UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 25, 2016
HELIOS AND MATHESON ANALYTICS INC.
(Exact name of Registrant as specified in charter)
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Delaware
(State or other jurisdiction
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0-22945
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13-3169913
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Empire State Building
350 5 th Avenue
New York, New York 10118
(Address of principal executive offices)
Registrant’s telephone number, including area code: (212) 979-8228
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 (see General Instruction A.2 below).
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)). |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13(e)-4(c)) |
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On August 25, 2016, Helios and Matheson Analytics Inc., a Delaware corporation (“HMNY” ), Zone Acquisition, Inc., a Nevada corporation and wholly owned subsidiary of HMNY (the “Sub”), and Zone Technologies, Inc., a privately held Nevada corporation (“Zone”), entered into that certain Waiver and First Amendment to Agreement and Plan of Merger (the “Amendment” ), amending the previously reported Agreement and Plan of Merger, dated as of July 7, 2016 by and among HMNY, Zone and the Sub (the “ Merger Agreement” ), pursuant to which, subject to the satisfaction or waiver of certain conditions, the Sub will merge with and into Zone, with Zone surviving as a wholly owned subsidiary of HMNY (the “Merger”).
The Amendment (i) waives the requirement that HMNY file and cause to become effective a registration statement registering the merger consideration issuable under the Merger Agreement as a condition to closing the Merger, (ii) extends the Due Diligence Review Period (as defined in the Merger Agreement) to September 16, 2016; and (iii) extends the date by which HMNY’s board of directors must have received the Fairness Opinion (as defined in the Merger Agreement) to August 23, 2016.
Other than as expressly modified pursuant to the Amendment, the Merger Agreement, which the Company filed as Exhibit 2.1 to its Current Report on Form 8-K filed with the Securities Exchange Commission (the “SEC”) on July 12, 2016, remains in full force and effect without modification. The foregoing description of the Amendment is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed with this Current Report as Exhibit 2.1, which is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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Exhibit
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Description |
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2.1 |
Waiver and First Amendment to Agreement and Plan of Merger, dated as of August 25, 2016 |
Important Additional Information
This communication does not constitute an offer to buy or sell or the solicitation of an offer to buy or sell any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful. This communication does not constitute a solicitation of any vote or approval. This communication relates to a proposed business combination between HMNY and Zone. In connection with this proposed business combination and in accordance with the Merger Agreement, HMNY plans to file a definitive Information Statement on Schedule 14C with the SEC in connection with HMNY’s receipt of Helios & Matheson Information Technology, Ltd. (“HMIT”)’s written consent to the Merger and the transactions contemplated by the Merger Agreement, in lieu of a meeting. INVESTORS AND SECURITY HOLDERS OF HMNY ARE URGED TO READ THE DEFINITIVE INFORMATION STATEMENT AND OTHER DOCUMENTS THAT MAY BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Any definitive Information Statement (if and when available) will be mailed to stockholders of HMNY in accordance with Regulation 14C under the Securities Exchange Act of 1934, as amended. Investors and security holders will be able to obtain free copies of these documents (if and when available) and other documents filed with the SEC by HMNY through the website maintained by the SEC at www.sec.gov. Copies of the documents filed with the SEC by HMNY will be available free of charge on HMNY’s website at www.hmny.com.
Cautionary Statement on Forward-looking Information
Certain statements in this Current Report and its exhibits contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 or under Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (collectively, “forward-looking statements”) that may not be based on historical fact, but instead relate to future events, including without limitation statements containing the words “believe”, “may”, “plan”, “will”, “estimate”, “continue”, “anticipate”, “intend”, “expect” and similar expressions. All statements other than statements of historical fact included in this communication are forward-looking statements.
Such forward-looking statements are based on a number of assumptions. Although management of HMNY believes that the assumptions made and expectations represented by such statements are reasonable, there can be no assurance that a forward-looking statement contained herein will prove to be accurate. Actual results and developments may differ materially from those expressed or implied by the forward-looking statements contained herein and even if such actual results and developments are realized or substantially realized, there can be no assurance that they will have the expected consequences or effects.
Given these risks, uncertainties and factors, you are cautioned not to place undue reliance on such forward-looking statements and information, which are qualified in their entirety by this cautionary statement. All forward-looking statements and information made herein are based on HMNY’s current expectations and HMNY does not undertake an obligation to revise or update such forward-looking statements and information to reflect subsequent events or circumstances, except as required by law.
SIGNATURE
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.
Dated: August 31, 2016
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HELIOS AND MATHESON ANALYTICS INC. |
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By: |
/s/ Parthasarathy Krishnan |
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Parthasarathy Krishnan, Chief Executive Officer |
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EXHIBIT INDEX
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Exhibit
No.
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Description |
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2.1 |
Waiver and First Amendment to Agreement and Plan of Merger, dated as of August 25, 2016 |
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Exhibit 2.1
WAIVER AND FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This WAIVER AND FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER is made and entered into as of August 25, 2016 (this “ Waiver and Amendment ”) by and among HELIOS AND MATHESON ANALYTICS INC., a Delaware corporation (“ Helios ”); ZONE ACQUISITION, INC., a Nevada corporation (“ Sub ”), and ZONE TECHNOLOGIES, INC., a Nevada corporation (the “ Company ”, together with Helios and Sub, the “ Parties ” and each, a “ Party ”). Capitalized terms used herein but not herein defined shall have the respective meanings ascribed thereto in that certain Agreement and Plan of Merger, dated as of July 7, 2016, by and among Helios, Sub and the Company (the “ Merger Agreement ”). Unless explicitly stated otherwise, references to “Sections” or a “Section” refer to Sections or a Section of the Merger Agreement, and references to any “Schedule” refer to a Schedule to the Merger Agreement.
WHEREAS , the Parties have agreed to waive the condition under Section 5.1(h) for Helios to file the Registration Statement and for the Registration Statement to be declared effective by the SEC under the Securities Act as a condition precedent to their obligations to consummate the Merger.
WHEREAS , in accordance with Section 7.9 , the Parties desire to amend the Merger Agreement as set forth in this Waiver and Amendment.
NOW, THEREFORE , in consideration of the mutual covenants of the Parties as hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
WAIVER
1.1 Waiver . The Parties hereby agree to waive the following provision as a condition precedent to their obligations to consummate the Merger:
A. “5.1 Conditions to Obligations of Each Party.
B. (h) Effectiveness of the Registration Statement. The Registration Statement shall have been declared effective by the SEC under the Securities Act. No stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC and no Legal Proceedings for that purpose shall have been initiated or threatened by the SEC.”
1.2 No Further Obligations Regarding the Registration Statement . Upon the execution of this Waiver and Amendment, none of the Parties shall have further obligations to take any actions required under the Merger Agreement to prepare or file the Registration Statement or to cause it to become effective.
ARTICLE II
AMENDMENTS
2.1 Amendment to Section 7.1 (Definitions) . The definition of “Due Diligence Review Period” under Section 7.1 is hereby amended and restated to read in its entirety as follows:
C. “‘ Due Diligence Review Period ’ means the period from the date of this Agreement until 12:00 PM Pacific time on September 16, 2016 during which the Company and Helios shall complete their respective due diligence review of the other.”
2.2 Amendment to Section 5.1 (Conditions to Obligations of Each Party) . Subsection (m) (Opinion of Financial Advisor) under Section 5.1 is hereby amended and restated to read in its entirety as follows:
D. “No later than August 23, 2016 , the Helios Board shall have received the opinion of a financial advisor to the effect that, as of the date of such opinion, and based upon and subject to the various assumptions, qualifications, limitations and other matters considered in connection with the preparation of such opinion, the Exchange Ratio in the Merger and the Post-Merger Capitalization, and the Reserve Amount Forgiveness were fair, from a financial point of view, to Helios and its stockholders (the “Fairness Opinion”), and such opinion shall have not been modified or withdrawn following the date thereof.”
ARTICLE III
MISCELLANEOUS
3.1 Counterparts; Execution . This Waiver and Amendment may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute but one and the same instrument. This Waiver and Amendment will become effective when duly executed by each Party. Facsimile or other electronically scanned and transmitted signatures (including by email attachment) shall be deemed originals and shall constitute valid execution and acceptance of this Waiver and Amendment by the signing/transmitting Party.
3.2 No Other Amendments . Except as specifically amended hereby, the Merger Agreement is and remains unmodified and in full force and effect and is hereby ratified and confirmed.
3.3 Governing Law; Jurisdiction . This Waiver and Amendment shall be governed by and construed in accordance with the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of laws thereof, except to the extent that mandatory provisions of federal law apply or mandatory principles of law require the application of the law of another jurisdiction. Each of the Parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the courts of the State of New York and any appellate court thereof and the United States District Court, Southern District of New York and any appellate court thereof, in any action or proceeding arising out of or relating to the Merger Agreement, this Waiver and Amendment or the agreements delivered in connection herewith or the transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each of the Parties hereby irrevocably and unconditionally (a) agrees not to commence any such action except in such courts, (b) agrees that any claim in respect of any such action or proceeding may be heard and determined in such courts, (c) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to venue of any such action or proceeding in any such courts, and (d) waives, to the fullest extent permitted by Law, the defense of any inconvenient forum to the maintenance of such action or proceeding in any such courts. Each of the Parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each of the Parties irrevocably consents to service of process in any such action or proceeding in the manner provided for notices in Section 7.13 of the Merger Agreement; provided , that nothing in this Waiver and Amendment shall affect the right of any Party to the Merger Agreement to serve process in any other manner permitted by Law.
3.4 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY, IN ANY MATTERS (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS WAIVER AND AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[ Signature Page Follows ]
IN WITNESS WHEREOF , each of the Parties has caused this Waiver and Amendment to be executed on its behalf by its duly authorized officers as of the day and year first above written.
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HELIOS AND MATHESON ANALYTICS INC. |
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By: |
/s/ Parthasarathy Krishnan |
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Name: Parthasarathy Krishnan |
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Title: Chief Executive Officer |
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ZONE ACQUISITION, INC. |
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By: |
/s/ Parthasarathy Krishnan |
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Name: Parthasarathy Krishnan |
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Title: President |
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ZONE TECHNOLOGIES, INC. |
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By: |
/s/ Theodore Farnsworth |
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Name: Theodore Farnsworth |
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Title: Chief Executive Officer |
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