Amendment No. 3
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☒ No fee required. ☐ Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. 1) Title of each class of securities to which transaction applies: 2) Aggregate number of securities to which transaction applies: 3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): 4) Proposed maximum aggregate value of transaction: 5) Total fee paid: ☐ Fee paid previously with preliminary materials. ☐ Check box if any part |
EXPLANATORY NOTE
Vapor Corp. (the “Company”) is filing with the Securities and Exchange Commission (the “SEC”) this amended and restated Preliminary Proxy Statement on Schedule 14A (this “Amendment”) for its Special Meeting of Stockholders (this “Proxy Statement”), which was originally filed with the SEC on February 4, 2016 and amended and restated on each of February 5, 2016 and February 12, 2016. The purpose of this Amendment is to amend the reasons for the Reverse Stock Split (as defined herein) in light of the suspension of the Company’s Common Stock from The NASDAQ Capital Market. Accordingly, all references to the Company’s Common Stock being listed on The NASDAQ Capital Market,fee is offset as well as references to the Company’s attempt at regaining compliance with The NASDAQ Capital Market listing requirements, have been amended. Additionally, the proposed meeting date has been updated. This Amendment only reflects the changes referenced above. No other information included in the Proxy Statement has been amendedprovided by this Amendment, whether to reflect any information or events subsequent toExchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of the Proxyits filing.
To The Stockholders of Vapor Corp.:
We
The affirmative vote of the holders of a majority of the outstanding shares of our Common Stock will be required Proxy Statement:
TheProxy Statement, the Board of Directors unanimously recommends that the stockholdersa vote “FOR” the Reverse Stock Split and the Adjournment Proposal.
each matter to be considered.
during normal business hours at our principal executive offices, 3001 Griffin Road, Dania Beach, Florida 33312, beginning on August 4, 2016 and at the Special Meeting.
We are mailing to many of our stockholders aAugust 4, 2016. The Notice of Internet AvailabilitySpecial Meeting of Proxy Materials (which we refer to as a “Notice”), rather than mailing a full paper set of the materials. The Notice contains instructions on how to access our proxy materials on the Internet, as well as instructions on obtaining a paper copy of the proxy materials. This process is more environmentally friendly and reduces our costs to print and distribute these materials. All stockholders who do not receive such a Notice, including stockholders who have previously requested to receive a paper copy of the materials, will receive a full set of paper proxy materials by U.S. mail. An electronic version of theStockholders, Proxy Statement isand Proxy Card are available at: https://www.proxyvote.com.
If You Plan Information contained on or connected to Attend
Please noteour website is not incorporated by reference into this Proxy Statement and should not be considered a part of this Proxy Statement or any other filing that space limitationswe make it necessarywith the U.S. Securities and Exchange Commission.
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For admission to the meeting, each stockholder may be asked to present valid picture identification, such as a driver’s license or passport, and proof of stock ownership as of the Record Date, such as the enclosed proxy card or a brokerage statement reflecting stock ownership. Cameras, recording devices and other electronic devices will not be permitted at the meeting.
If you do not plan on attending the meeting, please vote your shares via the Internet, by phone or by signing and dating the enclosed proxy and return it in the business envelope provided. Your vote is very important.
| By the Order of the Board of Directors: | ||||
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| | | | /s/ Jeffrey Holman | |
| | | | Jeffrey Holman | |
| | | | Chairman of the Board and Chief Executive Officer |
Dated: February [__], 2016
Whether or not you expect to attend in person, we urge you to vote your shares at your earliest convenience. This will ensure the presence of a quorum at the meeting. Promptly voting your shares via the Internet, by phone or by signing, dating, and returning the enclosed proxy card will save us the expenses and extra work of additional solicitation. An addressed envelope for which no postage is required if mailed in the United States is enclosed if you wish to vote by mail. Submitting your proxy now will not prevent you from voting your shares at the meeting if you desire to do so, as your proxy is revocable at your option.
Your vote is important, so please act today!
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| NOTICE OF SPECIAL MEETING OF STOCKHOLDERS | | | | | | | |
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Why is the Company doing a reverse stock split?
On February 17, 2016, the Company’s Common Stock was suspended from The Nasdaq Capital Market and is now quoted on the OTC Pink-Current Information Tier. The Company is seeking to meet the requirements for quotation on the OTCQX or the OTCQB to comply with certain conditions of the Company’s Series A Warrants. The quotation standards for the OTCQX and the OTCQB require, among other things, that companies maintain a minimum closing bid price of $0.01 per share for at least five consecutive trading days. The Company believes that a reverse stock split will increase the stock price of shares of its Common Stock and increase the likelihood that the Company will meet the required OTCQX or OTCQB requirements.
preferred stock which is entitled to vote.
meeting?
(1)
(2) (3) Shares held in your name as the stockholder of record may be voted by you in person at the Special Meeting. Shares held beneficially in street name may be voted by you in person at the Special Meeting only if you obtain a legal proxy from the broker, bank, trustee, or nominee that holds your shares giving you the right to vote the shares. Even if you plan to attend the Special Meeting, we recommend that you also submit your proxy or voting instructions as described below so that your vote will be counted if you later decide not to attend the meeting.Common Stockstock entitled to vote, as of the Record Date,record date, are represented in person or by proxy. Shares owned by Vapor are not considered outstanding or considered to be present at the Special Meeting. Broker non-votes (because there are routine matters presented at the Special Meeting) and abstentions are counted as present for the purpose of determining the existence of a quorum.
that proposal.
What if I abstain from voting?
What effect does a broker non-vote have?
Brokers and other intermediaries, holding shares of Common Stock in street name for their customers, are generally required to vote such shares in“FOR” approval, abstentions will adversely affect the manner directed by their customers. If their customers do not give any direction, brokers may vote such shares on routine matters but not on non-routine matters. Our management believes that the Reverse Stock Split and the Adjournment Proposal are routine matters. Consequently, if customers do not give any direction, brokers will be permitted to vote shares of Common Stock at the Special Meeting in relation to these matters. However, we encourage you to submit your voting instructions to your broker to ensure your shares of Common Stock are voted at the Special Meeting.
Any shares of Common Stock represented at the Special Meeting but not voted (whether by abstention, broker non-vote or otherwise) with respect to the proposals to approve the Reverse Stock Split or the Adjournment Proposal will have the same effect as a vote AGAINSTsuch proposal.
Proposals | | | Vote Required | | | Broker Discretionary Vote Allowed | | | Effect of Abstentions on the Proposal | |
1. To approve | | | Majority of the outstanding voting shares | | No | | | Vote | ||
against | ||||||||||
What are the voting procedures?
In voting by proxy with regard to the proposals, you may vote in favor of each proposal or against each proposal, or in favor of some proposals and against others, or you may abstain from voting on any of these proposals. You should specify your respective choices on the accompanying proxy card or your vote instruction form.
record by such persons, and we may reimburse such persons for reasonable out of pocket expenses incurred by them in so doing. We have engaged Okapi Partners, LLC as proxy solicitor at an estimated expense of $8,000.
$12,000.
have dissenters’ (appraisal) rights?
be acted upon.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Except as indicateda group. Unless otherwise specified in footnotesthe notes to this table, we believe that the stockholders named in this table have sole voting and investment power with respect to all shares of common stock shown to be beneficially owned by them, based on information provided to us by such stockholders. Unless otherwise indicated, the address for each director and executive officer listedperson is: c/o Vapor Corp., 3001 Griffin Road, Dania Beach, Florida 33312.
Name of Beneficial Owner | Number of Common Share Equivalents Beneficially Owned1 | Percentage of Common Share Equivalents Beneficially Owned1 | ||||||
Name of Executive Officers and Directors: | ||||||||
Jeffrey Holman2 | 232,221 | * | ||||||
Christopher Santi3 | 23,000 | * | ||||||
Gregory Brauser4 | 207,719 | * | ||||||
Gina Hicks5 | 0 | 0 | % | |||||
William Conway III6 | 0 | 0 | % | |||||
Daniel MacLachlan7 | 0 | 0 | % | |||||
Nikhil Raman8 | 0 | 0 | % | |||||
All Executive Officers and Directors as a Group(7 Persons) | 542,757 | * | ||||||
Other Five Percent Stockholder: | ||||||||
[None] | [ | ] | [_____ | ]% |
Title of Class | | | Name and Address of Beneficial Owner | | | Amount and Nature of Beneficial Ownership(1) | | | Percent of Class(1) | | ||||||
Directors and Named Executive Officers: | | |||||||||||||||
Common Stock | | | Jeffrey Holman(2) | | | | | 3 | | | | | | * | | |
Common Stock | | | Gina Hicks(3) | | | | | 0 | | | | | | * | | |
Common Stock | | | Christopher Santi(4) | | | | | 3 | | | | | | * | | |
Common Stock | | | Gregory Brauser(5) | | | | | 9 | | | | | | * | | |
Common Stock | | | Clifford J. Friedman(6) | | | | | 0 | | | | | | * | | |
Common Stock | | | Anthony Panariello, M.D.(7) | | | | | 0 | | | | | | * | | |
Common Stock | | | All directors and executive officers as a group (6 persons)(8) | | | | | 15 | | | | | | * | | |
5% Stockholders: | | | | | ||||||||||||
Common Stock | | | Kevin Frija | | | | | 1,405,910,203 | | | | | | 28.12% | | |
Unless otherwise indicated in the footnotes to this table, Vapor believes that each of the stockholders named in the table has sole voting and investment power with respect to the shares of Common Stock indicated as beneficially owned by them. The table includes only vested securities or securities that will vest and become exercisable within 60 days. Represents less of the outstanding shares of common stock.1.[58,881,575]approximately 4.7 billion shares of Common Stock outstanding as of February [2],June 30, 2016, adjusted as required by rules of the SEC. Beneficial ownership is determined under the rules of the SEC and generally includes voting or investment power with respect to securities. Shares of Common Stock underlying options, warrants and convertible notes currently exercisable or convertible, or exercisable or convertible within 60 days are deemed outstanding for computing the percentage of the person holding such securities but are not deemed outstanding for computing the percentage of any other person.2Holman:Jeffrey Holman: A director and executive officer.3Hicks: Christopher An executive officer.8,000 vested options.4Gregory Brauser:A director andformer executive officer. Includes 6,924 shares of common stock underlying restricted stock units which are deliverable within 30 days.5Friedman: Gina Hicks: The chief financial officer.6William Conway III:A director.7Panariello: Daniel MacLachlan:A director.8Nikhil Raman: A director.6
1. AUTHORIZED SHARE INCREASE
settle all of the Series A Warrants in cash.
On January 22, 2016, we received notice thatAuthorized Share Increase?
On February 1, 2016, the Company’s stockholders authorized the Board to implement a reverse stock split of our Common Stock at a ratio of between 10 to 1 and 70 to 1. The Board expects to implement a reverse stock split at a ratio of 70 to 1 in order to meet the requirements for quotation on the OTCQX or the OTCQB to comply with certain conditionsholders of the Company’s Series A Warrants. Warrants upon exercise of the Series A Warrants;
Why didStock to settle the Board approveSeries A Warrants and we will be required to make cash payments with respect to the Reverseexercise of the Series A Warrants, which we estimate to be approximately $72.3 million. As of June 30, 2016, we had cash and cash equivalents of approximately $17 million and as of the date hereof we had insufficient cash and cash equivalents to settle all of the Series A Warrants in cash. To the extent our cash and cash equivalents are insufficient to enable us to make cash payments with respect to the exercise of the Series A Warrants, if we are unable to negotiate a settlement or restructuring with the holders of the Series A Warrants, we may be required to seek protection under the federal bankruptcy laws.
The Board believes that a reverse stock split wouldwe may be beneficial for the following reasons:
The following paragraph will be added to
Incorporation shall be amended to read as follows:
Authorized Share Increase?
Authorized Share Increase.
Authorized Share Increase?
Material Effects
UponAuthorized Share Increase
The Reverse Stock Split will not change the number of authorized shares of our Common Stock.
The Reverse Stock Split will affect all holders of our Common Stock uniformly and will not affect any stockholder’s percentage ownership interest in the Company (subject to the treatment of fractional shares). In addition, the Reverse Stock Split will not affect any holder of Common Stock’s proportionate voting power (subject to the treatment of fractional shares).
Based on our shares of Common Stock outstanding as of the Record Date, the principal effects of the Reverse Stock Split will be that the number of shares of our Common Stock issued and outstanding will be reduced from [58,881,575] shares as of the Record Date to a range of [5,888] shares (if a 1-for-10,000 ratio is chosen) or to [2,944] shares (if a 1-for-20,000 ratio is chosen), depending on the exact exchange ratio chosen by the Board and without giving effect to any rounding up of fractional shares.
The table below sets forth, as of [February 2], 2016 and for illustrative purposes only, certain effects of the potential ratios of between 1-for-10,000 and 1-for-20,000, inclusive, on our total outstanding Common Stock equivalents (without giving effect to the treatment of fractional shares).
In determining which ratio to implement, if any, following receipt of stockholder approval, our Board may consider, among other things, various factors such as:
The principal effects of the Reverse Stock Split will be as follows:
Possible Anti-Takeover Implications of the Reverse Stock Split
The issuance in the future of additional authorized shares of our Common Stock made available by the Reverse Stock Split may have the effect of diluting the earnings or loss per share and book value per share, as well as the ownership and voting rights of the holders of our then-outstanding shares of Common Stock. In addition, an increase in the number of authorized but unissued shares of our Common Stock due to the Reverse Stock Split may have a potential anti-takeover effect, as our ability to issue additional shares could be used to thwart persons, or otherwise dilute the stock ownership of stockholders, seeking to control us. Further, the ability to issue our shares of Common Stock at a lower price may afford the Company added flexibility to deter a potential takeover of the Company by diluting the shares held by a potential suitor or issuing shares to a stockholder that will vote in accordance with the Board’s desires at a very low par value. A takeover may be beneficial to independent stockholders because, among other reasons, a potential suitor may offer such stockholders a premium for their shares of Common Stock compared to the then-existing market price. The Reverse Stock SplitAuthorized Share Increase is not being recommended by our Board as part of an anti-takeover strategy.
Reservation of Right to Delay the Filing of, or Abandon, the Reverse Stock Split and Par Value Change
If stockholder approval is obtained to effect the Reverse Stock Split, the Board will have the authority to implement the Reverse Stock Split on or before [April 15], 2017. However, the Board reserves the authority to decide, in its sole discretion, to abandon the Reverse Stock Split after such vote and before the effectiveness of the Reverse Stock Split if it determines that the Reverse Stock Split is no longer in the best interests of the Company and its stockholders.
Fractional Shares
Our stockholders will not receive fractional post-Reverse Stock Split shares in connection with the Reverse Stock Split. Instead, any fractional shares that would otherwise be issuable as a result of the Reverse Stock Split will be rounded up to the nearest whole share. No stockholders will receive cash in lieu of fractional shares.
No Going Private Transaction
The Reverse Stock Split is not intended as, and will not have the effect of, a “going private transaction” covered by Rule 13e-3 under the U.S. Exchange Act. Following the Reverse Stock Split, the Company will continue to be subject to the periodic reporting requirements of the Securities Exchange Act of 1934, as amended (the“Exchange Act”).
Effective Time
The proposed Reverse Stock Split would become effective on the time and date (the “Effective Time”) specified in the amendment to the Certificate of Incorporation effecting the Reverse Stock Split as filed with the office of the Secretary of State of Delaware. Except as explained above with respect to fractional shares, at the Effective Time, shares of our Common Stock issued and outstanding immediately prior thereto will be combined, automatically and without any action on the part of our stockholders, into one share of our Common Stock in accordance with the ratio of between 1 for 10,000 and 1 for 20,000.
After the Effective Time, our Common Stock will have a new committee on uniform securities identification procedures (“CUSIP”) number, which is a number used to identify our equity securities, and stock certificates with the older CUSIP numbers will need to be exchanged for stock certificates with the new CUSIP numbers by following the procedures described below.
After the Effective Time, we will continue to be subject to periodic reporting and other requirements of the Exchange Act.
Procedures for effecting the Reverse Stock Split and Exchange of Stock Certificates
If the Company’s stockholders approve the Reverse Stock Split and the Board determines that it is in the Company’s best interest to effect the Reverse Stock Split, the Reverse Stock Split would become effective at such time as the amendment to the Certificate of Incorporation, the form of which is attached as Appendix B to this Proxy Statement, is filed with the Secretary of State of Delaware or such time and date as stated therein when filed.
As soon as practicable after the effective date of the Reverse Stock Split, the Company will notify its stockholders that the Reverse Stock Split has been implemented. Equity Stock Transfer, LLC, the Company’s transfer agent, will act as exchange agent for purposes of implementing the exchange of stock certificates. Holders of pre-Reverse Stock Split shares of our Common Stock will be asked to surrender to the exchange agent certificates representing pre-Reverse Stock Split shares of our Common Stock in accordance with the procedures to be set forth in a letter of transmittal that will be delivered to the Company’s common stockholders. No new certificates will be issued to a stockholder until the stockholder has surrendered to the exchange agent his, her or its outstanding certificate(s) together with the properly completed and executed letter of transmittal. STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATES AND SHOULD NOT SUBMIT ANY CERTIFICATES UNTIL REQUESTED TO DO SO. Stockholders whose shares are held by their stockbroker do not need to submit old share certificates for exchange. These shares will automatically reflect the new quantity of shares based on the Reverse Stock Split. Beginning on the effective date of the Reverse Stock Split, each certificate representing pre-Reverse Stock Split shares will be deemed for all corporate purposes to evidence ownership of post-Reverse Stock Split shares.
Effect on Registered and Beneficial Holders of Common Stock
Upon the effectiveness of the Reverse Stock Split, shares of our Common Stock held by stockholders that hold their shares through a broker or other nominee will be treated in the same manner as shares held by registered stockholders that hold their shares in their names. Brokers and other nominees that hold shares of our Common Stock will be instructed to effect the Reverse Stock Split for the beneficial owners of such shares. However, those brokers or other nominees may implement different procedures than those to be followed by registered stockholders
for processing the Reverse Stock Split. Stockholders whose shares of our Common Stock are held in the name of a broker or other nominee are encouraged to contact their broker or other nominee with any questions regarding the procedure of implementing the Reverse Stock Split with respect to their shares.
Effect on Registered “Book-Entry” Holders of Our Common Stock
Registered holders of shares of our Common Stock may hold some or all of their shares electronically in book-entry form under the direct registration system for the securities. Those stockholders will not have stock certificates evidencing their ownership of shares of our Common Stock, but generally have a statement reflecting the number of shares registered in their accounts.
Stockholders that hold registered shares of our Common Stock in book-entry form do not need to take any action to receive post-Reverse Stock Split shares. Any such stockholder that is entitled to post-Reverse Stock Split shares will automatically receive, at the stockholder’s address of record, a transaction statement indicating the number of post-Reverse Stock Split shares held following the implementation of the Reverse Stock Split.
Dissenters’ Rights
Our stockholders will not be entitled to dissenters’ rights with respect to the proposed amendment to the Certificate of Incorporation in connection with the Reverse Stock Split.
No Effect on Authorized Preferred Stock
Effect on Dividends
| | | | By the Order of the Board of Directors: | |
| | | | /s/ Jeffrey Holman Jeffrey Holman Chairman of the Board and Chief Executive Officer | |
Accounting Matters
The Reverse Stock Split will change the par valueprovisions of the Corporation’s Certificate of Incorporation, as amended. The Board of Directors is further authorized to increase or decrease (but not below the number of such shares of our Common Stock andsuch class or series then outstanding) the number of shares of Common Stock issued and outstanding. As a result, as of the effective time of the Reverse Stock Split, the stated capital attributableany such class or series subsequent to the shares of our Common Stock on our balance sheet will be reduced proportionately based on the ratio chosen by the Board for the Reverse Stock Split to reflect the new number of shares outstanding and the new par value, and the additional paid-in capital account will be credited with the amount by which the stated capital is reduced. The per share net income or loss will be restated because there will be fewer shares of Common Stock outstanding.
Effect on Our Preferred Shares, Options and Warrants
If the Reverse Stock Split is effected, the numberissuance of shares of Common Stock issuable upon exercisethat class or conversion of our outstanding preferred shares, stock options (including shares reserved for issuance under the Company’s stock plans) and warrants will be proportionately adjusted by the applicable administrator, using the ratio as the Reverse Stock Split, rounded up to the nearest whole share. In connection with the Reverse Stock Split, the Board or the applicable administrator will implement only applicable technical, conforming changes to the securities, including ratably reducing the authorized shares of Common Stock available for awards under the Company’s stock plans. In addition, the conversion price for each outstanding preferred shares and the exercise price for each outstanding stock option and warrant would be increased in inverse proportion to the split ratio such that upon an conversion or exercise, the aggregate conversion price for conversion of preferred stock and the aggregate exercise price payable by the optionee or warrantholder to the Company for the shares subject to the option or warrant would remain approximately the same as the aggregate exercise price prior to the Reverse Stock Split.
Interests of Directors and Executive Officers
Our directors and executive officers do not have substantial interests, directly or indirectly, in the matters set forth in this proposal except to the extent of their ownership of shares of our Common Stock or any other of our securities.
Certain Material U.S. Federal Income Tax Consequences of the Reverse Stock Split
The following is a summary of material United States federal income tax consequences of the Reverse Stock Split to holders of our Common Stock. Except where noted, this summary deals only with our Common Stock that is held as a capital asset.
This summary is based upon provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and United States Treasury regulations, rulings and judicial decisions as of the date hereof. Those authorities may be changed, perhaps retroactively, so as to result in United States federal income tax consequences different from those summarized below.
This summary does not address all aspects of United States federal income taxes that may be applicable to holders of Common Stock and does not deal with non-U.S., state, local or other tax considerations that may be relevant to stockholders in light of their particular circumstances. In addition, it does not represent a detailed description of the United States federal income tax consequences applicable to you if you are subject to special treatment under the United States federal income tax laws (including if you are a dealer in securities or currencies; a financial institution; a regulated investment company; a real estate investment trust; an insurance company; a tax-exempt organization; a person holding shares as part of a hedging, integrated or conversion transaction, a constructive sale or a straddle; a trader in securities that has elected the mark-to-market method of accounting for your securities; a person liable for alternative minimum tax; a person who owns or is deemed to own 10% or more of our voting stock; a partnership or other pass-through entity for United States federal income tax purposes; a person whose “functional currency” is not the United States dollar; a United States expatriate; a “controlled foreign corporation”; or a “passive foreign investment company”).
We cannot assure you that a change in law will not alter significantly the tax considerations that we describe in this summary. No ruling from the Internal Revenue Service or opinion of counsel will be obtained regarding the federal income tax consequences to stockholders as a result of the Reverse Stock Split.
If a partnership (or other entity treated as a partnership for United States federal income tax purposes) holds our Common Stock, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding our Common Stock, you should consult your own tax advisors.
We believe that the Reverse Stock Split, if implemented, would be a tax-free recapitalization under the Code. If the Reverse Stock Split qualifies as a tax-free recapitalization under the Code, then, generally, for United States federal income tax purposes, no gain or loss will be recognized by the Company in connection with the Reverse Stock Split, and no gain or loss will be recognized by stockholders that exchange their shares of pre-split Common Stock for shares of post-split Common Stock. The post-split Common Stock in the hands of a stockholder following the Reverse Stock Split will have an aggregate tax basis equal to the aggregate tax basis of the pre-split Common Stock held by that stockholder immediately prior to the Reverse Stock Split. A stockholder’s holding period for the post-split Common Stock generally will be the same as the holding period for the pre-split Common Stock exchanged therefor.
Alternative characterizations of the Reverse Stock Split are possible. For example, while the Reverse Stock Split, if implemented, would generally be treated as a tax-free recapitalization under the Code, stockholders whose fractional shares resulting from the Reverse Stock Split are rounded up to the nearest whole share may recognize gain for United States federal income tax purposes equal to the value of the additional fractional share. However, we believe that, in such case, the resulting tax liability may not be material in view of the low value of such fractional interest. Stockholders should consult their own tax advisors regarding the characterization of the Reverse Stock Split for United States federal income tax purposes.
Certain Risks Associated with the Reverse Stock Split
The Board believes that the Reverse Stock Split will increase the price level of our shares of Common Stock and, as a result, may enable the Company to gain and maintain quotation of our Common Stock on the OTCQX or OTCQB. Given the volatility and fluctuations in the capital markets, however, the Board believes that the likelihood of our stock price increasing to meet the OTCQX or OTCQB quotation requirements without the Reverse Stock Split is remote and that the Company likely will have to take additional actions to comply with these requirements. There are a number of risks associated with the Reverse Stock Split, including as follows:
THE BOARD RECOMMENDS A VOTE “FOR” THE AMENDMENT OF THE CERTIFICATE OF INCORPORATION TO EFFECT THE REVERSE STOCK SPLIT.
PROPOSAL 2—ADJOURNMENT PROPOSAL
Introduction
If at the Special Meeting the number of shares of Common Stock present or represented and voting in favor of the Reverse Stock Split is insufficient to approve the Reverse Stock Split, management may move to adjourn, postpone or continue the Special Meeting in order to enable the Board to continue to solicit additional proxies in favor of the proposed the Reverse Stock Split.
In this Adjournment Proposal, we are asking you to authorize the holder of any proxy solicited by the Board to vote in favor of adjourning, postponing or continuing the Special Meeting and any later adjournments. If the stockholders approve the Adjournment Proposal, we could adjourn, postpone or continue the Special Meeting, and any adjourned session of the Special Meeting, to use the additional time to solicit additional proxies in favor of the Reverse Stock Split. Among other things, approval of the Adjournment Proposal could mean that, even if proxies representing a sufficient number of votes against the Reverse Stock Split have been received, we could adjourn, postpone or continue the Special Meeting without a vote on the Reverse Stock Split and seek to convince the holders of those shares to change their votes to votes in favor of the Reverse Stock Split.
What vote is required to approve the Adjournment Proposal?
The Adjournment Proposal will be approved if a majority of the shares of Common Stock present in person or by proxy votes FOR the proposal. Accordingly, abstentions and broker non-votes, if any, will be counted as votes AGAINST the Adjournment Proposal. No proxy that is specifically marked AGAINST the Reverse Stock Split will be voted in favor of the Adjournment Proposal, unless it is specifically marked FOR the discretionary authority to adjourn, postpone or continue the Special Meeting to a later date.
Why am I being asked to vote on the Adjournment Proposal?
The Board believes that if the number of shares of Common Stock present or represented at the Special Meeting and voting in favor of the Reverse Stock Split proposal are insufficient to approve such proposal, it is in the best interests of the stockholders to enable the Board, for a limited period of time, to continue to seek to obtain a sufficient number of additional votes to approve the Reverse Stock Split.
THE BOARD RECOMMENDS A VOTE “FOR” APPROVAL OF THE ADJOURNMENT PROPOSAL.
The Company is unaware of any business, other than described in this Proxy Statement, that may be considered at the Special Meeting. If any other matters should properly come before the Special Meeting, it is the intention of the persons named in the accompanying form of proxy to vote the proxies held by them in accordance with their best judgment.
To assure the presence of the necessary quorum and to vote on the matters to come before the Special Meeting, please promptly indicate your choices via the Internet, by phone or by mail, according to the procedures described on the proxy card. The submission of a proxy via the internet, by phone or by mail does not prevent you from attending and voting at the Special Meeting.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and, in accordance therewith, files reports and other information with the Securities and Exchange Commission (the“SEC”). Any interested party may inspect information filed by the Company, without charge, at the public reference facilities of the SEC at its principal office at 100 F. Street, N.E., Washington, D.C. 20549. Any interested party may obtain copies of all or any portion of the information filed by the Company at prescribed rates from the Public Reference Section of the SEC at its principal office at 100 F. Street, N.E., Washington, D.C. 20549. In addition, the SEC maintains an Internet site that contains reports, proxy and information statements and other information regarding the Company and other registrants that file electronically with the SEC athttp://www.sec.gov.
The Company’s Common Stock is quoted on the OTC Pink-Current Information Tier under the symbol “VPCO”.
ANNEXES
ANNEX A Form of Proxy Card
ANNEX BThis Certificate of Amendment to Certificate of Incorporation regardingwas duly adopted and approved by the Reverse Stock Split
| | | VAPOR CORP. | | ||||
| | | | By: | | | | |
| | | | | | , | | |
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February [__], 2016
Please sign and return the enclosed form of proxy promptly. If you decide to attend the meeting, you may, if you wish, revoke the proxy and vote your shares in person.
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MARK “X” HERE IF YOU PLAN TO ATTEND THE MEETING: ☐ MARK HERE FOR ADDRESS CHANGE ☐ New Address (if applicable): IMPORTANT: |
IMPORTANT:Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person.
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(Second Signature if held jointly) | |
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This proxy, when properly executed, will be voted in the manner directed herein. If no such direction is made, this proxy will be voted “FOR” Proposals 1 and 2.Proposal 1. If any other business is presented at the meeting, this proxy will be voted by the above-named proxies at the direction of the Board of Directors. At the present time, the Board of Directors knows of no other business to be presented at the meeting.
The Board of Directors recommends you vote FOR Proposals 1 and 2.
1. To approve | ||||||
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CERTIFICATE OF AMENDMENT TO CERTIFICATE OF INCORPORATIONOF VAPOR CORP.
Vapor Corp. (the “Company”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Delaware General Corporation Law”), hereby certifies as follows:
1. Pursuant to Sections 242 and 228 of the Delaware General Corporation Law, the amendment herein set forth has been duly approved by the Board of Directors and holders of a majority of the outstanding capital stock of the Company.
2. Section 4 of theto Vapor’s Certificate of Incorporation is amended by addingto increase the following paragraph:
“Upon the effectiveness of this Certificate of Amendment to the Certificate of Incorporation of the Corporation, every [number of shares]authorized shares of the Corporation’s issued and outstanding Common Stock, par value $0.0001 per share, that are issued and outstanding immediately priorcommon stock to [date] shall, automatically and without any further action on the part of the Corporation or the holder thereof, be combined into one (1) validly issued, fully paid and non-assessable share of the Corporation’s Common Stock, par value $0.0001 per share, provided that in the event a stockholder would otherwise be entitled to a fraction of a share of Common Stock pursuant to the provisions of this Article, such stockholder shall receive one whole share of Common Stock in lieu of such fractional share and no fractional shares shall be issued.”
3. The foregoing amendment shall be effective as of ____ on _________, 2016.
4. This Certificate of Amendment to Certificate of Incorporation was duly adopted and approved by the stockholders of this Company on the _ day of _______, 2016 in accordance with Section 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment to Certificate of Incorporation as of the _____ day of _____, 2016.
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