Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the SECURITIES EXCHANGE ACT OF
1934
Date of Report (Date of earliest event reported): October 10, 2018
Vivos Inc.
(Exact name of registrant as specified in its charter)
Delaware
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00-53497
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80-0138937
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification Number)
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719 Jadwin Avenue
Richland, WA 99352
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(Address of principal executive offices)
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(509) 736-4000
(Registrant’s telephone number, including area
code)
(Former name or former address, if changed since last
report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2.
below):
☐
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
☐
Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
☐
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
☐
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (17
CFR 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934
(17 CFR 240.12b-2) ☐
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act ☐
Item 1.01 Entry into a Material Definitive Agreement
See
Items 3.02 below.
Item 3.02 Unregistered Sales of Equity Securities
On October 10, 2018, Vivos, Inc. (the
“Company”) consummated a private placement
transaction (the “Private
Placement”), pursuant to
which the Company offered, issue and sold an aggregate of
315,600,000 shares of Company common stock, par value $0.001 per
share (“Common
Stock”), and shares of
newly established Series B Convertible Preferred Stock
(“Series B
Preferred”) on an as
converted into Common Stock basis (together, the
Shares”),
to certain accredited investors, and which resulted in gross
proceeds to the Company of $1,578,000. Shares of Series B Preferred
were issued to certain investors instead of Common Stock due to
beneficial ownership limitations preventing such investors from
owning in excess of 4.99% of the total voting securities of the
Company. Under the terms of the Private Placement,
participants were issued warrants equal to 50% of the Shares
purchased in the Private Placement (the “Warrants”). The Warrants have a
two-year term and are exercisable for shares of the Company’s
Common Stock at a price of $0.01 per share.
As consideration for the sale and issuance of the
Shares in the Private Placement, (i) the Company entered into
Securities Purchase Agreements (the “Purchase
Agreements”) with certain
accredited investors, pursuant to which the Company received gross
proceeds of $725,000; and (ii) certain holders of debt instruments
issued by the Company exchanged such debt for Shares in the
aggregate amount of $853,000, which debt instruments include, among
others, (a) certain bridge loans in the aggregate principal amount
of $175,000 and buying power of $210,000, and (b) debt with an
outstanding balance of $442,651 held by the Company’s
Chairman of the Board.
In
connection with the consummation of the Private Placement, the
outstanding balance of $2,253,538 due pursuant to certain
outstanding convertible secured debentures and convertible notes,
all of which had variable rate conversion features, automatically
converted into an aggregate of 563,399,500 Shares (the
“Debt
Conversion”) pursuant to Path Forward and Standstill
Agreements previously entered into by and between the Company and
the holders of such debentures and notes (the “Path Forward Agreements”). In
addition, as agreed upon in the Path Forward Agreements, the
Company repurchased $333,333 of outstanding debt due under certain
secured convertible debentures in consideration for the cash
payment by the Company to the holder of such debentures of $200,000
(the “Redemption”). The Redemption was
consummated on October 10, 2018 using a portion of the proceeds
from the Private Placement. The shares issued pursuant to the Path
Forward Agreements are subject to a restriction on any sales of
such shares below $0.02 per share through December 31, 2018 and are
subject to certain volume limitations on any sales below $0.01 per
share until June 30, 2019.
The
Shares offered, issued and sold pursuant to the Private Placement
and the Debt Conversion were issued without registration and
are subject to restrictions under the Securities Act of 1933, as
amended, and the securities laws of certain states, in
reliance on the private offering exemptions contained in Section
4(a)(2) of the Securities Act of 1933, as amended, and on
Regulation D promulgated thereunder, and in reliance on similar
exemptions under applicable state laws as a transaction not
involving a public offering.
The
foregoing descriptions of the Purchase Agreements and Warrants do
not purport to be complete, and are qualified in their entirety by
reference to the same, forms of which are attached to this Current
Report on Form 8-K as Exhibits 10.1 and 4.1, respectively, and
are incorporated by reference herein.
Item 5.03 Amendments to Articles of
Incorporation or Bylaws; Change in Fiscal Year
Creation of Series B Convertible Preferred Stock
On October 10, 2018, the Company filed the
Certificate of Designations, Preferences, and Rights of Series B
Convertible Preferred Stock (“Series B
COD”) with the Secretary
of State for the State of Delaware – Division of
Corporations, designating 5.0 million shares of the Company’s
preferred stock, par value $0.001 per share, as Series B Preferred,
each share with a stated value of $1.00 per share (the
“Stated
Value”). Shares of Series
B Preferred rank senior to the Company’s Common Stock and to
all other classes and series of equity securities of the Company
that by their terms rank junior to the Series B Preferred. Subject
to the Beneficial Ownership Limitations, each holder of Series B
Preferred shall be entitled to vote on all matters, together with
the holders of Common Stock, and shall have the equivalent of two
votes for every share of Common Stock issuable upon conversion such
holder’s outstanding shares of Series B
Preferred.
Each share of Series B Preferred has a liquidation
preference equal $1.00 per share (the “Liquidation Preference
Amount”). Each share of
Series B Preferred is convertible into that number of shares of the
Company’s Common Stock (“Conversion
Shares”) equal to the
Stated Value, divided by $0.001, which conversion rate is subject
to adjustment in accordance with the terms of the Series B COD.
Holders of Series B Preferred may elect to convert shares of Series
B Preferred into Conversion Shares at any time.
The
foregoing description of the Series B Preferred is qualified, in
its entirety, by the full text of the Series B COD, a copy of which
is attached to this Current Report on Form 8-K as Exhibit 3.1,
and is incorporated by reference herein.
Item 8.01 Other Events
See
Item 3.02 above.
Item 9.01 Financial Statements and Exhibits
See Exhibit Index.
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
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Vivos Inc.
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Date:
October 16, 2018
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By:
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/s/ L. Bruce Jolliff
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L.
Bruce Jolliff
Chief
Financial Officer
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EXHIBIT INDEX
Exhibit No.
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Description
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Certificate
of Designation of the Series B Convertible Preferred
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Form of
Warrant
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Form of
Securities Purchase Agreement
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