Form SC 13D - General statement of acquisition of beneficial ownership

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

 

SMX (Security Matters) PLC

(Name of Issuer)

 

Ordinary Shares, par value $0.0022 per share

 

(Title of Class of Securities)

 

G8267K141

(CUSIP Number)

 

Doron Afik

103 Hahasmonaim St.

POB 20144

Tel Aviv, Israel

[phone]

(Name, Address and Telephone Number of Person Authorized to

Receive Notices and Communications)

 

December 31, 2023

(Date of Event which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

 

NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

 

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

 

 

CUSIP No.

G8267K141

1.	Names of Reporting Person: Doron Afik
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a)☐ (b)☐
3.	SEC Use Only
4.	Source of Funds (See Instructions): Not applicable.
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	☐
6.	Citizenship or Place of Organization: Israeli

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7.	Sole Voting Power: 3,781,310 (see Items 2 and 5)
	8.	Shared Voting Power:   0 (see Items 2 and 5)
	9.	Sole Dispositive Power:   3,781,310
	10.	Shared Dispositive Power:   0 (see Items 2 and 5)

11.	Aggregate Amount Beneficially Owned by Each Reporting Person: 3,781,310
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):	☐
13.	Percent of Class Represented by Amount in Row (11):   31.13%
14.	Type of Reporting Person (See Instructions):   IN

 

See Item 5(a) below.

 

 

 

Item 1. Security and Issuer

 

This report on Schedule 13D (this “Report”) relates to the issued and outstanding ordinary shares, par value $0.0022 per share (the “Ordinary Shares”), of SMX (Security Matters) PLC, an Ireland public limited company (the “Company”). The principal executive offices of the Company are located at Mespil Business Centre, Mespil House, Sussex Road, Dublin 4, D04 T4A6 Ireland.

 

Item 2. Identity and Background

 

This Report is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended, by Doron Afik (the “Reporting Person”). The Reporting Person’s principal occupation is attorney, and the Reporting Person, through Afik & Co. Attorneys & Notary, provides certain legal services to the Company from time to time.

 

The business address for the Reporting Person is 103 Hahasmonaim St., Tel Aviv, Israel.

 

During the past five years, the Reporting Person has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

 

During the past five years, the Reporting Person has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction where as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to federal or state securities laws or finding any violation with respect to such laws.

 

The Reporting person is a citizen of Israel.

 

Item 3. Source and Amount of Funds or Other Consideration

 

The Company owed the Reporting Person an aggregate of $564,795 in principal and interest as a result of unpaid services rendered to the Company by the Reporting Person (the “Owed Amount”). Pursuant to a Conversion and Exchange Rights Agreement (the “Agreement”) dated December 31, 2023 the Owed Amount and 500,000 redeemable warrants owned by the Reporting Person were converted and exchanged for 1,874,374 Ordinary Shares and 1,874,374 3-year cashless warrants (the “Cashless Warrants”). The Agreement is attached to this Schedule 13D as Exhibit 10.1 and incorporated hereby by reference. The Reporting Person also received 2,778 Ordinary Shares upon the vesting of restricted stock units previously granted to the Reporting Person.

 

Item 4. Purpose of Transaction

 

See Item 3 above.

 

The Reporting Person acquired the securities described in this Schedule 13D for investment purposes and intends to review such investment in the Company on a continuing basis. Any actions the Reporting Person might undertake may be made at any time and from time to time without prior notice and will be dependent upon the Reporting Person’s review of numerous factors, including, but not limited to: an ongoing evaluation of the Company’s business, financial condition, operations and prospects; price levels of the Ordinary Shares; general market, industry and economic conditions; the relative attractiveness of alternative business and investment opportunities; and other future developments.

 

Subject to applicable law, the Reporting Person may acquire additional securities of the Company, or retain or sell all or a portion of the securities then held, in the open market or in privately negotiated transactions, including as payment for additional services rendered to the Company from time to time. In addition, subject to the provisions of the foregoing, through his role as counsel to the Company or otherwise, the Reporting Person may engage in discussions with management, the Company’s board of directors, and stockholders of the Company and other relevant parties or encourage, cause or seek to cause the Company or such persons to consider or explore extraordinary corporate transactions, such as: a merger, reorganization or take-private transaction that could result in the de-listing or de-registration of the Ordinary Shares; sales or acquisitions of assets or businesses; changes to the capitalization or dividend policy of the Company; or other material changes to the Company’s business or corporate structure, including changes in management or the composition of the Company’s board of directors.

 

 

 

Other than as described above, the Reporting Person as of the date of the event requiring filing of this Report does not currently have any plans or proposals that relate to, or would result in, any of the matters listed in Item 4(a)–(j) of Schedule 13D, although, depending on the factors discussed herein, the Reporting Person may change its purpose or formulate different plans or proposals with respect thereto at any time.

 

Item 5. Interest in Securities of the Issuer

 

(a)	As of the date of the event requiring filing of this Report, the Reporting Person beneficially owned 3,781,310 Ordinary Shares, which number of shares represents approximately 31.13% of the outstanding Ordinary Shares based on 10,242,706 Ordinary Shares issued and outstanding as of December 31, 2023, and which includes (i) 1,974 Ordinary Shares underlying vested stock options of the Company, (ii) 1,874,374 Ordinary Shares underlying the Cashless Warrants and (iii) 25,000 5-year warrants exercisable at an exercise price of $253 per share. The percentage of ownership reported in this Item 5 was calculated in accordance with Rule 13d-3(d)(1)(i) promulgated under the Securities Exchange Act of 1934, as amended.
(b)	See rows (7) through (10) of the cover page to this Schedule 13D for the number of Ordinary Shares as to which the Reporting Person has the sole or shared power to vote or direct the vote and sole or shared power to dispose or to direct the disposition.
(c)	Except as described in Item 3, which is hereby incorporated by reference, the Reporting Person has not effected any transaction in Ordinary Shares or other voting securities of the Company in the past 60 days from the date of the event requiring filing of this Report.
(d)	The Reporting Person has the right to receive the dividends from and proceeds of sales from the Ordinary Shares beneficially owned by him.
(e)	Not applicable.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

Reference is made to Items 3 and 4, which are hereby incorporated by reference.

 

Item 7. Material to be Filed as Exhibits

 

Exhibit 10.1

Conversion and Exchange Rights Agreement dated December 31, 2023

 

 

 

SIGNATURES

 

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

 

Date: June 4, 2024
	/s/ Doron Afik
	Name:	Doron Afik

 

 

 

Exhibit 10.1

 

CONVERSION AND EXCHANGE RIGHTS AGREEMENT

 

CONVERSION AND EXCHANGE RIGHTS AGREEMENT (this “Agreement”) executed December 31, 2023, with respect to that certain Binding Terms of Agreement accepted and agreed to in the date written on Annex A, and other documents related thereto (together, the “Binding Terms”), by and between Security Matters Limited, SMX (Security Matters) PLC (formerly Empatan PLC) , and the person stipulated in Annex A as “Subscriber”. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Binding Terms. Unless and until Annex A is further executed and delivered by the parties hereto, this Agreement and the Annex A shall be of no force or effect on the parties.

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Binding Terms, among other things, Subscriber subscribed for and purchased a Note with a value as described in Annex A (the “Note”), related Redeemable Warrants and/or Bonus Warrants (as such terms are defined in the Note); and

 

WHEREAS, SMX (Security Matters) PLC is hereby offering the Subscriber the right to (a) convert the Note, if appearing in Annex A, into shares of common stock of SMX (Security Matters) PLC and (b) exchange the Redeemable Warrants, if appearing in Annex A for common stock of SMX (Security Matters) PLC, in each case on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1. Conversion of Note. Unless Annex A stipulates otherwise, subject to the terms and conditions of this Agreement and notwithstanding anything to the contrary in the Note, on December 31, 2023, any amount outstanding under the Note and all of the rights, covenants, agreements and obligations set forth therein or contemplated thereby (including the redeemable warrants issued thereunder), including but not limited to all outstanding principal and any interest accrued and unpaid on the principal, shall be converted into a number of fully paid and non-assessable restricted ordinary shares of SMX (Security Matters) PLC, based on a conversion price equal to a 20% discount to the last closing price of SMX (Security Matters) PLC ordinary shares on December 31, 2023, and for each such coversion share also one 3-year cashless non-alianable warrants, each to purchase one SMX (Security Matters) PLC share at a price per share of USD 1.17, all as described in Annex A (such shares and warrants, “Conversion Shares and Warrants”). The Conversion Shares and Warrants will be locked for sale until January 28, 2024.

 

Section 2. Result of Conversion. Upon the conversion, the Subscriber shall not have any interest in or title to the Note and all obligations under the Note and any security interests relating thereto shall cease and be of no further force or effect.

 

Section 3. Issuance of Shares. As soon as practical after December 31, 2023: (a) the Note will be cancelled on the books and records of SMX (Security Matters) PLC and Security Matters Limited, and the Subscriber shall only have the right to receive the Conversion Shares and Warrants pursuant to Section 1 above, (b) the Redeemable Warrants under the Note will be terminated and cancelled on the books and records of SMX (Security Matters) PLC and Security Matters Limited, and the Subscriber shall only have the right to receive the Conversion Shares and Warrants pursuant to Section 1 above; and (c) SMX (Security Matters) PLC shall promptly, file a registration statement to cause the Conversion Sares and Warrants to be fully tradeable as of Janaury 28, 2024, and at such date remove any restrictions on transferability as may be required under applicable law and deliver to Subscriber details of the shares issued.

 

Section 4. Bonus Warrants. Nothing herein shall change the rights of the Bonus Warrants issued under the Note.

 

Section 5. Representations and Warranties. The Subscriber represents and warrants that the Subscriber is the record and beneficial owner of the Note and of the Warrants, free and clear of all liens, charges, pledges, security interests, claims, mortgages, options, encumbrances, rights of first refusal, conditions, covenants and other restrictions (other than any restrictions under the U.S. Securities Act of 1933, as amended or state securities laws), and has the full right and power to enter into this Agreement and perform the terms and conditions specified herein.

 

 

 

Section 6. Miscellaneous. The parties shall execute such documents and other instruments and take such further actions as may be reasonably required or desirable to carry out the provisions of this Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior understandings, agreements, or representations by or between the parties, written or oral, to the extent they related in any way to the subject matter hereof. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, assigns, personal representatives, heirs, executors and administrators. Notwithstanding the foregoing, neither party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other party. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel without giving effect to any choice or conflict of law provision or rule (whether of the State of Israel or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Israel. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the parties. No waiver by any party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the 31 of December 2023.

 

SECURITY MATTERS LIMITED			SMX (Security Matters) PLC
By:	/s/ Haggai Alon		By:	/s/ Haggai Alon
Name:			Name:
Title:			Title:
By:
Name:
Title:
SUBSCRIBER: Doron Afik
By:	/s/ Doron Afik
Name:

 

 

 

Annex A

 

Details of the Binding Terms and Conversion Shares and Warrants

 

				Doron Afik
Principal					500,000
Redeemable warrants					500,000
Interest					64,795
Total debt					1,064,795
Share price					0.710
Discounted Share price		20%			0.57
# shares					1,874,374
# Cashless Warrants					1,874,374
Interest calculation
Date loan received					15-Sep-22
Until					31-Dec-23
Principal					500,000
Rate					10	%
Days					473
Accrued Interest					64,795

 

SECURITY MATTERS LIMITED			SMX (Security Matters) PLC
By:	/s/ Haggai Alon		By:	/s/ Haggai Alon
Name:			Name:
Title:			Title:
By:
Name:
Title:
SUBSCRIBER: Doron Afik
By:	/s/ Doron Afik
Name:

 

 

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