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
April 27, 2018
Date of Report (Date of earliest event reported)
Klever Marketing, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 00-18834 | 36-368583 |
| (State of Jurisdiction of in Company) | (Commission File Number) | (I.R.S. Employer Identification No.) |
| 1100 E. 6600 So. #305 SLC, Utah | 84121 |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: 949-465-4494
N/A
(Former name or former address, if changed since last report.)
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 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-4c under the Exchange Act (17CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into Material Definitive Agreement. |
On April 27, 2018, Klever Marketing, Inc. (“ Parent ”), DarkPulse Technologies, Inc. (“ Target Company ”) and DPTH Acquisition Corporation, a wholly owned subsidiary of Parent (the “ Merger Subsidiary ”) entered into an Agreement and Plan of Merger, a notice and copy of which were filed with the SEC on form 8-K on or around May 1, 2018. The parties then agreed to certain largely procedural amendments to the Plan and Agreement of Merger on July 7th, 2018, which are outlined below and a copy of the Amended Agreement is attached and incorporated hereto as Exhibit “2.1”. No terms of the original Plan and Agreement of Merger were deemed amended or changed, except as specifically set out in the Amendment.
Under the terms of the Merger Agreement, Merger Subsidiary will merge with and into Target Company (the “ Merger ”), and Target Company will be the surviving corporation to the Merger and become a wholly owned operating subsidiary of Parent. The Merger is expected to close on or about July 18, 2018, subject to the satisfaction or waiver of customary closing conditions.
The specific amendments are as follows:
a. Section 1.1(e) is hereby amended and restated in its entirety as follows:
At the Closing, Parent’s outstanding capital stock shall consist of approximately 89,680,567 shares of Common Stock (the “Pre-Closing Common Stock”), and at the Merger Time after the issuance of the shares of Parent Preferred Stock to the holders of Company Common Stock pursuant to Section 1.2 below, the Pre-Closing Common Stock shall represent approximately 15% of all of the issued and outstanding capital stock of the Parent considered on a fully diluted basis.
b. Section 1.2 of the original Merger Agreement is hereby amended and restated in its entirety as follows:
1.2 Effect on Company Capital Stock and Merger Subsidiary Capital Stock . To effectuate the Merger, and subject to the terms and conditions of this Agreement, at the Merger Time:
(a) Each share and fractional share of Company Common Stock issued and outstanding immediately prior to the Merger Time will be cancelled and extinguished and automatically converted into the right to receive 100 fully paid and non-assessable shares of Parent’s Class D Voting Preferred Stock (the “Parent Preferred Stock”). Parent will issue to each holder of Company Common Stock certificates or Book Entries evidencing the number of shares of Parent Preferred Stock determined in accordance with the foregoing. Immediately after the Merger Time, holders of Company Common Stock immediately prior to the Merger shall hold approximately 85% of the issued and outstanding shares of Parent Common Stock considered on a fully diluted basis (assuming conversion of the Parent Preferred Stock into Parent Common Stock and including shares reserved for issuance pursuant to stock option plan(s)), or approximately 508,189,880 shares out of 597,870,447 shares considered on a fully diluted basis).
(b) Each share of common stock, $0.01 par value per share, of Merger Subsidiary issued and outstanding immediately prior to the Merger Time will be automatically converted into one validly issued, fully paid and nonassessable share of common stock of the Surviving Company; and
(c) All shares of Parent Preferred Stock issued upon the surrender of and exchange of Company Common Stock for shares in accordance with the terms and conditions of this Section 2.1 will be deemed to have been issued and paid in full satisfaction of all rights pertaining to such shares of Company Common Stock.
| 2 |
c. Section 1.3 is hereby amended and restated in its entirety as follows:
1.3 Rights of Holders of Company Capital Stock .
(a) From and after the Merger Time and until surrendered for exchange, each outstanding stock certificate or Book Entry that, immediately prior to the Merger Time, represented shares of Company Common Stock will be deemed for all purposes, to evidence ownership of and to represent the number of whole shares of Parent Preferred Stock into which such shares of Company Common Stock will have been converted pursuant to Section 1.2(a) above. The record holder of each such outstanding certificate or Book Entry representing shares of Company Common Stock, will, immediately after the Merger Time, be entitled to vote the shares of Parent Preferred Stock into which such shares of Company Common Stock have been converted on any matters on which the holders of record of the Parent Preferred Stock, as of any date subsequent to the Merger Time, are entitled to vote. In any matters relating to such certificates or Book Entries of Company Common Stock, Parent may rely conclusively upon the record of stockholders maintained by Company containing the names and addresses of the holders of record of Company Common Stock on the Closing Date.
d. The references to “Parent Common Stock” in Sections 1.4, 2.3, 3.3, and 3.23, and in the definition of “Merger Consideration” in Article 9, are each hereby replaced with “ Parent Preferred Stock ”.
e. Section 6.3(n) is hereby amended and restated in its entirety as follows:
(n) Company shall have received assurance from Parent, satisfactory to Company, (i) that the number of outstanding shares of capital stock of Parent immediately prior to the Merger Time is approximately 89,680,567 and zero (0) shares of preferred stock of Parent, par value $0.001 per share, (ii) that the Class D Voting Preferred Stock Certificate of Designation shall have been approved in a manner satisfactory to Company, (ii) that none of Parent’s outstanding convertible securities have been converted or exercised after the Effective Date, and (iii) that all of Parent’s outstanding preferred stock or options have been terminated prior to the Merger Time.
f. The references to (i) “Form of Surviving Company Certificate of Incorporation” and (ii) “Form of Surviving Company Bylaws” in the list of Exhibits set forth in the Table of Contents on page iii of the Merger Agreement, as Exhibit A and B, respectively, are each hereby replaced with “ [RESERVED] ”.
g. Paragraph D of the Recitals is hereby replaced in its entirety with “ [RESERVED] ”.
h. Section 1.1(a) is hereby replaced in its entirety with “ [RESERVED] ”.
i. The references to (i) “ Form of Parent Certificate Incorporation ” and “[ see attached ]” on page C-1 of the Merger Agreement, and (ii) “ Form of Parent Bylaws ” and “[ see attached ]” on page D-1 of the Merger Agreement, are each hereby replaced with “ [RESERVED] ”.
j. The references to (i) “Form of Surviving Company Certificate Incorporation” and “[see attached]” on page A-1 of the Merger Agreement, and (ii) “Form of Surviving Company Bylaws” and “[see attached]” on page B-1 of the Merger Agreement, are each hereby replaced with “ [RESERVED] ”.
Unless specifically amended by the Amendment to the Merger Agreement, or reasonably necessary to its application, all obligations, rights, undertakings and terms of the parties under the Merger Agreement shall remain in full force and affect.
Should any of the provisions of this Amendment conflict with any of the provisions of the Merger Agreement, then the provisions of this Amendment shall apply.
| 3 |
The Parent Company, pursuant to the original Plan and Agreement of Merger, reserves the right, but is not obligated to, complete an approximate 6:1 reverse split of its common stock post-closing.
The foregoing description of the Merger Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the complete text of the Merger Agreement Amendment, a copy of which is filed herewith as Exhibit 2.1 and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
The following exhibits are filed with this report:
| Exhibit Number | Description of Exhibit |
| 2.1 | Merger Agreement Amendment dated June 29, 2018, by and among Klever Marketing, Inc., DarkPulse Technologies Holdings Inc. and DPTH Acquisition Corporation. |
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.
|
|
||
| Date: July 13, 2018 | KLEVER MARKETING, INC. | |
| By: |
/s/ Paul Begum
Name: Paul Begum Title: Chief Executive Officer |
|
| 4 |
Exhibit 2.1
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Agreement and Plan of Merger, dated as of June 29, 2018 (this " Amendment "), by and among Klever Marketing, Inc., a Delaware corporation ("Parent"), DarkPulse Technologies Inc., a News Brunswick corporation ("Company"), and DPTH Acquisition Corporation, a Utah corporation ("Merger Subsidiary") amends that certain Agreement and Plan of Merger dated as of April 27, 2018, as supplemented or otherwise modified from time to time in accordance with its provisions (the "Merger Agreement") by and among Parent, Company and Merger Subsidiary (collectively, the "Parties").
WHEREAS, the Parties desire to amend the Merger Agreement to account for certain changes to the conditions to Closing and certain typographical errors.
NOW, THEREFORE, in consideration of the premises set forth above and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Defined Terms . Capitalized terms used but not defined herein have the meanings given to them in the Merger Agreement.
2. Amendments .
a. The references to (i) "Form of Surviving Company Certificate of Incorporation" and (ii) "Form of Surviving Company Bylaws" in the list of Exhibits set forth in the Table of Contents on page iii of the Merger Agreement, as Exhibit A and B, respectively, are each hereby replaced with "[RESERVED]".
b. Paragraph D of the Recitals is hereby replaced in its entirety with "[RESERVED]".
c. Section 1.1(a) is hereby replaced in its entirety with "[RESERVED]".
d. The references to (i) "Form of Parent Certificate Incorporation" and "[see attached]" on page C-1 of the Merger Agreement, and (ii) "Form of Parent Bylaws" and "[see attached]" on page D-1 of the Merger Agreement, are each hereby replaced with "[RESERVED]".
e. Section 1.1(e) is hereby amended and restated in its entirety as follows:
(e) At the Closing, Parent's outstanding capital stock shall consist of approximately 89,685,067 shares of Common Stock (the "Pre-Closing Common Stock"), and at the Merger Time after the issuance of the shares of Parent Preferred Stock to the holders of Company Common Stock pursuant to Section 1.2 below, the Pre-Closing Common Stock shall represent approximately 15% of all of the issued and outstanding capital stock of the Parent considered on a fully diluted basis.
f. Section 1.2 is hereby amended and restated in its entirety as follows:
1.2 Effect on' Company Capital Stock and Merger Subsidiary Capital Stock . To effectuate the Merger, and subject to the terms and conditions of this Agreement, at the Merger Time:
(a) Each share and fractional share of Company Common Stock issued and outstanding immediately prior to the Merger Time will be cancelled and extinguished and automatically converted into the right to receive 100 fully paid and non-assessable shares of Parent's Class D Voting Preferred Stock (the "Parent Preferred Stock"). Parent will issue to each holder of Company Common Stock certificates or Book Entries evidencing the number of shares of Parent Preferred Stock determined in accordance with the foregoing.
Immediately after the Merger Time, holders of Company Common Stock immediately prior to the Merger shall hold approximately 85% of the issued and outstanding shares of Parent Common Stock considered on a fully diluted basis (assuming conversion of the Parent Preferred Stock into Parent Common Stock and including shares reserved for issuance pursuant to stock option plan(s)), or approximately 508,215,380 shares out of 597,900,447 shares considered on a fully diluted basis).
| 1 |
(b) Each share of common stock, $0.01 par value per share, of Merger Subsidiary issued and outstanding immediately prior to the Merger Time will be automatically converted into one validly issued, fully paid and nonassessable share of common stock of the Surviving Company; and
(c) All shares of Parent Preferred Stock issued upon the surrender of and exchange of Company Common Stock for shares in accordance with the terms and conditions of this Section 1.2 will be deemed to have been issued and paid in full satisfaction of all rights pertaining to such shares of Company Common Stock.
g. Section 1.3 is hereby amended and restated in its entirety as follows:
1.3 Rights of Holders of Company Capital Stock .
(a) From and after the Merger Time and until surrendered for exchange, each outstanding stock certificate or Book Entry that, immediately prior to the Merger Time, represented shares of Company Common Stock will be deemed for all purposes, to evidence ownership of and to represent the number of whole shares of Parent Preferred Stock into which such shares of Company Common Stock will have been converted pursuant to Section 1.2(a) above. The record holder of each such outstanding certificate or Book Entry representing shares of Company Common Stock, will, immediately after the Merger Time, be entitled to vote the shares of Parent Preferred Stock into which such shares of Company Common Stock have been converted on any matters 011 which the holders of record of the Parent Preferred Stock, as of any date subsequent to the Merger Time, are entitled to vote. In any matters relating to such certificates or Book Entries of Company Common Stock, Parent may rely conclusively upon the record of stockholders maintained by Company containing the names and addresses of the holders of record of Company Common Stock on the Closing Date.
(b) [RESERVED].
h. The references to "Parent Common Stock" in Sections 1.4, 2.3, 3.3, and 3.23, and in the definition of "Merger Consideration" in Article 9, are each hereby replaced with "Parent Preferred Stock".
i. Section 2.10 is hereby amended and restated in its entirety as follows:
2.10 Financial Statements . Prior to the Closing, Company has made available to Parent unaudited consolidated balance sheets of Company at December 31, 2017, and the related unaudited consolidated statements of operations, stockholders' equity and cash flows of Company for the annual period then ended, as well as an unaudited consolidated balance sheet of Company as of March 31, 2018, and the related unaudited consolidated statements of operations, stockholders' equity and cash flows of Company for the three-month period then ended (together, the "Company Financial Statements"). The Company Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto), and fairly present the financial position of Company as of the respective dates thereof and the results of its operations and cash flows and stockholder equity for the periods indicated.
j. Section 6.3(n) is hereby amended and restated in its entirety as follows:
(n) Company shall have received assurance from Parent, satisfactory to Company, (i) that the number of outstanding shares of capital stock of Parent immediately prior to the Merger Time is approximately 89,685,067 and zero (0) shares of preferred stock of Parent, par value $0.001 per share, (ii) that the Class D Voting Preferred Stock Certificate of Designation shall have been amended in a manner satisfactory to Company, (ii) that none of Parent's outstanding convertible securities have been converted or exercised after the Effective Date, and (iii) that all of Parent's outstanding preferred stock or options have been terminated prior to the Merger Time.
| 2 |
k. The references to (i) "Form of Surviving Company Certificate Incorporation" and "[see attached]" on page A-1 of the Merger Agreement, and (ii) "Form of Surviving Company Bylaws" and "[see attached]" on page B-1 of the Merger Agreement, are each hereby replaced with "[RESERVED]".
3. All Other Terms Unchanged . Unless specifically amended by this instrument, or reasonably necessary to its application, all obligations, rights, undertakings and terms of the parties under the Merger Agreement shall remain in full force and affect.
4. Conflicting Provisions . Should any of the provisions of this Amendment conflict with any of the provisions of the Merger Agreement, then the provisions of this Amendment shall apply.
5. Counterparts; Delivery . This Amendment may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. In addition, executed counterparts may be delivered by means of facsimile or other electronic transmission; and signatures so delivered shall be fully and validly binding to the same extent as the delivery of original signatures.
6. Miscellaneous .
a. This Amendment shall inure to the benefit of and be binding upon each of the Parties and each of their respective permitted successors and permitted assigns.
b. The headings in this Amendment are for reference only and do not affect the interpretation of this Amendment.
[Signatures on Following Page]
| 3 |
IN WITNESS WHEREOF, each of the undersigned has caused this Amendment No. I to Agreement and Plan of Merger to be signed by its duly authorized officer, effective as of the date first written above.
| DARKPULSE TECHNOLOGIES INC. | |
| By: /s/ Dennis M. O’Leary | |
| Name: Dennis M. O’Leary | |
| Title: President & Chairman | |
| KLEVER MARKETING, INC. | |
| By: /s/ Paul Begum | |
| Name: Paul Begum | |
| Title: President & Director | |
| DPTH ACQUISITION CORPORATION | |
| By: /s/ Paul Begum | |
| Name: Paul Begum | |
| Title: Incorporator & Initial Sole Director |
Signature Page to Amendment No. I
to
Agreement and Plan of Merger
| 4 |