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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): May 12, 2023

COMSTOCK INC.

(Exact Name of Registrant as Specified in its Charter)

Nevada

(State or Other

Jurisdiction of Incorporation)

001-35200

(Commission File Number)

65-0955118

(I.R.S. Employer

Identification Number)

117 American Flat Road, Virginia City, Nevada 89440

(Address of Principal Executive Offices, including Zip Code)

Registrant’s Telephone Number, including Area Code: (775) 847-5272

Not Applicable

(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))

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 $0.000666 per share

LODE

NYSE American

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 8.01 Other Event.

On March 7, 2023, Comstock Inc. (the “Company”) reported on Form 8-K that LINICO Corporation (“LINICO”), a corporation that is 88.21% owned by the Company, entered into agreements with to sell certain assets for $27.0 million, including the LINICO Battery Recycling Facility (the “Facility”) to American Battery Technology Company, a Nevada corporation (“ABTC”). Pursuant to the terms of the LINICO purchase and sales agreements, $1.5 million of the purchase price will be held in escrow for up to 18 months and be available for the settlement of and buyer indemnification claims.

On March 1, 2023, LINICO received $6 million in proceeds associated with the sale of certain equipment associated with these agreements.

On March 31, 2023, the Company, LINICO and the parties amended the Facility purchase agreement, and on April 6, 2023, the parties amended and restated the Facility purchase agreement (the “First Amended and Restated Agreement”). Pursuant to the First Amended and Restated Agreement, the Company agreed to take certain action previously contemplated by LINICO, including purchasing the Facility. The Facility was being leased pursuant to an agreement that permitted the Company to purchase the Facility for a purchase price of $15.25 million ($3.25 million of which, was previously paid in the form of deposits) if LINICO elects not to or is unable to purchase the Facility. The Company subsequently received $5 million in cash upon signing the First Amended and Restated Agreement.

The First Amended and Restated Agreement previously contemplated that the Company will receive an additional (a) $10 million in cash on or before April 21, 2023 (the “Second Deposit”) and (b) 10 million shares of restricted shares of ABTC stock on or before May 1, 2023 (with a guarantee that the Company will receive additional cash and/or shares if and to the extent that the proceeds from such shares are less than $6.6 million).

On April 21, 2023, the parties amended and restated the First Amended and Restated Agreement (the “Second Amended and Restated Agreement”), pursuant to which the parties agreed, among other things, to amend the payment terms of the Second Deposit. Pursuant to the Second Amended and Restated Agreement, the Company will receive (a) $7 million in cash on or before April 21, 2023, and (b) $3 million in cash no later than May 12, 2023 (the “May Payment”). The Company subsequently received $7 million in cash upon signing the Second Amended and Restated Agreement.

On May 12, 2023, the parties amended the Second Amended and Restated Agreement (the “First Amendment to the Second Amended and Restated Agreement”), pursuant to which the parties agreed, among other things, (a) to amend the payment terms of the May Payment, whereby ABTC paid $1 million in cash and 1 million additional shares of restricted shares of ABTC upon signing of the First Amendment to the Second Amended and Restated Agreement, and will pay the remaining $2 million in cash on or before May 26, 2023. ABTC will also pay an additional $250,000 in cash to the Company on or before May 26, 2023, to extend the closing period of the agreement, as previously contemplated in the Second Amended and Restated Agreement.

The 11 million shares of ABTC stock now issued to the Company will be registered for resale pursuant to a registration statement on Form S-3 filed with the U.S. Securities and Exchange Commission by ABTC on or around May 15, 2023.

The Company expects to receive net proceeds of approximately $15 million, $7 million, net, of which has already been received, from the sale of the Facility and related equipment, on or before September 30, 2023.

A copy of the First Amendment to the Second Amended and Restated Agreement is attached as Exhibits 10.1 to this Form 8-K.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits


10.1						First Amendment to the Second Amended and Restated Agreement
104						Cover Page Interactive Data File (embedded within the Inline XBRL document)

SIGNATURE

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

COMSTOCK INC.

Date: May 15, 2023

By:

/s/ Corrado De Gasperis

Name: Corrado De Gasperis

Title: Executive Chairman and Chief Executive Officer

EX-10.1 2 firstamendmenttosecondarme.htm EX-10.1 Document

EXHIBIT 10.1

FIRST AMENDMENT TO SECOND AMENDED AND RESTATED MEMBERSHIP INTEREST PURCHASE AGREEMENT

May 11, 2023

This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Amendment”) is entered into by and between LINICO CORPORATION, a Nevada corporation, and/or its affiliates or assignees (“Seller”), and AMERICAN BATTERY TECHNOLOGY COMPANY, a Nevada corporation, and/or its affiliates or assignees (“Purchaser”). Purchaser and Seller each may be hereinafter referred to as a “Party” and together as the “Parties.”

RECITALS

A.Reference is made to that certain SECOND AMENDED AND RESTATED MEMBERSHIP INTEREST PURCHASE AGREEMENT, dated as of April 21, 2023 (the “Purchase Agreement”), by and between the Parties.

B.The Purchase Agreement provides for the purchase and sale of 100% of the outstanding limited-liability company membership interests (the “Target Membership”) of AQUA METALS TRANSFER, LLC, a Nevada limited liability company (the “Target”), that will own certain property in McCarran, Nevada, commonly known as 2500 Peru Drive, and more specifically defined as the “Premises” in the Purchase Agreement.

C.Pursuant to the Purchase Agreement, Seller agreed to sell the Premises and Purchaser agreed to purchase the Premises, in exchange for the purchase price of $21,000,000 (the “Purchase Price”).

D.Pursuant to Section 2.01 of the Purchase Agreement, Purchaser agreed to deliver to Seller or Comstock Inc., a Nevada corporation (“Comstock”), a non-refundable and irrevocable cash payment of $3,000,000 (the “Third Deposit”) on or prior to May 12, 2023.

E.Pursuant to Section 2.01 of the Purchase Agreement, the closing (the “Closing”) of the acquisition of the Target Membership shall occur on or before May 31, 2023.

F.Pursuant to Section 2.01 of the Purchase Agreement, if the Closing occurs later than May 31, 2023, the Purchaser shall pay an additional non-refundable payment of $250,000 in cash (the “June Extension Fee”) to the Seller on or prior to May 31, 2023.

G.Pursuant to Section 7.01(a)(iv) of the Purchase Agreement, if the Closing does not occur prior to the Closing Deadline, Seller may terminate the Purchase Agreement.

H.The Parties wish to modify and clarify the manner in which the Third Deposit is paid (the “Modification”) and in consideration thereof, the Parties hereby agree to (i) an additional, non-refundable and irrevocable delivery of 1,000,000 restricted common shares issued by Purchaser to Seller (the “Modification Shares”) and (ii) the Purchaser’s payment of the June Extension Fee.

I.Purchaser intends to execute a credit agreement, by and between American Battery Technology Company and Mercuria Investments US, Inc. (the “Metals Contract”).

4873-9480-8163

In consideration of these recitals and the mutual covenants, representations, warranties and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

1.The above recitals are hereby incorporated into this Amendment as if fully set forth herein.

2.Paragraph 2.01(c) of the Purchase Agreement is hereby amended by deleting it in its entirety and substituting in lieu thereof the following:

“Purchaser will deliver the Second Deposit to Comstock on or before April 21, 2023 and Purchaser will deliver $1,000,000 of the Third Deposit to Comstock on or before May 12, 2023, and the remaining $2,000,000 of the Third Deposit on the earlier of May 26, 2023 or within 48 hours of the receipt of funds from the closing of the Metals Contract.”

3.Purchaser shall deliver the Modification Shares to Comstock on the date of the signing of this Amendment, and the Modification Shares shall not amend Purchaser’s Shortfall obligations contemplated by Section 2.01(k) of the Purchase Agreement.

4.Purchaser shall deliver the June Extension Fee on the earlier of May 26, 2023 or within 48 hours of the closing of the Metals Contract.

5.Purchaser represents, warrants, covenants and agrees that the Modification Shares being offered, issued and sold will be registered under the Securities Act of 1933, as amended, and freely transferable by Seller (or Comstock, as the case may be) without any restrictive legend or limitation on volume or manner of sale. The Shares shall be deposited with a transfer agent, as identified in writing by the Purchaser.

6.In order to accomplish Seller’s obligations set forth in the foregoing paragraph, and in connection with and pursuant to Section 2.01(e) of the Purchase Agreement, Purchaser will cause a registration statement on Form S-3 for the resale of the Modification Shares and the Shares (as defined in the Purchase Agreement) by Comstock to be filed with the U.S. Securities and Exchange Commission (the “SEC”) as soon as contractually and lawfully permissible but no later than May 15, 2023.

7.This Amendment may be executed in any number of counterparts, each of which when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute only one instrument. Counterpart signature pages may be delivered by fax or e-mail.

8.Except as amended herein, the Purchase Agreement is hereby ratified and shall remain in full force and effect.

4873-9480-8163

PURCHASER:

AMERICAN BATTERY TECHNOLOGY COMPANY

By: /s/ Ryan Melsert

Name:

Title:

SELLER:

LINICO CORPORATION

By: /s/ Corrado DeGasperis

Name:

Title:

4873-9480-8163