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): September 21, 2016

 

HELIOS AND MATHESON ANALYTICS INC.

(Exact name of Registrant as specified in charter)

 

 

 

 

 

Delaware

(State or other jurisdiction
of incorporation)

 

0-22945
(Commission File Number)

 

13-3169913
(IRS Employer
Identification Number)

 

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).

 

 

 

 

 

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 CFR240.14a-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 240.13(e)-4(c))

 



 

     

 
 

 

   

ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

 

On September 21, 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 Acknowledgment of Satisfaction of Condition and Second Amendment to Agreement and Plan of Merger (the “Amendment”), amending the previously reported Agreement and Plan of Merger, dated as of July 7, 2016, as amended by the previously reported Waiver and First Amendment to Agreement and Plan of Merger, dated as of August 25, 2016, by and among HMNY, Zone and the Sub (collectively, 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) acknowledges that the sale of Senior Secured Convertible Notes by HMNY on September 7, 2016 satisfied the condition set forth in Section 5.1(c) of the Merger Agreement requiring HMNY to consummate a Capital Raising Transaction, as defined in the Merger Agreement; (ii) amends Section 4.19 of the Merger Agreement to require HMNY’s Board to adopt an amendment to HMNY’s 2014 Equity Incentive Plan (the “Plan”) such that the number of shares of HMNY common stock available for issuance pursuant to awards made under the Plan shall be 1,125,000 shares immediately after the effective time of the Merger; and (iii) amending and restating Exhibit B to the Merger Agreement, which sets forth the post-Merger capitalization of HMNY to include shares of HMNY common stock that may be issued upon conversion of the Senior Secured Convertible Notes.

 

Other than as expressly modified pursuant to the Amendment, the Merger Agreement 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

 

Exhibit No .

Description

   

2.1

Acknowledgment of Satisfaction of Condition and Second Amendment to Agreement and Plan of Merger, dated as of September 21, 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: September 21, 2016

 

 

     
  HELIOS AND MATHESON ANALYTICS INC.  

 

 

 

 

 

 

 

 

 

By:

        /s/ Parthasarathy Krishnan 

 

 

 

Parthasarathy Krishnan, Chief Executive Officer

 

 

 

 

 

  

 
 

 

 

 

EXHIBIT INDEX

 

Exhibit No.

Description

   
2.1 Acknowledgment of Satisfaction of Condition and Second Amendment to Agreement and Plan of Merger dated September 21, 2016

 

 

Exhibit 2.1

 

ACKNOWLEDGMENT OF SATISFACTION OF CONDITION

AND SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER

 

This ACKNOWLEDGMENT OF SATISFACTION OF CONDITION AND SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER is made and entered into as of September 21, 2016 (this “ Acknowledgment 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 , on September 7, 2016, Helios consummated a private offering of Senior Secured Convertible Notes in the amount of $4,381,075 (the “ Note Financing ”);

 

WHEREAS, as a result of the Note Financing, the Parties have agreed that Exhibit B to the Merger Agreement, setting forth the Post-Merger Capitalization of Helios, shall be amended as set forth in this Acknowledgment and Amendment; and

 

WHEREAS , in accordance with Section 7.9 , the Parties desire to amend the Merger Agreement as set forth in this Acknowledgment 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
ACKNOWLEDGMENT OF SATISFACTION OF CONDITION

 

1.1      Acknowledgment . The Company hereby acknowledges and agrees that the Note Financing satisfies the condition set forth in Section 5.1(c) of the Merger Agreement, requiring Helios to consummate a Capital Raising Transaction pursuant to which Helios would receive aggregate gross cash proceeds of at least $5,000,000 and up to $10,000,000 before deduction of offering expenses and any underwriter or placement agent fees, discounts or expenses.

 

1.2      No Further Obligations Regarding the Capital Raising Transaction . Upon the execution of this Acknowledgment and Amendment, the Parties agree that Helios shall have no further obligation to take any actions required under the Merger Agreement to consummate a Capital Raising Transaction.

 

ARTICLE II
AMENDMENTS

 

2.1      Amendment to Section 4.19 . The first sentence of Section 4.19 of the Merger Agreement shall be deleted in its entirety and the following shall appear in its place:

 

4.19     Amendment to Helios Equity Incentive Plan. The Helios Board shall duly approve and adopt an amendment to Helios’s 2014 Equity Incentive Plan (the “Helios Equity Plan”) such that the number of shares available for issuance pursuant to awards thereunder, in total, shall equal 1,125,000 immediately after the Effective Time and satisfaction of the conditions to Closing set forth in Article 5 (the “Helios Plan Amendment”), subject to and in accordance with the Post-Merger Capitalization.

 

 
 

 

   

2.2      Amendment to Exhibit B . The Parties agree that Exhibit B to the Merger Agreement is hereby amended and restated in its entirety in the form of Attachment 1 to this Acknowledgment and Amendment.

 

ARTICLE III
MISCELLANEOUS

 

3.1      Counterparts; Execution . This Acknowledgment 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 Acknowledgment 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 Acknowledgment and Amendment by the signing/transmitting Party.

 

3.2      No Other Amendments . Except as specifically amended hereby, the Merger Agreement, as amended by the Waiver and First Amendment to Agreement and Plan of Merger, is and remains unmodified and in full force and effect and is hereby ratified and confirmed.

 

3.3      Governing Law; Jurisdiction . This Acknowledgment 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, as amended by the Waiver and First Amendment to Agreement and Plan of Merger and this Acknowledgment 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 Acknowledgment 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 ACKNOWLEDGMENT AND AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

[ Signature Page Follows ]

 

 
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IN WITNESS WHEREOF , each of the Parties has caused this Acknowledgment and Amendment to be executed on its behalf by its duly authorized officers as of the day and year first above written.

 

 

 

 

HELIOS AND MATHESON ANALYTICS INC.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Parthasarathy Krishnan

 

 

 

Name: Parthasarathy Krishnan

 

 

 

Title: Chief Executive Officer

 

       
       
       
  ZONE ACQUISITION, INC.  
       
       
  By: /s/ Parthasarathy Krishnan  
    Name: Parthasarathy Krishnan  
    Title: President  
       
       
       
  ZONE TECHNOLOGIES, INC.  
       
       
  By: /s/ Theodore Farnsworth  
    Name: Theodore Farnsworth  
    Title: Chief Executive Officer  

 

 
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ATTACHMENT 1

 

AMENDED AND RESTATED EXHIBIT B

  TO AGREEMENT AND PLAN OF MERGER

 

Helios & Zone

Post-Merger Capitalization

 

   

Pre-Split

 
                                 
       Issued & Outstanding    

%

   

Fully Diluted

   

%

 

HMNY/Zone Post Merger Cap Structure:

                               

Helios & Matheson Existing

    2,330,438       57.25 %     2,330,438       40.26 %

Zone Merger Consideration

    1,740,000       42.75 %     1,740,000       30.06 %

Senior Convertible Note Financing (Principal/$8.075 Conversion Price)

                    542,548       9.37 %

Senior Convertible Note Financing (Interest/$8.075 Conversion Price)

                    40,691       0.70 %

Warrant Issued to Palladium

                    9,908       0.17 %

Equity Incentive Plan

                    1,125,000       19.43 %
                                 

Total

    4,070,438       100.00 %     5,788,585       100.00 %
                                 
                                 

HMNY/Zone Post Merger Cap Structure:

                               

Helios & Matheson Existing

    2,330,438       57.25 %     2,330,438       36.51 %

Zone Merger Consideration

    1,740,000       42.75 %     1,740,000       27.26 %

Senior Convertible Note Financing (Principal/$4.00 Conversion Price)

                    1,095,269       17.16 %

Senior Convertible Note Financing (Interest/$4.00 Conversion Price)

                    82,145       1.29 %

Warrant Issued to Palladium

                    9,908       0.16 %

Equity Incentive Plan

                    1,125,000       17.63 %
                                 

Total

    4,070,438       100.00 %     6,382,760       100.00 %
                                 
                                 
                                 

Senior Convertible Note Financing

                               

Total Principal Amount

  $ 4,381,075                          

Total Interest Amount (15 months at 6%)

  $ 328,581                          

Total Principal and Interest

  $ 4,709,656                          
                                 

Number of shares to be issued at $8.075/Principal

    542,548                          

Number of shares to be issued at $8.075/Interest

    40,691                          

Number of shares to be issued at $4.00/Principal

    1,095,269                          

Number of shares to be issued at $4.00/Interest

    82,145                          

 

 

 

4