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): October 30, 2015
Electronic Cigarettes International Group, Ltd.
(Exact name of registrant as specified in its charter)
Nevada | 000-52745 | 98-0534859 |
(State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
1707 Cole Boulevard, Suite 350, Golden, Colorado | 80401 | ||
(Address of principal executive offices) | (Zip Code) |
Registrant's telephone number, including area code: (720) 575-4222
n/a
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (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))
Item 1.01 Entry into a Material Definitive Agreement
As previously disclosed in its Current Report on Form 8-K filed on May 1, 2015, on April 27, 2015, Electronic Cigarettes International Group, Ltd. (the “Company”) entered into a Credit Agreement (as amended, the “Lead Lender Credit Agreement”) with an institutional investor (the “Lead Lender”), pursuant to which the Lead Lender made a term loan (“Term Loan”) to the Company in the original principal amount of $35,000,000 and that provides for interest at 12.00% per annum. As previously disclosed in its Current Report on Form 8-K filed on July 2, 2015, on June 26, 2015, the Company and the Lead Lender entered into an amendment to the Lead Lender Credit Agreement pursuant to which the Lead Lender made a second Term Loan to the Company in the principal amount of $6,000,000.
On October 30, 2015, the Company and the Lead Lender entered into Amendment No. 3 to the Lead Lender Credit Agreement (the “Amendment”) pursuant to which the Company and the Lead Lender amended the Lead Lender Credit Agreement to provide for a third closing under the Lead Lender Credit Agreement and for an additional Term Loan to the Company in the principal amount of $18,000,000, resulting in an aggregate outstanding principal balance under the Lead Lender Credit Agreement of $59,000,000. The Term Loan made pursuant to the Amendment shall mature on April 27, 2018 and shall bear interest on the outstanding principal balance at the rate of 12.0% per annum, payable on a quarterly basis and is evidenced by a Term Note in substantially the same form as issued to the Lead Lender at the first and second closings. For the period commencing October 2016 through March 2018, the Company is required to make aggregate monthly principal payments under the outstanding Term Loans from the Lead Lender of $1,012,000 and the remaining principal balance and accrued interest on such Term Loans are payable in full in April 2018.
The Company granted the Lead Lender additional warrants (the “Warrants”) to purchase an aggregate of 40,000,000 shares of common stock, par value $0.001 per share, of the Company, which are evidenced by Common Stock Purchase Warrants in substantially the same form as issued to the Lead Lender at the first and second closings.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information described above under Item 1.01 of this Current Report on Form 8-K is hereby incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities
The information described above under Item 1.01 of this Current Report on Form 8-K is hereby incorporated herein by reference.
The issuance of the Warrants in connection with the Amendment was made in reliance upon exemptions from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) and Rule 506 of Regulation D promulgated under the Securities Act.
Item 8.01 Other Events
On November 2, 2015, the Company issued a press release announcing the amendment to the Lead Lender Credit Agreement. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Neither the filing of the press release as an exhibit to this Current Report on Form 8-K nor the inclusion in the press release of a reference to the Company’s internet address shall, under any circumstances, be deemed to incorporate the information available at its internet address into this Current Report on Form 8-K. The information available at the Company’s internet address is not part of this Current Report on Form 8-K or any other report filed by the Company with the Securities and Exchange Commission.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
Exhibit No. | Description | |
10.1 | Amendment No.3 to Credit Agreement, dated October 30, 2015, by and between the Company and the Lead Lender. | |
99.1 | Press Release Dated November 2, 2015 |
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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.
Date: November 5, 2015 | ELECTRONIC CIGARETTES INTERNATIONAL GROUP, LTD. | |
By: | /s/ Philip Anderson | |
Name: Philip Anderson | ||
Title: Chief Financial Officer |
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Exhibit 10.1
Execution Version
AMENDMENT NO. 3
TO
CREDIT AGREEMENT
This Amendment No. 3 to Credit Agreement (the “Amendment”) is dated as of October 30, 2015, and is by and between Calm Waters Partnership, a Wisconsin General Partnership (“Calm Waters”) and Electronic Cigarettes International Group, Ltd., a Nevada corporation (the “Borrower”).
WHEREAS, Calm Waters and the Borrower entered into that certain Credit Agreement dated as of April 27, 2015 (the “CW Credit Agreement”);
WHEREAS, the Borrower entered into that certain Credit Agreement, dated April 27, 2015 (the “Additional Lender Credit Agreement”), by and among the Borrower, Tiburon Opportunity Fund, L.P., as a lender and as agent, and various additional lenders party thereto (the “Additional Lenders” and collectively with Calm Waters, the “Lenders”);
WHEREAS, the Lenders entered into that certain Intercreditor Credit Agreement, dated April 27, 2015 (the “Intercreditor Agreement”);
WHEREAS, pursuant to Amendment No. 1 to Credit Agreement, dated June 26, 2015 (“Amendment No. 1”), the Borrower and Calm Waters amended the CW Credit Agreement to (i) increase the aggregate principal amount of the Term Loans thereunder by $6,000,000 and (ii) extend the due date of certain post-Closing obligations of the Borrower;
WHEREAS, pursuant to Amendment No. 2 to Credit Agreement, dated June 30, 2015 (“Amendment No. 2”), and as a condition to receiving funds under a trade facility with ExWorks Capital Fund I, L.P., (“ExWorks”), the Borrower and Calm Waters amended the CW Credit Agreement to include a legend stating that the liens granted to the Lenders thereunder are subject to an Intercreditor Agreement among the Borrower, and the subordinated creditors party thereto (the CW Credit Agreement, as amended by Amendment No.1 and Amendment No.2, the “Amended CW Credit Agreement”);
WHEREAS, the Borrower desires to further amend the Amended CW Credit Agreement to increase the aggregate principal amount of the Term Loans thereunder by $18,000,000;
WHEREAS, pursuant to Section 5.1 of the Intercreditor Agreement, no term of the Amended CW Credit Agreement or the Additional Lender Credit Agreement may be amended and the performance or observance by the parties of any term of the Amended CW Credit Agreement or the Additional Lender Credit Agreement may not be waived without the consent of the Requisite Lenders;
WHEREAS, Calm Waters, by itself the Requisite Lender, has agreed to permit the Borrower to (i) increase the aggregate principal amount of the Term Loans under the Amended CW Credit Agreement and (ii) permit the issuance of a warrant to Calm Waters;
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Amendment, each intending to be legally bound, hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Amended CW Credit Agreement.
2. Amendments to the Amended CW Credit Agreement and the Disclosure Schedules.
2.1. Section 1.01 of the Amended CW Credit Agreement is hereby amended by deleting the definition of “Closing” in its entirety and replacing it with the following:
“Closing” shall mean the Initial Closing, the Second Closing and the Third Closing, unless otherwise specifically provided herein.
2.2. Section 1.01 of the Amended CW Credit Agreement is hereby amended by deleting the definition of “Closing Date” in its entirety and replacing it with the following:
“Closing Date” shall mean the Initial Closing Date, the Second Closing Date and the Third Closing Date, unless otherwise specifically provided herein.
2.3. Section 1.01 of the Amended CW Credit Agreement is hereby amended by adding the following definitions:
“Third Closing” shall mean the closing of the transactions contemplated by this Agreement on the Third Closing Date.
“Third Closing Date” shall mean October 30, 2015.
2.4. Section 1.01 of the Amended CW Credit Agreement is hereby amended by deleting the definition of “Warrant” in its entirety and replacing it with the following:
“Warrant” shall mean the Common Stock Purchase Warrants executed and delivered pursuant to Section 4.01(o), Section 4.02(g), and Section 4.03(g) substantially in the form of Exhibit F.”
2.5. Section 2.01 of the Amended CW Credit Agreement is hereby amended by deleting it in its entirety and replacing it with the following:
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“Section 2.01. Term Loan. Subject to the terms and conditions and relying upon the representations and warranties set forth herein and in the other Loan Documents, the Lender agrees to make Term Loans to the Borrower on the Closing Dates in an aggregate principal amount equal to $59,000,000, consisting of (i) a Term Loan on the Initial Closing Date in a principal amount equal to $35,000,000, (ii) a Term Loan on the Second Closing Date in a principal amount equal to $6,000,000, and (iii) a Term Loan on the Third Closing Date in a principal amount equal to $18,000,000, to be disbursed in accordance with Schedule 3.15; provided, however, that the disbursement of any amounts in settlement of debt obligations shall be subject to payoff letters entered into between the Borrower and the obligee in form and substance (including, but not limited to, a release of the Borrower) acceptable to Calm Waters. Amounts repaid or prepaid in respect of the Term Loan may not be reborrowed. The Borrower and the Lender agree that for U.S. federal income tax purposes, the aggregate issue price under Section 1273(b) of the Internal Revenue Code of 1986, as amended, of the Term Loan is $56,050,000. The Borrower and the Lender agree to use the foregoing issue price and the values and the yields which result in such issue price for U.S. federal income tax purposes.
2.6. Section 2.06(a) of the Amended CW Credit Agreement is hereby amended by deleting “$703,000” and replacing it with “$1,012,000”.
2.7. Article IV is hereby amended by adding the following as a new Section 4.03:
“Section 4.03. Conditions of Borrowing at the Third Closing. On the Third Closing Date:
(a) The
representations and warranties set forth in Article
III and in each other Loan Document shall be true and correct on and as of the Third Closing Date, with the same effect as though
made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date.
(b) On the Third Closing Date, no Default or Event of Default shall have occurred and be continuing.
(c) The Lender shall have received a certificate, dated the Third Closing Date, and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of this Section 4.03.
(d) The Lender shall have received duly executed counterparts of Amendment No. 3 to Credit Agreement from each party hereto.
(e) The Lender shall have received a certificate from the chief financial officer of the Borrower certifying that each of the Loan Parties, after giving effect to the Transactions to occur on the Third Closing Date, is Solvent.
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(f) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required or reasonably requested by the Lender, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that has resulted or could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.
(g) The Lender shall have received from the Company a duly executed Warrant to purchase 40,000,000 shares of Common Stock.
(h) The Lender shall have received (i) a certificate of the Secretary or Assistant Secretary of each Loan Party dated as of the Third Closing Date and certifying (A) with respect to the Borrower, that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Amendment and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (B) that the certificate or articles of incorporation, bylaws or operating agreement (or comparable organizational documents) of each Loan Party have not been amended since the Second Closing Date and (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and (ii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above.
(i) Contemporaneously with the Closing, the Lender shall have received all amounts due and payable on or prior to the Third Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(j) The Lender shall have received a Note duly executed and delivered by the Borrower payable to the Lender and its registered assigns in the principal amount of $18,000,000.
(k) Lender shall have received favorable written opinions of Pryor Cashman LLP and Fennemore Craig, P.C., counsels for the Borrower, in form and substance reasonably satisfactory to the Lender.
(l) The Lender shall have received a certificate with respect to the Loan Parties dated as of the Third Closing Date and duly executed by a Responsible Officer of the Borrower certifying that the Perfection Certificate delivered in connection with the Second Closing is true and correct in all respects as of the Third Closing Date as if given on such date.
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2.8. Schedule 1.01(a) of the Disclosure Schedule to the Amended CW Credit Agreement entitled “Existing Credit Agreements” is hereby amended by deleting it in its entirety and replacing it with the revised Schedule 1.01(a) attached hereto as Exhibit A.
2.9. Schedule 1.01(c) of the Disclosure Schedule to the Amended CW Credit Agreement entitled “Mortgaged Properties” is hereby amended by deleting it in its entirety and replacing it with the revised Schedule 1.01(c) attached hereto as Exhibit B.
2.10. Schedule 3.06 of the Disclosure Schedule to the Amended CW Credit Agreement entitled “Capitalization” is hereby amended by deleting it in its entirety and replacing it with the revised Schedule 3.06 attached hereto as Exhibit C.
2.11. Schedule 3.11 of the Disclosure Schedule to the Amended CW Credit Agreement entitled “Litigation” is hereby amended by deleting it in its entirety and replacing it with the revised Schedule 3.11 attached hereto as Exhibit D.
2.12. Schedule 3.12 of the Disclosure Schedule to the Amended CW Credit Agreement entitled “Agreements” is hereby amended by deleting it in its entirety and replacing it with the revised Schedule 3.12 attached hereto as Exhibit E.
2.13. Schedule 3.15 of the Disclosure Schedule to the Amended CW Credit Agreement entitled “Use of Proceeds” is hereby amended by deleting it in its entirety and replacing it with the revised Schedule 3.15 attached hereto as Exhibit F.
2.14. Schedule 3.20(c) of the Disclosure Schedule to the Amended CW Credit Agreement entitled “Mortgage Filing Offices” is hereby amended by deleting it in its entirety and replacing it with the revised Schedule 3.20(c) attached hereto as Exhibit G.
2.15. Schedule 3.21 of the Disclosure Schedule to the Amended CW Credit Agreement entitled “Owned Real Property” is hereby amended by deleting it in its entirety and replacing it with the revised Schedule 3.21 attached hereto as Exhibit H.
2.16. Schedule 3.29 of the Disclosure Schedule to the Amended CW Credit Agreement entitled “Indebtedness” is hereby amended by deleting it in its entirety and replacing it with the revised Schedule 3.29 attached hereto as Exhibit I.
2.17. Schedule 6.02(a) of the Disclosure Schedule to the Amended CW Credit Agreement entitled “Existing Liens” is hereby amended by deleting it in its entirety and replacing it with the revised Schedule 6.02(a) attached hereto as Exhibit J.
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3. Full Force and Effect. Except as expressly modified by this Amendment, all of the terms, covenants, agreements, conditions and other provisions of the Amended CW Credit Agreement shall remain in full force and effect in accordance with their respective terms. As used in the Amended CW Credit Agreement, the terms "this Agreement", herein, hereinafter, hereunder, hereto and words of similar import shall mean and refer to, from and after the date hereof, unless the context otherwise requires, the Amended CW Credit Agreement as amended by this Amendment.
4. Governing Law. This Amendment shall be governed by, construed and enforced in accordance with the laws of the State of New York and not by choice of law principles or the laws of any other State.
5. Entire Agreement and Amendments. The Amended CW Credit Agreement, as amended by this Amendment, embodies the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties.
6. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same agreement.
7. Guarantees and Security Interests. By signing this Amendment, the Borrower and each Guarantor hereby confirms that (i) the obligations of the Borrower and each Guarantor under the Amended CW Credit Agreement as amended by this Amendment and the other Loan Documents as amended hereby constitute “Secured Guarantees” and are entitled to the benefit of the guarantees and the security interests set forth in the Security Documents, (ii) the Loan Documents are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, and (iii) all Liens granted, conveyed or assigned to Calm Waters by such Person pursuant to each Loan Document to which it is party remain in full force and effect, are not released or reduced, and continue to secure full payment and performance of the Secured Guarantees as amended hereby.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, this Amendment has been executed as of, and is effective as of, the day and year first written above.
Calm Waters Partnership | ||
By: | /s/ Richard S. Strong | |
Name: Richard S. Strong | ||
Title: Managing Partner | ||
ELECTRONIC CIGARETTES INTERNATIONAL GROUP, LTD. | ||
By: | /s/ Philip Anderson | |
Name: Philip Anderson | ||
Title: Chief Financial Officer | ||
VCIG LLC | ||
By: | /s/ Philip Anderson | |
Name: Philip Anderson | ||
Title: Manager | ||
FIN BRANDING GROUP, LLC | ||
By: | /s/ Philip Anderson | |
Name: Philip Anderson | ||
Title: Manager | ||
HARDWIRE INTERACTIVE ACQUISITION COMPANY | ||
By: | /s/ Philip Anderson | |
Name: Philip Anderson | ||
Title: President | ||
VICTORY ELECTRONIC CIGARETTES, INC. | ||
By: | /s/ Philip Anderson | |
Name: Philip Anderson | ||
Title: President |
VAPESTICK HOLDINGS LIMITED | ||
By: | /s/ Philip Anderson | |
Name: Philip Anderson | ||
Title: Director | ||
MUST HAVE LIMITED | ||
By: | /s/ Philip Anderson | |
Name: Philip Anderson | ||
Title: Director | ||
E-CIGS UK HOLDING COMPANY LIMITED | ||
By: | /s/ Philip Anderson | |
Name: Philip Anderson | ||
Title: Director |
Exhibit 99.1 | |
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PRESS RELEASE |
Electronic Cigarettes International Group Strengthens Balance Sheet with $18.0 Million Financing from a Current Investor
GOLDEN, COLORADO, November 2, 2015 - Electronic Cigarettes International Group, Ltd. (The “Company”) (OTCBB: ECIG) today announced that on October 30, 2015 it completed an $18.0 million term loan financing with one of the Company’s long term investors.
The new capital allows the Company to retire subordinate convertible debt, repay loans with interest rates as high as 27%, and provide the working capital to fund anticipated growth.
The Company issued 40 million warrants as a component of the financing with an exercise price of $0.45, a 45% premium to the closing price of ECIG’s common stock on the day of funding.
“The additional $18.0 million investment clearly demonstrates confidence in both the future of the category and in the new ECIG management team. These funds will allow the Company to purchase the inventory and marketing support needed to meet the growth targets in 2016.” said Dan O'Neill, Chief Executive Officer of Electronic Cigarettes International Group, Ltd. “The improvement in working capital is consistent with the sixth pillar of the Company’s overall strategy, and the Company is now in a stronger position to deliver profitable growth.”
About Electronic Cigarettes International Group, Ltd. (ECIG)
Electronic Cigarettes International Group (ECIG) is dedicated to providing a compelling alternative to traditional cigarettes for the more than 1 billion current smokers around the world. ECIG offers consumers a full product portfolio that incorporates product quality and the latest technology. The Company’s website is www.ecig.co.
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PRESS RELEASE |
Safe Harbor Disclosure
This press release contains forward-looking statements that are made pursuant to the safe harbor provisions within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements are any statement reflecting management's current expectations regarding future results of operations, economic performance, financial condition and achievements of ECIG, including statements regarding ECIG’s expectation to see continued growth. Forward-looking statements, specifically those concerning future performance are subject to certain risks and uncertainties, and other factors are disclosed in the Company's filings with the Securities and Exchange Commission. Unless required by applicable law, ECIG undertakes no obligation to update or revise any forward-looking statements.
For investor inquiries please contact:
The Piacente Group, Inc.
Don Markley, 212-481-2050
ecig@thepiacentegroup.com
www.ecig.co
Follow us on social media:
Facebook: @Electronic Cigarettes International Group, Ltd.
Twitter: @ECIGCorporate
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