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): July 23, 2015
VAPOR CORP.
(Exact name of registrant as specified in its charter)
| Delaware | 001-36469 | 84-1070932 | ||
| (State or Other Jurisdiction | (Commission | (I.R.S. Employer | ||
| of Incorporation) | File Number) | Identification No.) |
3001 Griffin Road
Dania Beach, Florida 33312
(Address of Principal Executive Office) (Zip Code)
(888) 766-5351
(Registrant’s telephone number, including area code)
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))
Item 1.01 Entry into a Material Definitive Agreement.
Underwriting Agreement
On July 23, 2015, Vapor Corp. (the “Company”), in connection with a public offering (the “Offering”) of units of the Company, entered into an underwriting agreement (the “Underwriting Agreement”) with Dawson James Securities, Inc., as representative of the several underwriters. Pursuant to the Underwriting Agreement, the Company agreed to sell up to 3,800,000 units, with each unit consisting of one-fourth of a share of Series A Convertible Preferred Stock and 20 Series A Warrants (the “Units”), at a public offering price of $11.00 per Unit, on a “best efforts” basis, for a maximum gross proceeds of approximately $41.8 million.
The shares of Series A Convertible Preferred Stock and the Series A Warrants will automatically separate on January 23, 2016. However, the shares of Series A Convertible Preferred Stock and the Series A Warrants will separate prior to the expiration of the six-month period if at any time after August 24, 2015 either (i) the closing price of our common stock is greater than $4.28 per share for 10 consecutive trading days (a “Trading Separation Trigger”), (ii) the Series A Warrants are exercised for cash (solely with respect to the Units that included the exercised Series A Warrants) (a “Cash Warrant Exercise Trigger”) or (iii) the Units are delisted (a “Delisting Trigger”) from the Nasdaq Capital Market for any reason (such earlier date, the “Separation Trigger Date”). The Units will become separable: (i) 15 days after the Trading Separation Trigger date or (ii) immediately after the Series A Warrants are exercised for cash (solely with respect to the Units that included the exercised Series A Warrants) or a Delisting Trigger. In the event of an early separation, the Series A Preferred Stock will become convertible into common stock: (i) immediately upon the separation of the Unit if a Trading Separation Trigger or a Delisting Trigger occurs, or (ii) on January 23, 2016 (unless an earlier Trading Separation Trigger or Delisting Trigger occurs) on the occurrence of a Cash Warrant Exercise Trigger.
Each one-fourth of a share of Series A Convertible Preferred Stock will be convertible at the option of the holder into 10 shares of common stock upon the separation of the Units, provided that upon a Cash Warrant Exercise Trigger the Series A Convertible Preferred Stock will not be convertible until January 23, 2016 (unless an Early Separation occurs due to a Trading Separation Trigger or Delisting Trigger). The Series A Warrants have an exercise price of $1.24 per share.
Once exercisable, holders may exercise the Series A Warrants by paying the exercise price in cash or, in lieu of payment of the exercise price in cash by electing to receive a cash payment from the Company equal to the Black Scholes Value (as defined below) of the number of shares the holder elects to exercise, referred to herein as the “Black Scholes Payment”; provided, that the Company has discretion as to whether to deliver the Black Scholes Payment or, subject to meeting certain conditions, to deliver a number of shares of our common stock determined according to the following formula, referred to as the Cashless Exercise.
Total Shares = (A x B) / C
Where:
| ● | Total Shares is the number of shares of common stock to be issued upon a Cashless Exercise |
| ● | A is the total number of shares of common stock with respect to which the Series A Warrant is then being exercised. |
| ● | B is the Black Scholes Value. |
| ● | C is the closing bid price of our common stock as of two trading days prior to the time of such exercise. |
As defined in the Series A Warrants, “Black Scholes Value” was determined based on the Black Scholes Value of an option for one share of common stock of the Company at the date of the applicable Black Scholes Payment or Cashless Exercise, as such Black Scholes Value is determined, calculated using the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the closing bid price of the common stock of the Company as of July 23, 2015 (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of the Series A Warrant as of the applicable Black Scholes Payment or Cashless Exercise, (iii) a strike price equal to the exercise price in effect at the time of the applicable Black Scholes Payment or Cashless Exercise, (iv) an expected volatility equal to 135% and (v) a remaining term of such option equal to five years (regardless of the actual remaining term of the Series A Warrant).
| - 2 - |
A form of the Underwriting Agreement is attached hereto as Exhibit 1.1 and is incorporated herein by reference. The foregoing description of the Underwriting Agreement is qualified in its entirety by reference to the full text of the Underwriting Agreement. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures exchanged between the parties in connection with the execution of the Underwriting Agreement. The representations and warranties may have been made for the purposes of allocating contractual risk between the parties to the agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Underwriting Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Underwriting Agreement.
Unit Purchase Option
Pursuant to the Underwriting Agreement, the Company, in connection with the Offering, agreed to issue to Dawson James Securities, Inc. a unit purchase option for the purchase of 5% of the Units issued in the Offering (the “Unit Purchase Option”). The Unit Purchase Option has an exercise price equal to 125% of the public offering price, or $13.75 per Unit. The purchase option allows Dawson James Securities, Inc. to purchase the same units offered in the Offering. The Unit Purchase Option shall expire on July 23, 2020.
A form of the Unit Purchase Option is attached hereto as Exhibit 4.1 and is incorporated herein by reference. The foregoing description of the unit purchase option is qualified in its entirety by reference to the full text of the unit purchase option agreement.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On July 23, 2015, the Company filed the Certificate of Designation of Series A Convertible Preferred Stock (the “Certificate of Designation”) with the Delaware Secretary of State. The Certificate of Designation creates the Series A Convertible Preferred Stock and fixes the rights, preferences, powers, restrictions and limitations of the he Series A Convertible Preferred Stock. The Series A Convertible Preferred Stock is a component of the Units being offered pursuant to the Offering as described above.
The text of the Certificate of Designation is attached hereto as Exhibit 3.1 and is incorporated herein by reference. The foregoing description of the Certificate of Designation is qualified in its entirety by reference to its full text.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| Exhibit Number | Description | |
| 1.1 | Form of Underwriting Agreement (Incorporated by reference to Exhibit 1.1 to the Company’s registration statement on Form S-1 filed on July 10, 2015 (File No. 333-204599)) | |
| 3.1 | Form of Certificate of Designation of Series A Convertible Preferred Stock, as corrected | |
| 4.1 | Form of Unit Purchase Option (Incorporated by reference to Exhibit 4.3 to the Company’s registration statement on Form S-1 filed on July 10, 2015 (File No. 333-204599)) |
| - 3 - |
SIGNATURE
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.
| VAPOR CORP. | ||
| Date: July 28, 2015 | By: | /s/ Jeffrey Holman |
| Jeffrey Holman | ||
| - 4 - |
Exhibit 3.1
CERTIFICATE OF DESIGNATION OF SERIES A CONVERTIBLE
PREFERRED STOCK OF VAPOR CORP.
Pursuant to Section 151 of the General Corporation Law of the State of Delaware, Vapor Corp., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of Section 103 thereof, does hereby submit the following:
WHEREAS, the Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”) authorizes the issuance of up to 1,000,000 shares of preferred stock, par value $0.001 per share, of the Corporation (“Preferred Stock”) in one or more series, and expressly authorizes the Board of Directors of the Corporation (the “Board”), subject to limitations prescribed by law, to provide, out of the unissued shares of Preferred Stock, for series of Preferred Stock, and, with respect to each such series, to establish and fix the number of shares to be included in any series of Preferred Stock and the designation, rights, preferences, powers, restrictions and limitations of the shares of such series; and
WHEREAS, it is the desire of the Board to establish and fix the number of shares to be included in a new series of Preferred Stock and the designation, rights, preferences and limitations of the shares of such new series.
NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby provide for the issue of a series of Preferred Stock and does hereby in this Certificate of Designation (the “Certificate of Designation”) establish and fix and herein state and express the designation, rights, preferences, powers, restrictions and limitations of such series of Preferred Stock as follows:
1. Designation. There shall be a series of Preferred Stock that shall be designated as “Series A Convertible Preferred Stock” (the “Series A Preferred Stock”) and the number of shares constituting such series shall be 1,000,000. The rights, preferences, powers, restrictions and limitations of the Series A Preferred Stock shall be as set forth herein.
2. Defined Terms. For purposes hereof, the following terms shall have the following meanings:
“Affiliate” has the meaning provided for in Rule 12b-2 under the Exchange Act.
“Board” has the meaning set forth in the Recitals.
“Certificate of Designation” has the meaning set forth in the Recitals.
“Certificate of Incorporation” has the meaning set forth in the Recitals.
“Common Stock” means the common stock, par value $0.001 per share, of the Corporation.
“Corporation” has the meaning set forth in the Preamble.
“Date of Issuance” means, for any Share of Series A Preferred Stock, the date on the prospectus included in the registration statement pursuant to which the units were issued of which the Series A Preferred Stock was a component.
“Earliest Conversion Date” has the meaning set forth in Section 5.1(a).
“Early Conversion Trigger Date” has the meaning set forth in Section 5.1(b).
“Exchange Act” means the Securities Exchange Act of 1934.
“Fundamental Transaction” means that (i) the Corporation or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, (1) consolidate or merge with or into (whether or not the Corporation or any of its subsidiaries is the surviving corporation) any other Person unless the shareholders of the Corporation immediately prior to such consolidation or merger continue to hold more than 50% of the outstanding shares of Voting Stock after such consolidation or merger, or (2) sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of its respective properties or assets to any other Person, or (3) allow any other Person to make a purchase, tender or exchange offer that is accepted by the holders of more than 50% of the outstanding shares of Voting Stock of the Corporation (not including any shares of Voting Stock of the Corporation held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), or (4) consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with any other Person whereby such other Person acquires more than 50% of the outstanding shares of Voting Stock of the Corporation (not including any shares of Voting Stock of the Corporation held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination), or (ii) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act and the rules and regulations promulgated thereunder) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and outstanding Voting Stock of the Corporation.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Maximum Percentage” has the meaning set forth in Section 5.5.
“Preferred Stock” has the meaning set forth in the Recitals.
“Series A Preferred Stock” has the meaning set forth in Section 1.
“Transfer Agent” has the meaning set forth in Section 5.1(b).
“Voting Stock” of a Person means capital stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power to elect, or the general power to appoint, at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time capital stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
3. Rank. With respect to payment of dividends and distribution of assets upon liquidation or dissolution or winding up of the Corporation, whether voluntary or involuntary, the Series A Preferred Stock shall rank equal to the Common Stock on an as converted basis.
4. Voting.
4.1 The Series A Convertible Preferred Stock shall have no voting rights, except as expressly set forth in this Section 4.
4.2 So long as any shares of Series A Preferred Stock are outstanding, the affirmative vote of the holders of all of the Series A Preferred Stock at the time outstanding, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating any amendment, alteration or repeal of any of the provisions of this Certificate of Designation that materially and adversely affects the powers, preferences or special rights of the Series A Preferred Stock, whether by merger or consolidation or otherwise; provided, however, that in the event of an amendment to terms of the Series A Preferred Stock, including by merger or consolidation, so long as the Series A Preferred Stock remains outstanding with the terms thereof materially unchanged, or the Series A Preferred Stock is converted into, preference securities of the surviving entity, or its ultimate parent, with such powers, preferences or special rights, taken as a whole, not materially less favorable to the holders of the Series A Preferred Stock than the powers, preferences or special rights of the Series A Preferred Stock, taken as a whole, the occurrence of such event shall not be deemed to materially and adversely affect such powers, preferences or special rights of the Series A Preferred Stock, and in such case such holders shall not have any voting rights with respect to the occurrence of such events.
4.3 For purposes of Section 4.2, each share of Series A Preferred Stock shall have one vote per share. Except as set forth herein, the Series A Preferred Stock shall not have any relative, participating, optional or other special voting rights and powers other than as set forth herein, and the consent of the holders thereof shall not be required for the taking of any corporate action.
4.4 No amendment to these terms of the Series A Preferred Stock shall require the vote of the holders of Common Stock (except as required by law) or any series of Preferred Stock other than the Series A Preferred Stock.
4.5 Without the consent of the holders of the Series A Preferred Stock, so long as such action does not materially and adversely affect the powers, preferences or special rights of the Series A Preferred Stock, taken as a whole, and to the extent permitted by law, the Corporation may amend, alter, supplement, or repeal any terms of this Certificate of Designation for the following purposes:
(a) to cure any ambiguity, or to cure, correct, or supplement any provision that may be ambiguous, defective, or inconsistent; or
(b) to make any provision with respect to matters or questions relating to the Series A Preferred Stock that is not inconsistent with the provisions of this Certificate of Designation.
5. Conversion.
5.1 Right to Convert
(a) Right to Convert. Subject to the provisions of this Section 5, at any time and from time to time on or after the date that is six months after the Date of Issuance, any holder of Series A Preferred Stock shall have the right by written election to the Corporation to convert each whole share of Series A Preferred Stock held by such holder into 40 shares of Common Stock (and any fraction of a share of Series A Preferred Stock shall convert into a proportionate amount of shares of Common Stock). Notwithstanding anything to the contrary in this Certificate of Designation, the Series A Preferred Stock shall not be convertible until at least 30 days from the Date of Issuance (the “Earliest Conversion Date”).
(b) Early Conversion. Subject to the provisions of this Section 5, if at any time after the Earliest Conversion Date, either (i) the closing price of the Common Stock is greater than $2.48 per share (subject to adjustment for stock splits, stock dividends or similar events) for 10 consecutive trading days (a “Trading Separation Trigger”), or (ii) the Units are delisted from the Nasdaq Capital Market for any reason, then, at any time and from time to time after the 15th day after the Trading Separation Trigger, or immediately after a Delisting Trigger (such applicable day, the “Early Conversion Trigger Date”), any holder of Series A Preferred Stock shall have the right by written election to the Corporation and the Corporation’s transfer agent, Equity Stock Transfer (the “Transfer Agent”), to convert each outstanding whole share of Series A Preferred Stock held by such holder into 40 shares of Common Stock (and any fraction of a share of Series A Preferred Stock shall convert into a proportionate amount of shares of Common Stock). The 10 consecutive trading day period calculation for the Trading Separation Trigger may not commence until after the Earliest Conversion Date.
5.2 Fundamental Transaction Automatic Conversion. Subject to the provisions of this Section 5, if at any time and from time to time on or after the Date of Issuance, the Corporation enters into or is party to a Fundamental Transaction, each whole share of Series A Preferred Stock shall convert automatically into 40 shares of Common Stock (and any fraction of a share shall convert into a proportionate amount of shares of Common Stock) immediately prior to consummation of such Fundamental Transaction. To the extent such a conversion would be limited by Section 5.5, the holder shall be entitled to convert the Series A Preferred Stock that it could not initially convert at a later date or dates, provided that at such later date or dates the limitation in Section 5.5 would no longer apply to the holder because such holder would no longer own in excess of the Maximum Percentage.
5.3 Procedures for Conversion; Effect of Conversion
(a) Procedures for holder Conversion. In order to effectuate a conversion of shares of Series A Preferred Stock pursuant to Section 5.1(a) or 5.1(b), a holder shall submit a written election to the Corporation and the Corporation’s Transfer Agent that such holder elects to convert such shares, which election sets forth the number of shares (or fraction of shares) elected to be converted. The conversion of such shares hereunder shall be deemed effective as of the date of receipt of such written election by the Transfer Agent. All shares of capital stock issued hereunder by the Corporation shall be duly and validly issued, fully paid and nonassessable, free and clear of all taxes, liens, charges and encumbrances with respect to the issuance thereof.
(b) Effect of Conversion. All shares of Series A Preferred Stock converted as provided in this Section 5 shall no longer be deemed outstanding as of the effective time of the applicable conversion and all rights with respect to such shares shall immediately cease and terminate as of such time, other than the right of the holder to receive shares of Common Stock in exchange therefor.
5.4 Reservation of Stock. The Corporation shall at all times when any shares of Series A Preferred Stock are outstanding reserve and keep available out of its authorized but unissued shares of capital stock, solely for the purpose of issuance upon the conversion of the Series A Preferred Stock, such number of shares of Common Stock issuable upon the conversion of all outstanding Series A Preferred Stock. The Corporation shall take all such actions as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Corporation upon each such issuance). The Corporation shall not close its books against the transfer of any of its capital stock in any manner which would prevent the timely conversion of the shares of Series A Preferred Stock.
5.5. Limitations on Conversion. Notwithstanding anything to the contrary contained in this Certificate, the Series A Preferred Stock shall not be convertible by a holder to the extent (but only to the extent) that the holder or any of its Affiliates would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the Common Stock. To the extent the above limitation applies, the determination of whether the holder’s shares shall be convertible (in relation to other convertible securities owned by the holder or any of its Affiliates) and of which such securities shall be convertible (as among all such securities owned by the holder) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Corporation for conversion. No prior inability to convert the shares of Series A Preferred Stock pursuant to this Section 5.5 shall have any effect on the applicability of the provisions of this Section 5.5 with respect to any subsequent determination of convertibility. For the purposes of this Section 5.5, beneficial ownership and all determinations and calculations (including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder. The provisions of this Section 5.5 shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 5.5 to correct this Section 5.5 (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. The limitations contained in this Section 5.5 shall apply to a successor holder of the shares of Series A Preferred Stock. The holders of Common Stock shall be third party beneficiaries of this Section 5.5 and the Corporation may not amend or waive this Section 5.5 without the consent of holders of a majority of its Common Stock. For any reason at any time, upon the written or oral request of the holder, the Corporation shall within one Business Day confirm orally and in writing to the holder the number of shares of Common Stock then outstanding, including by virtue of any prior conversion of convertible securities into Common Stock, including, without limitation, pursuant to this Certificate of Designation or securities issued pursuant to the Certificate of Designation.
6. Status of Converted or Acquired Shares. All shares of Series A Preferred Stock (i) converted into shares of Common Stock in accordance with Section 5 herein or (ii) acquired by the Corporation shall be restored to the status of authorized but unissued shares of undesignated Preferred Stock of the Corporation.
7. Maturity. The Series A Preferred Stock has no maturity date, no sinking fund has been established for the retirement or redemption of Series A Preferred Stock, and the Series A Preferred Stock has no redemption provisions.
8. Notices. Except as otherwise provided herein, all notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent (a) to the Corporation, at its principal executive offices and (b) to any stockholder, at such holder’s address at it appears in the stock records of the Corporation (or at such other address for a stockholder as shall be specified in a notice given in accordance with this Section 8).
9. Amendment and Waiver. No provision of this Certificate of Designation may be amended, modified or waived except by an instrument in writing executed by the Corporation, and any such written amendment, modification or waiver will be binding upon the Corporation and each holder of Series A Preferred Stock; provided, that no amendment, modification or waiver of the terms or relative priorities of the Series A Preferred Stock may be accomplished by the merger, consolidation or other transaction of the Corporation with another corporation or entity unless the Corporation has obtained the prior written consent of the holders in accordance with Section 4 and this Section 9.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Corporation by its Chief Executive Officer this ____ day of July, 2015.
| VAPOR CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||