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Hercules Capital, Inc. (NYSE:HTGZ) Files An 8-K Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

Hercules Capital, Inc. (NYSE:HTGZ) Files An 8-K Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Item 5.02.  Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

On June 24, 2021, the Board of Directors of Hercules Capital, Inc. (the “Company”) elected Wade Loo as a director of the Company.  There are no arrangements or understandings between Mr. Loo and any other persons to which Mr. Loo was elected as a director of the Company.  Mr. Loo will be entitled to the applicable annual retainer and restricted stock awards to the Company’s director compensation arrangements, under terms consistent with those previously disclosed by the Company.  Mr. Loo will also be entitled to enter into an indemnification agreement with the Company.  Mr. Loo will hold office as a Class III director for a term expiring in 2022 and will serve on the Audit Committee of the Company.

Mr. Loo is a retired audit partner of KPMG, a global network of professional firms providing audit, tax and advisory services where he held positions from accountant through partner from 1980 through 2010.  Mr. Loo has been on the board of directors since 2015, currently serves as the Chairman of the Board (since January 2021) and past Audit Committee Chair (2015-2019) for the Silicon Valley Community Foundation Company, a non-profit community foundation. He is currently on the investment committee of Mapletree Europe Income Trust, a private real estate investment trust since March 2021. Mr. Loo also has been on the board of directors of the University of Denver-Daniels College of Business-Executive Advisory Board since 2015 and has served as the Chairman of the Board since 2018. He also has served on the Board of JobTrain (2006-2019), holding various positions, including Chairman of the Board, and Audit Committee Chair at both Guidance Software (2016-2017) and Kofax (2011-2015).  Mr. Loo received his Bachelor of Science in Accounting from the University of Denver, Daniels College of Business.

Item 5.07 Submission of Matters to a Vote of Security Holders

On June 24, 2021, Hercules Capital, Inc., a Maryland corporation, (the “Company”), held its 2021 Annual Meeting of Stockholders (the “Annual Meeting”).  As of April 23, 2021, the record date for the Annual Meeting, 115,743,190 shares of the Company’s common stock were outstanding and entitled to vote.

The following matters were submitted at the Annual Meeting, including any adjournments thereof, to the stockholders for consideration to:

Ms. Crowell and Messrs. Fallon and Koenig were each elected to serve as a director for the term specified above, or until his or her successor is elected and qualified, and proposal 2 and proposal 3 were approved by the Company’s stockholders. The detailed voting results of the shares voted with regards to each of these matters are as follows:

Hercules Capital, Inc. Exhibit
EX-99.1 2 ex_259638.htm EXHIBIT 99.1 ex_259638.htm Exhibit 99.1     Hercules Capital Announces the Appointment of Wade Loo to Its Board of Directors     PALO ALTO,…
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Monaker Group, Inc. (OTCMKTS:MKGI) Files An 8-K Entry into a Material Definitive Agreement

Monaker Group, Inc. (OTCMKTS:MKGI) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01. Entry into a Material Definitive Agreement.  

As previously reported in the Current Report on Form 8-K filed by Monaker Group, Inc. (the “Company”, “we”, “us”, and “Monaker”) with the Securities and Exchange Commission (the “SEC”) on November 27, 2020, the Company sold Streeterville Capital, LLC (“Streeterville”), an accredited investor, a Secured Promissory Note in the original principal amount of $5,520,000 on November 23, 2020 (the “November 2020 Streeterville Note”). Streeterville paid consideration of (a) $3,500,000 in cash; and (b) issued the Company a promissory note in the amount of $1,500,000 (the “November 2020 Investor Note”), in consideration for the November 2020 Streeterville Note (which November 2020 Investor Note was funded on January 6, 2021), which included an original issue discount (“OID”) of $500,000 and reimbursement of Streeterville’s transaction expenses of $20,000.

The November 2020 Streeterville Note bears interest at a rate of 10% per annum and matures 12 months after its issuance date (i.e., on November 23, 2021). From time to time, beginning six months after issuance, Streeterville may redeem a portion of the November 2020 Streeterville Note, not to exceed an amount of $875,000 per month if the Investor Note has not been funded by Streeterville, and $1.25 million in the event the Investor Note has been funded in full (which as discussed above, it has). In the event we don’t pay the amount of any requested redemption within three trading days, an amount equal to 25% of such redemption amount is added to the outstanding balance of the November 2020 Streeterville Note.

On June 22, 2021, the Company entered into an Exchange Agreement with Streeterville (the “Streeterville Exchange Agreement”), to which Streeterville exchanged $600,000 of a June 2021 requested redemption of $1.25 million under the November 2020 Streeterville Note (which amount was partitioned into a separate promissory note) for 300,000 shares of the Company’s common stock (the “Exchange Shares”).

The description of the Exchange Amendment above is qualified in its entirety by the full text of the Exchange Amendment, a copy of which is filed herewith as Exhibit 10.1, and is incorporated herein by reference. The November 2020 Streeterville Note is described in greater detail in the November 27, 2020, Current Report on Form 8-K.

Item 2.03. Creation of Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. 

  

To the extent required by Item 2.03, the disclosures in Item 1.01 hereof are incorporated by reference in this Item 2.03 by reference. 

Item 3.02 Unregistered Sales of Equity Securities.

The disclosure of the Streeterville Exchange Agreement and the issuance of the Exchange Shares discussed in Item 1.01 above is incorporated by reference into this Item 3.02. We claim an exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”), for such exchange and such issuance of 300,000 shares to Streeterville, as the partitioned note was exchanged by us with our existing security holder in a transaction where no commission or other remuneration was paid or given directly or indirectly for soliciting such exchange.

Item 9.01. Financial Statements and Exhibits.

  

(d) Exhibits.

  

The following exhibits are filed with this Current Report on Form 8-K: 

10.1* Exchange Agreement between Streeterville Capital, LLC and Monaker Group, Inc. dated June 22, 2021

* Filed herewith.


Monaker Group, Inc. Exhibit
EX-10.1 2 ex10-1.htm EXCHANGE AGREEMENT   Monaker Group,…
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About Monaker Group, Inc. (OTCMKTS:MKGI)

Monaker Group, Inc., formerly Next 1 Interactive, Inc., is a technology driven travel and logistics company. The Company operates NextTrip.com, an online marketplace for the alternative lodging rental (ALR) industry. It operates through a segment consisting of various products and services related to its online marketplace of travel and related logistics, including destination tours/activities, accommodation rental listings, hotel listings, air and car rental. Its NextTrip.com has a capacity of uniting a range of travelers seeking ALR online with property owners and managers. As of February 29, 2016, the Company operated its online marketplace through 115 Websites in 16 languages, with Websites in Europe, Asia, South America and the United States. As of February 29, 2016, its global marketplace included approximately 100,000 paid listings on subscriptions and contracted with over 1.1 million listings under the performance based listing arrangement ALRs.

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OptimizeRx Corporation (OTCMKTS:OPRX) Files An 8-K Material Modification to Rights of Security Holders

OptimizeRx Corporation (OTCMKTS:OPRX) Files An 8-K Material Modification to Rights of Security Holders
Item 3.03 Material Modification to Rights of Security Holders.

The description of the Amended and Restated Bylaws (as defined below) included under Item 5.03 of this Current Report on Form 8-K is incorporated into this Item 3.03 by reference.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On June 22, 2021, the Board of Directors (the “Board”) of OptimizeRx Corporation (the “Corporation”) approved the Second Amended and Restated Bylaws of the Corporation (the “Amended and Restated Bylaws”) to modernize and update the Company’s bylaws to (a) conform to Nevada law; (b) reflect developments in public company governance; (c) remove certain outdated provisions; (d) clarify certain corporate procedures; and (e) conform language and >

3.1 Second Amended and Restated Bylaws of OptimizeRx Corporation
14.1 OptimizeRx Corporation Code of Business Conduct and Ethics


OptimizeRx Corp Exhibit
EX-3.1 2 ea143323ex3-1_optimizrex.htm SECOND AMENDED AND RESTATED BYLAWS OF OPTIMIZERX CORPORATION Exhibit 3.1    SECOND AMENDED AND RESTATED BYLAWS   OF   OPTIMIZERX CORPORATION   (A NEVADA CORPORATION)   ARTICLE I OFFICES   Section 1.1 Principal Office. The principal office of OptimizeRx Corporation (the “Corporation”) shall be at such place within or outside of the State of Nevada as the board of directors of the Corporation (the “Board”) shall from time to time designate.   Section 1.2 Other Offices. The Corporation may also have other offices at such other places within or outside of the State of Nevada as the Board may from time to time designate or the business of the Corporation shall require. The street address of the Corporation’s registered agent is the registered office of the Corporation in Nevada.   ARTICLE II STOCKHOLDERS   Section 2.1 Annual Meeting. The annual meeting of the stockholders of the Corporation shall be held on such date and at such time as designated by the Board. The purpose of this meeting shall be for the election of directors and for the transaction of such other business as may properly come before the meeting.   Section 2.2 Special Meetings.   (a) Special meetings of the stockholders may be called only by the Chairperson or the chief executive officer,…
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About OptimizeRx Corporation (OTCMKTS:OPRX)

OptimizeRx Corporation is a technology solutions company. The Company focuses on the healthcare industry. The Company connects patients, physicians and pharmaceutical manufacturers through technology. The Company’s solutions provide pharmaceutical manufacturers a direct to physician channel for communicating and promoting products. It provides healthcare providers a means to provide sampling and coupons without having to physically store samples on site. The Company’s principal products and applications include SampleMD, OPTIMIZEHR and OPTIMIZERx.com. SampleMD is a virtual Patient Support Center. OPTIMIZEHR is a consulting practice focused on educating and working with pharmaceutical manufacturers on identifying, formulating and implementing new electronic prescribing (eRx) media strategies for promoting their products. OPTIMIZERx.com is a portal to healthcare savings for patients to centrally review and participate in prescription and healthcare savings and support programs.

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Stellus Capital Investment Corporation (NYSE:SCM) Files An 8-K Submission of Matters to a Vote of Security Holders

Stellus Capital Investment Corporation (NYSE:SCM) Files An 8-K Submission of Matters to a Vote of Security Holders
Item 5.07 Submission of Matters to a Vote of Security Holders.

Stellus Capital Investment Corporation (the “Company”) held its Annual Meeting of Shareholders on June 24, 2021 (the “Annual Meeting”). At the Annual Meeting, the Company submitted two proposals to the vote of the shareholders, which are described in detail in the Company’s proxy statement dated April 23, 2021. As of April 5, 2021, the record date for the Annual Meeting, 19,486,003 shares of common stock were eligible to be voted.

On June 24, 2021, the proposals were submitted to the vote of the shareholders. Of the shares eligible to be voted, 12,006,935 were voted in person or by proxy in connection with the proposals. 

Each of the proposals submitted to a vote of the shareholders of the Company at the Annual Meeting was approved as follows:

Proposal 1: Election of Directors

The Company’s shareholders elected Robert T. Ladd and J. Tim Arnoult as directors to serve for a three year term, or until their successors are duly elected and qualified. The following votes were taken in connection with this proposal:

Shareholders Without Affiliates 9,081,690 1,578,025 300,190


About Stellus Capital Investment Corporation (NYSE:SCM)

Stellus Capital Investment Corporation is a closed-end, non-diversified management investment company. The Company originates and invests primarily in private middle-market companies through first lien, second lien, unitranche and mezzanine debt financing, with corresponding equity co-investments. The Company’s investment objective is to maximize the total return to its stockholders in the form of current income and capital appreciation. It invests in various sectors, such as business services, energy, general industrial, government services, healthcare, software and specialty finance. Its investment advisor is Stellus Capital Management, LLC (Stellus Capital Management). Stellus Capital Management is responsible for analyzing investment opportunities, conducting research and performing due diligence on investments, negotiating and structuring the Company’s investments, originating prospective investments, and monitoring its investments and portfolio companies on an ongoing basis.

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AUDIOEYE, INC. (OTCMKTS:AEYE) Files An 8-K Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

AUDIOEYE, INC. (OTCMKTS:AEYE) Files An 8-K Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Item 5.03

On May 4, 2015, AudioEye, Inc. (the “Company”) filed with the Delaware Secretary of State a Certificate of Designations of Series A Convertible Preferred Stock of the Company (“Initial Filed Certificate of Designations”). On March 27, 2020, the Company filed with the Delaware Secretary of State (i) a Certificate of Correction to the Initial Filed Certificate of Designations, rendering the Initial Filed Certificate of Designations null and void; and (ii) a Certificate of Validation (the “Certificate of Validation”) to give effect to the Company’s issuance of 175,000 shares of its Series A Convertible Preferred Stock.

On June 23, 2021, the Company filed with the Delaware Secretary of State a Certificate of Correction (the “Certificate of Correction”) to the Certificate of Validation.

The Certificate of Correction was filed to correct certain inaccuracies or defects in the Certificate of Designations of Series A Convertible Preferred Stock filed with the Certificate of Validation, such corrections including, among other things, (i) indicating the cumulative nature and terms of payment of dividends, (ii) specifying certain voting rights and thresholds and (iii) stating a conversion price equal to $0.1754 rather than based on a formula. The conversion price in the Certificate of Correction was subject to a 25-for-1 reverse split on the Company’s common stock on August 1, 2018 that adjusted the conversion price to $4.385 per share. On or prior to May 25, 2021, all shares of Series A Convertible Preferred Stock were converted into common stock; currently, no shares of Series A Convertible Preferred Stock are outstanding.

A copy of the Certificate of Correction, as filed with the Delaware Secretary of State, is attached as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated herein by reference. The description of the Certificate of Correction contained herein does not purport to be complete and is qualified in its entirety by reference to the full text of Exhibit 4.2.

4.1 Certificate of Incorporation of AudioEye, Inc., conformed copy through June 25, 2021.
4.2 Certificate of Correction to the Certificate of Validation of AudioEye, Inc. relating to the Series A Convertible Preferred Stock of AudioEye, Inc.


AUDIOEYE INC Exhibit
EX-4.1 2 tm2120549d1_ex4-1.htm EXHIBIT 4.1 Exhibit 4.1   Conformed Copy as of June 25,…
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About AUDIOEYE, INC. (OTCMKTS:AEYE)

AudioEye, Inc. (AudioEye) is a marketplace providing Web accessibility solutions for its clients’ customers through its Ally Platform Products. The Company generates revenues through the sale of subscriptions of its software as a service (SaaS) technology platform, called the AudioEye Ally Platform, to Website owners, publishers, developers and operators, and through the delivery of managed services combined with the implementation of the AudioEye solution. Its customers span disparate industries and target market verticals, which encompass (but are not limited to) the human resources, finance, transportation, media and education. Its compliance solutions focus on remediation of the accessibility issues, followed by analysis identifying and addressing compliance program. By deploying AudioEye remediation technology to fix common and high-impact issues, it is able to manage the usability of its client sites on the first day that they implement its solution into their site.

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INC. (NASDAQ:INCR) Files An 8-K Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

INC. (NASDAQ:INCR) Files An 8-K Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On June 24, 2021, the Board of Directors (the “Board”) appointed Mr. Brian Linscott as a director on its Board to fill the vacancy left by Mr. Andrew Benett’s decision not to stand for re-election at the Harte Hanks (the \”Company\”) annual meeting as discussed in more detail below.

Mr. Linscott was appointed Chief Executive Officer of the Company on June 23, 2021, and prior to that had served as Chief Operating Officer of the Company since January 2020. From 2015 to 2019, he served as a Partner at BR Advisors where he led the operational improvement of radio and printing companies, developed new partnerships, and facilitated asset transactions. He also serves as Operating Partner at Traverse Pointe Partners since 2014, where he advises a private equity fund on financial and operational assessment of equity investments and developed post-acquisition operational strategies to create stockholder value. From 2013 to 2015, Mr. Linscott served as a Managing Director at Huron Consulting Group where he managed client relationships, oversaw consulting teams, and developed new business opportunities in Huron’s Business Advisory practice. From 2009 to 2012, Mr. Linscott served as Chief Financial Officer / Senior Vice President at Sun Times Media, LLC where he created and executed a restructuring plan that led to substantial EBITDA growth, cash flow improvement, and a successful sale of the company. Mr. Linscott received his B.S. in Finance from the University of Illinois, Urbana.

Mr. Linscott does not have any transactions reportable under Item 404(a) of Regulation S-K.

Item 5.07. Submission of Matters to a Vote of Security Holders.

Harte Hanks, Inc. (the “Company”) held the Company’s 2021 Annual Meeting of Stockholders (the “Annual Meeting”) on June 23, 2021, at which stockholders voted on the items below as indicated.

 
 

About INC. (NASDAQ:INCR)

INC Research Holdings, Inc. is a global contract research organization (CRO). The Company is focused on Phase I to Phase IV clinical development services for the biopharmaceutical and medical device industries. The Company operates through two segments: Clinical Development Services and Phase I Services. The Company’s Clinical Development Services segment offers all clinical development services, including full-service global studies, as well as ancillary services, such as clinical monitoring, investigator recruitment, patient recruitment, data management, study reports to assist customers with their drug development process, quality assurance audits and specialized consulting services. The Company’s Phase I Services segment focuses on clinical development services for Phase I trials, which include scientific exploratory medicine, first-in-human studies through proof-of-concept stages and support for Phase I studies in established compounds.

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IKONICS CORPORATION (NASDAQ:IKNX) Files An 8-K Entry into a Material Definitive Agreement

IKONICS CORPORATION (NASDAQ:IKNX) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01

Agreement and Plan of Merger

On June 25, 2021, IKONICS Corporation (“Company”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Telluride Holdco, Inc., a Delaware corporation and direct wholly owned subsidiary of the Company (“HoldCo”), Telluride Merger Sub I, Inc., a Minnesota corporation and direct wholly owned subsidiary of HoldCo (“Merger Sub I”), Telluride Merger Sub II, Inc., a Delaware corporation and direct wholly owned subsidiary of HoldCo (“Merger Sub II”), and TeraWulf Inc., a Delaware corporation (“TeraWulf,” and together with Company, Holdco, Merger Sub I and Merger Sub II, the “Parties”), to which, among other things, Merger Sub I will merge with and into the Company (the “First Merger”), with the Company surviving the First Merger as a wholly owned subsidiary of HoldCo and, immediately following the effective time of the First Merger (“First Effective Time”), Merger Sub II will merge with and into TeraWulf (the “Second Merger”), with TeraWulf surviving the Second Merger as a wholly owned subsidiary of HoldCo. The Merger Agreement was unanimously approved and adopted by the board of directors of each of the Company and TeraWulf.

Under the terms of the Merger Agreement, in connection with the First Merger, each share of common stock, par value $0.10 per share (“Company Common Stock”), of the Company issued and outstanding immediately prior to the First Effective Time automatically will be converted into and exchanged for (i) one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share (“Holdco Common Stock”), of HoldCo, (ii) one contractual contingent value right to be issued by HoldCo in accordance with the CVR Agreement (as defined below) and (iii) the right to receive $5.00 in cash, without interest. Each share of HoldCo Common Stock held by the Company issued and outstanding immediately prior to the First Effective Time automatically will be cancelled and cease to exist as of the First Effective Time, and each share of common stock, par value $0.001 per share, of Merger Sub I, issued and outstanding as of immediately prior to the First Effective Time automatically will be converted into and exchanged for one validly issued, fully paid and nonassessable share of common stock of the surviving Company entity.

At the effective time of the Second Merger (“Second Effective Time”), (i) each share of Series A Preferred Stock, par value $0.001 per share (“TeraWulf Preferred Stock”), of TeraWulf issued and outstanding automatically will be converted into shares of common stock, par value $0.001 per share (“TeraWulf Common Stock”), (ii) each share of TeraWulf Common Stock (including shares of TeraWulf Common Stock resulting from the conversion of TeraWulf Preferred Stock described above), issued and outstanding immediately prior to the Second Effective Time (other than any Dissenting Shares (as defined in the Merger Agreement)) will automatically be converted into the right to receive a number of validly issued, fully paid and nonassessable shares of HoldCo Common Stock equal to (x) a number of shares of Holdco Common Stock that is equal to forty-nine (49) times the number of shares of Holdco Common Stock outstanding as of immediately following the First Effective Time and immediately prior to the Second Effective Time, divided by (y) the number of shares of TeraWulf Common Stock outstanding on a Fully Diluted Basis (as defined below) as of immediately prior to the Second Effective Time. The Merger Agreement defines Fully Diluted Basis as of a particular date as all issued and outstanding shares of TeraWulf Common Stock and all shares of TeraWulf Common Stock issuable to subscriptions therefor and upon the conversion or exercise of any outstanding stock equivalents, or subscriptions therefor, as of such date, whether or not such stock equivalent is at the time exercisable or convertible, but excludes any shares of TeraWulf Common Stock reserved for issuance to the TeraWulf equity plan, whether or not subject to outstanding awards. Each share of common stock, par value $0.001 per share, of Merger Sub II issued and outstanding immediately prior to the Second Effective Time, automatically will be converted into and exchanged for one validly issued, fully paid and nonassessable share of common stock of the surviving TeraWulf entity, and each share of TeraWulf Preferred Stock and TeraWulf Common Stock held by TeraWulf or the Company and their respective affiliates in treasury at the Second Effective Time will be canceled.

Following the Closing (as defined in the Merger Agreement), the Company must operate its businesses consistent with past practices and, subject to the terms and conditions of the CVR Agreement, it must use reasonable best efforts to pursue and consummate dispositions of its assets and businesses existing prior to the Closing (“Dispositions”) as soon as reasonably practicable (and, in any event, within 18 months of the Second Effective Time). The Company will continue to support these existing businesses as it pursues the Dispositions.

 

 

The obligations of each of the Company and TeraWulf to consummate the transactions contemplated by the Merger Agreement are subject to specified conditions, including, among other matters: (i) the approval by Company shareholders of the First Merger and Merger Agreement; (ii) the approval by TeraWulf shareholders of the Second Merger and Merger Agreement; (iii) a registration statement on Form S-4 becoming effective under the Securities Act of 1933, as amended, relating to the Holdco Common Stock to be issued in the First Merger and Second Merger; (iv) the shares of Holdco Common Stock to be issued in connection with the First Merger and Second Merger being approved for listing on Nasdaq, subject to only notice of issuance; (v) evidence of resignation of all directors of Holdco and the appointment to the Holdco board of directors of up to ten persons chosen by TeraWulf in its sole discretion; and (vi) the filing of an amended and restated Certificate of Incorporation of Holdco in the form attached to the Merger Agreement.

The Merger Agreement contains customary representations and warranties from the Company and TeraWulf. It also contains customary covenants, including providing (i) for each of the parties to use reasonable best efforts to consummate the transactions contemplated in the Merger Agreement, and (ii) for the Company and TeraWulf to carry on their respective businesses in the ordinary course of business consistent with past practice during the period between the execution of the Merger Agreement and the Closing. The Company also agreed not to solicit, initiate or propose the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or offer that constitutes, or would reasonably be expected to lead to, any Takeover Proposal (as defined in the Merger Agreement).

The Merger Agreement contains termination rights for each of the Company and TeraWulf, including, without limitation, in the event that (i) any governmental entity issues a non-appealable final order permanently enjoining the transactions contemplated in the Merger Agreement; (ii) the transactions contemplated in the Merger Agreement are not consummated by December 31, 2021 (the “Termination Date”); or (iii) the other party breaches its representations, warranties or covenants under the Merger Agreement, which breach would give rise to the failure of a closing condition and such breach is not cured within the earlier of 30-days of receipt of written notice of such breach and three (3) business days prior to the Termination Date.

The Merger Agreement provides that the Company will be obligated to pay TeraWulf a termination fee of $1.2 million, and TeraWulf will be obligated to pay the Company a termination fee of $10.0 million, if the Merger Agreement is terminated under certain circumstances. The Merger Agreement does not contain any post-Closing indemnification obligations with respect to the Parties.

The foregoing description of the Merger Agreement does not purport to be complete and is subject to, and qualified by, the full text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.

The Merger Agreement contains representations, warranties, covenants and other terms, provisions and conditions that the Parties made to each other as of specific dates. The assertions embodied therein were made solely for purposes of the Merger Agreement and may be subject to important qualifications and limitations agreed to by the Parties in connection with negotiating their respective terms. Moreover, they may be subject to a contractual standard of materiality that may be different from what may be viewed as material to shareholders, or may have been used for the purpose of allocating risk between the Parties rather than establishing matters as facts. For the foregoing reasons, no person should rely on such representations, warranties, covenants or other terms, provisions or conditions as statements of factual information at the time they were made or otherwise. Unless required by applicable law, the Company undertakes no obligation to update such information.

 

 

Voting Agreement

Simultaneously with the execution of the Merger Agreement, TeraWulf entered into a Voting and Support Agreement, dated June 25, 2021 (the “Voting Agreement”), with executive officers and directors of the Company (the “Company Holders”). As of June 24, 2021, the Company Holders held, in the aggregate, approximately 14.1% of the Company’s outstanding shares of common stock. to the Voting Agreement, each Company Holder has agreed, with respect to all of the voting securities of the Company that such Company Holder beneficially owns as of the date thereof or thereafter, to vote in favor of the First Merger and the Merger Agreement. The Voting Agreement will terminate on the Effective Date (as defined therein).

The foregoing description of the Voting Agreement does not purport to be complete and is subject to, and qualified by, the full text of the Voting Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference

Contingent Value Rights Agreement

to the Merger Agreement, at the Closing, HoldCo and Parent will enter into a Contingent Value Rights Agreement (the “CVR Agreement”) with a person designated by HoldCo and Parent as the Holders’ Representative (as defined therein), and the Rights Agent (as defined therein). to the CVR Agreement, each shareholder of the Company as of immediately prior to the First Effective Time will receive one non-transferable contingent value right (“CVR”) for each outstanding share of common stock of the Company then held.

The holders of the CVRs will be entitled to receive 95% of the Net Proceeds (as defined in the CVR Agreement), if any, from the sale, transfer, disposition, spin-off, or license of all or any part of the pre-merger business of the Company, subject to a reserve of up to 10% of the Gross Proceeds (as defined in the CVR Agreement) from such transaction. The CVRs will not confer to the holders thereof any voting or equity or ownership interest in the Company or HoldCo. The CVRs will not be transferable, except in limited circumstances such as by will or intestacy, and will not be listed on any quotation system or traded on any securities exchange.

The CVR Agreement will terminate after all payment obligations to the holders thereof have been satisfied. But holders of CVRs will not be eligible to receive payment for dispositions, if any, of any part of the pre-merger business of the Company after the eighteen-month anniversary of the Closing.

The foregoing description of the CVR Agreement does not purport to be complete and is subject to, and qualified by, the full text of the CVR Agreement, a copy of which is attached hereto as Exhibit 10.2, and is incorporated herein by reference.

On June 24, 2021, the Compensation Committee of the Company’s board of directors approved, and the Company entered into, an amendment to and restatement of the Employment Agreement with Glenn Sandgren, our Chief Executive Officer (the “Amendment”). to the Amendment, Mr. Sandgren has waived his right to receive a total of 30,000 options to purchase shares of Company common stock in future fiscal years, the period during which he would be entitled to receive increased severance was extended from twelve to eighteen months after a Change in Control (as defined in the Company’s 2019 Equity Incentive Plan, the “2019 Plan”) to better align with the term of the CVR Agreement, and the Company has agreed to escrow an amount equal to up to twelve months of Mr. Sandgren’s annual base salary upon the occurrence of a Change in Control. Mr. Sandgren also received 6,700 restricted stock units under the 2019 Plan, which are scheduled to vest in full on June 24, 2022, as consideration for his agreement to enter into the Amendment. The foregoing description of the Amendment does not purport to be complete and is subject to, and qualified by, the full text of the Amendment, a copy of which is attached hereto as Exhibit 10.3, and is incorporated herein by reference.

Also on June 24, 2021, the Compensation Committee of the Company’s board of directors approved retention awards for each of Claude P. Piguet, Ken Hegman, and Jon Gerlach to which the executive will be entitled to receive $50,000 upon the earlier of (i) the closing of one or any series of Legacy Monetizations (as defined in the CVR Agreement) amounting to Net Proceeds (as defined in the CVR Agreement), before taking into account any payments under the retention awards (“Adjusted Net Proceeds”), in excess of $5,000,000 in the aggregate and (ii) the date that is eighteen months after the closing under the Merger Agreement. To the extent the Adjusted Net Proceeds of one or any series of Legacy Monetizations under the CVR Agreement exceeds $5,000,000, each officer will be entitled to receive an additional payment equal to 0.75% of the total amount such aggregate Adjusted Net Proceeds exceed $5,000,000. The executive officer must remain continuously employed through the closing of any Legacy Monetization giving rise to a payment under his retention award.

 

 

On June 24, 2021, the Company’s board of directors adopted an amendment to the Amended and Restated By-Laws of the Company (“Bylaws”), adding a new Article VIII, Exclusive Forum, which provides that, unless the Company consents in writing to the selection of an alternative forum, Minnesota state and federal courts will be the exclusive forum for certain specified corporate law-based suits involving the Company and the federal district courts located in the State of Minnesota will be the exclusive forum for suits arising under the Securities Act of 1933. The Board also approved a restatement of the Bylaws to incorporate the amendment.

The foregoing description of the amendment to the Bylaws does not purport to be complete and is subject to, and qualified by, the full text of the Bylaws, as amended, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.

On June 25, 2021, the Company and TeraWulf issued a joint press release announcing the execution of the Merger Agreement and other agreements described in Item 1.01 above. A copy of the press release is furnished as Exhibit 99.1 to this report.

The information in this Item 7.01 and Exhibit 99.1 shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section. This information shall not be deemed to be incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference to such disclosure in this Form 8-K in such a filing.

(d)             Exhibit.

 

 

Additional Information and Where to Find It; Participants in the Solicitation

In connection with the proposed transaction, the Company intends to file relevant materials with the United States Securities and Exchange Commission (the “SEC”), including a combined proxy statement and registration statement on Form S-4. Following the filing of the definitive proxy statement with the SEC, the Company will mail the definitive proxy statement and a proxy card to each shareholder entitled to vote at the special meeting relating to the proposed transaction. The proxy statement, any other relevant documents, and all other materials filed with the SEC concerning the Company are (or, when filed, will be) available free of charge at http://www.sec.gov and http:/www.ikonics.com/investor-relations. Shareholders should read carefully the proxy statement and any other relevant documents that the Company files with the SEC when they become available before making any voting decision because they will contain important information.

This current report on Form 8-K does not constitute a solicitation of proxy, an offer to purchase, or a solicitation of an offer to sell any securities. The Company and its directors and executive officers are deemed to be participants in the solicitation of proxies from shareholders in connection with the proposed transaction. Information regarding the names of such persons and their respective interests in the transaction, by securities holdings or otherwise, will be set forth in the definitive proxy statement when it is filed with the SEC. Additional information regarding these individuals is set forth in its annual report on Form 10-K for the fiscal year ended December 31, 2020, its definitive proxy statement for the annual meeting held on April 29, 2021, and the revised definitive proxy statement for the same meeting, which were filed with the SEC on March 3, 2021, March 23, 2021, and April 6, 2021, respectively. To the extent the Company’s directors and executive officers or their holdings of the Company’s securities have changed from the amounts disclosed in those filings, to the Company’s knowledge, such changes have been reflected on initial statements of beneficial ownership on Form 3 or statements of change in ownership on Form 4 on file with the SEC. These materials are (or, when filed, will be) available free of charge at http://www.Ikonics.com/investor-relations.

Forward Looking Statements

This current report on Form 8-K contains “forward-looking statements” within the meaning of the U.S. federal securities laws. Such statements include statements concerning anticipated future events and expectations that are not historical facts. All statements other than statements of historical fact are statements that could be deemed forward-looking statements. Actual results may vary materially from those expressed or implied by forward-looking statements based on a number of factors, including, without limitation: (1) risks related to the consummation of the mergers, including the risks that (a) the mergers may not be consummated within the anticipated time period, or at all, (b) the parties may fail to obtain shareholder approval of the merger agreement, (c) other conditions to the consummation of the mergers under the merger agreement may not be satisfied, (d) all or part of TeraWulf’s contemplated financing may not become available, and (e) the significant limitations on remedies contained in the merger agreement may limit or entirely prevent a party from specifically enforcing another party’s obligations under the merger agreement or recovering damages for any breach; (2) approval of the combined company’s application to list its shares on The Nasdaq Stock Market LLC, (3) the effects that any termination of the merger agreement may have on a party or its business, including the risks that (a) the price of the Company’s common stock may decline significantly if the mergers are not completed, (b) the merger agreement may be terminated in circumstances requiring the Company to pay TeraWulf a termination fee of $1.2 million, or (c) the circumstances of the termination, may have a chilling effect on alternatives to the mergers; (4) the effects that the announcement or pendency of the mergers may have on the Company and its business, including the risks that as a result (a) the business, operating results or stock price of the Company’s common stock may suffer, (b) its current plans and operations may be disrupted, (c) the ability of the Company to retain or recruit key employees may be adversely affected, (d) its business relationships (including, customers, franchisees and suppliers) may be adversely affected, or (e) management and employee attention may be diverted from other important matters; (5) the effect of limitations that the merger agreement places on the Company’s ability to operate its business, return capital to shareholders or engage in alternative transactions; (6) the nature, cost and outcome of pending and future litigation and other legal proceedings, including any such proceedings related to the transactions and instituted against the Company and others; (7) the risk that the transaction may involve unexpected costs, liabilities or delays; (8) other economic, business, competitive, legal, regulatory, and/or tax factors; (9) the possibility that less than all or none of the Company’s historical business will be sold prior to the expiration of the CVRs; and (10) other factors described under the heading “Risk Factors” in Part I, Item 1A of the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2020, as updated or supplemented by subsequent reports that the Company has filed or files with the SEC. Potential investors, shareholders and other readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date on which they are made. Neither TeraWulf nor the Company assumes any obligation to publicly update any forward-looking statement after it is made, whether as a result of new information, future events or otherwise, except as required by law.

 

 

IKONICS CORP Exhibit
EX-2.1 2 ex_259670.htm EXHIBIT 2.1 ex_259670.htm Exhibit 2.1                 AGREEMENT AND PLAN OF MERGER by and among IKONICS CORP,…
To view the full exhibit click here

About IKONICS CORPORATION (NASDAQ:IKNX)

IKONICS Corporation is engaged in the development and manufacturing of photochemical imaging systems for sale primarily to a range of printers and decorators of surfaces. The Company has five operating segments: Domestic, Export, IKONICS Imaging, Digital Texturing (DTX) and Advanced Material Solutions (AMS). Domestic segment sells screen printing film, emulsions, and inkjet receptive film to distributors located in the United States and Canada. IKONICS Imaging segment sells photo resistant film, art supplies, glass, metal medium and related abrasive etching equipment. AMS segment provides sound deadening technology to the aerospace industry along with products and services for etched composites, ceramics, glass and silicon wafers. DTX segment includes products and customers related to inkjet technology used for mold texturing and prototyping. Export segment sells primarily the same products as Domestic and the IKONICS Imaging products not related to AMS or DTX.

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NEW JERSEY MINING COMPANY (OTCMKTS:NJMC) Files An 8-K Submission of Matters to a Vote of Security Holders

NEW JERSEY MINING COMPANY (OTCMKTS:NJMC) Files An 8-K Submission of Matters to a Vote of Security Holders
ITEM 5.07. Submission of Matters to a Vote of Security Holders.


About NEW JERSEY MINING COMPANY (OTCMKTS:NJMC)

New Jersey Mining Company is engaged in exploring for and developing gold, silver, and base metal deposits in the Greater Coeur d’Alene Mining District of North Idaho and extending into Western Montana. The Company is evaluating mineral investment and development opportunities in the western United States. The Company is focused on advanced stage exploration and development assets. The Company has a portfolio of mineral properties, including the Golden Chest Mine, the New Jersey Mine and Mill, the McKinley exploration project, the Eastern Star exploration project and the Toboggan exploration project, and other exploration prospects. The New Jersey Mill Joint Venture and GF&H Company are subsidiaries of the Company. The New Jersey Mine is an underground mine and mill complex, which is located approximately four kilometers east of Kellogg, Idaho, in the Coeur d’Alene Mining District. The Toboggan Project consists of the prospects, including Gold Butte and Mineral Ridge.

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INTERNATIONAL TOWER HILL MINES LTD. (TSE:ITH) Files An 8-K Material Modification to Rights of Security Holders

INTERNATIONAL TOWER HILL MINES LTD. (TSE:ITH) Files An 8-K Material Modification to Rights of Security Holders
Item 3.03 Material Modification to Rights of Security Holders.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On June 21, 2021, International Tower Hill Mines Ltd. (the “Company”) amended its Articles following shareholder approval at its 2021 Annual General Meeting of Shareholders to (i) allow certain actions to be taken with the approval of the Board of Directors of the Company (the “Board”) only, including creating or eliminating a class or series of shares, subdividing or consolidating any of the Company’s shares into a greater or smaller number of shares, changing any of the Company’s shares without par value into shares with par value (and vice versa), increasing or decreasing the par value of the Company’s shares, and altering the identifying name of any of its shares; (ii) add as Section 9.3 of the Company’s Articles a provision stating that a right or special right attached to issued shares must not be prejudiced or interfered with unless the holders of such class or series of shares consent by a special separate resolution; (iii) allow the Company’s Chief Executive Officer to call a meeting of the Board; and (iv) increase the quorum for a meeting of directors from two directors to a majority of directors. In addition, on June 21, 2021, the Company amended its Notice of Articles to remove the limit on the number of common shares without par value authorized for issuance.

The foregoing description of the amended Articles does not purport to be complete and is qualified in its entirety by reference to the text of the amended Articles, which is set forth in Appendix A to the Company’s definitive proxy statement filed with the Securities and Exchange Commission on April 15, 2021 and is incorporated herein by reference.

  


About INTERNATIONAL TOWER HILL MINES LTD. (TSE:ITH)

International Tower Hill Mines Ltd.is a mineral exploration company. The Company is in the business of acquiring, exploring and evaluating mineral properties, and either joint venturing or developing these properties further or disposing of them when the evaluation is completed. It operates through the exploration and development of mineral properties segment. The Company owns the Livengood Gold Project in Alaska, the United States. The Livengood Gold Project is located approximately 70 miles northwest of Fairbanks, Alaska in the Tolovana mining district within the Tintina Gold Belt. The Livengood Gold Project has a mineral resource of approximately 730 million measured tons at an average grade of over 0.61 gram/ton (g/ton), approximately 70 million indicated tons at an average grade of approximately 0.56 g/ton and over 260 million inferred tons at an average grade of approximately 0.52 g/ton.

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IMAGEWARE SYSTEMS, INC. (OTCMKTS:IWSY) Files An 8-K Changes in Registrant’s Certifying Accountant

IMAGEWARE SYSTEMS, INC. (OTCMKTS:IWSY) Files An 8-K Changes in Registrant’s Certifying Accountant
Item 4.01 Change in Registrant\’s Certifying Accountant.

On June 20, 2021, the Board of Directors of ImageWare Systems, Inc., a Delaware corporation (the “Company”), notified Mayer Hoffman McCann P.C. (“MHM”), the Company’s independent registered public accounting firm, that it would be dismissing MHM effective immediately following the Company’s filing of its Quarterly Report on Form 10-Q for the quarter ending June 30, 2021. MHM will continue to serve as the Company’s independent registered public accounting firm until that time. The Board of Directors is currently interviewing alternative independent registered public accounting firms to succeed MHM.
The report of independent registered public accounting firm of MHM regarding the Company’s financial statements for the fiscal years endedDecember 31, 2020 and 2019 did not contain any adverse opinion or disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principles, except that the audit reports for the years ended December 31, 2020 and December 31, 2019 contained an explanatory paragraph disclosing the uncertainty regarding the Company’s ability to continue as agoing concern.
During the years endedDecember 31, 2020 and 2019, and during the interim period from the end of the most recently completed fiscal year through June 24, 2021, there were no disagreements with MHM on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures, which disagreements, if not resolved to the satisfaction of MHM would have caused it to make reference to such disagreement in its reports.
The Company provided MHM with a copy of this Current Report on Form 8-K prior to its filing with the Securities and Exchange Commission and requested that MHM furnish the Company with a letter addressed to the Securities and Exchange Commission stating whether it agrees with above statements and, if it does not agree, the respects in which it does not agree. A copy of the letter, dated June 24, 2021, is filed asExhibit 16.1(which is incorporated by reference herein) to this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
EXHIBIT INDEX

IMAGEWARE SYSTEMS INC Exhibit
EX-16.1 2 ex16-1.htm LETTER FROM MAYER HOFFMAN MCCANN P.C. ex16-1   Exhibit 16.1               June 24,…
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About IMAGEWARE SYSTEMS, INC. (OTCMKTS:IWSY)

ImageWare Systems Incorporated (ImageWare) provides biometrically enabled software-based identity management solutions. The Company’s product, IWS Biometric Engine, is a multi-biometric software platform that is hardware and algorithm independent, enabling the enrollment and management of unlimited population sizes. It allows a user to utilize one or more biometrics on an integrated platform. Its products are used to manage and issue secure credentials, including national identifications (IDs), passports, driver licenses and access control credentials. It also provides authentication security software using biometrics to secure physical and logical access to facilities or computer networks or Internet sites. ImageWare categorizes its identity management products and services into three markets, including Biometrics, Secure Credential, and Law Enforcement and Public Safety markets.

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