UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 14, 2012
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AS SEEN ON TV, INC.
(Exact name of registrant as specified in its charter)
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Florida |
| 000-53539 |
| 80-149096 |
(State or other jurisdiction |
| (Commission |
| (I.R.S. Employer |
14044 Icot Blvd., Clearwater, Florida 33760
(Address of principal executive offices) (Zip Code)
727-288-2738
Registrant’s telephone number, including area code
________________________________________
(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) |
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¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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¨ | 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
On November 14, 2012 (the “Closing Date”), As Seen On TV, Inc., a Florida corporation (the “Company”), entered into and consummated a Securities Purchase Agreement (the “Securities Purchase Agreement”) with certain accredited investors for the private sale (the “November 2012 Offering”) of 61 units (each, a “Unit”) at $50,050 per Unit, each Unit consisting of (i) 71,500 shares of common stock, par value $0.0001 per share (the “Common Stock”) and (ii) warrants to purchase 35,750 shares of Common Stock at an initial exercise price of $0.80 per share (the “Warrants”). Accordingly, for each $0.70 invested, investors received one share of Common Stock and one-half of a Warrant. The Company received gross proceeds of $3,053,085 and issued an aggregate of 4,361,550 shares of Common Stock and Warrants to purchase 2,180,775 shares of Common Stock to the investors pursuant to the Securities Purchase Agreement.
The Warrants are exercisable at any time within three years from the Closing Date at an exercise price of $0.80 per share with cashless exercise in the event a registration statement covering the resale of the shares underlying the Warrants is not in effect within the time period set forth in the Securities Purchase Agreement. The Warrants also provide for weighted average anti-dilution protection in the event that any shares of Common Stock, or securities convertible into Common Stock, are issued at less than the exercise price of the Warrants during any period in which such Warrants are outstanding, subject to certain exceptions as set forth in the Warrants.
If during a period of twelve months from the completion of the November 2012 Offering, the Company issues additional shares of Common Stock or other equity or equity-linked securities (the “Additional Shares”) at a purchase, exercise or conversion price less than $0.70 (subject to certain exceptions and such price is subject to adjustment for splits, recapitalizations, reorganizations), then the Company shall issue additional shares of Common Stock to the investors so that the effective purchase price per share paid for the Common Stock included in the Units shall be the same per share purchase, exercise or conversion price of the Additional Shares.
The Company has provided the investors with “piggyback” registration rights with respect to the resale of the Common Stock and the shares of Common Stock issuable upon exercise of the Warrants.
The Company engaged a registered broker dealer to serve as placement agent (the “Placement Agent”) and the Placement Agent received (a) selling commissions aggregating 10% of the gross proceeds of the Offering, (b) a non-accountable expense allowance of 1% of the gross proceeds of the Offering to defray offering expenses, (c) five-year warrants (“Placement Agent Warrants”) to purchase such number of shares of Common Stock as is equal to 10% of the shares of Common Stock (i) included as part of the Units sold in this Offering at an exercise price equal to $0.70 per share, and (ii) issuable upon exercise of the Warrants sold in the November 2012 Offering at an exercise price equal to $0.80 per share, and (d) 100,000 restricted shares of Common Stock.
As previously reported, during September 2012, the Company issued 12% Senior Secured Convertible Notes in the principal amount of $1,275,000 (the “Notes”) to certain accredited investors. The sale of the Units triggered the automatic conversion of the Notes, which converted into an aggregate of 2,190,140 shares of Common Stock and warrants to purchase an aggregate of 1,095,070 shares of Common Stock, exercisable at $0.80 per share. The warrants are exercisable for period of three years and contain the same terms as the Warrants defined above. The terms of the securities contained in the Units also triggered a weighted average ratchet anti-dilution adjustment on the warrants issued with the Notes and placement agent warrants issued in connection thereto.
The sale of the Units also triggered purchase price protection provisions (the “2011 SPA Purchase Price Protection”) provided under the terms of the Company’s securities purchase agreement, dated October 28, 2011 (the “October 2011 SPA”) and warrants issued in connection with the October 2011 SPA were subject to full ratchet anti-dilution protection adjustment. As a result of the securities issued in the November 2012 Offering, the October 2011 SPA purchasers and warrant holders received an additional aggregate of 5,735,176 shares of Common Stock and warrants to purchase an additional 13,343,138 shares of Common Stock exercisable at $0.595 per share. These warrants include warrants issued to the Placement Agent in connection with its participation in the October 2011 SPA and related transactions.
Finally, the sale of Units triggered certain anti-dilution provisions under the Company’s asset acquisition agreement with Seen On TV LLC dated June 28, 2012 and the Company issued an aggregate of 190,068 shares of Common Stock to the members of Seen On TV LLC and their assignees.
Effective on the Closing Date, Kevin Harrington, the Company’s Chairman, and Steve Rogai, the Company’s Chief Executive Officer, each executed a lock up agreement (the “Lock Up Agreement”) which provides that, subject to limited exceptions for Mr. Rogai, the officer shall not to sell, assign, transfer or otherwise dispose of their shares of Common Stock or other securities of the Company for a period ending on such date that the November 2012 Offering subscribers have the ability to sell or transfer the Common Stock pursuant to Rule 144 or through an effective registration statement. Following this initial lock-up period, Kevin Harrington has agreed to an additional 12-month leak-out period for his shares, during which he may not sell more than $25,000 worth shares of Common Stock per month for an aggregate $300,000.
The Company received net proceeds of approximately $2,645,000 after payment of commissions and expense allowance to the Placement Agent and other offering and related costs in connection with the Offering. The net proceeds from the Securities Purchase Agreement shall be used to purchase product inventory, sales initiatives and general working capital. In addition, the Company has agreed to advance up to $1,500,000 to eDiets.com, Inc. from the net proceeds of the Units sold. Such advances shall be made under terms substantially the same as the advances previously made to eDiets.com, Inc.
Item 3.02
Unregistered Sales of Equity Securities
See Item 1.01 of this Current Report on Form 8-K, which item is incorporated by reference, in connection with the Securities Purchase Agreement and the securities issued in connection therewith. The securities issued above were issued under the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended. The securities contain a legend restricting transferability absent registration or applicable exemption. The shareholders received current information about the Company and had the opportunity to ask questions about the Company. All of the shareholders were deemed accredited.
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit No. |
| Description |
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10.1 |
| Steve Rogai Lock Up Agreement |
10.2 |
| Kevin Harrington Lock Up Agreement |
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.
| As Seen On TV, Inc. | |
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| By: | /s/ DENNIS W. HEALEY |
| Name: | Dennis W. Healey |
| Title: | Chief Financial Officer |
Dated: November 16, 2012
EXHIBIT 10.1
November 5, 2012
National Securities Corporation
120 Broadway, Suite 2740
New York, NY 10271
Re:
Lock-Up Agreement (this “Agreement”)
Dear Sirs:
As Seen on TV, Inc., a Florida corporation (the “Company”), has entered into a placement agency agreement with National Securities Corporation (the “Placement Agent”) to conduct a private placement of between $3,003,000 and $7,007,000 (not including the over-allotment option) of units consisting of shares of the Company’s common stock (“Common Stock”) and warrants to purchase Common Stock (the “Financing Transaction”).
You are a holder (a “Holder”) of shares of Common Stock (and, if applicable, stock options or warrants to purchase Common Stock).
It is essential to the success of the Financing Transaction that the Company and the Placement Agent can give comfort to potential investors that the “after market” for the Common Stock will not be disrupted by a very substantial block of shares being sold in an inappropriate fashion.
By signing and returning this Agreement in the manner indicated below, the undersigned hereby agrees that, without the prior written consent of the Placement Agent, it will not, during the period commencing on the date of the initial closing of the Financing Transaction and ending on such date that investors in the Financing Transaction have the ability to sell or transfer the Common Stock pursuant to Rule 144 or an effective registration statement (the “Initial Lock-Up Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap, option (including, without limitation, put or call options), short sale, future, forward or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock or any securities of the Company which are substantially similar to the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise.
Notwithstanding the foregoing sale restrictions above, (1) you may sell the 133,750 shares of Common Stock acquired by you in connection with the October 2011 debt conversion; (2) you may sell your shares of Common Stock prior to the termination of this Agreement as part of a registered underwritten secondary public offering conducted by the Company, subject, however, to the sole determination of the lead underwriter of such public offering; and (3) you may transfer shares of Common Stock or any security convertible into Common Stock as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or
distribution pursuant to clause (2), each donee or distributee shall sign and deliver to the Placement Agent a lock-up letter substantially in the form of this letter.
By signing and returning this Agreement, you further (i) represent and consent that you have full power and authority to enter into this Agreement and that, upon request, you will execute any additional documents necessary or desirable in connection with this Agreement and its enforcement; and (ii) understand that this Agreement is irrevocable by you, all authority herein conferred by you or agreed to be conferred by you shall survive your death or incapacity, and any of your obligations hereunder shall be binding on you and your heirs, personal representatives, successors and assigns.
In order to enable the aforesaid covenant to be enforced, you hereby consent to the placing of a legend and/or stop-transfer order with the transfer agent of the Common Stock with respect to any of the shares registered in your name or beneficially owned by you.
Whether the Financing Transaction actually occurs depends on a number of factors. Notwithstanding the foregoing, this Agreement will not be effective until the date of the initial closing of the Financing Transaction. If and at such time it is effective, this Agreement shall supersede any previously executed Lock-Up Agreement, by and between the Company and the undersigned, and such previous Lock-Up Agreement shall be terminated and of no further force or effect.
Accordingly, to evidence your agreement to the terms hereof, please date, sign and return this Agreement to the Company by courier, Federal Express, fax or e-mail no later than the close of business on November 8, 2012. If you return your signed Agreement to the Company by fax or e-mail, please promptly mail thereafter the executed copy of this Agreement to the Company.
Acknowledged and Agreed
this 8th day of November, 2012:
/S/ STEVE ROGAI |
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Signature |
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Steve Rogai |
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Name |
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Entity (if any) |
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Title (if Shares held by Entity) |
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RETURN TO THE COMPANY BY FAX: AT (727) 330-7843
OR E-MAIL AT: aswaim@tvgoodsinc.com
-AND-
BY FEDERAL EXPRESS OR OVERNIGHT COURIER TO:
As Seen on TV, Inc.
14044 Icot Boulevard
Clearwater, Florida 33760
Attention: Mr. Steven Rogai, CEO
2
EXHIBIT 10.2
November 5, 2012
National Securities Corporation
120 Broadway, Suite 2740
New York, NY 10271
Re:
Lock-Up Agreement (this “Agreement”)
Dear Sirs:
As Seen on TV, Inc., a Florida corporation (the “Company”), has entered into a placement agency agreement with National Securities Corporation (the “Placement Agent”) to conduct a private placement of between $3,003,000 and $7,007,000 (not including the over-allotment option) of units consisting of shares of the Company’s common stock (“Common Stock”) and warrants to purchase Common Stock (the “Financing Transaction”).
You are a holder (a “Holder”) of shares of Common Stock (and, if applicable, stock options or warrants to purchase Common Stock).
It is essential to the success of the Financing Transaction that the Company and the Placement Agent can give comfort to potential investors that the “after market” for the Common Stock will not be disrupted by a very substantial block of shares being sold in an inappropriate fashion.
By signing and returning this Agreement in the manner indicated below, the undersigned hereby agrees that, without the prior written consent of the Placement Agent, it will not, during the period commencing on the date of the initial closing of the Financing Transaction and ending on such date that investors in the Financing Transaction have the ability to sell or transfer the Common Stock pursuant to Rule 144 or an effective registration statement (the “Initial Lock-Up Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap, option (including, without limitation, put or call options), short sale, future, forward or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock or any securities of the Company which are substantially similar to the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise.
For the twelve (12) months following the Initial Lock-Up Period, the undersigned may sell shares of Common Stock, but only up to a maximum of $25,000 worth of shares of Common Stock per month, up to an aggregate $300,000 during such twelve month period.
Notwithstanding the foregoing sale restrictions above, (1) you may sell your shares of Common Stock prior to the termination of this Agreement as part of a registered underwritten secondary public offering conducted by the Company, subject, however, to the sole determination of the lead underwriter of such public offering; and (2) you may transfer shares of Common Stock or any security convertible
into Common Stock as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member; provided that in the case of any transfer or distribution pursuant to clause (2), each donee or distributee shall sign and deliver to the Placement Agent a lock-up letter substantially in the form of this letter.
By signing and returning this Agreement, you further (i) represent and consent that you have full power and authority to enter into this Agreement and that, upon request, you will execute any additional documents necessary or desirable in connection with this Agreement and its enforcement; and (ii) understand that this Agreement is irrevocable by you, all authority herein conferred by you or agreed to be conferred by you shall survive your death or incapacity, and any of your obligations hereunder shall be binding on you and your heirs, personal representatives, successors and assigns.
In order to enable the aforesaid covenant to be enforced, you hereby consent to the placing of a legend and/or stop-transfer order with the transfer agent of the Common Stock with respect to any of the shares registered in your name or beneficially owned by you.
Whether the Financing Transaction actually occurs depends on a number of factors. Notwithstanding the foregoing, this Agreement will not be effective until the date of the initial closing of the Financing Transaction. If and at such time it is effective, this Agreement shall supersede any previously executed Lock-Up Agreement, by and between the Company and the undersigned, and such previous Lock-Up Agreement shall be terminated and of no further force or effect.
Accordingly, to evidence your agreement to the terms hereof, please date, sign and return this Agreement to the Company by courier, Federal Express, fax or e-mail no later than the close of business on November 8, 2012. If you return your signed Agreement to the Company by fax or e-mail, please promptly mail thereafter the executed copy of this Agreement to the Company.
Acknowledged and Agreed
this 8th day of November, 2012:
/S/ KEVIN HARRINGTON |
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Signature |
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Kevin Harrington |
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Name |
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Harrington Business Development |
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Entity (if any) |
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President/Director |
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Title (if Shares held by Entity) |
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RETURN TO THE COMPANY BY FAX: AT (727) 330-7843
OR E-MAIL AT: aswaim@tvgoodsinc.com
-AND-
BY FEDERAL EXPRESS OR OVERNIGHT COURIER TO:
As Seen on TV, Inc.
14044 Icot Boulevard
Clearwater, Florida 33760
Attention: Mr. Steven Rogai, CEO
2