The 25 million shares are set aside for that one note. That note holder may or may not choose to convert the shares. If they have been converting them then they could be included in the current OS. If they haven't converted any, they would not be in the OS.
The issue here is that ECIG could have promised the 25 million shares without actually having them within the current 300 million AS limit. As a result, they would have filed the 14a. See below.
The takeaway is those shares may or may not already be partially included in the OS - we can't know. They aren't required to be set aside in the AS and not converted aka they aren't restricted from conversion in any way that I'm aware of..Additionally ECIG could have many more shares left to convert beyond the 300 million AS limit. The 14a was a requirement if they were going to exceed the 300 million AS limit with the number of shares they have promised to note holders. So no, we can't assume there are just under 4 million more shares to convert. This will get to the 300 million number and after the AS increase it will probably get to the new AS limit pre-RS.
From the 1/22 8-k:
Reservation of Shares Issuable Upon Conversion. The Company covenants
that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock a number
of shares of Common Stock at least equal to 25,000,000 for the sole purpose of issuance upon conversion of this Note
and payment of interest on this Note, each as herein provided, free from preemptive rights or any other actual
contingent purchase rights of Persons other than the Holder (and the other holders of the Notes), not less than such
aggregate number of shares of the Common Stock as shall (subject to the terms and conditions set forth in any
transaction document issued in connection with this Note) be issuable (taking into account the adjustments and
restrictions of Section 5) upon the conversion of the then outstanding principal amount of this Note and payment of
interest hereunder. The Company covenants that all shares of Common Stock that shall be so issuable shall, upon
issue, be duly authorized, validly issued, fully paid and nonassessable. If, on the first Closing Date, the number of
shares of Common Stock available for issuance upon conversion of this Note and payment of interest on this Note is
less than 200% of the Required Minimum on such date, then the Board of Directors shall use commercially reasonable
efforts to cause the Company to file a Form 14A with the Commission to increase the number of authorized but
unissued shares of Common Stock so that at least 200% of the Required Minimum shares of Common Stock are
available for issuance upon conversion of this Note and payment of interest on this Note at such time, as soon as
possible and in any event not later than the 60th day after such date.
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