VICI Ethos Agreement
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): April
20, 2006
VICTOR
INDUSTRIES, INC.
(Exact
name of registrant as specified in its charter)
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Idaho
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000-30237
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91-0784114
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(State
or other jurisdiction
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(Commission
File Number)
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(IRS
Employer
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of
Incorporation)
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Identification
Number)
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180
Southwest Higgins Ave.
Missoula,
Montana 59803
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(Address
of principal executive offices)
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406-549-2261
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(Registrant’s
Telephone Number)
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N/A
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17 CFR 240.13e-4(c))
ITEM
1.01. ENTRY INTO MATERIAL DEFINITIVE AGREEMENT
On
April
20, 2006, Victor Industries, Inc. (the “Registrant”), with the approval of its
Board of Directors, executed an Agreement and Plan of Merger ("APR Merger”) with
San Diego, CA based Ethos Environmental, Inc. (“Ethos”), a Nevada
corporation.
The
closing of the APR Merger is still subject to various customary closing
conditions, including but not limited to shareholder approval by both companies.
Additionally, the APR Merger is subject to special closing conditions including
effectuating a reverse stock split based on a ratio of approximately 1:1000
and
the Registrant redomiciling to the State of Nevada.
The
description set forth herein of the terms and conditions of the APR Merger
is
qualified in its entirety by reference to the full text of such agreement,
which
is filed with this report as Exhibit 10.1 and incorporated by reference into
this Item 1.01.
This
report contains statements about the future, sometimes referred to as
“forward--looking” statements. Forward-looking statements are typically
identified by the use of the words “believe,” “may,” “should,” “expect,”
“anticipate,” “estimate,” “project,” “propose,”“plan,” “intend” and similar
words and expressions. Forward--looking statements are not guarantees of
completion of proposed transactions, availability of tax-free treatment, or
similar matters. Forward--looking statements are subject to risks and
uncertainties outside of the Registrant’s control. Actual events or results may
differ materially from the forward-looking statements. For a discussion of
additional contingencies and uncertainties to which information respecting
future events is subject, see Registrant’s other SEC reports.
The
Merger
The
APR
Merger provides for a business combination transaction by means of a merger
of
Ethos with and into the Company, with the Company as the corporation surviving
the merger. Under the terms of the APR Merger, the Company will acquire all
issued and outstanding shares of Ethos in exchange for 17,718,187 shares of
common stock of the Company. Shares of Company common stock an representing
an
estimated 97% of the total issued and outstanding shares of Company common
stock
shall be issued to the Ethos stockholders.
The
closing of the merger will take place promptly following the satisfaction of
the
conditions described below under “The Merger Agreement—Conditions to the Closing
of the Merger,” unless Registrant and Ethos agree in writing to another time.
The merger is expected to be consummated promptly after the annual meeting
of
Registrant's stockholders, which is scheduled to be held on or about May 15,
2006.
Name
& Headquarters After completion of the Merger:
· the
name
of Registrant shall be Ethos Environmental, Inc.;
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the
corporate headquarters and principal executive offices of Registrant
will
be located at 7015 Alamitos Avenue in San Diego, CA 92154, which
is
Ethos’s corporate headquarters; and
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Registrant
and Ethos will cause the common stock of Registrant outstanding prior
to
the APR Merger, which is traded on the Over The Counter Trading Bulletin
Board (“OTCBB”), to continue trading on the OTCBB, albeit a new symbol
shall be requested by the filing of the appropriate documentation.
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Merger
Consideration
Pursuant
to the APR Merger, the holders of securities of Ethos outstanding immediately
before the merger will receive, in exchange for such securities, 17,718,187
shares of Company common stock. Immediately following the APR Merger, the Ethos
stockholders will own approximately 97% of the total issued and outstanding
Company common stock.
Consummation
of the APR Merger and the related transactions is conditioned on the Registrant
stockholders approving the APR Merger. In addition, the consummation of the
merger is conditioned upon the following:
· no
order,
stay, judgment or decree being issued by any governmental authority preventing,
restraining
or prohibiting in whole or in part, the consummation of such transactions;
· the
delivery by each party to the other party of a certificate to the effect that
the representations and
warranties of the delivering party are true and correct in all material respects
as of the closing and
all
covenants contained in the APR Merger have been materially complied with by
the
delivering
party;
· the
receipt of necessary consents and approvals by third parties and the completion
of necessary proceedings;
· Registrant's
common stock being quoted on the OTCBB; and
· those
additional terms and conditions as fully set forth in the APR Agreement attached
hereto.
Ethos’s
Conditions to Closing of the APR Merger
The
obligations of Ethos to consummate the transactions contemplated by the merger
agreement, in addition to the conditions described above, are conditioned upon
each of the following, among other things:
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there
shall have been no material adverse effect with respect to Registrant
since the date of the merger agreement;
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· Ethos
shall have received a legal opinion substantially in the form annexed to the
merger agreement,
which is customary for transactions of this nature, from the SteadyLaw Group,
LLP, counsel
to Registrant; and
· those
additional terms and conditions as fully set forth in the APR Agreement attached
hereto.
Registrant's
Conditions to Closing of the APR Merger
The
obligations of Registrant to consummate the transactions contemplated by the
APR
Merger, in addition to the conditions described above in the second paragraph
of
this section, are conditioned upon each of the following, among other things:
· at
the
closing, there shall have been no material adverse effect with respect to Ethos
since the date of
the
APR Merger;
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Registrant
shall have received a legal opinion substantially in the form annexed
to
the APR Merger, which is customary for transactions of this nature,
from
Michael Later, Esq., counsel to Ethos;
and
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· those
additional terms and conditions as fully set forth in the APR Agreement attached
hereto.
Termination
The
APR
Merger may be terminated at any time prior to the Effective Time of the APR
Merger by the mutual written consent of the Registrant and Ethos. Either the
Registrant or Ethos may terminate the APR Merger (i) if the APR Merger is not
completed by June 15, 2006, (ii) if any legal restraint or prohibition
prohibiting the completion of the APR Merger becomes final or non-appealable,
or
(iii) if the majority of the stockholders of either the Registrant or Ethos
do
not vote in favor of the actions described therein. In addition, Ethos may
terminate the APR Merger if (i) Ethos’ board of directors determines that it is
required to do so pursuant to its fiduciary duties, or (ii) Registrant breaches
or fails to perform any of their respective representations, warranties or
covenants under the APR Merger. Further, Registrant may terminate the APR Merger
if (i) Registrant’s board of directors fails determines that it is required to
do so pursuant to its fiduciary duties, or (ii) Ethos breaches or fails to
perform any of their respective representations, warranties or covenants under
the APR Merger.
Quotation
or Listing
Registrant's
outstanding common stock is quoted on the OTCBB. Registrant and Ethos will
use
their reasonable best efforts to ensure that Registrant's common stock will
continue to be quoted on the OTCBB.
The
APR
Merger is intended to qualify as a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code and no gain or loss will be
recognized by Registrant as a result of the APR Merger;
The
APR
Merger will be accounted for under the purchase method of accounting as a
reverse acquisition in accordance with U.S. generally accepted accounting
principles for accounting and financial reporting purposes. Under this method
of
accounting, Ethos will be treated as the “acquired” company for financial
reporting purposes. In accordance with guidance applicable to these
circumstances, the APR Merger will be considered to be a capital transaction
in
substance. Accordingly, for accounting purposes, the APR Merger will be treated
as the equivalent of Ethos issuing stock for the net monetary assets of
Registrant, accompanied by a recapitalization. The net monetary assets of
Registrant will be stated at their fair value, essentially equivalent to
historical costs, with no goodwill or other intangible assets recorded.
At
any
time prior to the closing, any party to the APR Merger may, in writing, to
the
extent legally allowed:
· extend
the time for the performance of any of the obligations or other acts of the
other parties to the
agreement;
· waive
any
inaccuracies in the representations and warranties made to such party contained
in the merger
agreement or in any document delivered pursuant to the merger agreement; and
· waive
compliance with any of the agreements or conditions for the benefit of such
party contained in
the
merger agreement.
This
document may be deemed to be solicitation material in respect of the proposed
business combination of Ethos and Registrant, but is not a substitute for the
proxy statement/prospectus and any other documents Ethos and Registrant would
file with the SEC at an appropriate time in connection with the proposed
transaction. INVESTORS
AND STOCKHOLDERS OF REGISTRANT ARE URGED TO READ SUCH PROXY STATEMENT/PROSPECTUS
AND ANY OTHER SUCH DOCUMENTS, WHEN AVAILABLE, WHICH WOULD CONTAIN IMPORTANT
INFORMATION ABOUT THE PROPOSED TRANSACTION. The
proxy
statement/prospectus will be, and other documents filed or to be filed by
Registrant and Ethos with the SEC are or will be, available free of charge
at
the SEC’s website at www.sec.gov,
or from
Registrant by directing a request to: Lana J. Pope, Chief Financial Officer
of
Victor Industries, Inc. at 406-549-2261. Investors and security holders are
urged to read the proxy statement, prospectus and other relevant material if
and
when they become available before making any voting or investment decisions
with
respect to the APR Merger.
Registrant
is not currently engaged in a solicitation of proxies from the stockholders
of
Registrant or Ethos in connection with the proposed business combination between
Registrant and Ethos. If a proxy solicitation commences, Registrant, Ethos
and
their respective directors, executive officers and other employees may be deemed
to be participants in such solicitation. Information about Registrant’s
directors and executive officers is available in Registrant’s Form 10-KSB for
fiscal year ended 2005. Additional information about the interests of potential
participants will be included in the proxy statement/prospectus Registrant
would
file with the SEC at an appropriate time.
ITEM
7.01. Regulation FD Disclosures.
On
April
21, 2006 the Registrant issued the press release titled Ethos
Environmental, Inc. Executes Definitive Agreement with Victor Industries, Inc.
included
herein as Exhibit 99.1.
ITEM
9.01. Financial Statements and Exhibits
(c)
Exhibits.
10.1
Agreement and Plan of Merger
99.1
Press Release titled Ethos
Environmental, Inc. Executes Definitive Agreement with Victor Industries,
Inc.
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.
Date:
April 24, 2006 Victor
Industries, Inc.
By:
/s/
Lana Pope
Lana
Pope
Chief
Executive Officer