UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): June 22, 2022
Commission File Number 000-18730
DARKPULSE, INC.
(Exact name of small business issuer as specified in its charter)
| Delaware | 87-0472109 | |
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(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
815 Walker Street, Suite 1155, Houston, TX 77002
(Address of principal executive offices)
800-436-1436
(Issuer’s telephone number)
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 Instructions 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-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Not applicable. |
Indicate by check mark whether the registrant is an emerging growth company as defined in 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 A Material Definitive Agreement. |
On June 22, 2022, the Board of Directors of DarkPulse, Inc., a Delaware corporation (the “Company”), with Dennis O’Leary abstaining, approved the Employment Agreement dated effective April 1, 2022 (the “Effective Date”) with Mr. O’Leary, the Company’s Chief Executive Officer (the “Agreement”). The term of the Agreement is three years from the Effective Date, subject to termination. The Agreement may be terminated upon the death or disability of Mr. O’Leary or for “Cause,” as defined in the Agreement. Pursuant to the Agreement, Mr. O’Leary is entitled to an annual salary of $300,000, which may accrue and be paid once the Company has available funds. Any accrued and unpaid base salary may also be converted subject to mutual agreement of the Company and Mr. O’Leary. Also, pursuant to the Agreement, upon the filing of the Certificate of Designation with the Delaware Secretary of State, Mr. O’Leary is to be issued 100 shares of Series A Super Voting Preferred Stock (the “Series A Preferred Stock”) of the Company.
| Item 3.02 | Unregistered Sales of Equity Securities. |
The disclosure set forth in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
The sale of the Series A Preferred Stock was exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), in reliance on an exemption provided by Rule 506(b) of Regulation D of the Securities Act. The Company did not pay any commissions or finder’s fees in connection with the sale to Mr. O’Leary.
| Item 3.03 | Material Modification to Rights of Security Holders. |
The disclosure set forth in Item 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 5.01 | Changes in Control of Registrant |
The disclosure set forth in Items 1.01 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
Prior to the issuance of the shares of Series A Preferred Stock to Mr. O’Leary, based on 5,451,212,038 shares of the Company’s Common Stock issued and outstanding as of May 10, 2022 (as reported in the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2022), Mr. O’Leary held no shares of the Company’s Common Stock and 67,647 shares of the Company’s Series D Preferred Stock which entitles him to 6,000 votes per share (405,882,000 votes out of 5,980,622,038 votes or 6.79%);
After the issuance of the shares of Series A Preferred Stock to Mr. O’Leary, based on 5,451,212,038 shares of the Company’s Common Stock issued and outstanding as of May 10, 2022 (as reported in the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2022), Mr. O’Leary now holds securities representing 53.40% of the voting power of the Company’s issued and outstanding voting securities and a <1% economic interest in the Company due to the fact that the shares of Series A Preferred Stock are not convertible and the shares of Series D Preferred Stock are convertible into two shares of Common Stock. There are no arrangements or understandings among the Company and Mr. O’Leary with respect to the election of directors or other matters.
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| Item 5.03 | Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year |
The Board of Directors of the Company has determined that it is advisable and in the best interest of the Company and its stockholders to create a voting capital stock structure that is designed (i) for management stability, with appropriate Board supervision, over a critical period of the next several years of the Company’s development to provide the Company’s management with the time and independence to concentrate on long-term objectives, including but not limited to the effectuation of the Company’s business plan, and (ii) to act as an impediment to outside parties attempting to take over or influence the Company, and thereby distract management from focusing on the Company’s short-term and long-term goals.
On June 22, 2022, the Board of Directors of the Company approved the filing of an amendment to the Company’s Certificate of Incorporation (the “Certificate of Incorporation”), in the form of a Certificate of Designation that authorized for issuance of up to 100 shares of a new series of Preferred Stock, par value $0.01 per share, of the Company designated “Series A Super Voting Preferred Stock” and established the rights, preferences and limitations thereof. The Board authorized the Series A Preferred Stock pursuant to the authority given to the Board under the Certificate of Incorporation, which authorizes the issuance of up to 2,000,000 shares of Preferred Stock, par value $0.01 per share, and authorizes the Board, by resolution, to establish any or all of the unissued shares of Preferred Stock, not then allocated to any series into one or more series and to fix and determine the designation of each such shares, the number of shares which shall constitute such series and certain preferences, limitations and relative rights of the shares of each series so established.
The Company has no present plans or intentions to issue shares of Series A Preferred Stock to any other person or entity.
Dividends
There will be no dividends due or payable on the Series A Preferred Stock.
Liquidation Rights
Upon liquidation, dissolution and winding up of the Company, whether voluntary or involuntary, the holders of the Series A Preferred Stock then outstanding shall not be entitled to receive out of the assets of the Company, whether from capital or earnings available for distribution, any amounts which will be otherwise available to and distributed to the common stockholders.
Conversion Rights
The shares of Series A Preferred Stock are not convertible into shares of the Company’s Common Stock.
Voting Rights
The holders of the Series A Preferred Stock shall be entitled to vote, on a pro-rata basis, on all matters subject to a vote or written consent of the holders of the Company’s Common Stock, and on all such matters, the shares of Series A Preferred Stock shall be entitled to that number of votes equal to the number of votes that all issued and outstanding shares of Common Stock and all other securities of the Company are entitled to, as of any such date of determination, on a fully diluted basis, plus one million (1,000,000) votes, it being the intention that the holders of the Series A Preferred Stock shall have effective voting control of the Company, on a fully diluted basis.
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Termination
Unless extended by a majority vote of the holders of Common Stock, the share of Series A Preferred Stock shall terminate five years from issuance.
| Item 7.01 | Regulation FD Disclosure. |
On June 23, 2022, the Company issued press release which announced the approval of a special dividend of Optilan, the Company’s wholly-owned subsidiary’s, stock to the shareholders of the Company, the approval of the Agreement, and the Series A Preferred Stock. A copy of the press release is attached hereto as Exhibit 99.1, and is incorporated herein by reference. Pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”), the information in this Item 7.01 disclosure, including Exhibit 99.1, and the information set forth therein, is deemed to have been furnished to, and shall not be deemed to be “filed” with, the SEC.
The press release may contain forward-looking statements. Such forward-looking statements are based on information presently available to the Company’s management and are current only as of the date made. Actual results could also differ materially from those anticipated as a result of a number of factors, including, but not limited to, those discussed in the Company’s Annual Report on Form 10-K for the year ended December 31, 2021, and subsequent reports filed by the Company with the SEC. For those reasons, undue reliance should not be placed on any forward-looking statement. The Company assumes no duty or obligation to update or revise any forward-looking statement, although it may do so from time to time as management believes is warranted or as may be required by applicable securities law. Any such updates or revisions may be made by the registrant by filing reports with the SEC, through the issuance of press releases or by other methods of public disclosure.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit No. | Description |
| 3.1 | Certificate of Designation dated June 22, 2022 |
| 99.1 | Press Release dated June 23, 2022 |
| 104 | Cover Page Interactive Data File (formatted in inline XBRL) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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DarkPulse, Inc.
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| Date: June 23, 2022 | By: | /s/ Dennis O’Leary |
| Dennis O’Leary, Chief Executive Officer | ||
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Exhibit 3.1
CERTIFICATE OF DESIGNATION
of the
PREFERENCES, RIGHTS, LIMITATIONS, QUALIFICATIONS AND RESTRICTIONS
of the
SERIES A SUPER VOTING PREFERRED STOCK
of
DARKPULSE, INC.
DarkPulse, Inc., a Delaware corporation (the “Corporation”), hereby certifies that, pursuant to the authority conferred upon the Board of Directors of the Corporation (the “Board”) by its Certificate of Incorporation, on June 22, 2022, the Board duly adopted the following resolution providing for the authorization of one hundred (100) shares of the Corporation’s Series A Super Voting Preferred Stock (the “Series A Super Voting Preferred Stock”):
RESOLVED, that pursuant to the authority vested in the Board by the Corporation’s Certificate of Incorporation, the Board hereby establishes from the Corporation’s authorized class of preferred stock a new series to be known as “Series A Super Voting Preferred Stock,” consisting of one hundred (100) shares, and hereby determines the designation, preferences, rights, qualifications, limitations and privileges of the Series A Super Voting Preferred Stock of the Corporation to be as follows:
1. Designation and Amount; Designated Holder. Of the Two Million (2,000,000) shares of the Corporation’s authorized Preferred Stock, $0.01 par value per share, one hundred (100) shares are designated as “Series A Super Voting Preferred Stock,” with the rights and preferences set forth below. Once issued, any transfer of the Series A Super Voting Preferred Stock to a different holder than the original holder (the “Holder”) must be approved in advance by the Corporation; provided, however, the Holder shall have the right to transfer the Series A Super Voting Preferred Stock, or any portion thereof, to any affiliate of Holder or nominee of Holder, without the approval of the Corporation.
2. Rank. The Series A Super Voting Preferred Stock shall rank: (i) senior to all of the Common Stock, par value $0.0001 per share, of the Corporation (“Common Stock”); (ii) senior to all other classes or series of capital stock of the Corporation currently outstanding (other than Series A preferred Stock) or that specifically provide that it ranks junior to any Series A Super Voting Preferred Stock (collectively, with the Common Stock, “Junior Securities”); and (iii) junior to the Series A Preferred Stock of the Corporation and any other class or series of capital stock of the Corporation which specifically provides that it will rank senior in preference or priority to the Series A Super Voting Preferred Stock (“Senior Securities”), in each case as to distribution of any asset or property of the Corporation upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (all such distributions being referred to as “Distributions”).
3. Voting Rights. The Holders of the Series A Super Voting Preferred Stock shall be entitled to vote, on a pro-rata basis, on all matters subject to a vote or written consent of the holders of the Corporation’s Common Stock, and on all such matters, the shares of Series A Super Voting Preferred Stock shall be entitled to that number of votes equal to the number of votes that all issued and outstanding shares of Common Stock and all other securities of the Corporation are entitled to, as of any such date of determination, on a fully diluted basis, plus one million (1,000,000) votes, it being the intention that the Holders of the Series A Super Voting Preferred Stock shall have effective voting control of the Corporation, on a fully diluted basis. For example, if a Holder owns sixty (60) shares of Series A Super Voting Preferred Stock and another Holder owns forty (40) shares of Series A Super Voting Preferred Stock and there are one million (1,000,000) votes issued and outstanding, on a fully diluted basis, the first Holder would have one million two hundred thousand (1,200,000) votes and the second Holder would have eight hundred thousand (800,000) votes. The Holders of the Series A Super Voting Preferred Stock shall vote together with the holders of Common Stock as a single class.
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4. Covenants.
(a) The Corporation shall not amend, alter, change or repeal the preferences, privileges, special rights or other powers of the Series A Super Voting Preferred Stock so as to adversely affect the Series A Super Voting Preferred Stock, without the written consent of a majority vote of the outstanding shares of Series A Super Voting Preferred Stock.
(b) So long as shares of Series A Super Voting Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by majority vote or written consent of the outstanding shares of Series A Super Voting Preferred Stock, as provided by law) of the Holders, which consent may be withheld in the Holders’ sole and absolute discretion: (i) dissolve the Corporation or effectuate a liquidation; (ii) alter, amend, or repeal the Certificate of Incorporation of the Corporation; (iii) agree to any provision in any agreement that would impose any restriction on the Corporation’s ability to honor the exercise of any rights of the Holders of the Series A Super Voting Preferred Stock; (iv) do any act or thing not authorized or contemplated by this Certificate which would result in taxation of the Holders of shares of the Series A Super Voting Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or any comparable provision of the Internal Revenue Code as hereafter from time to time amended); or (v) issue any securities of the Corporation of any nature or kind, including securities convertible into any capital stock of the Corporation.
5. Termination. Unless extended by a majority vote of the Holders of Common Stock, the share of Series A Super Voting Preferred Stock shall terminate five (5) years from issuance.
6. Dividends. The Holders of the Series A Super Voting Preferred Stock will not be entitled to participate with the holders of Common Stock in any dividends.
7. No Liquidation Preference. Upon liquidation, dissolution and winding up of the Corporation, whether voluntary or involuntary, the Holders of the Series A Super Voting Preferred Stock then outstanding shall not be entitled to receive out of the assets of the Corporation, whether from capital or earnings available for distribution, any amounts which will be otherwise available to and distributed to the Common Stockholders.
8. Severability. If any right, preference or limitation of the Series A Super Voting Preferred Stock set forth herein is invalid, unlawful or incapable of being enforced by reason of any rule, law or public policy, all other rights, preferences and limitations set forth herein that can be given effect without the invalid, unlawful or unenforceable right, preference or limitation shall nevertheless remain in full force and effect, and no right, preference or limitation herein shall be deemed dependent upon any other such right, preference or limitation unless so expressed herein.
9. Amendment and Waiver. This Certificate of Designation shall not be amended, either directly or indirectly or through merger or consolidation with another entity, in any manner that would alter or change the powers, preferences or special rights of the Series A Super Voting Preferred Stock so as to affect them materially and adversely without the consent of the Holder. Subject to the preceding sentence, any amendment, modification or waiver of any of the terms or provisions of the Series A Super Voting Preferred Stock shall be binding upon the Holder.
10. Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered Holder shall be satisfactory) of the ownership and the loss, theft, destruction, or mutilation of any certificate evidencing shares of Series A Super Voting Preferred Stock, and in the case of any such loss, theft or destruction upon receipt of indemnity reasonably satisfactory to the Corporation (provided that if the Holder is a financial institution or other institutional investor its own agreement shall be satisfactory) or in the case of any such mutilation upon surrender of such certificate, the Corporation, at its expense, shall execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of such Series represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.
* * * * *
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to be executed by Dennis O’Leary, CEO of the Corporation, this 22nd day of June, 2022.
| By: | /s/ Dennis O’ Leary | |
| Name: | Dennis O’ Leary | |
| Title | CEO |
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Exhibit 99.1
DARKPULSE, INC. ANNOUNCES SPECIAL DIVIDEND OF OPTILAN STOCK AND CEO EMPLOYMENT AGREEMENT
HOUSTON, June 23, 2022 DarkPulse Inc. (OTC: DPLS) (“DPLS" or "the Company"), today announced that the Company’s board of directors has approved several corporate actions that the Company’s Board of Directors believe are in the best interest of its shareholders.
The Board of Directors approved corporate actions to investigate, initiate and effectuate a special dividend to record holders of the Company’s securities in the form of a yet to be determined pro-rata number of shares from its wholly owned subsidiary, Optilan. The distribution is expected to be based on the number of shares held by the Company’s holders on August 31, 2022. The Board has set July 15, 2022 to determine the final dividend ratio for the distribution per shareholder of record. Any such distribution may require the filing of a S-1 Registration Statement with the U.S. Securities and Exchange Commission.
The Company’s Board of Directors has also approved the Company to take steps to seek listing of Optilan’s securities on a national exchange, such as NASDAQ or the NYSE, and expects to engage several investment bankers over the next 60 days with a view to list Optilan by end of the calendar year.
The Board of Directors, with Dennis O’Leary, abstaining, also approved an Employment Agreement with Mr. O’Leary with a term commencing April 1, 2022 and continuing for three years, subject to extensions.
In connection with the Employment Agreement, the Company has also approved a new class of Preferred shares with super-majority voting rights designed to assist managements objectives. These shares are not convertible into the Company’s shares of Common Stock and includes a sunset clause whereby the shares terminate five years from issuance, unless extended through a vote of a majority of the holders of the Company’s Common Stock.
DarkPulse, Inc.’s CEO, Dennis O’Leary, stated “these corporate actions are consistent with our company philosophy that no shareholder be left behind. While we have made great strides in developing our businesses, we are also paying close attention to improving shareholder value and we believe this special dividend is part of a much bigger program going forward.”
About DarkPulse, Inc.
DarkPulse, Inc. uses advanced laser-based monitoring systems to provide rapid and accurate monitoring of temperatures, strains and stresses. The Company’s technology excels when applied to live, dynamic critical infrastructure and structural monitoring, including pipeline monitoring, perimeter and structural surveillance, aircraft structural components and mining safety. The Company's fiber-based monitoring systems can assist markets that are not currently served, and its unique technology covers extended areas and any event that is translated into the detection of a change in strain or temperature. In addition to the Company’s ongoing efforts with respect to the marketing and sales of its technology products and services to its customers, the Company also continues to explore potential strategic alliances through joint venture and licensing opportunities to further expand its global market position.
For more information, visit www.DarkPulse.com
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About Optilan
Optilan is a leading independent security and communications systems integrator worldwide. With a 30-year pedigree, Optilan’s customers trust it to keep the integrity of their assets safe and secure, by managing the life cycle delivery risk of its solutions. By fostering a collaborative design approach to complex problems, Optilan provides innovative solutions, custom fit to even the most demanding of sites and scale of projects. Importantly, Optilan’s commitment to its safety culture remains unwavered, to ensure that everyone goes home safely every day.
Optilan orchestrates business resilience with a suite of end-to-end solutions, combined with connectivity and professional service at a global level. Today’s business environment is more dynamic than ever. In response, businesses are urged to move at “internet speed” and evolve with continuous change and disruption accepted as the new normal. Optilan complements its tailored, integrated expertise with a curated ecosystem of leading manufacturers, to achieve both high quality and enduring results.
Optilan is proud to foster a unique culture full of talented individuals. Optilan’s sector focus ensures that its account teams are fully accredited to their operational areas. Optilan;s professionals have the skill to adopt and embed its expertise into existing platforms, processes, and cultures, delivering exceptional value for its clients. Beyond Optilan’s operational scope, it strives to consider the impact of its global footprint and mitigate associated environmental and sustainability risks. These factors combined set Optilan apart and establish why customers continue to trust and invest in its services.
For more information, visit: www.Optilan.com
Forward Looking Statements
This press release contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements, which are based on certain assumptions and describe our future plans, strategies and expectations, can generally be identified by the use of forward-looking terms such as "believe," "expect," "may," "should," "could," "seek," "intend," "plan," "goal," "estimate," "anticipate" or other comparable terms. All statements other than statements of historical facts included in this news release regarding our strategies, prospects, financial condition, operations, costs, plans and objectives are forward-looking statements. Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on our current beliefs, expectations and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of our control. Our actual results and financial condition may differ materially from those indicated in the forward-looking statements. Therefore, you should not rely on any of these forward-looking statements. Important factors that could cause our actual results and financial condition to differ materially from those indicated in the forward-looking statements include, among others, the following: our ability to successfully market our products and services; the acceptance of our products and services by customers; our continued ability to pay operating costs and ability to meet demand for our products and services; the amount and nature of competition from other security and telecom products and services; the effects of changes in the cybersecurity and telecom markets; our ability to successfully develop new products and services; our success establishing and maintaining collaborative, strategic alliance agreements, licensing and supplier arrangements; our ability to comply with applicable regulations; and the other risks and uncertainties described in our prior filings with the Securities and Exchange Commission. We undertake no obligation to publicly update any forward-looking statement, whether written or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise.
Media contact:
DarkPulse Solutions, Inc.
media@DarkPulse.com
1.800.436.1436+
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