UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 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 17, 2018

 

DarkPulse, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware 000-18730 87-0472109
(State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification Number)

 

8760 Virginia Meadows Dr.   20109
Manassas, Virginia   (Zip Code)
(Address of principal executive offices)    

 

(800) 436-1436

(Registrant’s telephone number, including area code)

 

_________________________

(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)

 

Precommencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Precommencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 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.

 

The disclosure in Item 2.01 below is incorporated by reference into this Item 1.01.

 

ITEM 2.01 COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS.

 

As disclosed in the registrant’s Current Report on Form 8-K filed on May 1, 2018, on April 27, 2018, the registrant, formerly known as Klever Marketing, Inc. and now known as DarkPulse, Inc. (the “ Company ”), DarkPulse Technologies Inc., a New Brunswick corporation (the “ Private Company ”), and DPTH Acquisition Corporation, a Utah corporation and wholly owned subsidiary of Parent (the “ Merger Subsidiary ”) entered into an Agreement and Plan of Merger (the “ Agreement ”), pursuant to which the Merger Subsidiary would merge with and into the Private Company and the Private Company would be the surviving corporation and become a wholly owned subsidiary of the Company (the “ Subsidiary Merger ”). As disclosed in the registrant’s Current Report on Form 8-K filed on July 24, 2018, on July 18, 2018, the Company closed the Subsidiary Merger and filed Articles of Merger merging the Merger Subsidiary into the Private Company, the Private Company paid the Company $150,000 as required by the Agreement, and the Company issued 88,235 shares of its Series D Preferred Stock (the “ Shares ”) to the Private Company shareholders in consideration of their shares of the Private Company, with the Private Company becoming a wholly owned subsidiary of the Company.

 

On August 17, 2018, the parties determined to further amend the Agreement to modify the mechanism by which the Company acquired the Private Company, with the Company acquiring 100% of the Private Company by direct share exchange rather than by subsidiary merger, effective as of the original closing on July 18, 2018. No economic terms, representations, covenants or other terms regarding the transaction were modified, and the Private Company is still considered a wholly owned subsidiary of the Company as of July 18, 2018. The only modification is that the Company has now acquired the Private Company by share exchange rather than by subsidiary merger, with the Shares having been issued to the Private Company shareholders in consideration of the Private Company shareholders having transferred their shares of the Private Company to the Company as of July 18, 2018.

 

The foregoing description of the amendment is qualified in its entirety by reference to the full text of the amendment, filed as Exhibit 2.1 to and incorporated by reference in this report.

 

ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.

 

(d) Exhibits

 

The exhibits listed in the following Exhibit Index are filed as part of this report:

 

Exhibit No. Description
   
2.1 Amendment No. 2 to Agreement and Plan of Merger

 

 

 

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.

 

 

  DarkPulse, Inc.
     
Dated: August 21, 2018 By: /s/ Dennis M. O’Leary
    Dennis M. O’Leary
    CEO & Chairman

 

 

 

 

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Exhibit 2.1

 

AMENDMENT NO. 2

TO

AGREEMENT AND PLAN OF MERGER

 

This Amendment No. 2 to Agreement and Plan of Merger , dated August 17, 2018 and effective as of July 18, 2018 (this “ Amendment ”), by and among DarkPulse, Inc., formerly known as 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 amended, supplemented or otherwise modified from time to time in accordance with its provisions (the “ Agreement ”) by and among Parent, Company and Merger Subsidiary (collectively, the “ Parties ”).

 

WHEREAS, the Parties desire to amend the Merger Agreement to modify the mechanism by which Parent is acquiring Company such that Parent shall not acquire Company by subsidiary merger but shall acquire Company by share exchange, effective as of the closing of the transactions contemplated by the Agreement on July 18, 2018.

 

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.                    All references to “merger” in the Agreement shall be replaced with “share exchange,” and all references to “Merger” in the Agreement shall be replaced with “Share Exchange,” and the Agreement shall be construed so as to modify the structure of the acquisition of Company by Parent from a subsidiary merger to an acquisition of Company by share exchange. DPTH Acquisition Corporation shall no longer be a party to the Agreement.

 

b.                    Article 1 shall be restated in its entirety as follows:

 

____________________________

 

Article 1

Share Exchange

 

At the Share Exchange Time (as defined herein), and subject to and upon the terms and conditions of this Agreement, Parent shall acquire 100% ownership of Company from each of Company’s stockholders set forth on the signature pages of this Agreement (the “ Company Stockholders ”). The consideration to be paid by Parent for each share of capital stock of Company held by the Company Stockholders shall be 100 fully paid and non-assessable shares of Parent’s Class D Voting Preferred Stock for each share (or fractional share) of Company stock (the “ Parent Preferred Stock ”). Company shall also be referred to hereinafter as the “ Surviving Company .”

 

1.1                Effects of Share Exchange .

 

(a)                  Immediately following completion of the share exchange transaction through the issuance of the Parent Preferred Stock, Parent shall be the sole owner of Company, and Company shall be the wholly owned subsidiary of Parent. For federal income tax purposes, it is intended that the Share Exchange shall constitute a tax-free reorganization within the meaning of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the “ Code ”).

 

(b)                  Subject to the provisions of Article 6 and Article 7, the closing of the transactions contemplated hereby (the “ Closing ,” and the date of the Closing will be referred to interchangeably as the “ Closing Date ” and the “ Share Exchange Time ” as the case may be) shall take place at such location, on such date and at such time as Company and Parent mutually agree at the earliest practicable time after the satisfaction or waiver of the conditions in Article 6, but in no event later than five business days after all such conditions have been satisfied or waived, or on such other date as may be mutually agreed by the parties hereto. Effective as of the Share Exchange Time, to effect the Share Exchange, the parties will cause the Parent Preferred Stock to be issued to the shareholders of Company immediately preceding, and the Company Stockholders shall assign their shares of Company stock to Parent.

 

 

 

 

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(c)                  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 Share Exchange Time after the issuance of the shares of Parent Preferred Stock to the Company Stockholders, the Pre-Closing Common Stock shall represent approximately 15% of all of the issued and outstanding capital stock of Parent considered on a fully diluted basis.

 

1.2                 Effect on Company Capital Stock and Parent Capital Stock . To effectuate the Share Exchange, and subject to the terms and conditions of this Agreement, at the Share Exchange Time:

 

(a)                  Each of the Company’s Stockholders shall transfer 100% of their shares of Company common stock or any other stock to Parent, and each share and fractional share of Company stock issued and outstanding immediately prior to the Share Exchange Time shall be, and shall be deemed, transferred to Parent, and 100 fully paid and non-assessable shares of Parent’s Class D Voting Preferred Stock shall be issued to each Company Stockholder for each one share (or fractional share) of Company stock (the “ Parent Preferred Stock ”). Parent will issue to each Company Stockholder stock certificates or Book Entries evidencing the number of shares of Parent Preferred Stock determined in accordance with the foregoing. Immediately after the Share Exchange Time, the holders of Company stock immediately prior to the Share Exchange 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).

 

(b)                  All shares of Parent Preferred Stock issued upon transfer of Company stock to Parent in accordance with the terms and conditions of this Section 1.2 will be deemed to have been issued and paid in exchange for Company stock and all rights pertaining to such shares.

 

1.3                 Directors and Officers of the Surviving Company . The directors of Company immediately prior to the Share Exchange Time will become the sole directors of Parent. As of the Share Exchange Time, the officers of Company immediately prior to the Share Exchange Time will become the sole officers of Parent. Each such director and officer will hold such office until their respective successors are duly appointed or such Persons are removed from office in accordance with applicable law and the articles of incorporation and bylaws of Parent.

 

1.4                 Tax Treatment . It is intended by the parties hereto that the Share Exchange shall constitute a reorganization within the meaning of Section 368(a) of the Code. Each of the parties hereto adopts this Agreement as a “plan of reorganization” within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations. Both prior to and after the Closing, each party’s books and records shall be maintained, and all federal, state and local income tax returns and schedules thereto shall be filed in a manner consistent with the Share Exchange being qualified as a tax-free reorganization under Section 368(a) of the Code (and comparable provisions of any applicable state or local laws).

 

1.5                 Additional Share Exchange Consideration . At Closing, Company shall pay the sum of One Hundred Fifty Thousand Dollars ($150,000) in immediately available funds (the “ Closing Payment Amount ”) to Parent and or its creditors pursuant to the disbursement schedule set forth in Schedule 1.7. In addition to the Closing Payment Amount, Company has agreed and stipulated that Parent may preserve after Closing as additional share exchange consideration, the four convertible promissory notes comprising the Carryover Notes (as defined in Section 6.3(r)) in the total aggregate amount of $150,000.

__________________________________

 

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 Agreement shall remain in full force and affect. This Amendment is not intended to, nor shall, amend any economic or other substantive terms of the Agreement, and is only intended to modify the agreement so that Company shall be acquired Parent by share exchange instead of by subsidiary merger.

 

4.                 Conflicting Provisions . Should any of the provisions of this Amendment conflict with any of the provisions of the 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 ]

 

 

 

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IN WITNESS WHEREOF, each of the undersigned has caused this Amendment No. 2 to Agreement and Plan of Merger to be signed by its duly authorized officer, effective as of July 18, 2018.

 

 

DARKPULSE TECHNOLOGIES INC.

   
   
  By: /s/ Dennis M. O’Leary
  Name: Dennis M. O’Leary
  Title: President & Chairman
     
     
  KLEVER MARKETING, INC.
     
  By: /s/ Dennis M. O’Leary
  Name: Dennis M. O’Leary
  Title: President & Director
     
     
  DPTH ACQUISITION CORPORATION
     
  By: /s/ Dennis M. O’Leary
  Name: Dennis M. O’Leary
  Title: President & Director

 

 
COMPANY STOCKHOLDERS :

 

FANTASTIC NORTH AMERICA INC.

 

By: /s/ Dennis M. O’Leary
Name: Dennis M. O’Leary
Title: President

 

 

 

DR. ANTHONY BROWN

 

/s/ Anthony Brown

Individually

 

 

 

DR. THOMAS A. CELLUCCI

 

/s/ Thomas A. Cellucci

Individually

 

 

 

 

 

 

  3  
 

 

STEPHEN GOODMAN

 

/s/ Stephen Goodman

Individually

 

 

 

MARK BANASH

 

/s/ Mark Banash

Individually

 

 

 

DAVID SINGER

 

/s/ David Singer

Individually

 

 

 

BRUNSON CHANDLER & JONES, PLLC

 

By: /s/ Lance Brunson
Name: Lance Brunson
Title: Managing Member

 

 

 

 

 

 

Signature Page to Amendment No. 2

to

Agreement and Plan of Merger

 

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