UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K/A
(Amendment
No. 1)
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): March 30, 2015
NanoFlex
Power Corporation
(Exact
name of registrant as specified in its charter)
Florida |
|
333-187308 |
|
46-1904002 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification
No.) |
17207
N. Perimeter Dr., Suite 210
Scottsdale,
AZ 85255
(Address
of Principal Executive Offices)
(former
name or former address, if changed since last report)
Registrant’s
telephone number, including area code: 480-585-4200
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Explanatory
Note
This
Current Report on Form 8-K/A (“Amendment No. 1”) amends the Current Report on Form 8-K filed with the Securities and
Exchange Commission on April 3, 2015 (the “Initial Filing”) by NanoFlex Power Corporation (the “Company”).
This
Amendment No. 1 is being filed pursuant to Item 5.02(a)(3)(iii) of Form 8-K in order to: (1) update certain information
under Item 5.02 of the Initial Filing, and (2) file as an exhibit a letter received from John D. Kuhns pursuant to the opportunity
to respond to the Initial Filing granted to him under Item 5.02(a)(3)(ii) of Form 8-K. The information contained in
this Amendment No. 1 supplements the information contained in Items 1.02 and 5.02 of the Initial Filing. Otherwise, the Initial
Filing is restated herein in its entirety.
Item 1.02 Termination of a Material
Definitive Agreement.
Item 5.02 Departure of Directors
or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Item
8.01 Other Events.
As
of March 30, 2015, shareholders holding approximately 67.26% of the total shares of common stock of NanoFlex Power Corporation
(the “Company,” “we,” “our” or “us”) that are entitled to vote on all Company
matters approved by written consent the removal of John D. Kuhns from his position as a member of the Company’s Board of
Directors.
Mr.
Kuhns’ removal was for “Cause” as defined under his Employment Agreement as amended and dated as of October
1, 2013 (the “Employment Agreement”). The removal arose as a result of his documented conduct and statements, which
breached his fiduciary duties to the Company in order to advance personal monetary and other interests, and thereby threatened
serious financial injury to the Company, its shareholders and its debtholders.
On
March 31, 2015, the Board of Directors terminated the Employment Agreement with Mr. Kuhns for Cause and removed him from his positions
as Co-CEO, and from all other officer positions he held with the Company and its subsidiaries and affiliates, and all director
positions with the Company’s subsidiaries and affiliates.
On
March 18, 2015, the Company received correspondence from Mr. Kuhns’ counsel alleging that Mr. Kuhns has “Good Reason”
to terminate the Employment Agreement for an alleged failure to pay his salary in full. On March 30, 2015, Mr. Kuhns advised that
if the alleged breaches of the Employment Agreement were not cured there was a possibility that he would pursue litigation.
On
April 24, 2015, the Company received a letter from Mr. Kuhns’ counsel (the “Response Letter”) stating that Mr.
Kuhns disagreed with statements in the Initial Filing regarding the circumstances of his removal as a director and officer. A
copy of the Response Letter is attached hereto as Exhibit 17.1, and is incorporated herein by reference. All descriptions of the
contents of the Response Letter (including the Complaint described below) set forth in this Current Report on Form 8-K/A
are qualified in their entireties by reference to the full text of the Response Letter.
The Response Letter was accompanied
by a copy of a complaint (the “Complaint”) filed by John D, Kuhns (the “Plaintiff”) in the United States
District Court Southern District of New York against the Company, Mr. Dean L. Ledger, our current CEO, CFO and member of our Board
of Directors, Mr. Robert J. Fasnacht, our current Executive Vice President and member of our Board of Directors and Mr. Ronald
B. Foster, a shareholder of the Company (each, a “Defendant,” collectively, the “Defendants”). The Complaint
alleges, among other things, that the Plaintiff was terminated by the Company in violation of Section 922 of the Dodd-Frank Act,
that the Company wrongfully terminated the Employment Agreement, that the Defendants made false statements to shareholders regarding
the Plaintiff, that the Defendants (other than the Company) tortuously interfered with the Plaintiff’s Employment Agreement,
and that Mr. Ledger and Mr. Fasnacht breached their fiduciary duties to the Company and its shareholders.
The Plaintiff seeks monetary damages,
including (i) two (2) times of the alleged owed compensation to him, together with interest as well as litigation costs, expert
witness fees and reasonable attorneys’ fees; (ii) damages for the alleged breach of the Employment Agreement by the Company,
estimated to be at least $2 million, plus interest and attorney’s fees; (iii) an unspecified amount for his alleged libel
claim; and (iv) damages for the alleged tortious interference with contract, including punitive damages of at least $2 million.
The Plaintiff is also seeking a declaratory judgment, claiming that he was not terminated as a director and should continue to
hold a seat on the Company’s Board of Directors. The Company believes that the allegations in the Complaint to be without
any merit and will vigorously defend against the claims.
Cautionary
Note
IN
THE INTERESTS OF FULL AND COMPLETE DISCLOSURE AND THE REQUIREMENTS OF FORM 8-K, THE RESPONSE LETTER IS BEING FILED IN EXACTLY
THE FORM IN WHICH IT WAS PROVIDED TO THE COMPANY, WITHOUT REDACTION OR MODIFICATION OF ANY KIND. THE COMPANY WISHES TO EMPHASIZE
THAT THE RESPONSE LETTER REFLECTS THE THOUGHTS AND BELIEFS OF MR. JOHN D. KUHNS. THE COMPANY BELIEVES THE ALLEGATIONS MADE IN
THE RESPONSE LETTER TO BE WITHOUT MERIT AND WILL VIGOROUSLY DEFEND THE ACTION.
Item
9.01. |
|
Financial
Statements and Exhibits |
(d) Exhibits
Exhibit
Number |
|
Description |
|
|
|
17.1 |
|
Letter
from John D. Kuhns’ counsel, dated April 24, 2015 |
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
|
NanoFlex
Power Corporation |
|
|
|
Date: April
28, 2015 |
By: |
/s/
Robert J. Fasnacht |
|
|
Name: Robert
J. Fasnacht |
|
|
Title: Executive
Vice President |
4
Exhibit 17.1
NanoFlex Power (CE) (USOTC:OPVS)
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