As filed with the
Securities and Exchange Commission on April 17, 2015
Registration No. 333-_________
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VAPOR CORP.
(Exact name of registrant
as specified in its charter)
| Delaware |
|
2100 |
|
84-1070932 |
(State or other
Jurisdiction of
Incorporation of Organization) |
|
(Primary Standard
Industrial
Classification Code Number) |
|
(I.R.S. Employer
Identification No.) |
3001 Griffin Road
Dania Beach, Florida
33312
(888) 766-5351
(Address, including zip
code, and telephone number, including area code, of registrant’s principal executive offices)
Jeffrey E. Holman,
President and Chief Executive Officer
Vapor Corp.
3001 Griffin Road
Dania Beach, Florida 33312
(888) 766-5351
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Michael D. Harris,
Esq.
Leah E. Hutton, Esq.
Nason, Yeager, Gerson,
White & Lioce, P.A.
1645 Palm Beach Lakes
Blvd., Suite 1200
West Palm Beach, Florida
33401
(561) 686-3307
Approximate date of commencement
of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities
being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, check the following box: [X]
If this Form is filed
to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
[ ]
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a
post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities
Act registration number of the earlier effective registration statement for the same offering. [ ]
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.
See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer |
[ ] |
Accelerated filer |
[ ] |
| Non-accelerated filer |
[ ] |
Smaller reporting company |
[X] |
CALCULATION OF REGISTRATION
FEE
| Title of securities to be registered | |
Amount to be
registered | | |
Proposed maximum
offering price per
share | | |
Proposed
maximum
aggregate
offering price | | |
Amount of
registration fee | |
| Common Stock, $0.001 par value per share | |
| 6,178,160 | | |
$ | 0.78 | (1) | |
$ | 4,818,965 | (1) | |
$ | 560 | |
| | |
| | | |
| | | |
| | | |
| | |
| Total | |
| 6,178,160 | | |
$ | 0.78 | | |
$ | 4,818,965 | | |
$ | 560 | |
| (1) |
Calculated solely
for the purpose of determining the registration fee pursuant to Rule 457(c) of the Securities Act of 1933, based on the average
of the high and low prices of the registrant’s common stock quoted on the Nasdaq Capital Market on April 14, 2015. |
The information in this prospectus is not
complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange
Commission of which this prospectus is a part becomes effective. This prospectus is not an offer to sell these securities and
it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion,
Dated April 17, 2015
VAPOR CORP.
PROSPECTUS
6,178,160 Shares of
Common Stock
This prospectus relates
to the sale of (i) up to 3,432,314 shares of our common stock and (ii) 2,745,846 shares of common stock issuable upon exercise
of warrants, each of which may be offered by the selling shareholders identified in this prospectus. We will not receive any proceeds
from the sales of shares of our common stock by the selling shareholders named on page [6]. We will, however, receive proceeds
in connection with the exercise of the warrants referred to above.
Our common stock trades
on the Nasdaq Stock Market under the symbol “VPCO”. As of April 16, 2015, the closing price of our common stock was
$0.7601 per share.
The common stock offered
in this prospectus involves a high degree of risk. See “Risk Factors” beginning on page [6] of this prospectus to
read about factors you should consider before buying shares of our common stock.
No underwriter or other
person has been engaged to facilitate the sale of shares of our common stock in this offering. The selling shareholders may be
deemed underwriters of the shares of our common stock that they are offering within the meaning of the Securities Act of 1933.
We will bear all costs, expenses and fees in connection with the registration of these shares.
The selling shareholders
are offering these shares of common stock. The selling shareholders may sell all or a portion of these shares from time to time
in market transactions through any market on which our common stock is then traded, in negotiated transactions or otherwise, and
at prices and on terms that will be determined by the then prevailing market price or at negotiated prices directly or through
a broker or brokers, who may act as agent or as principal or by a combination of such methods of sale. The selling shareholders
will receive all proceeds from the sale of the common stock. We will receive proceeds from the exercise of the warrants if the
warrants are exercised, which proceeds will be used for working capital and general corporate purposes. For additional information
on the methods of sale, you should refer to the section entitled “Plan of Distribution.”
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined whether
this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus
is ________________, 2015
TABLE OF CONTENTS
You should rely only on information contained
in this prospectus. We have not authorized anyone to provide you with information that is different from that contained in this
prospectus. The selling shareholders are not offering to sell or seeking offers to buy shares of common stock in jurisdictions
where offers and sales are not permitted. The information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any sale of our common stock. We are responsible for updating
this prospectus to ensure that all material information is included and will update this prospectus to the extent required by
law.
PROSPECTUS
SUMMARY
This summary highlights
information contained elsewhere in this prospectus. You should read the entire prospectus carefully including the section entitled
“Risk Factors” before making an investment decision. Vapor Corp. is referred to throughout this prospectus as “Vapor,”
“the Company,” “we,” “our” or “us.”
Our Company
We design, market, and
distribute vaporizers, e-liquids, electronic cigarettes and accessories under the emagine vaporTM, Krave®, Fifty-One®
(also known as Smoke 51), VaporX®, Hookah Stix® and Alternacig® brands. We operate retail stores under the emagine
vaporTM and The Vape Store names. We also design and develop private label brands for our distribution customers.
Third party manufacturers manufacture our products to meet our design specifications. We market our products as alternatives to
traditional tobacco cigarettes and cigars. In 2014, as a response to market product demand changes, Vapor began to shift its primary
focus from electronic cigarettes to vaporizers. In March 2015, we merged with Vaporin, Inc. (“Vaporin”) in a transaction
in which we issued Vaporin 13,591,533 shares of our common stock in exchange for 100% of the outstanding common stock of Vaporin.
We presently operate nine retail stores and expect to open two additional retail stores in the near future.
Our products include “vaporizers”
and “electronic cigarettes,” or “e-cigarettes,” which are battery-powered products that enable users to
inhale nicotine vapor without smoke, tar, ash, or carbon monoxide. When a user draws air through the vaporizer or electronic
cigarette, the air flow is detected by a sensor, which activates a heating element that vaporizes the solution stored in the mouthpiece/cartridge,
the solution is then vaporized and it is this vapor that is inhaled by the user. The cartridge contains either a nicotine solution
or a nicotine free solution, either of which may be flavored.
Our in-house engineering
and graphic design teams work to provide aesthetically pleasing, technologically advanced affordable vaporizers and e-cigarette
options. We are in the process of preparing to commercialize additional brands which we intend to market to new customers and
demographics.
Corporate Information
We are a Delaware corporation.
Our principal executive offices are located at 3001 Griffin Road, Dania Beach, Florida 33312, and our telephone number is (888)
766-5351. Our website is located at www.vapor-corp.com. The information on our website is not incorporated into this prospectus.
THE
OFFERING
| Common stock outstanding prior
to the offering: |
|
34,018,258
|
| |
|
|
| Common stock offered by the selling shareholders: |
|
6,178,160 shares
(1) |
| |
|
|
| Common stock outstanding immediately following
the offering: |
|
36,764,105 shares (2) |
| |
|
|
| Use of proceeds: |
|
We will not receive
any proceeds from the sale of the shares of common stock by the selling shareholders but will receive proceeds from the exercise
of the warrants if the warrants are exercised, which proceeds will be used for working capital and general corporate purposes. |
| |
|
|
| Risk Factors: |
|
See “Risk Factors”
beginning on page [6] of this prospectus for a discussion
of factors you should carefully consider before deciding to invest in shares of our common stock. |
| |
|
|
| Stock Symbol: |
|
Nasdaq: VPCO |
(1) Except for the 2,745,846 shares underlying
the warrants, all of the shares offered under this prospectus have been issued and are outstanding.
(2) The number of shares of common stock to
be outstanding after this offering excludes:
| |
● |
a total of 1,370,234
shares of common stock issuable upon the exercise of outstanding stock options; |
| |
|
|
| |
● |
a total of 1,890,237
shares of common stock issuable upon the delivery of restricted stock units, a portion of which are presently deliverable; |
| |
|
|
| |
● |
a total of 1,464,053
shares of common stock issuable upon the exercise of outstanding warrants, not including the 2,745,846 shares underlying warrants
registered herein; |
| |
|
|
| |
● |
a total of 1,617,845
shares of common stock issuable upon the conversion of principal amounts of convertible notes and additional shares issuable
on the conversion of accrued interest; and |
| |
|
|
| |
● |
approximately 913,500
shares of common stock reserved for future issuance under our 2009 Equity Incentive Plan. |
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus including the incorporated
documents contains forward-looking statements. All statements other than statements of historical facts, including statements
regarding our future financial position, liquidity, business strategy and plans and objectives of management for future operations,
are forward-looking statements. The words “believe,” “may,” “estimate,” “continue,”
“anticipate,” “intend,” “should,” “plan,” “could,” “target,”
“potential,” “is likely,” “will,” “expect” and similar expressions, as they relate
to us, are intended to identify forward-looking statements. We have based these forward-looking statements largely on our current
expectations and projections about future events and financial trends that we believe may affect our financial condition, results
of operations, business strategy and financial needs.
The results anticipated by any or all of these
forward-looking statements might not occur. Important factors, uncertainties and risks that may cause actual results to differ
materially from these forward-looking statements are contained in the risk factors that follow and the incorporated documents.
We undertake no obligation to publicly update or revise any forward-looking statements, whether as the result of new information,
future events or otherwise. For more information regarding some of the ongoing risks and uncertainties of our business, see the
risk factors that follow and that are disclosed in our incorporated documents.
RISK
FACTORS
Investing in our securities
involves substantial risks. Before purchasing the common stock offered by this prospectus you should consider carefully the risk
factors incorporated by reference in this prospectus from our Annual Report on Form 10-K for the year ended December 31, 2014
filed with the SEC on March 31, 2015, as well as the risks, uncertainties and additional information (i) set forth in our SEC
reports on Forms 10-K, 10-Q and 8-K and in the other documents incorporated by reference in this prospectus that we file with
the SEC after the date of this prospectus and which are deemed incorporated by reference in this prospectus, and (ii) the information
contained in any applicable prospectus supplement. For a description of these reports and documents, and information about where
you can find them, see “Incorporation of Certain Documents By Reference.” The risks and uncertainties we discuss in
this prospectus and in the documents incorporated by reference in this prospectus are those that we currently believe may materially
affect our company. Additional risks not presently known, or currently deemed immaterial, also could materially and adversely
affect our financial condition, results of operations, business and prospects.
USE
OF PROCEEDS
In connection with registration
rights agreements with the selling shareholders, we are registering: (i) 3,432,314 shares of our common stock and (ii) 2,745,846
shares of common stock issuable upon exercise of warrants, each of which may be offered by the selling shareholders identified
in this prospectus. We will not receive any proceeds from the sale of the shares of our common stock offered for resale by them
under this prospectus. We will, however, receive proceeds from the exercise of warrants which will be used for working capital
and general corporate purposes.
SELLING
SHAREHOLDERS
The following table provides
information about each selling shareholder listing how many shares of our common stock they own on the date of this prospectus,
how many shares are offered for sale by this prospectus, and the number and percentage of outstanding shares each selling
shareholder will own after the offering assuming all shares covered by this prospectus are sold. Other than Mr. Barry Honig and
Mr. Michael Brauser, each of whom were beneficial owners of over 5% of our outstanding common stock for a period during the past
three years, none of the selling shareholders have had any position, office, or material relationship with us or our affiliates
within the past three years. The information concerning beneficial ownership has been taken from our stock transfer records and
information provided by the selling shareholders. Information concerning the selling shareholders may change from time to time,
and any changed information will be set forth if and when required in prospectus supplements or other appropriate forms permitted
to be used by the SEC.
We do not know when or
in what amounts a selling shareholder may offer shares for sale. The selling shareholders may not sell any or all of the shares
offered by this prospectus. Because the selling shareholders may offer all or some of the shares, and because there are currently
no agreements, arrangements or understandings with respect to the sale of any of the shares, we cannot estimate the number of
the shares that will be held by the selling shareholders after completion of the offering. However, for purposes of this table,
we have assumed that, after completion of the offering, all of the shares covered by this prospectus will be sold by the selling
shareholder.
Unless otherwise indicated,
the selling shareholders have sole voting and investment power with respect to their shares of common stock. The information
contained in the table below is based upon information contained in transfer agent records and/or information provided to us by
the selling shareholders, and we have not independently verified this information. The selling shareholders may have sold,
transferred or otherwise disposed of, or may sell, transfer or otherwise dispose of, at any time or from time to time since the
date on which it provided the information regarding the shares beneficially owned, all or a portion of the shares beneficially
owned in transactions exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities
Act”).
The number of shares outstanding
and the percentages of beneficial ownership are based on 34,018,258 shares of our common stock issued and outstanding as
of April 17, 2015. For the purposes of the following table, the number of shares of common stock beneficially owned has been determined
in accordance with Rule 13d-3 under the Securities Exchange Act of 1934 (the “Exchange Act”), and such information
is not necessarily indicative of beneficial ownership for any other purpose. Under Rule 13d-3, beneficial ownership includes any
shares as to which a selling shareholder has sole or shared voting power or investment power and also any shares which that selling
shareholder has the right to acquire within 60 days of the date of this prospectus through the exercise of any stock option, warrant
or other rights.
| Name | |
Number of
securities
beneficially
owned before
offering | | |
Number of
securities
to be
offered | | |
Number of
securities
owned after
offering | | |
Percentage of
securities
beneficially
owned after
offering | |
| | |
| | |
| | |
| | |
| |
| Alpha Capital Anstalt (1) | |
| 2,115,613 | | |
| 1,323,525 | | |
| 792,088 | | |
| 2.3 | % |
| | |
| | | |
| | | |
| | | |
| | |
| Michael Brauser (2) | |
| 2,512,156 | | |
| 882,353 | | |
| 1,629,803 | | |
| 4.8 | % |
| | |
| | | |
| | | |
| | | |
| | |
| John W. Fitzgerald (3) | |
| 88,236 | | |
| 88,236 | | |
| 0 | | |
| * | |
| | |
| | | |
| | | |
| | | |
| | |
| Darren Goodrich, Inc. 401K PST (4) | |
| 97,941 | | |
| 97,941 | | |
| 0 | | |
| * | |
| | |
| | | |
| | | |
| | | |
| | |
| Frost Gamma Investments Trust (5) | |
| 1,301,189 | | |
| 441,176 | | |
| 860,013 | | |
| 2.5 | % |
| | |
| | | |
| | | |
| | | |
| | |
| Heller Family Foundation Inc. (6) | |
| 663,435 | | |
| 441,176 | | |
| 222,259 | | |
| * | |
| | |
| | | |
| | | |
| | | |
| | |
| Barry Honig (7) | |
| 2,134,306 | | |
| 882,353 | | |
| 1,251,953 | | |
| 3.6 | % |
| | |
| | | |
| | | |
| | | |
| | |
| Horberg Enterprises Limited Partnership (8) | |
| 384,456 | | |
| 264,706 | | |
| 119,750 | | |
| * | |
| | |
| | | |
| | | |
| | | |
| | |
| Marlin Capital Investments, LLC (9) | |
| 78,529 | | |
| 78,529 | | |
| 0 | | |
| * | |
| | |
| | | |
| | | |
| | | |
| | |
| Melechdavid Inc. (10) | |
| 1,262,164 | | |
| 264,706 | | |
| 997,458 | | |
| 2.9 | % |
| | |
| | | |
| | | |
| | | |
| | |
| Richard Molinsky (11) | |
| 44,118 | | |
| 44,118 | | |
| 0 | | |
| * | |
| | |
| | | |
| | | |
| | | |
| | |
| Palladium Capital Advisors, LLC (12) | |
| 617,647 | | |
| 617,647 | | |
| 0 | | |
| * | |
| | |
| | | |
| | | |
| | | |
| | |
| Sandor Capital Master Fund (13) | |
| 866,999 | | |
| 441,176 | | |
| 425,823 | | |
| 1.3 | % |
| | |
| | | |
| | | |
| | | |
| | |
| Stuart Smith (14) | |
| 358,180 | | |
| 264,706 | | |
| 93,474 | | |
| * | |
| | |
| | | |
| | | |
| | | |
| | |
| Daniel Waldman (15) | |
| 45,812 | | |
| 45,812 | | |
| 0 | | |
| * | |
| |
(1) |
Securities to be offered includes
588,231 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Beneficial
ownership also includes 46,737 shares underlying additional warrants, and 454,545 shares underlying principal of the issuer’s
convertible notes, not including additional shares underlying accrued interest. Address is Lettstrasse 32, P.O. Box 1212,
FL-9490, Vaduz Furstentum Liechtenstein c/o LH Financial Services Corp., 510 Madison Avenue, Ste 1400, New York, NY 10022. |
| |
|
|
| |
(2) |
Securities to
be offered includes 392,157 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire
in March 2020. Mr. Brauser, through entities of which he is a trustee, also claims beneficial ownership of the securities
held by Marlin Capital Investments, LLC (“Marlin Capital”). Mr. Brauser’s total pre-offering beneficial
ownership includes (i) 173,770 shares held individually, (ii) 27,071 shares held with his spouse, (iii) the shares being offered
herein by each of Mr. Brauser and Marlin Capital, and (iv) an additional 1,350,433 shares held by entities of which Mr. Brauser
is trustee. Does not include 415,437 shares issuable upon delivery of restricted stock units. Address is 4400 Biscayne Blvd.,
Suite 850, Miami, FL 33137. |
| |
|
|
| |
(3) |
Securities to be offered includes
39,216 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Address
is 10100 88th Avenue, Pleasant Prairie, WI 53158. |
| |
|
|
| |
(4) |
Securities to be offered includes
43,529 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Address
is 225 John Street, Manhattan Beach, CA 90266. |
| |
|
|
| |
(5) |
Securities to be offered includes
196,078 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. All securities
shown are held by Frost Gamma Investments Trust, of which Phillip Frost M.D., is the trustee. Frost Gamma L.P. is the sole
and exclusive beneficiary of Frost Gamma Investments Trust. Dr. Frost is one of two limited partners of Frost Gamma L.P. The
general partner of Frost Gamma L.P. is Frost Gamma, Inc., and the sole shareholder of Frost Gamma, Inc. is Frost-Nevada Corporation.
Dr. Frost is also the sole shareholder of Frost-Nevada Corporation. Dr. Frost disclaims beneficial ownership of these securities,
except to the extent of any pecuniary interest therein and this disclosure shall not be deemed an admission that Dr. Frost
is the beneficial owner of these securities for purposes of Section 16 or for any other purpose. Address is 4400 Biscayne
Blvd., Miami, FL 33137. |
| |
|
|
| |
(6) |
Mr. Ronald Heller
has voting and dispositive power over the securities reported. Securities to be offered includes 196,078 shares of common
stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Mr. Heller, the trustee of Heller
Family Foundation, Inc., beneficially owns an additional 51,930 shares held by Heller Capital Partners. Address is 700 East
Palisades Avenue, Englewood Cliffs, NJ 07632. |
| |
|
|
| |
(7) |
Securities to be offered includes
392,157 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Mr. Honig,
through entities of which he is a trustee, also claims beneficial ownership of the securities held by Marlin Capital. Mr.
Honig’s total pre-offering beneficial ownership includes (i) 92,954 shares held individually, (ii) 295,455 shares underlying
principal of the issuer’s convertible notes, not including additional shares underlying accrued interest, (iii) the
shares being offered herein by each of Mr. Honig and Marlin Capital, and (iv) an additional 785,015 shares held by entities
of which Mr. Honig is trustee. Does not include 415,437 shares issuable upon delivery of restricted stock units. Address is
555 S. Federal Hwy #450, Boca Raton, FL 33433. |
| |
|
|
| |
(8) |
Securities to be offered includes
117,647 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Address
is 289 Prospect Avenue, Highland Park, IL 60035. |
| |
|
|
| |
(9) |
Securities to be offered includes
34,902 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Michael
Brauser and Barry Honig, through entities of which they are trustees, each claim beneficial ownership over the limited liability
company interests of Marlin Capital. Address is 555 S. Federal Hwy #450, Boca Raton, FL 33433. |
| |
|
|
| |
(10) |
Mr. Mark Groussman
has voting and dispositive power over the securities reported. Securities to be offered includes 117,647 shares of common
stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Also includes 51,930 shares underlying
additional warrants. Address is 5154 La Gorce Drive, Miami Beach, FL 33140. |
| |
|
|
| |
(11) |
Securities to be offered includes
19,608 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Address
is 51 Lord’s Hwy East, Weston, CT 06883. |
| |
|
|
| |
(12) |
Securities to be offered includes
274,510 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Address
is 230 Park Avenue, #539, New York, NY 10169. |
| |
|
|
| |
(13) |
Mr. John S. Lemak
has voting and dispositive power over the securities reported. Securities to be offered includes 196,078 shares of common
stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Address is 2828 Routh Street, Suite
500, Dallas, TX 75201. |
| |
|
|
| |
(14) |
Securities to be offered includes
117,647 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Address
is 100 South Pointe Drive #3304, Miami Beach, FL 33139. |
| |
|
|
| |
(15) |
Securities to be offered includes
20,361 shares of common stock issuable upon exercise of warrants at $1.275 per share, which expire in March 2020. Address
is 100 Riverside Drive, Apt.9D, New York, NY 10024. |
DESCRIPTION
OF SECURITIES
We are authorized to issue
50,000,000 shares of common stock, par value $0.001 per share, and 1,000,000 shares of preferred stock, par value $0.001 per share.
Common Stock
We are authorized to issue
50,000,000 shares of common stock, par value $0.001 per share. The holders of common stock are entitled to one vote per share
on all matters submitted to a vote of shareholders, including the election of directors. There is no cumulative voting in the
election of directors. The holders of common stock are entitled to any dividends that may be declared by the Board out of funds
legally available for payment of dividends subject to the prior rights of holders of preferred stock and any contractual restrictions
we have against the payment of dividends on common stock. In the event of our liquidation or dissolution, holders of common stock
are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences of any outstanding
shares of preferred stock. Holders of common stock have no preemptive rights and have no right to convert their common stock into
any other securities and there are no redemption provisions applicable to our common stock.
Preferred Stock
We are authorized to issue
1,000,000 shares of “blank check” preferred stock with designations, rights and preferences as may be determined from
time to time by our Board of Directors. We presently have no preferred stock issued and outstanding. For a description of how
issuance of our preferred stock could affect the rights of our shareholders, see “Certain Provisions of Delaware Law and
of Our Charter and Bylaws - Issuance of “blank check” Preferred Stock,” below.
Dividends
We have not paid dividends
on our common stock since inception and do not plan to pay dividends on our common stock in the foreseeable future.
Transfer Agent
We have appointed Island
Stock Transfer, as our transfer and warrant agent. Their contact information is: 100 Second Avenue South, Ste. 705S, St. Petersburg,
Florida 33701, phone number (727) 289-0010, facsimile (727) 289-0069, www.islandstocktransfer.com.
CERTAIN
PROVISIONS OF DELAWARE LAW AND OF OUR CHARTER AND BYLAWS
Anti-takeover Provisions
In general, Section 203
of the Delaware General Corporations Law (the “DGCL”) prohibits a Delaware corporation with a class of voting stock
listed on a national securities exchange or held of record by 2000 or more shareholders from engaging in a “business combination”
with an “interested shareholder” for a three-year period following the time that this shareholder becomes an interested
shareholder, unless the business combination is approved in a prescribed manner. A “business combination” includes,
among other things, a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested shareholder.
An “interested shareholder” is a person who, together with affiliates and associates, owns, or did own within three
years prior to the determination of interested shareholder status, 15% or more of the corporation’s voting stock. Under
Section 203, a business combination between a corporation and an interested shareholder is prohibited unless it satisfies one
of the following conditions:
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before the shareholder
became interested, the board of directors approved either the business combination or the transaction which resulted in the
shareholder becoming an interested shareholder; |
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upon consummation
of the transaction which resulted in the shareholder becoming an interested shareholder, the interested shareholder owned
at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes
of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock
plans, in some instances; or |
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● |
at or after the time
the shareholder became interested, the business combination was approved by the board of directors of the corporation and
authorized at an annual or special meeting of the shareholders by the affirmative vote of at least two-thirds of the outstanding
voting stock which is not owned by the interested shareholder. |
The DGCL permits a corporation to opt out
of, or choose not to be governed by, its anti-takeover statute by expressly stating so in its original certificate of incorporation
(or subsequent amendment to its certificate of incorporation or bylaws approved by its shareholders). The Vapor Certificate of
Incorporation contains a provision expressly opting out of the application of Section 203 of the DGCL; therefore the anti-takeover
statute does not apply to Vapor.
Issuance of “blank check” Preferred Stock
Our Certificate of Incorporation
authorizes the issuance of up to 1,000,000 shares of “blank check” preferred stock with designations, rights and preferences
as may be determined from time to time by our Board of Directors. Our Board is empowered, without shareholder approval, to issue
a series of preferred stock with dividend, liquidation, conversion, voting or other rights which could dilute the interest of,
or impair the voting power of, our common shareholders. The issuance of a series of preferred stock could be used as a method
of discouraging, delaying or preventing a change in control. For example, it would be possible for our Board of Directors to issue
preferred stock with voting or other rights or preferences that could impede the success of any attempt to effect a change in
control of our company.
Our Bylaws also allow
our Board of Directors to fix the number of directors. Our shareholders do not have cumulative voting in the election of directors.
Any aspect of the foregoing,
alone or together, could delay or prevent unsolicited takeovers and changes in control or changes in our management.
Shareholder Action by Written Consent
Our Bylaws provide for
action by our shareholders without a meeting with the written consent of shareholders holding the number of shares necessary to
approve such action if it were taken at a meeting of shareholders.
Special Shareholder Meetings
Under our Bylaws, the
Chairperson of our Board, our Chief Executive Officer and a majority of the number of total authorized directors (without regard
to vacancies) may call a special meeting of shareholders. In addition, a special meeting may be called by the shareholders of
the Company holding at least one-fourth of all shares entitled to vote at a meeting of shareholders. Our Bylaws establish that
no business may be transacted at a special meeting otherwise than as specified in the notice of meeting provided in advance to
shareholders, which must be delivered to shareholders between 10 and 60 days prior to the special meeting.
PLAN
OF DISTRIBUTION
We are registering the
shares of our common stock covered by this prospectus for the selling shareholders. Each selling shareholder of the securities
and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered
hereby on the Nasdaq Capital Market or any other stock exchange, market or trading facility on which the securities are traded
or in private transactions. These sales may be at fixed or negotiated prices. A selling shareholder may use any one or more of
the following methods when selling securities:
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ordinary brokerage
transactions and transactions in which the broker-dealer solicits purchasers; |
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block trades in which
the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal
to facilitate the transaction; |
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purchases by a broker-dealer
as principal and resale by the broker-dealer for its account; |
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an exchange distribution
in accordance with the rules of the applicable exchange; |
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privately negotiated
transactions; |
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settlement of short
sales; |
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in transactions through
broker-dealers that agree with the selling shareholders to sell a specified number of such securities at a stipulated price
per security; |
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through the writing
or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
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a combination of any
such methods of sale; or |
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any other method permitted
pursuant to applicable law. |
The selling shareholders
may also sell securities under Rule 144 under the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged
by the selling shareholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling shareholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction
not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction
a markup or markdown in compliance with FINRA IM-2440.
In connection with the
sale of the common stock therein, the selling shareholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The
selling shareholders may also sell securities short and deliver these securities to close out their short positions, or loan or
pledge the securities to broker-dealers that in turn may sell these securities. The selling shareholders may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require
the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such
broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction). The selling shareholders and any broker-dealers or agents that are involved in selling the securities may be deemed
to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. Each selling shareholder has informed the Company that it does
not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities.
The Company has agreed to indemnify the selling shareholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
We agreed to keep this
prospectus effective until the earlier of (i) the date on which the securities may be resold by the selling shareholders without
registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule
of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act
or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers
if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not
be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
Under applicable rules
and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation
M, prior to the commencement of the distribution. In addition, the selling shareholders will be subject to applicable provisions
of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases
and sales of the common stock by the selling shareholders or any other person. We will make copies of this prospectus available
to the selling shareholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior
to the time of the sale (including by compliance with Rule 172 under the Securities Act).
LEGAL
MATTERS
The validity of the securities
offered hereby will be passed upon for us by Nason, Yeager, Gerson, White & Lioce, P.A., West Palm Beach, Florida.
EXPERTS
The consolidated financial
statements of Vapor Corp. incorporated by reference in this prospectus and registration statement as of and for the years
ended December 31, 2014 and 2013 have been audited by Marcum LLP, an independent registered public accounting firm, as set forth
in their report, which contains an explanatory paragraph as to the Company’s ability to continue as a going concern, and
are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The documents listed below
are incorporated by reference into this registration statement:
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● |
Our Annual Report
on Form 10-K for the fiscal year ended December 31, 2014, filed with the Securities and Exchange Commission (the “Commission”)
on March 31, 2015; |
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The information
contained in Part III of our Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed with the Commission
on February 26, 2014; |
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Our Current Reports
on Form 8-K as filed with the Commission on January 26, 2015, January 28, 2015, February 3, 2015, February 26, 2015, March
5, 2015, March 24, 2015 and April 2, 2015; |
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The description
of our Common Stock contained in our Registration Statement on Form S-4 filed with the Commission on January 14, 2015, including
any amendment or report filed for the purpose of updating such description; and |
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All documents subsequently
filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act prior to the termination of the offering
shall be deemed to be incorporated by reference into the prospectus. |
Any statement contained
in a document incorporated or deemed to be incorporated by reference in this prospectus is modified or superseded for purposes
of the prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document that
also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
Upon oral or written request,
we will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in this prospectus but not delivered with the prospectus. You may request
such information by writing to the Company at 3001 Griffin Road, Dania Beach, Florida 33312, Attention: Corporate Secretary, or
by contacting us at (561) 366-1249.
We are an Exchange Act
reporting company and are required to file periodic reports on Form 10-K and 10-Q and current reports on Form 8-K. You may read
and copy all or any portion of the registration statement or any other information, which we file at the SEC’s public reference
room at 100 F Street, N.E., Washington, DC 20549, Please call the SEC at 1-800-SEC-0330 for further information on the operation
of the public reference room. Also, the SEC maintains an internet site that contains reports, proxy and information statements,
and other information that we file electronically with the SEC, including the registration statement. The website address is www.sec.gov.
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
Other Expenses of Issuance and Distribution.
The following table sets
forth the costs and expenses payable by us in connection with the issuance and distribution of the securities being registered
hereunder. No expenses shall be borne by the selling shareholders. All of the amounts shown are estimates, except for the SEC
Registration Fees.
| SEC registration fees | |
$ | 560 | |
| Printing expenses | |
$ | 200 | |
| Accounting fees and expenses | |
$ | 5,000 | |
| Legal fees and expenses | |
$ | 10,000 | |
| Miscellaneous | |
$ | 1,500 | |
| Total | |
$ | 17,260 | |
Indemnification of Directors and Officers.
Section 145(a) of the
Delaware General Corporation Law (the “DGCL”), which the Registrant is subject to, provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation)
by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. Section
145(b) of the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 of the DGCL, or in defense of
any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually
and reasonably incurred by such person in connection therewith.
Any indemnification under
subsections (a) and (b) of Section 145 of the DGCL (unless ordered by a court) shall be made by the Registrant only as authorized
in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is
proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b)
of Section 145. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination,
(1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum,
or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3)
if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the
shareholders. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this
section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems appropriate. The indemnification and advancement
of expenses provided by, or granted pursuant to, Section 145 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while
holding such office.
Section 145 of the DGCL
also empowers a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation
would have the power to indemnify such person against such liability under Section 145.
Article 10 of the Registrant’s
Certificate of Incorporation and Section 7 of the Registrant’s Bylaws provide that directors, officers, employees and agents
shall be indemnified to the fullest extent permitted by the DGCL.
The Registrant carries
directors and officers liability coverages designed to insure its officers and directors and those of its subsidiaries against
certain liabilities incurred by them in the performance of their duties, and also providing for reimbursement in certain cases
to the Registrant and its subsidiaries for sums paid to directors and officers as indemnification for similar liability.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Exhibits and Financial Statement Schedules.
| Exhibit
Number |
|
Description
of Exhibit |
| |
|
|
| 3.1 |
|
Certificate of Incorporation of the Registrant
(1) |
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|
|
| 3.2 |
|
Bylaws of the Registrant (1) |
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| 4.1 |
|
Registration Rights Agreement dated as
of March 3, 2015 by and among the Registrant and the investors referred to therein (2) |
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| 4.2 |
|
Form of Common Stock Certificate (1) |
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| 4.3 |
|
Form of Warrant, dated as of March 3, 2015
(2) |
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| 5.1* |
|
Opinion of Nason, Yeager, Gerson, White
& Lioce, P.A. |
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| 23.1* |
|
Consent of Marcum LLP |
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| 23.2* |
|
Consent of Nason, Yeager, Gerson, White
& Lioce, P.A. (included in Exhibit 5.1) |
* Filed herewith.
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(1) |
Incorporated by reference
to the Registrant’s Current Report on Form 8-K filed with the Commission on December 31, 2013. |
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(2) |
Incorporated by reference
to the Registrant’s Current Report on Form 8-K filed with the Commission on March 5, 2015. |
Undertakings
| (a) |
The undersigned
registrant hereby undertakes: |
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(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
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(ii) |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee table in the effective registration statement. |
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(iii) |
To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
provided,
however, that subparagraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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(2) |
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. |
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(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering. |
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(4) |
That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant
to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such
date of first use. |
| (b) |
The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. |
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|
| (c) |
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dania Beach, State of Florida, on this 17th day of April, 2015.
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Vapor Corp. (Registrant) |
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|
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By: |
/s/
Jeffrey Holman |
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|
Jeffrey Holman |
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|
Chief Executive Officer |
Pursuant to the requirements
of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and
on the dates indicated.
| Signatures |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Jeffrey Holman |
|
|
|
April 17, 2015 |
| Jeffrey Holman |
|
Chief
Executive Officer and Director
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/
James Martin |
|
|
|
April 17, 2015 |
| James Martin |
|
Chief Financial Officer (Principal Financial
Officer and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Gregory Brauser |
|
|
|
April 17, 2015 |
| Gregory Brauser |
|
Director |
|
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| Angela Courtin |
|
Director |
|
|
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|
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|
| /s/ Frank
Jaumot |
|
|
|
April 17, 2015 |
| Frank Jaumot |
|
Director |
|
|
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| Robert Swayman |
|
Director |
|
|
EXHIBIT INDEX
| Exhibit
No. |
|
Exhibit Description |
| |
|
|
| 5.1 |
|
Opinion of Nason, Yeager, Gerson, White
& Lioce, P.A. |
| |
|
|
| 23.1 |
|
Consent of Marcum LLP |
| |
|
|
| 23.2 |
|
Consent of Nason, Yeager, Gerson, White
& Lioce, P.A. (included in Exhibit 5.1) |
Exhibit
5.1
Nason,
Yeager, Gerson White & Lioce, P.A.
1645
Palm Beach Lakes Blvd., Suite 1200
West
Palm Beach, FL 33401
April
17, 2015
Vapor Corp.
3001 Griffin
Road
Dania Beach,
Florida 33312
Attention:
Jeffrey Holman, Chief Executive Officer
Re:
Vapor Corp. / Form S-3
Dear Mr.
Holman:
You
have requested our opinion with respect to certain matters in connection with the filing by Vapor Corp. (the “Registrant”)
of a Registration Statement on Form S-3 (the “Registration Statement”) with the Securities and Exchange Commission
(the “Commission”) covering 6,178,160 shares of the Registrant’s common stock, par value $0.001 per share, consisting
of
| |
(i) |
up
to 3,432,314 shares of the Registrant’s common stock (the “Shares”) which may be offered by the selling
shareholders identified in the Registration Statement (the “Selling Shareholders”) and |
| |
|
|
| |
(ii) |
2,745,846
shares of the Registrant’s common stock issuable upon exercise of warrants, dated as of March 3, 2015 (the “Warrants”)
by the Selling Shareholders (such shares issuable upon exercise, the “Warrant Shares”) which may then be offered
by the Selling Shareholders. |
In
connection with this opinion, we have examined such documents and such matters of fact and law as we have deemed necessary
as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents
where due execution and delivery are a prerequisite to the effectiveness thereof.
The
opinions expressed herein are limited to the General Corporation Law of the State of Delaware, as currently in effect, and we
express no opinion as to the effect of any other law of the State of Delaware or the laws of any other jurisdiction.
Subject
to the foregoing and in reliance thereon, it our opinion that:
| |
1. |
The
Shares are validly issued, fully paid and nonassessable securities of the Registrant; and |
| |
|
|
| |
2. |
Upon
the exercise of the Warrants, receipt by the Registrant of consideration therefore, and issuance and delivery of the Warrant
Shares in accordance with the terms of each of the Warrants and the Securities Purchase Agreement, dated as of March 3, 2015,
pursuant to which the Warrants were sold, the Warrant Shares will be validly issued, fully paid and nonassessable securities
of the Registrant. |
We
consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the
rules and regulations of the Commission.
This
opinion is solely for your benefit and may not be relied upon by any person without our prior written consent.
| |
Very
truly yours, |
| |
|
| |
/s/
Nason, Yeager, Gerson White & Lioce, P.A. |
| |
Nason, Yeager,
Gerson White & Lioce, P.A. |
Independent
Registered Public Accounting Firm’s Consent
We
consent to the incorporation by reference in this Registration Statement of Vapor Corp. (the “Company”) on Form S-3
of our report, which includes an explanatory paragraph as to the Company’s ability to continue as going concern, dated March
31, 2015, with respect to our audits of the consolidated financial statements of the Company as of December 31, 2014 and 2013
and for the years then ended appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2014.
We also consent to the reference to our firm under the heading “Experts” in the Prospectus, which is part of this
Registration Statement.
| /s/
Marcum llp |
|
| Marcum LLP |
|
| New York, NY |
|
| April 17, 2015 |
|
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