Registration
No. 333-_______________
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
MARATHON
PATENT GROUP, INC.
(Exact
name of registrant as specified in its charter)
Nevada
(State
or other jurisdiction of incorporation or organization)
01-0949984
I.R.S.
Employer Identification Number
6794
(Primary
Standard Industrial Code Classification Number)
1180
North Town Center Drive, Suite 100
Las
Vegas, NV 89144
702-945-2773
(Address,
including zip code, and telephone number, including area code of
registrant’s principal executive offices)
Copies
to:
Mr.
Merrick Okamoto
Chief
Executive Officer
Marathon
Patent Group, Inc.
1180
North Town Center Drive, Suite 100
Las Vegas, NV 89144
702-945-2773
(Address, including zip code, and telephone
number,
including
area code, of agent for service)
Copies
to:
|
Jolie
Kahn, Esq.
12
E. 49th Street, 11th floor
New
York, NY 10017
Telephone:
(516) 217-6379
Facsimile:
(866) 705-3071
|
|
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule
12b-2 of the Exchange Act. (Check one):
|
Large
accelerated filer [ ] |
Accelerated
filer [ ] |
|
Non-accelerated
filer [ ] |
Smaller
reporting company [X] |
| |
Emerging
Growth Company [ ] |
| |
(Do
not check if a smaller reporting 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.
[ ]
CALCULATION
OF REGISTRATION FEE
|
Title of Securities to be Registered |
|
Amount
to be registered(1) (2) |
|
Proposed
maximum offering price per share(3) |
|
|
Proposed
maximum aggregate offering price(3) |
|
|
Amount
of Registration Fee(4) |
|
|
Common Stock, no par value |
|
2,745,639 shares |
|
$ |
0.89 |
|
|
$ |
2,443,619 |
|
|
$ |
317.81 |
|
|
|
(1) |
Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement also covers an
indeterminate amount of interests to be offered or sold in
connection with any stock split, stock dividend or similar
transaction, or anti-dilution or other adjustment pursuant to the
employee benefit plan described herein. |
|
|
(2) |
Includes
2,500,000 shares available for issuance under the Registrant’s
current 2018 Equity Incentive Plan, which are available for
issuance under the current Plan, of which shares are being offered
for resale by the Selling Stockholders listed in Part II,
below. |
|
|
(3) |
In
accordance with Rule 457(n) under the Securities Act, the maximum
offering price per share and the proposed maximum aggregate
offering price are estimated based on the average of the $0.92
(high) and $0.85 (low) sale price of the Registrant’s Common Stock,
no par value, as reported on the Nasdaq Capital Market on June 29,
2020, which date is within five business days prior to filing this
Registration Statement. |
|
|
(4) |
Estimated
solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act based on the
average of the high and low trading prices of a share of common
stock of the registrant on the Nasdaq Capital Market on June 26,
2020. |
EXPLANATORY
NOTE
This
registration statement on Form S-8 (this “Registration Statement”)
registers shares of common stock, no par value, (the “Shares”) of
Marathon Patent Group, Inc. (“Marathon,” the “Registrant,” the
“Company,” “we,” “us” or “our”) including:
|
|
(i) |
2,745,639
Shares of
our common stock to be issued upon conversion of RSUs that have
been issued and that may be granted pursuant to the 2018 Marathon
Patent Group, Inc. Equity Incentive Plan (the “2018
Plan”). |
This
Registration Statement also includes a reoffer prospectus (the
“Reoffer Prospectus”) prepared in accordance with General
Instruction C of Form S-8 and in accordance with the requirements
of Part I of Form S-3. The Reoffer Prospectus may be used in
connection with the reoffer and resale of our securities registered
hereunder by the Selling Stockholders identified in the Reoffer
Prospectus (the “Selling Stockholders”), some of whom may be
considered “affiliates” of the Company, as defined in Rule 405
under the Securities Act of 1933, as amended (the “Securities
Act”). The number of Shares included in the Reoffer Prospectus
represents the total number of Shares held by the Selling
Stockholders, as well as the those that may be acquired by the
Selling Stockholders pursuant to restricted stock unit awards made
to the Selling Stockholders by the Registrant, and does not
necessarily represent a present intention to sell any or all such
Shares by the Selling Stockholders.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(A) PROSPECTUS
This
Registration Statement relates to two separate
prospectuses.
Section
10(a) Prospectus: Items 1 and 2, from this page, and the
documents incorporated by reference pursuant to Part II, Item 3 of
this prospectus, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
Reoffer
Prospectus: The material that follows Item 2, beginning on Page
1 through Page 10, up to but not including Part II of this
Registration Statement, beginning on Page II-1, of which the
Reoffer Prospectus is a part, constitutes a “Reoffer Prospectus,”
prepared in accordance with the requirements of Part I of Form S-3
under the Securities Act. Pursuant to General Instruction C of Form
S-8, the Reoffer Prospectus may be used for reoffers or resales of
Shares which are deemed to be “control securities” or “restricted
securities” under the Securities Act that have been acquired by the
Selling Stockholders named in the Reoffer Prospectus.
|
Item
1. |
Plan
Information. |
The
Company will provide each recipient (the “Recipients”) of a grant
under the 2018 Plan with documents that contain information related
to the 2018 Plan, and other information including, but not limited
to, the disclosure required by Item 1 of Form S-8, which
information is not required to be and is not being filed as a part
of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. The
foregoing information and the documents incorporated by reference
in response to Item 3 of Part II of this Registration Statement,
taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act. A Section 10(a) prospectus
will be given to each Recipient who receives Shares covered by this
Registration Statement, in accordance with Rule 428(b)(1) under the
Securities Act.
|
Item
2. |
Registrant
Information and Employee Plan Annual Information. |
We
will provide to each Recipient a written statement advising of the
availability of documents incorporated by reference in Item 3 of
Part II of this Registration Statement (which documents are
incorporated by reference in this Section 10(a) prospectus) and of
documents required to be delivered pursuant to Rule 428(b) under
the Securities Act without charge and upon written or oral request
by contacting:
Merrick
Okamoto
Chief
Executive Officer
Marathon Patent Group, Inc.
1180 North Town Center Drive, Suite 100
Las
Vegas, NV 89144
702-945-2773
REOFFER
PROSPECTUS
Marathon
Patent Group, Inc.
1180 North
Town Center Drive, Suite 100
Las
Vegas, NV 89144
702-945-2773
2,745,639
Shares of Common Stock
This
Reoffer Prospectus relates to 2,745,639 shares of our common stock,
no par value (the “Shares”), that may be offered and resold from
time to time by the selling stockholders identified in this Reoffer
Prospectus (the “Selling Stockholders”) for their own account. Some
of the Selling Stockholders are “affiliates” of the Company, as
defined by Rule 405 under the Securities Act of 1933, as amended
(the “Securities Act”).
The
Selling Stockholders were issued grants of stock, which they hold
of their own account, as well as restricted stock, restricted stock
units, options, and other convertible rights (the “Stock Rights”)
which were convertible, upon vesting and settlement by the Company,
into Shares pursuant to the 2018 Plan. The Company will issue
Shares under the Registration Statement of which this Reoffer
Prospectus forms a part to the Selling Stockholders in settlement
of the Stock Rights held by the Selling Stockholders on a
one-for-one basis pursuant to the 2018 Plan and the term of their
individual award agreements.
It is
anticipated that the Selling Stockholders will offer the Shares
issued to them for sale at prevailing prices on The NASDAQ Capital
Market on the date of sale; however, the Selling Stockholders may
also sell the Shares issued to them in various other types of
transactions, such as, for example, sales in negotiated
transactions through underwriters. For a description of the various
methods by which the Selling Stockholders may offer and sell their
Shares described in this Reoffer Prospectus, see the section
entitled “Plan of Distribution” of this Reoffer Prospectus. We will
receive no part of the proceeds from sales made under this Reoffer
Prospectus. The Selling Stockholders will bear all sales
commissions and similar expenses. Any other expenses incurred by us
in connection with the registration and offering will be borne by
us and will not borne by the Selling Stockholders.
Some
of the Shares issued pursuant to the 2018 Plan in settlement of
awards granted to the Selling Stockholders will be “control
securities” under the Securities Act before their sale under this
Reoffer Prospectus. This Reoffer Prospectus has been prepared for
the purposes of registering the Shares (including the Shares
issuable upon settlement of the Stock Rights) under the Securities
Act to allow for future sales by the Selling Stockholders on a
continuous or delayed basis to the public without
restriction.
The
Selling Stockholders and any brokers executing selling orders on
their behalf may be deemed to be “underwriters” within the meaning
of the Securities Act, in which event commissions received by such
brokers may be deemed to be underwriting commissions under the
Securities Act.
Our
common stock is traded on The NASDAQ Capital Market under the
symbol “MARA”. On June 29, 2020, the closing price of our common
stock on such market was $0.89 per share.
Our
business and an investment in our securities involve a high degree
of risk. Before making any investment in our securities, you should
read and carefully consider risks described in the “Risk Factors”
section beginning on page 4 of this Reoffer Prospectus, as well as
those disclosed in our most recent annual report on Form 10-K, as
amended.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES OR DETERMINED IF THIS REOFFER PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The
date of this Reoffer Prospectus is June 30, 2020.
TABLE
OF CONTENTS
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS
REOFFER PROSPECTUS. WE HAVE NOT AUTHORIZED ANY OTHER PERSON TO
PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT FROM THAT CONTAINED
IN THIS REOFFER PROSPECTUS. IF ANYONE PROVIDES YOU WITH DIFFERENT
OR INCONSISTENT INFORMATION, YOU SHOULD NOT RELY ON IT. WE TAKE NO
RESPONSIBILITY FOR, AND CAN PROVIDE NO ASSURANCE AS TO THE
RELIABILITY OF, ANY OTHER INFORMATION THAT OTHERS MAY GIVE YOU. YOU
SHOULD ASSUME THAT THE INFORMATION CONTAINED IN THIS REOFFER
PROSPECTUS IS ACCURATE ONLY AS OF THE DATE OF THIS REOFFER
PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY OF THIS REOFFER
PROSPECTUS OR OF ANY SALE OF OUR COMMON STOCK. OUR BUSINESS,
FINANCIAL CONDITION, RESULTS OF OPERATIONS AND PROSPECTS MAY HAVE
CHANGED SINCE THAT DATE. WE ARE NOT MAKING AN OFFER OF ANY
SECURITIES PURSUANT TO THIS PROSPECTUS. THE SELLING STOCKHOLDERS
ARE OFFERING TO SELL AND SEEKING OFFERS TO BUY THESE SECURITIES
ONLY IN JURISDICTIONS WHERE OFFERS AND SALES ARE
PERMITTED.
PROSPECTUS SUMMARY
The
following summary highlights selected information contained in this
Reoffer Prospectus. This summary does not contain all the
information you should consider before investing in the securities.
Before making an investment decision, you should read the entire
Reoffer Prospectus carefully, including the section entitled “Risk
Factors” before deciding to invest in our common stock. In this
Reoffer Prospectus, unless otherwise noted, “Marathon,” “Company,”
“we,” “us,” and “our” refer to Marathon Patent Group,
Inc.
ABOUT MARATHON PATENT
GROUP
We
were incorporated in the State of Nevada on February 23, 2010 under
the name Verve Ventures, Inc. On December 7, 2011, we changed our
name to American Strategic Minerals Corporation and were engaged in
exploration and potential development of uranium and vanadium
minerals business. In June 2012, we discontinued our minerals
business and began to invest in real estate properties in Southern
California. In October 2012, we discontinued our real estate
business when our former CEO joined the firm and we commenced our
IP licensing operations, at which time the Company’s name was
changed to Marathon Patent Group, Inc. On November 1, 2017, we
entered into a merger agreement with Global Bit Ventures, Inc.
(“GBV”), which is focused on mining digital assets. We purchased
cryptocurrency mining machines and established a data center in
Canada to mine digital assets. We intend to expand its activities
in the mining of new digital assets, while at the same time
harvesting the value of our remaining IP assets.
On
June 28, 2018, our Board has determined that it is in the best
interests of the Company and our shareholders to allow the Amended
Merger Agreement with GBV to expire on its current termination date
of June 28, 2018 without further negotiation or extension. The
Board approved to issue 3,000,000 shares of our common stock to GBV
as a termination fee for us canceling the proposed merger between
the two companies.
All
share and per share values for all periods presented in the
accompanying consolidated financial statements have been
retroactively adjusted to reflect the 1:4 Reverse Split which
occurred on April 8, 2019.
Mathematically
Controlled Supply
The
method for creating new bitcoins is mathematically controlled in a
manner so that the supply of bitcoins grows at a limited rate
pursuant to a pre-set schedule. The number of bitcoins awarded for
solving a new block is automatically halved every 210,000 blocks.
Thus, the current fixed reward for solving a new block is 12.5
bitcoins per block and the reward decreased by half to become 6.25
bitcoins around May 10, 2020 (based on estimates of the rate of
block solution calculated by BitcoinClock.com). This deliberately
controlled rate of bitcoin creation means that the number of
bitcoins in existence will never exceed 21 million and that
bitcoins cannot be devalued through excessive production unless the
Bitcoin Network’s source code (and the underlying protocol for
bitcoin issuance) is altered. The Company monitors the Blockchain
network and, as of June 5, 2020, based on the information we
collected from our network access 18.2 million bitcoins have been
mined.
Digital
Asset Mining
We
intend to power and secure blockchains by verifying blockchain
transactions using custom hardware and software. We are currently
using our hardware to mine bitcoin (“BTC”) and expect to mine BTC
and ether (“ETH”), and potentially other cryptocurrencies. Bitcoin
and ether rely on different technologies based on the blockchain.
Wherein bitcoin is a digital currency and ether is generally
associated with smart contracts and digital tokens, we will be
compensated in either BTC or ETH based on the mining transactions
we perform for each, which is how we will earn revenue.
Blockchains
are decentralized digital ledgers that record and enable secure
peer-to-peer transactions without third party intermediaries.
Blockchains enable the existence of digital assets by allowing
participants to confirm transactions without the need for a central
certifying authority. When a participant requests a transaction, a
peer-to-peer network consisting of computers, known as nodes,
validate the transaction and the user’s status using known
algorithms. After the transaction is verified, it is combined with
other transactions to create a new block of data for the ledger.
The new block is added to the existing blockchain in a way that is
permanent and unalterable, and the transaction is
complete.
Digital
assets (also known as cryptocurrency) are a medium of exchange that
uses encryption techniques to control the creation of monetary
units and to verify the transfer of funds. Many consumers use
digital assets because it offers cheaper and faster peer-to-peer
payment options without the need to provide personal details. Every
single transaction and the ownership of every single digital asset
in circulation is recorded in the blockchain. Miners use powerful
computers that tally the transactions to run the blockchain. These
miners update each time a transaction is made and ensure the
authenticity of information. The miners receive a transaction fee
for their service in the form of a portion of the new digital
“coins” that are issued.
On
September 30, 2019, the Company consummated the purchase of 6000
S-9 Bitmain 13.5 TH/s Bitcoin Antminers (“Miners”) from SelectGreen
Blockchain Ltd. (the “Seller”), a British Columbia corporation, for
which the purchase price was $4,086,250 or 2,335,000 shares of its
common stock at a price of $1.75 per share. As a result of an
exchange cap requirement imposed in conjunction with the Company’s
Listing of Additional Shares application filed with Nasdaq to the
transaction, the Company issued 1,276,442 shares of its common
stock which represented $2,233,773 of the $4,086,250 (constituting
19.9% of the issued and outstanding shares on the date of the Asset
Purchase Agreement) and upon the receipt of shareholder approval,
at the Annual Shareholders Meeting to be held on November 15, 2019,
the Company can issue the balance of the 1,058,558 unregistered
common stock shares. The shareholders did approve the issuance of
the additional shares at the Annual Shareholders Meeting. The
Company issued an additional 474,808 at $0.90 per share on December
27, 2019. On March 30, 2020, the Seller agreed to reduce the total
number of shares to be issued to 2,101,500 shares, and the balance
of 350,250 shares was issued at a price of $0.49 per share. There
was no mining payable outstanding as of March 31, 2020.
As of
April 6, 2020, the Company received notice from the Nasdaq Capital
Market (the “Capital Market”) that the Company has failed to
maintain a minimum closing bid price of $1.00 per share of its
Common Stock over the last consecutive 30 business days based upon
the closing bid price for its common stock as required by Rule
5550(a)(2). However, the Rules also provide the Company a
compliance period of 180 calendar days in which to regain
compliance during which time it must maintain a minimum closing bid
price of at least $1.00 per share for a minimum period of 10
consecutive business days, which must be completed by October 5,
2020. On April 20, 2020, the Company received a further notice from
the Nasdaq Capital Market that the Company’s time to maintain a
minimum closing bid price of at least $1.00 per share for a minimum
period of 10 consecutive business days has been extended from
October 5, 2020 to December 17, 2020.
On
May 5, 2020, the Compensation Committee of the Board of Directors
held a meeting and approved bonuses and stock option grants for
Directors and Officers for their contributions to the growth of
Marathon Patent Group, Inc., for the year ended December 31, 2019.
Total awards to be granted amounted to 1,164,000 restricted stock
units at a price of $0.43 per unit with a term of one year, vesting
quarterly in equal amounts, and cash award of $105,000 to Merrick
Okamoto and $54,000 to David Lieberman. In addition, the
Compensation Committee agreed to cancel 1,537,500 existing stock
options for Directors, Officers and outside legal counsel, and
replace them with new restricted stock units at a price of $0.43
per unit with a term of one year, vesting quarterly in equal
amounts.
On
May 11, 2020, the Company announced the purchase of 700 M30S+ (80
TH) miners. On May 12, 2020, the Company announced the purchase 660
Bitmain S19 Pro Miners and on June 11, 2020, the Company announced
the purchase of an additional 500 of the latest generation Bitmain
S19 Pro Miners, bringing the Company’s total Hashrate to
approximately 240 PH/s when fully deployed.
On
May 19, 2020, the Company amended its note, originally dated August
31, 2017, with Bi-Coastal Consulting Defined Benefit Plan to reduce
the conversion price to $0.60 per share. The current principal
balance of the Note was $999,105.60 and accrued the interest was
$215,411.30. The Company agreed to the reduction in the conversion
price from $0.80 to $0.60 to incentivize the Note holder to convert
the Note to common stock. As the Note has been fully converted to
common stock, the Company has no Long-Term debt.
Competition
Subject
to raising additional capital, our digital asset initiatives will
compete with other industry participants that focus on investing in
and securing the Blockchains of bitcoin and other digital assets.
Market and financial conditions, and other conditions beyond the
Company’s control, may make it more attractive to invest in other
entities, or to invest in bitcoin or digital assets directly.
Companies have raised substantial capital this year seeking to
enter the digital assets business. Our lack of capital is a
competitive disadvantage.
Patent
Enforcement Litigation
As of
June 26, 2020, we were not involved in any active patent
enforcement litigation.
Employees
As of
June 26, 2020, we had 3 full-time employees. We believe our
employee relations to be good.
Corporate
Information
We
were incorporated in the State of Nevada on February 23, 2010 under
the name Verve Ventures, Inc. On December 7, 2011, we changed our
name to American Strategic Minerals Corporation and were engaged in
exploration and potential development of uranium and vanadium
minerals business. In June 2012, we discontinued our minerals
business and began to invest in real estate properties in Southern
California. In October 2012, we discontinued our real estate
business when our former CEO joined the firm and we commenced our
IP licensing operations, at which time the Company’s name was
changed to Marathon Patent Group, Inc. The address and phone number
of our principal office is 1180 North Town Center Drive, Suite 100,
Las Vegas, NV 89144; 702-945-2773. Our corporate website is
www.marathonpg.com. Our website and the information
contained in, or accessible through, our website will not be deemed
to be incorporated by reference into this prospectus and does not
constitute part of this prospectus.
THE OFFERING
| Shares of common stock
outstanding prior to this offering |
|
|
21,780,663 |
(1) |
| |
|
|
|
|
| Shares being offered by the Selling
Stockholders |
|
|
2,745,639 |
(2) |
| |
|
|
|
|
| Shares of common stock to be
outstanding after the offering |
|
|
24,476,302 |
(1)(2) |
(1)
As of June 30, 2020.
(2)
Assumes the settlement of all restricted stock unit grants and
options awarded to the Selling Stockholders in shares of our common
stock on a one for one basis and the subsequent sale by the Selling
Stockholders of all of the shares of our common stock issued to
them by the Company and registered for resale to the public under
the Registration Statement accompanying this Reoffer
Prospectus.
|
Use
of proceeds |
We
will not receive any proceeds from the sale of the shares of common
stock offered in this Reoffer Prospectus. |
| |
|
| Risk
Factors |
The
purchase of our common stock involves a high degree of risk. You
should carefully review and consider “Risk Factors” beginning on
page 4 of this Reoffer Prospectus. |
| |
|
| NASDAQ
Symbol |
MARA |
RISK FACTORS
Investing
in our common stock involves a high degree of risk. Before making
an investment decision, you should consider carefully the risks,
uncertainties and other factors described under “Risk Factors” in
our most recent Annual Report on Form 10-K for the year ended
December 31, 2019, filed with the Securities and Exchange
Commission (the “SEC”) on March 24, 2020, as supplemented and
updated by subsequent Quarterly Reports on Form 10-Q, together with
the financial or other information contained or incorporated by
reference in such reports, and Current Reports on Form 8-K that we
have filed or will file with the SEC, which are incorporated by
reference into this Reoffer Prospectus.
Our
business, affairs, prospects, assets, financial condition, results
of operations and cash flows could be materially and adversely
affected by these risks. For more information about our SEC
filings, please see the section entitled “Where You Can Find More
Information” on page 11 of this Reoffer Prospectus.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
Certain
statements in this Reoffer Prospectus may be forward-looking
statements within the meaning of Section 21E of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and are
subject to the safe harbor created thereby. All statements other
than statements of historical fact are statements that could be
deemed forward-looking statements. These statements relate to
future events or the Company’s future performance and include
statements regarding expectations, beliefs, plans, intentions and
strategies of the Company. In some cases, forward-looking
statements can be identified by terminology such as “may,” “will,”
“could,” “would,” “should,” “expect,” “plan,” “anticipate,”
“intend,” “believe,” “estimate,” “predict,” “potential” or other
comparable terminology. These forward-looking statements are made
based on management’s expectations and beliefs concerning future
events affecting the Company as of the date of the filing of this
Reoffer Prospectus and are subject to uncertainties and factors
relating to operations and the business environment, all of which
are difficult to predict and many of which are beyond management’s
control. Accordingly, you should not place undue reliance on these
forward-looking statements, as actual results, performance and
achievements could differ materially from those expressed in, or
implied by, these forward-looking statements due to a variety of
risks, uncertainties and other factors, including, but not limited
to, the following:
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|
● |
our
history of operating losses and our ability to achieve or sustain
profitability; |
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● |
our
recent shift to an entirely new business and our ability to succeed
in this new business; |
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● |
intense
competition; |
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● |
our
ability to raise additional capital needed to finance our
business; |
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● |
general
economic conditions in the U.S. and globally including those caused
by the COVID-19 pandemic; |
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● |
our
ability to maintain the value and reputation of our
brand; |
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● |
our
ability to attract and retain senior management and other qualified
personnel; |
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● |
cryptocurrency-related
risks, including regulatory changes or actions and uncertainty
regarding acceptance and/or widespread use of virtual
currency; |
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● |
risks
relating to our virtual currency mining operations, including among
others, risks associated with the need for significant electrical
power, cybersecurity risks and risk of increased world-wide
competition for a fixed number of bitcoin reward
levels; |
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● |
our
dependence in large part upon the value of virtual currencies,
especially bitcoin, which have historically been subject to
significant volatility in their market prices; |
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● |
risks
relating to our planned establishment of a virtual currency
exchange, including, among others, regulatory requirements and
challenges and security threats; |
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● |
our
ability to protect our intellectual property rights; |
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● |
volatility
in the trading price of our common stock; |
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● |
our
ability to maintain the Nasdaq listing of our common
stock; |
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● |
our
investments in other virtual currency and blockchain focused
companies may not be realizable; and |
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● |
the
risks and, uncertainties discussed in Part II. Item 1A. “Risk
Factors” included in this Reoffer Prospectus and Part I, Item 1A.
“Risk Factors” in our Annual Report on Form 10-K for the year ended
December 31, 2019, filed with the SEC on March 24, 2020, as
supplemented and updated by subsequent Quarterly Reports on Form
10-Q together with the financial or other information contained or
incorporated by reference in such reports, and Current Reports on
Form 8-K that we have filed or will file with the SEC, which are
incorporated by reference into this Reoffer Prospectus. |
Accordingly,
you should read this Reoffer Prospectus completely and with the
understanding that our actual future results may be materially
different from what we expect. Additional risks and uncertainties
not known to us or that we currently believe not to be material may
adversely impact our business, financial condition, results of
operations and cash flows. Should any risks or uncertainties
develop into actual events, these developments could have a
material adverse effect on our business, financial condition,
results of operations and cash flows. The forward-looking
statements contained in this Reoffer Prospectus speak only as of
the date of filing of this Reoffer Prospectus and, unless otherwise
required by applicable securities laws, the Company disclaims any
intention or obligation to update or revise any forward-looking
statements, whether as a result of new information, future events
or otherwise.
USE OF PROCEEDS
The
Shares offered by the Selling Stockholders pursuant to this Reoffer
Prospectus are being registered for the account of the Selling
Stockholders named in this Reoffer Prospectus. As a result, all
proceeds from the sales of the Shares will go to the Selling
Stockholders and we will not receive any proceeds from the resale
of the Shares by the Selling Stockholders.
DETERMINATION OF OFFERING
PRICE
The
Selling Stockholders may sell their Shares pursuant to this Reoffer
Prospectus from time-to-time at prices and at terms according to
the then prevailing market price for shares of our Shares, or in
negotiated transactions.
SELLING STOCKHOLDERS
The
table below sets forth, as of June 30, 2020, (i) the number of
Shares held of record or beneficially owned by the Selling
Stockholders as of such date (as determined below) and (ii) the
number of Shares that may be sold or otherwise disposed of under
this Reoffer Prospectus by each Selling Stockholder (including
those Shares which may be issued in settlement of those Stock
Rights held by the Selling Stockholders). Beneficial ownership
includes Shares plus any securities held by the holder exercisable
for or convertible into Shares within sixty (60) days after June
30, 2020, in accordance with Rule 13d-3(d)(1) under the Exchange
Act. On June 30, 2020, the Company amended its 2018 Plan to
retroactively cover the 245,639 share increase over the 2,500,000
shares originally reserved for issuance thereunder (as a result of
the 1:4 reverse stock split effected by the Company on April 8,
2019) pursuant to Section 12(a) which permits nonmaterial increases
without stockholder approval). The inclusion of any Shares in this
table does not constitute an admission of beneficial ownership by
the Selling Stockholders named below. We do not know when or in
what amounts a Selling Stockholder may sell or otherwise dispose of
the Shares covered hereby. The Selling Stockholders identified
below may have sold, transferred or otherwise disposed of some or
all of their Shares in transactions exempt from or not subject to
the registration requirements of the Securities Act since the date
on which the information in the following table was provided to us.
Information concerning the Selling Stockholders may change from
time to time and, we will, as appropriate, supplement this Reoffer
Prospectus in order to reflect grants under the 2018 Plan and/or to
update the list of Selling Stockholders and the number of Shares
being offered. The Selling Stockholders may not sell or otherwise
dispose of any or all of the Shares offered pursuant to this
Reoffer Prospectus and they may sell or otherwise dispose of shares
covered hereby in transactions exempt from the registration
requirements of the Securities Act. Because the Selling
Stockholders may sell or otherwise dispose of some, all or none of
the Shares covered hereby, and because there are currently no
agreements, arrangements or understandings with respect to the sale
of any of the Shares, we cannot estimate the number of the Shares
that will be held by the Selling Stockholders after completion of
the offering contemplated by this Reoffer Prospectus. However, for
purposes of the following table, we have assumed that all of the
Shares covered hereby are sold by the Selling Stockholders pursuant
to this Reoffer Prospectus. We will not receive any proceeds from
the resale of the Shares by the Selling Stockholders.
All
Selling Stockholders named are current officers or directors or
advisors of the Company. All of the Selling Stockholders received
their Shares being offered pursuant to this Reoffer Prospectus in
return for services rendered to the Company. Unless otherwise
indicated below, to our knowledge, all persons named in the table
have sole voting and investment power with respect to their Shares,
except to the extent authority is shared by their spouses under
applicable law. Unless otherwise indicated below, to our knowledge,
no persons named in the table are a broker-dealer or affiliate of a
broker-dealer. Unless otherwise indicated, each Selling
Shareholder’s mailing address is: c/o Marathon Patent Group, Inc.,
1180 North Town Center Drive, Suite 100, Las Vegas, NV
89144
|
Name |
|
Number of Shares
Beneficially Owned Prior to Offering |
|
|
Percentage of Common Stock Beneficially Owned Before
Resale(1)** |
|
|
Shares Offered in this Offering(2)(3) |
|
|
Number of Shares Beneficially Owned After this Offering(1) |
|
Percentage of Shares
Beneficially
Owned After this Offering**
|
|
|
Merrick Okamoto(4) |
|
|
501,817 |
|
|
|
1.88 |
% |
|
|
1,819,767 |
|
|
|
46,875 |
|
* |
|
| David
Lieberman(5) |
|
|
107,631 |
|
|
|
* |
|
|
|
393,023 |
|
|
|
9,375 |
|
* |
|
| James
Crawford(6) |
|
|
61,337 |
|
|
|
* |
|
|
|
245,349 |
|
|
|
- |
|
* |
|
|
Fred Thiel(7) |
|
|
15,625 |
|
|
|
* |
|
|
|
62,500 |
|
|
|
- |
|
* |
|
|
Michael Berg(8) |
|
|
21,875 |
|
|
|
|
|
|
|
87,500 |
|
|
|
- |
|
* |
|
|
Michael Rudolph(9) |
|
|
21,875 |
|
|
|
* |
|
|
|
87,500 |
|
|
|
- |
|
* |
|
|
Jolie Kahn, Esq.(10) |
|
|
12,500 |
|
|
|
* |
|
|
|
50,000 |
|
|
|
- |
|
* |
|
|
Total |
|
|
|
|
|
|
|
|
|
|
2,745,639 |
|
|
|
|
|
|
|
*Less
than 1%
**
Based upon 24,802,116 shares of Shares issued and outstanding as of
June 30, 2020.
(1)
Beneficial ownership is determined in accordance with the rules of
the SEC and generally includes voting or investment power with
respect to securities. Shares of Common Stock underlying options
currently exercisable, or exercisable, or restricted stock units
that vest, within 60 days after June 30, 2020, (as used in this
section, the “Determination Date”), are deemed outstanding for
purposes of computing the beneficial ownership of the person
holding such options and/or restricted stock units but are not
deemed outstanding for computing the beneficial ownership of any
other person. Except where we had knowledge of such ownership, the
number presented in this column may not include shares held in
street name or through other entities over which the selling
stockholder has voting and dispositive power.
(2)
Assumes the exercise and sale of all Shares issues in the
settlement of all RSUs held by the Selling Stockholders although it
is the current intent of the Selling Stockholders to only sell
shares in an amount necessary to cover tax liability for shares
issued as RSUs vest.
(3)
Includes shares for shares being issued upon vesting of all RSUs,
which vest in equal quarterly amounts, on June 30, 2020, September
30, 2020, December 31, 2020 and March 31, 2021.
(4)
Includes 25% vested of the 1,819,767 RSUs granted, which vest as of
June 30, 2020 and 46,875 shares owned.
(5)
Includes 25% vested of the 393,023 RSUs granted, which vest as of
June 30, 2020 and 9,375 shares owned.
(6)
Includes 25% vested of the 245,349 RSUs granted, which vest as of
June 30, 2020.
(7)
Includes 25% vested of the 62,500 RSUs granted, which vest as of
June 30, 2020.
(8)
Includes 25% vested of the 87,500 RSUs granted, which vest as of
June 30, 2020.
(9)
Includes 25% vested of the 87,500 RSUs granted, which vest as of
June 30, 2020.
(10)
Includes 25% vested of the 50,000 RSUs granted, which vest as of
June 30, 2020.
PLAN OF DISTRIBUTION
Timing
of Sales
The
Selling Stockholders may offer and sell the Shares covered by this
Reoffer Prospectus at various times while the Registration
Statement to which this Reoffer Prospectus relates remain
effective. The Selling Stockholders will act independently of the
Company with respect to the timing, manner and size of each
sale.
No
Known Agreements to Resell the Shares
To
our knowledge, no Selling Stockholder has any agreement or
understanding, directly or indirectly, with any person to resell
the Shares covered by this Reoffer Prospectus, except that each
Selling Stockholder may sell sufficient shares to cover the tax
liability associated with the vesting of any Shares pursuant to
RSUs granted to it.
Offering
Price
The
sales price offered by the Selling Stockholders to the public may
be:
| |
1. |
the
market price prevailing at the time of sale; |
| |
2. |
a
price related to such prevailing market price; |
| |
3. |
a
price negotiated by such Selling Stockholder in a negotiated sale;
or |
| |
4. |
such
other price as the Selling Stockholders determine from time to
time. |
Manner
of Sale
The
Shares may be sold by whatever permissible means selected by the
Selling Stockholders, including by one or more of the following
methods:
|
|
1. |
a
block trade in which the broker-dealer so engaged will attempt to
sell the Shares as agent, but may position and resell a portion of
the block as principal to facilitate the transaction; |
|
|
2. |
purchases
by a broker-dealer as principal and resale by that broker-dealer
for its account pursuant to this Reoffer Prospectus; |
|
|
3. |
ordinary
brokerage transactions in which the broker solicits
purchasers; |
|
|
4. |
directly
to purchasers at prevailing market prices or in negotiated
sales; |
|
|
5. |
through
options, swaps or derivatives; |
|
|
6. |
in
transactions to cover short sales; |
|
|
7. |
privately
negotiated transactions; or |
|
|
8. |
on a
combination of any of the above methods. |
The
Selling Stockholders may sell their Shares directly to purchasers
or they may use brokers, dealers, underwriters or agents to sell
their Shares. Brokers or dealers engaged by the Selling
Stockholders may arrange for other brokers or dealers to
participate in such sales. Brokers or dealers may receive
commissions, discounts or concessions from the Selling
Stockholders, or, if any such broker-dealer acts as agent for the
purchaser of the Shares, from the purchaser in amounts to be
negotiated immediately prior to the sale. The compensation received
by brokers or dealers may, but is not expected to, exceed that
which is customary for the types of transactions involved. The
Company will bear none of the costs associated with such
broker-dealer relationships on behalf of the Selling Stockholders,
except with regard to those costs we may incur from time to time to
update this Reoffer Prospectus, if required.
Broker-dealers
may agree with a Selling Stockholder to sell a specified number of
their Shares at a stipulated price per Share, and, to the extent
the broker-dealer is unable to do so acting as agent for a Selling
Stockholder, to purchase as principal any unsold Shares at the
price required to fulfill the broker-dealer commitment to the
Selling Stockholder.
Broker-dealers
who acquire stock as principal may thereafter resell the Shares
they acquire from time to time in transactions, which may involve
block transactions and sales to and through other broker-dealers,
including transactions of the nature described above, on The NASDAQ
Capital Market or otherwise at prices and on terms then prevailing
at the time of sale, at prices related to the then-current market
price or in negotiated transactions. In connection with resales of
the Shares, broker-dealers may pay to or receive from the
purchasers of Shares commissions as described above. If our Selling
Stockholders enter into such arrangements with brokers-dealers as
described above, we will file a post-effective amendment to this
registration statement disclosing such arrangements, including the
names of any broker-dealers acting as underwriters, and will update
this Reoffer Prospectus, as required.
The
Selling Stockholders and any broker-dealers or agents that
participate with the Selling Stockholders in the sale of the Shares
may be deemed to be “underwriters” within the meaning of the
Securities Act. In that event, any commissions received by
broker-dealers or agents and any profit on the resale of the Shares
purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act.
We
will make copies of this Reoffer Prospectus available to the
Selling Stockholders for the purpose of satisfying the Reoffer
Prospectus delivery requirements of the Securities Act and we have
notified the Selling Stockholders of the need to deliver a copy of
this Reoffer Prospectus in connection with any sale of the Shares
pursuant to this Registration Statement.
Sales
Pursuant to Rule 144
Any
Shares covered by this Reoffer Prospectus which qualifies for sale
pursuant to Rule 144 under the Securities Act may be sold in
compliance with Rule 144 rather than pursuant to this Reoffer
Prospectus.
Regulation
M
Each
Selling Stockholder will be subject to the applicable provisions of
the Exchange Act and the associated rules and regulations under the
Exchange Act, including Regulation M. The anti-market manipulation
rules of Regulation M may limit the timing of purchases and sales
of the Shares by the Selling Stockholders. Regulation M may also
restrict the ability of any person engaged in the distribution of
the Shares pursuant to this Reoffer Prospectus to engage in passive
market-making activities with respect to such Shares. Passive
market-making involves transactions in which a market maker acts as
both the underwriter and as a purchaser of the Shares in the
secondary market. All of the foregoing may limit the marketability
of the Shares offered pursuant to this Reoffer Prospectus by the
Selling Stockholders and may also limit the ability of any person
to engage in market-making activities with respect to such
Shares.
Accordingly,
during such times as a Selling Stockholder may be deemed to be
engaged in a distribution of the Shares, and therefore be
considered to be an underwriter, the Selling Stockholder must
comply with applicable law and, among other things:
|
|
1. |
may
not engage in any stabilization activities in connection with our
Securities; |
| |
2. |
may
not cover short sales by purchasing Shares while the distribution
is taking place; and |
|
|
3. |
may
not bid for or purchase any of our securities or attempt to induce
any person to purchase any of our securities other than as
permitted under the Exchange Act. |
Once
sold under the Registration Statement of which this Reoffer
Prospectus forms a part, the Shares will be freely tradable by any
person other than our affiliates (including affiliates of our
affiliates).
State
Securities Laws
Under
the securities laws of some states, the Shares may be sold in such
states only through registered or licensed brokers or dealers. In
addition, in some states the Shares may not be sold unless the
Shares have been registered or qualified for sale in the state or
an exemption from registration or qualification is available and is
complied with. If a Selling Stockholder intends to offer our Shares
in such a jurisdiction, the Selling Stockholder must do so in
compliance with applicable law.
Expenses
of Registration
We
are bearing all costs relating to the registration of the Shares.
These expenses are estimated to be $15,000 including, but not
limited to, legal, accounting, printing and mailing fees. The
Selling Stockholders, however, will pay any commissions or other
fees payable to brokers or dealers in connection with any sale of
the Shares.
LEGAL MATTERS
The
validity of the issuance of the securities offered hereby has been
passed upon for us by Jolie Kahn, Esq. as stated in its opinion,
which is incorporated by reference herein. Additional legal matters
may be passed upon for us or any underwriters, dealers or agents,
by counsel that we will name in the applicable Reoffer Prospectus
supplement.
EXPERTS
The
consolidated financial statements of Marathon Patent Group, Inc.
and its consolidated subsidiaries as of December 31, 2019 and 2018
and the related consolidated statements of operations,
stockholders’ equity, and cash flows for the period in the two
years ended December 31, 2019 have been audited by the Company’s
independent registered public accounting firm, RBSM, LLP, as stated
in their report, which is incorporated herein by reference. Such
financial statements have been incorporated herein by reference in
reliance on the report of such firm given upon their authority as
experts in accounting and auditing.
INTERESTS OF EXPERTS
No
expert or counsel named in this Reoffer Prospectus as having
prepared or certified any part of this Reoffer Prospectus or having
given an opinion upon the validity of the securities being
registered or upon other legal matters in connection with the
registration or offering of the Shares was employed on a
contingency basis or had, or is to receive, in connection with the
offering, a substantial interest, directly or indirectly, in the
registrant or any of its parents or subsidiaries except that our
counsel, Jolie Kahn, Esq., owns 50,000 restricted stock units,
which vest on a quarterly basis, commencing June 30, 2020, with
12,500 restricted units vesting into 12,500 shares on the date of
this prospectus.
MATERIAL
CHANGES
There
have been no material changes in our affairs since the end of our
last fiscal year on December 31, 2019, other than those changes
that have been described in our Quarterly Reports on Form 10-Q and
our Current Reports on Form 8-K filed with the SEC. See the section
below under the heading, “Where You Can Find More
Information.”
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The
Securities and Exchange Commission permits us to “incorporate by
reference” the information contained in documents we file with the
Securities and Exchange Commission, which means that we can
disclose important information to you by referring you to those
documents rather than by including them in this Reoffer Prospectus.
Information that is incorporated by reference herein is considered
to be part of this Reoffer Prospectus and you should read it with
the same care that you read this Reoffer Prospectus. Information
that we file later with the Securities and Exchange Commission will
automatically update and supersede the information that is either
contained, or incorporated by reference, in this Reoffer
Prospectus, and will be considered to be a part of this Reoffer
Prospectus from the date those documents are filed. We have filed
with the Securities and Exchange Commission, and incorporate by
reference in this Reoffer Prospectus the following filed with the
SEC:
|
|
● |
Annual
Report on Form 10-K for the year ended December 31, 2019 filed on
March 24, 2020 and Quarterly Report on Form 10-Q for the quarter
ended March 31, 2020, filed on May 14, 2020; |
| |
|
|
| |
● |
Our
Definitive Proxy Statement on Schedule 14A and accompanying
additional proxy materials filed with the SEC on October 15,
2019; |
| |
|
|
| |
● |
Current Reports on Form 8-K (excluding any reports or
portions thereof that are deemed to be furnished and not filed)
filed on April 9, 2020, April 22, 2020 and May 20, 2020;
and |
| |
|
|
| |
● |
Our registration statement on Form 8-A filed on April 12, 2012 and
July 22, 2014. |
We
also incorporate by reference all additional documents that we file
with the Securities and Exchange Commission under the terms of
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act that are
made after the date of effectiveness Registration Statement and
after the date of this Reoffer Prospectus but prior to the
termination of the offering of the securities covered by this
Reoffer Prospectus. We are not, however, incorporating, in each
case, any documents or information that we are deemed to furnish
and not file in accordance with Securities and Exchange Commission
rules.
You
may request, and we will provide you with, a copy of these filings,
at no cost, by calling us at 702-945-2773 or by writing to us at
the following address: Marathon Patent Group, Inc., Attn: Merrick
Okamoto, CEO, 1180 North Town Center Drive, Suite 100, Las Vegas,
NV 89144.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
As
permitted by the Nevada Business Corporation Law, we have adopted
provisions in our restated certificate of incorporation and
restated by-laws that limit or eliminate the personal liability of
our directors and certain executive officers and employees of the
Company. We also maintain general liability insurance that covers
certain liabilities of our directors and officers arising out of
claims based on acts or omissions in their capacities as directors
or officers, including liabilities under the Securities Act. These
limitations of liability do not alter director liability under the
federal securities laws and do not affect the availability of
equitable remedies such as an injunction or rescission.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and Marathon controlling
persons pursuant to the foregoing provisions, or otherwise, we have
been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by us of expenses incurred or
paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, we will, unless in
the opinion of our counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by us is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
WHERE YOU CAN FIND MORE
INFORMATION
We
file annual, quarterly and special reports, along with other
information with the SEC. Our SEC filings are available to the
public over the Internet at the SEC’s website at
http://www.sec.gov. You may also read and copy any document we file
at the SEC’s Public Reference Room at 100 F Street, NE, Washington,
D.C. 20549. You may also obtain this information from the SEC at
the address listed above or from the SEC’s internet site, SEC.gov.
Please call the SEC at 1-800-SEC-0330 for further information on
the Public Reference Room. Our SEC filings are also available on
our website, https://ir.Marathonblockchain.com/under the heading
“Investors.” The information on this website is expressly not
incorporated by reference into, and does not constitute a part of,
this Reoffer Prospectus.
REOFFER
PROSPECTUS
MARATHON PATENT GROUP, INC.
1180
North Town Center Drive, Suite 100
Las
Vegas, NV 89144
702-945-2773
2,745,639
SHARES OF
COMMON STOCK
June
30, 2020
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE
The
Securities and Exchange Commission permits us to “incorporate by
reference” the information contained in documents we file with the
Securities and Exchange Commission, which means that we can
disclose important information to you by referring you to those
documents rather than by including them in this Registration
Statement and the accompanying prospectus. Information that is
incorporated by reference herein is considered to be part of this
Registration Statement and you should read it with the same care
that you read this Reoffer Prospectus. Information that we file
later with the Securities and Exchange Commission will
automatically update and supersede the information that is either
contained, or incorporated by reference, in this Registration
Statement, and will be considered to be a part of this Registration
Statement from the date those documents are filed. We have filed
with the Securities and Exchange Commission, and incorporate by
reference herein the following documents filed with the
SEC:
|
|
● |
Annual Report on Form 10-K for the year ended December 31, 2019
filed on March 24, 2020 and Quarterly Report on Form 10-Q for the
quarter ended March 31, 2020, filed on May 14, 2020; |
| |
|
|
| |
● |
Our
Definitive Proxy Statement on Schedule 14A and accompanying
additional proxy materials filed with the SEC on October 15,
2019; |
| |
|
|
| |
● |
Current Reports on Form 8-K (excluding any reports or
portions thereof that are deemed to be furnished and not filed)
filed on April 9, 2020, April 22, 2020 and May 20, 2020;
and |
| |
|
|
| |
● |
Our registration statement on Form 8-A filed on April 12, 2012 and
July 22, 2014. |
We
also incorporate by reference all additional documents that we file
with the Securities and Exchange Commission under the terms of
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act that are
made after the date of effectiveness of this Registration Statement
and after the date of the prospectus accompanying it but prior to
the termination of the offering of the securities covered by such
prospectuses. We are not, however, incorporating, in each case, any
documents or information that we are deemed to furnish and not file
in accordance with Securities and Exchange Commission
rules.
You
may request, and we will provide you with, a copy of these filings,
at no cost, by calling us at 702-945-2773 or by writing to us at
the following address: Marathon Patent Group, Inc., Attn: Merrick
Okamoto, CEO, 1180 North Town Center Drive, Suite 100, Las Vegas,
NV 89144.
ITEM
4. DESCRIPTION OF SECURITIES
Not
applicable.
ITEM
5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No
expert or counsel named in this Registration Statement as having
prepared or certified any part of this Registration Statement or
having given an opinion upon the validity of the securities being
registered or upon other legal matters in connection with the
registration or offering of the Shares was employed on a
contingency basis or had, or is to receive, in connection with the
offering, a substantial interest, directly or indirectly, in the
registrant or any of its parents or subsidiaries, except that our
counsel, Jolie Kahn, Esq., owns 50,000 restricted stock units,
which vest on a quarterly basis, commencing June 30, 2020, with
12,500 restricted units vesting into 12,500 shares on the date of
this prospectus.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Nevada
Revised Statutes Sections 78.7502 and 78.751 provide us with the
power to indemnify any of our directors and officers. The director
or officer must have conducted himself/herself in good faith and
reasonably believe that his/her conduct was in, or not opposed to,
our best interests. In a criminal action, the director, officer,
employee or agent must not have had reasonable cause to believe
his/her conduct was unlawful.
Under
Nevada Revised Statutes Section 78.751, advances for expenses may
be made by agreement if the director or officer affirms in writing
that he/she believes he/she has met the standards and will
personally repay the expenses if it is determined such officer or
director did not meet the standards.
Our
Articles of Incorporation provide that our officers and directors
shall be indemnified and held harmless to the fullest extent
legally permissible under the laws of the State of Nevada against
all expenses, liability and loss (including attorneys’ fees,
judgments, fines and amounts paid or to be paid in settlement)
reasonably incurred or suffered by them in connection with any
civil, criminal, administrative or investigative action, suit or
proceeding related to their service as an officer or director. Such
right of indemnification shall be a contract right which may be
enforced in any manner desired by such person. We must pay the
expenses of officers and directors incurred in defending a civil or
criminal action, suit or proceeding as they are incurred and in
advance of the final disposition of the action, suit or proceeding,
upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be
indemnified by us. Such right of indemnification shall not be
exclusive of any other right which such directors or officers may
have or hereafter acquire.
Our
Articles of Incorporation provide that we may adopt bylaws to
provide at all times the fullest indemnification permitted by the
laws of the State of Nevada, and may purchase and maintain
insurance on behalf of any of officers and directors. The
indemnification provided in our Articles of Incorporation shall
continue as to a person who has ceased to be a director, officer,
employee or agent, and shall inure to the benefit of the heirs,
executors and administrators of such person.
Our
Bylaws provide that a director or officer shall have no personal
liability to us or our stockholders for damages for breach of
fiduciary duty as a director or officer, except for damages for
breach of fiduciary duty resulting from (a) acts or omissions which
involve intentional misconduct, fraud, or a knowing violation of
law, or (b) the payment of dividends in violation of Nevada Revised
Statutes Section 78.300.
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED
Not
applicable.
ITEM
8. EXHIBITS
|
Exhibit
Number
|
|
Description
of Document |
|
3.1 |
|
Amended
and Restated Articles of Incorporation of the Company dated
November 25, 2011. (1) |
|
3.2 |
|
Certificate
of Amendment to Articles of Incorporation dated February 15, 2013.
(2) |
|
3.3 |
|
Certificate
of Amendment to Amended and Restated Articles of Incorporation
dated July 18, 2013 (3) |
|
3.4 |
|
Certificate
of Amendment to Articles of Incorporation dated October 25, 2017.
(4) |
|
3.5 |
|
Amended
and Restated Bylaws of the Company dated November 25, 2011.
(5) |
|
3.6 |
|
Certificate
of Amendment to Articles of Incorporation dated April 8, 2019
(10) |
|
4.1 |
|
Certificate
of Designation of Preferences, Rights and Limitations of Series B
Convertible Preferred Stock. (6) |
|
4.2 |
|
Certificate
of Designation of Rights, Powers, Preferences, Privileges and
Restrictions of 0% Series E Convertible Preferred Stock.
(7) |
|
4.3 |
|
Certificate
of Correction to Certificate of Designation of Rights, Powers,
Preferences, Privileges and Restrictions of 0% Series E Convertible
Preferred Stock. (8) |
|
4.4 |
|
Form
of proposed Certificate of Designation of Preferences, Rights and
Limitations of 0% Series E-1 Convertible Preferred Stock.
(9) |
|
4.5 |
|
2018
Equity Incentive Plan, as amended* |
|
5.1 |
|
Opinion
of Jolie Kahn, Esq.* |
|
23.1 |
|
Consent
of RBSM LLP* |
|
23.2 |
|
Consent
of Jolie Kahn, Esq. (contained in Exhibit 5.1) |
|
(1) |
Previously
filed as Exhibit 3.1 to Current Report on Form 8-K filed December
9, 2011 and incorporated herein by reference. |
|
(2) |
Previously
filed as Exhibit 3.1 to Current Report on Form 8-K filed February
20, 2013 and incorporated herein by reference. |
|
(3) |
Previously
filed as Exhibit 3.1 to Current Report on Form 8-K filed July 19,
2013 and incorporated herein by reference. |
|
(4) |
Previously
filed as Exhibit 3.4 to Registration Statement on Form S-4 filed
January 24, 2018 and incorporated herein by reference. |
|
(5) |
Previously
filed as Exhibit 3.2 to Current Report on Form 8-K filed December
9, 2011 and incorporated herein by reference |
|
(6) |
Previously
filed as Exhibit 3.2 to Current Report on Form 8-K filed May 7,
2014 and incorporated herein by reference. |
|
(7) |
Previously
filed as Exhibit 4.1 to Current Report on Form 8-K filed December
1, 2017 and incorporated herein by reference. |
|
(8) |
Previously
filed as Exhibit 4.1 to Current Report on Form 8-K filed December
22, 2017 and incorporated herein by reference. |
|
(9) |
Previously
filed as Exhibit 4.4 to Registration Statement on Form S-4 filed
January 24, 2018 and incorporated herein by reference. |
|
(10) |
Previously
filed as Exhibit 3.1 to Current Report on Form 8-K filed on April
8, 2019 and incorporated herein by reference. |
*Filed
herewith.
ITEM
9. UNDERTAKINGS
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration
statement:
(i)
To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the “Securities
Act”);
(ii)
To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective
registration statement.
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided,
however, Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the registration statement is on Form S-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) that are incorporated by reference in
the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2)
That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3)
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to
the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date;
or
(5)
That, for the purpose of determining liability of the registrant
under the Securities Act to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(b)
The registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the
registrant’s annual report pursuant to section 13(a) or section
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to section 15(d) of
the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(d)
The registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time
it was declared effective.
(2)
For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Las
Vegas, and State of Nevada, on the 30th day of June,
2020.
|
MARATHON
PATENT GROUP, INC. |
|
|
|
|
|
| By: |
/s/
Merrick Okamoto |
|
| Name: |
Merrick
Okamoto |
|
| Title: |
Chief
Executive Officer and President and Director |
|
| |
|
|
| By: |
/s/
David Lieberman |
|
| Name: |
David
Lieberman |
|
| Title: |
Chief
Financial Officer and Director |
|
Pursuant
to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the
capacities and on the dates indicated.
Pursuant
to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates
indicated.
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
|
|
/s/
Merrick Okamoto |
|
Chief
Executive Officer and Executive Chairman and Director
(Principal Executive Officer) |
|
June
30, 2020 |
|
Merrick
Okamoto |
|
|
|
|
|
|
|
|
|
|
|
/s/
David Lieberman |
|
Chief
Financial Officer and Director (Principal Financial and Accounting
Officer) |
|
June
30, 2020 |
|
David
Lieberman |
|
|
|
|
|
|
|
|
|
|
|
/s/
Fred Thiel |
|
Director |
|
June
30, 2020 |
|
Fred
Thiel |
|
|
|
|
|
|
|
|
|
|
|
/s/
Michael Rudolph |
|
Director |
|
June
30, 2020 |
|
Michael
Rudolph |
|
|
|
|
|
|
|
|
|
|
|
/s/
Michael Berg |
|
Director |
|
June
30, 2020 |
|
Michael
Berg |
|
|
|
|
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