Form 425 - Prospectuses and communications, business combinations

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K/A

(Amendment No. 1)

 

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): December 28, 2023

 

AKERNA CORP.

(Exact name of registrant as specified in its charter)

 

Delaware		001-39096		83-2242651
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

1550 Larimer Street, #246, Denver, Colorado		80202
(Address of principal executive offices)		(Zip Code)

 

Registrant’s telephone number, including area code: [phone]

 

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

☒	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

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

 

☐	Pre-commencement communications pursuant to Rule 13e-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
Common Stock, par value $0.0001 per share		KERN		NASDAQ Capital Market
Warrants to purchase Common Stock		KERNW		NASDAQ Capital Market

 

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. ☐

 

 

 

 

 

 

EXPLANATORY NOTE

 

This Amendment No. 1 to the Current Report on Form 8-K (this “Amendment”) is being filed by Akerna Corp. (the “Company”) for the purpose of amending Item 9.01 Financial Statements and Exhibits of that certain Current Report on Form 8-K originally filed by the Company with the Securities and Exchange Commission (“SEC”) on December 29, 2023 (the “Original Form 8-K”) in connection with the completion of the disposition of the Company’s indirect wholly-owned subsidiary Ample Organics Inc. (“Ample”). As indicated in the Original Form 8-K, this Amendment is being filed to provide the unaudited pro forma financial information required by Item 9.01(b) of Form 8-K, which were not previously filed with the Original Form 8-K as permitted by the rules of the SEC.

 

Item 2.01 Completion of Acquisition of Disposition Agreement

 

This Amendment supplements the Original Form 8-K filed with the SEC on December 29, 2023, regarding the disposition of Ample. The purpose of this Amendment is to file the unaudited pro forma financial information required by Item 9.01 of Form 8-K.  All other disclosure under Items 1.01 and 2.01 in the Original  Form 8-K remains the same and is hereby incorporated by reference into this Current Report on Form 8-K/A.

 

Item 9.01 Financial Statements and Exhibits

 

(b) Pro Forma Financial Information.

 

The unaudited pro forma condensed combined financial information of the Company, giving effect to the disposition of Ample, which includes the unaudited pro forma condensed combined balance sheet as of September 30, 2023 and the unaudited pro forma condensed combined statements of income for the year ended December 31, 2022 and for the nine months ended September 30, 2023 and the related notes, are incorporated herein by reference as Exhibit 99.1 hereto.

 

The pro forma financial information included in this Form 8-K/A has been presented for informational purposes only and is not necessarily indicative of the combined financial position or results of operations that would have been realized had the dispostion of Ample occurred as of the dates indicated, nor is it meant to be indicative of any anticipated combined financial position or future results of operations that the Company will experience after the disposition.

 

(d) Exhibits.

 

Exhibit Number		Description
2.1+		Third Amendment to Securities Purchase Agreement by and between the Company, Akerna Canada Ample Exchange and MJ Acquisition Corp. incorporated by reference to Exhibit 2.11 to the Company’s Registration Statement on Form S-4/A as filed with the Commission on December 28, 2023)
10.1+		Share Purchase Agreement by and between Akerna, Akerna Canada Ample Exchange and Wilcompute Systems Group dated December 28, 2023 (incorporated by reference to Exhibit 10.71 to the Company’s Registration Statement on Form S-4/A as filed with the Commission on December 28, 2023)
10.2+		Intellectual Property Purchase Agreement by and between the Company and Ample Organics dated December 28, 2023 (incorporated by reference to Exhibit 10.72 to the Company’s Registration Statement on Form S-4/A as filed with the Commission on December 28, 2023)
10.3+		Collateral Agent Release and Agreement dated December 28, 2023 (incorporated by reference to Exhibit 10.73 to the Company’s Registration Statement on Form S-4/A as filed with the Commission on December 28, 2023)
10.4+		Form of Noteholder Consent and Agreement dated December 28, 2023 (incorporated by reference to Exhibit 10.74 to the Company’s Registration Statement on Form S-4/A as filed with the Commission on December 28, 2023)
10.5+		Release and Consent of MJ Acquisition Corp. dated December 28, 2023 (incorporated by reference to Exhibit 10.76 to the Company’s Registration Statement on Form S-4/A as filed with the Commission on December 28, 2023)
10.6+		Consent and Agreement of MJ Acquisition Corp. dated December 28, 2023 (incorporated by reference to Exhibit 10.75 to the Company’s Registration Statement on Form S-4/A as filed with the Commission on December 28, 2023)
99.1		Unaudited Pro Forma Condensed Consolidated Financial Statements
104.1		Cover Page Interactive Data File (embedded within the Inline XBRL Document).

 

+	Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request.

 

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Additional Information and Where to Find It

 

This Current Report on Form 8-K may be deemed to be solicitation material with respect to the proposed transactions between Akerna and Gryphon Digital Mining, Inc. (‘Gryphon”) and between Akerna and MJ Acquisition Corp. In connection with the proposed transactions, Akerna has filed relevant materials with the United States Securities and Exchange Commission, or the SEC, including a registration statement on Form S-4 that contains a prospectus and a proxy statement. Akerna will mail the proxy statement/prospectus to the Akerna stockholders, and the securities may not be sold or exchanged until the registration statement becomes effective. Investors and securityholders of Akerna and Gryphon are urged to read these materials because they will contain important information about Akerna, Gryphon and the proposed transactions. This Current Report on Form 8-K is not a substitute for the registration statement, definitive proxy statement/prospectus or any other documents that Akerna may file with the SEC or send to securityholders in connection with the proposed transactions. Investors and securityholders may obtain free copies of the documents filed with the SEC on Akerna’s website at www.akerna.com, on the SEC’s website at www.sec.gov or by directing a request to Akerna’s Investor Relations at [phone].

 

This Current Report on Form 8-K is not a proxy statement or a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed transactions, and shall not constitute an offer to sell or the solicitation of an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.

 

Participants in the Solicitation

 

Each of Akerna, Gryphon, MJ Acquisition Corp. and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of Akerna in connection with the proposed transactions. Information about the executive officers and directors of Akerna are set forth in Akerna’s Definitive Proxy Statement on Schedule 14A relating to the 2022 Annual Meeting of Stockholders, filed with the SEC on April 19, 2022. Other information regarding the interests of such individuals, who may be deemed to be participants in the solicitation of proxies for the stockholders of Akerna, is set forth in the proxy statement/prospectus included in Akerna’s registration statement on Form S-4 as filed with the SEC on May 12, 2023, as last amended on December 28, 2023. You may obtain free copies of these documents as described above.

 

Cautionary Statements Regarding Forward-Looking Statements

 

This Current Report on Form 8-K contains forward-looking statements based upon the current expectations of Gryphon and Akerna. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties, which include, without limitation: (i) the risk that the conditions to the closing of the proposed transactions are not satisfied, including the failure to timely obtain stockholder approval for the transactions, if at all; (ii) uncertainties as to the timing of the consummation of the proposed transactions and the ability of each of Akerna, Gryphon and MJ Acquisition Co. to consummate the proposed merger or asset sale, as applicable; (iii) risks related to Akerna’s ability to manage its operating expenses and its expenses associated with the proposed transactions pending closing; (iv) risks related to the failure or delay in obtaining required approvals from any governmental or quasi-governmental entity necessary to consummate the proposed transactions; (v) the risk that as a result of adjustments to the exchange ratio, Akerna stockholders and Gryphon stockholders could own more or less of the combined company than is currently anticipated; (vi) risks related to the market price of Akerna’s common stock relative to the exchange ratio; (vii) unexpected costs, charges or expenses resulting from either or both of the proposed transactions; (viii) potential adverse reactions or changes to business relationships resulting from the announcement or completion of the proposed transactions; (ix) risks related to the inability of the combined company to obtain sufficient additional capital to continue to advance its business plan; (x) risks associated with the possible failure to realize certain anticipated benefits of the proposed transactions, including with respect to future financial and operating results and (xi) risks related to the Panel not granting additional time for Akerna to regain compliance with the listing rules and Akerna being suspended and delisted from The Nasdaq Capital Market. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties. These and other risks and uncertainties are more fully described in periodic filings with the SEC, including the factors described in the section titled “Risk Factors” in Akerna’s Annual Report on Form 10-K for the year ended December 31, 2022 and Quarterly Report on Form 10-Q for the quarter ended September 30, 2023, each filed with the SEC, and in other filings that Akerna makes and will make with the SEC in connection with the proposed transactions, including the proxy statement/prospectus described under “Additional Information and Where to Find It.” You should not place undue reliance on these forward-looking statements, which are made only as of the date hereof or as of the dates indicated in the forward-looking statements. Except as required by law, Akerna and Gryphon expressly disclaim any obligation or undertaking to update or revise any forward-looking statements contained herein to reflect any change in its expectations with regard thereto or any change in events, conditions or circumstances on which any such statements are based.

 

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SIGNATURE

 

Pursuant to the requirement of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

Dated: January 4, 2024	AKERNA CORP.
	By:	/s/ Jessica Billingsley
		Name:	Jessica Billingsley
		Title:	Chief Executive Officer

 

 

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Exhibit 99.1

 

AKERNA CORP.

Unaudited Pro Forma Condensed Consolidated Financial Information

 

On December 28, 2023, Akerna Corp. (the “Company”) completed the sale of its indirect wholly-owned subsidiary Ample Organics Inc. (“Ample”), pursuant to a Share Purchase Agreement (the “SPA”), dated as of December 28, 2023, by and between the Company, the Company’s indirect wholly-owned subsidiary Akerna Canada Ample Exchange Inc. (“Akerna Exchange”), which owned all the outstanding capital stock of Ample, and Wilcompute Systems Group Inc. (the “Buyer”), for cash in the amount of $638,000, subject to customary post-closing adjustments, if any. Post-closing adjustments are primarily associated with certain adjustments in working capital and indemnification obligations in accordance with the SPA.

 

The sale of Ample is considered a significant disposition for purposes of Item 2.01 of Form 8-K. Accordingly, the Company has prepared the accompanying unaudited pro forma condensed consolidated financial information in accordance with Article 11 of Regulation S-K.

 

The accompanying unaudited pro forma condensed consolidated balance sheet gives effect to the sale of Ample as if it had occurred on September 30, 2023, the date of the Company’s most recently filed balance sheet. The accompanying unaudited pro forma condensed consolidated statement of operations for the year ended December 31, 2022 and the nine months ended September 30, 2023 gives effect to the sale of Ample as if it had occurred on January 1, 2022.

 

The unaudited pro forma condensed consolidated financial information should be read in conjunction with: (i) the audited consolidated financial statements and notes as of and for the year ended December 31, 2022 and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in the Company’s Form 10-K for the year ended December 31, 2022 filed with the Securities and Exchange Commission (the “SEC”) on March 21, 2023 and (ii) the Company’s unaudited condensed consolidated financial statements and notes as of and for the period ended September 30, 2023 and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in the Company’s Form 10-Q for the quarterly period ended September 30, 2023 filed with the SEC on November 14, 2023.

 

The unaudited pro forma condensed consolidated financial information is presented based on assumptions, adjustments and currently available information described in the accompanying notes and is intended for informational purposes only. The unaudited pro forma condensed consolidated financial information is not necessarily indicative of what the Company’s results of operations or financial condition would have been had the sale of Ample occurred on the dates assumed. In addition, it is not necessarily indicative of the Company’s future results of operations or financial condition.

 

 

 

 

AKERNA CORP.

PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS

Nine Months Ended September 30, 2023

(Unaudited)

 

						Pro Forma
		As Reported				Adjustments						Pro Forma
Assets
Current assets
Cash		$	209,577			$	637,648		(a)(b)			$	847,225
Restricted cash			-				-		(b)				-
Accounts receivable, net			252,951				(124,723	)	(b)				128,228
Prepaid expenses & other current assets			780,618				(62,284	)	(b)				718,334
Total current assets			1,243,146				450,641		(b)				1,693,787
Fixed assets, net			27,425				-		(b)				27,425
Capitalized software, net			213,766				(213,766	)	(b)				-
Intangible assets, net			1,880,000				(1,880,000	)	(b)				-
Goodwill			816,200				(816,200	)	(b)				-
Deposits - net of current portion			-				-		(b)				-
Total assets		$	4,180,537			$	(2,459,325	)				$	1,721,212
Liabilities and stockholders’ equity (deficit)
Current liabilities
Accounts payable, accrued expenses and other current liabilities		$	4,326,727			$	(245,844	)	(b)			$	4,080,883
Deferred revenue			469,874				-		(b)				469,874
Current portion of long-term debt			7,733,271				-		(b)				7,733,271
Total current liabilities			12,529,872				(245,844	)	(b)				12,284,028
Long-term debt, noncurrent			849,729				-		(b)				849,729
Total liabilities			13,379,601				(245,844	)					13,133,757
Stockholders’ equity (deficit)
Series C preferred stock			-						(b)				-
Series seed preferred stock			-						(b)				-
Series seed II preferred stock			-						(b)				-
Special voting preferred stock			1,907,941				(1,907,941	)	(b)				-
Common stock			1,000				-		(b)				1,000
Additional paid-in capital			164,314,083				(26,731,798	)	(b)				137,582,285
Subscription receivable			-				-		(b)				-
Accumulated other comprehensive income			295,274				99,254		(b)				394,528
Accumulated deficit			(175,717,362	)			26,327,004		(b)				(149,390,358	)
Total stockholders’ equity (deficit)			(9,199,064	)			(2,213,481	)					(11,412,545	)
Total liabilities and stockholders’ equity (deficit)		$	4,180,537			$	(2,459,325	)				$	1,721,212

 

See accompanying notes

 

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AKERNA CORP.

PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS

Nine Months Ended September 30, 2023

(Unaudited)

 

						Pro Forma
		As Reported				Adjustments (c)				Pro Forma
Revenue
Software		$	6,909,399			$	(1,657,449	)		$	5,251,950
Consulting			46,000				-				46,000
Other revenue			17,710				(9,957	)			7,753
Total revenue			6,973,109				(1,667,406	)			5,305,703
Cost of revenue			2,988,688				(449,119	)			2,539,569
Gross profit			3,984,421				(1,218,287	)			2,766,134
Operating expenses
Product development			2,153,834				(307,418	)			1,846,416
Sales and marketing			1,997,996				(193,853	)			1,804,143
General and administrative			4,458,949				(147,424	)			4,311,525
Depreciation and amortization			746,966				(725,512	)			21,454
Impairment of long-lived assets			892,103				(892,103	)			-
Total operating expenses			10,249,848				(2,266,311	)			7,983,537
Loss from operations			(6,265,427	)			1,048,023				(5,217,404	)
Other income (expense)
Interest expense, net			(917,015	)			-				(917,015	)
Change in fair value of debt			(863,457	)			-				(863,457	)
Loss on asset disposal			-				-				-
Other income (expense)			9,781				-				9,781
Total other income (expense)			(1,770,691	)			-				(1,770,691	)
Net loss before income taxes and equity in losses of investee			(8,036,118	)			1,048,023				(6,988,095	)
Income tax (expense) benefit			-				-				-
Equity in losses of investee
Net loss		$	(8,036,118	)		$	1,048,023			$	(6,988,095	)
Diluted weighted average common stock outstanding			6,486,669								6,486,669
Diluted net loss per share		$	(1.24	)						$	(1.08	)

 

See accompanying notes

 

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AKERNA CORP.

PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS

For the Year Ended December 31, 2022

(Unaudited)

 

						Pro Forma
		As Reported				Adjustments (c)				Pro Forma
Revenue
Software		$	12,920,647			$	(3,172,380	)		$	9,748,267
Consulting			682,309				-				682,309
Other revenue			42,074				(14,481	)			27,593
Total revenue			13,645,030				(3,186,861	)			10,458,169
Cost of revenue			5,412,388				(500,885	)			4,911,503
Gross profit			8,232,642				(2,685,976	)			5,546,666
Operating expenses
Product development			4,690,967				(602,672	)			4,088,295
Sales and marketing			6,053,172				(480,452	)			5,572,720
General and administrative			8,344,612				(326,357	)			8,018,255
Depreciation and amortization			5,622,274				(1,200,278	)			4,421,996
Impairment of long-lived assets			38,967,296				(12,438,666	)			26,528,630
Total operating expenses			63,678,321				(15,048,425	)			48,629,896
Loss from operations			(55,445,679	)			12,362,449				(43,083,230	)
Other income (expense)
Interest expense, net			(853,716	)			(151	)			(853,867	)
Change in fair value of debt			(2,884,273	)			-				(2,884,273	)
Change in fair value of warrant liability			63,178				-				63,178
Other income (expense)			(221,101	)			-				(221,101	)
Total other income (expense)			(3,895,912	)			(151	)			(3,896,063	)
Net loss before income taxes and equity in losses of investee			(59,341,591	)			12,362,298				(46,979,293	)
Income tax (expense) benefit			113,273				15,036				128,309
Equity in losses of investee			-				-				-
Net loss		$	(59,228,318	)		$	12,377,334			$	(46,850,984	)
Diluted weighted average common stock outstanding			2,927,853								2,927,853
Diluted net loss per share		$	(20.23	)						$	(16.00	)

 

See accompanying notes

 

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AKERNA CORP.

NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL INFORMATION

 

The following describes the pro forma adjustments reflected in the presentation of the accompanying pro forma condensed consolidated balance sheet and pro forma condensed consolidated statements of operations:

 

(a)

–

Adjustment reflects the cash consideration received including restricted cash as if the closing date of the sale occurred on September 30, 2023.

 

(b)

–

Adjustment reflects the disposition of the assets and liabilities of Ample and the impact of the sale to equity.

 

(c)

–

Adjustments reflect the historical operating results of Ample for the year ended December 31, 2022 and the nine months ended September 30, 2023.

 

 

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