UNITED STATES
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): December 6, 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: (888) 932-6537
|
(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 |
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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.
Item 5.08 Shareholder Director Nominations.
The Board of Directors of Akerna, has established
Thursday, December 28, 2023 as the date of the Company’s 2023 Annual Meeting of Stockholders (the “2023 Annual Meeting”). Stockholders
of record at the close of business on December 11, 2023 and only such stockholders will be entitled to notice of and to vote at the 2023
Annual Meeting. The time and location of the 2021 Annual Meeting will be as set forth in the Company’s proxy statement for the
2023 Annual Meeting.
Because the date of the 2023 Annual Meeting differs
by more than 30 days from the anniversary date of the Company’s 2022 annual meeting of stockholders, which was held on May 13, 2022, the
deadline for submission of any stockholder proposals for inclusion in the Company’s proxy materials pursuant to Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the deadlines for any stockholder to submit a nominee to serve as
director or to submit a proposal to be considered at the 2023 Annual Meeting, as set forth in the Company’s proxy statement, filed
with the United States Securities and Exchange Commission (the “SEC”) on April 19, 2022, no longer apply. Pursuant to the Company’s
bylaws (the “Bylaws”) and Rule 14a-5(f) of the Exchange Act, the Company is hereby providing notice of the revised deadlines
for such proposals by means of this report.
To be considered for inclusion in the Company’s
proxy materials for the 2023 Annual Meeting in accordance with Rule 14a-8, stockholder proposals must be submitted in writing by December
12, 2023, which the Company has determined to be a reasonable time before it expects to begin to print and distribute its proxy materials
prior to the 2023 Annual Meeting.
In accordance with the Company’s Bylaws, because
the date of the 2023 Annual Meeting will be delayed by more than sixty (60) days prior to the anniversary of the Company’s 2022 annual
meeting of stockholders, in order for a stockholder entitled to vote to bring a proposal or submit a nominee for director at the 2023
Annual Meeting, such stockholder must be a stockholder of record on the date of giving such notice and must continue to be a stockholder
of record on December 11, 2023, and such notice by such stockholder must be received no later than the close of business on the 10th day
following the day on which public announcement of the date of the 2023 Annual Meeting is first made. Accordingly, notice of stockholder
proposals or nominations for director for the 2023 Annual Meeting must be received no later than 5:00 p.m. Denver local time on December
16, 2023.
In addition to satisfying the foregoing requirements
under our bylaws, to comply with the universal proxy rules, stockholders who intend to solicit proxies in support of director nominees
other than our nominees for the 2023 Annual Meeting must provide notice that sets forth the information required by Rule 14a-19 under
the Exchange Act no later than December 18, 2023.
Proposals and notices must be in writing and received
by our Corporate Secretary at 1550 Larimer Street, #246, Denver, Colorado 80202, and must also comply with the requirements set forth
in the rules and regulations of the Exchange Act and the Company’s Bylaws.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are filed as part of this
report:
Exhibit
Number |
|
Description |
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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 (516) 419-9915.
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 September 7, 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 June 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.
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, hereunto duly authorized.
Dated: December 6, 2023 |
AKERNA CORP. |
|
|
|
By: |
/s/ Jessica Billingsley |
|
|
Name: |
Jessica Billingsley |
|
|
Title: |
Chief Executive Officer |
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