UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

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FORM 8-K

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CURRENT REPORT

Pursuant to Section 13 OR 15(d)

of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 17, 2023 (November 16, 2023)

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Volcon, Inc.

(Exact Name of Registrant as Specified in its Charter)

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3121 Eagles Nest Street, Suite 120

Round Rock, TX 78665

(Address of principal executive offices and zip code)

(512) 400-4271

(Registrant’s telephone number, including area code)

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):

Securities registered pursuant to Section 12(b) of the Act:

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☒

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. ☐

Public Offering

On November 16, 2023, Volcon, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with Aegis Capital Corp. (the “Underwriter”), in connection with a firm commitment underwritten public offering (the “Offering”) of (i) 3,326,042 common units (“Common Units”), each consisting of one share of common stock of the Company (“common stock”), 0.35 of a warrant to purchase one share of common stock at an exercise price of $0.55 per share (or 130% of the price of each Common Unit sold in the Offering) or pursuant to an alternative cashless exercise option (described below), which warrant will expire on the five-year anniversary of the original issuance date (the “Series A Warrants”) and 0.35 of a warrant to purchase one share of common stock at an exercise price of $0.84 per share (or 200% of the price of each Common Unit sold in the Offering), which warrant will expire on the five-year anniversary of the original issuance date (the “Series B Warrants” and together with the Series A Warrants, the “Warrants”); and (ii) 39,531,100 pre-funded units (the “Pre-funded Units” and together with the Common Units, the “Units”), each consisting of one pre-funded warrant to purchase one share of common stock (the “Pre-funded Warrants”), 0.35 of a Series A Warrant and 0.35 of a Series B Warrant. The purchase price of each Common Unit was $0.42, and the purchase price of each Pre-Funded Unit was $0.41999 (which is equal to the public offering price per Common Unit to be sold in the Offering minus $0.00001). The Pre-Funded Warrants are immediately exercisable and may be exercised at any time until all of the Pre-Funded Warrants are exercised in full.

In addition, the Company granted the Underwriter a 45-day option to purchase additional 6,428,571 shares of common stock and/or Pre-Funded Warrants, representing up to 15% of the number of common stock and Pre-Funded Warrants sold in the Offering, and/or additional 2,250,000 Series A Warrants representing up to 15% of the Series A Warrants sold in the Offering, and/or additional 2,250,000 Series B Warrants representing up to 15% of the Series B Warrants sold in the Offering solely to cover over-allotments, if any.

Under the alternate cashless exercise option of the Series A Warrants, beginning on the date of the Warrant Stockholder Approval (described below), the holder of the Series A Warrant, has the right to receive an aggregate number of shares equal to three times the aggregate number of shares of common stock that would be issuable upon a cash exercise of the Series A Warrant.  In addition, beginning on the date of the Warrant Stockholder Approval, the Warrants will contain a reset of the exercise price to a price equal to the lesser of (i) the then-current exercise price and (ii) lowest volume weighted average price for the five trading days immediately preceding and immediately following the date we effect a reverse stock split in the future with a proportionate adjustment to the number of shares underlying the Warrants. Finally, with certain exceptions, the Series B Warrants provide for an adjustment to the exercise price and, subject to Warrant Stockholder Approval, to the number of shares underlying the Series B Warrant, upon our issuance of our common stock or common stock equivalents at a price per share that is less than the then-current exercise price of the Series B Warrant.

The alternative cashless exercise option included in the Series A Warrants and the other adjustment provisions in the Warrants described above will be available only upon receipt of such stockholder approval as may be required by the applicable rules and regulations of the Nasdaq Capital Market to permit the alternate cashless exercise of the Series A Warrants and the other adjustment provisions described above included in the Warrants (the “Warrant Stockholder Approval”). In the event that the Company is unable to obtain the Warrant Stockholder Approval, the Series A Warrants will not be exercisable using the alternative cashless exercise option and certain of the other adjustment provisions described above included in the Warrants will not be effective.

The Offering closed on November 17, 2023. An aggregate of 3,326,042 Common Units (which includes 3,326,042 shares of common stock) and 39,531,100 Pre-Funded Units (which includes 39,531,100 Pre-Funded Warrants) were sold in the Offering. On November 17, 2023, the Underwriter partially exercised its over-allotment option with respect to 842,575 Series A Warrants and Series B Warrants. The aggregate gross proceeds to the Company were approximately $18.0 million, before deducting underwriting discounts and other estimated expenses payable by the Company.

The Offering was made pursuant to an effective registration statement on Form S-1 (File No. 333-274800) and the preliminary prospectus contained therein, which was filed by the Company with the Securities and Exchange Commission on September 29, 2023, amended on November 8, 2023, and declared effective on November 15, 2023. A final prospectus relating to the Offering was filed with the SEC on November 17, 2023. The Company intends to use the net proceeds from the Offering for general corporate purposes.

Under the terms of the Underwriting Agreement, the Underwriter received an underwriting discount of 8.0% to the public offering price for the Units. In addition, the Company agreed to (a) pay a non-accountable expense allowance to the Underwriter equal to 1.0% of the gross proceeds received in this Offering and (b) to reimburse the Underwriter for certain out-of-pocket expenses, including, but not limited to, up to $100,000 for reasonable legal fees and disbursements for the Underwriter’s counsel.

The Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriter, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions.

The foregoing description of the Underwriting Agreement, Pre-funded Warrant, Series A Warrant and Series B Warrant is not complete and is qualified in its entirety by reference to the full text of such agreements, copies of which are filed as Exhibits 1.1, 4.1, 4.2, and 4.3 and are incorporated by reference herein.

Note Amendment

On November 17, 2023, the Company entered into an amendment agreement (the “Amendment”) with Empery Asset Master, LTD, Empery Tax Efficient, LP and Empery Debt Opportunity Fund, LP (collectively, the “Holders”), the holders of certain convertible notes and warrants. Pursuant to the Amendment, among other items, the Holders agreed to amend certain provisions in the notes and warrants to allow the Company more flexibility with respect to the issuance of future securities related the Offering discussed above, and the Company agreed to add in the notes additional operational covenants.

The foregoing description of the Amendment, the amended note, and the amended warrant is not complete and is qualified in its entirety by reference to the full text of such agreements, copies of which are filed as Exhibits 10.1, 4.4, and 4.5 and are incorporated by reference herein.

In connection with the Offering, on November 17, 2023, the Company issued a press release announcing the closing of the Offering. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

(d) Exhibits

SIGNATURES

Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.