, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other holders of the Notes), not less than the greater of 1,000,000 shares or 300% of the Required Minimum; and if at any time the number of authorized but unissued shares of Common Stock shall be insufficient to effect the conversion of this note or shall be less than the Required Minimum, the Company shall take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. The Company covenants that all shares of Common Stock that shall be issuable upon conversion of this Note shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.

 

(vii) Fractional Shares . No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share.

 

 
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(viii) Transfer Taxes and Expenses . The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates, provided that, the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holder of this Note so converted and the Company shall not be required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.

 

(d) Holder’s Conversion Limit atio ns . The Company shall not effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group together with the Holder or any of the Holder’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 4(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 4(d) applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than 61 days’ prior notice to the Company, may increase the Beneficial Ownership Limitation provisions of this Section 4(d) solely with respect to the Holder’s Note, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the provisions of this Section 4(d) shall continue to apply. Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company. The Holder may also decrease the Beneficial Ownership Limitation provisions of this Section 4(d) solely with respect to the Holder’s Note at any time, which decrease shall be effectively immediately upon delivery of notice to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Note.

 

 
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Section 5 . Certain Adjustments .

 

(a) Reserved .

 

(b) Subsequent Equity Sales . If, at any time,for so long as the Note or any amounts accrued and payable thereunder remain outstanding, the Company or any Subsidiary, as applicable, sells or grants any option to purchase or sells or grants any right to reprice, or otherwise disposes of or issues, any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock at an effective price per share that is lower than the Conversion Price then in effect (such lower price, the “Base Conversion Price” and each such issuance a “Dilutive Issuance”), then the Conversion Price shall be immediately reduced to equal the Base Conversion Price.

 

If the holder of Common Stock or Common Stock Equivalents outstanding on the Original Issue Date or issued thereafter shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, receive or be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price then in effect, such issuance shall be deemed to have occurred for less than the Conversion Price on such date and such issuance shall be deemed to be a Dilutive Issuance.

 

If after any Dilutive Issuance of Common Stock Equivalents, the price per share for which shares of Common Stock may be issuable thereafter is amended or adjusted, and such price as so amended shall be less than the Conversion Price in effect at the time of such amendment or adjustment, then the Conversion Price shall be adjusted upon each such issuance or amendment as provided in this Section 5(b).

 

In case any Common Stock Equivalent is issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction, (x) the Common Stock Equivalents will be deemed to have been issued for the Option Value of such Common Stock Equivalents and (y) the other securities issued or sold in such integrated transaction shall be deemed to have been issued or sold for the difference of (I) the aggregate consideration received by the Company less any consideration paid or payable by the Company pursuant to the terms of such other securities of the Company, less (II) the Option Value. If any shares of Common Stock or Common Stock Equivalents are issued or sold or deemed to have been issued or sold for cash, the amount of such consideration received by the Company will be deemed to be the net amount received by the Company therefor. If any shares of Common Stock or Common Stock Equivalents are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company will be the VWAP of such public traded securities on the date of receipt. If any shares of Common Stock or Common Stock Equivalents are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock or Common Stock Equivalents, as the case may be.

 

If the Company enters into a Variable Rate Transaction despite the prohibition set forth in the Purchase Agreement, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible conversion price at which such securities may be converted or exercised under the terms of such Variable Rate Transaction.

 

The Company shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 5(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 5(b), upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Conversion Shares based upon the Base Conversion Price on or after the date of such Dilutive Issuance, regardless of whether the Holder accurately refers to the Base Conversion Price in the Notice of Conversion.

 

The provisions of this Section 5(b) shall apply each time a Dilutive Issuance occurs after the Original Issue Date for so long as the Note or any amounts accrued and payable thereunder remain outstanding, but any adjustment of the Conversion Price pursuant to this Section 5(b) shall be downward only.

 

 
8
 
 

 

Notwithstanding anything in this Section 5(b), no adjustment will be made under this Section 5(b) in respect of an Exempt Issuance.

 

(c) Subsequent Rights Offerings . In addition to any adjustments pursuant to Section 5(a) above, if at any time the Company grants, issues or sells any Common Stock, Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights ( provided , however , to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent)).

 

(d) Pro Rata Distributions . During such time as this Note is outstanding, if the Company shall declare or make any dividend or other distribution of its assets or rights or warrants to acquire its assets, or subscribe for or purchase any security other than Common Stock, to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Note, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution ( provided , however , to the extent that the Holder's right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation with respect to the Company or any other publicly-traded corporation subject to Section 13(d) of the Exchange Act, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent)).) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation with respect to the Company or any other publicly-traded corporation subject to Section 13(d) of the Exchange Act).).

 

 
9
 
 

 

(e) Fundamental Transaction . If, at any time while this Note is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of this Note, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation on the conversion of this Note), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Note is convertible immediately prior to such Fundamental Transaction (without regard to any limitation on the conversion of this Note). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Note following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction that is (1) an all cash transaction, (2) a “Rule 13e- 3 transaction” as defined in Rule 13e-3 under the Exchange Act, or (3) a Fundamental Transaction involving a person or entity not traded on a Trading Market, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable concurrently with the consummation of the Fundamental Transaction, purchase this Note from the Holder by paying to the Holder the product of (a) the number of Conversion Shares issuable upon full conversion of this Note (without regard to any limitation on conversion of this Note) and (b) the positive difference between the cash per share paid in such Fundamental Transaction minus the then in effect Conversion Price. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Note and the other Transaction Documents in accordance with the provisions of this Section 5(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the holder of this Note, deliver to the Holder in exchange for this Note a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Note which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Note (without regard to any limitations on the conversion of this Note) prior to such Fundamental Transaction, and with a conversion price which applies the Conversion Price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of this Note immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Note and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein. Notwithstanding anything in this Section 5(e), an Exempt Issuance shall not be deemed a Fundamental Transaction.

 
 
10
 
 

 

(f) Calculations . All calculations under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 5, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Company) issued and outstanding.

 

(g) Notice to the Holder .

 

(i) Adjustment to Conversion Price . Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5, the Company shall promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

 

(ii) Notice to Allow Conversion by Holder . If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of this Note, and shall cause to be delivered to the Holder at its last address as it shall appear upon the Note Register, at least ten calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries (as determined in good faith by the Company), the Company or its successor shall simultaneously file such notice with the SEC pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert this Note during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.

 

 
11
 
 

 

Section 6 . Negative Covenants . As long as any portion of this Note remains outstanding, unless the holders of a majority in principal amount of the then outstanding Notes shall have otherwise given prior written consent, the Company shall not, and shall not permit any of the Subsidiaries to, directly or indirectly:

 

(a) other than Permitted Indebtedness, enter into, create, incur, assume, guarantee or suffer to exist any Indebtedness for borrowed money of any kind, including, but not limited to, a guarantee, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom that is not expressly junior to the Note;

 

(b) amend its charter documents, including, without limitation, its certificate of incorporation and bylaws, in any manner that materially and adversely affects any rights of the Holder, other than the contemplated reverse stock split, which shall be completed by January 15, 2017;

 

(c) enter into any transaction with any Affiliate of the Company which would be required to be disclosed in any public filing with the SEC assuming that the Company is subject to the Securities Act or the Exchange Act, unless such transaction is made on an arm’s-length basis and expressly approved by a majority of the disinterested directors of the Company (even if less than a quorum otherwise required for board approval); or

 

(d) enter into any agreement with respect to any of the foregoing. Section 7 . Events of Default .

 

(a) “ Event of Default ” means, wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary or effected by operation of Law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body):

 

(i) any default in the payment of (A) the principal amount of any Note or (B) interest, late fees, liquidated damages and other amounts owing to a Holder on any Note, as and when the same shall become due and payable (whether on a Conversion Date or the Maturity Date or by acceleration or otherwise) which default, solely in the case of an interest payment or other default under clause (B) above, is not cured within three Trading Days;

 

(ii) the Company shall fail to observe or perform any other covenant or agreement contained in the Notes (other than a breach by the Company of its obligations to deliver shares of Common Stock to the Holder upon conversion, which breach is addressed in clause (xi) below) or any Transaction Document which failure is not cured, if possible to cure, within the earlier to occur of (A) 3 Trading Days after notice of such failure sent by the Holder or by any other Holder to the Company and (B) 5 Trading Days after the Company has become aware of such failure;

 

 
12
 
 

 

(iii) If after two hundred ten (210) days from the date hereof while the Holder owns any Registrable Securities, the Registration Statement is not effective under the Securities Act registering the Registrable Securities;

 

(iv) RESERVED;

 

(v) any representation or warranty made in this Note, any other Transaction Document, any written statement pursuant hereto or thereto or any other report, financial statement or certificate made or delivered to the Holder or any other Holder pursuant hereto or thereto shall be untrue or incorrect in any material respect as of the date when made or deemed made;

 

(vi) the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) shall be subject to a Bankruptcy Event;

 

(vii) the Company or any Subsidiary shall default on any of its obligations under any, mortgage, credit agreement or other facility, indenture agreement, factoring agreement or other instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness for borrowed money, including debentures or promissory notes or money due under any long term leasing or factoring arrangement that (a) involves an obligation greater than $5,000, whether such indebtedness now exists or shall hereafter be created, and (b) results in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise become due and payable and such default is not cured within three Trading Days;

 

(viii) the Common Stock shall not be eligible for listing or quotation for trading on its Trading Market for a period longer than 10 Trading Days;

 

(ix) the Company shall have consummated a Change of Control Transaction or/Fundamental Transaction without paying in full all amounts owed under the Note at or prior to such consummation;

 

(x) a final judgment for the payment of money aggregating in excess of $50,000 is rendered against the Company and/or any of its Subsidiaries and which judgment is not, within 45 days after the entry thereof, bonded, discharged or stayed pending appeal, or is not discharged within 60 days after the expiration of such stay; provided, however, any judgment that is covered by insurance or an indemnity from a credit-worthy party will not be included in calculating the amount of the judgment so long as the Company provides the Holder a written statement from such insurer or indemnity provider (which written statement shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered by insurance or an indemnity and the Company or such Subsidiary (as the case may be) will receive the proceeds of such insurance or indemnity within 30 days of the issuance of such judgment.

 

(xi) the Company shall provide at any time notice to the Holder, including by way of public announcement, of the Company’s intention to not honor requests for conversions of any Notes in accordance with the terms hereof or the Company does not honor a request for conversion of any Notes as required by the Notes

 

(xii) the Company shall be in breach of any material contract or agreement which breach or default the Company has reported in a filing it has made with the Securities and Exchange Commission.

 

(b) Remedies Upon Event of Default . If any Event of Default occurs, the outstanding principal amount of this Note, plus accrued but unpaid interest, liquidated damages and other amounts owing in respect thereof through the date of acceleration, shall become, at the Holder’s election, immediately due and payable in cash at the Mandatory Default Amount. Upon the payment in full of the Mandatory Default Amount, the Holder shall promptly surrender this Note to or as directed by the Company. In connection with such acceleration described herein, the Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable Law. Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder and the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full payment pursuant to this Section 7(b). No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.

 

 
13
 
 

 

(c) Interest Rate Upon Event of Default . Commencing on the occurrence of any Event of Default and until such Event of Default is cured, this Note shall accrue interest at an interest rate equal to the Default Interest Rate.

 

Section 8 . Miscellaneous .

 

(a) No Rights as Stockholder Until Conversion . This Note does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the conversion hereof other than as explicitly set forth in Section 4.

 

(b) Notices . All notices, offers, acceptance and any other acts under this Agreement (except payment) shall be in writing and shall be as set forth in the Purchase Agreement or to such other address as any of them, by notice to the other may designate from time to time. Time shall be counted to, or from, as the case may be, the date of delivery.

 

(c) Absolute Obligation . Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, liquidated damages and accrued interest and late fees, as applicable, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the Company. This Note ranks paripassu with all other Notes now or hereafter issued under the Purchase Agreement.

 

(d) Lost or Mutilated Note . If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to the Company.The applicant for a new Note under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of the new Note.

 

(e) Exclusive Jurisdiction; Governing Law . All questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall only be commenced in the state and federal courts sitting in New York, New York (the “New York Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable Law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable Law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Note or the transactions contemplated hereby.

 

(f) Waiver . Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Company or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion. Any waiver by the Company or the Holder must be in writing.

 

 
14
 
 

 

(g) Severability . If any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect, as long as the essential terms and conditions of this Note for each party remain valid, binding, and enforceable. If it shall be found that any interest or other amount deemed interest due hereunder violates the

applicable Law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable Law.

 

(h) Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note and any of the other Transaction Documents at Law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at Law for any such breach would be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any such breach or any such threatened breach, without the necessity of showing economic loss and without any bond or other security being required. The Company shall provide all information and documentation to the Holder that is reasonably requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Note.

 

(i) Next Business Day . Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.

 

(Signature Pages Follow)

 

 
15
 
 

 

 

IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by a duly authorized officer as of the date first above indicated.

 

COOL TECHNOLOGIES, INC.

 

  

 

 

By:

 

 

 

Name:

Timothy Hassett

 

 

Title:

Chairman and Chief Executive Officer

 

 

 
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ANNEX A

NOTICE OF CONVERSION

 

The undersigned hereby elects to convert principal under the 5% Convertible Note due                  , 2017 issued by Cool technologies, Inc. , a Nevada corporation (the “Company”), into shares of common stock (the “Common Stock”), of the Company according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Company in accordance therewith. No fee will be charged to the holder for any conversion, except for such transfer taxes, if any.

 

By the delivery of this Notice of Conversion the undersigned represents and warrants to the Company that its ownership of the Common Stock does not exceed the amounts specified under Section 4 of this Note, as determined in accordance with Section 13(d) of the Exchange Act.

 

The undersigned agrees to comply with the prospectus delivery requirements under the applicable securities laws in connection with any transfer of the aforesaid shares of Common Stock.

 

Conversion calculations:

 

Date to Effect Conversion:

 

Principal Amount of Note to be Converted:

 

Payment of Interest in Common Stock yes no

If yes, $ of Interest Accrued on

Account of Conversion at Issue.

 

Number of shares of Common Stock to be issued:

 

Signature:

 

Name:

 

DWAC Instructions:

 

Broker No: ___________________ 

 

Account No: _________________________

 

 
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Schedule 1

CONVERSION SCHEDULE

 

The 5% Convertible Note due on                      , 2017 in the original principal amount of $                         are issued by Cool Technologies, Inc., a Nevada corporation. This Conversion Schedule reflects conversions made under Section 4 of the above referenced Note.

 

Dated:

 

Date of Conversion

(or for first entry,

Original Issue Date)

 

Amount of

Converted

Principal

 

Aggregate

Principal

Amount Remaining

Subsequent to

Conversion

(or original

Principal Amount)

 

 

Applicable

Conversion Price

 

Company

Attest

 

 

 

 

 

 

 

 

 

 

 

 

 

18

 

EXHIBIT 31.1

 

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

PURSUANT TO SECTION 302 OF THE

SARBANES-OXLEY ACT OF 2002

 

I, Timothy Hassett, certify that:

 

1.

I have reviewed this Annual Report on Form 10-K of Cool Technologies, Inc (the "registrant") for the year ended December 31, 2016;

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.

The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exhibit Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)

Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)

Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

 

5.

The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

 

(a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

(b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

 

Dated: April 17, 2017

By:

/s/ Timothy Hassett

 

Timothy Hassett

 

Chief Executive Officer

(Principal Executive Officer)

 

EXHIBIT 31.2

 

CERTIFICATION OF CHIEF FINANCIAL OFFICER

PURSUANT TO SECTION 302 OF THE

SARBANES-OXLEY ACT OF 2002

 

I, Quentin Ponder, certify that:

 

1.

I have reviewed this Annual Report on Form 10-K of Cool Technologies, Inc. (the "registrant") for the year ended December 31, 2016;

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

2.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.

The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exhibit Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)

Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)

Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

 

5.

The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

 

(a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

(b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

 

Dated: April 17, 2017

By:

/s/ Quentin Ponder

 

Quentin Ponder

 

Chief Financial Officer

(Principal Financial and Accounting Officer)

 


 

EXHIBIT 32.1

 

CERTIFICATION PURSUANT TO 18 USC, SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906

OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Annual Report of Cool Technologies, Inc. (the "Company") on Form 10-K for the year ended December 31, 2016, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Timothy Hassett, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Sec. 1350, as adopted pursuant to Sec. 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:

 

 

(1) The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

 

 

 

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

Dated: April 17, 2017

By:

/s/ Timothy Hassett

 

Timothy Hassett

 

Chief Executive Officer

(Principal Executive Officer)

 


 

EXHIBIT 32.2

 

CERTIFICATION PURSUANT TO 18 USC, SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906

OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Annual Report of Cool Technologies, Inc. (the "Company") on Form 10-K for the year ended December 31, 2016, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Quentin Ponder, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Sec. 1350, as adopted pursuant to Sec. 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:

 

 

(1) The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

 

 

 

(2) Information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

Dated: April 17, 2017

By:

/s/ Quentin Ponder

 

Quentin Ponder

 

Chief Financial Officer

(Principal Financial and Accounting Officer)