Item 1.01 Entry into a Material Definitive Agreement
The disclosures set forth in Item 2.01 are hereby incorporated into this Item
1.01 by reference.
Item 2.01 Completion of Acquisition or Disposition of Assets.
Agreement and Plan of Merger
On December 29, 2022 (the "Closing Date"), Starco Brands, Inc. (the "Starco"),
through its wholly-owned subsidiary Starco Merger Sub II, Inc. ("First Merger
Sub"), completed its acquisition (the "Acquisition") of Skylar Body, Inc.
("Skylar") through the merger of First Merger Sub with and into Skylar.
Immediately following the Acquisition, Skylar merged with and into Skylar Body,
LLC ("Second Merger Sub"), a wholly-owned subsidiary of Starco, with Skylar
Body, LLC surviving the merger.
On the Closing Date, Starco, First Merger Sub and Second Merger Sub entered into
an Agreement and Plan of Merger (the "Merger Agreement") by and among (i)
Starco, (ii) First Merger Sub, (iii) Second Merger Sub, (iv) Skylar, and (v)
Shareholder Representative Services LLC, solely in its capacity as the
representative of Skylar stockholders, noteholders and optionholders (the
"Company Holders"). Under the terms of the Merger Agreement, the transaction
consisted of First Merger Sub merging with and into Skylar with Skylar being the
surviving corporation (the "First Merger") and immediately following the First
Merger, and as part of the same overall transaction as the First Merger, Skylar
merged with and into Second Merger Sub (the "Second Merger" and, together with
the First Merger, the "Merger") with Second Merger Sub being the surviving
company of the Second Merger (which is referred to for the periods at and after
the Closing Date as the "Surviving Company"). In connection with the Merger and
the transactions contemplated by the Merger Agreement, Starco will issue to the
Company Holders (the "Stock Issuance") an aggregate of 65,692,736 restricted
shares of its common stock, 11,592,805 additional restricted shares of its
common stock after an 18-month indemnification period, and offsetting against
these additional shares will be the sole recourse for any indemnity claims by
Starco against the Company Holders, and 19,321,358 additional restricted shares
of its common stock contingent upon the Surviving Company meeting certain sales
metrics.
Further, in the event that the Company Holders have any indemnity claims against
Starco, First Merger Sub or Second Merger Sub, Starco shall satisfy any such
indemnity claims solely by the issuance of additional shares of its common
stock, up to 11,592,805 additional shares. Notwithstanding the foregoing, under
the terms of the Merger Agreement, any Company Holder that is not an "accredited
investor" as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), will receive cash in
lieu of shares of Starco common stock at a value equal to $0.17 per share.
The foregoing summary of the terms of the Merger Agreement does not purport to
be complete and is qualified in its entirety by reference to the full text of
the Merger Agreement, a copy of which is filed as Exhibit 2.1 to this Current
Report on Form 8-K filed with the Securities and Exchange Commission ("SEC") on
January 3, 2023, and is incorporated herein by reference.
Registration Rights Agreement
On the Closing Date, in connection with the closing of the Merger, Starco
entered into a Registration Rights Agreement (the "Registration Rights
Agreement") by and among Starco and the Investors (as defined therein), pursuant
to which certain stockholders who receive restricted shares of Starco common
stock in the Merger (the "Investors") shall receive certain rights to have such
restricted shares of Starco common stock registered for resale to the public on
the terms and subject to the conditions set forth therein. The Registration
Rights Agreement provides that, among other things, Starco will, upon the date
that is 120 calendar days after the later of (a) the date that Starco is
eligible to register its common stock for resale on a Form S-3 and (b) the date
that the Voting Agreement (as defined below) is terminated by its terms, file
with the SEC a registration statement registering the resale of the restricted
shares of Starco common stock held by the Investors.
The foregoing description of the Registration Rights Agreement does not purport
to be complete and is qualified in its entirety by reference to the full text of
the Registration Rights Agreement, which is filed as Exhibit 10.1 to this
Current Report on Form 8-K filed with the SEC on January 3, 2023 and is
incorporated herein by reference.
Voting Agreement
On the Closing Date, in connection with the closing of the Merger, Starco
entered into a Voting Agreement (the "Voting Agreement") with certain former
Company Holders and current stockholders of Starco, which stockholders upon the
closing of the Merger collectively own approximately 23% percent of Starco's
issued and outstanding common stock (the "Voting Agreement Stockholders").
Through the Voting Agreement, Ross Sklar ("Sklar"), Starco's chief executive
officer and largest shareholder, effectively controls approximately 77% of the
total voting power of Starco. The Voting Agreement generally requires that the
Voting Agreement Stockholders vote or cause to be voted their shares of Starco
common stock, and execute and deliver written consents and otherwise exercise
all voting rights with respect to their shares of Starco common stock in the
same manner as Sklar votes or gives his consent, provided that such vote or
action does not disproportionately or adversely affect the Voting Agreement
Stockholders in a manner different from the effect on other holders of Starco
common stock. In addition, in connection with the Voting Agreement, the Voting
Agreement Stockholders delivered irrevocable proxies to Sklar. The Voting
Agreement terminates (a) automatically upon the listing of the Starco's common
stock on the Nasdaq Stock Market or New York Stock Exchange, (b) with the
written consent of each of the parties signatories thereto, (c) automatically in
the event that both of the following conditions are met: (i) Sklar is no longer
Starco's chief executive officer and (ii) Sklar is no longer a member of the
Board of Directors of Starco, or (d) automatically in the event Starco
voluntarily commences any bankruptcy or similar proceedings or has commenced
against it any bankruptcy or similar proceedings that are not dismissed within
60 days of such commencement.
The foregoing description of the Voting Agreement does not purport to be
complete and is qualified in its entirety by reference to the full text of the
Voting Agreement, which is filed as Exhibit 10.2 to this Current Report on Form
8-K filed with the SEC on January 3, 2023 and is incorporated herein by
reference.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth under Item 2.01 regarding the Stock Issuance is
incorporated by reference into this Item 3.02. The Stock Issuance did not
involve a public offering and was exempt from the registration requirements of
the Securities Act pursuant to Rule 506 of Regulation D promulgated under
Section 4(a)(2) of the Securities Act.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
The following exhibits are filed with this Current Report on Form 8-K:
Exhibit
Number Description
2.1† Agreement and Plan of
Merger, by and among
(i) Starco Brands, Inc., a
Nevada corporation, (ii)
Starco Merger Sub II, Inc., a
Delaware corporation, (iii)
Skylar Body, LLC, a Delaware
limited liability company,
(iv) Skylar Body, Inc., a
Delaware corporation, and (v)
Shareholder Representative
Services LLC, solely in its
capacity as the
representative of the Company
Holders, dated December 29,
2022.
10.1† Registration Rights
Agreement, by and between
Starco Brands, Inc., a Nevada
corporation, and the
Investors listed on Schedule
A thereto, dated December 29,
2022.
10.2† Voting Agreement, by and
among Starco Brands, Inc., a
Nevada corporation, and the
stockholders listed on
Schedule A thereto, dated
December 29, 2022.
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† Certain of the exhibits and schedules to this exhibit have been omitted in
accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish
a copy of all omitted exhibits and schedules to the SEC upon its request.
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