Additional Proxy Soliciting Materials (definitive) (defa14a)
May 04 2018 - 6:17AM
Edgar (US Regulatory)
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): May 3, 2018 (April 27, 2018)
CALMARE
THERAPEUTICS INCORPORATED
(Exact
name of registrant as specified in its charter)
Delaware
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001-08696
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36-2664428
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(State
or other jurisdiction
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(Commission
File Number)
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(IRS
Employer
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of
Incorporation)
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Identification
Number)
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1376
Kings Highway
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Fairfield,
CT 06824
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(Address
of principal executive offices)
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203-368-6044
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(Registrant’s
Telephone Number)
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N/A
(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:
☐
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))
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. ☐
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ITEM
1.01.
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Entry
into a Material Definitive Agreement
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On April 27, 2018, the Registrant executed
a Settlement and Release Agreement (the “Settlement Agreement”), dated April 13, 2018, with William Austin Lewis, IV,
Lewis Asset Management, Lewis Opportunity Fund, Lewis Defined Pension Plan and Trust (collectively, the “Lewis Group”),
and Conrad Mir, Peter Brennan, Rustin Howard and Carl O’Connell, each of whom is a member of the board of directors of the
Registrant, and together with the Registrant is referred to collectively as the “Calmare Group”. Pursuant to the Settlement
Agreement, each member of the Lewis Group and each member of the Calmare Group granted a general release from all past claims held
against each of the members of the other group, including claims related to outstanding promissory notes held by the Lewis Group.
The Calmare Group and the Lewis Group agreed to jointly seek dismissal, with prejudice, of all claims asserted in the case pending
in the United States District Court for the Southern District of New York, Case No. 17-4297 (AJP/DLC), which was approved by the
court on May 3, 2018.
In exchange for the outstanding notes held
by the Lewis Group, the Registrant agreed to issue a new note (the “Note”) for a principal amount of $2,910,090.99,
and subject to an interest rate of 18% per annum, to the Lewis Group. Payments under the Note will begin February 1, 2019, with
the final payment due by the Registrant on February 1, 2023. All amounts due under the Note may be prepaid in advance by the Registrant.
As long as the Note remains outstanding, the Lewis Group may convert all remaining outstanding principal and interest into the
common stock of the Registrant at a price per share of $0.20. If the Registrant sells any equity securities following the issuance
of the Note, the Registrant must use at least 7% of the net cash proceeds received by the Registrant for the sale of equity securities
to make payments under the Note. In connection with the Note, the Registrant granted the Lewis Group a security interest, which
is subordinate to the security interest of another entity, in 104 devices manufactured by the Registrant.
Pursuant to the Settlement Agreement, the Registrant
issued a warrant (the “Warrant”), dated April 24, 2018, to the Lewis Group for the purchase of additional shares of
common stock of the Registrant. The Warrant is convertible into 7,275,228 shares of common stock of the Registrant (the “Warrant
Shares”) at a price per share of $0.20. The Warrant may be exercised in full pursuant to a cashless exercise. The term of
the Warrant is eight years.
Under the Settlement Agreement, the Lewis Group
was granted the right to have one non-voting board observer (the “Observer”) at all meetings of the board of directors
of the Registrant. The Observer may attend all board meetings so long as the Lewis Group owns the Registrant’s equity securities.
Finally, the Lewis Group has agreed to not
take any action that may negatively impact any member of the Calmare Group, their reputation, services, management or employees,
domestically or globally.
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ITEM
3.02.
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Unregistered
Sales of Equity Securities
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The information set forth above in Item 1.01 Entry into a Material
Definitive Agreement is hereby incorporated by reference.
The issuance of securities described in Item
1.01 above was completed in reliance on exemptions from registration under Section 4(a)(2) of the Securities Act of 1933 (the
“Securities Act”). The transaction qualified for an exemption from registration because (i) the Registrant
did not engage in any general solicitation or advertising to market the securities; (ii) the purchaser was provided the opportunity
to ask questions and receive answers from the Registrant regarding the Registrant and the issuance; (iii) the securities
were issued to a person with knowledge and experience in financial and business matters so that he is capable of evaluating the
merits and risks of an investment in the Registrant; and (iv) the recipient received “restricted securities”
that will include a restrictive legend on the certificate, which restricts the shares from being transferred except pursuant to
a registration statement that is effective with the SEC or pursuant to an exemption from registration.
The information set forth above in Item 1.01 Entry into a Material
Definitive Agreement and Item 3.02 Unregistered Sales of Equity Securities is hereby incorporated by reference.
Participants in Solicitation
THE COMPANY AND ITS DIRECTORS AND EXECUTIVE OFFICERS ARE DEEMED
TO BE PARTICIPANTS IN THE CONSENT REVOCATION SOLICITATION. THESE PARTICIPANTS ARE IDENTIFIED IN THE COMPANY'S AMENDED DEFINITIVE
CONSENT REVOCATION STATEMENT (AMENDMENT NO. 1) THAT THE COMPANY FILED WITH THE SEC ON JANUARY 16, 2018. INFORMATION REGARDING THE
INTERESTS OF PARTICIPANTS OF THE COMPANY IN THE SOLICITATION OF CONSENT REVOCATIONS AND OTHER RELEVANT MATERIAL WILL BE FILED WITH
THE SEC WHEN THEY BECOME AVAILABLE. SOME OF THIS INFORMATION HAS BEEN INCLUDED IN THE PRELIMINARY CONSENT REVOCATION MATERIALS
THAT THE COMPANY FILED WITH THE SEC.
Additional Information
SHAREHOLDERS ARE ENCOURAGED TO READ THE COMPANY'S CONSENT REVOCATION
STATEMENT AND SUBSEQUENT FILINGS, TOGETHER WITH ANY OTHER RELEVANT DOCUMENTS THAT THE COMPANY FILES WITH THE SEC WHEN THEY BECOME
AVAILABLE. THEY WILL CONTAIN IMPORTANT INFORMATION.
INVESTORS AND SECURITY HOLDERS WILL BE ABLE
TO OBTAIN THE DOCUMENTS FREE OF CHARGE AT THE SEC'S WEBSITE, WWW.SEC.GOV, FROM CALMARE THERAPEUTICS INCORPORATED AT ITS WEBSITE,
WWW.CALMARETHERAPEUTICS.COM OR BY WRITING TO CALMARE THERAPEUTICS INCORPORATED, 1375 KINGS HWY. STE 400, FAIRFIELD, CT 06824-5380
ATTENTION: INVESTOR RELATIONS.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report
to be signed on its behalf by the undersigned thereunto duly authorized.
May 3, 2018
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Calmare Therapeutics Incorporated
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By:
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/s/
Conrad Mir
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Conrad Mir
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Chief Executive Officer
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Calmare Therapeutics (CE) (USOTC:CTTC)
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