As filed with the Securities and Exchange Commission on May 6, 2016.July 10, 2019
Registration No. 333-209549
333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1/A
(Amendment No. 2)S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
TRUE DRINKS
CHARLIE’S HOLDINGS, INC.
(Exact Namename of Registrantregistrant as Specifiedspecified in its Charter)charter.)
Nevada | | 2086 | | 84-1575085 |
(State or Other Jurisdiction ofother jurisdiction Incorporationof incorporation or Organization)organization)
| | 2111 (Primary Standard Industrial Classification Number) Classification Code Number)
| | 84-1575085 (I.R.S.IRS Employer Identification Number)No.) |
18662 MacArthur Blvd., Suite 1101007 Brioso Drive
Irvine, CA 92612Costa Mesa, California 92627
(949) 203-3500531-6855
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Kevin ShermanBrandon Stump
Chief Executive Officer
18662 MacArthur Blvd., Suite 1101007 Brioso Drive
Irvine, CA 92612Costa Mesa, California 92627
(949) 531-6855
(949) 203-3500
(Name,(Name, address, including zip code and telephone number, including area code, of agent for service)
Copy of correspondence to:
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group,
One American Plazaa Professional Corporation
600655 West Broadway, Suite 700870
San Diego, CA 92101
(619) 795-1134272-7050
From time to time after the effective date of this Registration Statement.
(Approximate date of commencement of proposed sale to the public)
If any of the securities being registered on this Formform are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]
If this Formform is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Formform is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Formform is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”filer,” “smaller reporting company,” and “smaller reporting“emerging growth company” in Rule 12b212b-2 of the Exchange Act. (Check one):
| Large accelerated filer | | [ ] | | Accelerated filer | [ ] |
Non-accelerated filer
(do not check if a smaller reporting company)
| [ ] |
| | | | | |
| Non-accelerated filer | | [ ] | | Smaller reporting company | | [X] |
| | | | | | |
| | | | 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 7(a)(2)(B) of the Securities Act. [ ]
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered (1) | | Amount to be Registered (2) | | | Proposed Maximum Aggregate Offering Price (3) | | | Amount of Registration Fee (3) | |
Common Stock, $0.001 par value per share | | | | | | | | | | | | |
Title of Each Class of Securities To be Registered | Amount to be Registered(1)(2) | Proposed Maximum Offering Price Per Share(3) | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
| Common Stock, par value $0.001 per share | 26,317,060,072 | $0.01 | $263,170,600.72 | $31,896.28 |
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| (1) | (1)Represents shares offered by the selling stockholders. Includes an indeterminable number of additional shares of common stock, pursuant to Rule 416 under the Securities Act of 1933, as amended, that may be issued to prevent dilution from stock splits, stock dividends or similar transactions that could affect the shares to be offered by the selling stockholders. |
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| (2) | ConsistsThe amount to be registered consists of (i) 17,628,941,493 shares of common stock, par value $0.001 per share, (ii) up to (i) 20,589,3344,654,349,239 shares of common stock issuable upon conversion of outstanding shares of the registrant’s Series CA Convertible Preferred Stock, (“Series C Preferred”) issued in a series of private placement transactions, first consummated on August 13, 2015 (the “Private Placements”); (ii) 6,479,324par value $0.001 per share, and (iii) up to 4,033,769,340 shares of common stock issuable upon exercise of warrants issued in connection with the Private Placements; (iii) up to 17,500,000 shares ofcertain outstanding common stock issuable upon exercise of a warrant issued to Mr. Vincent C. Smith in connection with the execution of a personal guaranty; and (iv) up to 294,737 shares of common stock issuable upon exercise of a warrant issued to Novelty Capital Group LLC, as consideration for certain advisory services related to investor relations.purchase warrants.
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| | (2) |
| (3) | InEstimated solely for the eventpurpose of a stock split, stock dividend or similar transaction involvingcalculating the common stockamount of the Registrant, in orderregistration fee pursuant to prevent dilution, the number of shares registered shall be automatically increased to cover additional shares in accordance with Rule 416(a)457(a) under the Securities Act of 1933, as amended, (“based on the last reported sales price on the Securities ActOTC Pink Marketplace”).
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| (3) | Estimated solely for the purposeregistrant’s common stock as of calculating the registration fee in accordance with Rule 457(c) under the Securities Act.July 3, 2019.
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| (4) | Previously paid. |
The Registrant hereby amends this Registration Statementregistration statement on such date or dates as may be necessary to delay its effective date until the Registrantregistrant shall file a further amendment which specifically states that this Registration Statementregistration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statementregistration statement shall become effective on such date as the Commission, acting pursuant to said Sectionsection 8(a), may determine.
The information in this prospectus is not complete and may be changed. The Selling Stockholders may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. ThisThe information in this preliminary prospectus is not complete and may be changed. The selling stockholders named in this preliminary prospectus may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and the selling stockholders named in this preliminary prospectus are not soliciting an offer to sell these securities and it is not soliciting offers to buy these securities in any state where the offer or sale is not permitted. Subject to Completion, Dated July 10, 2019 |
PRELIMINARY PROSPECTUS
(Subject to Completion)
Dated ____________, 2016
44,863,395 Shares of Common Stock
TRUE DRINKSCHARLIE’S HOLDINGS, INC.
We are registering 44,863,39526,317,060,072 Shares
Common Stock
This prospectus relates to the offering and resale by the selling stockholders identified in this prospectus of up to 26,317,060,072 shares of our common stock, par value $0.001 per share, of True Drinks Holdings, Inc. (“we,” “us,” or the “Company”), by selling stockholders listed beginning on page 38 of this prospectus (“Selling Stockholders”). All of the shares being offered, when sold, will be sold by the Selling Stockholders. Thewhich consists of: (i) 17,628,941,493 shares of common stock, registered for resale(ii) up to 4,654,349,239 shares of common stock issuable upon conversion of outstanding shares of our Series A Convertible Preferred Stock, par value $0.001 per share (“Series A Preferred”), and (iii) up to 4,033,769,340 shares of common stock issuable upon exercise of certain outstanding common stock purchase warrants (the “Warrants”). The selling stockholders acquired these securities in a private transaction exempt from registration under thisthe Securities Act of 1933 as amended (the “Securities Act”). We are registering the offer and sale of the common stock to satisfy registration statement include:rights we have granted to certain of the selling stockholders.
| ● | up to 20,589,334 shares of common stock issuable upon conversion of shares of Series C Convertible Preferred Stock (“Series C Preferred”) issued in a series of private placement transactions, first consummated on August 13, 2015 (the “Private Placements”);
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| ● | up to 6,479,324 shares of common stock issuable upon exercise of warrants issued in connection with the Private Placements (the “Warrants”);
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| ● | up to 17,500,000 shares of common stock issuable upon exercise of a warrant issued to Mr. Vincent C. Smith in connection with the execution of a personal guaranty (the “Personal Guaranty Warrant”); and
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| ● | up to 294,737 shares of common stock issuable upon exercise of a warrant issued to Novelty Capital Group LLC, as consideration for certain investment relations services provided to the Company (the “Novelty Warrant”).
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We will not receive any proceeds from the sale of thethese shares by the Selling Stockholders; however, ifselling stockholders. The selling stockholders may sell the warrants are exercised we will receive the exercise priceshares as set forth under “Plan of Distribution.” For a list of the warrants, if exercised at all. We will payselling stockholders, see the expenses of registering the shares sold by the Selling Stockholders. Seesection entitled “Selling Stockholders” beginning on page 3871. We will bear the costs relating to the registration of this prospectus for a list of the Selling Stockholders.these shares.
The shares of common stock are being registered to permit the Selling Stockholders to sell the shares from time to time, in amounts and at prices and on terms determined at the time of the offering. The Selling Stockholders may sell the shares of our common stock covered by this prospectus in a number of different ways, and at prevailing market prices or privately negotiated transactions. We provide more information about how the Selling Stockholders may sell the shares in the section entitled “Plan of Distribution” beginning on page 40 of this prospectus.
Our common stock is quotedtraded on the OTC Pink Marketplace under the symbol “TRUU.“CHUC.” TheOn July 9, 2019, the last reported sale price of shares of our common stock on May 6, 2016the OTC Pink Marketplace was $0.13 per share.
$0.133.
No underwriterWe may amend or other person has been engagedsupplement this prospectus from time to facilitatetime by filing amendments or supplements as required. You should read the sale of shares of common stock in this offering.entire prospectus and any amendments or supplements carefully before you make your investment decision.
You should rely only on the information contained in this prospectus. We have not, and the Selling Stockholders have not, authorized anyone to provide you with different information. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus. You must not rely on any unauthorized information or representations. If anyone provides you with different information, you should not rely on it. We are not, and the Selling Stockholders are not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information contained in this prospectus is accurate only as of the date on the front cover of this prospectus. Our business, financial condition, results of operations and prospects may have changed since that date.
InvestingInvestment in our common stock involves a high degree of risk.risks. See “Risk Factors”“Risk Factors” beginning on page 28 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is _________ __, 2016., 2019
TRUE DRINKS HOLDINGS, INC.TABLE OF CONTENTS
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FORWARD-LOOKING STATEMENTS
This prospectus including the information incorporated by reference, contains forward-looking statements as defined in the Private Securities Litigation Reform Actis part of 1995. The use of any statements containing the words “intend,” “believe,” “estimate,” “project,” “expect,” “anticipate,” “plan,” “should” or similar expressions are intended to identify such statement. Forward-looking statements inherently involve risks and uncertaintiesa registration statement on Form S-1 that could cause actual results to differ materially from the forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, changes in demand for our products and services, changes in the level of operating expenses, our ability to execute our business and operating plan, changes in general economic conditions that impact government spending, regulatory issues, dependence on third party suppliers, and other risks detailed in this prospectus under the heading “Risk Factors” and in our periodic report filingswe filed with the Securities and Exchange Commission (the “SEC”). Under this registration statement, the selling stockholders may, from time to time, sell up to an aggregate of 26,317,060,072 shares of our common stock, par value $0.001 per share. The registration statement we filed with the SEC, of which this prospectus forms a part, includes exhibits that provide more detail of the matters discussed in this prospectus. You should read this prospectus and the related exhibits filed with the SEC before making your investment decision. The registration statement and the exhibits can be obtained from the SEC, as indicated under the section entitled “Where You Can Find More Information.”
Forward-looking statementsYou should rely only on the information contained in this prospectus. Neither we nor the selling stockholders have authorized anyone to provide you with different or additional information. If anyone provides you with different or inconsistent information, you should not rely on it. Neither we nor the selling stockholders are subjectmaking an offer to numerous assumptions, risks and uncertainties, which change over time. Forward-looking statements speak onlysell our common stock in any jurisdiction where the offer or sale thereof is not permitted. You should not assume that the information appearing in this prospectus or the documents incorporated by reference in this prospectus is accurate as of any date other than their respective dates. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read carefully the date they are made,entirety of this prospectus before making an investment decision.
As used in this prospectus, unless the context requires otherwise, the terms “Company,” “we,” “our” and we assume no duty“us” refer to Charlie’s Holdings, Inc. (formerly known as True Drinks Holdings, Inc.), “Charlie’s” and do not undertake“CCD” refer to update forward-looking statements. These forward-looking statements may not meet the safe harbor for forward-looking statements pursuant to Sections 21E or 27ACharlie’s Chalk Dust, LLC, a California limited liability company and wholly-owned subsidiary of the Securities Act of 1933, as amended. Actual results could differ materially from those anticipated in forward-looking statementsCompany, and future results could differ materially from historical performance.“Don Polly
” refers to Don Polly, LLC, a Nevada limited liability company that is owned by entities controlled by Brandon and Ryan Stump, the Company’s Chief Executive Officer and Chief Operating Officer, respectively, and a consolidated variable interest for which the Company is the primary beneficiary.
This summary highlights information contained elsewhere in this prospectus.prospectus or incorporated by reference herein. This summary does not contain all of the information you should consider before buyinginvesting in our common stock. Yousecurities. Before deciding to invest in our securities, you should read this entire prospectus carefully, including the following summary together with the more detailed information appearing insection of this prospectus including our consolidated financial statements and related notes, and our risk factorsentitled “Risk Factors” beginning on page 2, before deciding whether to purchase shares of our common stock.
As used in this prospectus, “we”, “us”, “our”, “True Drinks”, “Company” or “our Company” refers to True Drinks Holdings, Inc. and all of its subsidiaries, unless the context requires otherwise. We are a holding company and conduct no operating business, except through our subsidiaries.
Overview10.
True Drinks Holdings, Inc. (the “Our objective is to become a leader in the rapidly growing, global e-cigarette segment of the broader nicotine related products industry. Through Charlie’s, we formulate, market and distribute branded e-cigarette liquid for use in both open and closed consumer e-cigarette and vaping systems. Charlie’s products are produced domestically through contract manufacturers for sale through select distributors, specialty retailers and third-party online resellers throughout the United States, as well as over 80 countries worldwide. Charlie’s primary international markets include the United Kingdom, Italy, Spain, Belgium, Australia, Sweden and Canada. In June 2019, we launched distribution, through Don Polly, of certain premium vapor, tincture and topical products containing hemp-derived cannabidiol (“Company”, “us” or “weCBD”) was incorporatedand we currently intend to develop and launch additional products containing hemp-derived CBD in the state of Nevada in January 2001 and isfuture. Prior to the holding company for True Drinks, Inc. (“True Drinks”), a beverage company incorporated in the state of Delaware in January 2012 that specializes in all-natural, vitamin-enhanced drinks. OurShare Exchange, our primary business iswas the development, marketing, sale and distribution of our flagship product, AquaBall(TM)all-natural, vitamin-enhanced drinks, including AquaBall® Naturally Flavored Water and Bazi® All Natural Energy.
Our Products
Charlie’s Product Line
Our business efforts consist primarily of formulating, marketing and distributing our portfolio of branded e-cigarette liquid and other premium vapor products for use in consumer e-cigarette and vaping systems, which we collectively refer to as the“Charlie’s Product Line” or “Charlie’s Products.”
E-Liquids
E-liquids used to produce vapor in vaping devices are sold separately for use in refillable tanks of open system vaporizers. Liquids are available in differing nicotine concentrations (0 mg, 3 mg and 6 mg per milliliter) to suit user preferences. Liquids are available in a vitamin-enhanced, naturally flavoredvariety of flavors, including our proprietary blends. Liquid solution consists of flavoring and/or nicotine dissolved in one or several hygroscopic components, which turns the water drinkin the solution into the smoke-like vapor when heated. The most commonly used hygroscopic components are propylene glycol (“PG”), vegetable glycerin (“VG”) or polyethylene glycol 400. VG imparts sweetness and produces vapor clouds, while PG produces more “throat hit”, which simulates the feeling of smoking. Our proprietary brands of e-liquids are manufactured by ISO Class 7 certified manufacturers in the United States, which helps ensure their purity and quality.
Charlie’s e-liquid products are produced under seven brand names distinguished by their flavor profiles, packaging art and ingredient transparency. All products are packaged in our patented stacking spherical bottles. We distribute the AquaBallplastic drip containers that are typically available in seven sizes ranging from 10 mil to 100ml, as well as bulk concentrate formats.
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(TM)Black Label and White Label nationally through select retail channels,. CCD’s original black and white product line launched in 2015. Black Label is currently available in five flavors and White Label is currently available in four flavors.
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CCD3. Launched in 2016, is a sea salt caramel ice cream flavor.
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Pachamama™. A line launched in 2016 consisting of eight eclectic mixes of natural fruit flavors such as grocery stores, mass merchandisers, drug storespassion fruit raspberry yuzu, blood orange banana gooseberry and online.huckleberry pear acai.
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Meringue. The third brand launched in 2016, based on creative character stories, currently includes three flavors.
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Campfire™. Outdoors and Smores flavor inspired by camp vibes.
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Stumps™. Line of four flavors inspired by the founders and their families broadly released in 2017 across various formats. Currently active in select markets.
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The Creator of Flavor™. Two flavors broadly released in 2018 across various formats. Currently active in select markets.
Nicotine Salt Products
Nicotine salt e-liquids (“NIC salts”) are formulated for use in lower wattage open, semi-open and closed system vaporizers and are available in higher nicotine concentrations (25mg and 50mg per milliliter) than traditional e-liquids. Nicotine salts consist of nicotine dissolved in an acid that results in a lower PH level than other e-liquids. This form of nicotine has a higher bioavailability resulting in faster blood stream absorption and more closely mimics the effects of combustible tobacco products. We broadly released Pachamama™ Salts, an extension of the Pachamama™ line, in late December 2018 to a select group of key accounts, which now includes seven flavors packaged in 10ml and 30ml bottles. During 2019, we plan to broadly release NIC salt extensions of the Meringue and Black, Gold and White Label Charlie’s Chalk Dust brands.
Don Polly
The Company, through Don Polly, a related Company under common ownership, has been engaged in the development of proprietary and innovative hemp-derived, non-THC, CBD wellness products, which we refer to as the “Don Polly Products” and “Don Polly Product Line”. Don Polly’s efforts have been focused on developing and producing high quality CBD products made from single-strain-sourced hemp extract and high purity CBD isolate crystals. In addition, good manufacturing practices and quality control parameters are of the utmost importance to the Don Polly Products, which contribute to the differentiation of the Don Polly Products in the CBD product industry.
In June 2019, Don Polly launched a suite of full-spectrum and isolate CBD products across three categories including vapor, tinctures, and topicals.
Don Polly was formed in the second quarter of 2019 and there are no operating results from its operations in any of the historical financial statements included in this filing.
Isolate CBD Products
Our CBD isolate products contain a minimum purity of 99% isolate crystals, tested by independent, third-party facilities to ensure it is free of pesticides and heavy metals. Vape, as a CBD delivery method, has grown in popularity due to the high level of bioavailability and reported therapeutic responses. In response to demand for CBD infused e-liquids from our existing distribution channels, we launched a new line of CBD infused vapor products in June 2019. We refer to these products as the “Don Polly Vape Product Line” or the “Don Polly Isolate Products.” The Don Polly Vape Product Line is currently available in 30ml chubby bottles across three flavors (Minty Mango, Grape Berry and Strawberry Watermelon) and two strengths (250mg and 500mg). We are continuing to research and develop isolate products as both vape line extensions and in other product categories.
Full Spectrum CBD Products
Our full spectrum hemp extract comes from whole plant extraction which retains the plant’s natural compounds. This extraction method ensures each product preserves the holistic benefits of the plant including minimal amounts of THC (0.3% or less), which allows for optimal absorption of the plant’s nutrients. While CBD alone is widely believed to be a beneficial cannabinoid, full spectrum products have the potential to provide the body access to all the plant’s cannabinoids, allowing the end user to achieve a wide range of therapeutic benefits. The full spectrum products are formulated with single-source and single strain hemp extracts. Don Polly believes this sourcing practice yields various compounds that work synergistically to heighten the effects of the products, making them superior to single-compound CBD isolates. In June 2019, we introduced the Pachamama™ tincture and topical full spectrum products. The tincture offering includes four flavors (the Natural, Green Tea Echinacea, Goji Cacao and Kava Kava Valerian) available in 30ml bottle sizes and both 750mg and 1750mg strengths. Our topical products include the Cooling Ointment, available in a one ounce jar and 750mg strength, and the Athletic Rub, available in a two ounce jar and 500mg strength. We plan on continuing to research, develop, and launch products in these categories.
Broad Spectrum CBD Products
In addition to isolate and fill spectrum CBD products, we believe there is an opportunity to develop broad spectrum hemp-derived CBD extracts that provide the same benefits of full spectrum CBD products but, through additional processing of hemp-derived extracts, eliminate the presence of THC. This category of THC-free, broad spectrum products will provide consumers with concerns about THC access to the same level of quality and nutrients we value in our full spectrum products. We are currently developing certain broad spectrum products, which, ultimately, will allow us to launch products which match the consumer accessibility of our CBD isolate products with the experience and benefits of our full spectrum products.
Recent Developments
The Share Exchange
On April 26, 2019 (the “Closing Date”), the Company entered into a Securities Exchange Agreement with each of the members (“Members”) of Charlie’s, and certain direct investors (“Direct Investors”), pursuant to which the Company acquired all outstanding membership interests of Charlie’s beneficially owned by the Members in exchange for the issuance by the Company of units, with such units consisting of an aggregate of (i) 15,655,538,349 shares of common stock (which includes the issuance of an aggregate of 1,396,305 shares of a newly created class of Series B Convertible Preferred Stock, par value $0.001 per share (“Series B Preferred”), convertible into an aggregate of 13,963,047,716 shares of common stock, issued to certain individuals in lieu of common stock); (ii) 206,249 shares of a newly created class of Series A Convertible Preferred Stock, par value $0.001 per share (“Series A Preferred”), convertible into an aggregate of 4,654,349,239 shares of common stock; and (iii) warrants to purchase an aggregate of 3,102,899,493 shares of common stock (the “Investor Warrants”) (the “ShareExchange”). As a result of the Share Exchange, Charlie’s became a wholly owned subsidiary of the Company.
In connection with the Share Exchange, the Company also marketentered into registration rights agreements (the “Registration Rights Agreements”) with each of the Members and distribute BaziDirect Investors, pursuant to which the Company agreed to use its best efforts to file a registration statement with the SEC no later than 30 days after the Closing Date in order to register, on behalf of the Members and Direct Investors, the shares of common stock, shares of common stock issuable upon conversion of the Series A Preferred and Series B Preferred, and shares of common stock issuable upon exercise of the Investor Warrants.
(R)Immediately prior to, and in connection with, the Share Exchange, Charlie’s consummated a private offering of membership interests that resulted in gross proceeds to Charlie’s of approximately $27.5 million (the “Charlie’s Financing”). Katalyst Securities LLC (“Katalyst”) acted as the sole placement agent in connection with the CCD Financing pursuant to an Engagement Letter entered into by and between Katalyst, CCD and the Company on February 15, 2019, which was amended on April 16, 2019 (“Amended Engagement Letter”). As consideration for its services in connection with the Charlie’s Financing and Share Exchange, the Company issued to Katalyst and its designees five-year warrants to purchase an aggregate of 930,869,848 shares of common stock at a price of $0.0044313 per share (the “Placement Agent Warrants”). The Placement Agent Warrants have substantially the same terms as those set forth in the Investor Warrants. As additional consideration for advisory services provided in connection with the Charlie’s Financing and the Share Exchange, the Company issued an aggregate of 902,661,671 shares of common stock (the “Advisory Shares”), including to Scot Cohen, a member of the Company’s Board of Directors, pursuant to a subscription agreement.
The Share Exchange resulted in a change of control of the Company, with the Members and Direct Investors owning approximately 85.7% of the Company’s outstanding voting securities immediately after the Share Exchange, and the Company’s current stockholders beneficially owning approximately 14.3% of the issued and outstanding voting securities, which includes the Advisory Shares. Together, Ryan Stump and Brandon Stump, the founders of CCD and the Company’s newly appointed Chief Executive Officer and Chief Operating Officer, respectively, own in excess of 50% of the Company’s issued and outstanding voting securities as a result of the Share Exchange. Upon issuance of the common stock, conversion of the Series A Preferred and Series B Preferred, and exercise of the Investor Warrants and Placement Agent Warrants issued in connection with the Share Exchange, and assuming that the Company’s Articles of Incorporation are further amended to effect the increase in authorized shares of common stock described in the section of this prospectus entitled All Natural Energy, a liquid nutritional supplement drink,“Description of Capital Stock.”, it is anticipated that the Company will have an aggregate of approximately 27.7 billion shares of common stock issued and outstanding, of which approximately 24.3 billion shares issued or issuable in connection with the Share Exchange are and will be restricted until such time as such shares are registered under the Securities Act or an exemption therefrom is available to permit the resale of such shares.
Additional information about the Company, the Share Exchange and the Charlie’s Financing are contained in the Company’s Current Report on Form 8-K filed with the SEC on April 30, 2019, as amended on May 1, 2019.
Following the consummation of the Share Exchange, the business operations of the Company consist of those of Charlie’s, which is principally engaged in formulating, marketing and distributing branded e-cigarette liquid and other products for use in consumer e-cigarette and vaping systems.
Launch of CBD Products
In June 2019, we introduced, through Don Polly, full-spectrum hemp extract and CBD isolate wellness products across a variety of formats and strengths. Our initial launch consisted of six vapor, eight tincture and two topical product variations. The newly released products were launched under the Pachamama™ namesake by way of a licensing agreement between Don Polly and Charlie’s, entered on April 25, 2019. In the near term, we expect to expand the hemp-derived CBD-based products line to include additional CBD isolate products and Tetrahydrocannabinol (“THC”)- free, broad spectrum hemp extract products currently distributed onlinein development.
Pachamama™ CBD products are currently available in the U.S., Mexico and throughSwitzerland, and we expect to continue expanding our existing databaseinternational distribution efforts.
Filing of customers.Amended and Restated Charter; Automatic Conversion of Series B Preferred
On June 28, 2019, we amended and restated our Articles of Incorporation (the “Amended and Restated Charter”) to (i) change our corporate name to Charlie’s Holdings, Inc. and (ii) increase the number of shares authorized as common stock from 7.0 billion to 50.0 billion shares. The Amended and Restated Charter was approved by our Board of Directors and holders of a majority of our outstanding voting securities on May 8, 2019, and the Amended and Restated Charter was filed with the State of Nevada on June 28, 2019.
As a result of the filing of the Amended and Restated Charter and the increase of our authorized common stock to 50.0 billion shares, all 1,396,305 outstanding shares of Series B Preferred automatically converted into a total of 13,963,047,716 shares of common stock in accordance with the Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock.
Corporate Information
Our principal place of business is 18662 MacArthur Boulevard, Suite 110, Irvine, California, 92612.1007 Brioso Drive, Costa Mesa, CA 92627. Our telephone number is (949) 203-2500.531-6855. Our corporate website address is http:https://www.truedrinks.com.charliesholdings.com. Our common stock is currently listed for quotation on the OTC Pink Marketplace under the symbol “TRUU.“CHUC.”
Securities OfferedCommon stock offered by selling stockholders | This prospectus covers the Selling Stockholders | | 44,863,395resale of a total of 26,317,060,072 shares of our common stock, consisting of: (i) 17,628,941,493 shares of common stock currently outstanding, (ii) up to 4,654,349,239 shares of common stock issuable upon conversion of outstanding shares of Series A Preferred, and (iii) 4,033,769,340 shares of common stock issuable upon exercise outstanding Warrants. |
| Offering price | The selling stockholders will sell their shares at prevailing market prices or privately negotiated prices. |
Common stock Outstanding asoutstanding | 18,935,746,396 shares. The number of May 3, 2016 | | 112,049,107outstanding shares does not include shares issuable upon conversion of outstanding shares of our conversion of Series A Preferred and/or exercise of outstanding Warrants. |
Use of Proceeds | proceeds | We will not receive any ofproceeds from the proceedssale of the shares of common stock offered by the Selling Stockholders. We may receive proceeds upon exercise of the warrants, if they are exercised. The shares that will be resold under this prospectus were sold by us, or were issued upon the conversion of securities issued by us.selling stockholders. |
Risk Factors | factors | Prior to making an investment decision, youYou should carefully consider all ofread the information in this prospectus and, in particular, you should evaluate the risk factors set forth under the caption “Risk Factors” beginning on page 2.section of this prospectus for a discussion of factors to consider carefully before deciding to invest in shares of our common stock.
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Trading SymbolMarket for our shares | | TRUUOur common stock is traded on the OTC Pink Marketplace under the symbol “CHUC.” |
The number of shares of common stock outstanding is based on an aggregate of 18,935,746,396 shares outstanding as of July 9, 2019, and excludes:
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206,249shares of Series A Preferred convertible into4,654,349,239shares of common stock;
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outstanding warrants, including the Warrants, to purchase 4,033,769,340 shares of common stock;
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91,759,826 shares of common stock reserved for issuance upon exercise of outstanding stock options issued under our 2013 Stock Incentive Plan (the “2013 Plan”); and
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1,107,254,205 shares of common stock reserved for issuance upon exercise of stock options available under our 2019 Omnibus Incentive Plan (the “2019 Plan”). These options have not been granted.
Unless otherwise indicated in this prospectus, all share and per share figures reflect the exchange of membership interests of Charlie’s then outstanding for certain of the Company’s securities upon the consummation of the Share Exchange on April 26, 2019; however, the share and per share numbers in the audited financial statements of Charlie’s for the year ended December 31, 2018 included in this prospectus are not adjusted to give effect to the Share Exchange.
SURISK FACTORSMMARY HISTORICAL FINANCIAL DATA OF CHARLIE’S CHALK DUST, LLC
The following tables set forth a summary of Charlie’s historical financial data as of, and for the periods ended on, the dates indicated, as, following the Share Exchange, we are now primarily dependent on the business of Charlie’s. We have derived the statements of operations data for the years ended December 31, 2018 and 2017 from the audited financial statements of Charlie’s included elsewhere in this prospectus. The statements of operations data for the three-months ended March 31, 2019 and 2018 and the balance sheet data as of March 31, 2019 have been derived from Charlie’s unaudited financial statements included elsewhere in this prospectus and have been prepared on the same basis as the audited financial statements. In the opinion of our management, the unaudited data reflects all adjustments, consisting of normal and recurring adjustments, necessary for a fair presentation of results as of and for these periods. You should read this data together with our financial statements and related notes included elsewhere in this prospectus and the sections in this prospectus entitled “Risk Factors,” “Unaudited Pro Forma Condensed Combined Financial Information,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Charlie’s Chalk Dust, LLC,” and our financial statements and related notes appearing elsewhere in this prospectus. Our historical results for any prior period are not indicative of our future results, and our results for the three-months ended March 31, 2019 may not be indicative of our results for the year ending December 31, 2019.
| | | Three Months Ended March 31, |
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| Statements of Operations Data: | | | |
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| Net revenue | $20,840,794 | $12,233,925 | $6,647,545 | $5,432,370 |
| Cost of goods sold | 8,514,790 | 5,475,051 | 2,750,274 | 2,165,289 |
| Gross profit | 12,326,004 | 6,758,874 | 3,897,271 | 3,267,081 |
| Operating expenses: | | | | |
| Selling and marketing | 2,904,456 | 1,862,441 | 767,042 | 718,036 |
| Product development | 95,180 | 116,040 | 39,542 | 31,976 |
| General and administrative | 2,126,945 | 1,523,334 | 615,572 | 460,105 |
| Total operating expenses | 5,126,581 | 3,501,815 | 1,422,156 | 1,210,117 |
| | | | | |
| Income from operations | 7,199,423 | 3,257,059 | 2,475,115 | 2,056,964 |
| Other income | 453 | 9,410 | 90 | 95 |
| Net income | $7,199,876 | $3,266,469 | $2,475,205 | $2,057,059 |
| | | | | |
Earnings per Unit(1) | | | | |
| Basic and diluted earnings per unit | $7,200 | $3,266 | $2,475 | $2,057 |
| Basic and diluted weighted average number of units outstanding | 1,000 | 1,000 | 1,000 | 1,000 |
(1)
See Note 1 to each of our audited and unaudited condensed financial statements, respectively, included elsewhere in this prospectus for an explanation of the methods used to calculate the historical net income (loss) per share, basic and diluted, and the number of shares used in the computation of the per share amounts.
| Balance Sheet data: | |
| |
| Cash | $1,243,081 |
| Working capital | 2,193,280 |
| Total assets | 3,578,863 |
| Membership Equity | $2,287,432 |
Investing in our common stock involves a high degree of risk. In addition to the information, documents or reports included or incorporated by reference in this prospectus and, if applicable, any prospectus supplement or other offering materials, you should carefully consider the risks described below in addition to the other information contained in this prospectus, before making an investment decision. Our business, financial condition or results of operations could be harmed by any of these risks. As a result, you could lose some or all of your investment in our common stock. The risks and uncertainties described below are not the only ones we face. Additional risks not currently known to us or other factors not perceived by us to present significant risks to our business at this time also may impair our business operations.
Risks Related to the Company
We haveOur operations are now primarily dependent on the business of Charlie’s, and our ability to achieve positive cash flow under our new business plan is uncertain.
As a historyresult of the Share Exchange, our continued operations are now primarily dependent on the business of Charlie’s. Although Charlie’s generated net revenue of approximately $6.6 million during the three months ended March 31, 2019 and $20.8 million for the year ended December 31, 2018, and we anticipate substantially greater revenue in 2019, there can be no guarantee that the Company will continue to grow revenue or achieve positive cash flow in the future.
Our operating lossesresults in the past will not reflect our operating results in the future, which makes it difficult to evaluate our future business, prospects, and despite consummation of recent financings, we require additional financing to satisfy our current contractual obligations and executeforecast revenue.
Until recently, our business plan.was comprised primarily of the development, marketing, sale and distribution of all-natural, vitamin-enhanced drinks. As a result of our decision to consummate the Share Exchange, our future revenue will substantially differ from past revenue, and our operating results will vary significantly compared to past operating results. It is too early to predict whether consumers will accept, and continue to use on a regular basis, our new products, due in part to the fact that we have had limited recent operating history as a combined entity with Charlie’s. Factors that will significantly affect our operating results include, without limitation, the following:
We have not been profitable since inception. We had a net loss●
the expected increase in revenue due to the addition of $11,990,563those products developed and $8,116,603 formarketed by Charlie’s prior to the Share Exchange, as well as any products that we may release in the future, to our revenue stream;
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our decision in early 2018 to discontinue the production and sale of AquaBall®, that in the years ended December 31, 20152018 and 2014, respectively. Additionally, 2017, contributed approximately $1,767,802 and $3,581,142 in revenue, respectively;
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our previous sole reliance on sales of AquaBall(TM) Naturally Flavored WaterBazi®, that in the years ended December 31, 2018 and 2017, contributed approximately $179,250 and $242,192 in revenue to the Company, respectively; and
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the restructuring of substantially all of our previously outstanding debt and shares of preferred stock on April 26, 2019, in connection with the Share Exchange.
Although we believe that, as a result of the Share Exchange and the restructuring of our prior debt, our cash resources are currently sufficient, our long-term liquidity and capital requirements may be difficult to predict, which may adversely affect our long-term cash position.
Prior to the Share Exchange, our core business product sales were significantly below levels necessary to achieve positive cash flow. In addition, we had significant liabilities, amounting to approximately $4.1 million as of March 31, 2019 and $9.8 million as of December 31, 2018. However, as a result of the acquisition of Charlie’s as our wholly owned subsidiary, Charlie’s historical results of operations, and the restructuring of substantially all of our outstanding debt on April 26, 2019, we currently believe that our cash resources are sufficient to fund our operations for the next twelve months, although no assurances can be given. However, if we are required to seek additional financing in the future in order to fund our operations, retire indebtedness and otherwise carry out our business plan, there can be no assurance that such financing will be available on acceptable terms, or at all, and there can be no assurance that any such arrangement, if required or otherwise sought, would be available on terms deemed to be commercially acceptable and in our best interests.
Although
Our business is difficult to evaluate because we have recently consummated equitysignificantly modified our product offerings and debt financings thatcustomer base.
As a result of the Share Exchange, we have resultedrecently modified our operations, engaging in aggregate net proceeds of approximately $10.2 million for the year ended December 31, 2015, our cash position was approximately $586,000 at December 31, 2015, and we used $10,433,069 of cash for operations during the year ended December 31, 2015. To continue as a going concern, and to satisfy our contractual obligations under the bottling agreement with Niagara Bottling, LLC (“Niagara”) executed in October 2015 (the “Niagara Agreement”), we need to secure proceeds from the sale of additional debt or equity securities, whethernew products in a private or public offering, in the near term. No assurances can be givennew market through new distributors and new lines of business. There is a risk that we will be successful in our attempts to generate proceeds to fund our operations. In the event we are unable to raise additional capital through the issuance of additional debt or equity securities, we will be unable to continuesuccessfully integrate the newly acquired businesses with our current structure. Our estimates of capital, personnel and equipment required for our newly acquired businesses are based on the historical experience of management and businesses they are familiar with. Our management has limited direct experience in operating a business of our current size, as a going concern.well as one that is publicly traded.
We face substantial uncertainties in executing our business plan.Our products could fail to attract or retain users or generate revenue and profits.
We must attain certain objectives in orderAs a result of the Share Exchange, our customer base has changed significantly. Our ability to successfully executedevelop, increase, and engage our business plan over, including certain sales and distribution of AquaBall(TM) Naturally Flavored Water required by the minimum volume requirements for each 12-month period under the Niagara Agreement (the “Annual Commitment”). Failure to sustain sales sufficient to meet our Annual Commitment to Niagara will have a material adverse impact on our business, and no assurances can be given that we will be successful in our efforts.
We believe that, in order to execute our business plan and achieve sales growth, we must, among other things, successfully recruit additional personnel in key positions, develop a larger distribution network, establish a broadernew customer base and increase awareness of our brand name. In order to implement any of these initiatives, we will be required to materially increase our revenue depends heavily on our ability to continue to evolve our existing products and to create successful new products, both independently and in conjunction with developers or other third parties. We may introduce significant changes to our existing products or acquire or introduce new and unproven products, including using technologies with which we have little or no prior development or operating expenses, which may require additional working capital.experience. If we are unablenew or enhanced products fail to secure additional working capital, we will be unable to accomplishengage our objectives, andcustomers, or if we are unableunsuccessful in our monetization efforts, we may fail to accomplish oneattract or more of these objectives,retain customers or to generate sufficient revenue, operating margin, or other value to justify our investments, and our business may fail.be adversely affected.
Our licensing agreements with Disney Consumer Products, Inc. and Marvel Characters, B.V. are critical components of the marketing of the AquaBall(TM) line, and there is no guarantee the licensing agreements will be renewed at the end of each agreement’s term.
We currently have licensing agreements with Disney Consumer Products, Inc. (the “Disney Agreement”) and Marvel Characters, B.V. (the “Marvel Agreement”) that allow us to place popular Disney and Marvel characters on labels of AquaBall(TM) Naturally Flavored Water. The use of these characters, including Disney Princesses and Spider-Man, is critical to making AquaBall(TM) stand out among our competitors. These licensing agreements have varying terms, the Disney Agreement expires in March 31, 2017 and the Marvel Agreement expires in December 2017, and there is no guarantee we will be able to renew these agreements upon expiration, nor are we able to guarantee that we will have licensing agreements with other companies when the Disney Agreement and Marvel Agreement expire.
Certain large shareholderssignificant stockholders may have certain personal interests that may affect the Company.
Together, Brandon Stump and Ryan Stump, the founders of Charlie’s and our Chief Executive Officer and Chief Operating Officer, respectively, currently own in excess of 50% of our issued and outstanding voting securities as a result of the Share Exchange. As a result, of securities held by Mr. Vincent C. Smith,Ryan Stump and Brandon Stump have the Vincent C. Smith, Jr. Annuity Trust 2015-1 (the “Smith Trust”), and Red Beard Holdings, LLC, an entity affiliated with Mr. Smith (“Red Beard”), Mr. Smith may be deemed the beneficial owner of up to 50% of the Company’s outstanding voting securities, after giving effect to certain voting limitations. As a result, Mr. Smith, the Smith Trust and/or Red Beard has the potential ability to exert influence over both the actions of theour Board of Directors, and the outcome of issues requiring approval by our stockholders, as well as the Company’s shareholders.execution of management’s plans. This concentration of ownership may have effects such as delaying or preventing a change in control of the Company that may be favored by other shareholdersstockholders or preventing transactions in which shareholdersstockholders might otherwise recover a premium for their shares over current market prices.
Our limited operating history makes it difficultWe will need to evaluatehire additional qualified accounting and administrative personnel in order to remediate material weaknesses in our prospects.internal control over financial accounting, and we will need to expend additional resources and efforts to establish and maintain the effectiveness of our internal control over financial reporting and our disclosure controls and procedures.
We haveAs a limited operating history on whichpublic company, we are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Sarbanes-Oxley Act of 2002. Our management is required to evaluate and disclose its assessment of the effectiveness of our business and prospects. Our current flagship product, AquaBall(TM) Naturally Flavored Water, was formulated and introducedinternal control over financial reporting as of each year-end, including disclosing any “material weakness” in our internal control over financial reporting. A material weakness is a control deficiency, or combination of control deficiencies, that results in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected. As a result of its assessment, management has determined that there were material weaknesses due to the publiclack of segregation of duties and sufficient internal controls (including technology-based general controls) that encompass our Company as a whole with respect to entity and transactions level controls in order to ensure complete documentation of complex and non-routine transactions and adequate financial reporting. If we continue to experience material weaknesses in our internal controls or fail to maintain or implement required new or improved controls, such circumstances could cause us to fail to meet our periodic reporting obligations or result in material misstatements in our financial statements, or adversely affect the results of periodic management evaluations and, if required, annual auditor attestation reports. Due to these material weaknesses, management concluded that, as of December 31, 2018 and 2017, our internal control over financial reporting was ineffective. Management also concluded that our disclosure controls and procedures were ineffective as of December 31, 2018 and 2017, as well as for salethe quarter ended March 31, 2019. These weaknesses were first identified in our Annual Report on Form 10-K for the year ended December 31, 2012. Our other product, Bazi(R) All Natural Energy,In 2018, we reduced our staff to one employee, and outsourced our accounting and financial functions, further exacerbating our weaknesses in our internal control over financial reporting and our disclosure controls and procedures. Although the number of employees has had limited market success. There can be no assurance that we will achieve significant salesgrown as a result of us focusingthe Share Exchange and the addition of Charlie’s operations, including the hiring of a new Chief Executive Officer, Chief Financial Officer and the accounting and information technology staffs of Charlie’s, we cannot assure you that we will have sufficient resources to resolve these material weaknesses. These weaknesses have the potential to adversely impact our sales efforts onfinancial reporting process and our financial reports. We will need to hire additional qualified accounting and administrative personnel in order to resolve these material weaknesses.
The loss of one or more of our key personnel or our failure to attract and retain other highly qualified personnel in the AquaBall(TM) product, or thatfuture, could harm our new sales model with be successful.business.
We alsocurrently depend on the continued services and performance of key members of our management team, in particular, Ryan Stump and Brandon Stump, Charlie’s founders and our Chief Executive Officer and Chief Operating Officer, respectively, and David Allen, our Chief Financial Officer. If we cannot call upon them or other key management personnel for any reason, our operations and development could be harmed. We have not yet developed a succession plan. Furthermore, as we grow, we will be required to hire and attract additional qualified professionals such as accounting, legal, finance, production, market and sales experts. We may not be successfulable to locate or attract qualified individuals for such positions, which will affect our ability to grow and expand our business.
We rely on contractual arrangements with Don Polly, our consolidated variable interest entity for our CBD-related business operations, which may not be as effective as direct ownership in addressing our other operating challenges, such as developing brand awarenessproviding operational control.
We have relied and expanding our market presence through retail salesexpect to continue to rely on contractual arrangements with Don Polly and our direct-to-consumerits shareholders, consisting of entities controlled by Brandon Stump and online sales strategy. Our prospectsRyan Stump, for profitability must be considered in lightthe operation of our evolvingCBD-related operations. These contractual arrangements may not be as effective as direct ownership in providing us with control over our consolidated variable interest entity. For example, Don Polly and its shareholders could breach their contractual arrangements with us by, among other things, failing to conduct their operations, including maintaining our website and using the domain names and trademarks, in an acceptable manner or taking other actions that are detrimental to our interests.
If we had direct ownership of Don Polly, we would be able to exercise our rights as a shareholder to effect changes in the board of directors of Don Polly, which in turn could implement changes, subject to any applicable fiduciary obligations, at the management and operational level. However, under the current contractual arrangements, we rely on the performance by Don Polly, and its shareholders of their obligations under the contracts. The shareholders of Don Polly may not act in the best interests of our company or may not perform their obligations under these contracts. Such risks exist throughout the period in which we intend to operate our business model.through the contractual arrangements with Don Polly. Therefore, our contractual arrangements with Don Polly, our consolidated variable interest entity, may not be as effective in ensuring our control over the relevant portion of our business operations as direct ownership would be.
The shareholders of Don Polly, our consolidated variable interest entity, may have potential conflicts of interest with us, which may materially and adversely affect our business and financial condition.
The equity interests of Don Polly, our consolidated variable interest entity, are held by entities controlled by Brandon Stump, our Chief Executive Officer, and Ryan Stump, our Chief Operating Officer. Their interests in Don Polly may differ from the interests of our company as a whole. These factors make it difficultshareholders may breach, or cause Don Polly to assessbreach, the existing contractual arrangements we have with them and Don Polly, which would have a material adverse effect on our prospects.ability to effectively control Don Polly and receive economic benefits from it. For example, the shareholders may be able to cause our agreements with Don Polly to be performed in a manner adverse to us by, among other things, failing to remit payments due under the contractual arrangements to us on a timely basis. We cannot assure you that when conflicts of interest arise, any or all of these shareholders will act in the best interests of our company or such conflicts will be resolved in our favor.
Currently, we do not have any arrangements to address potential conflicts of interest between these shareholders and the Company. If we cannot resolve any conflict of interest or dispute between us and the shareholders of Don Polly, we would have to rely on legal proceedings, which could result in the disruption of our business and subject us to substantial uncertainty as to the outcome of any such legal proceedings.
We have no commercial manufacturing capacity and rely on third-party contract manufacturers to produce commercial quantities of Contentsour products.
We do not have the facilities, equipment or personnel to manufacture commercial quantities of our products and therefore must rely on qualified third-party contract manufactures with appropriate facilities and equipment to contract manufacture commercial quantities of products. Any performance failure on the part of our contract manufacturers could delay commercialization of any of our products, depriving us of potential product revenue.
Failure by our contract manufacturers to achieve and maintain high manufacturing standards could result in product recalls or withdrawals, delays or failures in testing or delivery, cost overruns or other problems that could materially adversely affect our business. Contract manufacturers may encounter difficulties involving production yields, quality control and quality assurance. If for some reason our contract manufacturers cannot perform as agreed, we may be required to replace them. Although we believe there are a number of potential replacements, we may incur added costs and delays in identifying and obtaining any such replacements.
The inability of a manufacturer to ship orders of our products in a timely manner or to meet quality standards could cause us to miss the delivery date requirements of our customers for those items, which could result in cancellation of orders, refusal to accept deliveries or a reduction in purchase prices, any of which could have a material adverse effect as our revenue would decrease and we would incur net losses as a result of sales of the product, if any sales could be made.
We are affected by extensive laws, governmental regulations, administrative determinations, court decisions and similar other constraints, which can make compliance costly and subject us to enforcement actions by governmental agencies.
The formulation, manufacturing, packaging, labeling, holding, storage, distribution, advertising and sale of our products are affected by extensive laws, governmental regulations and policies, administrative determinations, court decisions and similar constraints at the federal, state and local levels, both within the United States and in any country where we conduct business. There can be no assurance that we, or our independent distributors, will be in compliance with all of these regulations. A failure by us or our distributors to comply with these laws and regulations could lead to governmental investigations, civil and criminal prosecutions, administrative hearings and court proceedings, civil and criminal penalties, injunctions against product sales or advertising, civil and criminal liability for the Companyus and/or itsour principals, bad publicity, and tort claims arising out of governmental or judicial findings of fact or conclusions of law adverse to the Companyus or itsour principals. In addition, the adoption of new regulations and policies or changes in the interpretations of existing regulations and policies may result in significant new compliance costs or discontinuation of product sales, and may adversely affect the marketing of our products, resulting in decreases in revenues.revenue.
Our ability to increase sales is dependent on growing in our existing markets as well as expanding into new markets in other countries. AsThe business that we expand into foreign markets, we will become subject to different political, cultural, exchange rate, economic, legalconduct outside the U.S. may be adversely affected by international risk and operational risks. We may invest significant amounts in these expansions with little success.uncertainties.
We currentlyAlthough our operations are focusing our marketing effortsbased in the United States, we conduct business outside of the United States and expect to continue to do so in the future. Any business that we conduct outside of the United States is subject to additional risks that may have a lesser extent, Canada.material adverse effect on our ability to continue conducting business in certain international markets, including, without limitation:
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Potentially reduced protection for intellectual property rights;
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Unexpected changes in tariffs, trade barriers and regulatory requirements;
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Economic weakness, including inflation or political instability, in particular foreign economies and markets;
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Business interruptions resulting from geo-political actions, including war and terrorism or natural disasters, including earthquakes, hurricanes, typhoons, floods and fires; and
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Failure to comply with Office of Foreign Asset Control rules and regulations and the Foreign Corrupt Practices Act (“FCPA”).
These factors or any combination of these factors may adversely affect our revenue or our overall financial performance.
Regulatory and Market Risks
Our business is primarily involved in the sales of products that contain nicotine and/or CBD, which faces significant regulation and actions that may have a material adverse effect on our business.
As a result of the Share Exchange, our current business is primarily involved in the sale of products that contain nicotine and/or CBD. The general market in which our products are sold faces significant governmental and private sector actions, including efforts aimed at reducing the incidence of use in minors and efforts seeking to hold the makers and sellers of these products responsible for the adverse health effects associated with them. More broadly, actions by the Food and Drug Administration (“FDA”) and other federal, state or local governments or agencies, may impact the consumer acceptability of or access to our products (for example, through product standards that may be proposed by the FDA for nicotine and flavors), limit adult consumer choices, delay or prevent the launch of new or modified products or products with claims of reduced risk, require the recall or other removal of certain products from the marketplace (for example, a determination by the FDA that one or more products do not satisfy the statutory requirements for substantial equivalence, because the FDA requires that currently-marketed products proceed through the pre-market review process or because the FDA otherwise determines that removal is necessary for the protection of public health), restrict communications to adult consumers, restrict the ability to differentiate products, create a competitive advantage or disadvantage for certain companies, impose additional manufacturing, labeling or packaging requirements, interrupt manufacturing or otherwise significantly increase the cost of doing business, or restrict or prevent the use of specified products in certain locations or the sale of products by certain retail establishments. Any one or more of these actions may also have a material adverse effect on our business. Each of our products is subject to intense competition and changes in adult consumer preferences, which may have a material adverse effect on our business.
Our products contain nicotine, which is considered to be a highly addictive substance.
Certain of our products contain nicotine, a chemical found in cigarettes, e-cigarettes, certain other vapor products and other tobacco products, which is considered to be highly addictive. The Family Smoking Prevention and Tobacco Control Act empowers the FDA to regulate the amount of nicotine found in vapor products, but may not require the reduction of nicotine yields of a vapor product to zero. Any FDA regulation may require us to reformulate, recall and or discontinue certain of the products we may sell from time to time, which may have a material adverse effect on our ability to market our products and have a material adverse effect on our business, financial condition, results of operations, cash flows and or future prospects.
Vapor products have become subject to regulation by the FDA.
In 2016, the FDA finalized a rule extending the regulatory authority to cover all tobacco products, including vaporizers, vape pens, hookah pens, e-cigarettes, e-pipes, and all other Electronic Nicotine Delivery Systems (“ENDS”). The FDA now regulates the manufacture, import, packaging, labeling, advertising, promotion, sale, and distribution of ENDS. This includes components and parts of ENDS, but excludes accessories. Under the new guidance, any company that makes, modifies, mixes, manufactures, fabricates, assembles, processes, labels, repacks, relabels, or imports any tobacco product is considered a tobacco product manufacturer.
However, recent statements by the FDA have begun to clear up the agency’s position on nicotine-free e-liquids and synthetic nicotine. According to court statements made by the FDA, some devices that truly contain no nicotine (or only synthetic nicotine) may not be subject to the deeming regulations, depending on the circumstances in which they are likely to be used. Some disposable, closed-system devices with zero-nicotine or synthetic nicotine e-liquids may also escape regulation as tobacco products if they meet certain further criteria. We believe that certain of our products, which do not contain nicotine, fall under this guidance and are not regulated by the FDA. However, even if products currently fall outside the scope of the deeming rule, the FDA could choose to regulate them later.
The recent development of vapor products has not yet allowed the medical profession to study the long-term health effects attributable to the use of such products.
Because vapor products have been developed and commercialized recently, the medical profession has not yet had a sufficient period of time to study the long-term health effects attributable to vapor product use. As a result, there is currently no way of knowing whether or not vapor products are safe for their intended use. If the medical profession were to determine conclusively that vapor product usage poses long-term health risks, the use of such products could decline, which could have a material adverse effect on our business, results of operations and financial condition.
The market for vapor products is a niche market, subject to a great deal of uncertainty, and is still evolving.
Vapor products, having recently been introduced to market, are still at an early stage of development, represent a niche market, are evolving rapidly and are characterized by an increasing number of market entrants. Our future sales and any future profits are substantially dependent upon the widespread acceptance and use of vapor products. Rapid growth will come from bothin the marketsuse of, and interest in, vapor products is recent, and may not continue on a lasting basis. The demand and market acceptance for these products is subject to a high level of uncertainty. Therefore, we are subject to all of the business risks associated with a new enterprise in a niche market, including risks of unforeseen capital requirements, failure of widespread market acceptance of vapor products, in general or, specifically our products, failure to establish business relationships and competitive disadvantages as against larger and more established competitors.
Possible yet unanticipated changes in federal and state law could cause any of our current products, as well as products that we areintend to launch, containing hemp-derived CBD oil to be illegal, or could otherwise prohibit, limit or restrict any of our products containing CBD.
We recently launched and commenced distribution of certain premium vapor products containing hemp-derived CBD, and we currently operatingintend to develop and launch additional products containing hemp-derived CBD in the future. Until 2014, when 7 U.S. Code §5940 became federal law as part of the Agricultural Act of 2014 (the “2014 Farm Act”), products containing oils derived from hemp, notwithstanding a minimal or non-existing THC content, were classified as Schedule I illegal drugs. The 2014 Farm Act expired on September 30, 2018, and was thereafter replaced by the Agricultural Improvement Act of 2018 on December 20, 2018 (the “2018 Farm Act”), which amended various sections of the U.S. Code, thereby removing hemp, defined as cannabis with less than 0.3% THC, from Schedule 1 status under the Controlled Substances Act, and legalizing the cultivation and sale of industrial-hemp at the federal level, subject to compliance with certain federal requirements and state law, amongst other international markets. We do not have any historythings. THC is the psychoactive component of international expansion, and therefore haveplants in the cannabis family generally identified as marihuana or marijuana. There is no assurance that any effortsthe 2018 Farm Act will result in increased revenue. Additionally, we may need to overcome significant regulatory and legal barriers in order to sellnot be repealed or amended such that our products and we cannot give assurance as to whether our distribution method willcontaining hemp-derived CBD would once again be accepted. These markets may require that we reformulate our product to comply with local customs and laws. However, there is no guarantee that the reformulated product will be approved for sale by these regulatory agencies or attract local distributors.deemed illegal under federal law.
We are currently dependent on a limited numberThe 2018 Farm Act delegates the authority to the states to regulate and limit the production of suppliershemp and manufacturershemp derived products within their territories. Although many states have adopted laws and regulations that allow for the production and sale of ourhemp and hemp derived products and we do not independently analyze our products before distribution. If we are not able to ensure timely product deliveries, potential distributors and customersunder certain circumstances, no assurance can be given that such state laws may not orderbe repealed or amended such that our intended products containing hemp-derived CBD would once again be deemed illegal under the laws of one or more states now permitting such products, which in turn would render such intended products illegal in those states under federal law even if the federal law is unchanged. In the event of either repeal of federal or of state laws and regulations, or of amendments thereto that are adverse to our revenuesintended products, we may decrease.be restricted or limited with respect to those products that we may sell or distribute, which could adversely impact our intended business plan with respect to such intended products.
Additionally, the FDA has indicated its view that certain types of products containing CBD may not be permissible under the FDCA. The FDA’s position is related to its approval of Epidiolex, a marijuana-derived prescription medicine to be available in the United States. The active ingredient in Epidiolex is CBD. On December 20, 2018, after the passage of the 2018 Farm Bill, FDA Commissioner Scott Gottlieb issued a statement in which he reiterated the FDA’s position that, among other things, the FDA requires a cannabis product (hemp-derived or otherwise) that is marketed with a claim of therapeutic benefit, or with any other disease claim, to be approved by the FDA for its intended use before it may be introduced into interstate commerce and that the FDCA prohibits introducing into interstate commerce food products containing added CBD, and marketing products containing CBD as a dietary supplement, regardless of whether the substances are hemp-derived. Although we believe our existing and planned CBD product offerings comply with applicable federal and state laws and regulations, legal proceedings alleging violations of such laws could have a material adverse effect on our business, financial condition and results of operations.
Sources of hemp-derived CBD depend upon legality of cultivation, processing, marketing and sales of products derived from those plants under state law.
Hemp-derived CBD can only be legally produced in states that have laws and regulations that allow for such production and that comply with the 2018 Farm Act, apart from state laws legalizing and regulating medical and recreational cannabis or marijuana, which remains illegal under federal law and regulations. We rely entirely on a limited numberpurchase all of third parties to supplyour hemp-derived CBD from licensed growers and manufacture our product, and, beginningprocessors in states where such production is legal. As described in the second quarter of 2016, we will rely entirely on Niagara to manufacture AquaBall(TM). These manufacturers may be unable to satisfy our supply requirements, manufacture our products on a timely basis, fill and ship our orders promptly, provide services at competitive costs or offer reliable products and services. The failure to meet any of these critical needs would delay or reduce product shipment and adversely affect our revenues, as well as jeopardize our relationships with our independent distributors and customers. Inpreceding risk factor, in the event any of our manufacturers wererepeal or amendment of laws and regulations which are now favorable to become unable or unwilling to continue to provide us with productsthe cannabis/hemp industry in required volumes and at suitable quality levels,such states, we would be required to identifylocate new suppliers in states with laws and obtain acceptable replacement manufacturing sources.regulations that qualify under the 2018 Farm Act. If we were to be unsuccessful in arranging new sources of supply of our raw ingredients, or if our raw ingredients were to become legally unavailable, our intended business plan with respect to such products could be adversely impacted.
Because our distributors may only sell and ship our products containing hemp-derived CBD in states that have adopted laws and regulations qualifying under the 2018 Farm Act, a reduction in the number of states having such qualifying laws and regulations could limit, restrict or otherwise preclude the sale of intended products containing hemp-derived CBD.
The interstate shipment of hemp-derived CBD from one state to another is legal only where both states have laws and regulations that allow for the production and sale of such products and that qualify under the 2018 Farm Act. Therefore, the marketing and sale of our intended products containing hemp-derived CBD is limited by such factors and is restricted to such states. Although we believe we may lawfully sell any of our finished products, including those containing CBD, in a majority of states, a repeal or adverse amendment of laws and regulations that are now favorable to the distribution, marketing and sale of finished products we intend to sell could significantly limit, restrict or prevent us from generating revenue related to our products that contain hemp-derived CBD. Any such repeal or adverse amendment of now favorable laws and regulations could have an adverse impact on our business plan with respect to such products.
Due to recent expansion into the CBD industry, we may have a difficult time obtaining the various insurances that are desired to operate our business, which may expose us to additional risk and financial liability.
Insurance that is otherwise readily available, such as general liability, and directors and officer’s insurance, may become more difficult for us to find, and more expensive, due to our recent launch of certain products containing hemp-derived CBD. There isare no assuranceguarantees that we wouldwill be able to obtain alternative manufacturing sources on a timely basis. Additionally, all manufacturers source the raw materials for our products, and if we were to use alternative manufacturers we may not be able to duplicate the exact taste and consistency profile of the product from the original manufacturer. An extended interruptionfind such insurances in the supply offuture, or that the cost will be affordable to us. If we are forced to go without such insurances, it may prevent us from entering into certain business sectors, may inhibit our products would result in decreased product salesgrowth, and our revenues would likely decline.
We are dependent on our third party manufacturersmay expose us to supply our products in the compositions we require,additional risk and we do not independently analyze our products. Any errors in our product manufacturing could result in product recalls, significant legal exposure, and reduced revenues and the loss of distributors.
Although we require each of our manufacturers to verify the accuracy of the contents of our products, we do not have the expertise or personnel to monitor the production of products by these third parties. We rely exclusively, without independent verification, on certificates of analysis regarding product content provided by our third party suppliers and limited safety testing by them. We cannot be assured that these outside manufacturers will continue to supply products to us reliably in the compositions we require. Errors in the manufacture of our products could result in product recalls, significant legal exposure, adverse publicity, decreased revenues, and loss of distributors and endorsers.financial liabilities.
We face significant competition from existing suppliers of products similar to ours. If we are not able to compete with these companies effectively, we may not be able to achieve profitability.
We face intense competition from numerous resellers, manufacturers and wholesalers of liquid nutrition drinkse-liquids similar to ours, includingthose developed and sold by us, from both retail online and mail orderonline providers. We considerface competition from direct and indirect competitors, which arguably includes “big tobacco,” “big pharma,” and other known and established or yet to be formed vapor product manufacturing companies, each of whom pose a competitive threat to our current business and future prospects. We compete against “big tobacco,” who offers not only conventional tobacco cigarettes and electronic cigarettes, but also smokeless tobacco products such as “snus” (a form of moist ground smokeless tobacco that is usually sold in sachet form that resembles small tea bags), chewing tobacco and snuff. “Big tobacco” has nearly limitless resources, global distribution networks in place and a customer base that is fiercely loyal to their brands. Furthermore, we believe that “big tobacco” is likely to devote more attention and resources to developing and offering electronic cigarettes or other vapor products as the significant competing productsmarket for electronic cigarettes grows. Because of their well-established sales and distribution channels, marketing depth, financial resources, and proven expertise navigating complex regulatory landscapes, “big tobacco” is better positioned than small competitors like us to capture a larger share of the vapor markets. We also face competition from companies in the U.S.vapor market for the AquaBall(TM) to be Capri-Sun, Good to Grow, Bug Juice,that are much larger, better funded, and other alternatives marketed towards children, and for Bazi(R) to be Red Bull(R), Monster(R), RockStar(R), and 5 Hour Energy(R). Most of our competitors have longer operating histories,more established brands in the marketplace, revenues significantly greater than ours and better access to capital than us. We expect that these competitors may use their resources to engage in various business activities that could result in reduced sales of our products.
Companies with greater capital and research capabilities could re-formulate existing products or formulate new products that could gain wide marketplace acceptance, which could have a depressive effect on our future sales. In addition, aggressive advertising and promotion by our competitors may require us to compete by lowering prices because we do not have the resources to engage in marketing campaigns against these competitors, and the economic viability of our operations likely would be diminished.
Adverse publicity associated with our products or ingredients, or those of similar companies, could adversely affect our sales and revenues.revenue.
Adverse publicity concerning any actual or purported failure of our Companyby us to comply with applicable laws and regulations regarding any aspect of our business could have an adverse effect on the public perception of ourthe Company. This, in turn, could negatively affect our ability to obtain financing, endorsers and attract distributors or retailers for the AquaBall(TM) and/or Bazi(R),our products, which would have a material adverse effect on our ability to generate sales and revenues.revenue.
Our distributors’ and customers’ perception of the safety and quality of our products or even similar products distributed by others can be significantly influenced by national media attention, publicized scientific research or findings, product liability claims and other publicity concerning our products or similar products distributed by others. Adverse publicity, whether or not accurate, that associates consumption of our products or any similar products with illness or other adverse effects, will likely diminish the public’s perception of our products. Claims that any products are ineffective, inappropriately labeled or have inaccurate instructions as to their use, could have a material adverse effect on the market demand for our products, including reducing our sales and revenues.revenue.
Our products may not meet health and safety standards or could become contaminated.
We have adopted various quality, environmental, health and safety standards. We do not have control over all of the third parties involved in the manufacturing of our products and their compliance with government health and safety standards. Even if our products meet these standards, they could otherwise become contaminated. A failure to meet these standards or contamination could occur in our operations or those of our bottlers,manufacturers, distributors or suppliers. This could result in expensive production interruptions, recalls and liability claims. Moreover, negative publicity could be generated from false, unfounded or nominal liability claims or limited recalls. Any of these failures or occurrences could negatively affect our business and financial performance.
The sale of our products involves product liability and related risks that could expose us to significant insurance and loss expenses.
We face an inherent risk of exposure to product liability claims if the use of our products results in, or is believed to have resulted in, illness or injury. Most of ourOur products contain combinations of ingredients, and there is little long-term experience with the effect of these combinations. In addition, interactions of these products with other products, prescription medicines and over-the-counter drugs have not been fully explored or understood and may have unintended consequences. While our third partythird-party manufacturers perform tests in connection with the formulations of our products, these tests are not designed to evaluate the inherent safety of our products.
Although we maintain product liability insurance, it may not be sufficient to cover all product liability claims and such claims that may arise, could have a material adverse effect on our business. The successful assertion or settlement of an uninsured claim, a significant number of insured claims or a claim exceeding the limits of our insurance coverage would harm us by adding further costs to our business and by diverting the attention of our senior management from the operation of our business. Even if we successfully defend a liability claim, the uninsured litigation costs and adverse publicity may be harmful to our business.
Any product liability claim may increase our costs and adversely affect our revenuesrevenue and operating income. Moreover, liability claims arising from a serious adverse event may increase our costs through higher insurance premiums and deductibles and may make it more difficult to secure adequate insurance coverage in the future. In addition, our product liability insurance may fail to cover future product liability claims, which, if adversely determined, could subject us to substantial monetary damages.
The success of our business will depend upon our ability to create and expand our brand awareness.
The market for functional beverageswe compete in is already highly competitive, with many well-known brands leading the industry. Our ability to compete effectively and generate revenue will be based upon our ability to create and expand awareness of our products distinct from those of our competitors. It is imperative that we are able to convey to consumers the benefits of our products. However, advertising and packaging and labeling of such products will be limited by various regulations. Our success will be dependent upon our ability to convey to consumers that our products are superior to those of our competitors.
We must continue to develop and introduce new products to succeed.
The functional beverage and nutritional supplementOur industry is subject to rapid change. New products are constantly introduced to the market. Our ability to remain competitive depends in part on our ability to enhance existing products, continue to develop and manufacture new products in a timely and cost effectivecost-effective manner, to accurately predict market transitions, and to effectively market our products. Our future financial results will depend to a great extent on the successful introduction of several new products. We cannot be certain that we will be successful in selecting, developing, manufacturing and marketing new products or in enhancing existing products.
The success of new product introductions depends on various factors, including, without limitation, the following:
| ● | proper new product selection; |
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| ● | successful sales and marketing efforts; |
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| ● | timely delivery of new products; |
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| ● | availability of raw materials; |
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| ● | pricing of raw materials; |
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| ● | regulatory allowance of the products; and |
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| ● | customer acceptance of new products. |
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proper new product selection;
We may from time to time write off obsolete inventories resulting in higher expenses●
successful sales and consequently greater net losses.marketing efforts;
As we sometimes produce product adorned with characters on a promotional schedule, over production●
timely delivery of a certain character set could result in write-downs of our inventories. A change in ingredients or labeling requirements could also result in the obsolescence of certain inventory. Write-downs of this type could make it more difficult for us to achieve profitability.new products;
Product returns could require us to incur significant additional expenses, which would make it difficult for us to achieve profitability.●
availability of raw materials;
We have not established a reserve in our financial statements for product returns. However, we may experience product returns as we focus on●
pricing of raw materials;
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regulatory allowance of the AquaBall(TM) lineproducts; and
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customer acceptance of products and expand our market presence nationwide. We will continue to analyze our returns to determine if a reserve is necessary. If our reserves prove to be inadequate, we may incur significant expenses for product returns. As we gain more operating experience, we may need to establish a reserve for product returns. new products.
If we are not able to adequately protect our intellectual property, then we may not be able to compete effectively, and we may not be profitable.
Our existing proprietary rights may not afford remedies and protections necessary to prevent infringement, reformulation, theft, misappropriation and other improper use of our products by competitors. We own the formulations contained infor our products and the patent for the AquaBall(TM) bottle. Wewe consider this patent and these product formulations our critical proprietary property, which must be protected from competitors. We do not currently have any patents for our product formulations because we do not believe they are necessary to protect our proprietary rights.formulations. Although trade secret, trademark, copyright and patent laws generally provide sucha certain level of protection, and we attempt to protect ourselves through contracts with manufacturers of our products, we may not be successful in enforcing our rights. In addition, enforcement of our proprietary rights may require lengthy and expensive litigation. We have attempted to protect some of the trade names and trademarks used for our products by registering them with the U.S. Patent and Trademark Office, but we must rely on common law trademark rights to protect our unregistered trademarks. Common law trademark rights do not provide the same remedies as are granted to federally registered trademarks, and the rights of a common law trademark are limited to the geographic area in which the trademark is actually used. Our inability to protect our intellectual property could have a material adverse impact on our ability to compete and could make it difficult for us to achieve a profit.
Compliance with changing corporate governance regulations and public disclosures may result in additional risks and exposures.
Changing laws, regulations and standards relating to corporate governance and public disclosure, including the Sarbanes-Oxley Act of 2002 and new regulations from the SEC, have created uncertainty for public companies such as ours. These laws, regulations, and standards are subject to varying interpretations in many cases, and as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies. This could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. As a result, our efforts to comply with evolving laws, regulations, and standards have resulted in, and are likely to continue to result in, increased expensesexpense and significant management time and attention.
Loss of key personnel could impair our ability to operate.
Our success depends on hiring, retaining and integrating senior management and skilled employees. We are currently dependent on certain current key employees, specifically Kevin Sherman, our Chief Executive Officer, who is vital to our ability to grow our business and achieve profitability. As with all personal service providers, our officers can terminate their relationship with us at will. Our inability to retain these individuals may result in our reduced ability to operate our business.
Risks Related to Our Common Stock
A limited trading market currently exists for our securities, and we cannot assure you that an active market will ever develop, or if developed, will be sustained.
There is currently a limited trading market for our securitiescommon stock on the OTC Pink Marketplace. AnMarketplace and an active trading market for our common stock may not develop. Consequently, we cannot assure you when and if an active-trading market in our shares will be established, or whether any such market will be sustained or sufficiently liquid to enable holders of shares of our common stock to liquidate their investment in our company.Company. If an active public market should develop in the future, the sale of unregistered and restricted securities by current shareholdersstockholders may have a substantial impact on any such market.
If, and when, then shares of common stock underlying the shares of Series C Preferred and outstanding warrants are issued, our shareholders will experience immediate and substantial dilution in the book value of their investment.
If, and when, holders of shares of Series C Preferred, including the Selling Stockholders, decide to convert those shares into common stock or exercise their Warrants, the number of shares of our common stock issued and outstanding could increase significantly. Conversion of all or a portion of the shares of Series C Preferred, Warrants and/or exercise of all or a portion of our other outstanding derivative securities would have a substantial and material dilutive effect on our existing stockholders and on our earnings per share. In addition, sale of the shares of common stock by certain holders of shares of Series C Preferred and Warrants could have a materially adverse impact on the trading price of our common stock.
If we issue additional shares of common stock in the future, it will result in the dilution of our existing shareholders.stockholders.
Our Articles of Incorporation authorizeCharter currently authorizes the issuance of up to 300.0 million50.0 billion shares of common stock.stock, of which approximately 18.9 billion shares are currently issued and outstanding. In addition, we have reserved approximately 9.8 billion shares for issuance upon conversion and/or exercise of our outstanding shares of Series A Preferred, warrants and stock options, as well as for issuance as awards under our 2019 Omnibus Incentive Plan. The issuance of any suchadditional shares of our common stock, including those shares issuable upon conversion and/or exercise of our outstanding derivative securities, will result in significant dilution to our stockholders and a reduction in value of our outstanding common stock. If we do issue any such additional shares of common stock, such issuance also will cause a reduction in the proportionate ownership and voting power of all other shareholders. Further, any such issuance may result in a change of control of our corporation.
Holders of Series A Convertible Preferred Stock have substantial rights and ranks senior to our common stock
Our common stock ranks junior as to dividend rights, redemption rights, conversion rights and rights in any liquidation, dissolution or winding-up of the Company to the Series A Preferred. Upon liquidation, dissolution or winding-up of the Company, the holders of the Series A Preferred are entitled to a liquidation preference equal to the original purchase price of Series A Preferred prior to and in preference to any distribution to the holders of our common stock. In addition, the holders of the Series A Preferred are also entitled to an annual 8% dividend payable in cash or shares of our common stock. Such rights could cause dilution of our common stock or limit our cash.
Our outstanding Series A Preferred contains anti-dilution provisions that, if triggered, could cause substantial dilution to our then-existing common stock holders which could adversely affect our stock price.
Our outstanding Series A Preferred contains certain anti-dilution provisions that benefit the holders thereof. As a result, if we, in the future, issue common stock or grant any rights to purchase our common stock or other securities convertible into our common stock for a per share price less than the then existing conversion price of the Series A Preferred, an adjustment to the then current conversion price would occur. This reduction in the conversion price could result in substantial dilution to our then-existing common stockholders as well as give rise to a beneficial conversion feature reported on our statement of operations. Either or both of which could adversely affect the price of our common stock.
The price of our securities could be subject to wide fluctuations and your investment could decline in value.
The market price of the securities of a company such as ours with little name recognition in the financial community and without significant revenues can be subject to wide price swings. The market price of our securitiescommon stock may be subject to wide changes in response to quarterly variations in operating results, announcements of new products by us or our competitors, reports by securities analysts, volume trading, or other events or factors. In addition, the financial markets have experienced significant price and volume fluctuations for a number of reasons, including the failure of certain companies to meet market expectations. These broad market price swings, or any industry-specific market fluctuations, may adversely affect the market price of our securities.
Companies that have experienced volatility in the market price of their stock have been the subject of securities class action litigation. If we were to become the subject of securities class action litigation, it could result in substantial costs and a significant diversion of our management’s attention and resources.
Because our common stock may be classified as “penny stock,” trading may be limited, and the share price could decline. Moreover, trading of our common stock, if any, may be limited because broker-dealers would be required to provide their customers with disclosure documents prior to allowing them to participate in transactions involving our common stock. These disclosure requirements are burdensome to broker-dealers and may discourage them from allowing their customers to participate in transactions involving our common stock.
We have issued preferred stock with rights senior to our common stock, and may issue additional preferred stock in the future, in order to consummate a merger or other transaction necessary to continue as a going concern.future.
Our Articles of IncorporationCharter authorizes the issuance of up to 5.0 million shares of preferred stock, par value $0.001 per share, without shareholderstockholder approval and on terms established by our directors, of which 2.75300,000 shares have been designated as Series A Preferred and 1.5 million shares have been designated as Series B Convertible Preferred Stock and 200,000 shares have been designated as Series C Convertible Preferred Stock.Preferred. We may issue additional shares of preferred stock in the future in order to consummate a financing or other transaction, in lieu of the issuance of shares of our common stock. The rights and preferences of any such class or series of preferred stock would be established by our boardBoard of directorsDirectors in its sole discretion and may have dividend, voting, liquidation and other rights and preferences that are senior to the rights of the common stock.
You may not be able to hold our securities in your regular brokerage account.
In the case of publicly-traded companies, it is common for a broker to hold securities on your behalf, in “street name” (meaning the broker is shown as the holder on the issuer’s records and then you show up on the broker’s records as the person the broker is holding for). Due to regulatory uncertainties, certain brokers may not agree to hold securities of companies whose products include hemp-derived CBD for their customers, meaning that you may not be able to take advantage of the convenience of having all your holdings reflected in one place.
You should not rely on an investment in our common stock for the payment of cash dividends.
Because of our previous significant operating losses and because we intend to retain future profits, if any, to expand our business, we have never paid cash dividends on our common stock and do not anticipate paying any cash dividends in the foreseeable future. You should not make an investment in our common stock if you require dividend income. Any return on investment in our common stock would only come from an increase in the market price of our stock, which is uncertain and unpredictable.
Additional risks may exist since we became public through a public shell “reverse merger.”
Because we became public by means of a public shell “reverse merger,” we may not be able to attract the attention of major brokerage firms. Securities analysts of major brokerage firms may not provide coverage of us since there is little incentive to brokerage firms to recommend the purchase of our common stock. We cannot assure you that brokerage firms will want to conduct any secondary offerings on behalf of the Company in the future.
We will not receive any of the proceeds of the shares offered by the Selling Stockholders. We may receive proceeds upon exercise of the Warrants, the Personal Guaranty Warrant and/or the Novelty Warrant, if exercised. The funds that may be received by us upon exercise of the Warrant, the Personal Guaranty Warrant and the Novelty Warrant, estimated to be as much as approximately $3.6 million, will be used for general working capital purposes.
This prospectus includescontains forward-looking statements that relate toinvolve substantial risks and uncertainties. All statements contained in this prospectus other than statements of historical facts, including statements regarding our strategy, future events or ouroperations, future financial performanceposition, future revenue, projected costs, prospects, plans, objectives of management and expected market growth, are forward-looking statements. These statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, levels of activity, performance or achievements to differbe materially different from any future results, levels of activity, performance or achievements expressed or implied by thesethe forward-looking statements. Words such as, but not limited to,
The words “anticipate,” “believe,” “estimate,” “expect,” “anticipate,“intend,” “estimate,” “intend,“may,” “plan,” “targets,“predict,” “likely,“project,” “target,” “potential,” “will,” “would,” “could,” “should,” “continue,” and similar expressions or phrasesare intended to identify forward-looking statements. Forward-lookingstatements, although not all forward-looking statements contain these identifying words. These forward-looking statements include, but are not limited to,among other things, statements about:
| · | our ability to implement our business strategy, including the transition from a hardware storage company to a software solutions and services provider; |
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anticipated trends and challenges in our business and the markets in which we operate;
| · | anticipated trends and challenges in our business and the markets in which we operate; |
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the impact of regulation of our nicotine-based and CBD-based products;
| · | our expected future financial performance; |
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the accuracy of our estimates regarding expenses, future revenue and capital requirements;
| · | our expectations regarding our operating expenses; |
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our ability to anticipate market needs or develop new or enhanced products to meet those needs;
| · | our ability to anticipate market needs or develop new or enhanced products to meet those needs; |
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our expectations regarding market acceptance of our products;
| · | our ability to expand into other sectors of the storage market, beyond protection storage; |
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the success of competing products by others that are or become available in the market in which we sell our products;
| · | our expectations regarding market acceptance of our products; |
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our ability to protect our proprietary information and trademarks;
| · | our ability to compete in our industry and innovation by our competitors; |
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our ability to manage additional expansion into international markets;
| · | our ability to protect our confidential information and intellectual property rights; |
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our ability to maintain or broaden our business relationships and develop new relationships with strategic alliances, suppliers, customers, distributors or otherwise; and
| · | our ability to successfully identify and manage any potential acquisitions; |
| · | our ability to manage expansion into international markets; |
| · | our ability to remediate the material weakness in our internal controls identified by our independent registered public accounting firm; |
| · | our ability to maintain or broaden our business relationships and develop new relationships with strategic alliances, suppliers, customers, distributors or otherwise; |
| · | our ability to recruit and retain qualified sales, technical and other key personnel; |
| · | our ability to obtain additional financing; and |
| · | our ability to manage growth. |
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All forward-looking statements involveother risks assumptions and uncertainties. The occurrence of the events uncertainties, including thosedescribed and the achievement of the expected results, depend on many events, some or all of which are not predictable or within our control. Actual results may differ materially from expected results. See the section titledunder “Risk Factors” and elsewhere in this prospectus for a more complete discussion of these risks, assumptions and uncertainties and for other risks and uncertainties. These risks, assumptions and uncertainties are not necessarily all of the important factors that could cause actual results to differ materially from those expressed in any of our forward-looking statements. Other unknown or unpredictable factors also could harm our results. In light of these risks, uncertainties and assumptions, the forward-looking events discussed in this prospectus might not occur.prospectus.
Readers are cautioned not to place undue reliance onThese forward-looking statements as there can be no assurance thatare only predictions and we may not actually achieve the plans, intentions or expectations upon which they are based will occur. By their nature,disclosed in our forward-looking statements, involve numerous assumptions, knownso you should not place undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and unknown risks and uncertainties, both general and specific, that contribute to the possibility that the predictions, forecasts, projections and other things contemplated byexpectations disclosed in the forward-looking statements will not occur. Forward-looking statements in this prospectus arewe make. We have based on management’s beliefs and opinions at the time the statements are made. Thethese forward-looking statements containedlargely on our current expectations and projections about future events and trends that we believe may affect our business, financial condition and operating results. We have included important factors in this prospectus are expressly qualified in their entirety by thisthe cautionary statement. The forward-looking statements included in this prospectus, are made asthat could cause actual future results or events to differ materially from the forward-looking statements that we make. Our forward-looking statements do not reflect the potential impact of the date ofany future acquisitions, mergers, dispositions, joint ventures or investments we may make.
You should read this prospectus andwith the understanding that our actual future results may be materially different from what we undertake noexpect. We do not assume any obligation to publicly update or revise any forward-looking statements to reflectwhether as a result of new information, future events or otherwise, except as required by applicable law.
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION The following unaudited pro forma condensed combined financial information was prepared under United States generally accepted accounting principles (“U.S. GAAP”), and gives effect to the transaction between Charlie's Chalk Dust, LLC, a Delaware limited liability company (“Charlie’s”) and Charlie’s Holdings, Inc., formerly known as True Drinks Holdings, Inc. (the “Company”), to be accounted for as a reverse recapitalization under U.S. GAAP (the “Merger”). In addition, the pro forma condensed combined financial information gives effect to the issuance of 1,551,445,702 shares of common stock, 4,654,349,239 shares of common stock issuable upon conversion of 206,249 shares of Series A Convertible Preferred Stock (“Series A Preferred”) and warrants to purchase 3,102,899,493 shares of common stock for aggregate gross proceeds of $27.5 million (the “Financing”). The warrants have a five-year term and the exercise price of $0.0044313 per share, subject to certain adjustments. The closing of the Financing occurred immediately prior to the closing of the Merger and was contingent upon the satisfaction or waiver of all conditions precedent to the closing of the Merger. Katalyst Securities, LLC (“Katalyst”) acted as the sole placement agent in connection with the Financing. As consideration for its services in connection with the Financing and corresponding Share Exchange, the Company issued to Katalyst and its designees five-year warrants to purchase an aggregate of 930,869,848 shares of Common Stock at a price of $0.0044313 per share (the “Placement Agent Warrants”).
The Merger is accounted for as a reverse recapitalization under U.S. GAAP because the primary assets of the Company were nominal following the close of the Merger. Charlie’s was determined to be the accounting acquirer based upon the terms of the Merger and other factors including: (i) Charlie’s stockholders and other persons holding securities laws.convertible, exercisable or exchangeable directly or indirectly for Charlie’s membership units now own approximately 49%, on a fully diluted basis, of the Company’s outstanding securities immediately following the effective time of the Merger, (ii) individuals associated with Charlie’s now hold a majority of the seats on the Company’s Board of Directors and (iii) Charlie’s management holds all key positions in the management of the combined Company.
The following unaudited pro forma condensed combined financial statements are based on Charlie’s historical financial statements and the Company’s historical financial statements, as adjusted, to give effect to Charlie’s reverse recapitalization of the Company and the Financing. The unaudited pro forma condensed combined statements of operations for the three months ended March 31, 2019 and the year ended December 31, 2018 give effect to these transactions as if they had occurred on January 1, 2018. The unaudited pro forma condensed combined balance sheet as of March 31, 2019 gives effect to these transactions as if they had occurred on March 31, 2019.
Because Charlie’s will be treated as the acquirer under the reverse recapitalization, Charlie’s and the Company’s assets and liabilities will be recorded at their precombination carrying amounts in the unaudited pro forma condensed combined financial information. The historical consolidated financial statements have been adjusted in the unaudited pro forma combined condensed consolidated financial statements to give effect to pro forma events that are: (i) directly attributable to the Merger; (ii) factually supportable; and (iii) with respect to the unaudited pro forma condensed combined statements of operations, expected to have a continuing impact on the combined results of Charlie’s and the Company following the Merger.
The unaudited pro forma condensed combined financial information is based on the assumptions and adjustments that are described in the accompanying notes. Accordingly, the pro forma adjustments are preliminary, subject to further revision as additional information becomes available and additional analyses are performed and have been made solely for the purpose of providing unaudited pro forma condensed combined financial information. Differences between these preliminary estimates and the final reverse recapitalization accounting, expected to be completed after the closing of the transaction, will occur and these differences could have a material impact on the accompanying unaudited pro forma condensed combined financial information and the combined organization’s future results of operations and financial position.
The unaudited pro forma condensed combined financial information does not give effect to the potential impact of current financial conditions, regulatory matters, operating efficiencies or other savings or expenses, if any, that may be associated with the integration of the two companies. The unaudited pro forma condensed combined financial information is preliminary and has been prepared for illustrative purposes only and is not necessarily indicative of the financial position or results of operations in future periods or the results that actually would have been realized had the Company and Charlie’s been a combined organization during the specified periods. The actual results reported in periods following the transaction may differ significantly from those reflected in the pro forma condensed combined financial information presented herein for a number of reasons, including, but not limited to, differences between the assumptions used to prepare this pro forma condensed combined financial information.
The assumptions and estimates underlying the unaudited adjustments to the pro forma condensed combined financial statements are described in the accompanying notes, which should be read together with the pro forma condensed combined financial statements.
The unaudited pro forma condensed combined financial statements should be read together with the Company’s historical financial statements, which are included in the Company’s latest Annual Report on Form 10-K filed with the Securities and Exchange Commission (“SEC”) on April 1, 2019 and the March 31, 2019 results included in the Company’s report on Form 10-Q filed with the SEC on May 15, 2019, and Charlie’s historical information included herein.
Unaudited Pro Forma Combined Balance Sheet as of March 31, 2019
| | | | | | |
| | | | | | |
| | | | | | |
| ASSETS | | | | | |
| Current assets | | | | | |
| Cash and cash equivalents | $1,243,081 | $401 | $23,161,334 | (d) | $6,904,816 |
| | | | (17,500,000) | (d) | |
| Accounts receivable | 1,103,118 | 1,173 | - | | 1,104,291 |
| Inventory, net | 677,768 | 25,657 | - | | 703,425 |
| Prepaid expense and other current assets | 420,397 | - | - | | 420,397 |
| Total current assets | 3,444,364 | 27,231 | 5,661,334 | | 9,132,929 |
| | | | | | |
| Property and equipment, net | 54,652 | - | - | | 54,652 |
| Goodwill | - | 1,576,502 | (1,576,502) | (b) | - |
| Other assets | 79,847 | - | - | | 79,847 |
| Total assets | $3,578,863 | $1,603,733 | $4,084,832 | | $9,267,428 |
| | | | | | |
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) | | | |
| Current liabilities | | | | | |
| Accounts payable and accrued expenses and other liabilities | $1,067,081 | 710,615 | (710,615) | (c) | 1,067,081 |
| Debt - short term | - | 3,394,497 | (3,394,497) | (c) | - |
| Warrant liability | | | 7,762,704 | (f) | 7,762,704 |
| Deferred revenue | 184,003 | - | - | | 184,003 |
| Total current liabilities | 1,251,084 | 4,105,112 | 3,657,592 | | 9,013,788 |
| Long term liabilities | | | | | |
| Other long term liabilities | 40,347 | - | - | | 40,347 |
| Total long term liabilities | 40,347 | - | - | | 40,347 |
| Total liabilities | 1,291,431 | 4,105,112 | 3,657,592 | | 9,054,135 |
| | | | | | |
| Commitments and contingencies | | | | | |
| | | | | | |
| Stockholders' equity (deficit) | | | | | |
| Series A Convertible Preferred stock, $.001 par value | - | - | 206 | (d) | 206 |
| Series B Convertible Preferred stock, $.001 par value | - | - | 1,396 | (d) | 1,396 |
| Preferred stock, $.001 par value | - | 1,425 | (1,425) | (b) | - |
| Common stock, $.001 par value | - | 511,230 | 5,077,471 | (a) | 5,077,471 |
| | | | (511,230) | (b) | |
| Members' equity | 2,287,432 | - | (2,287,432) | (d) | - |
| Additional paid-in-capital | - | 50,145,370 | (5,077,471) | (a) | 15,522,737 |
| | | | (4,077,881) | (b) | |
| | | | (50,145,370) | (b) | |
| | | | 4,105,112 | (c) | |
| | | | 2,287,432 | (d) | |
| | | | 23,159,732 | (d) | |
| | | | (7,762,704) | (f) | |
| | | | 2,888,517 | (e) | |
| Accumulated deficit | - | (53,159,404) | 53,159,404 | (b) | (20,388,517) |
| | | | (17,500,000) | (d) | |
| | | | (2,888,517) | (e) | |
| Total stockholders' equity (deficit) | 2,287,432 | (2,501,379) | 427,240 | | 213,293 |
| Total liabilities and stockholders' equity | $3,578,863 | $1,603,733 | $4,084,832 | | $9,267,428 |
Unaudited Pro Forma Combined Statement of Income – Year Ended December 31, 2018
| | | | | | |
| | | | | | |
| | | | | | |
| Revenue: | $20,840,794 | $1,947,052 | $(1,436,113) | (l) | $21,351,733 |
| Cost of revenue | 8,514,790 | 1,228,448 | (728,025) | (l) | 9,015,213 |
| Gross profit | 12,326,004 | 718,604 | (708,088) | | 12,336,520 |
| | | | | | |
| Operating expenses: | | | | | |
| Selling and marketing | 2,904,456 | 411,371 | - | | 3,315,827 |
| General and administrative | 2,126,945 | 10,997,813 | 1,128,327 | (h) | 14,253,085 |
| Product development | 95,180 | - | - | | 95,180 |
| | 5,126,581 | 11,409,184 | 1,128,327 | | 17,664,092 |
| Operating income (loss) | 7,199,423 | (10,690,580) | (1,836,415) | | (5,327,572) |
| | | | | | |
| Other income (expense): | | | | | |
| Change in fair value of derivative liabilities | - | 8,883,383 | (8,883,383) | (g) | - |
| Impairment of goodwill | - | (1,898,000) | - | | (1,898,000) |
| Interest expense | - | (813,545) | 813,545 | (g) | - |
| Other income | 453 | 639,443 | - | | 639,896 |
| Total other income (expense) | 453 | 6,811,281 | (8,069,838) | | (1,258,104) |
| Income (loss) before provision for income taxes | 7,199,876 | (3,879,299) | (9,906,253) | | (6,585,676) |
| Provision for income taxes | - | - | (2,159,963) | (i) | (2,159,963) |
| Net income (loss) | 7,199,876 | (3,879,299) | (12,066,216) | | (8,745,639) |
| Dividends on preferred stock | - | (260,688) | 260,688 | (g) | (1,650,000) |
| | - | - | (1,650,000) | (k) | |
| Net income (loss) attributable to common shareholders | $7,199,876 | $(4,139,987) | $(13,455,528) | | $(10,395,639) |
| | | | | | |
| Net loss per common share: | | | | | |
| Basic and diluted | | $(0.02) | | | (0.00) |
| | | | | | |
| Weighted average common shares outstanding: | | | | | |
| Basic and diluted | | 230,204,655 | 4,591,184,190 | (j) | 4,821,388,845 |
Unaudited Pro Forma Combined Statement of Income – Three Months Ended March 31, 2019
|
| | | | |
| | | | | | |
| | | | | | |
| Revenue: | $6,647,545 | $28,014 | $- | | $6,675,559 |
| Cost of revenue | 2,750,274 | 14,145 | - | | 2,764,419 |
| Gross profit | 3,897,271 | 13,869 | - | | 3,911,140 |
| | | | | | |
| Operating expenses: | | | | | |
| Selling and marketing | 767,042 | 20,692 | - | | 787,734 |
| General and administrative | 615,572 | 217,543 | 282,082 | (h) | 1,115,197 |
| Product development | 39,542 | - | - | | 39,542 |
| | 1,422,156 | 238,235 | 282,082 | | 1,942,473 |
| Operating income (loss) | 2,475,115 | (224,366) | (282,082) | | 1,968,667 |
| | | | | | |
| Other income (expense): | | | | | |
| Change in fair value of derivative liabilities | - | (975,430) | 975,430 | (g) | - |
| Interest expense | - | (192,932) | 192,932 | (g) | - |
| Other income | 90 | 353,972 | - | | 354,062 |
| Total other income (expense) | 90 | (814,390) | 1,168,362 | | 354,062 |
| Income (loss) before provision for income taxes | 2,475,205 | (1,038,756) | 886,280 | | 2,322,729 |
| Provision for income taxes | - | - | (742,562) | (i) | (742,562) |
| Net income (loss) | 2,475,205 | (1,038,756) | 143,719 | | 1,580,168 |
| Dividends on preferred stock | - | (64,279) | 64,279 | (g) | (412,500) |
| | | | (412,500) | (k) | |
| Net income (loss) attributable to common shareholders | $2,475,205 | $(1,103,035) | $(204,503) | | $1,167,668 |
| | | | | | |
| Net loss per common share: | | | | | |
| Basic and diluted | | $(0.00) | | | 0.00 |
| | | | | | |
| Weighted average common shares outstanding: | | | | | |
| Basic and diluted | | 486,287,708 | 4,591,184,190 | (j) | 5,077,471,898 |
Notes to the Unaudited Pro Forma Condensed Combined Financial Information
Note 1 — Description of Transactions and Basis of Presentation
The unaudited pro forma condensed combined financial information was prepared in accordance with U.S. GAAP and pursuant to the rules and regulations of SEC Regulation S-X and presents the pro forma financial position and results of operations of the combined companies based upon the historical data of Charlie’s Holding, Inc., formerly known as True Drinks Holdings, Inc. (the “Company”) and Charlies Chalk Dust, LLC, a Delaware limited liability company (“Charlie’s”).
Description of Transactions
See “Prospectus Summary- Share Exchange” on page 2 of this prospectus for a description of the Share Exchange.
Basis of Presentation
The unaudited pro forma condensed consolidated financial statements were prepared in accordance with the regulations of the SEC. The unaudited pro forma condensed consolidated balance sheet as of March 31, 2019 is presented as if the Merger had been completed on March 31, 2019. The unaudited pro forma condensed consolidated statement of operations for the three months ended March 31, 2019 and the year ended December 31, 2018 assumes that the Merger occurred on January 1, 2018 and combines the historical results of Charlie’s and the Company.
For accounting purposes, Charlie’s is considered to be the acquiring company and the Merger will be accounted for as a reverse recapitalization of the Company by Charlie’s because the primary assets of the Company, which include cash and other assets and liabilities, will be nominal following the close of the merger. Under reverse recapitalization accounting, the assets and liabilities of the Company will be recorded, as of the completion of the merger, at their fair value which is expected to approximate book value because of the short-term nature of the instruments. No goodwill or intangible assets are expected to be recognized and any excess consideration transferred over the fair value of the net assets of the Company following determination of the actual purchase consideration for the Company will be reflected as an adjustment to equity. Consequently, the financial statements of Charlie’s reflect the operations of the acquirer for accounting purposes together with a deemed issuance of shares, equivalent to the shares held by the former stockholders of the legal acquirer and a recapitalization of the equity of the accounting acquirer. The historical financial statements of the Company and Charlie’s, which are provided elsewhere in this registration statement, have been adjusted to give pro forma effect to events that are (i) directly attributable to the Merger, (ii) factually supportable, and (iii) with respect to the statements of operations, expected to have a continuing impact on the combined results.
To the extent there are significant changes to the business following completion of the Merger, the assumptions and estimates set forth in the unaudited pro forma condensed consolidated financial statements could change significantly. Accordingly, the pro forma adjustments are subject to further adjustments as additional information becomes available and as additional analyses are conducted following the completion of the Merger. There can be no assurances that these additional analyses will not result in material changes to the estimates of fair value.
Note 2 — Preliminary purchase price allocation
The following is the preliminary estimate of the value of assets acquired and liabilities assumed by Charlie’s in the Merger:
| Cash and cash equivalents | $401 |
| Accounts receivable | 1,173 |
| Inventory, net | 25,657 |
| Accounts payable and accrued expenses and other liabilities | (710,615) |
| Debt - short term | (3,394,497) |
| Net liabilities acquired | $(4,077,881) |
Note 3 — Pro forma adjustments
The pro forma adjustments are based on preliminary estimates and assumptions that are subject to change. The following adjustments have been reflected in the unaudited pro forma condensed combined financial information:
(a) Represents the issuance of Contents3,718,958,705 common shares of the Company’s common stock and its effect on the common stock and additional paid in capital accounts:
| | | |
| | | |
| | | |
| Issuance of 3,718,958,705 shares | $3,718,959 | $(3,718,959) |
| Adjustment due to reverse merger | 1,358,512 | (1,358,512) |
| | $5,077,471 | $(5,077,471) |
(b) Represents the elimination of the historical equity of the Company and the write-off of existing goodwill, as follows:
| Preferred stock, $.001 par value | $(1,425) |
| Common stock, $.001 par value | (511,230) |
| Additional paid-in-capital | (50,145,370) |
| Accumulated deficit | 53,159,404 |
| Write-down/(write-up) of assets: |
| Goodwill | 1,576,502 |
| Net liabilities acquired | $4,077,881 |
(c) Represents the debt conversion (including accounts payable and accrued expenses) and certain share issuances for settlements, as follows:
| | | |
Shares Issuable for Niagara Settlement | 348,367,950 |
| Settlement Shares (RS) | | 104,548,760 |
| Sub-total | | 452,916,710 |
| Convertible Debt | | |
| Convertible Debt (Trade Debt) | $710,615 | 229,762,800 |
| Convertible Debt (Investment Debt) | 2,737,627 | 403,443,450 |
| Convertible Debt (Investment Debt) | 656,870 | 437,535,224 |
| Sub-total | 4,105,112 | 1,070,741,474 |
| | $4,105,112 | 1,523,658,184 |
(d) Represents the Financing, Exchange, and issuances of warrants, as follows:
| | | | | | |
| CCD Founders | 133,988,842 | - | 13,264,895,330 | - | 13,398,884,172 |
| CCD Employees | 7,052,044 | -
| 698,152,386 | -
| 705,204,430 |
| New investors | 1,325,784,329 | 3,977,352,986 | - | 2,651,568,657 | 7,954,705,972 |
| Direct investors | 225,665,418 | 676,996,253 | | 451,330,835 | 1,353,992,506 |
| Placement agent | - | - | - | 930,869,848 | 930,869,848 |
| True Drinks | 2,482,319,594 | - | - | - | 2,482,319,594 |
| Red Tech (Newco) | 902,661,671 | - | - | - | 902,661,671 |
| | 5,077,471,898 | 4,654,349,239 | 13,963,047,716 | 4,033,769,340 | 27,728,638,193 |
New and direct investors represent the issuance of 1,551,449,746 shares of common stock, 206,249 shares of Preferred A shares convertible into 4,654,349,239 shares of common stock and 3,102,899,492 warrants for an aggregate purchase price of $27.5 million ($23.1 million net of fees).
The Company also distributed $16,625,000 to Charlie’s Members and $875,000 to Charlie’s employees. The Company recorded cash distributions to Charlie’s members as a dividend and Charlie’s employees as compensation. The compensation of $875,000 was excluded from the pro form adjustments on the Unaudited Pro Forma Combined Statements of Incomebecause it is a non-recurring expense related to completion of the Merger and is not expected to have a continuing impact on the combined results of Charlie’s and the Company following the Merger.
(e) The Company issued of 902,661,671 fully vested shares of common stock, including to a member of the Company’s Board of Directors, pursuant to a Subscription Agreement (the “Red Tech (Newco)”). The Company recorded stock-based compensation of $2,888,517 (the fair value of a share of common stock was $0.0032 which is based upon a valuation prepared by the Company on the date of the Merger).
(f)Represents the issuance of 4,033,769,340 warrants to new investors, direct investors, and placement agents. The warrants have a five year term and the exercise price is equal to $0.0044313, subject to adjustment for anti-dilution events. Charlie’s has preliminarily determined that the exercise features of certain of these warrants are not indexed to Charlie’s own stock and is therefore not afforded equity treatment. In accordance with ASC Topic 815,Derivatives and Hedging(“ASC 815”), Charlie’s has presented the pro-forma effect of the issuance of the liability classified warrants based upon the preliminary determination of the fair value of $7.8 million as a warrant liability. ASC 815 requires Charlie’s to assess the fair value of warrant liabilities at each reporting period and recognize any change in the fair value as items of other income or expense. Therefore, Charlie’s recorded the following journal entry:
| Dr – Additional paid in capital | $7,762,704 |
| Cr – Warrant liability | 7,762,704 |
(g) Represents the elimination of the Company’s change in fair value of derivative liabilities, interest expense and dividends on preferred stock in connection with the transaction.
(h) The Company granted 705,204,430 unvested common shares to certain employees ofCharlie’s. These shares vest over a two-year period. The fair value of a share of common stock was $0.0032 which is based upon a valuation prepared by the Company on the date of the Merger. The Company will record $0.3 million and $1.1 million during the three months ended March 31, 2019 and year ended December 31, 2018, respectively.
(i) Represents the pro forma tax impact ofCharlie’sassumed conversion from an LLC to a C-Corp using an estimated tax rate of 30% applied toCharlie’snet income.
(j) Represents the increase in the weighted average shares of 4,591,184,190 shares due to the Transactions.
(k) Represents the recording of a $0.41 million and $1.65 million 8% dividend of the Series A Preferred for the three months ended March 31, 2019 and year ended December 31, 2018, respectively. The dividend was calculated as follows:
206,248.18 - Total Series A Preferred issued as of March 31, 2019
X $100 per Series A share
$20,624,818
X 8%
$1,650,000 on an annual basis
or $412,500 on a quarterly basis
(l) To remove revenue and cost of revenue related to one-time transactions between True and a related party during the twelve months ended December 31, 2018 that are not expected to have a continuing impact on the combined entities in the future.
DESCRIPTION OF OUR BUSINESS As used in this prospectus, unless otherwise stated or the context otherwise requires, references to the “Company,” “we,” “us,” “our,” or similar references mean Charlie’s Holdings, Inc. (formerly True Drinks Holdings, Inc.), its subsidiaries and consolidated variable interest entity on a consolidated basis. References to “Charlie’s” and “CCD” refer to Charlie’s Chalk Dust, LLC, a California limited liability company and wholly-owned subsidiary of the Company, and “Don Polly” refers to Don Polly, LLC, a Nevada limited liability company that is owned by entities controlled by Brandon and Ryan Stump, the Company’s Chief Executive Officer and Chief Operating Officer, respectively, and a consolidated variable interest for which the Company is the primary beneficiary.
Overview
True Drinks Holdings, Inc. (the “Our objective is to become a leader in the rapidly growing, global e-cigarette segment of the broader nicotine related products industry. Through Charlie’s, we formulate, market and distribute branded e-cigarette liquid for use in both open and closed consumer e-cigarette and vaping systems. Charlie’s products are produced domestically through contract manufacturers for sale through select distributors, specialty retailers and third-party online resellers throughout the United States, as well as over 80 countries worldwide. Charlie’s primary international markets include the United Kingdom, Italy, Spain, Belgium, Australia, Sweden and Canada. In June 2019, we launched distribution, through Don Polly, of certain premium vapor, tincture and topical products containing hemp-derived cannabidiol (“Company”, “us” or “weCBD”) was incorporatedand we currently intend to develop and launch additional products containing hemp-derived CBD in the state of Nevada in January 2001 and isfuture. Prior to the holding company for True Drinks, Inc. (“True Drinks”), a Delaware corporation formed on January 19, 2012 to create and commercialize all-natural, vitamin-enhanced drinks. OurShare Exchange, our primary business iswas the development, marketing, sale and distribution of our flagship product, AquaBall(TM)all-natural, vitamin-enhanced drinks, including AquaBall® Naturally Flavored Water a vitamin-enhanced, naturally flavored water drink packaged in our patented stacking spherical bottles. We distribute the AquaBall(TM) nationally through select retail channels, such as grocery stores, mass merchandisers, drug stores and online. We also market and distribute Bazi(R)Bazi® All Natural Energy,Energy.
Recent Developments
Share Exchange
On April 26, 2019, the Company (then known as True Drinks Holdings, Inc.), entered into a liquid nutritional supplement drink,Securities Exchange Agreement with each of the members of Charlie’s on that date (the “Charlie’s Members”), pursuant to which isthe Company acquired all outstanding membership interests beneficially owned by the Charlie’s Members in exchange for certain units consisting of the Company’s securities (the “Share Exchange”). As a result, Charlie’s became a wholly owned subsidiary of the Company. Following the consummation of the Share Exchange, the primary business operations of the Company consisted of those of Charlie’s and, more recently, Don Polly. See “Prospectus Summary - The Share Exchange.”
Launch of CBD Products
In June 2019, we introduced, through Don Polly, full-spectrum hemp extract and CBD isolate wellness products across a variety of formats and with different strengths. Our initial launch consisted of six vapor, eight tincture and two topical product variations. The newly released products were launched under the Pachamama™ brand by way of a licensing agreement between Don Polly and Charlie’s, entered on April 25, 2019. In the near term, we expect to expand the hemp-derived CBD-based products line to include additional CBD isolate products and Tetrahydrocannabinol (“THC”)- free, broad spectrum hemp extract products currently distributed onlinein development.
Pachamama™ CBD products are currently available in the U.S., Mexico and throughSwitzerland, and we expect to continue expanding both our existing database of customers.domestic and international distribution efforts.
Our principal placeProducts
Charlie’s Product Line
Our business efforts consist primarily of business is 18662 MacArthur Boulevard, Suite 110, Irvine, California, 92612. formulating, marketing and distributing our portfolio of branded e-cigarette liquid and other premium vapor products for use in consumer e-cigarette and vaping systems, which we collectively refer to as the“Charlie’s Product Line” or “Charlie’s Products.”
E-Liquids
E-liquids used to produce vapor in vaping devices are sold separately for use in refillable tanks of open system vaporizers. Liquids are available in differing nicotine concentrations (0 mg, 3 mg and 6 mg per milliliter) to suit user preferences. Liquids are available in a variety of flavors, including our proprietary blends. Liquid solution consists of flavoring and/or nicotine dissolved in one or several hygroscopic components, which turns the water in the solution into the smoke-like vapor when heated. The most commonly used hygroscopic components are propylene glycol (“PG”), vegetable glycerin (“VG”) or polyethylene glycol 400. VG imparts sweetness and produces vapor clouds, while PG produces more “throat hit”, which simulates the feeling of smoking. Our telephone number is (949) 203-2500. Our corporate website address is http://www.truedrinks.com. Our common stockproprietary brands of e-liquids are manufactured by ISO Class 7 certified manufacturers in the United States, which helps ensure their purity and quality.
Charlie’s e-liquid products are produced under seven brand names distinguished by their flavor profiles, packaging art and ingredient transparency. All products are packaged in plastic drip containers that are typically available in seven sizes ranging from 10 mil to 100ml, as well as bulk concentrate formats.
●
Black Label and White Label. CCD’s original black and white product line launched in 2015. Black Label is currently listedavailable in five flavors and White Label is currently available in four flavors.
●
CCD3. Launched in 2016, is a sea salt caramel ice cream flavor.
●
Pachamama™. A line launched in 2016 consisting of eight eclectic mixes of natural fruit flavors such as passion fruit raspberry yuzu, blood orange banana gooseberry and huckleberry pear acai.
●
Meringue. The third brand launched in 2016, based on creative character stories, currently includes three flavors.
●
Campfire™. Outdoors and Smores flavor inspired by camp vibes.
●
Stumps™. Line of four flavors inspired by the founders and their families broadly released in 2017 across various formats. Currently active in select markets.
●
The Creator of Flavor™. Two flavors broadly released in 2018 across various formats. Currently active in select markets.
Nicotine Salt Products
Nicotine salt e-liquids (“NIC salts”) are formulated for quotationuse in lower wattage open, semi-open and closed system vaporizers and are available in higher nicotine concentrations (25mg and 50mg per milliliter) than traditional e-liquids. Nicotine salts consist of nicotine dissolved in an acid that results in a lower PH level than other e-liquids. This form of nicotine has a higher bioavailability resulting in faster blood stream absorption and more closely mimics the effects of combustible tobacco products. We broadly released Pachamama™ Salts, an extension of the Pachamama™ line, in late December 2018 to a select group of key accounts, which now includes seven flavors packaged in 10ml and 30ml bottles. During 2019, we plan to broadly release NIC salt extensions of the Meringue and Black, Gold and White Label Charlie’s Chalk Dust brands.
Don Polly
The Company, through Don Polly, a related company under common ownership, has been engaged in the development of proprietary and innovative hemp-derived, non-THC, CBD wellness products, which we refer to as the “Don Polly Products” and “Don Polly Product Line”. Don Polly’s efforts have been focused on developing and producing high quality CBD products made from single-strain-sourced hemp extract and high purity CBD isolate crystals. In addition, good manufacturing practices and quality control parameters are of the OTC Pink Marketplace underutmost importance to the symbol TRUU.Don Polly Products, which contribute to the differentiation of the Don Polly Products in the CBD product industry.
In June 2019, Don Polly launched a suite of full-spectrum and isolate CBD products across three categories including vapor, tinctures, and topicals.
Isolate CBD Products
Our CBD isolate products contain a minimum purity of 99% isolate crystals, tested by independent, third-party facilities to ensure it is free of pesticides and heavy metals. Vape, as a CBD delivery method, has grown in popularity due to the high level of bioavailability and reported therapeutic responses. In response to demand for CBD infused e-liquids from our existing distribution channels, we launched a new line of CBD infused vapor products in June 2019. We refer to these products as the “Don Polly Vape Product Line” or the “Don Polly Isolate Products.” The Don Polly Vape Product Line is currently available in 30ml chubby bottles across three flavors (Minty Mango, Grape Berry and Strawberry Watermelon) and two strengths (250mg and 500mg). We are continuing to research and develop isolate products as both vape line extensions and in other product categories.
Full Spectrum CBD Products
Our Historyfull spectrum hemp extract comes from whole plant extraction which retains the plant’s natural compounds. This extraction method ensures each product preserves the holistic benefits of the plant including minimal amounts of THC (0.3% or less), which allows for optimal absorption of the plant’s nutrients. While CBD alone is a beneficial cannabinoid, full spectrum products provide the body access to all the plant’s cannabinoids, allowing the end user to achieve a wide range of therapeutic benefits. The full spectrum products are formulated with single-source and single strain hemp extracts. Don Polly believes this sourcing practice yields various compounds that work synergistically to heighten the effects of the products, making them superior to single-compound CBD isolates. In June 2019, we introduced the Pachamama™ tincture and topical full spectrum products. The tincture offering includes four flavors (the Natural, Green Tea Echinacea, Goji Cacao and Kava Kava Valerian) available in 30ml bottle sizes and both 750mg and 1750mg strengths. Our topical products include the Cooling Ointment, available in a one ounce jar and 750mg strength, and the Athletic Rub, available in a two ounce jar and 500mg strength. We plan on continuing to research, develop, and launch products in these categories.
Bazi Intl. Prior to Merger with True Drinks, Inc.Broad Spectrum CBD Products
Bazi International, Inc. (“Bazi Intl.”) was formedIn addition to isolate and fill spectrum CBD products, we believe there is an opportunity to develop broad spectrum hemp-derived CBD extracts that provide the same benefits of full spectrum CBD products but, through additional processing of hemp-derived extracts, eliminate the presence of THC. This category of THC-free, broad spectrum products will provide consumers with concerns about THC access to the same level of quality and nutrients we value in 2001, underour full spectrum products. We are currently developing certain broad spectrum products, which, ultimately, will allow us to launch products which match the name “Instanet, Inc.” In August 2010, we changed our name to Bazi International, Inc. Until January 18, 2010, our principal channel of distribution was through a multilevel distributor network, which we terminated in January 2010 in favor of a retail and direct-to-consumer, online sales model. Bazi Intl. continued to distribute Bazi(R) online and through our existing database of customers, but as a result of the terminationconsumer accessibility of our multilevel distributor model, mostCBD isolate products with the experience and benefits of our top distributors ended their relationship with the Company during the first quarter of 2010, causing sales of Bazi(R) to decrease throughout 2011 and into 2012. As a result, Bazi Intl. began suffering from a lack of sufficient capital necessary to adequately market Bazi(R) and support the Company’s existing retail and distribution partners.
True Drinks, Inc. Prior to Merger with the Bazi Intl.full spectrum products.
True Drinks (formerly GT Beverage Company, Inc.) was formed on January 19, 2012 to develop, market and sell AquaBall–Legacy Product -- Bazi(TM) Naturally Flavored Water. In February and March of 2012, True Drinks acquired GT Beverage Company, LLC. GT Beverage Company, LLC was formed in May 2008 to create and commercialize its Sportastic(R) brand sports drink, sold in round plastic bottles with registered trade dresses such as baseball and soccer designs. However, in January 2012, GT Beverage Company, LLC ceased its sports drink operations. In April 2012, True Drinks began packaging and selling AquaBall(TM) Naturally Flavored Water in its patented interlocking round plastic bottles, with depictions of characters from major entertainment companies, as permitted by licensing agreements with these companies.®
True Drinks, Inc. Merges into Bazi Intl.
On June 7, 2012, True Drinks, Inc.Prior to the Share Exchange, we marketed and distributed products, including AquaBall® and Bazi®, Bazi Acquisition Sub Inc. (“Merger Sub”),offering a Delaware corporation and a wholly-owned subsidiary of Bazi Intl., and Bazi Intl. entered into an agreement and tax-free plan of merger (the “Merger Agreement”), wherein Merger Sub merged with and into the Company and True Drinks continued as the surviving corporation (the “Merger”). As a result of the Merger, True Drinks became a wholly-owned subsidiary of the Company. The Merger closed on October 15, 2012. As a result of Merger, True Drinks, Inc.’s former shareholders owned approximately 95.5% of the combined post-Merger entity via shares of Series A Convertible Preferred Stock issued as part of the Merger. The Company subsequently changed its name from “Bazi International, Inc.”healthful, natural alternative to “True Drinks Holdings, Inc.” The Merger was accounted for as a public shell company “reverse merger,” and, as such, the consolidated financial statements reported herein reflect the operations of True Drinks, Inc. within the capital structure of Bazi Intl.
Our Products
We market and distribute products that move away from high sugar, high calorie and nutritionally deficient beveragesbeverages. A discussed below in“Management’s Discussion and Analysis of Financial Condition and Results of Operations,”we ceased producing AquaBall® in early 2018. We continue to healthful, natural alternatives. Our mission is to bring integrity back tomarket and sell Bazi®, but on a very limited basis and only as we sell off existing inventory, as we focus our resources on the beverage industrymarketing, distribution and that honesty applies to every drop in every bottle. Our goal is to create and deliver beverages for families that encourage improved health, while being clear about what our products contain (and what they don’t).
AquaBall(TM) Naturally Flavored Water
Our flagship product, AquaBall(TM) Naturally Flavored Water, is a naturally flavored water beverage, enhanced with vitamins B3, B5, B6, B12 and C. AquaBall(TM) does not contain high fructose corn syrup, artificial flavors, or artificial colors. Unlike high sugar and high calorie beverages marketed toward children, AquaBall(TM) is sweetened with stevia, an all-natural sweetener, allowing the AquaBall(TM) to provide a zero-sugar, zero-calorie alternative to juice and soda for kids. The main componentselling of the marketing vision behindCharlie’s Products and the AquaBall(TM) brand is our licensing agreements with Disney Consumer Products, Inc. and Marvel Entertainment, allowing each AquaBall(TM) to prominently feature various Disney and Marvel characters. Both Disney and Marvel characters have an established reputation of high retail sales of licensed products, giving each AquaBall(TM) the presence associated with these brands.
Each AquaBall(TM) is packaged in our patented 12 ounce stackable, spherical PET bottle, and wrapped with colorful, eye-catching labels featuring popular Disney characters and various Marvel Superheroes. AquaBall(TM) currently comes in fruit punch, grape, orange and berry flavors and is sold in mass-market retailers throughout the United States. AquaBall is also sold in Canada, Australia and New Zealand. AquaBall(TM) is also available for purchase online at http://www.aquaballdrink.com. During the year ended December 31, 2015, AquaBall(TM) sales accounted for approximately 97% of the Company’s total revenues.
Bazi(R)
Bazi(R) All Natural Energy,Don Polly Products. Bazi® is a liquid nutritional drink packed with eight different super fruits, including the Chinese jujube and seven other superfruits,super fruits, plus 12 vitamins. The proprietary formula containsManagement is currently exploring the following fruits: jujube fruit, blueberry, pomegranate, goji berry, chokeberry, raspberry, acaivalue of continuing the marketing and sea buckthorn. Additionally, Bazi(R) contains 12 vitamins including vitamins A, C, E and B-complex. In August, 2011, BioEnergy Ribose was added to Bazi(R) enhancing the products energy delivery system. During the year ended December 31, 2015, Bazi(R) sales accounted for approximately 3%sale of the Company’s total revenues.Bazi®.
Manufacturing and Distribution
Manufacturing
Charlie’s Product Line. We currently use a limited number of third partieswork closely with contract manufacturing partners in the United States, Ireland and Scotland to supply and manufacture our products. Our e-liquid and NIC salts products are manufactured to meet our proprietary formula specifications in facilities that are ISO Class 7 certified,which helps ensure their purity and quality. In 2018, we sourced 97% of our products from three suppliers in the United States. While we have developed long-standing relationships with our manufacturing sources and take great care to ensure that they share our commitment to quality, we do not have any long-term term contracts with these parties for the production of our product lines. We maintain redundancies in our supply chain and are aware of several alternative sources for our products.
Don Polly Product Line. Our hemp-derived, CBD-based Don Polly Products are manufactured with contract manufacturers to meet our formula specifications. While we do not have co-packing agreementsany long-term contracts with 7-Up Bottling in Modesto, California, Mountain Pure in Palestine, Texas,these parties, we are strengthening our supplier partnerships as well as identifying additional supplier and Adirondack Beverages in Scotia, New York to package up to 4.0 million cases of AquaBallcontract manufacturing opportunities.
Bazi®(TM) Naturally Flavored Water per year. Bazi(R) has. Bazi® had been manufactured by Arizona Packaging and Production since 2007. Presently, we are not manufacturing Bazi Product, although we continue to sell existing inventory.
Distribution
Charlie’s Product Line.Once manufactured, Charlie’s Products are directly distributed throughout the United States and in more than 80 countries, primarily the United Kingdom, Italy, Spain, Belgium, Australia, Sweden and Canada. We distribute our products to more than 2,100 specialty retailers through direct sales and to distributors and wholesalers both in the United States and internationally. Retailers of our products include specialty retailers throughout the United States and in 80 other countries. We also distribute our products on a very limited basis through convenience stores and gas stations. With respect to products that we sell through third-party distributors and wholesalers, we typically sell our products to these customers for their re-sale. In select markets we maintain exclusive arrangements with distributors and, when warranted, will memorialize these agreements contractually.
BeginningDon Polly Product Line. Although we only launched the Don Polly Product Line in May 2016, all production of AquaBall(TM) will be completed by Niagara Bottling, pursuantJune 2019, our Don Polly Products are currently distributed to the terms75 key distribution and conditions of the Niagara Agreement executedlarge retail accounts in October 2015. Niagara will handle all aspects of production, including the procurement of all raw materials necessary to produce AquaBallTM. In accordance with the terms of the Niagara Agreement, True Drinks will pay Niagara for each case within 15 days of the shipment of product to our customers.
Retail Distribution
For much of 2015, we utilized a direct-to-retailer distribution strategy to key national accounts for sales of AquaBall(TM) Naturally Flavored Water, including distribution to Sam’s Club, Rite-Aid, Harris Teeter Supermarkets, Value Merchandisers, and stores under the Safeway, Inc. and The Kroger Company brands nationwide. We also distributed AquaBall(TM) through regional distributors throughout the United States, such as Drink King in New York CityMexico and Polar Beverages in New England. Additionally, our licensing agreement with Disney ConsumerSwitzerland. Like the Charlie’s Product Line, we will distribute Don Polly Products Inc. and Marvel Entertainment allows us to work with Disney and Marvel’s dedicated sales teams who, in turn, work with top retailers to assist us with securing shelf-space for AquaBall(TM) and to accomplish our long-term sales objectives.
In November 2015, we began shifting our retail distribution strategy towards a nationwide network of regional distributors to handle all grocery, drug and convenience accounts. This shift was the result of successes with regional distributors related primarily to the increased same store sales associated with placing AquaBall(TM) representatives at the store level. We will continue to ship directly to customers inretailers, as well as through the clubuse of distributors and mass channels, such as Sam’s Club, Costco, Restaurant Depot, Target and Wal-Mart, while building upon our distribution network throughout 2016.third-party wholesalers. We also expect to utilize direct-to-consumer sales through a newly developed e-commerce platform.
Online Sales
Charlie’s Product Line and Don Polly Product Line.We do not currently sell our products directly. However, we market our products and sell branded merchandise through our websites www.charlieschalkdust.com and www.enjoypachamama.com. In the future we intend to sell our Don Polly Product Line directly to consumers through an in-house, e-commerce platform.
Bazi®. Our ecommercee-commerce platform allows current and future consumers to purchase AquaBall(TM) Naturally Flavored Water and Bazi(R)Bazi® Energy Shot through our webpages, http://www.aquaballdrink.comwww.drinkbazi.com. All sales of Bazi® Energy Shot are made through our online platform, and, http://www.drinkbazi.com. We drive traffic to relevant landing pages and micro sites through digital marketing campaigns and promotions,a lesser extent, online marketplaces such as well as a variety of social media marketing efforts.Amazon.
Sales and Marketing
OurCharlie’s Product Line.We have a 15-person sales team, based in the United States, that promotes our Charlie’s Products globally. Salespeople seek to form long-term “360” collaborative relationships with their clients, partnering with them on sell-through efforts, providing access to Charlie’s marketing and creative teams and advising and educating them on the Charlie’s Product Line and other industry-related issues. Currently, we advertise our products primarily through direct customer engagement through social media channels, print media, directed Internet marketing, industry tradeshows and collaborative events with retail partners. Historically, participation at industry-specific tradeshows played a large role in our marketing and distribution strategy. However, in 2018 we began shifting resources to collaborative events, and, instead, our marketing team is now focusing its efforts on fostering relationships with key distributors and retailers by launching customer-specific marketing campaigns, in-person visits to new customer accounts and other forms of direct customer engagement. In 2018, approximately 30% of our sales were to customers outside of the United States.
We intend to strategically expand our advertising activities in 2019 and increase our public relations efforts to gain industry awareness as well as editorial coverage for our brands. Some of our competitors promote their brands through print media and through celebrity endorsements and have substantial resources to devote to such efforts. We believe that our and our competitors’ efforts have helped increase our sales, our product acceptance and general industry awareness.
Don Polly Product Line. Since the launch of the Don Polly products in June 2019, we have employed similar sales and marketing efforts are directed from our corporate offices in Irvine, California, utilizing our own staff, as well as outside resources retainedused for the Charlie’s Product Line, and intend to build market awarenessutilize those sales and shelf placement of our products, including dedicated sales teams from Disney Consumer Products, Inc. and Marvel Entertainment. The Company manages key national accounts through our in-house national sales team. Our sales teams work to secure national distribution with these customers through multiple avenues including joint sales meetings with Disney and Marvel sales personnel.
In November 2015, we began building a nationwide network of direct store distributors to handle the distribution of AquaBall(TM) to the grocery, drug and convenience channels. We will continue to ship directly to customersmarketing efforts in the mass channel, such as Wal-Mart and Target, and the club channel, such as Sam’s Club and Costco. All other accounts will be distributednear term.
Bazi®While Bazi is sold online athttp://www.drinkbazi.com, a large portion of its sales are made to via our distribution network. Our sales team will continue to secure distribution with both national and regional accounts. We expect to continue building out our distribution network throughout 2016.recurring customers on a subscription basis.
Source and Availability of Raw Materials
We utilizedCharlie’s Product Line.Our manufacturing partners source the ingredients for our proprietary e-cigarette liquids from a variety of supplierssources, in accordance with our formulations and quality specifications. We source our proprietary e-liquids from multiple ISO Class 7 certified manufacturers in the United States, which helps ensure their purity and quality. In an effort to maintain consistency across our supply chain, we directly purchase raw materialscertain product packaging and are responsible for managing various third-party supplier relationships.
Don Polly Product Line. For our full spectrum CBD products we currently source the AquaBall(TM) Naturally Flavored Water during the year ended December 31, 2015. Beginning in May 2016, all production of AquaBall(TM) will be completed by Niagara Bottling, LLC throughindividual components and CBD from several suppliers. Each are delivered to our 5-year bottling agreement. Niagara will handle all aspects of production, including the procurement ofprimary manufacturer for storage prior to manufacturing. Our primary manufacturer for isolate CBD products handles all raw materials necessary to produce AquaBall(TM)material sourcing internally..
Bazi®.During 2015,2018, we relied significantly on one supplier for 100% of our purchases of certain raw materials for Bazi(R)Bazi®. Bazi, Inc. has sourced these raw materials from this supplier since 2007, and does not anticipate any issues with the supply of these raw materials. Presently, we are not producing Bazi product.
WeAlthough we own the formulas for both AquaBall(TM) Naturally Flavored Waterthe Charlie’s Products, the Don Polly Products and Bazi(R) Energy Shot,Bazi®, we obtain certain components, such as packaging, flavors and certain raw materials, from third party suppliers. None of the third party suppliers are considered to be material to the business on a standalone basis and all are components that are readily available from other suppliers on the market. However, given the rapid growth of the vaping, e-cigarette and CBD industries, there may be fluctuations in the availability of certain of the materials we obtain from third-parties due to high demand from our competitors. If any given supplier or distributor is lost or unavailable in a specific region, and we believe thatare unable to contract with alternative suppliers or distributors to provide the requisite service(s) and product(s), we may be unable to fulfill customer orders and our purchasing requirements canbusiness could be readily met from alternative sources, if necessary.materially harmed.
Competition
The industries in which we operate are highly competitive. AquaBall
(TM)Charlie’s Product Line. Naturally Flavored WaterOur CCD Product Line competes most directlyin a highly-fragment industry. Some identifiable competitors of CCD include Naked100, Milkman, Humble, and Beard. Other brands such as Juul, Vuse, Group Mark Ten, Green Smoke, Blu, Vaporfi, Njoy, Logic, V2, and Apollo all participate in a different segment of the electronic cigarette market which appeals to current smokers and recently-converted electronic cigarette users.
In the e-liquid flavor space, new flavor brands emerge daily due to low barriers to entry. Companies that produce electronic cigarettes and vaporizers, including Vaporfi, Atmos and Njoy, carry their own flavor lines for the refillable market. Other brands like Mount Baker Vapor focus on wide variety of choice and value, while other brands like Charlie’s Chalk Dust carve out their identity with other beverages marketed directlybranding, and more nuanced flavor combinations. The nature of our competitors is varied as the market is highly fragmented and the barriers to children. entry into the business are low.
Part of our business strategy focuses on the establishment of relationships with distributors and prominent branding focused on performance and quality. We are aware that e-cigarette competitors in the industry are also seeking to enter into such relationships and try to create brand loyalty. In many cases, competitors for such relationships may have greater management, human, and financial resources than we do for attracting distributor relationships. Furthermore, certain of our electronic cigarette competitors may have better control of their supply and distribution, be, better established, larger and better financed than our Company.
We plan to compete primarily on the basis of product quality, brand recognition, brand loyalty, service, marketing, and advertising. We are subject to highly competitive conditions in all aspects of our business. The competitive environment and our competitive position can be significantly influenced by weak economic conditions, erosion of consumer confidence, competitors’ introduction of low-priced products or innovative products, cigarette excise taxes, higher absolute prices and larger gaps between price categories, and product regulation that diminishes the ability to differentiate tobacco products.
We also compete with otheragainst “big tobacco”, U.S. cigarette manufacturers of functional beverages,both conventional tobacco cigarettes and with manufacturers of more traditional beverages,electronic cigarettes like Altria Group, Inc., Lorillard, Inc. and Reynolds American, Inc. We compete against big tobacco who offers not only conventional tobacco cigarettes and electronic cigarettes but also smokeless tobacco products such as juice“snus” (a form of moist ground smokeless tobacco that is usually sold in sachet form that resembles small tea bags), chewing tobacco and soda.snuff. Big tobacco has nearly limitless resources, global distribution networks in place and a customer base that is fiercely loyal to their brands. Furthermore, we believe that big tobacco will devote more attention and resources to developing and offering electronic cigarettes as the market for electronic cigarettes grows. Because of their well-established sales and distribution channels, marketing expertise and significant resources, big tobacco may be better positioned than small competitors like us to capture a larger share of the electronic cigarette market.
Don Polly Product Line. The market for CBD-based hemp products is rapidly growing and is highly competitive. The competition consists of publicly and privately-owned companies, which tend to be highly fragmented in terms of both geographic market coverage and products offered. With the Company’s leading brand status, innovation capabilities, existing sales and marketing platform, established distribution channels and high-quality manufacturing, Management believes the Company is well-positioned to capitalize on favorable long-term trends in the hemp-based, CBD wellness products segment.
Our primary competition for AquaBall(TM)Bazi®. is in the estimated $2.0 billion market for products marketed directly to children, including CapriSun(R), Honest Kids, Good to Grow, Tummy Ticklers, Kool-Aid and others. General competition in the beverage industry includes products owned by multinational corporations with significant financial resources, including Vitamin Water, owned by Coca-Cola, and Sobe and Propel, both owned by Pepsi Co. Bazi(R)Bazi® competitors include Steaz(R)Steaz®, Guayaki Yerba Mate, POM Wonderful(R)Wonderful®, as well as sports and energy drinks including Gatorade(R)Gatorade®, Red Bull(R)Bull®, 5-Hour Energy(R)Energy®, RockStar(R)RockStar®, Monster(R)Monster®, Powerade(R)Powerade®, Accelerade(R)Accelerade® and All Sport(R)Sport®. Indirect competition for the AquaBall(TM) and Bazi(R) includes soft drinks and juice products, such as Sunny Delight(R) and other fruit drinks. These competitors can use their resources and scale to rapidly respond to competitive pressures and changes in consumer preferences by introducing new products, reducing prices or increasing promotional activities. Many of our competitors have longer operating histories and have substantially greater financial and other resources than we do. They, therefore, have the advantage of established reputations, brand names, track records, back office and managerial support systems and other advantages that we cannot duplicate in the near future.future, if ever. Moreover, many competitors, by virtue of their longevity and capital resources, have established lines of distribution to which we do not have access, and are not likely to duplicate in the near term, if ever.
Intellectual Property
We rely on the AquaBall(TM) patent, AquaBall(TM) and Bazi(R) trademarks and licensing agreements to market our products and make them stand out among our competitors.
Patents and Trademarks
Charlie’s Product Line and Don Polly Product Line.We are the registered owner of the federal trademarks for CHARLIE’S CHALK DUST, PACHAMAMA, STUMPS, AUNT MERINGUE & Design, CAMPFIRE & Design, Mr. MERINGUE & Design, and THE CREATOR OF FLAVOR & Design. We also maintain registrations in several international markets and will work with our international distributors to manage intellectual property and trademark registrations when necessary.
We plan to continue to expand our brand names and our proprietary trademarks and designs worldwide as our business grows.
True Drinks -- Legacy Products.We were granted the patent for AquaBall(TM)AquaBall®’s stackable, spherical drink container in 2009, via GT Beverage Company, LLC, who we purchased on March 31, 2012. In both 2016 and 2017, we stopped using this bottle and, instead, switched to a bottle specifically designed for us by Niagara. In 2016 and 2017, we took impairment charges on the value of the spherical drink container patent.
We maintain trademark protection for AquaBall(TM)AquaBall® and have federal trademark registration for Bazi(R)Bazi®. This trademark registration is protected for a period of ten years and then is renewable thereafter if still in use.
Licensing Agreements
WeCharlie’s Product Line.CCD is currently active in exploring several long-term licensing arrangements with several well-known industry participants. The goal of such relationships is to acquire additional revenue streams as well as to introduce the Charlie’s Chalk Dust and Pachamama™ brands to a wider consumer base.
Don Polly Product Line. On April 25, 2019, the Company and Charlie’s entered into a three-yearLicense Agreement (the “License Agreement”) with Don Polly. As previously noted, Don Polly is classified as a variable interest entity for which the Company is the primary beneficiary, and is owned by entities controlled by Brandon Stump and Ryan Stump, the Company’s Chief Executive Officer and Chief Operating Officer, respectively. Pursuant to the License Agreement, Charlie’s provides Don Polly with a limited right and license to use certain of Charlie’s intellectual property rights, including certain trademarks, copyrights and original artwork, in connection with certain of Don Polly’s branded CBD products. In exchange for such license, Don Polly (i) pays Charlie’s monthly royalties amounting to 75% of its net profits, (ii) uses its best efforts to market, promote and advertise its products, (iii) provides Charlie’s with most favored nations pricing in the event that Charlie’s wishes to sell products sold by Don Polly, (iv) provide Charlie’s with the exclusive right of first refusal to purchase Don Polly, including all of its assets and liabilities, for a purchase price of $111,618 on or before December 31, 2025, and (v) will not license any intellectual property from any other source other than Charlie’s in connection with its design, manufacture, advertisement, promotion distribution and sale of CBD infused products within the agreed upon territory. The License Agreement will continue in perpetuity unless terminated in accordance with its terms.
Concurrently with the execution of the License Agreement, Charlie’s and Don Polly also entered into a Services Agreement (the “Services Agreement”), pursuant to which Charlie’s provides certain services to Don Polly, including, without limitation, (i) the development and creation of Don Polly’s sales, marketing, brand development and customer service strategies and (ii) performing sales, branding, marketing and other business functions at the request of Don Polly. Charlie’s will perform such services in the capacity of a contractor, and all materials and work product created by Charlie’s in its capacity as such will be the property of Don Polly. As consideration for the Services provided by Charlie’s, Don Polly (i) pays Charlie’s 25% of its net profits on a quarterly basis, and (ii) reimburse Charlie’s for all out-of-pocket business expenses that are preapproved in writing by Don Polly. The Services Agreement will continue in perpetuity unless terminated in accordance with its terms.
True Drinks -- Legacy Products.We previously had a licensing agreement with Disney Consumer Products, Inc. and an 18-month licensing agreement with Marvel Characters, B.V. (collectively, the(the “Licensing AgreementsDisney License”) in 2012. Each Licensing Agreement allows, which allowed us to feature popular Disney and Marvel characters on AquaBall(TM)® Naturally Flavored Water, allowing AquaBall(TM)® to stand out among other beverages marketed towards children. UnderAs discussed in the terms and conditions of the Licensing Agreements, we worksection entitled “Recent Developments” above, in connection with the discontinued production of AquaBall®, we notified Disney and Marvel teamsof our desire to create colorful, eye-catching labels that surround the entire spherical shape of each AquaBall(TM). Once the label designs are approved, we work with Disney and Marvel to set retail calendars, rotating the placement of different AquaBall(TM) designs over the course of the year.
In 2015, the Company and Disney entered into a renewed Licensing Agreement, which extended the Company’s license with Disney through March 31, 2017 (the “Disney Agreement”). The terms ofterminate the Disney Agreement entitle DisneyLicense in early 2018.As a result of our decision to receive a royalty ratediscontinue the production of 5% on sales of AquaBall(TM) Naturally Flavored Water adorned with Disney characters, paid quarterly, with a total guarantee of $450,870 over the period from April 1, 2015 through March 31, 2017. In addition, the Company is required to make a ‘common marketing fund’ contribution equal to 1% of sales due annually during the agreement. The Company is required to spend a total of $820,000 on advertising® and promotional opportunities over the term ofterminate the Disney Agreement.
The former Marvel Licensing Agreement (“Marvel Agreement”) stipulatedLicense, and considering amounts due, Disney drew from a royalty rateletter of 5%credit funded by Red Beard in the amount of $378,000 on salesor about June 1, 2018. Subsequently, Disney agreed to a settlement and release of AquaBall™ Naturally Flavored Water adorned with Marvel characters, paid quarterly. The total royalty guarantee paid duringall claims related to the period from July 1, 2015 through December 31, 2015 was $37,500.
On August 22, 2015,Disney License in consideration for the Company and Marvel entered into a renewed Licensing Agreementpayment to extend the Company's license to feature certain Marvel characters on bottlesDisney of AquaBall(TM)$42,000. Naturally Flavored Water through December 31, 2017. The Marvel Agreement requires the Company to pay to Marvel a 5% royalty rate on sales of AquaBall(TM) Naturally Flavored Water adorned with Marvel characters, paid quarterly, through December 31, 2017, with a total guarantee of $200,000.
Government Regulations
The production, distributionCharlies’s Product Line
Pursuant to a December 2010, decision, by the U.S. Court of Appeals for the District of Columbia Circuit, in Sottera, Inc. v. Food & Drug Administration, 627 F.3d 891 (D.C. Cir. 2010), the FDA is permitted to regulate electronic cigarettes as “tobacco products” under the Family Smoking Prevention and sale inTobacco Control Act of 2009 (the “Tobacco Control Act”).
Under this Court decision, the United States of our products are subjectFDA is not permitted to various U.S. federal and state regulations, including but not limited to:regulate electronic cigarettes as “drugs” or “devices” or a “combination product” under the Federal Food, Drug and Cosmetic Act unless they are marketed for therapeutic purposes.
The Tobacco Control Act also requires establishment, within the FDA’s new Center for Tobacco Products, of a Tobacco Products Scientific Advisory Committee to provide advice, information and recommendations with respect to the safety, dependence or health issues related to tobacco products.
The FDA had previously indicated that it intended to regulate E-cigarettes under the Tobacco Control Act through the issuance of “Deeming Regulations” that would include E-liquid, E-cigarettes, and other vaping products (collectively, “Deemed Tobacco Products”) under the Tobacco Control Act and subject to the FDA’s jurisdiction.
On May 10, 2016, the FDA issued the “Deeming Regulations” which came into effect August 8, 2016. The Deeming Regulations amended the definition of “tobacco products” to include E-liquid, E-cigarettes and other vaping products. Deemed Tobacco Products include, but are not limited to, E-liquids, atomizers, batteries, cartomizers, clearomisers, tank systems, flavors, bottles that contain E-liquids and programmable software. Beginning August 8, 2016, Deemed Tobacco Products became subject to all FDA regulations applicable to cigarettes, cigarette tobacco, and other tobacco products which require:
| ● | a prohibition on sales to those younger than 18 years of age and requirements for verification by means of photographic identification; |
| ● | health and addictiveness warnings on product packages and in advertisements; |
| ● | a ban on vending machine sales unless the vending machines are located in a facility where the retailer ensures that individuals under 18 years of age are prohibited from entering at any time; |
| ● | registration with, and reporting of product and ingredient listings to, the FDA; |
| ● | no marketing of new tobacco products prior to FDA review; |
| ● | no direct and implied claims of reduced risk such as "light", "low" and "mild" descriptions unless FDA confirms (a) that scientific evidence supports the claim and (b) that marketing the product will benefit public health; |
| ● | ban on free samples; and |
In addition, the Deeming Regulations requires any Deemed Tobacco Product that was not commercially marketed as of the “grandfathering” date of February 15, 2007, to obtain premarket approval before it can be marketed in the United States. Premarket approval could take any of the following three pathways: (1) submission of a premarket tobacco product application (“PMTA”) and receipt of a marketing authorization order; (2) submission of a substantial equivalence report and receipt of a substantial equivalence order; or (3) submission of a request for an exemption from substantial equivalence requirements and receipt of an substantial equivalence exemption determination. The Company cannot predict if any of the products in the CCD Product Line, all of which would be considered “non-grandfathered”, will receive the required premarket approval from the FDA if the Company were to undertake obtaining premarket approval through any of the available pathways.
Since there were virtually no E-liquid, E-cigarettes or other vaping products on the market as of February 15, 2007, there is no way to utilize the less onerous substantial equivalence or substantial equivalence exemption pathways that traditional tobacco corporation can utilize. In order to obtain premarket approval, practically all E-liquid, E-cigarettes or other vaping products would have to follow the PMTA pathway which would cost hundreds of thousands of dollars per application. Furthermore, the Deeming Regulations also effectively froze the US market on August 8, 2016 since any new E-liquid, E-cigarette or other vaping product would be required to obtain an FDA marketing authorization though one of the aforementioned pathways. Deemed Tobacco Products that were on the market prior to August 8, 2016 have been provided with a six (6) year grace period where such products can continue to be marketed until the August 8, 2022 PMTA submission deadline. Upon submission of a PMTA, such products would be permitted to be sold pending the FDA’s review of the submitted PMTAs.
In a press release dated July 28, 2017, the FDA also stated that “the FDA plans to issue foundational rules to make the product review process more efficient, predictable, and transparent for manufacturers, while upholding the agency’s public health mission. Among other things, the FDA intends to issue regulations outlining what information the agency expects to be included in PTMAs, Modified Risk Tobacco Product (“MRTP”) applications and reports to demonstrate Substantial Equivalence (“SE”). The FDA also plans to finalize guidance on how it intends to review PMTAs for ENDS. The agency also will continue efforts to assist industry in complying with federal tobacco regulations through online information, meetings, webinars and guidance documents”.
As at the date of this prospectus, the Company continues to evaluate the potential returns associated with the preparation and submission of PMTAs during the remainder of the six (6) year grace period to determine whether or not to continue marketing E-liquid or other vaping products in the United States after the six (6) year grace period lapses on August 8, 2022.
State and local governments currently legislate and regulate tobacco products, including what is considered a tobacco product, how tobacco taxes are calculated and collected, to whom tobacco products can be sold and by whom, in addition to where tobacco products, specifically cigarettes may be smoked and where they may not. Certain municipalities have enacted local ordinances which preclude the use of E-liquid, E-cigarettes and other vaping products where traditional tobacco burning cigarettes cannot be used and certain states have proposed legislation that would categorize vaping products as tobacco products, equivalent to their tobacco burning counterparts. If these bills become laws, vaping products may lose their appeal as an alternative to traditional cigarettes, which may have the effect of reducing the demand for the Products.
The Company may be required to discontinue, prohibit or suspend sales of its E-liquid Products in states that require us to obtain a retail tobacco license. If the Company is unable to obtain certain licenses, approvals or permits and if the Company is not able to obtain the necessary licenses, approvals or permits for financial reasons or otherwise and/or any such license, approval or permit is determined to be overly burdensome to the Company, then the Company may be required to cease sales and distribution of its E-liquid Products to those states, which would have a material adverse effect on the Company’s business, results of operations and financial condition.
As a result of FDA import alert 66-41 (which allows the detention of unapproved drugs promoted in the U.S.), U.S. Customs has from time to time temporarily and in some instances indefinitely detained certain products. If the FDA modifies the import alert from its current form which allows U.S. Customs discretion to release the products, to a mandatory and definitive hold the Company may no longer be able to ensure a supply of raw materials or saleable product, which will have material adverse effect on the Company’s business, results of operations and financial condition.
At present, neither thePrevent All Cigarette Trafficking Act(which prohibits the use of the U.S. Postal Service to mail most tobacco products and which amends theJenkins Act, which would require individuals and businesses that make interstate sales of cigarettes or smokeless tobacco to comply with state tax laws) nor theFederal Cigarette Labeling and Advertising Act(which governs how cigarettes can be advertised and marketed) apply to electronic cigarettes. The application of either or both of these federal laws to electronic cigarettes would have a material adverse effect on our business, results of operations and financial condition.
The tobacco industry expects significant regulatory developments to take place over the next few years, driven principally by the World Health Organization’s Framework Convention on Tobacco Control (“FCTC”). The FCTC is the first international public health treaty on tobacco, and its objective is to establish a global agenda for tobacco regulation with the purpose of reducing initiation of tobacco use and encouraging cessation. Regulatory initiatives that have been proposed, introduced or enacted include:
| ● | | the levying of substantial and increasing tax and duty charges; |
| ● | | restrictions or bans on advertising, marketing and sponsorship; |
| ● | | the display of larger health warnings, graphic health warnings and other labeling requirements; |
| ● | | restrictions on packaging design, including the use of colors and generic packaging; |
| ● | | restrictions or bans on the display of tobacco product packaging at the point of sale, and restrictions or bans on cigarette vending machines; |
| ● | | requirements regarding testing, disclosure and performance standards for tar, nicotine, carbon monoxide and other smoke constituents levels; |
| ● | | requirements regarding testing, disclosure and use of tobacco product ingredients; |
| ● | | increased restrictions on smoking in public and work places and, in some instances, in private places and outdoors; |
| ● | | elimination of duty free allowances for travelers; and |
| ● | | encouraging litigation against tobacco companies. |
If E-liquid, E-cigarettes or other vaping products are subject to one or more significant regulatory initiatives enacted under the FCTC, the Company’s business, results of operations and financial condition could be materially and adversely affected.
European Union
On April 3, 2014, the European Union issued the “New Tobacco Product Directive” and is intended to regulate “tobacco products”, including cigarettes, roll-your-own tobacco, cigars and smokeless tobacco, and “electronic cigarettes and herbal products for smoking”, including E-cigarettes, E-liquid, refill containers, liquid holding tanks and E-liquid bottles sold directly to consumers. The New Tobacco Product Directive became effective May 20, 2016.
The New Tobacco Product Directive introduces a number of new regulatory requirements for E-cigarettes, E-liquid and other vaping products, which includes the following: (i) restricts the amount of nicotine that E-cigarettes and E-liquid can contain; (ii) requires E-cigarettes, E-liquid and refill containers to be sold in child and tamper-proof packaging and nicotine liquids to contain only “ingredients of high purity”; (iii) provides that E-cigarettes, E-liquid and other vaping products must deliver nicotine doses at “consistent levels under normal conditions of use” and come with health warnings, instructions for their use, information on “addictiveness and toxicity”, an ingredients list, and information on nicotine content; (iv) significantly restricts the advertising and promotion of E-cigarettes, E-liquid and other vaping products; and (v) requires E-cigarette, E-liquid and other vaping product manufacturers and importers to notify EU Member States before placing new products on the market and to report annually such to Member States (including on their sales volumes, types of users and their “preferences”). Failure to make annual reports to Member State Competent Authorities or to properly notify prior to a substantive change to an existing product or introduction of a new product could result in the Company’s inability to market or sell its Products and cause material adverse effect on the Company’s business, results of operations and financial condition.
The New Tobacco Product Directive requires Member States to transpose into law New Tobacco Product Directive provisions by May 20, 2016. An “EU directive” requires Member States to achieve particular results. However, it does not dictate the means by which they do so. Its effect depends on how Member States transpose the New Tobacco Product Directive into their national laws. Member States may decide, for example, to introduce further rules affecting E-cigarettes, E-liquid and other vaping products (for example, age restrictions) provided that these are compatible with the principles of free movement of goods in the Treaty on the Functioning of the European Union. The Tobacco Product Directive also includes provisions that allow Member States to ban specific E-cigarettes, E-liquid and other vaping products or specific types of E-cigarettes, E-liquid and other vaping products in certain circumstances if there are grounds to believe that they could present a serious risk to human health. If at least three Member States impose a ban and it is found to be duly justified, the European Commission could implement a European Union wide ban. Similarly, the New Tobacco Product Directive provides that Member States may prohibit a certain category of tobacco, flavoring or related products on grounds relating to a specific situation in that Member State for public health purposes. Such measures must be notified to the European Commission to determine whether they are justified.
There are also other national laws in Member States regulating E-cigarettes, E-liquid and other vaping products. It is not clear what impact the new Tobacco Product Directive will have on these laws.
Canada
On September 27, 2017, Health Canada released a Notice to the Industry that portions of Bill S-5 related to the sale of vaping products that are marketed without health or therapeutic claims are to be enacted immediately upon Royal Assent. In effect, this both legitimizes the sale of vaping products within Canada and creates an initial regulatory framework. Health Canada has taken the stance that vaping products that are not marketed as therapeutic are to be considered consumer products and subject to the requirements of the Canada Consumer Product Safety Act (“CCPSA”). Under the CCPSA, there is a “general prohibition” on products that are classified as “very toxic” under the Consumer Chemicals and Containers Regulations, 2001 (“CCCR, 2001”). Health Canada has reviewed the toxicity of nicotine containing products and has determined that “vaping liquids containing equal to or more than 66 mg/ml (6.6%) nicotine meet the classification of "very toxic" under the CCCR, 2001 and will be prohibited from import, advertising or sale under Section 38 of the CCCR, 2001. None of the Company’s E-liquid Products for sale fall under this classification of “very toxic” and are therefore able to be marketed for sale within Canada. Health Canada has also determined that products containing any nicotine that falls below the “very toxic” classification to be regulated as “toxic” under the CCCR, 2001. This classification requires the use of childproof packaging, specific labeling requirements and pictograms as outlined in the CCCR, 2001.
At present, the Company has made efforts to ensure that its E-liquid Products that are being marketed in Canada are in full compliance with the recommendations of Health Canada and will expect no interruption to business upon Royal Ascent of Bill S-5.
Health Canada had also stated an intent to develop additional regulations under the authority of the CCPSA, however, at this time it is unclear what those additional regulations may be or how they will affect the Company’s business. If E-liquid, E-cigarettes or other vaping products are subject to one or more significant regulatory initiatives enacted under the Bill S-5 or otherwise, the Company’s business, results of operations and financial condition could be materially and adversely affected.
Currently in Canada, electronic smoking products (i.e., electronic products for the vaporization and administration of inhaled doses of nicotine including electronic cigarettes, cigars, cigarillos and pipes, as well as cartridges of nicotine solutions and related products) fall within the scope of the Food and Drugs Act. All of these products require market authorization prior to being imported, advertised or sold in Canada. Market authorization is granted by Health Canada following successful review of scientific evidence demonstrating safety, quality and efficacy with respect to the intended purpose of the health product. To date, no electronic smoking product has been authorized for sale by Health Canada.
In the absence of evidence establishing otherwise, an electronic smoking product delivering nicotine is regulated as a “new drug” under Division 8, Part C of the Food and Drug Regulations. In addition, the delivery system within an electronic smoking kit that contains nicotine must meet the requirements of the Medical Devices Regulations. Appropriate establishment licenses issued by Health Canada are also needed prior to importing, and manufacturing electronic cigarettes. Products that are found to pose a risk to health and/or are in violation of the Food and Drugs Act and related regulations may be subject to compliance and enforcement actions in accordance with the Health Products and Food Branch Inspectorate’s Compliance and Enforcement Policy (POL-0001). According to Health Canada regulations, it is not permissible to import, advertise or sell electronic smoking products without the appropriate authorizations, and persons that violate these regulations are subject to repercussions from Health Canada, including but not limited to, seizure of the products.
Since no scientific evidence demonstrating safety, quality and efficacy with respect to the intended purpose of E-cigarettes, E-liquid or other vaping products has been submitted to Health Canada to date, there is the possibility that in the future Health Canada may modify or retract the current prohibitions currently in place. However, there can be no assurance that the Company will be in total compliance, remain competitive, or financially able to meet future requirements and regulations imposed by Health Canada.
To date, Health Canada has not imposed any restrictions on E-cigarettes, E-liquid and other vaping products that do not contain nicotine. E-cigarettes, E-liquid and other vaping products that do not make any health claim and do not contain nicotine may legally be sold in Canada. Thus, vendors can openly sell nicotine-free E-cigarettes, E-liquid and other vaping products. However, there are vape shops operating throughout Canada selling E-cigarettes, E-liquid and other vaping products containing nicotine without any implications from Health Canada. E-cigarettes, E-liquid and other vaping products are subject to standard product regulations in Canada, including the Canada Consumer Product Safety Act and the Consumer Packaging and Labelling Act.
At present, neither the Tobacco Act (which regulates the manufacture, sale, labelling and promotion of tobacco products) nor the Tobacco Products Labelling Regulations (Cigarettes and Little Cigars) (which governs how cigarettes can be advertised and marketed) apply to E-cigarettes, E-liquid and other vaping products. The application of these federal laws to E-cigarettes, E-liquid and other vaping products would have a material adverse effect on the Company’s business, results of operations and financial condition.
Company’s efforts to mitigate risks associated with new and evolving regulation.
The Company is constantly seeking to stay in compliance with all existing and reasonably expected future regulations. The Company, through its internal compliance team, market consultants and technicians and testing labs hopes to stay in accordance with all standards whether set forth in the New Tobacco Products Directive or the Deeming Regulations. Making sure that all E-liquid Products meet and exceed the standards set forth by each market’s regulatory body is of the highest concern for the Company. Staying in compliance with all marketing and packaging directives is imperative to maintaining access to the markets. Although these processes are costly and time consuming, it is imperative for the Company’s success that these steps are taken and constantly kept up to date. Failure to comply in a timely fashion to any particular directive or regulation could have material adverse effects on the results of business operations.
Don Polly Product Line
Don Polly’s CBD products are subject to various state and federal laws regarding the production and sales of hemp-based products. Section 12619 of the Agriculture Improvement Act of 2018 (“2018 Farm Bill”) removed “hemp,” as defined in the Agricultural Marketing Act of 1946 (the “1946 Agricultural Act”), from the classification of “marijuana,” which is generally prohibited as a Schedule I drug under the Controlled Substances Act of 1970 (“CSA”). Under the 1946 Agricultural Act (as amended by the Dietary Supplement Health2018 Farm Bill), the term “hemp” means “the plant Cannabis sativa L. and Educationany part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” As a result of the passage of the 2018 Farm Bill, and since the Company believes the Don Polly Products contain parts of the cannabis plant with a THC concentration of not more than 0.3 percent on a dry weight basis, the Company believes that the Don Polly Products are not governed by the CSA and, ergo, would not be subject to prosecution thereunder because the Company believes the Don Polly Products contain “hemp” within the meaning of the 1946 Agricultural Act (as amended by the 2018 Farm Bill) and do not contain any “marijuana” as prohibited under the CSA (as amended by the 2018 Farm Bill); provided, however, there is a lack of 1994;legal protection for hemp-based products that contain more than 0.3 percent THC and there is a risk that the Occupational SafetyCompany would be subject to prosecution under the CSA in the event that its CBD products are found to contain more than 0.3 percent THC.
Furthermore, the 1946 Agricultural Act (as amended by the 2018 Farm Bill) provides additional regulations regarding the production of hemp-based products and Health Act; various environmental statutes;there is the risk that the Don Polly Products may be found to be in violation of these regulations. Specifically, the 1946 Agricultural Act (as amended by the 2018 Farm Bill) contains provisions relating to the shared state-federal jurisdiction over hemp cultivation and production, whereby states and Indian tribes have been delegated the broad authority to regulate and limit the production and sale of hemp and hemp products within their borders. Under the 1946 Agricultural Act (as amended by the 2018 Farm Bill), a numberplan under which a State or Indian tribe monitors and regulates the production of hemp shall only be required to include “(i) a practice to maintain relevant information regarding land on which hemp is produced in the State or territory of the Indian tribe, including a legal description of the land, for a period of not less than three calendar years; (ii) a procedure for testing, using post-decarboxylation or other federal, statesimilarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State or territory of the Indian tribe; (iii) a procedure for the effective disposal of—(I) plants, whether growing or not, that are produced in violation of this subtitle; and local statutes and regulations(II) products derived from those plants; (iv) a procedure to comply with enforcement procedures; (v) a procedure for conducting annual inspections of, at a minimum, a random sample of hemp producers to verify that hemp is not produced in violation of [applicable law]; (vi) a procedure for submitting the information, as applicable, to the Secretary of Agriculture (the “Secretary”) not more than 30 days after the date on which the information is received; and (vii) a certification that the State or Indian tribe has the resources and personnel to carry out the practices and procedures described in clauses (i) through (vi).” Further, a hemp producer in a State or the territory of an Indian tribe for which a State or Tribal plan is approved shall be determined to have negligently violated the State or Tribal plan, including by negligently— “(i) failing to provide a legal description of land on which the producer produces hemp; (ii) failing to obtain a license or other required authorization from the State department of agriculture or Tribal government, as applicable; or (iii) producing Cannabis sativa L. with a delta-9 THC concentration of more than 0.3 percent on a dry weight basis.” A hemp producer that negligently violates a State or Tribal plan 3 times in a 5-year period shall be ineligible to produce hemp for a period of 5 years beginning on the date of the third violation. If the State department of agriculture or Tribal government in a State or the territory of an Indian tribe for which a State or Tribal plan, as applicable, determines that a hemp producer in the State or territory has violated the State or Tribal plan with a culpable mental state greater than negligence— “(i) the State department of agriculture or Tribal government, as applicable, shall immediately report the hemp producer to —(I) the Attorney General; and (II) the chief law enforcement officer of the State or Indian tribe, as applicable.” In the case of a State or Indian tribe for which a State or Tribal plan is not approved, the production transportation, sale, safety, advertising, marketing, labelingof hemp in that State or the territory of that Indian tribe shall be subject to a plan established by the Secretary to monitor and ingredientsregulate that production. A plan established by the Secretary under shall include— “(A) a practice to maintain relevant information regarding land on which hemp is produced in the State or territory of the Indian tribe, including a legal description of the land, for a period of not less than 3 calendar years; (B) a procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State or territory of the Indian tribe; (C) a procedure for the effective disposal of—(i) plants, whether growing or not, that are produced in violation of [applicable law]; and (ii) products derived from those plants; (D) a procedure to comply with the enforcement procedures; (E) a procedure for conducting annual inspections of, at a minimum, a random sample of hemp producers to verify that hemp is not produced in violation of this subtitle; and (F) such products.other practices or procedures as the Secretary considers to be appropriate. The Secretary shall also establish a procedure to issue licenses to hemp producers. In the case of a State or Indian tribe for which a State or Tribal plan is not approved under applicable law, it shall be unlawful to produce hemp in that State or the territory of that Indian tribe without a license issued by the Secretary. A violation of a plan established by the Secretary shall be subject to enforcement and the Secretary shall report the production of hemp without a license issued by the Secretary to the Attorney General. In the event that the Company’s CBD products are found to be in violation of these regulations, the Company may become subject to enforcement action as provided for in the 1946 Agricultural Act (as amended by the 2018 Farm Bill) and may become subject to prosecution thereunder.
True Drinks -- Legacy Products
Certain states and localities prohibit the sale of certain beverages unless a deposit or tax is charged for containers. These requirements vary by each jurisdiction. Similar legislation has been proposed in certain other states and localities, as well as by Congress. We are unable to predict whether such legislation will be enacted or what impact its enactment would have on our business, financial condition or results of operations.
All of our facilities in the United States are subject to federal, state and local environmental laws and regulations. Although compliance with these provisions has not had any material adverse effect on our financial or competitive position, compliance with or violation of any current or future regulations and legislation could require material expenditures or have a material adverse effect on our financial results.
We believe that current and reasonably foreseeable governmental regulation will have minimal impact on our business.
Research and Development
No expenses were recorded for Our research and development activities consist of development and testing of new flavors, formulations, formats and delivery methods for our existing products, as well as development of new products for the yearCharlie’s Product Line and the Don Polly Product Line.
For the years ended December 31, 2015. We are working with certain third parties on the2017 and 2018, Charlie’s recorded product development expenses of possible future products, but these projects are funded by the respective third parties. During 2012, we developed our AquaBall(TM) proprietary formula along with Wild Flavors, Inc., an independent third party contracted by the Company. We launched distribution$116,040 and sales of the AquaBall(TM) in June 2012. The AquaBall(TM) did not require FDA or other regulatory approval. Following the initial launch of the AquaBall(TM), we continued research and development efforts to add more flavors to the AquaBall(TM) line, and modify the AquaBall(TM) into a zero sugar, zero calorie product. We launched the zero sugar, zero calorie line in early 2013, as well as new flavors, such as strawberry lemonade and berry.
Upon execution of the Niagara Agreement in October 2015, we completed the development of an improved “clean label” formulation of AquaBall(TM), which remains sugar and calorie free but has eliminated all preservatives, and will be produced by Niagara using a hot-fill process. We expect to complete the transition of AquaBall™ to the new, preservative-free formulation and begin distribution from Niagara facilities in May 2016.
During 2006, Bazi(R) was developed and was launched in January 2007. This product did not require FDA or other regulatory approval. During 2009, new ingredients and production methods were researched to integrate into existing products or new products. Since 2012, Bazi(R) has been and is now being sold solely online in 12, 24, 36, 48 and 144 packs.
Employees
We had 1351 full-time employees across Charlie’s Holdings Inc., Charlie’s Chalk Dust LLC and one part-time employeeDon Polly LLC as of December 31, 2015.June 30, 2019.
Compliance with Environmental Laws
In California, in connection with sales of Bazi®, we are required to collect redemption values from our retail customers and to remit such redemption values to the State of California Department of Resources Recycling and Recovery based upon the number of cans and bottles of certain carbonated and non-carbonated products sold. In certain other states where our products are sold, we are also required to collect deposits from our customers and to remit such deposits to the respective jurisdictions based upon the number of cans and bottles of certain carbonated and non-carbonated products sold in such states.
Facilities
DescriptionWe occupy approximately 7,200 square feet of Propertyoffice located at 1007 Brioso Drive, Costa Mesa, CA 92627. The lease began on October 1, 2015, and for a term of three years with a monthly base lease rate of $15,474. We have not yet renewed the lease for our corporate headquarters, and instead are currently making month-to-month payments. We also occupy the following spaces:
The Company leases its corporate office in Irvine, California on a one-year term. The Company recently moved into a new office and extended its lease from an expiration date of July 31, 2016 to December 31, 2016. Total rent expense related to the Company's operating lease for the year ended December 31, 2015 was $55,640. Total remaining payments on the lease through December 31, 2016 are $42,687.| ● | Approximately 3,306 square feet of multi-tenant industrial space located at 1701 E. Edinger, Suite E13, Santa Ana, CA 92705, used for general office and warehouse space. The lease began on April 1, 2018, and for a term of three years, with a monthly base lease rate of $3,306. |
| ● | Approximately 11,100 square feet of industrial space located at 5331 Production Drive, Huntington Beach, CA 92649, used for warehousing and shipping operations. The lease began on June 1, 2019, and for a term of three years, with a monthly base lease rate of $12,987. |
| ● | Certain of Don Polly’s operations are operated from a 7,366 square foot facility in Denver Colorado. The facility offers multi-use space, housing both warehouse and administrative functions. The lease commenced on April 1, 2019, and for a term of 38 months, with a monthly base lease rate of $10,435. |
Legal Proceedings
From time to time, claims are made against the Company in the ordinary course of business, which could result in litigation. Claims and associated litigation are subject to inherent uncertainties, and unfavorable outcomes could occur. In the opinion of management, the resolution of these matters, if any, will not have a material adverse impact on the Company’s financial position or results of operations. Other than as set forth below, there are no additional pending or threatened legal proceedings at this time.
Delhaize America Supply Chain Services, Inc. v. True Drinks, Inc. On May 8, 2018, Delhaize America Supply Chain Services, Inc. (“Delhaize”) filed a complaint against the Company in the General Court of Justice Superior Court Division located in Wake County, North Carolina alleging breach of contract, among other causes of action, related to contracts entered into by and between the two parties. Delhaize is seeking in excess of $25,000 plus interest, attorney’s fees and costs. We believe the allegations are unfounded and are defending the case vigorously. We believe the probability of incurring a material loss to be remote.
The Irvine Company, LLC v. True Drinks, Inc. On September 10, 2018, The Irvine Company, LLC (“Irvine”) filed a complaint against the Company in the Superior Court of Orange County, located in Newport Beach, California, alleging breach of contract related to the Company’s early termination of its lease agreement with Irvine in May 2018. Pursuant to the Complaint, Irvine sought to recover approximately $74,000 in damages from the Company. In November 2018, the Company and Irvine agreed to settle the lawsuit for an aggregate of $15,750.
CHARLIE’S CHALK DUST, LLC MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion of the financial condition and results of operations of Charlie’s Chalk Dust, LLC should be read in conjunction with the financial statements and the notes to those statements appearing elsewhere in this prospectus. Some of the information contained in this discussion and analysis or set forth elsewhere in this prospectus, including information with respect to our plans and strategy for our business, includes forward-looking statements that involve risks and uncertainties. You should read the “Risk Factors” section of this prospectus for a discussion of important factors that could cause actual results to differ materially from the results described in or implied by the forward-looking statements contained in the following discussion and analysis.
Overview
Charlie’s Chalk Dust, LLC (“Charlie’s”) was incorporated in Delaware in 2014 as a limited liability corporation. Charlie’s is a formulator, marketer and distributor of branded e-cigarette nicotine based liquid for use in both open and closed consumer e-cigarette and vaping systems. Charlie’s products are produced domestically through contract manufactures for sale to distributors and specialty retailers throughout the United States, and over 80 countries worldwide. Charlie’s primary international markets include the United Kingdom, Italy, Spain, Belgium, Australia, Sweden and Canada. Charlie’s is headquartered in Costa Mesa, California.
In addition, in June 2019 we began to manufacture and distributed CBD based e-cigarette liquid and other CBD based products. We manufacture and sell this product through Don-Polly, LLC, a Denver based company with common ownership and control with Charlie’s Chalk Dust and with who Charlies Chalk Dust has both marketing and service agreements. We will account for this activity as a Variable Interest Entity (“VIE”).
For the quarters ended March 31, 2019 and 2018, Charlie’s revenues from continuing operations were $6,648,000 and $5,432,000 respectively. Net Income for the quarters ended March 31, 2019 and 2018 was $2,475,000 and $2,057,000 respectively.
For the years ended December 31, 2018 and 2017, Charlie’s revenues from continuing operations were $20,841,000 and $12,234,000, respectively. Net Income for the years ended December 31, 2018 and 2017 was $7,200,000 and $3,266,000 respectively.
On April 26, 2019, the Company consummated the Share Exchange with the stockholders of Charlie’s, pursuant to which it acquired all of the issued and outstanding membership interests of Charlie’s in exchange for the issuance of shares of the Company’s common stock, representing approximately 90% of the Company’s issued and outstanding common stock. After the Share Exchange, the business operations of the Company consist of those of Charlie’s. See “Prospectus Summary- The Share Exchange.” On June 28, 2019, the Company changed its corporate name from True Drinks Holdings, Inc. to Charlie’s Holdings, Inc.
Company Strategy
The Company intends to expand its operations and seek revenue and profit growth by increasing the sales of its nicotine based e-cigarette liquid by offering additional product and expanding sales territories, as well as from the recently launched manufacturing and distribution of CBD based products.
Current Operating Trends and Financial Highlights
Management currently considers the following events, trends and uncertainties to be important in understanding Charlie’s results of operations and financial condition for the most recent calendar quarter and full year:
With regard to results from continuing operations for the three months ended March 31, 2019, Charlie’s generated revenue of approximately $6,648,000 as compared to revenue of $5,432,000 for the three months ended March 31, 2018. This $1,216,000 increase in revenue was due primarily to the introduction of new products and the addition of new customers and sales territories.
Charlie’s generated a net income for the three months ended March 31, 2019 of approximately $2,475,000, or $2,475 per share of membership units of which there are 1,000. As Charlie’s is limited liability company, this profit is before any tax liability or distribution to the members of Charlie’s.
The net income for the three months ended March 31, 2019 compares net income of approximately $2,057,000, or $2,057 per membership unit, for the three months ended March 31, 2018.
With regard to results from continuing operations for the year ended December 31, 2018, Charlie’s generated revenue of approximately $20,841,000 as compared to revenue of $12,234,000 for the prior year. This $8,607,000 increase in revenue was due primarily to introduction of new products and the addition of new customers and territories.
Charlie’s generated a net income for the year ended December 31, 2018 of approximately $7,200,000, or $7,200 per share membership units of which there are 1,000. As Charlie’s is a limited liability company, this profit is before any tax liability or distribution to the members of Charlie’s.
The net Income for the year ended December 31, 2018 compares net income of approximately $3,266,000, or $3,266 per membership unit, for the year ended December 31, 2017.
A review of both the three month period ended March 31, 2019 and the twelve month period ended December 31, 2018 are as follows:
Results of Operations for the Three Months Ended March 31, 2019 Compared to the Three Months Ended March 31, 2018.
| | For the three months ended March 31, |
| | 2019 | 2018 |
| Revenue | $6,647,545 | 100.0% | $5,432,370 | 100.0% |
| Costs and expenses: | | | | |
| Cost of revenue | 2,750,274 | 41.4% | 2,165,289 | 39.9% |
| Sales and Marketing | 767,042 | 11.5% | 718,036 | 13.2% |
| Product Development | 39,542 | 0.6% | 31,976 | 0.6% |
| General and Administrative | 615,572 | 9.3% | 460,105 | 8.4% |
| Total Expenses | 4,172,430 | 62.8% | 3,375,406 | 62.1% |
| Operating income | 2,475,115 | 37.2% | 2,056,964 | 37.9% |
| Interest income | 90 | 0.0% | 95 | 0.0% |
| Net income | $2,475,205 | 37.2% | $2,057,059 | 37.9% |
Operating Income
Charlie’s had operating income of approximately $2,475,000 for the three months ended March 31, 2019. The quarter’s operating income was derived from its branded nicotine based e-cigarette liquid business. For the three months ended March 31, 2018, Charlie’s had operating income of approximately $2,057,000 from its branded nicotine based e-cigarette liquid business. The details of the operating income are as follows:
Revenue
Revenue for the three months ended March 31, 2019 increased approximately $1,216,000, or 22.4%, to approximately $6,648,000, as compared to approximately $5,432,000 for same period last year due to introduction of new e-cigarette liquids and increasing the customer base and sales territories.
Cost of Revenue
Cost of revenue, which consists of direct costs of materials, direct labor, third party subcontractor services, and other overhead costs increased approximately $585,000, or 27.0%, to approximately $2,750,000, or 41.4% of revenue, for the three months ended March 31, 2019, as compared to approximately $2,165,000, or 399% of revenue, for the same period in 2018. This 15% percent increase in the cost of revenue is due to rising costs in the production process and lower selling price on certain products as compared to last year.
Sales and Marketing Expenses
For the three months ended March 31, 2019, total sales and marketing expenses increased approximately $49,000, or 6.8%, to approximately $767,000 as compared to approximately $718,000 for the same period in 2018, which was primarily due to increased salary expense for the addition of personnel.
Product Development
For the three months ended March 31, 2019, product development was approximately $40,000 as compared to approximately $32,000 for the same quarter in 2018. The increase of $8,000 is due primarily to certain product registrations.
General and Administrative Expenses
For the three months ended March 31, 2019, total general and administrative expenses increased approximately $156,000, or 33.7%, to approximately $616,000 as compared to approximately $460,000 for the same period in 2018, which was primarily due to increased salary expense for the addition of personnel and professional fees in connection with our stock exchange transaction.
Income from Operations
Charlie’s had net income from operations of approximately $2,475,000 for the three months ended March 31, 2019 as compared to net income from operations of approximately $2,057,000 for the same period in 2018. Net Income is determined by adjusting income from operations by the following item:
Other Income
For the three months ended March 31, 2019 and 2018, other income was $90 and $95, respectively.
Net Income
For the three months ended March 31, 2019, Charlie’s had net income of $2,475,000 as compared to $2,057,000 for the same period in 2018. Charlie’s is a limited liability company and this net income is before tax as taxes are the responsibility to the members of Charlie’s.
Effects of Inflation
Inflation has not had a material impact on Charlie’s business.
Liquidity and Capital Resources
As of March 31, 2019, Charlie’s had working capital of approximately $2,193,000, which consisted of current assets of approximately $3,444,000 and current liabilities of approximately $1,251,000. This compares to working capital of approximately $704,000 at December 31, 2018. The current liabilities as presented in the balance sheet at March 31, 2019 primarily include approximately $1,027,000 of accounts payable and accrued expenses and approximately $184,000 of deferred revenue associated with product shipped but not yet received by customers (see our revenue recognition policy below in the critical accounting policy paragraph).
Our cash and cash equivalents balance at March 31, 2019 was approximately $1,243,000.
For the three months ended March 31, 2019 we generated cash from operations of $1,930,000 as compared to $1,949,000 for the same period in 2018.
For the three months ended March 31,2019 we used cash for financing activities (primarily LLC member distributions) of $979,000 as compared to $1,192,000 for the same period in 2018.
Charlie’s plans and growth depend on its ability to increase revenues and continue its business development efforts. Charlie’s currently anticipates that its current cash position will be enough to meet its working capital requirements to continue our sales and marketing efforts for at least 12 months. If in the future Charlie’s plans or assumptions change or prove to be inaccurate, we may need to raise additional funds through public or private debt or equity offerings, financings, corporate collaborations, or other means.
Results of Operations for the Year Ended December 31, 2018 compared to the Year Ended December 31, 2017.
| | For the twelve months ended December 31, |
| | 2018 | 2017 |
| Revenue | $20,840,794 | 100.0% | $12,233,925 | 100.0% |
| Costs and expenses: | | | | |
| Cost of revenue | 8,514,790 | 40.9% | 5,475,051 | 44.8% |
| Sales and Marketing | 2,904,456 | 13.9% | 1,862,441 | 15.2% |
| Product Development | 95,180 | 0.5% | 116,040 | 0.9% |
| General and Administrative | 2,126,945 | 10.2% | 1,523,334 | 12.5% |
| Total Expenses | 13,641,371 | 65.5% | 8,976,866 | 73.4% |
| Operating income | 7,199,423 | 34.5% | 3,257,059 | 26.6% |
| Interest income | 453 | 0.0% | 9,410 | 0.1% |
| $7,199,876 | 34.5% | $3,266,469 | 26.7% |
Operating Income
Charlie’s had operating income of approximately $7,199,000 for the year ended December 31, 2018. The years’ operating income was derived from its branded nicotine based e-cigarette liquid business. For the year ended December 31, 2017, Charlie’s had operating income of approximately $3,527,000 from its branded nicotine e-cigarette liquid business. The details of the operating income are as follows:
Revenue
Revenue for the twelve months ended December 31, 2018 increased approximately $8,607,000, or 70.4%, to approximately $20,841,000, as compared to approximately $12,234,000 for same period last year due to introduction of new e-cigarette liquids and increasing the customer base and sales territories.
Cost of Revenue
Cost of revenue, which consists of direct costs of materials, direct labor, third party subcontractor services, and other overhead costs increased approximately $3,040,000, or 27.0%, to approximately $8,515,000, or 40.9% of revenue, for the year ended December 31, 2018, as compared to approximately $5,475,000, or 44.8% of revenue, for the same period in 2017. This 3.9% percent decrease in the cost of revenue is due to lower production costs on increased volume and the addition of more profitable customers.
Sales and Marketing Expenses
For the year ended December 31, 2018, total sales and marketing expenses increased approximately $1,042,000, or 55.9%, to approximately $2,904,000 as compared to approximately $1,862,000 for the same period in 2017. The increase was primarily due to increased salary expense for the addition of personnel and increased commission costs on the increased sales.
Product Development
For the year ended December 31, 2018, product development was approximately $95,000 as compared to approximately $116,000 for the same period in 2017. The decrease in expense of $21,000 is due primarily lower product registration activity in 2018.
General and Administrative Expenses
For the year ended December 31, 2018, total general and administrative expenses increased approximately $604,000, or 39.7%, to approximately $2,127,000 as compared to approximately $1,523,000 for the same period in 2017, which was primarily due to increased salary expense for the addition of personnel and professional fees asscoated with exploring strategic alternatives.
Income from Operations
Charlie’s had net income from operations of approximately $7,199,000 for the year ended December 31, 2018 as compared to net income from operations of approximately $3,257,000 for the same period in 2017. Net Income is determined by adjusting income from operations by the following items:
Other Income
For the years ended December 31, 2018 and 2017, other income was $453 and $9,410, respectively.
Net Income
For the year ended December 31, 2018, Charlie’s had net income of $7,200,000 as compared to $3,266,000 for the same period in 2017. Charlie’s is a limited liability company and this net income is before tax as taxes are the responsibility to the members of Charlie’s.
Effects of Inflation
Inflation has not had a material impact on the Charlie’s business.
Liquidity and Capital Resources
As of December 31, 2018, Charlie’s had working capital of approximately $704,000, which consisted of current assets of approximately $2,101,000 and current liabilities of approximately $1,396,000. This compares to working capital of approximately $1,459,000 at December 31, 2017. The current liabilities as presented in the balance sheet at December 31, 2018 primarily include approximately $1,217,000 of accounts payable and accrued expenses and approximately $180,000 of deferred revenue associated with product shipped but not yet received by customers (see our revenue recognition policy below in the critical accounting policy paragraph).
Our cash and cash equivalents balance at December 31, 2018 was approximately $305,000.
For the year ended December 31, 2018 we generated cash from operations of $7,784,000 as compared to $3,021,000 for the same period in 2017.
For the year ended December 31,2018 we used cash for financing activities (primarily LLC member distributions ) of $8,119,000 as compared to $2,557,000 for the same period in 2017.
Charlie’s plans and growth depend on its ability to increase revenues and continue its business development efforts. Charlie’s currently anticipates that its current cash position will be enough to meet its working capital requirements to continue our sales and marketing efforts for at least 12 months. If in the future Charlie’s plans or assumptions change or prove to be inaccurate, we may need to raise additional funds through public or private debt or equity offerings, financings, corporate collaborations, or other means.
Off-Balance Sheet Arrangements
Charlie’s has no off-balance sheet arrangements other than operating lease commitments.
Critical Accounting Policies
Included below is a discussion of critical accounting policies used in the preparation of Charlie’s financial statements. While all these significant accounting policies impact Charlie’s financial condition and results of operations, Charlie’s views certain of these policies as critical. Policies determined to be critical are those policies that have the most significant impact on Charlie’s financial statements and require management to use a greater degree of judgment and estimates. Actual results may differ from those estimates.
Charlie’s believes that given current facts and circumstances, it is unlikely that applying any other reasonable judgments or estimate methodologies would cause a material effect on our consolidated results of operations, financial position or liquidity for the periods presented in this report.
The accounting policies identified as critical are as follows:
Revenue Recognition
Charlie’s recognizes revenues in accordance with Accounting Standards Codification (“ASC”) 606 – Contracts with Customers. Charlie’s revenues are generated from contracts with customers that consist of sales to retailers and distributors. Charlie’s contracts with customers are generally short term in nature with the delivery of product as a single performance obligation. Revenue from the sale of product is recognized at the point in time when the single performance obligation has been satisfied and control of the product has transferred to the customer. In evaluating the timing of the transfer of control of products to customers, Charlie’s considers several indicators, including significant risks and rewards of products, the right to payment, and the legal title of the products. Based on the assessment of control indicators, sales are generally recognized when products are received by customers. Shipping generally occurs prior to the transfer of control to the customer and is therefore accounted for as a fulfillment expense. In circumstances where shipping and handling activities occur after the customer has obtained control of the product, Charlie’s elected to account for shipping and handling activities as a fulfillment cost rather than an additional promised service. Contract durations are generally less than one year, and therefore costs paid to obtain contracts, which generally consist of sales commissions, are recognized as expenses in the period incurred. Revenue is measured by the transaction price, which is defined as the amount of consideration expected to be received in exchange for providing goods to customers. The transaction price is adjusted for estimates of known or expected variable consideration, which includes refunds and returns as well as incentive offers and promotional discounts on current orders. Sales returns are generally not material to the financial statements, and do not comprise a significant portion of variable consideration. Estimates for sales returns are based on, among other things, an assessment of historical trends, information from customers, and anticipated returns related to current sales activity. These estimates are established in the period of sale and reduce revenue in the period of the sale. Variable consideration related to incentive offers and promotional programs are recorded as a reduction to revenue based on amounts Charlie’s expects to collect. Estimates are regularly updated and the impact of any adjustments are recognized in the period the adjustments are identified. In many cases, key sales terms such as pricing and quantities ordered are established at the time an order is placed and incentives have very short-term durations.
Amounts billed and due from customers are short term in nature and are classified as receivables since payments are unconditional and only the passage of time related to credit terms is required before payments are due. Charlie’s does not grant payment financing terms greater than one year. Payments received in advance of revenue recognition are recorded as deferred revenue.
Accounts Receivable
Accounts receivable is recorded at the invoiced amount and does not bear interest. We determine the allowance for doubtful accounts by regularly evaluating individual customer receivables and considering a customer’s financial condition, credit history and current economic conditions and set up an allowance for doubtful accounts when collection is uncertain. Customers’ accounts are written off against the allowance when all attempts to collect have been exhausted. Recoveries of accounts receivable previously written off are recorded as income when received. As of December 31, 2018 and 2017, the allowance for bad debt totaled $151,109 and $57,623, respectively.
Inventories
Inventories primarily consist of finished goods and are stated at the lower of cost (determined by the average cost method) or net realizable value. We calculate estimates of excess and obsolete inventories determined primarily by reviewing inventory on hand, historical sales activity, industry trends and expected net realizable value. As of December 31, 2018, and 2017, the reserve for excess and obsolete inventories totaled $73,549 and $61,914, respectively.
CHARLIE’S HOLDINGS, INC. (FORMERLY TRUE DRINKS HOLDINGS, INC.)
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion of the financial condition and results of operations of Charlie’s Holdings, Inc. (formerly True Drinks Holdings, Inc.) (the “Company”) should be read in conjunction with the financial statements and the notes to those statements appearing at the end of this prospectus. Some of the information contained in this discussion and analysis or set forth elsewhere in this prospectus, including information with respect to our plans and strategy for our business, includes forward-looking statements that involve risks and uncertainties. You should read the “Risk Factors” section of this prospectus for a discussion of important factors that could cause actual results to differ materially from the results described in or implied by the forward-looking statements contained in the following discussion and analysis.
Overview
As discussed in detail in “Prospectus Summary- The Share Exchange” and Note 9, “Subsequent Events” to our unaudited financial statements for the period ended March 31, 2019, on April 26, 2019, the Company entered into a Securities Exchange Agreement with each of the members of Charlie’s, and certain direct investors, pursuant to which the Company acquired all outstanding membership interests of Charlie’s beneficially owned by its members in exchange for Company securities (the “ShareExchange”). As a result, Charlie’s became a wholly owned subsidiary of the Company.
Since the date of the Share Exchange, the Company’s primary business is the development, marketing and distribution of high-quality nicotine-based and CBD-based vapor products. The Company now distributes its vapor products both domestically and internationally through select distributors, specialty retailers and third-party online resellers.
THE INFORMATION IN THIS SECTION IS FOR HISTORICAL PURPOSES ONLY, AND IS NOT AN ACCURATE DESCRIPTION OF THE COMPANY’S FINANCIAL CONDITION AND RESULTS OF OPERATIONS FOLLOWING THE SHARE EXCHANGE.
As of March 31, 2019, our principal place of business was 2 Park Plaza, Suite 1200, Irvine, California 92614, which was changed to 1007 Brioso Drive, Costa Mesa, CA 92627 as of April 26, 2019. Our telephone number is (949) 531-6855. Our corporate website address at March 31, 2019 was http://www.truedrinks.com, but was changed to http://www.charliesholdings.com. Our common stock, par value $0.001 per share, was listed for quotation on the OTC Pink Marketplace under the symbol “TRUU,” which ticker symbol was changed to “CHUC” on July 3, 2019 in order to more accurately reflect our corporate name.
Prior to the Share Exchange, we had begun to implement certain plans relating to our business, the detail of which is as follows:
Cessation of Production of AquaBall®, and Management’s Plan
During the first quarter of 2018, due to the weakness in the sale of the Company’s principal product, AquaBall® Naturally Flavored Water, and continued substantial operating losses, the Company’s Board of Directors determined to discontinue the production of AquaBall®, and, as set forth below, terminate the bottling agreement by and between Niagara Bottling LLC, the Company’s contract bottling manufacturer (“Bottler” or “Niagara”), and True Drinks (the “Bottling Agreement”). In addition, the Company notified Disney Consumer Products, Inc. (“Disney”) of the Company’s desire to terminate its licensing agreement with Disney (“Disney License”), pursuant to which the Company was able to feature various Disney characters on each AquaBall® bottle. As a result of management’s decision, and the Company’s failure to pay certain amounts due Disney under the terms of the Disney License, the Disney License terminated, and Disney claimed amounts due of approximately $178,000, net of $378,000 drawn from an irrevocable letter of credit posted in connection with the execution of the Disney License. In addition, Disney sought additional payments for minimum royalty amounts required to be paid Disney through the remainder of the term of the Disney License. On July 17, 2018, the Company and Disney entered into a settlement and release whereby in exchange for a payment to Disney of $42,000, the parties agreed to release each other from any and all claims related to the Disney License.
In April 2018, the Company sold its remaining AquaBall® inventory to Red Beard for an aggregate purchase price of approximately $1.44 million (the “Purchase Price”). As payment for the Purchase Price, the principal amount of the senior secured convertible promissory note issued to Red Beard by the Company in the principal amount of $2.25 million (the “Red Beard Note”) was reduced by the Purchase Price, resulting in approximately $814,000 owed to Red Beard under the terms of the Red Beard Note as of April 5, 2018. As of March 31, 2019, the Company owed Red Beard $569,741 in principal and accrued but unpaid interest pursuant to the Red Beard Note. On April 26, 2019, subsequent to the quarter ended March 31, 2019, Red Beard converted all amounts due under the terms of the Red Beard Note into shares of the Company’s common stock.
As of March 31, 2019, the Company had reduced its staff to one employee, and had contracted with former management and other professionals to continue operations. In addition, the Company had taken other steps to minimize general, administrative and other operating costs, while maintaining only those costs and expenses necessary to maintain sales of Bazi® and otherwise continue operations while the Board of Directors and the Company’s principal stockholder explored certain opportunities, as more particularly described below. Management also worked to reduce accounts payable by negotiating settlements with creditors, including Disney, utilizing advances from Red Beard aggregating approximately $605,000 as of March 31, 2019, and focused on negotiating with its remaining creditors to settle additional accounts payable.
Termination of Bottling Agreement and Issuance of Notes
On April 5, 2018 (the “Effective Date”), True Drinks settled all amounts due the Bottler under the terms of the Bottling Agreement (the “Settlement”). As of the Effective Date, the damage amount claimed by the Bottler under the Bottling Agreement was $18,480,620, which amount consisted of amounts due to the Bottler for product as well as amounts due for the Company’s failure to meet certain minimum requirements under the Bottling Agreement (the “Outstanding Amount”). Concurrently, an affiliate of Red Beard and the Bottler agreed to terminate a personal guaranty of Red Beard’s obligations under the Bottling Agreement in an amount not to exceed $10.0 million (the “Affiliate Guaranty”) (the Bottling Agreement and the Affiliate Guaranty are hereinafter referred to as the “2015 Agreements”).
Under the terms of the Settlement, in exchange for the termination of the 2015 Agreements, the Bottler agreed to accept, among other things: (i) a promissory note in the principal amount of $4,644,906 (the “Principal Amount”), with a 5% per annum interest rate, to be compounded, annually (“Note One”), (ii) a promissory note with a principal amount equal to the Outstanding Amount (“Note Two”), and (iii) a cash payment of $2,185,158 (the “Cash Payment”).
The Principal Amount and all interest payments due under Note One shall be due and payable to the Bottler in full on or before the December 31, 2019 (the “Note Payment”). On January 14, 2019, the Company, True Drinks and Red Beard entered into an Assignment and Assumption Agreement, pursuant to which the Company and True Drinks assigned, and Red Beard assumed, all outstanding rights and obligations of the Company and True Drinks under the terms of Note One. As a result, all obligations of the Company and True Drinks under Note One, including for the payment of amounts due thereunder, were assigned to Red Beard.
Note Two shall have no force or effect except under certain conditions and shall be reduced by any payments made to the Bottler under the terms of the Settlement. True Drinks and the Company shall be jointly and severally responsible for all amounts due, if any, under Note Two, which shall automatically expire and terminate on December 31, 2019.
In consideration for the guarantee of the Company’s obligations in connection with the Settlement, including as a joint and several obligor under the terms of Note One, the Company agreed to issue Red Beard 348,367,950 shares of the Company’s common stock (the “Shares”), which Shares were to be issued at such time as the Company amended its Articles of Incorporation to increase the number of authorized shares of common stock from 300.0 million to at least 2.0 billion (the “Amendment”), but in no event later than September 30, 2018. As a condition to the Company’s obligation to issue the Shares, Red Beard executed, and caused its affiliates to execute, a written consent of shareholders to approve the Amendment. As discussed below, on November 15, 2018, the Company amended its Articles of Incorporation to increase the number of authorized shares of common stock to 7.0 billion, thereby triggering the Company’s obligation to issue the Shares to Red Beard.
In connection with the Settlement, and in order to make the Cash Payment described above, the Company issued the Red Beard Note to Red Beard, which Red Beard Note accrued interest at a rate of 5% per annum. In May 2018, as a result of the sale to Red Beard of the Company’s remaining AquaBall® inventory, the principal amount of the Red Beard Note was reduced by the Purchase Price.
Pursuant to the terms of the Red Beard Note, Red Beard had the right, at its sole option, to convert the outstanding balance due under the Red Beard Note into that number of fully paid and non-assessable shares of the Company’s common stock equal to the outstanding balance divided by $0.005 (the “Conversion Option”);provided, however, that the Company had the right, at its sole option, to pay all or a portion of the accrued and unpaid interest due and payable to Red Beard upon its exercise of the Conversion Option in cash. Pursuant to the terms of the Red Beard Note, such Conversion Option could not be exercisable unless and until such time as the Company has filed the Amendment with the Nevada Secretary of State, which occurred on November 15, 2018. As a result of the Increase in Authorized, Red Beard was able exercise its Conversion Option under the Red Beard Note at any time, which it elected to do on April 26, 2019 in connection with the Share Exchange.
On September 18, 2018, the Company and Food Labs, Inc. (“Food Labs”) entered into an agreement, pursuant to which the Company sold and issued to Food Labs a promissory note in the principal amount of $50,000 (the “Food Labs Note”). The Food Labs Note (i) accrued interest at a rate of 5% per annum, (ii) included an additional lender’s fee equal to $500, or 1% of the principal amount, and (iii) was scheduled to mature on December 31, 2019. Food Labs is controlled by Red Beard. In connection with the Share Exchange, on April 26, 2019, Red Beard purchased the Food Labs Note, and thereafter converted all amounts due under the Food Labs Note into shares of common stock, thereby terminating the Food Labs Note, as more specifically discussed below.
Increase in Authorized Shares of Common Stock
On November 15, 2018, the Company filed a Certificate of Amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada to increase the total number of shares of common stock authorized for issuance thereunder from 300.0 million to 7.0 billion shares (the “Increase in Authorized”).
As a result of the Increase in Authorized, Red Beard could exercise its Conversion Option under the Red Beard Note at any time, which it elected to do on April 26, 2019 in connection with the Share Exchange.
Red Beard Line-of-Credit
On November 19, 2018, the Company entered into a line-of-credit with Red Beard, effective October 25, 2018, pursuant to which the Company could borrow up to $250,000 (the “Red Beard LOC”);provided, however, that Red Beard could, in its sole discretion, decline to provide additional advances under the Red Beard LOC upon written notice the Company of its intent to decline to make such advances. Interest accrued on the outstanding principal of amount of the Red Beard LOC at a rate of 8% per annum;provided, however, that upon the occurrence of an Event of Default, as defined in the Red Beard LOC, the accrual of interest would have increased to a rate of 10% per annum. Prior to December 31, 2019 (the “Maturity Date”), Red Beard had the right, at its sole option, to convert the outstanding principal balance, plus all accrued but unpaid interest due under the Red Beard LOC (the “Outstanding Balance”) into that number of shares of common stock equal to the Outstanding Balance divided by $0.005. As of March 31, 2019, the Company had borrowed a total of $605,000 under the Red Beard LOC, which was increased to $655,000 as of April 11, 2019. On April 26, 2019, Red Beard converted all amounts due under the Red Beard LOC into shares of common stock, thereby terminating the Red Beard LOC, as more specifically discussed below.
Note Extensions
On January 28, 2019, the Company entered into agreements with the holders of three Senior Secured Promissory Notes (the “Notes”) to extend the maturity date of each of the Notes by 60 days (the “Extension Agreements”). The Notes were each issued between July 25, 2017 to July 31, 2017, originally matured six months after issuance, have an aggregate principal balance of $750,000, and accrued interest at a rate of 8% per annum. As a result of the Extension Agreements, the Notes matured on March 26, 2019, March 31, 2019 and April 1, 2019, respectively. On April 26, 2019, in connection with the Share Exchange, Red Beard purchased each of the Notes, and thereafter converted al amounts due under the Notes into shares of common stock, thereby terminating the Notes, as more particularly discussed below.
Debt Restructuring
On April 26, 2019, in connection with the Share Exchange, Red Beard purchased substantially all outstanding indebtedness of the Company, including, without limitation, the Food Labs Note and Secured Notes. Thereafter, the Company entered into a Debt Conversion Agreement with Red Beard, pursuant to which Red Beard converted all indebtedness then held by Red Beard, amounting to an aggregate of $4,227,250, into 1,070,741,474 shares of the Company’s common stock (the “Debt Conversion”). As a result of the Debt Conversion, all indebtedness, liabilities and other obligations of the Company held by and owed to Red Beard were cancelled and deemed satisfied in full.
Restructuring of the Old Series B Preferred, Old Series C Preferred and Old Series D Preferred
On April 26, 2019, in connection with the Share Exchange, the Company filed Amendments to the Certificate of Designation After Issuance of Class or Series with the Secretary of State of the State of Nevada to amend the Certificates of Designation, Preferences, Rights and Limitations, as amended (each, a “COD”), of the Company’s Old Preferred, consisting of Series B Convertible Preferred Stock (“Old Series B Preferred”), Series C Convertible Preferred Stock (“Old Series C Preferred”) and Series D Convertible Preferred Stock (“Old Series D Preferred”) (the “Amendments”). Each of the CODs were amended to provide the Company with the right, at its election, to convert all of the issued and outstanding shares of Old Preferred into common stock, at a price of $0.25 per share in the case of the Old Series B Preferred, and $0.025 per share in the case of the Old Series C Preferred and Old Series D Preferred. In addition, the Series B Preferred COD was amended to remove Section 8 in its entirety, which required the Company to redeem all outstanding shares of Old Series B Preferred under certain circumstances.
Prior to effecting each of the Amendments, the Company obtained written consent from the holders of the requisite number of outstanding shares of Old Series B Preferred, Old Series C Preferred and Old Series D Preferred, as set forth in their respective CODs, to effect such Amendments.
Immediately after effecting the Amendments, the Company provided each holder of the Old Series B Preferred, Old Series C Preferred and Old Series D Preferred with a Mandatory Conversion Notice, pursuant to which the Company converted all outstanding shares of the Old Preferred into an aggregate of 580,385,360 shares of common stock.
Promptly after distributing the Mandatory Conversion Notices to all holders of the Old Preferred, the Company filed Certificates of Withdrawal for each of the Old Series B Preferred, Old Series C Preferred and Old Series D Preferred with the Secretary of State of the State of Nevada, thereby eliminating the Old Series B Preferred, Old Series C Preferred and Old Series D Preferred and return
Comparison of the Three Months Ended March 31, 2019 to the Three Months Ended March 31, 2018.
The below disclosure included in this Management’s Discussion and Analysis of Financial Condition discusses the Company’s financial results for three months ended March 31, 2019 and 2018. During the first quarter of 2018, management decided to cease production of AquaBall® and significantly reduce business operations. As a result of our decision to cease production of AquaBall® and significantly reduce personnel during the first quarter of 2018 and to terminate the Bottling Agreement and sell our remaining AquaBall® inventory in the second quarter of 2018, as well as the consummation of the Share Exchange with the Members of CCD and the Direct Investors in April 2019, the comparison to the comparable period in 2018, and amounts reported in financial statements subsequent to March 31, 2019, will materially change and will not be comparable with prior comparable period.
Net Sales
Net sales for the three months ended March 31, 2019 were $28,014, compared with sales of $301,626 for the three months ended March 31, 2018, a 91% decrease. This decrease is the result of management’s decision to cease sales of AquaBall®, with all remaining AquaBall® inventory being sold in the quarter ending June 30, 2018.
The percentage that each product category represented of our net sales is as follows:
| Product Category | Three Months Ended March 31, 2019 (% of Sales) |
| AquaBall® | -% |
| Bazi® | 100% |
Prior to the three months ended March 31, 2019, the Company terminated the Bottling Agreement and ceased production of AquaBall®. As a result, as of March 31, 2019 the Company had limited continuing operations.
Gross Profit and Gross Margin
Gross profit for the three months ended March 31, 2019 was $13,869, compared to gross loss of $7,879 for the three months ended March 31, 2018. Gross profit as a percentage of revenue (gross margin) during the three months ended March 31, 2019 was 50%, compared to gross loss of 3% for the same period in 2018. This increase in gross profit margin was a result of the Company’s cessation of the production of AquaBall®, previously the Company’s principal product, and the sale of all remaining inventory of AquaBall® to Red Beard prior to the quarter ended March 31, 2019. All sales were composed of Bazi® for the three months ended March 31, 2019.
Sales, General and Administrative Expense
Sales, general and administrative expense was $238,235 for the three months ended March 31, 2019, as compared to $1,049,139 for the three months ended March 31, 2018. This period over period decrease of $810,904 is the result of the Company’s cessation of the production of AquaBall®, previously the Company’s principal product, and the sale of all remaining inventory of AquaBall® to Red Beard prior to the quarter ended March 31, 2019.
Change in Fair Value of Derivative Liabilities
During the three months ended March 31, 2019, the Company reclassified all remaining derivative liabilities to additional paid in capital. The Company recorded a change in the fair value of these derivatives liabilities as a loss of $975,430 prior to the reclassification. The Company did not record a change in the fair value of these derivative liabilities for the three months ended March 31, 2018.
Interest Expense
Interest expense for the three months ended March 31, 2019 was $192,932, as compared to interest expense of $64,267 for the three months ended March 31, 2018.
Income Taxes
There was no income tax expense recorded for the three months ended March 31, 2019 and 2018, as the Company’s calculated provision (benefit) for income tax is based on annual expected tax rates. As of March 31, 2019, the Company had tax net operating loss carryforwards and a related deferred tax asset, offset by a full valuation allowance.
Net Loss
Our net loss for the three months ended March 31, 2019 was $1,038,756 as compared to a net loss of $712,385 for the three months ended March 31, 2018. This year-over-year net loss increase of $326,371 consists of a decrease in operating loss of approximately $833,000 due to management’s decision to cease production and sales of AquaBall® in early 2018 and the corresponding reduction in personnel, as well as selling, general and administrative expense. On a basic and diluted per share basis, there was loss of $0.00 per share for the three months ended March 31, 2019 and 2018.
Comparison of the Year Ended December 31, 2018 to the Year Ended December 31, 2017.
The below disclosure included in this Management’s Discussion and Analysis of Financial Condition discusses the Company’s financial results for years ended December 31, 2018 and 2017. During the first quarter of 2018, management decided to cease production of AquaBall® and significantly reduce business operations. As a result of our decision to cease production of AquaBall® and significantly reduce personnel during the first quarter of 2018 and to terminate the Bottling Agreement and sell our remaining AquaBall® inventory in the second quarter of 2018, the comparison to the comparable period in 2017, and amounts reported in financial statements subsequent to December 31, 2018, will materially change and will not be comparable with prior comparable period.
Net Sales
Net sales for the year ended December 31, 2018 were $1,947,052 compared to $3,823,334 during the same period in 2017, a decrease of 49.1%. This decrease is the result of management’s decision to cease sales of AquaBall®, with all remaining AquaBall® inventory being sold in the quarter ending June 30, 2018.
The percentage that each product category represented of our net sales is as follows:
| Product Category | Year Ended December 31, 2018 (% of Sales) |
| AquaBall® | 91% |
| Bazi® | 9% |
During the year ended December 31, 2018, the Company terminated the Bottling Agreement and ceased production of AquaBall®. As a result, the Company’s operations have been reduced. Accordingly, total sales for the year ended December 31, 2018 are not indicative of future sales or results, and will be substantially lower in the current fiscal year compared to the year ended December 31, 2018. Specifically, we do not anticipate material revenue subsequent to the year ended December 31, 2018, relative to the revenue recognized in the year ended December 31, 2018, in the absence of the consummation of a transaction.
Gross Profit and Gross Margin
Gross profit for the year ended December 31, 2018 was $718,604 as compared to a gross profit of $771,190 for the year ended December 31, 2017. Gross profit as a percentage of revenue (gross margin) during the year ended December 31, 2018 was 36.9%, compared to 20.2% for the same period in 2017. This increase in gross profit margin was a result of the sale of all remaining inventory of AquaBall to Red Beard after management’s decision to cease sales of AquaBall®. This sale was priced at AquaBall®’s regular sales price, thus resulting in greater gross margin.
Sales, Marketing, General and Administrative Expense
Selling, marketing, general and administrative expense was $11,409,184, or 586% of net sales, for the year ended December 31, 2018, as compared to $10,699,331, or 280% of net sales for the year ended December 31, 2017. This year over year increase of $709,853 was primarily the result of the cessation of sales of AquaBall® Naturally Flavored Water. Approximately $10.05 million of the total expense for 2018 was related to the recording of the fair value of stock issuable to a related party. These results are not indicative of future selling, general and administrative expense, which expense is currently anticipated to be substantially lower. The Company currently has one employee, and currently anticipates limited expenditures in the immediate future, consisting of those costs necessary to maintain its current operations and to pay costs and expense necessary to comply with the reporting requirements under the Exchange Act.
Interest Expense
Interest expense for the year ended December 31, 2018 was $813,545 as compared to $158,419 for the year ended December 31, 2017.
Other Income
Other income for the year ended December 31, 2018 was $6,811,281, as compared to $1,995,567 for the year ended December 31, 2017. We recorded a gain on the change in fair value of derivative liabilities of $8,883,383 for the year ended December 31, 2018 compared to a gain of $2,331,888 for the year ended December 31, 2017. Also, in 2018, we recorded an impairment charge of $1,898,000 to goodwill compared to an impairment charge of $130,000 on our spherical bottle patent in 2017.
Net Loss
Our net loss for the year ended December 31, 2018 was $3,879,299 as compared to a net loss of $12,447,143 for the year ended December 31, 2017. This year-over-year decrease in loss of $8,567,844 consists of a decrease in operating loss of approximately $3,752,130 due to management’s decision to cease production and sales of AquaBall® and the corresponding reduction in personnel, as well as selling, general and administrative expense combined with the net effects of recording non-cash items related to the issuance of promissory notes and Common Stock related to the Niagara Settlement. On a basic and diluted per share basis, our loss was $0.01 per share for the year ended December 31, 2018, as compared to loss of $0.07 per share for the year ended December 31, 2017. We expect to continue to incur a net loss in subsequent periods throughout fiscal 2019 in the absence of the consummation of a transaction.
Liquidity and Capital Resources
Our auditors have included a paragraph in their report on our consolidated financial statements, included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2018, indicating that there is substantial doubt as to the ability of the Company to continue as a going concern. The accompanying condensed consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America, which contemplates continuation of the Company as a going concern. For the three months ended March 31, 2019, the Company had net loss of $1,038,756, negative working capital of $4,077,881, and an accumulated deficit of $53,159,404.
Although, during the year ended December 31, 2018 and the three months ended March 31, 2019, the Company raised approximately $1.0 million from financing activities, including the sale of certain Senior Secured Promissory Notes and the Food Labs Note, and received approximately $5.6 million in net proceeds as a result of the Share Exchange in April 2019, additional capital is necessary to continue operations.
The accompanying condensed consolidated financial statements do not include any adjustments that will result in the event the Company is unsuccessful in securing the capital necessary to execute our business plan.
The Company has historically financed its operations through sales of equity and debt securities, and, to a lesser extent, cash flow provided by sales of its products. Despite recent sales of preferred stock and the issuance of certain Senior Secured Promissory Notes, the Food Labs Note and the Red Beard LOC, as well as the Company’s receipt of approximately $5.6 million as a result of the Share Exchange, funds generated from sales of our securities and cash flow provided by sales are insufficient to fund our operating requirements for the next twelve months. As a result, we require additional capital to continue operating as a going concern. No assurances can be given that we will be successful. In the event we are unable to obtain additional financing, we will not be able to fund our working capital requirements, and therefore will be unable to continue as a going concern.
Capital Raising Activities
Secured Note Financing. On July 26, 2017, we commenced an offering of Senior Secured Promissory Notes (the “SecuredNotes”) in the aggregate principal amount of up to $1.5 million to certain accredited investors (the “SecuredNote Financing”). The amount available was subsequently raised to $2.3 million. As additional consideration for participating in the Secured Note Financing, investors received five-year warrants, exercisable for $0.15 per share, to purchase that number of shares of our common stock equal to 50% of the principal amount of the Secured Notes purchased by the investor, divided by $0.15 per share (the “Warrants”). We offered and sold Secured Notes in the aggregate principal amount of $2,465,000 and issued Warrants to purchase up to 8.2 million shares of common stock to participating investors.
The Secured Notes (i) bore interest at a rate of 8% per annum, (ii) had a maturity date of 1.5 years from the date of issuance, and (iii) were subject to a pre-payment and change in control premium of 125% of the principal amount of the Secured Notes at the time of pre-payment or change in control, as the case may be. To secure the Company’s obligations under the Secured Notes, the Company granted to participating investors a continuing security interest in substantially all of the Company’s assets pursuant to the terms and conditions of a Security Agreement (the “Security Agreement”). Subsequent to the quarter ended March 31, 2019, on April 26, 2019, Red Beard purchased the Secured Notes, and thereafter converted all amounts due under the Secured Notes into shares of common stock, thereby terminating the Secured Notes.
2018 Note Issuance.Subsequent to the three months ended March 31, 2018, inconnection with the Settlement with Niagara, and in order to make the Cash Payment, the Company issued to Red Beard a senior secured convertible promissory note (the “Red Beard Note”) in the principal amount of $2.25 million, which was subsequently reduced to $813,887 in connection with the sale to Red Beard of all of the Company’s remainingAquaBall®inventory.The Red Beard Note accrued interest at a rate of 5% per annum. Pursuant to the terms of the Red Beard Note, Red Beard had the right, at its sole option, to convert the outstanding balance due into that number of fully paid and non-assessable shares of the Company’s common stock equal to the outstanding balance divided by 0.005 (the “Conversion Option”); provided, however, that the Company had the right, at its sole option, to pay all or a portion of the accrued and unpaid interest due and payable to Red Beard upon its exercise of the Conversion Option in cash. Pursuant to the terms of the Red Beard Note, such Conversion Option was not to be exercisable unless and until such time as the Company has amended its Articles of Incorporation to increase the number of authorized shares of common stock from 300.0 million to at least 2.0 billion,which occurred on November 15, 2018. On April 26, 2019, in connection with the consummation of the Share Exchange, Red Beard elected to convert all amounts due under the Red Beard Note into shares of common stock.
Food Labs Note. On September 18, 2018, the Company entered into an agreement with Food Labs, pursuant to which the Company issued to Food Labs a promissory note in the principal amount of $50,000. The Food Labs Note (i) accrued interest at a rate of 5% per annum, (ii) included an additional lender’s fee equal to $500, or 1% of the principal amount, and (iii) was scheduled to mature on December 31, 2019. As disclosed above, on April 26, 2019, in connection with the Share Exchange, Red Beard purchased the Food Labs Note from Food Labs, and thereafter converted all amounts due under the Food Labs Note into shares of common stock, resulting in the termination of the Food Labs Note.
Red Beard Line-of-Credit. On November 19, 2018, the Company entered into the Red Beard LOC with Red Beard, effective October 25, 2018, pursuant to which the Company could borrow up to $250,000 ;provided, however, that Red Beard could, in its sole discretion, decline to provide additional advances under the Red Beard LOC upon written notice the Company of its intent to decline to make such advances. Interest accrued on the outstanding principal of the Red Beard LOC at a rate of 8% per annum;provided, however, upon the occurrence of an Event of Default, as defined in the Red Beard LOC, the accrual of interest would have increased to a rate of 10% per annum. Prior to the Maturity Date, Red Beard had the right, at its sole option, to convert the Outstanding Balance due under the Red Beard LOC into that number of shares of common stock equal to the Outstanding Balance divided by $0.005, which it elected to do on April 26, 2019 in connection with the consummation of the Share Exchange.
The Share Exchange. On April 26, 2019, subsequent to the quarter ended March 31, 2019, the Company received approximately $5.6 million in net proceeds as a result of the Share Exchange.
Off-Balance Sheet Items
We had no off-balance sheet items as of March 31, 2019.
Critical Accounting Polices and Estimates
Discussion and analysis of our financial condition and results of operations are based upon financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expenses, and related disclosure of contingent assets and liabilities. On an on-going basis, we evaluate our estimates; including those related to collection of receivables, inventory obsolescence, sales returns and non-monetary transactions such as stock and stock options issued for services. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions. We believe there have been no changes to our critical accounting policies subsequent to the filing of our Annual Report on Form 10-K for the year ended December 31, 2018.
DIRECTORS AND EXECUTIVE OFFICERS The following sets forth certain information regarding each of our directors and executive officers as of the date of this prospectus.
| Name | | Age | | Position |
Brandon Stump(1) | | 33 | | Chief Executive Officer and Chairman(Principal Executive Officer) |
David Allen(2) | | 64 | | Chief Financial Officer and Secretary(Principal Financial Officer) |
Ryan Stump(3) | | 30 | | Chief Operating Officer and Director |
Mitchell Brantley III(4) | | 57 | | Chief Marketing Officer |
Adam Mirkovich(5) | | 34 | | Chief Information Officer |
| Scot Cohen | | 50 | | Director |
Keith Stump(6) | | 58 | | Director |
| (1) | Mr. Stump was appointed to serve as the Company’s Chief Executive Officer and as a director on the Board on April 26, 2019 in connection with the Share Exchange, effective immediately following Mr. Van Boerum’s resignation as Principal Executive Officer. The Company’s Board appointed Brandon Stump as Chairman on May 8, 2019. |
| (2) | Mr. Allen was appointed to serve as the Company’s Chief Financial Officer on April 26, 2019 in connection with the Share Exchange, effective immediately following Mr. Van Boerum’s resignation as Principal Financial Officer. |
| (3) | Mr. Stump was appointed to serve as the Company’s Chief Operating Officer and as a director on the Board on April 26, 2019 in connection with the Share Exchange. |
| (4) | Mr. Brantley was appointed to serve as the Company’s Chief Marketing Officer on May 8, 2019. |
| (5) | Mr. Mirkovich was appointed to serve as the Company’s Chief Information Officer on May 20, 2019. |
| (6) | Mr. Stump was appointed to the Company's Board of Directors on June 7, 2019.
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Brandon Stump and Ryan Stump are brothers, and Keith Stump is their father. Other than with the respect to the Stumps, there are no familial relationships between any of the Company’s executive officers and directors listed above.
The following biographical information regarding the foregoing directors and officers of the Company is presented below:
Brandon Stump, Chief Executive Officer and Chairman.Mr. Stump was appointed as Chief Executive Officer of the Company on April 26, 2019 in connection with the Share Exchange. Mr. Stump is a co-founder of Charlie’s, and has served as the Chief Executive Officer of Charlie’s since its inception in 2014. Prior to co-founding Charlie’s, Mr. Stump co-founded his first business, the Ohio House in 2011, with his brother Ryan Stump. Since then, he has gone on to co-found both The Chadwick House and Buckeye Recovery Network, both established in 2017, as well as The Mend California, established in 2018. These programs provide a continuum of care and services to men and women from the country promoting emotional, physical and spiritual development.
As a co-founder of Charlie’s, the Board of Directors believes that Mr. Stump’s substantial entrepreneurial, marketing, sales and industry experience provide the Board with valuable expertise that will assist the Company in continuing to grow its revenue and to enter into new markets for its products.
David Allen, Chief Financial Officer and Secretary.Mr. Allen was appointed as the Company’s Chief Financial Officer on April 26, 2019, upon consummation of the Share Exchange. Mr. Allen brings over 22 years of experience as the Chief Financial Officer of public companies. From September 2018 to May 2019, Mr. Allen served as Chief Financial Officer of Iconic Brands, Inc. (OTCQB: ICNB). Prior to that, from December 2014 to January 2018, Mr. Allen served as the Chief Financial Officer of WPCS International, Inc., a design-build engineering firm focused on the deployment of wireless networks and related services. WPCS International was listed on Nasdaq, and Mr. Allen oversaw its financial reporting obligations and SEC compliance. From 2004 to 2017, Mr. Allen served as Chief Financial Officer of Bailey’s Express, Inc., a privately held trucking corporation, which filed for Chapter 11 bankruptcy in July 2017. Mr. Allen currently serves as the Chapter 11 Plan Administrator for the bankruptcy case. From June 2006 to June 2013, Mr. Allen served as the Chief Financial Officer and Executive Vice President of Administration at Converted Organics, Inc., a company organized to convert food waste into organic fertilizer. At Converted Organics, he was responsible for SEC reporting, audit, insurance and taxes. In June 2019, Mr. Allen was appointed to the Board of Directors and serves as audit committee chairman of MariMed, Inc. (OTC:MRMD). Mr. Allen is currently an Assistant Professor of Accounting at Southern Connecticut State University, a position he has held since 2017, and for the 12 years prior to that he was an Adjunct Professor of Accounting at SCSU and Western Connecticut State University. Mr. Allen is a licensed CPA and holds a Bachelor’s Degree in Accounting and a Master’s Degree in Taxation from Bentley College.
Ryan Stump, Chief Operating Officer and Director. Mr. Stump was appointed as the Company’s Chief Marketing Officer on April 26, 2019 in connection with the Share Exchange. Mr. Stump has served as the Chief Operating Officer of Charlie’s since 2014, during which time he has been responsible for all global operations of Charlie’s. Prior to joining Charlie’s, Mr. Stump worked as an Associate Territory Manager and then as a Territory Manager for ConMed, a medical sales device company, from 2010 to 2013. Mr. Stump also co-founded and continues to be engaged with multiple companies, including The Ohio House since 2011, the Buckeye Recovery Network since 2017, and The Mend California since 2018. Mr. Stump earned a B.S. and B.A. in Sports Marketing and Marketing from Duquesne University.
The Board of Directors believes that Mr. Stump’s experience operating high growth companies, as well as entrepreneurial experience, will be valuable to the Board as it manages the Company’s anticipated continued growth.
Mitchell Brantley III, Chief Marketing Officer.Mr. Brantley was appointed as the Company’s Chief Marketing Officer on May 8, 2019. Mr. Brantley currently serves as an Advisor to Spudsy, a privately held company focused on developing and selling certain healthy snacks, where he also served as President from August 2018 to December 2018. Prior to joining Spudsy in August 2018, Mr. Brantley served as Interim President for Goldthreads Herbs, a company focused on the development and sale of plant-based tonics, from March 2018 to July 2018. In addition, starting in November 2017, Mr. Brantley worked as a consultant to companies in the fast moving consumer goods space, providing strategic and marketing advice. From April 2013 until November 2017, Mr. Brantley served as the General Manager of BioNutritonal Research Group, Inc. – Power Crunch, a producer of smart nutrition bars, drinks and powders. From September 2011 until April 2013, Mr. Brantley served as Vice President of Coast Brands, LLC, which provided brand representation and secured regional and national distribution for underdeveloped and emerging beverage and snack brands. Mr. Brantley has also held leadership positions for distributors of Quaker Oats, Cadbury Schweppes and Snapple brand products. Mr. Brantley holds a B.S. in Business and Marketing from California State University, Fullerton.
Adam Mirkovich, Chief Information Officer. Mr. Mirkovich was appointed as the Company’s Chief Information Officer on May 20, 2019. Mr. Mirkovich has over a decade of experience managing supply chains for consumer products. Mr. Mirkovich has served as an independent management consultant specializing in building and optimizing value chains for startups and growth stage companies in the beverage, nicotine vape, and nutritional supplements industries since 2013. Prior to joining the Company, Mr. Mirkovich served as the Chief Operating Officer of Orchid Ventures, Inc. (CSE:ORCD), a multi-state premium cannabis vape company, from September 2018 to April 2019. From December 2014 to February 2016, Mr. Mirkovich served as the Director of Supply Chain and Operations at Space Jam Juice, LLC, a distributor of premium vapor products. From November 2010 to April 2013, Mr. Mirkovich served as the Product Lifecycle Management (“PLM”) Program Manager for Niagara Bottling, LLC, a leading bottled water manufacturer. While there, he led the product revision, introduction, and discontinuance practices for customers’ private labeled water, flavored, and carbonated beverages. Prior to his role in PLM Management, Mr. Mirkovich served as a member of the Supply Chain Logistics team at Niagara Bottling, providing strategic support of company expansion activities and tactical support of purchasing, production planning, and multi-region logistics in North American operations. Mr. Mirkovich earned a Bachelor of Science degree in Business Administration and Economics from Chapman University.
Scot Cohen, Director.Mr. Cohen was appointed to the Board in March 2013 and is the Founder and Managing Partner of V3 Capital Partners, a private investment firm focused on early-stage companies primarily in the consumer products industry, and Co-Manager of Red Fortune Fund, aprivate equity fund based in Hong Kong. Mr. Cohen also is the Founder of Petro River Oil, LLC and Chairman of Petro River Oil Corp. (OTCBB: PTRC), a publicly traded oil and gas producer with assets in Kansas and Oklahoma, and Petro Spring, a global oil and gas technology solutions provider. Prior to creating V3 Capital Partners, Mr. Cohen was the Founder and Managing Partner at Iroquois Capital Opportunity Fund, a special situations private equity investment fund, and a Co-Founder of Iroquois Capital, a hedge fund with investments in small and micro-cap private and public companies. Mr. Cohen currently serves as a director on the Board of Directors of Wrap Technologies, Inc. (NASDAQ: WRTC), and is active in philanthropic activities with numerous charities including the Jewish Enrichment Council. Mr. Cohen received a Bachelor of Science degree from Ohio University in 1991.
The Board of Directors believes Mr. Cohen’s success with multiple private investment firms, his extensive contacts within the investment community, and his financial expertise will assist the Company’s efforts to expand and to implement its business plan.
Keith Stump, Director. Mr. Stump has over 35 years of sales and management experience. He joined Charlie’s in January 2018 as a Strategic Advisor, where he has predominantly focused on sales, marketing and scaling the business, including through organizational alignments, process improvement, leadership/management training and development. Prior to joining Charlie’s, Mr. Stump served as a partner and Vice President of Sales in Blue Technologies, Inc., an office technology and Managed IT Service provider headquartered in Cleveland, Ohio, which he co-founded in 1995. While at Blue Technologies, Inc., Mr. Stump was responsible for the sales performance of the company’s five divisions, along with operational oversight. His duties included P&L responsibility for all product divisions, leadership training and development, new product and service offerings, enterprise account selling, amongst other duties. Mr. Stump was instrumental in helping Blue Technologies, Inc. become one of the Top 10 Konica Minolta providers in the country, as well as one of the Top 75 Office Technologies Dealers in the United States. Mr. Stump serves on several not-for-profit boards, which serve those in recovery from addiction and developmental disabilities.
The Board of Directors believes that Mr. Stump’s sales, marketing, management experience and industry experience, as well as entrepreneurial experience, will be valuable to the Board as it manages the Company’s anticipated continued growth.
Other than as described above, there have been no events under any bankruptcy act, no criminal proceedings and no judgments or injunctions material to the evaluation of the ability and integrity of any director or nominee set forth above during the past ten years.
Subsequent to the year ended December 31, 2018, and effective April 26, 2019 upon consummation of the Share Exchange, Ms. Cappello and Messrs. Greco and LeVecke (collectively, the “Former Directors”) resigned from their positions as directors on the Company’s Board, leaving Messrs. Sherman and Cohen as the remaining directors. In addition, Ryan and Brandon Stump were appointed as new directors immediately after the resignations of the Former Directors. Certain disclosure which follows regarding corporate governance refers to the Company’s Board and corporate governance policies and procedures prior to the resignation of the Former Directors, and does not involvedreflect the Company’s corporate governance policies and procedures subsequent to such resignations.
Board of Directors; Attendance at Meetings
The Board held four meetings and acted by unanimous written consent five times during the year ended December 31, 2018. Each director attended at least 75% of Board meetings during the year ended December 31, 2018. We have no formal policy with respect to the attendance of Board members at annual meetings of shareholders, but encourage all incumbent directors and director nominees to attend each annual meeting of shareholders.
Independent Directors
Prior to the resignations of the Former Directors, the Board determined that Ms. Cappello and Mr. LeVecke were independent directors as defined by the rules and regulations of the Nasdaq Stock Market.
The Board has determined that Mr. Cohen satisfies the definition of an “audit committee financial expert” under SEC rules and regulations. This designation does not impose any duties, obligations or liabilities on Mr. Cohen that are greater than those generally imposed on them as members of the Audit Committee and the Board, and his designation as an audit committee financial expert does not affect the duties, obligations or liability of any other member of the Audit Committee or the Board.
Board Committees and Charters
As of December 31, 2018, the Board had a standing Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee. The Board appointed the members and chairpersons of these committees. The majority of the members of these committees had been determined by the Board to be independent. Each committee had a written charter approved by the Board. Copies of each committee charter were available on the Company’s website at www.truedrinks.com/investor-relations/ and by clicking on the “Corporate Governance” tab.
Effective April 26, 2019, as a result of the resignations of the Former Directors, the Board no longer has an active Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee. Instead, the full Board currently administers the duties of each of these committees, and will likely do so for the foreseeable future.
Audit Committee
As of December 31, 2018, the Audit Committee consisted of Messrs. Scot Cohen (Chair) and Neil LeVecke and Ms. Cappello.
The Audit Committee assisted the Board in any litigationfulfilling its legal and fiduciary obligations in matters involving the Company’s accounting, auditing, financial reporting, internal control and legal compliance functions by approving the services performed by the Company’s independent accountants and reviewing their reports regarding the Company’s accounting practices and systems of internal accounting controls. The Audit Committee was responsible for the appointment, compensation, retention and oversight of the independent accountants and for ensuring that the accountants are independent of management.
Compensation Committee
As of December 31, 2018, the Compensation Committee consisted of Ms. Cappello (Chair) and Mr. Scot Cohen.
The Compensation Committee determined the Company’s general compensation policies and practices. The Compensation Committee also reviewed and approved compensation packages for the Company’s officers and, based upon such review, recommended overall compensation packages for the officers to the Board. This committee also reviewed and determined equity-based compensation for the Company’s directors, officers, employees and consultants and administered the Company’s 2013 Stock Incentive Plan.
Nominating and Corporate Governance Committee
As of December 31, 2018, the Nominating and Corporate Governance Committee consisted of Mr. LeVecke (Chair) and Ms. Cappello. The Nominating and Corporate Governance Committee was responsible for making recommendations to the Board regarding candidates for directorships and the size and composition of the Board and for overseeing the Company’s corporate governance guidelines and reporting and making recommendations to the Board concerning corporate governance matters.
Board Leadership Structure
As of December 31, 2018, the Board separated the roles of Principal Executive Officer and Chairman of the Board in recognition of the differences between the two roles. The Principal Executive Officer is responsible for setting the strategic direction of the Company and the day-to-day leadership and performance of the Company, while the Chair of the Board provides guidance to the Principal Executive Officer and sets the agenda for the Board meetings and presides over meetings of the Board. However, the Board believes it should be able to freely select the Chairman of the Board based on criteria that it deems to be in the best interest of the Company and its stockholders.
Upon consummation of the Share Exchange, Brandon Stump was appointed as the Company’s Principal Executive Officer, and shortly thereafter was appointed as Chairman of the Board. The Board felt that this was in the Company’s and its stockholder’s best interests under the circumstances due to Brandon Stump’s knowledge and experience in the vapor market and due to the fact that he is the co-founder and Chief Executive Officer of Charlie’s.
Board Role in Risk Assessment
Management, in consultation with outside professionals, as applicable, identifies risks associated with the Company’s operations, strategies and financial statements. Prior to April 26, 2019, risk assessment was also performed through periodic reports received by the Audit Committee from management, counsel and the Company’s independent registered public accountants relating to risk assessment and management. Audit Committee members met privately in executive sessions with representatives of the Company’s independent registered public accountants during and prior to the year ended December 31, 2018. The Board also provides risk oversight through its periodic reviews of the financial and operational performance of the Company.
Code of Ethics
We have adopted a Code of Ethics that applies to all of our directors, officers and employees, a copy of which was attached as an exhibit to our Annual Report on Form 10-K, filed with the SEC on April 1, 2019.
Section 16(a) Beneficial Ownership Reporting Compliances
Section 16(a) of the Exchange Act requires our officers, directors, and persons who beneficially own more than ten percent of our common stock to file reports of ownership and changes in ownership with the SEC. Officers, directors, and greater-than-ten-percent stockholders are also required by the SEC to furnish us with copies of all Section 16(a) forms that they file.
Based solely upon a review of these forms that were furnished to us, we believe that our officers and directors timely filed all reports due under Section 16(a) during the year ended December 31, 2018 except the following:
| ● | James Greco, a member of the Company’s Board of Directors, filed a Form 5 disclosing one late transaction. |
Summary Compensation Table
The following table sets forth the compensation paid to the following persons for our fiscal years ended December 31, 2018 and 2017:
| (a) | our principal executive officer; |
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| (b) | our most highly compensated executive officers who were serving as an executive officer at the end of the fiscal year ended December 31, 2018 who had total compensation exceeding $100,000 (together, with the principal executive officer, the “Named Executive Officers”); and |
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| (c) | any additional individuals who would have been considered Named Executive Officers, but for the fact that they were not serving in such capacity at the end of our most recently completed fiscal year. |
Name and Principal Position | | Year | | | | | Non-Equity Incentive Plan Compensation ($) | All Other Compensation ($) | |
| | | | | | | | | | |
Robert Van Boerum (1) | | 2018 | $103,654 | $- | $- | $9,517 | $- | $- | $113,171 |
| Former Principal Executive Officer and Principal Financial Officer | | 2017 | $170,108 | $- | $- | $118,131 | $- | $- | $288,239 |
James J. Greco, (2) | | 2018 | $109,495 | $- | $- | $37,935 | $- | $- | $147,430 |
| Former Director and Former Chief Executive Officer | | 2017 | $63,462 | $- | $125,000 | $189,009 | $- | $- | $377,471 |
Kevin Sherman, (3) | | 2018 | $67,832 | $- | $- | $107,916 | $- | $- | $175,748 |
| Director and Former President and Chief Executive Officer | | 2017 | $268,621 | $- | $- | $307,140 | $- | $36,000 | $611,761 |
| (1) | Mr. Van Boerum was appointed to serve as the Company’s Principal Executive Officer and Principal Financial Officer effective May 15, 2018, and resigned from such positions on April 26, 2019, effective upon consummation of the Share Exchange. Mr. Van Boerum currently provides consulting services to the Company in order to aid in the transition of the Company and its management as a result of the Share Exchange. |
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| (2) | James J. Greco served as Chief Executive Officer of the Company from April 2017 to May 15, 2018, and resigned from his role as a member of the Company’s Board of Directors on April 26, 2019, effective upon consummation of the Share Exchange. |
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| (3) | Kevin Sherman served as President and Chief Marketing Officer of the Company through April 25, 2018. |
Employment Agreements
Robert Van Boerum. Mr. Van Boerum was employed as the Company’s Chief Operations Officer pursuant to a two-year employment agreement, dated September 11, 2015 (the “Van Boerum Agreement”). Under the terms and conditions of the Van Boerum Agreement, Mr. Van Boerum received a base salary of $14,583.33 per month. Mr. Van Boerum was also eligible for an annual bonus equal to 30% of his salary, which bonus was to be awarded at the sole discretion of the Company’s Compensation Committee and was eligible to earn stock option compensation at the discretion of the Compensation Committee. During the year ended December 31, 2017, the Compensation Committee did not award a bonus to Mr. Van Boerum for the period through December 31, 2016.
Pursuant to its terms, the Van Boerum Agreement could be terminated for “Cause,” if Mr. Van Boerum (a) was convicted of any fraud or embezzlement, (b) after written notice, willfully breached or habitually neglected his duties and responsibilities, (c) committed acts of dishonesty, gross negligence or willful misconduct, or (d) violated any law or regulation relating to the business operations of the Company that may have a material adverse effect on our financial condition or resultsthe Company. If the Company terminated Mr. Van Boerum’s employment for reasons other than for Cause, the Company would have been required to pay a severance in an amount equal to six months of operations.Mr. Van Boerum’s base salary.
AvailableMr. Van Boerum was appointed to serve as the Company’s Principal Executive Officer and Principal Financial Officer upon Mr. Greco’s resignation, and did not enter into a new employment agreement in connection with such appointments. As stated above, Mr. Van Boerum resigned from these positions on April 26, 2019, effective upon consummation of the Share Exchange.
James J. Greco.Mr. Greco was employed as the Company’s Chief Executive Officer pursuant to an Employment Agreement, dated April 13, 2017 (the “Greco Agreement”), under which Mr. Greco was entitled to an annual base salary of $250,000, payable in accordance with the Company’s existing payroll practices beginning in October 2017. Under the terms and conditions of the Greco Agreement, Mr. Greco received: (i) a guaranteed bonus in the form of 1,302,084 shares of the Company’s restricted common stock (the “Bonus Award”), which Bonus Award vested in full on December 31, 2017; (ii) stock options to purchase up to 6,300,315 shares of the Company’s common stock, an amount equal to 2% of the Company’s issued and outstanding shares of common stock (including preferred stock on an as-converted basis), which options will vest annually over a four-year period beginning on the date of the Greco Agreement, or in full upon a Change of Control (as defined in the Greco Agreement); and (iii) stock options to purchase up to 9,450,474 shares of the Company’s common stock, vesting of which will begin in 2018 and vest annually over three years, conditioned on the Company’s achievement of certain performance goals.
Pursuant to the Greco Agreement, Mr. Greco’s employment could have been terminated for “Cause,” if Mr. Greco (a) was convicted of any fraud or embezzlement, (b) after written notice, willfully breached or habitually neglected his duties and responsibilities, (c) committed acts of dishonesty, gross negligence or willful misconduct or (d) violated any law or regulation relating to the business operations of the Company that may have had a material adverse effect on the Company. If the Company terminated Mr. Greco’s employment for reasons other than for Cause, the Company would have been required to pay a severance in an amount equal to three times Mr. Greco’s monthly base salary per year of service, capped at a maximum amount equal to Mr. Greco’s annual salary.
As stated above, Mr. Greco resigned from his position as Chief Executive Officer on May 15, 2018.
Kevin Sherman. Mr. Sherman was employed as the Company’s President pursuant to a two-year employment agreement, dated November 25, 2015 (the “Sherman Agreement”). Under the terms and conditions of the Sherman Agreement, Mr. Sherman receives: (i) a base salary of $22,917 per month, subject to certain adjustments in the event the Company achieved certain monthly sales objectives (“Target Objectives”); (ii) a $3,000 per month housing allowance, subject to termination in the event the Company achieved any of the Target Objectives; (iii) a ‘retention bonus’ of $100,000, of which $50,000 was paid to Mr. Sherman in November 2015 and the remaining $50,000 was paid in March, 2016; and (iv) an aggregate total of approximately 3.8 million shares of restricted common stock, subject to certain vesting conditions (“Restricted Shares”), which Restricted Shares represented approximately 1.7% of the issued and outstanding shares of the Company’s common stock, including shares of common stock issuable upon conversion of the Company’s outstanding shares of preferred stock.
During the second half of 2016, Mr. Sherman deferred a portion of his monthly salary equivalent to a total of $100,000 annually. The deferment began at the end of July 2016 and ended as of July 2017.
Mr. Sherman was also eligible for an annual bonus equal to 30% of his base salary, payable in restricted shares of the Company’s common stock, which bonus was to be awarded at the sole discretion of the Company’s Compensation Committee. During the year ended December 31, 2017, the Compensation Committee did not award a bonus to Mr. Sherman for the period through December 31, 2016.
In addition to the annual bonus, in the event of a change in control transaction, as defined in the Sherman Employment Agreement, Mr. Sherman was to be entitled to a bonus equal to 3.25% of the value of the transaction resulting in a change in control, minus the fair market value of all Restricted Shares issued to Mr. Sherman prior to the date of the change in control transaction.
Pursuant to the Sherman Agreement, Mr. Sherman’s employment could be terminated for “Cause,” if Mr. Sherman (a) was convicted of any fraud or embezzlement, (b) after written notice, willfully breached or habitually neglected his duties and responsibilities, (c) committed acts of dishonesty, gross negligence or willful misconduct or (d) violated any law or regulation relating to the business operations of the Company that may have had a material adverse effect on the Company. If the Company terminated Mr. Sherman’s employment for reasons other than for Cause, the Company would have been required to pay a severance in an amount equal to six months of Mr. Sherman’s base salary.
As stated above, Mr. Sherman resigned from his position as President and Chief Marketing Officer on April 25, 2018.
Other than as set forth above, there were no arrangements or understandings between our Named Executive Officers and any other person pursuant to which they were appointed as officers as of December 31, 2018. None of our Named Executive Officers as of December 31, 2018 had a family relationship that is required to be disclosed under Item 401(d) of Regulation S-K.
Director Compensation
In previous years, pursuant to the Company’s Director Compensation Plan, non-employee directors (“Outside Directors”) received (a) a $30,000 annual retainer, payable in equal quarterly installments in either cash or shares of common stock, (b) additional committee retainers as determined by the Board, and (c) reimbursement for expenses related to Board meeting attendance and committee participation. Directors that were also employees of the Company did not receive additional compensation for serving on the Board. In September 2017, non-employee directors were issued options as payment for outstanding board fees. Since that time, the Company is no longer accruing expense pursuant to the Director Compensation Plan, and has not yet adopted a new Director Compensation Plan since the consummation of the Share Exchange.
The following table discloses certain information concerning the compensation of the Company’s non-employee directors for the year ended December 31, 2018:
| Name | Fees earned or Paid in Cash ($) | | | |
Ramona Cappello (1) | $- | $- | $- | $- |
Neil LeVecke (1) | $- | $- | $- | $- |
Scot Cohen (2) | $- | $21,344 | $- | $21,344 |
James Greco (1) | $- | $- | $- | $- |
| Kevin Sherman | $- | $- | $- | $- |
| (1) | As stated above, Ms. Cappello and Messrs. LeVecke and Greco resigned from their positions as member of the Company’s Board on April 26, 2019, effective upon consummation of the Share Exchange. |
| (2) | During the year ended December 31, 2018, Scot Cohen was granted options to purchase 7,114,826 shares of common stock, which options had a value on grant date of $21,344, as a Director of the Board of Directors. |
Outstanding Equity Awards as of December 31, 2018
The following table sets forth all equity awards held by our Named Executive Officers at December 31, 2018:
| |
| Name | Number of shares or units of stock that have not vested (#) | Market Value of shares or units of stock that have not vested ($) | Equity incentive plan awards: Number of unearned shares, units or other rights that have not vested (#) | Equity incentive plan awards: Market or Payout value of unearned shares, units or other rights that have not vested ($) |
| Robert Van Boerum | 4,329,219(1) | $- | - | $- |
| James J. Greco | 12,644,921(2) | $- | - | $- |
| Kevin Sherman | 35,971,988(3) | $- | - | $- |
| (1) | Non-vested shares vest as follows: 818,925 on September 30, 2019, 338,000 on September 30, 2020, and 3,172,294 upon a change of control transaction. Mr. Van Boerum was appointed to serve as the Company’s Principal Executive Officer and Principal Financial Officer effective May 15, 2018, following Mr. Greco’s resignation as Chief Executive Officer. Mr. Van Boerum resigned from his position as Principal Executive Officer and Principal Financial Officer on April 26, 2019. |
| |
| (2) | Non-vested shares vest as follows: 12,644,921 upon a change of control transaction. Mr. Greco resigned from his position as Chief Executive Officer on May 15, 2018. |
| |
| (3) | Non-vested shares vest as follows: 35,971,988 upon a change of control transaction. Mr. Sherman resigned from his position as President and Chief Marketing Officer on April 25, 2018 but continues to serve on the Company’s Board of Directors. |
Equity Compensation Plan Information
The following table includes information as of December 31, 2018 for our equity compensation plans:
| Plan category | Number of securities to be issued upon exercise of outstanding options, warrants and rights | Weighted-average exercise price of outstanding options, warrants and rights | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) |
| | | | |
| Equity compensation plans approved by stockholders | 20,000,000 | $0.030 | - |
| | | | |
| Equity compensation plans not approved by stockholders | 71,759,826 | $0.015 | - |
| | | | |
| Total | 91,759,826 | $0.018 | - |
As a public company, we2013 Stock Incentive Plan. The 2013 Stock Incentive Plan (the “2013 Plan”) was adopted by the Company’s Board of Directors on December 31, 2013. The 2013 Plan initially reserved for issuance 20.0 million shares of common stock for issuance to all employees (including, without limitation, officers and directors who are required to file our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements on Schedule 14A and other information (including any amendments) with the SEC. You may read and copy such material at the SEC’s Public Reference Room located at 100 F Street, N.E., Washington, D.C. 20549, on official business days during the hours of 10:00 a.m. to 3:00 p.m. You may obtain information on the operationalso employees) of the Public Reference RoomCompany or any subsidiary of the Company (each a “Subsidiary”), any non-employee director, consultants and independent contractors of the Company or any Subsidiary, and any joint venture partners (including, without limitation, officers, directors and partners thereof) of the Company or any Subsidiary. Awards under the 2013 Plan may be made in the form of: (i) incentive stock options within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended, once the 2013 Plan has been approved by calling the SEC at 1-800-SEC-0330. You can also finda majority of the Company’s SEC filings atstockholders; (ii) stock options that do not qualify as incentive stock options; and/or (iii) awards of shares that are subject to certain restrictions specified in the SEC’s website at2013 Plan. On May 8, 2019, the Board of Directors authorized increasing the number of shares reserved for issuance under the plan to a total of 65.0 million shares of common stock http://www.sec.govand to ratify the issuance of any and all awards made prior to that date, subject to stockholder approval..
During the year ended December 31, 2018, the Company did not issue any restricted stock awards pursuant to the 2013 Plan; however, the Company issued an aggregate total of 34,652,903 stock option awards pursuant to the 2013 Plan during the 2018 fiscal year.
Subsequent to the year ended December 31, 2018, on May 16, 2019, the Board approved an amendment to all of the outstanding stock options held by Mr. Sherman that were issued under the 2013 Plan, in the aggregate amount of 35,971,988, to extend the expiration date of such stock options by five years.
Our Internet address is www.truedrinks.com2019 Omnibus Incentive Plan. Information containedThe 2019 Omnibus Incentive Plan (the “2019 Plan”) was adopted by the Company’s Board of Directors on our website is not partMay 8, 2019, subject to stockholder approval and registration or qualification of this annual report on Form 10-K. Our SEC filingsthe shares subject to the 2019 Plan with the federal and state securities authorities. The 2019 Plan reserved for issuance ___ billion shares of common stock for issuance to all employees (including, without limitation, officers and directors who are also employees) of the Company or any amendments) willSubsidiary, any non-employee director, consultants and independent contractors of the Company or any Subsidiary, and any joint venture partners (including, without limitation, officers, directors and partners thereof) of the Company or any Subsidiary. Awards under the 2019 Plan may be made available freein the form of: (i) incentive stock options within the meaning of charge on www.truedrinks.com,Section 422 of the Internal Revenue Code of 1986, as soonamended, once the 2019 Plan has been approved by a majority of the Company’s stockholders; (ii) stock options that do not qualify as reasonably practicable after we electronically file such material with, incentive stock options; and/or furnish it(iii) awards of shares that are subject to certain restrictions specified in the SEC. 2019 Plan.
Post-Employment Compensation, Pension Benefits, Nonqualified Deferred Compensation
There were no post-employment compensation, pension or nonqualified deferred compensation benefits earned by the Named Executive Officers during the year ended December 31, 2018.
UMARKET PRICESE OF COMMON STOCK AND OTHER STOCKHOLDER MATTERSPROCEEDS
Market InformationWe are filing the registration statement of which this prospectus forms a part to permit holders of the shares of our common stock described in the section entitled “Selling Stockholders” to resell such shares. We will not receive any proceeds from the resale of any shares offered by this prospectus by the selling stockholders.
DETERMINATION OF OFFERING PRICE The selling stockholders will sell at prevailing market prices or privately negotiated prices.
MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS Our common stock is traded on the OTC Pink Marketplace under the symbol TRUU.“CHUC.” Prior to July 3, 2019, our common stock was traded on the OTC Pink Marketplace under the symbol “TRUU.”
The following table sets forth high and low sales prices for our common stock for the calendar quarters indicated as reported by the OTC Pink Marketplace. These prices represent quotations between dealers without adjustment for retail markup, markdown, or commission and may not represent actual transactions.
| | High | | Low | |
| 2016 | | | | | | | | |
| First Quarter | | $ | 0.19 | | | $ | 0.11 | |
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| 2015 | | | | | | | | |
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| 2019 | | |
| First Quarter ended March 31, 2019 | $0.01 | $0.002 |
| Second Quarter ended June 30, 2019 | $0.08 | $0.004 |
| Third Quarter ended September 30, 2019 (through July 9, 2019) | $0.04 | $0.01 |
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| 2018 | | |
| First Quarter ended March 31, 2018 | $0.03 | $0.01 |
| Second Quarter ended June 30, 2018 | $0.03 | $0.01 |
| Third Quarter ended September 30, 2018 | $0.01 | $0.01 |
| Fourth Quarter ended December 31, 2018 | $0.01 | $0.01 |
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| 2017 | | |
| First Quarter ended March 31, 2017 | $0.13 | $0.07 |
| Second Quarter ended June 30, 2017 | $0.17 | $0.08 |
| Third Quarter ended September 30, 2017 | $0.15 | $0.07 |
| Fourth Quarter ended December 31, 2017 | $0.07 | $0.01 |
Holders
At May 3, 2016,July 9, 2019, there were 112,049,107 18,935,746,396shares of our common stock outstanding, and approximately 265 shareholders437 stockholders of record. At May 3, 2016,July 9, 2019, there were 1,317,870 shares of our Series B Convertible Preferred Stock (“Series B Preferred”), and 88,266206,249 shares of our Series CA Preferred outstanding held by 32 and 11 shareholders120stockholders of record, respectively. record.
Dividends
We did not declare any dividends on common stock for the year ended December 31, 2015. Our Board of Directors does not intend to distribute dividends in the near future. Instead, we plan to retain any earnings to finance the development and expansion of our business. The declaration, payment and amount of any future dividends will be made at the discretion of the Board of Directors, and will depend upon, among other things, the results of our operations, cash flows and financial condition, operating and capital requirements, and other factors as the Board of Directors considers relevant. There is no assurance that future dividends will be paid, and if dividends are paid, there is no assurance with respect to the amount of any such dividend.
We pay dividends on our Series B Preferred stock quarterly.
Transfer AgentInterest Expense
Interest expense for the three months ended March 31, 2019 was $192,932, as compared to interest expense of $64,267 for the three months ended March 31, 2018.
Income Taxes
There was no income tax expense recorded for the three months ended March 31, 2019 and 2018, as the Company’s calculated provision (benefit) for income tax is based on annual expected tax rates. As of March 31, 2019, the Company had tax net operating loss carryforwards and a related deferred tax asset, offset by a full valuation allowance.
Net Loss
Our Transfer Agentnet loss for the three months ended March 31, 2019 was $1,038,756 as compared to a net loss of $712,385 for the three months ended March 31, 2018. This year-over-year net loss increase of $326,371 consists of a decrease in operating loss of approximately $833,000 due to management’s decision to cease production and Registrarsales of AquaBall® in early 2018 and the corresponding reduction in personnel, as well as selling, general and administrative expense. On a basic and diluted per share basis, there was loss of $0.00 per share for our common stock is Corporate Stock Transfer located in Denver, Colorado.the three months ended March 31, 2019 and 2018.
As a “smaller reporting company” as defined by the rules and regulations of the SEC, we are not required to provide this information.-53-
FINANCIAL CONDITION AND RESULTS OF OPERATIONSComparison of the Year Ended December 31, 2018 to the Year Ended December 31, 2017.
The following discussion should be read in conjunction with our consolidated financial statements and the related notes and other financial information appearing elsewherebelow disclosure included in this Registration Statement. Readers are also urged to carefully review and consider the various disclosures made by us which attempt to advise interested parties of the factors which affect our business, including (without limitation) the disclosures made under the captions “Management’sManagement’s Discussion and Analysis of Financial Condition discusses the Company’s financial results for years ended December 31, 2018 and Results2017. During the first quarter of Operations”2018, management decided to cease production of AquaBall® and “Risk Factors,”significantly reduce business operations. As a result of our decision to cease production of AquaBall® and significantly reduce personnel during the first quarter of 2018 and to terminate the Bottling Agreement and sell our remaining AquaBall® inventory in the auditedsecond quarter of 2018, the comparison to the comparable period in 2017, and amounts reported in financial statements subsequent to December 31, 2018, will materially change and will not be comparable with prior comparable period.
Net Sales
Net sales for the year ended December 31, 2018 were $1,947,052 compared to $3,823,334 during the same period in 2017, a decrease of 49.1%. This decrease is the result of management’s decision to cease sales of AquaBall®, with all remaining AquaBall® inventory being sold in the quarter ending June 30, 2018.
The percentage that each product category represented of our net sales is as follows:
| Product Category | Year Ended December 31, 2018 (% of Sales) |
| AquaBall® | 91% |
| Bazi® | 9% |
During the year ended December 31, 2018, the Company terminated the Bottling Agreement and ceased production of AquaBall®. As a result, the Company’s operations have been reduced. Accordingly, total sales for the year ended December 31, 2018 are not indicative of future sales or results, and will be substantially lower in the current fiscal year compared to the year ended December 31, 2018. Specifically, we do not anticipate material revenue subsequent to the year ended December 31, 2018, relative to the revenue recognized in the year ended December 31, 2018, in the absence of the consummation of a transaction.
Gross Profit and Gross Margin
Gross profit for the year ended December 31, 2018 was $718,604 as compared to a gross profit of $771,190 for the year ended December 31, 2017. Gross profit as a percentage of revenue (gross margin) during the year ended December 31, 2018 was 36.9%, compared to 20.2% for the same period in 2017. This increase in gross profit margin was a result of the sale of all remaining inventory of AquaBall to Red Beard after management’s decision to cease sales of AquaBall®. This sale was priced at AquaBall®’s regular sales price, thus resulting in greater gross margin.
Sales, Marketing, General and Administrative Expense
Selling, marketing, general and administrative expense was $11,409,184, or 586% of net sales, for the year ended December 31, 2018, as compared to $10,699,331, or 280% of net sales for the year ended December 31, 2017. This year over year increase of $709,853 was primarily the result of the cessation of sales of AquaBall® Naturally Flavored Water. Approximately $10.05 million of the total expense for 2018 was related to the recording of the fair value of stock issuable to a related party. These results are not indicative of future selling, general and administrative expense, which expense is currently anticipated to be substantially lower. The Company currently has one employee, and currently anticipates limited expenditures in the immediate future, consisting of those costs necessary to maintain its current operations and to pay costs and expense necessary to comply with the reporting requirements under the Exchange Act.
Interest Expense
Interest expense for the year ended December 31, 2018 was $813,545 as compared to $158,419 for the year ended December 31, 2017.
Other Income
Other income for the year ended December 31, 2018 was $6,811,281, as compared to $1,995,567 for the year ended December 31, 2017. We recorded a gain on the change in fair value of derivative liabilities of $8,883,383 for the year ended December 31, 2018 compared to a gain of $2,331,888 for the year ended December 31, 2017. Also, in 2018, we recorded an impairment charge of $1,898,000 to goodwill compared to an impairment charge of $130,000 on our spherical bottle patent in 2017.
Net Loss
Our net loss for the year ended December 31, 2018 was $3,879,299 as compared to a net loss of $12,447,143 for the year ended December 31, 2017. This year-over-year decrease in loss of $8,567,844 consists of a decrease in operating loss of approximately $3,752,130 due to management’s decision to cease production and sales of AquaBall® and the corresponding reduction in personnel, as well as selling, general and administrative expense combined with the net effects of recording non-cash items related to the issuance of promissory notes and Common Stock related to the Niagara Settlement. On a basic and diluted per share basis, our loss was $0.01 per share for the year ended December 31, 2018, as compared to loss of $0.07 per share for the year ended December 31, 2017. We expect to continue to incur a net loss in subsequent periods throughout fiscal 2019 in the absence of the consummation of a transaction.
Liquidity and Capital Resources
Our auditors have included a paragraph in their report on our consolidated financial statements, and related notes included in our Annual Report on Form 10-K filedfor the fiscal year ended December 31, 2018, indicating that there is substantial doubt as to the ability of the Company to continue as a going concern. The accompanying condensed consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America, which contemplates continuation of the Company as a going concern. For the three months ended March 31, 2019, the Company had net loss of $1,038,756, negative working capital of $4,077,881, and an accumulated deficit of $53,159,404.
Although, during the year ended December 31, 2018 and the three months ended March 31, 2019, the Company raised approximately $1.0 million from financing activities, including the sale of certain Senior Secured Promissory Notes and the Food Labs Note, and received approximately $5.6 million in net proceeds as a result of the Share Exchange in April 2019, additional capital is necessary to continue operations.
The accompanying condensed consolidated financial statements do not include any adjustments that will result in the event the Company is unsuccessful in securing the capital necessary to execute our business plan.
The Company has historically financed its operations through sales of equity and debt securities, and, to a lesser extent, cash flow provided by sales of its products. Despite recent sales of preferred stock and the issuance of certain Senior Secured Promissory Notes, the Food Labs Note and the Red Beard LOC, as well as the Company’s receipt of approximately $5.6 million as a result of the Share Exchange, funds generated from sales of our securities and cash flow provided by sales are insufficient to fund our operating requirements for the next twelve months. As a result, we require additional capital to continue operating as a going concern. No assurances can be given that we will be successful. In the event we are unable to obtain additional financing, we will not be able to fund our working capital requirements, and therefore will be unable to continue as a going concern.
Capital Raising Activities
Secured Note Financing. On July 26, 2017, we commenced an offering of Senior Secured Promissory Notes (the “SecuredNotes”) in the aggregate principal amount of up to $1.5 million to certain accredited investors (the “SecuredNote Financing”). The amount available was subsequently raised to $2.3 million. As additional consideration for participating in the Secured Note Financing, investors received five-year warrants, exercisable for $0.15 per share, to purchase that number of shares of our common stock equal to 50% of the principal amount of the Secured Notes purchased by the investor, divided by $0.15 per share (the “Warrants”). We offered and sold Secured Notes in the aggregate principal amount of $2,465,000 and issued Warrants to purchase up to 8.2 million shares of common stock to participating investors.
The Secured Notes (i) bore interest at a rate of 8% per annum, (ii) had a maturity date of 1.5 years from the date of issuance, and (iii) were subject to a pre-payment and change in control premium of 125% of the principal amount of the Secured Notes at the time of pre-payment or change in control, as the case may be. To secure the Company’s obligations under the Secured Notes, the Company granted to participating investors a continuing security interest in substantially all of the Company’s assets pursuant to the terms and conditions of a Security Agreement (the “Security Agreement”). Subsequent to the quarter ended March 31, 2019, on April 26, 2019, Red Beard purchased the Secured Notes, and thereafter converted all amounts due under the Secured Notes into shares of common stock, thereby terminating the Secured Notes.
2018 Note Issuance.Subsequent to the three months ended March 31, 2018, inconnection with the SECSettlement with Niagara, and in order to make the Cash Payment, the Company issued to Red Beard a senior secured convertible promissory note (the “Red Beard Note”) in the principal amount of $2.25 million, which was subsequently reduced to $813,887 in connection with the sale to Red Beard of all of the Company’s remainingAquaBall®inventory.The Red Beard Note accrued interest at a rate of 5% per annum. Pursuant to the terms of the Red Beard Note, Red Beard had the right, at its sole option, to convert the outstanding balance due into that number of fully paid and non-assessable shares of the Company’s common stock equal to the outstanding balance divided by 0.005 (the “Conversion Option”); provided, however, that the Company had the right, at its sole option, to pay all or a portion of the accrued and unpaid interest due and payable to Red Beard upon its exercise of the Conversion Option in cash. Pursuant to the terms of the Red Beard Note, such Conversion Option was not to be exercisable unless and until such time as the Company has amended its Articles of Incorporation to increase the number of authorized shares of common stock from 300.0 million to at least 2.0 billion,which occurred on November 15, 2018. On April 26, 2019, in connection with the consummation of the Share Exchange, Red Beard elected to convert all amounts due under the Red Beard Note into shares of common stock.
Food Labs Note. On September 18, 2018, the Company entered into an agreement with Food Labs, pursuant to which the Company issued to Food Labs a promissory note in the principal amount of $50,000. The Food Labs Note (i) accrued interest at a rate of 5% per annum, (ii) included an additional lender’s fee equal to $500, or 1% of the principal amount, and (iii) was scheduled to mature on December 31, 2019. As disclosed above, on April 26, 2019, in connection with the Share Exchange, Red Beard purchased the Food Labs Note from Food Labs, and thereafter converted all amounts due under the Food Labs Note into shares of common stock, resulting in the termination of the Food Labs Note.
Red Beard Line-of-Credit. On November 19, 2018, the Company entered into the Red Beard LOC with Red Beard, effective October 25, 2018, pursuant to which the Company could borrow up to $250,000 ;provided, however, that Red Beard could, in its sole discretion, decline to provide additional advances under the Red Beard LOC upon written notice the Company of its intent to decline to make such advances. Interest accrued on the outstanding principal of the Red Beard LOC at a rate of 8% per annum;provided, however, upon the occurrence of an Event of Default, as defined in the Red Beard LOC, the accrual of interest would have increased to a rate of 10% per annum. Prior to the Maturity Date, Red Beard had the right, at its sole option, to convert the Outstanding Balance due under the Red Beard LOC into that number of shares of common stock equal to the Outstanding Balance divided by $0.005, which it elected to do on April 26, 2019 in connection with the consummation of the Share Exchange.
The Share Exchange. On April 26, 2019, subsequent to the quarter ended March 24, 2016.31, 2019, the Company received approximately $5.6 million in net proceeds as a result of the Share Exchange.
Off-Balance Sheet Items
We had no off-balance sheet items as of March 31, 2019.
Critical Accounting Polices and Estimates
Discussion and analysis of our financial condition and results of operations are based upon financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expenses, and related disclosure of contingent assets and liabilities. On an on-going basis, we evaluate our estimates; including those related to collection of receivables, inventory obsolescence, sales returns and non-monetary transactions such as stock and stock options issued for services. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions. We believe the followingthere have been no changes to our critical accounting policies affect our more significant judgments and estimates used insubsequent to the preparationfiling of our financial statements.
Revenue Recognition
In accordance with ASC Topic 605 (Staff Accounting Bulletin 104 “Revenue Recognition in Financial Statements”), revenue is recognized at the point of shipment, at which time title is passed. Net sales include sales of products, sales of marketing tools to independent distributors and freight and handling charges. With the exception of retail customers, we receive the net sales price from all of our orders in the form of cash or credit card payment prior to shipment. Retail customers with approved credit have been extended payment terms of net 30 days, with a few exceptions.
Allowance for Doubtful Accounts
We estimate lossesAnnual Report on receivables based on known troubled accounts and historical experience of losses incurred. Based on our estimations, we recorded an allowance for doubtful accounts of approximately $110,000 as of December 31, 2015.
Inventory Valuation
Inventories are stated at the lower of cost or market on a first-in first-out basis. Inventory is periodically reviewed and obsolete inventories are written off. No inventory was written off as obsolete for the period ended December 31, 2015. Prior to inventory becoming obsolete, inventory which is close to expiration is donated to charitable organizations.
Stock Based Compensation
The Company recognizes the cost of employee services received in exchange for awards of equity instruments based on the grant-date fair value of those awards in accordance with ASC Topic 718, which requires compensation costs related to share-based transactions, including employee stock options, to be recognized in the financial statements based on fair value, and the SEC’s Staff Accounting Bulletin No. 107 (“SAB 107”) interpreting ASC Topic 718 and the valuation of share-based payments for public companies. The Company records compensation expense on a straight-line basis. The fair value of options granted are estimated at the date of grant using a Black-Scholes option pricing model with assumptions for the risk-free interest rate, expected life, volatility, dividend yield and forfeiture rate.
Intangible Assets
Intangible assets consists of the direct costs incurred for application fees and legal expenses associated with trademarks on the Company’s products, customer first, and the estimated value of GT Beverage Company, LLC’s interlocking spherical bottle patent acquired on March 31, 2012. The Company’s intangible assets, are amortized over their estimated useful remaining lives. The Company evaluates the useful lives of its intangible assets annually and adjusts the lives according to the expected useful life. No impairment was deemed necessary as of December 31, 2015.
Goodwill
Goodwill represents the future economic benefits arising from other assets acquired that are individually identified and separately recognized. Goodwill and intangible assets acquired in a purchase business combination and determined to have an indefinite useful life are not amortized, but are tested for impairment at least annually.
Derivative Instruments
A derivative is an instrument whose value is “derived” from an underlying instrument or index such as a future, forward, swap, option contract, or other financial instrument with similar characteristics, including certain derivative instruments embedded in other contracts (“embedded derivatives”) and for hedging activities. As a matter of policy, the Company does not invest in financial derivatives or engage in hedging transactions. However, the Company has entered into complex financing transactions that involve financial instruments containing certain features that have resulted in the instruments being deemed derivatives or containing embedded derivatives. The Company may engage in other similar complex debt transactions in the future, but not with the intention to enter into derivative instruments. Derivatives and embedded derivatives, if applicable, are measured at fair value using the binomial lattice (“Binomial Lattice”) pricing model and marked to market and reflected on our consolidated statement of operations as other (income) expense at each reporting period. However, such new and/or complex instruments may have immature or limited markets. As a result, the pricing models used for valuation of derivatives often incorporate significant estimates and assumptions, which may impact the level of precision in the financial statements. Furthermore, depending on the terms of a derivative or embedded derivative, the valuation of derivatives may be removed from the financial statements upon conversion of the underlying instrument into some other security.
Results of Operations – Fiscal Years Ended December 31, 2015 and 2014
Net Sales
Net salesForm 10-K for the year ended December 31, 2015 was $6,121,097 compared to $4,693,414 during the same period in 2014, an increase of 30%. This increase in net sales is attributable to the continued expansion of retail accounts for AquaBall2018.
(TM) Naturally Flavored Water, including entrance into the club channel with significant sales at Sam’s Club, the commencement of sales to Target, and a growing base of direct-store-distributors in the second and fourth quarters of 2015.DIRECTORS AND EXECUTIVE OFFICERS
Gross Profit (Loss) The following sets forth certain information regarding each of our directors and Gross Marginexecutive officers as of the date of this prospectus.
| Name | | Age | | Position |
Brandon Stump(1) | | 33 | | Chief Executive Officer and Chairman(Principal Executive Officer) |
David Allen(2) | | 64 | | Chief Financial Officer and Secretary(Principal Financial Officer) |
Ryan Stump(3) | | 30 | | Chief Operating Officer and Director |
Mitchell Brantley III(4) | | 57 | | Chief Marketing Officer |
Adam Mirkovich(5) | | 34 | | Chief Information Officer |
| Scot Cohen | | 50 | | Director |
Keith Stump(6) | | 58 | | Director |
| (1) | Mr. Stump was appointed to serve as the Company’s Chief Executive Officer and as a director on the Board on April 26, 2019 in connection with the Share Exchange, effective immediately following Mr. Van Boerum’s resignation as Principal Executive Officer. The Company’s Board appointed Brandon Stump as Chairman on May 8, 2019. |
| (2) | Mr. Allen was appointed to serve as the Company’s Chief Financial Officer on April 26, 2019 in connection with the Share Exchange, effective immediately following Mr. Van Boerum’s resignation as Principal Financial Officer. |
| (3) | Mr. Stump was appointed to serve as the Company’s Chief Operating Officer and as a director on the Board on April 26, 2019 in connection with the Share Exchange. |
| (4) | Mr. Brantley was appointed to serve as the Company’s Chief Marketing Officer on May 8, 2019. |
| (5) | Mr. Mirkovich was appointed to serve as the Company’s Chief Information Officer on May 20, 2019. |
| (6) | Mr. Stump was appointed to the Company's Board of Directors on June 7, 2019.
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Brandon Stump and Ryan Stump are brothers, and Keith Stump is their father. Other than with the respect to the Stumps, there are no familial relationships between any of the Company’s executive officers and directors listed above.
Gross lossThe following biographical information regarding the foregoing directors and officers of the Company is presented below:
Brandon Stump, Chief Executive Officer and Chairman.Mr. Stump was appointed as Chief Executive Officer of the Company on April 26, 2019 in connection with the Share Exchange. Mr. Stump is a co-founder of Charlie’s, and has served as the Chief Executive Officer of Charlie’s since its inception in 2014. Prior to co-founding Charlie’s, Mr. Stump co-founded his first business, the Ohio House in 2011, with his brother Ryan Stump. Since then, he has gone on to co-found both The Chadwick House and Buckeye Recovery Network, both established in 2017, as well as The Mend California, established in 2018. These programs provide a continuum of care and services to men and women from the country promoting emotional, physical and spiritual development.
As a co-founder of Charlie’s, the Board of Directors believes that Mr. Stump’s substantial entrepreneurial, marketing, sales and industry experience provide the Board with valuable expertise that will assist the Company in continuing to grow its revenue and to enter into new markets for its products.
David Allen, Chief Financial Officer and Secretary.Mr. Allen was appointed as the Company’s Chief Financial Officer on April 26, 2019, upon consummation of the Share Exchange. Mr. Allen brings over 22 years of experience as the Chief Financial Officer of public companies. From September 2018 to May 2019, Mr. Allen served as Chief Financial Officer of Iconic Brands, Inc. (OTCQB: ICNB). Prior to that, from December 2014 to January 2018, Mr. Allen served as the Chief Financial Officer of WPCS International, Inc., a design-build engineering firm focused on the deployment of wireless networks and related services. WPCS International was listed on Nasdaq, and Mr. Allen oversaw its financial reporting obligations and SEC compliance. From 2004 to 2017, Mr. Allen served as Chief Financial Officer of Bailey’s Express, Inc., a privately held trucking corporation, which filed for Chapter 11 bankruptcy in July 2017. Mr. Allen currently serves as the Chapter 11 Plan Administrator for the bankruptcy case. From June 2006 to June 2013, Mr. Allen served as the Chief Financial Officer and Executive Vice President of Administration at Converted Organics, Inc., a company organized to convert food waste into organic fertilizer. At Converted Organics, he was responsible for SEC reporting, audit, insurance and taxes. In June 2019, Mr. Allen was appointed to the Board of Directors and serves as audit committee chairman of MariMed, Inc. (OTC:MRMD). Mr. Allen is currently an Assistant Professor of Accounting at Southern Connecticut State University, a position he has held since 2017, and for the 12 years prior to that he was an Adjunct Professor of Accounting at SCSU and Western Connecticut State University. Mr. Allen is a licensed CPA and holds a Bachelor’s Degree in Accounting and a Master’s Degree in Taxation from Bentley College.
Ryan Stump, Chief Operating Officer and Director. Mr. Stump was appointed as the Company’s Chief Marketing Officer on April 26, 2019 in connection with the Share Exchange. Mr. Stump has served as the Chief Operating Officer of Charlie’s since 2014, during which time he has been responsible for all global operations of Charlie’s. Prior to joining Charlie’s, Mr. Stump worked as an Associate Territory Manager and then as a Territory Manager for ConMed, a medical sales device company, from 2010 to 2013. Mr. Stump also co-founded and continues to be engaged with multiple companies, including The Ohio House since 2011, the Buckeye Recovery Network since 2017, and The Mend California since 2018. Mr. Stump earned a B.S. and B.A. in Sports Marketing and Marketing from Duquesne University.
The Board of Directors believes that Mr. Stump’s experience operating high growth companies, as well as entrepreneurial experience, will be valuable to the Board as it manages the Company’s anticipated continued growth.
Mitchell Brantley III, Chief Marketing Officer.Mr. Brantley was appointed as the Company’s Chief Marketing Officer on May 8, 2019. Mr. Brantley currently serves as an Advisor to Spudsy, a privately held company focused on developing and selling certain healthy snacks, where he also served as President from August 2018 to December 2018. Prior to joining Spudsy in August 2018, Mr. Brantley served as Interim President for Goldthreads Herbs, a company focused on the development and sale of plant-based tonics, from March 2018 to July 2018. In addition, starting in November 2017, Mr. Brantley worked as a consultant to companies in the fast moving consumer goods space, providing strategic and marketing advice. From April 2013 until November 2017, Mr. Brantley served as the General Manager of BioNutritonal Research Group, Inc. – Power Crunch, a producer of smart nutrition bars, drinks and powders. From September 2011 until April 2013, Mr. Brantley served as Vice President of Coast Brands, LLC, which provided brand representation and secured regional and national distribution for underdeveloped and emerging beverage and snack brands. Mr. Brantley has also held leadership positions for distributors of Quaker Oats, Cadbury Schweppes and Snapple brand products. Mr. Brantley holds a B.S. in Business and Marketing from California State University, Fullerton.
Adam Mirkovich, Chief Information Officer. Mr. Mirkovich was appointed as the Company’s Chief Information Officer on May 20, 2019. Mr. Mirkovich has over a decade of experience managing supply chains for consumer products. Mr. Mirkovich has served as an independent management consultant specializing in building and optimizing value chains for startups and growth stage companies in the beverage, nicotine vape, and nutritional supplements industries since 2013. Prior to joining the Company, Mr. Mirkovich served as the Chief Operating Officer of Orchid Ventures, Inc. (CSE:ORCD), a multi-state premium cannabis vape company, from September 2018 to April 2019. From December 2014 to February 2016, Mr. Mirkovich served as the Director of Supply Chain and Operations at Space Jam Juice, LLC, a distributor of premium vapor products. From November 2010 to April 2013, Mr. Mirkovich served as the Product Lifecycle Management (“PLM”) Program Manager for Niagara Bottling, LLC, a leading bottled water manufacturer. While there, he led the product revision, introduction, and discontinuance practices for customers’ private labeled water, flavored, and carbonated beverages. Prior to his role in PLM Management, Mr. Mirkovich served as a member of the Supply Chain Logistics team at Niagara Bottling, providing strategic support of company expansion activities and tactical support of purchasing, production planning, and multi-region logistics in North American operations. Mr. Mirkovich earned a Bachelor of Science degree in Business Administration and Economics from Chapman University.
Scot Cohen, Director.Mr. Cohen was appointed to the Board in March 2013 and is the Founder and Managing Partner of V3 Capital Partners, a private investment firm focused on early-stage companies primarily in the consumer products industry, and Co-Manager of Red Fortune Fund, aprivate equity fund based in Hong Kong. Mr. Cohen also is the Founder of Petro River Oil, LLC and Chairman of Petro River Oil Corp. (OTCBB: PTRC), a publicly traded oil and gas producer with assets in Kansas and Oklahoma, and Petro Spring, a global oil and gas technology solutions provider. Prior to creating V3 Capital Partners, Mr. Cohen was the Founder and Managing Partner at Iroquois Capital Opportunity Fund, a special situations private equity investment fund, and a Co-Founder of Iroquois Capital, a hedge fund with investments in small and micro-cap private and public companies. Mr. Cohen currently serves as a director on the Board of Directors of Wrap Technologies, Inc. (NASDAQ: WRTC), and is active in philanthropic activities with numerous charities including the Jewish Enrichment Council. Mr. Cohen received a Bachelor of Science degree from Ohio University in 1991.
The Board of Directors believes Mr. Cohen’s success with multiple private investment firms, his extensive contacts within the investment community, and his financial expertise will assist the Company’s efforts to expand and to implement its business plan.
Keith Stump, Director. Mr. Stump has over 35 years of sales and management experience. He joined Charlie’s in January 2018 as a Strategic Advisor, where he has predominantly focused on sales, marketing and scaling the business, including through organizational alignments, process improvement, leadership/management training and development. Prior to joining Charlie’s, Mr. Stump served as a partner and Vice President of Sales in Blue Technologies, Inc., an office technology and Managed IT Service provider headquartered in Cleveland, Ohio, which he co-founded in 1995. While at Blue Technologies, Inc., Mr. Stump was responsible for the sales performance of the company’s five divisions, along with operational oversight. His duties included P&L responsibility for all product divisions, leadership training and development, new product and service offerings, enterprise account selling, amongst other duties. Mr. Stump was instrumental in helping Blue Technologies, Inc. become one of the Top 10 Konica Minolta providers in the country, as well as one of the Top 75 Office Technologies Dealers in the United States. Mr. Stump serves on several not-for-profit boards, which serve those in recovery from addiction and developmental disabilities.
The Board of Directors believes that Mr. Stump’s sales, marketing, management experience and industry experience, as well as entrepreneurial experience, will be valuable to the Board as it manages the Company’s anticipated continued growth.
Other than as described above, there have been no events under any bankruptcy act, no criminal proceedings and no judgments or injunctions material to the evaluation of the ability and integrity of any director or nominee set forth above during the past ten years.
Subsequent to the year ended December 31, 2018, and effective April 26, 2019 upon consummation of the Share Exchange, Ms. Cappello and Messrs. Greco and LeVecke (collectively, the “Former Directors”) resigned from their positions as directors on the Company’s Board, leaving Messrs. Sherman and Cohen as the remaining directors. In addition, Ryan and Brandon Stump were appointed as new directors immediately after the resignations of the Former Directors. Certain disclosure which follows regarding corporate governance refers to the Company’s Board and corporate governance policies and procedures prior to the resignation of the Former Directors, and does not reflect the Company’s corporate governance policies and procedures subsequent to such resignations.
Board of Directors; Attendance at Meetings
The Board held four meetings and acted by unanimous written consent five times during the year ended December 31, 2018. Each director attended at least 75% of Board meetings during the year ended December 31, 2018. We have no formal policy with respect to the attendance of Board members at annual meetings of shareholders, but encourage all incumbent directors and director nominees to attend each annual meeting of shareholders.
Independent Directors
Prior to the resignations of the Former Directors, the Board determined that Ms. Cappello and Mr. LeVecke were independent directors as defined by the rules and regulations of the Nasdaq Stock Market.
The Board has determined that Mr. Cohen satisfies the definition of an “audit committee financial expert” under SEC rules and regulations. This designation does not impose any duties, obligations or liabilities on Mr. Cohen that are greater than those generally imposed on them as members of the Audit Committee and the Board, and his designation as an audit committee financial expert does not affect the duties, obligations or liability of any other member of the Audit Committee or the Board.
Board Committees and Charters
As of December 31, 2018, the Board had a standing Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee. The Board appointed the members and chairpersons of these committees. The majority of the members of these committees had been determined by the Board to be independent. Each committee had a written charter approved by the Board. Copies of each committee charter were available on the Company’s website at www.truedrinks.com/investor-relations/ and by clicking on the “Corporate Governance” tab.
Effective April 26, 2019, as a result of the resignations of the Former Directors, the Board no longer has an active Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee. Instead, the full Board currently administers the duties of each of these committees, and will likely do so for the foreseeable future.
Audit Committee
As of December 31, 2018, the Audit Committee consisted of Messrs. Scot Cohen (Chair) and Neil LeVecke and Ms. Cappello.
The Audit Committee assisted the Board in fulfilling its legal and fiduciary obligations in matters involving the Company’s accounting, auditing, financial reporting, internal control and legal compliance functions by approving the services performed by the Company’s independent accountants and reviewing their reports regarding the Company’s accounting practices and systems of internal accounting controls. The Audit Committee was responsible for the appointment, compensation, retention and oversight of the independent accountants and for ensuring that the accountants are independent of management.
Compensation Committee
As of December 31, 2018, the Compensation Committee consisted of Ms. Cappello (Chair) and Mr. Scot Cohen.
The Compensation Committee determined the Company’s general compensation policies and practices. The Compensation Committee also reviewed and approved compensation packages for the Company’s officers and, based upon such review, recommended overall compensation packages for the officers to the Board. This committee also reviewed and determined equity-based compensation for the Company’s directors, officers, employees and consultants and administered the Company’s 2013 Stock Incentive Plan.
Nominating and Corporate Governance Committee
As of December 31, 2018, the Nominating and Corporate Governance Committee consisted of Mr. LeVecke (Chair) and Ms. Cappello. The Nominating and Corporate Governance Committee was responsible for making recommendations to the Board regarding candidates for directorships and the size and composition of the Board and for overseeing the Company’s corporate governance guidelines and reporting and making recommendations to the Board concerning corporate governance matters.
Board Leadership Structure
As of December 31, 2018, the Board separated the roles of Principal Executive Officer and Chairman of the Board in recognition of the differences between the two roles. The Principal Executive Officer is responsible for setting the strategic direction of the Company and the day-to-day leadership and performance of the Company, while the Chair of the Board provides guidance to the Principal Executive Officer and sets the agenda for the Board meetings and presides over meetings of the Board. However, the Board believes it should be able to freely select the Chairman of the Board based on criteria that it deems to be in the best interest of the Company and its stockholders.
Upon consummation of the Share Exchange, Brandon Stump was appointed as the Company’s Principal Executive Officer, and shortly thereafter was appointed as Chairman of the Board. The Board felt that this was in the Company’s and its stockholder’s best interests under the circumstances due to Brandon Stump’s knowledge and experience in the vapor market and due to the fact that he is the co-founder and Chief Executive Officer of Charlie’s.
Board Role in Risk Assessment
Management, in consultation with outside professionals, as applicable, identifies risks associated with the Company’s operations, strategies and financial statements. Prior to April 26, 2019, risk assessment was also performed through periodic reports received by the Audit Committee from management, counsel and the Company’s independent registered public accountants relating to risk assessment and management. Audit Committee members met privately in executive sessions with representatives of the Company’s independent registered public accountants during and prior to the year ended December 31, 2018. The Board also provides risk oversight through its periodic reviews of the financial and operational performance of the Company.
Code of Ethics
We have adopted a Code of Ethics that applies to all of our directors, officers and employees, a copy of which was attached as an exhibit to our Annual Report on Form 10-K, filed with the SEC on April 1, 2019.
Section 16(a) Beneficial Ownership Reporting Compliances
Section 16(a) of the Exchange Act requires our officers, directors, and persons who beneficially own more than ten percent of our common stock to file reports of ownership and changes in ownership with the SEC. Officers, directors, and greater-than-ten-percent stockholders are also required by the SEC to furnish us with copies of all Section 16(a) forms that they file.
Based solely upon a review of these forms that were furnished to us, we believe that our officers and directors timely filed all reports due under Section 16(a) during the year ended December 31, 2018 except the following:
| ● | James Greco, a member of the Company’s Board of Directors, filed a Form 5 disclosing one late transaction. |
Summary Compensation Table
The following table sets forth the compensation paid to the following persons for our fiscal years ended December 31, 2018 and 2017:
| (a) | our principal executive officer; |
| |
| (b) | our most highly compensated executive officers who were serving as an executive officer at the end of the fiscal year ended December 31, 2018 who had total compensation exceeding $100,000 (together, with the principal executive officer, the “Named Executive Officers”); and |
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| (c) | any additional individuals who would have been considered Named Executive Officers, but for the fact that they were not serving in such capacity at the end of our most recently completed fiscal year. |
Name and Principal Position | | Year | | | | | Non-Equity Incentive Plan Compensation ($) | All Other Compensation ($) | |
| | | | | | | | | | |
Robert Van Boerum (1) | | 2018 | $103,654 | $- | $- | $9,517 | $- | $- | $113,171 |
| Former Principal Executive Officer and Principal Financial Officer | | 2017 | $170,108 | $- | $- | $118,131 | $- | $- | $288,239 |
James J. Greco, (2) | | 2018 | $109,495 | $- | $- | $37,935 | $- | $- | $147,430 |
| Former Director and Former Chief Executive Officer | | 2017 | $63,462 | $- | $125,000 | $189,009 | $- | $- | $377,471 |
Kevin Sherman, (3) | | 2018 | $67,832 | $- | $- | $107,916 | $- | $- | $175,748 |
| Director and Former President and Chief Executive Officer | | 2017 | $268,621 | $- | $- | $307,140 | $- | $36,000 | $611,761 |
| (1) | Mr. Van Boerum was appointed to serve as the Company’s Principal Executive Officer and Principal Financial Officer effective May 15, 2018, and resigned from such positions on April 26, 2019, effective upon consummation of the Share Exchange. Mr. Van Boerum currently provides consulting services to the Company in order to aid in the transition of the Company and its management as a result of the Share Exchange. |
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| (2) | James J. Greco served as Chief Executive Officer of the Company from April 2017 to May 15, 2018, and resigned from his role as a member of the Company’s Board of Directors on April 26, 2019, effective upon consummation of the Share Exchange. |
| |
| (3) | Kevin Sherman served as President and Chief Marketing Officer of the Company through April 25, 2018. |
Employment Agreements
Robert Van Boerum. Mr. Van Boerum was employed as the Company’s Chief Operations Officer pursuant to a two-year employment agreement, dated September 11, 2015 (the “Van Boerum Agreement”). Under the terms and conditions of the Van Boerum Agreement, Mr. Van Boerum received a base salary of $14,583.33 per month. Mr. Van Boerum was also eligible for an annual bonus equal to 30% of his salary, which bonus was to be awarded at the sole discretion of the Company’s Compensation Committee and was eligible to earn stock option compensation at the discretion of the Compensation Committee. During the year ended December 31, 2017, the Compensation Committee did not award a bonus to Mr. Van Boerum for the period through December 31, 2016.
Pursuant to its terms, the Van Boerum Agreement could be terminated for “Cause,” if Mr. Van Boerum (a) was convicted of any fraud or embezzlement, (b) after written notice, willfully breached or habitually neglected his duties and responsibilities, (c) committed acts of dishonesty, gross negligence or willful misconduct, or (d) violated any law or regulation relating to the business operations of the Company that may have a material adverse effect on the Company. If the Company terminated Mr. Van Boerum’s employment for reasons other than for Cause, the Company would have been required to pay a severance in an amount equal to six months of Mr. Van Boerum’s base salary.
Mr. Van Boerum was appointed to serve as the Company’s Principal Executive Officer and Principal Financial Officer upon Mr. Greco’s resignation, and did not enter into a new employment agreement in connection with such appointments. As stated above, Mr. Van Boerum resigned from these positions on April 26, 2019, effective upon consummation of the Share Exchange.
James J. Greco.Mr. Greco was employed as the Company’s Chief Executive Officer pursuant to an Employment Agreement, dated April 13, 2017 (the “Greco Agreement”), under which Mr. Greco was entitled to an annual base salary of $250,000, payable in accordance with the Company’s existing payroll practices beginning in October 2017. Under the terms and conditions of the Greco Agreement, Mr. Greco received: (i) a guaranteed bonus in the form of 1,302,084 shares of the Company’s restricted common stock (the “Bonus Award”), which Bonus Award vested in full on December 31, 2017; (ii) stock options to purchase up to 6,300,315 shares of the Company’s common stock, an amount equal to 2% of the Company’s issued and outstanding shares of common stock (including preferred stock on an as-converted basis), which options will vest annually over a four-year period beginning on the date of the Greco Agreement, or in full upon a Change of Control (as defined in the Greco Agreement); and (iii) stock options to purchase up to 9,450,474 shares of the Company’s common stock, vesting of which will begin in 2018 and vest annually over three years, conditioned on the Company’s achievement of certain performance goals.
Pursuant to the Greco Agreement, Mr. Greco’s employment could have been terminated for “Cause,” if Mr. Greco (a) was convicted of any fraud or embezzlement, (b) after written notice, willfully breached or habitually neglected his duties and responsibilities, (c) committed acts of dishonesty, gross negligence or willful misconduct or (d) violated any law or regulation relating to the business operations of the Company that may have had a material adverse effect on the Company. If the Company terminated Mr. Greco’s employment for reasons other than for Cause, the Company would have been required to pay a severance in an amount equal to three times Mr. Greco’s monthly base salary per year of service, capped at a maximum amount equal to Mr. Greco’s annual salary.
As stated above, Mr. Greco resigned from his position as Chief Executive Officer on May 15, 2018.
Kevin Sherman. Mr. Sherman was employed as the Company’s President pursuant to a two-year employment agreement, dated November 25, 2015 (the “Sherman Agreement”). Under the terms and conditions of the Sherman Agreement, Mr. Sherman receives: (i) a base salary of $22,917 per month, subject to certain adjustments in the event the Company achieved certain monthly sales objectives (“Target Objectives”); (ii) a $3,000 per month housing allowance, subject to termination in the event the Company achieved any of the Target Objectives; (iii) a ‘retention bonus’ of $100,000, of which $50,000 was paid to Mr. Sherman in November 2015 and the remaining $50,000 was paid in March, 2016; and (iv) an aggregate total of approximately 3.8 million shares of restricted common stock, subject to certain vesting conditions (“Restricted Shares”), which Restricted Shares represented approximately 1.7% of the issued and outstanding shares of the Company’s common stock, including shares of common stock issuable upon conversion of the Company’s outstanding shares of preferred stock.
During the second half of 2016, Mr. Sherman deferred a portion of his monthly salary equivalent to a total of $100,000 annually. The deferment began at the end of July 2016 and ended as of July 2017.
Mr. Sherman was also eligible for an annual bonus equal to 30% of his base salary, payable in restricted shares of the Company’s common stock, which bonus was to be awarded at the sole discretion of the Company’s Compensation Committee. During the year ended December 31, 2017, the Compensation Committee did not award a bonus to Mr. Sherman for the period through December 31, 2016.
In addition to the annual bonus, in the event of a change in control transaction, as defined in the Sherman Employment Agreement, Mr. Sherman was to be entitled to a bonus equal to 3.25% of the value of the transaction resulting in a change in control, minus the fair market value of all Restricted Shares issued to Mr. Sherman prior to the date of the change in control transaction.
Pursuant to the Sherman Agreement, Mr. Sherman’s employment could be terminated for “Cause,” if Mr. Sherman (a) was convicted of any fraud or embezzlement, (b) after written notice, willfully breached or habitually neglected his duties and responsibilities, (c) committed acts of dishonesty, gross negligence or willful misconduct or (d) violated any law or regulation relating to the business operations of the Company that may have had a material adverse effect on the Company. If the Company terminated Mr. Sherman’s employment for reasons other than for Cause, the Company would have been required to pay a severance in an amount equal to six months of Mr. Sherman’s base salary.
As stated above, Mr. Sherman resigned from his position as President and Chief Marketing Officer on April 25, 2018.
Other than as set forth above, there were no arrangements or understandings between our Named Executive Officers and any other person pursuant to which they were appointed as officers as of December 31, 2018. None of our Named Executive Officers as of December 31, 2018 had a family relationship that is required to be disclosed under Item 401(d) of Regulation S-K.
Director Compensation
In previous years, pursuant to the Company’s Director Compensation Plan, non-employee directors (“Outside Directors”) received (a) a $30,000 annual retainer, payable in equal quarterly installments in either cash or shares of common stock, (b) additional committee retainers as determined by the Board, and (c) reimbursement for expenses related to Board meeting attendance and committee participation. Directors that were also employees of the Company did not receive additional compensation for serving on the Board. In September 2017, non-employee directors were issued options as payment for outstanding board fees. Since that time, the Company is no longer accruing expense pursuant to the Director Compensation Plan, and has not yet adopted a new Director Compensation Plan since the consummation of the Share Exchange.
The following table discloses certain information concerning the compensation of the Company’s non-employee directors for the year ended December 31, 20152018:
| Name | Fees earned or Paid in Cash ($) | | | |
Ramona Cappello (1) | $- | $- | $- | $- |
Neil LeVecke (1) | $- | $- | $- | $- |
Scot Cohen (2) | $- | $21,344 | $- | $21,344 |
James Greco (1) | $- | $- | $- | $- |
| Kevin Sherman | $- | $- | $- | $- |
| (1) | As stated above, Ms. Cappello and Messrs. LeVecke and Greco resigned from their positions as member of the Company’s Board on April 26, 2019, effective upon consummation of the Share Exchange. |
| (2) | During the year ended December 31, 2018, Scot Cohen was granted options to purchase 7,114,826 shares of common stock, which options had a value on grant date of $21,344, as a Director of the Board of Directors. |
Outstanding Equity Awards as of December 31, 2018
The following table sets forth all equity awards held by our Named Executive Officers at December 31, 2018:
| |
| Name | Number of shares or units of stock that have not vested (#) | Market Value of shares or units of stock that have not vested ($) | Equity incentive plan awards: Number of unearned shares, units or other rights that have not vested (#) | Equity incentive plan awards: Market or Payout value of unearned shares, units or other rights that have not vested ($) |
| Robert Van Boerum | 4,329,219(1) | $- | - | $- |
| James J. Greco | 12,644,921(2) | $- | - | $- |
| Kevin Sherman | 35,971,988(3) | $- | - | $- |
| (1) | Non-vested shares vest as follows: 818,925 on September 30, 2019, 338,000 on September 30, 2020, and 3,172,294 upon a change of control transaction. Mr. Van Boerum was appointed to serve as the Company’s Principal Executive Officer and Principal Financial Officer effective May 15, 2018, following Mr. Greco’s resignation as Chief Executive Officer. Mr. Van Boerum resigned from his position as Principal Executive Officer and Principal Financial Officer on April 26, 2019. |
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| (2) | Non-vested shares vest as follows: 12,644,921 upon a change of control transaction. Mr. Greco resigned from his position as Chief Executive Officer on May 15, 2018. |
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| (3) | Non-vested shares vest as follows: 35,971,988 upon a change of control transaction. Mr. Sherman resigned from his position as President and Chief Marketing Officer on April 25, 2018 but continues to serve on the Company’s Board of Directors. |
Equity Compensation Plan Information
The following table includes information as of December 31, 2018 for our equity compensation plans:
| Plan category | Number of securities to be issued upon exercise of outstanding options, warrants and rights | Weighted-average exercise price of outstanding options, warrants and rights | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) |
| | | | |
| Equity compensation plans approved by stockholders | 20,000,000 | $0.030 | - |
| | | | |
| Equity compensation plans not approved by stockholders | 71,759,826 | $0.015 | - |
| | | | |
| Total | 91,759,826 | $0.018 | - |
2013 Stock Incentive Plan. The 2013 Stock Incentive Plan (the “2013 Plan”) was $160,990adopted by the Company’s Board of Directors on December 31, 2013. The 2013 Plan initially reserved for issuance 20.0 million shares of common stock for issuance to all employees (including, without limitation, officers and directors who are also employees) of the Company or any subsidiary of the Company (each a “Subsidiary”), any non-employee director, consultants and independent contractors of the Company or any Subsidiary, and any joint venture partners (including, without limitation, officers, directors and partners thereof) of the Company or any Subsidiary. Awards under the 2013 Plan may be made in the form of: (i) incentive stock options within the meaning of Section 422 of the Internal Revenue Code of 1986, as comparedamended, once the 2013 Plan has been approved by a majority of the Company’s stockholders; (ii) stock options that do not qualify as incentive stock options; and/or (iii) awards of shares that are subject to gross profitcertain restrictions specified in the 2013 Plan. On May 8, 2019, the Board of $291,712Directors authorized increasing the number of shares reserved for issuance under the plan to a total of 65.0 million shares of common stock and to ratify the issuance of any and all awards made prior to that date, subject to stockholder approval.
During the year ended December 31, 2014. Gross loss2018, the Company did not issue any restricted stock awards pursuant to the 2013 Plan; however, the Company issued an aggregate total of 34,652,903 stock option awards pursuant to the 2013 Plan during the 2018 fiscal year.
Subsequent to the year ended December 31, 2018, on May 16, 2019, the Board approved an amendment to all of the outstanding stock options held by Mr. Sherman that were issued under the 2013 Plan, in the aggregate amount of 35,971,988, to extend the expiration date of such stock options by five years.
2019 Omnibus Incentive Plan. The 2019 Omnibus Incentive Plan (the “2019 Plan”) was adopted by the Company’s Board of Directors on May 8, 2019, subject to stockholder approval and registration or qualification of the shares subject to the 2019 Plan with the federal and state securities authorities. The 2019 Plan reserved for issuance ___ billion shares of common stock for issuance to all employees (including, without limitation, officers and directors who are also employees) of the Company or any Subsidiary, any non-employee director, consultants and independent contractors of the Company or any Subsidiary, and any joint venture partners (including, without limitation, officers, directors and partners thereof) of the Company or any Subsidiary. Awards under the 2019 Plan may be made in the form of: (i) incentive stock options within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended, once the 2019 Plan has been approved by a percentagemajority of revenue (gross margin)the Company’s stockholders; (ii) stock options that do not qualify as incentive stock options; and/or (iii) awards of shares that are subject to certain restrictions specified in the 2019 Plan.
Post-Employment Compensation, Pension Benefits, Nonqualified Deferred Compensation
There were no post-employment compensation, pension or nonqualified deferred compensation benefits earned by the Named Executive Officers during the year ended December 31, 2015 was 3%. This figure was affected by negative gross profit experienced2018.
We are filing the registration statement of which this prospectus forms a part to permit holders of the shares of our common stock described in the second and fourth quarters duesection entitled “Selling Stockholders” to a high mixresell such shares. We will not receive any proceeds from the resale of club packs for Sam’s Club.
Gross margin will likely remain at current or below current levels throughany shares offered by this prospectus by the second quarter of 2016, during the transition from our current bottling facilities to Niagara. We anticipate an increase in gross margin as early as the third quarter of 2016 as a result of decreased manufacturing costs once Niagara becomes the sole manufacturer of AquaBall(TM). At that time, Niagara will provide finished goods to the Company, and bill the Company for the product as it is shipped to customers.
Sales, General and Administrative Expense
Selling and marketing expenses were $5,073,211, or 83% of net sales, for the year ended December 31, 2015, as compared to $4,388,108, or 93% of net sales for the year ended December 31, 2014. This increase is due to higher marketing expense and marginal sales expense increases as a result of increased sales, including freight for shipping orders to customers and license fees.selling stockholders.
General
DETERMINATION OF OFFERING PRICE The selling stockholders will sell at prevailing market prices or privately negotiated prices.
MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS Our common stock is traded on the OTC Pink Marketplace under the symbol “CHUC.” Prior to July 3, 2019, our common stock was traded on the OTC Pink Marketplace under the symbol “TRUU.”
The following table sets forth high and administrative expenses were $5,475,673, or 89% of netlow sales prices for our common stock for the year ended December 31, 2015,calendar quarters indicated as compared to $4,450,101,reported by the OTC Pink Marketplace. These prices represent quotations between dealers without adjustment for retail markup, markdown, or 95%commission and may not represent actual transactions.
| | | |
| 2019 | | |
| First Quarter ended March 31, 2019 | $0.01 | $0.002 |
| Second Quarter ended June 30, 2019 | $0.08 | $0.004 |
| Third Quarter ended September 30, 2019 (through July 9, 2019) | $0.04 | $0.01 |
| | | |
| 2018 | | |
| First Quarter ended March 31, 2018 | $0.03 | $0.01 |
| Second Quarter ended June 30, 2018 | $0.03 | $0.01 |
| Third Quarter ended September 30, 2018 | $0.01 | $0.01 |
| Fourth Quarter ended December 31, 2018 | $0.01 | $0.01 |
| | | |
| 2017 | | |
| First Quarter ended March 31, 2017 | $0.13 | $0.07 |
| Second Quarter ended June 30, 2017 | $0.17 | $0.08 |
| Third Quarter ended September 30, 2017 | $0.15 | $0.07 |
| Fourth Quarter ended December 31, 2017 | $0.07 | $0.01 |
Holders
AtJuly 9, 2019, there were18,935,746,396shares of net sales, for the year ended December 31, 2014. This increase is due to an increase in salariesour common stock outstanding, and approximately 437 stockholders of approximately $480,000 and a $500,000 write offrecord. At July 9, 2019, there were 206,249 shares of deposits with co-packers related to equipment purchases in connection with to our transition to Niagara Bottling as our co-packer.
Series A Preferred outstanding held byWe expect sales, general and administrative expense to continue to increase in the first quarter120stockholders of 2016, due primarily to the cost associated with transitioning manufacturing of AquaBall(TM)record. to Niagara, as well as increased marketing efforts associated with promoting the preservative free formulation of AquaBall(TM).
Interest Expense
Interest expense for the three months ended March 31, 2019 was $192,932, as compared to interest expense of $64,267 for the three months ended March 31, 2018.
Income Taxes
There was no income tax expense recorded for the three months ended March 31, 2019 and 2018, as the Company’s calculated provision (benefit) for income tax is based on annual expected tax rates. As of March 31, 2019, the Company had tax net operating loss carryforwards and a related deferred tax asset, offset by a full valuation allowance.
Net Loss
Our net loss for the three months ended March 31, 2019 was $1,038,756 as compared to a net loss of $712,385 for the three months ended March 31, 2018. This year-over-year net loss increase of $326,371 consists of a decrease in operating loss of approximately $833,000 due to management’s decision to cease production and sales of AquaBall® in early 2018 and the corresponding reduction in personnel, as well as selling, general and administrative expense. On a basic and diluted per share basis, there was loss of $0.00 per share for the three months ended March 31, 2019 and 2018.
Comparison of the Year Ended December 31, 2018 to the Year Ended December 31, 2017.
The below disclosure included in this Management’s Discussion and Analysis of Financial Condition discusses the Company’s financial results for years ended December 31, 2018 and 2017. During the first quarter of 2018, management decided to cease production of AquaBall® and significantly reduce business operations. As a result of our decision to cease production of AquaBall® and significantly reduce personnel during the first quarter of 2018 and to terminate the Bottling Agreement and sell our remaining AquaBall® inventory in the second quarter of 2018, the comparison to the comparable period in 2017, and amounts reported in financial statements subsequent to December 31, 2018, will materially change and will not be comparable with prior comparable period.
Net Sales
Net sales for the year ended December 31, 2018 were $1,947,052 compared to $3,823,334 during the same period in 2017, a decrease of 49.1%. This decrease is the result of management’s decision to cease sales of AquaBall®, with all remaining AquaBall® inventory being sold in the quarter ending June 30, 2018.
The percentage that each product category represented of our net sales is as follows:
| Product Category | Year Ended December 31, 2018 (% of Sales) |
| AquaBall® | 91% |
| Bazi® | 9% |
During the year ended December 31, 2018, the Company terminated the Bottling Agreement and ceased production of AquaBall®. As a result, the Company’s operations have been reduced. Accordingly, total sales for the year ended December 31, 2018 are not indicative of future sales or results, and will be substantially lower in the current fiscal year compared to the year ended December 31, 2018. Specifically, we do not anticipate material revenue subsequent to the year ended December 31, 2018, relative to the revenue recognized in the year ended December 31, 2018, in the absence of the consummation of a transaction.
Gross Profit and Gross Margin
Gross profit for the year ended December 31, 2018 was $718,604 as compared to a gross profit of $771,190 for the year ended December 31, 2017. Gross profit as a percentage of revenue (gross margin) during the year ended December 31, 2018 was 36.9%, compared to 20.2% for the same period in 2017. This increase in gross profit margin was a result of the sale of all remaining inventory of AquaBall to Red Beard after management’s decision to cease sales of AquaBall®. This sale was priced at AquaBall®’s regular sales price, thus resulting in greater gross margin.
Sales, Marketing, General and Administrative Expense
Selling, marketing, general and administrative expense was $11,409,184, or 586% of net sales, for the year ended December 31, 2018, as compared to $10,699,331, or 280% of net sales for the year ended December 31, 2017. This year over year increase of $709,853 was primarily the result of the cessation of sales of AquaBall® Naturally Flavored Water. Approximately $10.05 million of the total expense for 2018 was related to the recording of the fair value of stock issuable to a related party. These results are not indicative of future selling, general and administrative expense, which expense is currently anticipated to be substantially lower. The Company currently has one employee, and currently anticipates limited expenditures in the immediate future, consisting of those costs necessary to maintain its current operations and to pay costs and expense necessary to comply with the reporting requirements under the Exchange Act.
Interest Expense
Interest expense for the year ended December 31, 20152018 was $257,389$813,545 as compared to $202,773$158,419 for the year ended December 31, 2014. Interest expense for the 2015 period consists of interest and fees due on promissory notes generated in late 2014 and in the third quarter of 2015, most of which were all either repaid or converted into shares of Series C Preferred in connection with the March Note Exchange in the first quarter of 2015 and the January Note Exchange during the first quarter of 2016.
Other ExpenseIncome
Other expenseincome for the year ended December 31, 20152018 was $2,285,629,$6,811,281, as compared to other income of $11,508$1,995,567 for the year ended December 31, 2014. The increase2017. We recorded a gain on the change in other expense is primarily due to the issuancefair value of the Personal Guaranty Warrant for 17,500,000 sharesderivative liabilities of Common Stock valued at $2,263,783, issued$8,883,383 for the executionyear ended December 31, 2018 compared to a gain of a personal guaranty$2,331,888 for the year ended December 31, 2017. Also, in 2018, we recorded an impairment charge of True Drinks’ obligations under the Niagara Agreement.$1,898,000 to goodwill compared to an impairment charge of $130,000 on our spherical bottle patent in 2017.
Net Loss
Our net loss for the year ended December 31, 20152018 was $11,990,563$3,879,299 as compared to a net loss of $8,116,603$12,447,143 for the year ended December 31, 2014.2017. This year-over-year decrease in loss of $8,567,844 consists of a decrease in operating loss of approximately $3,752,130 due to management’s decision to cease production and sales of AquaBall® and the corresponding reduction in personnel, as well as selling, general and administrative expense combined with the net effects of recording non-cash items related to the issuance of promissory notes and Common Stock related to the Niagara Settlement. On a basic and diluted per share basis, our loss after dividends on outstanding shares of Series B Preferred, was $0.16 and $0.23$0.01 per share for the years ended December 31, 2015 and December 31, 2014, respectively.
Although we experienced an increase in net sales during the year ended December 31, 20152018, as compared to loss of $0.07 per share for the same period in 2014, the increased period over period losses are primarily the result of the decrease in gross margins on sales as AquaBall(TM) Naturally Flavored Water entered the club channel, and the increase in sales and marketing expenses during the 2015 period.year ended December 31, 2017. We expect to continue to incur a net loss in subsequent periods and plan to fund our operations using proceeds received from capital raising activities until our operations become profitable. Although we anticipate a growththroughout fiscal 2019 in sales and gross margins as a resultthe absence of the Niagara Agreement and the introductionconsummation of our new, preservative free formulation of AquaBall(TM), these increases may not occur, may take longer than anticipated, or may not be sufficient to produce net income in any subsequent quarters.a transaction.
Liquidity and Capital Resources
Our auditors have included a paragraph in their report on our consolidated financial statements, included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2015,2018, indicating that there is substantial doubt as to the ability of the Company to continue as a going concern. The accompanying condensed consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America, which contemplates continuation of the Company as a going concern. For the yearthree months ended DecemberMarch 31, 2015,2019, the Company incurred ahad net loss of $11,990,563. At December 31, 2015, the Company had$1,038,756, negative working capital of $5,303,989$4,077,881, and an accumulated deficit of $30,348,644. The Company had negative cash flow from operations of $10,433,069 and $6,649,706 during the years ended December 31, 2015 and 2014, respectively. $53,159,404.
Although, the Company raised approximately $13 million in gross proceeds from the sale of shares of Series C Preferred and certain promissory notes during the year ended December 31, 2015,2018 and the three months ended March 31, 2019, the Company raised approximately $1.0 million from financing activities, including the sale of certain Senior Secured Promissory Notes and the Food Labs Note, and received approximately $5.6 million in net proceeds as a result of the Share Exchange in April 2019, additional capital will beis necessary to advance the marketability of the Company's products to the point at which the Company can sustaincontinue operations. Management's plans are to continue to contain expenses, expand distribution and sales of its AquaBall(TM) Naturally Flavored Water as rapidly as economically possible, and raise capital through equity and debt offerings to execute the Company’s business plan and achieve profitability from continuing operations.
The accompanying condensed consolidated financial statements do not include any adjustments that mightwill result in the event the Company is unsuccessful in its plans.
securing the capital necessary to execute our business plan.The Company has historically financed its operations through sales of equity and debt securities, and, to a lesser degree,extent, cash flow provided by sales of AquaBall(TM).its products. Despite recent sales of preferred stock and the issuance of certain Senior Secured Promissory Notes, the Food Labs Note and the Red Beard LOC, as described below,well as the Company’s receipt of approximately $5.6 million as a result of the Share Exchange, funds generated from sales of shares of our preferred stock or other equity or debt securities and cash flow provided by AquaBall(TM)sales may beare insufficient to fund our operating requirements for the next twelve months. As a result, we may require additional capital to continue operating as a going concern. No assurances can be given that we will be successful. In the event we are unable to obtain additional financing, we will not be able to fund our working capital requirements, and therefore will be unable to continue as a going concern.
Recent Capital Raising Activity
February 2015 Series C Offering, Note Payment and Note Exchange. On February 20, 2015, the Company and certain accredited investors entered into securities purchase agreements, pursuant to which the investors purchased 43,000 shares of Series C Preferred for $100 per share over the course of three separate closings. As additional consideration, each investor received five-year warrants, exercisable for $0.15 per share.
On March 27, 2015, the Company and certain accredited investors entered into an amendment to the February 2015 securities purchase agreements pursuant to which the Company sold to one investor 27,000 additional shares of Series C Preferred for gross proceeds of $2.7 million, which the Company subsequently used to satisfy approximately $2.7 million of the Company’s $3.8 million in outstanding promissory notes (the “Note Payments”). As additional consideration for the purchase of these additional shares of Series C Preferred, the investor received warrants to purchase shares of the Company’s Common Stock on terms substantially similar to the warrants issued in connection with the offering of shares of Series C Preferred in February 2015.
Following the Note Payments, the Company and each of the holders of promissory notes remaining after the Note Payments entered into Exchange Agreements, wherein the holders agreed to exchange all remaining principal and accrued interest of the remaining promissory notes into shares of Series C Preferred on substantially similar terms to those offered in the offering of shares of Series C Preferred in February 2015 (the “Note Exchange”). As a result of the execution of these Exchange Agreements and the consummation of the Note Exchange, the Company issued to the Holders an aggregate total of 12,148 shares of Series C Preferred and warrants to purchase approximately 2.8 million shares of Common Stock for $0.15 per share.
August 2015 Series C Offering. On August 13, 2015, the Company and Red Beard Holdings, LLC (“Red Beard”) entered into a securities purchase agreement, pursuant to which Red Beard purchased 17,648 shares of Series C Preferred for $113.33 per share over the course of three separate closings. As additional consideration for participating in this offering, Red Beard received warrants to purchase a total of 3,633,411 shares of Common Stock, exercisable for $0.17 per share. On October 16, 2015, the Company and Red Beard amended the securities purchase agreement in order to issue an additional 8,823 shares of Series C Preferred to Red Beard for gross proceeds to the Company of approximately $1.0 million. In connection with this amendment, Red Beard also received warrants to purchase approximately 1.81 million shares of Common Stock.
September 2015Secured Note OfferingFinancing.. On September 9, 2015, the Company began a privateJuly 26, 2017, we commenced an offering to certain accredited investors of: (i) senior subordinated secured promissory notes ("of Senior Secured Promissory Notes (the “SecuredNotes"”) in the aggregate principal amount of up to $2.5 million; and (ii) and warrants$1.5 million to purchase that number of shares equalcertain accredited investors (the “SecuredNote Financing”). The amount available was subsequently raised to 15% of the principal amount of the Secured Note purchased by each investor, divided by the ten-day average closing price of the Company’s Common Stock. Each Secured Note accrues interest at a rate of 12% per annum, and will mature one year from the date of issuance. To date, the Company has issued an aggregate total of $855,000 Secured Notes and warrants to purchase an aggregate total of 280,265 shares of Common Stock.
November 2015 Series C Offering. On November 25, 2015, the Company Red Beard entered into a securities purchase agreement, pursuant to which Red Beard agreed to purchase up to 30,000 shares of Series C Preferred for $100 per share over the course of three separate closings between November 2015 and January 2016.$2.3 million. As additional consideration for participating in the purchase of the shares of Series C Preferred, Red BeardSecured Note Financing, investors received five-year warrants, exercisable for $0.15 per share, to purchase that number of shares of the Company's Common Stock our common stock equal to 35%50% of the shares of Common Stock issuable upon conversionprincipal amount of the shares of Series C Preferred purchased.Secured Notes purchased by the investor, divided by $0.15 per share (the “
WarrantsJanuary 2016 Note Exchange”). On January 20, 2016, the CompanyWe offered and holders ofsold Secured Notes in the aggregate principal amount of $500,000 entered into Note Exchange Agreements pursuant to which the holders agreed to convert the outstanding principal balance of their Secured Notes into an aggregate total of 4,413 shares of Series C Preferred$2,465,000 and warrantsissued Warrants to purchase up to an agate total of 1,029,4138.2 million shares of Common Stock for $0.17 common stock to participating investors.
The Secured Notes (i) bore interest at a rate of 8% per share. Neither holder received warrantsannum, (ii) had a maturity date of 1.5 years from the date of issuance, and (iii) were subject to purchase sharesa pre-payment and change in control premium of 125% of the Company’s Common Stock in connection with their respectiveprincipal amount of the Secured Notes and agreed to waive any unpaid interest accruedat the time of pre-payment or change in control, as the case may be. To secure the Company’s obligations under the Secured Notes, priorthe Company granted to participating investors a continuing security interest in substantially all of the Company’s assets pursuant to the executionterms and conditions of a Security Agreement (the “Security Agreement”). Subsequent to the Note Exchange Agreement.quarter ended March 31, 2019, on April 26, 2019, Red Beard purchased the Secured Notes, and thereafter converted all amounts due under the Secured Notes into shares of common stock, thereby terminating the Secured Notes.
April 2016 Series C Offering2018 Note Issuance.. On April 13, 2016,Subsequent to the Companythree months ended March 31, 2018, inconnection with the Settlement with Niagara, and Red Beard entered into a securities purchase agreement, pursuantin order to which Red Beard agreed to purchase an aggregate total of 50,000 shares of Series C Preferred for $100 per share overmake the course of two closings. The Company issued 25,000 shares of Series C Preferred to Red Beard on April 13, 2016, and anticipates issuing the remaining 25,00 shares of Series C Preferred on July 12, 2016. As additional consideration, investors will receive five-year warrants to purchase up to an aggregate total of approximately 33.3 million shares of Common Stock for $0.15 per share. On April 13, 2016,Cash Payment, the Company issued to Red Beard warrantsa senior secured convertible promissory note (the “Red Beard Note”) in the principal amount of $2.25 million, which was subsequently reduced to purchase approximately 16.7 million$813,887 in connection with the sale to Red Beard of all of the Company’s remainingAquaBall®inventory.The Red Beard Note accrued interest at a rate of 5% per annum. Pursuant to the terms of the Red Beard Note, Red Beard had the right, at its sole option, to convert the outstanding balance due into that number of fully paid and non-assessable shares of Common Stock.the Company’s common stock equal to the outstanding balance divided by 0.005 (the “Conversion Option”); provided, however, that the Company had the right, at its sole option, to pay all or a portion of the accrued and unpaid interest due and payable to Red Beard upon its exercise of the Conversion Option in cash. Pursuant to the terms of the Red Beard Note, such Conversion Option was not to be exercisable unless and until such time as the Company has amended its Articles of Incorporation to increase the number of authorized shares of common stock from 300.0 million to at least 2.0 billion,which occurred on November 15, 2018. On April 26, 2019, in connection with the consummation of the Share Exchange, Red Beard elected to convert all amounts due under the Red Beard Note into shares of common stock.
Food Labs Note. On September 18, 2018, the Company entered into an agreement with Food Labs, pursuant to which the Company issued to Food Labs a promissory note in the principal amount of $50,000. The Food Labs Note (i) accrued interest at a rate of 5% per annum, (ii) included an additional lender’s fee equal to $500, or 1% of the principal amount, and (iii) was scheduled to mature on December 31, 2019. As disclosed above, on April 26, 2019, in connection with the Share Exchange, Red Beard purchased the Food Labs Note from Food Labs, and thereafter converted all amounts due under the Food Labs Note into shares of common stock, resulting in the termination of the Food Labs Note.
Red Beard Line-of-Credit. On November 19, 2018, the Company entered into the Red Beard LOC with Red Beard, effective October 25, 2018, pursuant to which the Company could borrow up to $250,000 ;provided, however, that Red Beard could, in its sole discretion, decline to provide additional advances under the Red Beard LOC upon written notice the Company of its intent to decline to make such advances. Interest accrued on the outstanding principal of the Red Beard LOC at a rate of 8% per annum;provided, however, upon the occurrence of an Event of Default, as defined in the Red Beard LOC, the accrual of interest would have increased to a rate of 10% per annum. Prior to the Maturity Date, Red Beard had the right, at its sole option, to convert the Outstanding Balance due under the Red Beard LOC into that number of shares of common stock equal to the Outstanding Balance divided by $0.005, which it elected to do on April 26, 2019 in connection with the consummation of the Share Exchange.
The Share Exchange. On April 26, 2019, subsequent to the quarter ended March 31, 2019, the Company received approximately $5.6 million in net proceeds as a result of the Share Exchange.
Off-Balance Sheet Items
We had no off-balance sheet items as of DecemberMarch 31, 2015.2019.
ThereDiscussion and analysis of our financial condition and results of operations are based upon financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expenses, and related disclosure of contingent assets and liabilities. On an on-going basis, we evaluate our estimates; including those related to collection of receivables, inventory obsolescence, sales returns and non-monetary transactions such as stock and stock options issued for services. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions. We believe there have been no disagreements withchanges to our independent registered publiccritical accounting firm in regardspolicies subsequent to accounting and financial disclosure.the filing of our Annual Report on Form 10-K for the year ended December 31, 2018.
DIREDIRECTORS,CTORS AND EXECUTIVE OFFICERS PROMOTERS AND CONTROL PERSONS
Directors and Executive Officers
The following sets forth certain information regarding each of our directors and executive officers:officers as of the date of this prospectus.
| Name | | Age | | Position |
Kevin Sherman
Brandon Stump(1) | | 33 | | Chief Executive Officer and Director Chairman(Principal Executive Officer) |
Daniel Kerker
David Allen(2) | | 64 | | Chief Financial Officer and Secretary(Principal Financial Officer) |
43
Ryan Stump(3) | | | | Chief FinancialOperating Officer Treasurer and SecretaryDirector |
Robert Van Boerum
Mitchell Brantley III(4) | | 57 | | Chief Marketing Officer |
| | | | Chief OperationsInformation Officer |
| Scot Cohen | | 50 | | Director |
Ramona Cappello
Keith Stump(6) | | 58 | | |
| | | | |
| | | | |
Directors hold office until| (1) | Mr. Stump was appointed to serve as the Company’s Chief Executive Officer and as a director on the Board on April 26, 2019 in connection with the Share Exchange, effective immediately following Mr. Van Boerum’s resignation as Principal Executive Officer. The Company’s Board appointed Brandon Stump as Chairman on May 8, 2019. |
| (2) | Mr. Allen was appointed to serve as the Company’s Chief Financial Officer on April 26, 2019 in connection with the Share Exchange, effective immediately following Mr. Van Boerum’s resignation as Principal Financial Officer. |
| (3) | Mr. Stump was appointed to serve as the Company’s Chief Operating Officer and as a director on the Board on April 26, 2019 in connection with the Share Exchange. |
| (4) | Mr. Brantley was appointed to serve as the Company’s Chief Marketing Officer on May 8, 2019. |
| (5) | Mr. Mirkovich was appointed to serve as the Company’s Chief Information Officer on May 20, 2019. |
| (6) | Mr. Stump was appointed to the Company's Board of Directors on June 7, 2019.
|
Brandon Stump and Ryan Stump are brothers, and Keith Stump is their father. Other than with the next annual meetingrespect to the Stumps, there are no familial relationships between any of stockholders following their election unless they resign or are removed as provided in the bylaws. OurCompany’s executive officers serve at the discretion of our Board of Directors.and directors listed above.
The following biographical information regarding the foregoing directors and officers of the Company is a summary of our executive officers’ and directors’ business experience.presented below:
Brandon Stump, Chief Executive OfficersOfficer and Chairman.Mr. Stump was appointed as Chief Executive Officer of the Company on April 26, 2019 in connection with the Share Exchange. Mr. Stump is a co-founder of Charlie’s, and has served as the Chief Executive Officer of Charlie’s since its inception in 2014. Prior to co-founding Charlie’s, Mr. Stump co-founded his first business, the Ohio House in 2011, with his brother Ryan Stump. Since then, he has gone on to co-found both The Chadwick House and Buckeye Recovery Network, both established in 2017, as well as The Mend California, established in 2018. These programs provide a continuum of care and services to men and women from the country promoting emotional, physical and spiritual development.
As a co-founder of Charlie’s, the Board of Directors believes that Mr. Stump’s substantial entrepreneurial, marketing, sales and industry experience provide the Board with valuable expertise that will assist the Company in continuing to grow its revenue and to enter into new markets for its products.
Kevin Sherman,David Allen, Chief Financial Officer and Secretary.Mr. Allen was appointed as the Company’s Chief Financial Officer on April 26, 2019, upon consummation of the Share Exchange. Mr. Allen brings over 22 years of experience as the Chief Financial Officer of public companies. From September 2018 to May 2019, Mr. Allen served as Chief Financial Officer of Iconic Brands, Inc. (OTCQB: ICNB). Prior to that, from December 2014 to January 2018, Mr. Allen served as the Chief Financial Officer of WPCS International, Inc., a design-build engineering firm focused on the deployment of wireless networks and related services. WPCS International was listed on Nasdaq, and Mr. Allen oversaw its financial reporting obligations and SEC compliance. From 2004 to 2017, Mr. Allen served as Chief Financial Officer of Bailey’s Express, Inc., a privately held trucking corporation, which filed for Chapter 11 bankruptcy in July 2017. Mr. Allen currently serves as the Chapter 11 Plan Administrator for the bankruptcy case. From June 2006 to June 2013, Mr. Allen served as the Chief Financial Officer and Executive Vice President of Administration at Converted Organics, Inc., a company organized to convert food waste into organic fertilizer. At Converted Organics, he was responsible for SEC reporting, audit, insurance and taxes. In June 2019, Mr. Allen was appointed to the Board of Directors and serves as audit committee chairman of MariMed, Inc. (OTC:MRMD). Mr. Allen is currently an Assistant Professor of Accounting at Southern Connecticut State University, a position he has held since 2017, and for the 12 years prior to that he was an Adjunct Professor of Accounting at SCSU and Western Connecticut State University. Mr. Allen is a licensed CPA and holds a Bachelor’s Degree in Accounting and a Master’s Degree in Taxation from Bentley College.
Ryan Stump, Chief Operating Officer and Director. Mr. Sherman, the Company's Chief Executive Officer, served as the Company's Chief Marketing Officer, managing the brand development of AquaBall(TM) Naturally Flavored Water since joining the Company in October 2012. Mr. Sherman joined the Company’s board of directors in September 2015,Stump was appointed as interim Chief Executive Officer in December 2015 and agreed to serve as the Company’s Chief ExecutiveMarketing Officer on April 26, 2019 in April 2016. Prior to joining True Drinks,connection with the Share Exchange. Mr. Sherman was the Vice President Strategy and Network Development and President of Retail for Bazi, Inc. He was instrumental in the development of Bazi’s All-Natural formula and spearheaded the concept of all-natural energy. Prior to Bazi, Mr. ShermanStump has served as the Senior Manager of Network Development of Product Partners LLC from May 2008 to May 2009, Chief Operating Officer of Hand & AssociatesCharlie’s since 2014, during which time he has been responsible for all global operations of Charlie’s. Prior to joining Charlie’s, Mr. Stump worked as an Associate Territory Manager and then as a Territory Manager for ConMed, a medical sales device company, from January 20082010 to May 2008,2013. Mr. Stump also co-founded and continues to be engaged with multiple companies, including The Ohio House since 2011, the Buckeye Recovery Network since 2017, and The Mend California since 2018. Mr. Stump earned a B.S. and B.A. in Sports Marketing and Marketing from Duquesne University.
The Board of Directors believes that Mr. Stump’s experience operating high growth companies, as well as entrepreneurial experience, will be valuable to the Board as it manages the Company’s anticipated continued growth.
Mitchell Brantley III, Chief Marketing Officer.Mr. Brantley was appointed as the director of developmentCompany’s Chief Marketing Officer on May 8, 2019. Mr. Brantley currently serves as an Advisor to Spudsy, a privately held company focused on developing and principal of Holy Innocents School from August 2007 to December 2007. Mr. Shermanselling certain healthy snacks, where he also served as the principal of Saints Peter and Paul SchoolPresident from January 2004August 2018 to August 2007. Mr. Sherman holds a B.A. from Gordon College, and a M.A. from Loyola Marymount University.
Daniel Kerker, Chief Financial Officer. Mr. Kerker is a professional with over 15 years of experience in finance and accounting in both private and public entities. He spent seven years as Director of Finance at Anheuser-Busch Sales of Los Angeles, an Anheuser-Busch-owned distributor with over $200 million in annual sales, leaving in 2010.December 2018. Prior to joining True Drinks,Spudsy in August 2018, Mr. Brantley served as Interim President for Goldthreads Herbs, a company focused on the development and sale of plant-based tonics, from March 2018 to July 2018. In addition, starting in November 2017, Mr. Brantley worked as a consultant to companies in the fast moving consumer goods space, providing strategic and marketing advice. From April 2013 until November 2017, Mr. Brantley served as the General Manager of BioNutritonal Research Group, Inc., – Power Crunch, a producer of smart nutrition bars, drinks and powders. From September 2011 until April 2013, Mr. Kerker spent two years workingBrantley served as interim CFOVice President of Coast Brands, LLC, which provided brand representation and secured regional and national distribution for Environmental Packaging Technologiesunderdeveloped and emerging beverage and snack brands. Mr. Brantley has also held leadership positions for distributors of Quaker Oats, Cadbury Schweppes and Snapple brand products. Mr. Brantley holds a B.S. in Houston, Texas,Business and Regeneca, Inc.Marketing from California State University, Fullerton.
Adam Mirkovich, Chief Information Officer. Mr. Mirkovich was appointed as the Company’s Chief Information Officer on May 20, 2019. Mr. Mirkovich has over a decade of experience managing supply chains for consumer products. Mr. Mirkovich has served as an independent management consultant specializing in Irvine, California.building and optimizing value chains for startups and growth stage companies in the beverage, nicotine vape, and nutritional supplements industries since 2013. Prior to joining the Company, Mr. Kerker becameMirkovich served as the Chief FinancialOperating Officer of True Drinks on March 1, 2012.Orchid Ventures, Inc. (CSE:ORCD), a multi-state premium cannabis vape company, from September 2018 to April 2019. From December 2014 to February 2016, Mr. KerkerMirkovich served as the Director of Supply Chain and Operations at Space Jam Juice, LLC, a distributor of premium vapor products. From November 2010 to April 2013, Mr. Mirkovich served as the Product Lifecycle Management (“PLM”) Program Manager for Niagara Bottling, LLC, a leading bottled water manufacturer. While there, he led the product revision, introduction, and discontinuance practices for customers’ private labeled water, flavored, and carbonated beverages. Prior to his role in PLM Management, Mr. Mirkovich served as a member of the Supply Chain Logistics team at Niagara Bottling, providing strategic support of company expansion activities and tactical support of purchasing, production planning, and multi-region logistics in North American operations. Mr. Mirkovich earned a Bachelor of Science in Finance from California State University, Northridge and an MBA in Finance from UCLA’s Anderson School of Management, where he was a Harold M. Williams Fellow for graduating at the top of his class and won the J. Fred Preston Award for Achievement in Finance.
Robert Van Boerum, Chief Operations Officer. Mr. Van Boerum was appointed to serve as the Company’s Chief Operations Officer in September, 2015. Mr. Van Boerum has been an employee of the Company since 2012, and has handled a wide range of responsibilities, including marketing, operations, and information technology. Prior to his time with the Company, Mr. Van Boerum served Chief Information Officer for Regeneca International, Inc. from 2011 to 2012, and as Vice President of Corporate Strategy for AL International (JCOF) from 2009 to 2011. Mr. Van Boerum holds a B.S. in Management Information Systems form the University of Nevada- Las Vegas, and a MBA from San Diego State University.
Board of Directors
Ramona Cappello, Chairman. Ms. Cappello was appointed to the Board in July 2015 and as Chairman of the Board in November 2015. Ms. Cappello is currently the Chief Executive Officer Sun Harvest Salt, LLC, a company she founded in 2014. Prior to Sun Harvest Salt, Ms. Cappello served as Chief Executive Officer and co-founder of Corazonas Foods from 2006 until the sale of Corazonas Foods in 2012, departing in 2013 at the end of her contract. Ms. Cappello was also a senior executive with Mauna Loa Macadamia Nut Company until its sale to Hershey Foods, and has served in various positions for other food and beverage companies including Nestle, Celestial Seasonings and Kendall-Jackson Wineries. In addition to her responsibilities with Sun Harvest Salt, Ms. Cappello has served on the University of Southern California Board of Trustees since 2014, is a member of the USC Associates and Marshall Partners, and serves on the board of Catholic Big Brothers and Big Sisters of Los Angeles. Additionally, she currently serves on the Board of Directors for Nielsen Massey Vanillas, Inc. Ms. Cappello holds a bachelor’s degree in businessBusiness Administration and Economics from the University of Southern California Marshall School of Business, where she graduated a class valedictorian.Chapman University.
The Board of Directors believes Ms. Cappello’s experience in executive roles with consumer products companies and her experience in corporate governance will provide the Board with invaluable insight and guidance as the Company continues to expand the sales of the AquaBall(TM) Naturally Flavored Water to both existing and new retail accounts.
Scot Cohen, Director.Mr. Cohen was appointed to the Board in March 2013 and is the Founder and Managing Partner of V3 Capital Partners, a private investment firm focused on early-stage companies primarily in the consumer products industry, and Co-Manager of Red Fortune Fund, a privateaprivate equity fund based in Hong Kong. Mr. Cohen also is the Founder of Petro River Oil, LLC and Chairman of Petro River Oil CorpCorp. (OTCBB: PTRC), a publicly traded oil and gas producer with assets in Kansas and Oklahoma, and Petro Spring, a global oil and gas technology solutions provider. Prior to creating V3 Capital Partners, Mr. Cohen was the Founder and Managing Partner at Iroquois Capital Opportunity Fund, a special situations private equity investment fund, and a Co-Founder of Iroquois Capital, a hedge fund with investments in small and micro-cap private and public companies. Mr. Cohen currently serves as a director on the Board of Directors of Wrap Technologies, Inc. (NASDAQ: WRTC), and is active in philanthropic activities with numerous charities including the Jewish Enrichment Council and is a Founder and the Chairman of the National Foundation for Veteran Redeployment, a 501(c)3 non-profit organization whose mission is to help unemployed veterans prepare for and enter new careers in the oil and gas industry.Council. Mr. Cohen holdsreceived a Bachelor of Science degree from Ohio University in 1991.
The Board of Directors believes Mr. Cohen’s success with multiple private investment firms, his extensive contacts within the investment community, and his financial expertise will assist the Company’s efforts to raise capitalexpand and to fund the continued implementation of the Company’simplement its business plan.
Neil LeVecke, DirectorKeith Stump, Director.. Mr. LeVecke isStump has over 35 years of sales and management experience. He joined Charlie’s in January 2018 as a Strategic Advisor, where he has predominantly focused on sales, marketing and scaling the business, including through organizational alignments, process improvement, leadership/management training and development. Prior to joining Charlie’s, Mr. Stump served as a partner and Vice President of LeVecke Corporation, a wholesale distributorSales in Blue Technologies, Inc., an office technology and bottlerManaged IT Service provider headquartered in Cleveland, Ohio, which he co-founded in 1995. While at Blue Technologies, Inc., Mr. Stump was responsible for the sales performance of spiritsthe company’s five divisions, along with operational oversight. His duties included P&L responsibility for all product divisions, leadership training and wine products. Representing a third generationdevelopment, new product and service offerings, enterprise account selling, amongst other duties. Mr. Stump was instrumental in helping Blue Technologies, Inc. become one of the Top 10 Konica Minolta providers in the family business, he has worked every positioncountry, as well as one of the Top 75 Office Technologies Dealers in the company since startingUnited States. Mr. Stump serves on several not-for-profit boards, which serve those in 1993. Mr. LeVecke graduatedrecovery from Loyola Marymount University in 1990.addiction and developmental disabilities.
The Board of Directors believes that Mr. LeVecke’s 22 years in the wholesale beverage distributingStump’s sales, marketing, management experience and bottling industry experience, as well as entrepreneurial experience, will providebe valuable to the Board with invaluable insight and guidance as it manages the Company continues to expand the sales of the AquaBall(TM) Naturally Flavored Water to both existing and new retail accounts.Company’s anticipated continued growth.
Kevin Sherman, Director. See above.
The Board of Directors believes Mr. Sherman’s long-standing service to the Company and its predecessor, Bazi, Inc., provide the Board with the guidance necessary to continue to expand the Company’s distribution networks, and promote brand awareness of AquaBall(TM) Naturally Flavored Water.
ThereOther than as described above, there have been no events under any bankruptcy act, no criminal proceedings and no judgments or injunctions material to the evaluation of the ability and integrity of any director or nominee set forth above during the past ten years.
BOARD OF DIRECTORS Subsequent to the year ended December 31, 2018, and effective April 26, 2019 upon consummation of the Share Exchange, Ms. Cappello and Messrs. Greco and LeVecke (collectively, the “Former Directors”) resigned from their positions as directors on the Company’s Board, leaving Messrs. Sherman and Cohen as the remaining directors. In addition, Ryan and Brandon Stump were appointed as new directors immediately after the resignations of the Former Directors. Certain disclosure which follows regarding corporate governance refers to the Company’s Board and corporate governance policies and procedures prior to the resignation of the Former Directors, and does not reflect the Company’s corporate governance policies and procedures subsequent to such resignations.
Board of Directors; Attendance at Meetings
The Board held eightfour meetings and acted four times by unanimous written consent five times during the year ended December 31, 2015.2018. Each director attended at least 75% of Board meetings during the year ended December 31, 2015.2018. We have no formal policy with respect to the attendance of Board members at annual meetings of shareholders, but encourage all incumbent directors and director nominees to attend each annual meeting of shareholders.
Independent Directors
ThePrior to the resignations of the Former Directors, the Board believes that a majority of its members should be independent directors. The Board has determined that other thanMs. Cappello and Mr. Sherman, all of its current directors areLeVecke were independent directors as defined by the rules and regulations of the NASDAQNasdaq Stock Market.
The members of the Audit Committee and Compensation Committee of the Board each meet the independence standards established by the NASDAQ Stock Market and the SEC for audit committees and compensation committees. In addition, the Board has determined that Mr. Cohen satisfies the definition of an “audit committee financial expert” under SEC rules and regulations. These designations doThis designation does not impose any duties, obligations or liabilities on Mr. Cohen that are greater than those generally imposed on them as members of the Audit Committee and the Board, and his designation as an audit committee financial expert does not affect the duties, obligations or liability of any other member of the Audit Committee or the Board.
Board Committees and Charters
TheAs of December 31, 2018, the Board hashad a standing Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee. The Board appointsappointed the members and chairpersons of these committees. The majority of the members of these committees have been determined by the Board to be independent. In addition, each member of these committees hashad been determined by the Board to be independent. Each committee hashad a written charter approved by the Board. Copies of each committee charter arewere available on the Company’s website at www.truedrinks.com/investor-relations/ and by clicking on the “Corporate Governance”“Corporate Governance” tab.
Effective April 26, 2019, as a result of the resignations of the Former Directors, the Board no longer has an active Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee. Instead, the full Board currently administers the duties of each of these committees, and will likely do so for the foreseeable future.
Audit Committee
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Members: | Mr. Scot Cohen (Chairman)
Ms. Ramona Cappello
Mr. Neil LeVecke
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Number of Meetings in 2015: | None
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Functions: | This committee assists the Board in fulfilling its legal and fiduciary obligations in matters involving the Company’s accounting, auditing, financial reporting, internal control and legal compliance functions by approving the services performed by the Company’s independent accountants and reviewing their reports regarding the Company’s accounting practices and systems of internal accounting controls. This committee is
As of December 31, 2018, the Audit Committee consisted of Messrs. Scot Cohen (Chair) and Neil LeVecke and Ms. Cappello. The Audit Committee assisted the Board in fulfilling its legal and fiduciary obligations in matters involving the Company’s accounting, auditing, financial reporting, internal control and legal compliance functions by approving the services performed by the Company’s independent accountants and reviewing their reports regarding the Company’s accounting practices and systems of internal accounting controls. The Audit Committee was responsible for the appointment, compensation, retention and oversight of the independent accountants and for ensuring that the accountants are independent of management. Following the resignation of three of the Company's independent Board members between November 2014 and March 2015, the Board temporarily suspended the Audit Committee until there were sufficient independent directors to satisfy the independence requirements for Audit Committees as determined by the NASDAQ Stock Market Rules. During this time, the responsibilities of the Audit Committee were carried out by the full Board of Directors. The Audit Committee was reinstated in November 2015, and did not meet during the year ended December 31, 2015.
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Compensation Committee
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Members: | Ms. Ramona Cappello (Chairman)
Mr. Scot Cohen
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Number of Meetings in 2015: | Three |
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Functions: | This committee determines the Company’s general compensation policies and practices. This committee also reviews and approves compensation packages for the Company’s officers and, based upon such review, recommends overall compensation packages for the officers to the Board. This committee also reviews and determines equity-based compensation for the Company’s directors, officers, employees and consultants and administersAs of December 31, 2018, the Compensation Committee consisted of Ms. Cappello (Chair) and Mr. Scot Cohen. The Compensation Committee determined the Company’s general compensation policies and practices. The Compensation Committee also reviewed and approved compensation packages for the Company’s officers and, based upon such review, recommended overall compensation packages for the officers to the Board. This committee also reviewed and determined equity-based compensation for the Company’s directors, officers, employees and consultants and administered the Company’s 2013 Stock Incentive Plan. |
Nominating and Corporate Governance Committee
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Members: | Mr. Neil LeVecke (Chairman)
Ms. Ramona Cappello
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Number of Meetings in 2015: | One
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Functions: | This committee is responsible for making recommendations to the Board regarding candidates for directorships and the size and composition of the Board and for overseeing the Company’s corporate governance guidelines and reporting and making recommendations to the Board concerning corporate governance matters. |
TableAs of ContentsDecember 31, 2018, the Nominating and Corporate Governance Committee consisted of Mr. LeVecke (Chair) and Ms. Cappello
Board Leadership Structure
TheAs of December 31, 2018, the Board currently separatesseparated the roles of ChiefPrincipal Executive Officer and Chairman of the Board in recognition of the differences between the two roles. The ChiefPrincipal Executive Officer is responsible for setting the strategic direction of the Company and the day-to-day leadership and performance of the Company, while the ChairmanChair of the Board provides guidance to the ChiefPrincipal Executive Officer and sets the agenda for the Board meetings and presides over meetings of the Board. However, the Board believes it should be able to freely select the Chairman of the Board based on criteria that it deems to be in the best interest of the Company and its stockholders,stockholders.
Upon consummation of the Share Exchange, Brandon Stump was appointed as the Company’s Principal Executive Officer, and therefore one person may,shortly thereafter was appointed as Chairman of the Board. The Board felt that this was in the future, serve as bothCompany’s and its stockholder’s best interests under the circumstances due to Brandon Stump’s knowledge and experience in the vapor market and due to the fact that he is the co-founder and Chief Executive Officer and Chairman of the Board.Charlie’s.
Board Role in Risk Assessment
Management, in consultation with outside professionals, as applicable, identifies risks associated with the Company’s operations, strategies and financial statements. RiskPrior to April 26, 2019, risk assessment iswas also performed through periodic reports received by the Audit Committee from management, counsel and the Company’s independent registered public accountants relating to risk assessment and management. Audit Committee members meetmet privately in executive sessions with representatives of the Company’s independent registered public accountants.accountants during and prior to the year ended December 31, 2018. The Board also provides risk oversight through its periodic reviews of the financial and operational performance of the Company.
Code of Ethics
We have adopted a Code of Ethics that applies to all of our directors, officers and employees, a copy of which was attached as an exhibit to our Annual Report on Form 10-K, filed with the SEC on MarchApril 1, 2019.
Section 16(a) Beneficial Ownership Reporting Compliances
Section 16(a) of the Exchange Act requires our officers, directors, and persons who beneficially own more than ten percent of our common stock to file reports of ownership and changes in ownership with the SEC. Officers, directors, and greater-than-ten-percent stockholders are also required by the SEC to furnish us with copies of all Section 16(a) forms that they file.
Based solely upon a review of these forms that were furnished to us, we believe that our officers and directors timely filed all reports due under Section 16(a) during the year ended December 31, 2011.2018 except the following:
| ● | James Greco, a member of the Company’s Board of Directors, filed a Form 5 disclosing one late transaction. |
Summary Compensation Table
The following table sets forth the compensation paid to the following persons for our fiscal years ended December 31, 20152018 and 2014:2017:
| (a) | our principal executive officer; |
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| (b) | our most highly compensated executive officers who were serving as an executive officer at the end of the fiscal year ended December 31, 20152018 who had total compensation exceeding $100,000 (together, with the principal executive officer, the “Named Executive Officers”); and |
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| (c) | any additional individuals who would have been considered Named Executive Officers, but for the fact that they were not serving in such capacity at the end of our most recently completed fiscal year. |
Name and Principal Position | | Year | | Salary ($) | | | Bonus ($) | | | Stock Awards ($) | | | Option Awards ($) (1) | | | Non-Equity Incentive Plan Compensation ($) | | | All Other Compensation ($) | | | Total ($) | |
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Kevin Sherman, Chief Executive Officer, Director | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
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Daniel Kerker Chief Financial Officer | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
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Robert Van Boerum Chief Operations Officer | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
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Former Chief Executive Officer and Former Director | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Name and Principal Position | | Year | | | | | Non-Equity Incentive Plan Compensation ($) | All Other Compensation ($) | |
| | | | | | | | | | |
Robert Van Boerum (1) | | 2018 | $103,654 | $- | $- | $9,517 | $- | $- | $113,171 |
| Former Principal Executive Officer and Principal Financial Officer | | 2017 | $170,108 | $- | $- | $118,131 | $- | $- | $288,239 |
James J. Greco, (2) | | 2018 | $109,495 | $- | $- | $37,935 | $- | $- | $147,430 |
| Former Director and Former Chief Executive Officer | | 2017 | $63,462 | $- | $125,000 | $189,009 | $- | $- | $377,471 |
Kevin Sherman, (3) | | 2018 | $67,832 | $- | $- | $107,916 | $- | $- | $175,748 |
| Director and Former President and Chief Executive Officer | | 2017 | $268,621 | $- | $- | $307,140 | $- | $36,000 | $611,761 |
| (1) | DuringMr. Van Boerum was appointed to serve as the year ended December 31, 2015, all NamedCompany’s Principal Executive Officers exchanged their option awards for restricted Common Stock awards, valued at the closing priceOfficer and Principal Financial Officer effective May 15, 2018, and resigned from such positions on April 26, 2019, effective upon consummation of the Company's Common Stock atShare Exchange. Mr. Van Boerum currently provides consulting services to the timeCompany in order to aid in the transition of grant.the Company and its management as a result of the Share Exchange. |
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| (2) | Mr. LeonardJames J. Greco served as Chief Executive Officer of the Company from April 2017 to May 15, 2018, and resigned from his role as a member of the Company’s Board of Directors on April 26, 2019, effective upon consummation of the Share Exchange. |
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| (3) | Kevin Sherman served as President and Chief Marketing Officer of the Company effective January 15, 2016.through April 25, 2018. |
Employment Agreements
Kevin ShermanRobert Van Boerum. Mr. Sherman isVan Boerum was employed as the Company’s Chief Operations Officer pursuant to a two-year employment agreement, dated September 11, 2015 (the “Van Boerum Agreement”). Under the terms and conditions of the Van Boerum Agreement, Mr. Van Boerum received a base salary of $14,583.33 per month. Mr. Van Boerum was also eligible for an annual bonus equal to 30% of his salary, which bonus was to be awarded at the sole discretion of the Company’s Compensation Committee and was eligible to earn stock option compensation at the discretion of the Compensation Committee. During the year ended December 31, 2017, the Compensation Committee did not award a bonus to Mr. Van Boerum for the period through December 31, 2016.
Pursuant to its terms, the Van Boerum Agreement could be terminated for “Cause,” if Mr. Van Boerum (a) was convicted of any fraud or embezzlement, (b) after written notice, willfully breached or habitually neglected his duties and responsibilities, (c) committed acts of dishonesty, gross negligence or willful misconduct, or (d) violated any law or regulation relating to the business operations of the Company that may have a material adverse effect on the Company. If the Company terminated Mr. Van Boerum’s employment for reasons other than for Cause, the Company would have been required to pay a severance in an amount equal to six months of Mr. Van Boerum’s base salary.
Mr. Van Boerum was appointed to serve as the Company’s Principal Executive Officer and Principal Financial Officer upon Mr. Greco’s resignation, and did not enter into a new employment agreement in connection with such appointments. As stated above, Mr. Van Boerum resigned from these positions on April 26, 2019, effective upon consummation of the Share Exchange.
James J. Greco.Mr. Greco was employed as the Company’s Chief Executive Officer pursuant to an Employment Agreement, dated April 13, 2017 (the “Greco Agreement”), under which Mr. Greco was entitled to an annual base salary of $250,000, payable in accordance with the Company’s existing payroll practices beginning in October 2017. Under the terms and conditions of the Greco Agreement, Mr. Greco received: (i) a guaranteed bonus in the form of 1,302,084 shares of the Company’s restricted common stock (the “Bonus Award”), which Bonus Award vested in full on December 31, 2017; (ii) stock options to purchase up to 6,300,315 shares of the Company’s common stock, an amount equal to 2% of the Company’s issued and outstanding shares of common stock (including preferred stock on an as-converted basis), which options will vest annually over a four-year period beginning on the date of the Greco Agreement, or in full upon a Change of Control (as defined in the Greco Agreement); and (iii) stock options to purchase up to 9,450,474 shares of the Company’s common stock, vesting of which will begin in 2018 and vest annually over three years, conditioned on the Company’s achievement of certain performance goals.
Pursuant to the Greco Agreement, Mr. Greco’s employment could have been terminated for “Cause,” if Mr. Greco (a) was convicted of any fraud or embezzlement, (b) after written notice, willfully breached or habitually neglected his duties and responsibilities, (c) committed acts of dishonesty, gross negligence or willful misconduct or (d) violated any law or regulation relating to the business operations of the Company that may have had a material adverse effect on the Company. If the Company terminated Mr. Greco’s employment for reasons other than for Cause, the Company would have been required to pay a severance in an amount equal to three times Mr. Greco’s monthly base salary per year of service, capped at a maximum amount equal to Mr. Greco’s annual salary.
As stated above, Mr. Greco resigned from his position as Chief Executive Officer on May 15, 2018.
Kevin Sherman. Mr. Sherman was employed as the Company’s President pursuant to a two-year employment agreement, dated November 25, 2015 (the “Sherman Agreement”). Under the terms and conditions of the Sherman Agreement, Mr. Sherman receives: (i) a base salary of $22,917 per month, subject to certain adjustments in the event the Company achievesachieved certain monthly sales objectives (“Target Objectives”); (ii) a $3,000 per month housing allowance, subject to termination in the event the Company achievesachieved any of the Target Objectives; (iii) a ‘retention bonus’ of $100,000, of which $50,000 was paid to Mr. Sherman in November 2015 and the remaining $50,000 will be payablewas paid in NovemberMarch, 2016; and (iv) an aggregate total of approximately 2.33.8 million shares of restricted common stock, subject to certain vesting conditions (“Restricted Shares”), which Restricted Shares representrepresented approximately 3.25%1.7% of the issued and outstanding shares of the Company’s common stock, including shares of common stock issuable upon conversion of the Company’s outstanding shares of preferred stock (“Protected Intereststock.”). In
During the event the Company issues additional sharessecond half of common stock, preferred stock or other securities convertible or exercisable for common stock, the Sherman Agreement provides that2016, Mr. Sherman will be issued that numberdeferred a portion of additional Restricted Shares so thathis monthly salary equivalent to a total of $100,000 annually. The deferment began at the total numberend of Restricted Shares beneficially owned by Mr. Sherman equals the Protected Interest.
July 2016 and ended as of July 2017.
Mr. Sherman iswas also eligible for an annual bonus equal to 30% of his base salary, currently payable in restricted shares of the Company’s common stock, which bonus willwas to be awarded at the sole discretion of the Company’s Compensation Committee. During the year ended December 31, 2015,2017, the Compensation Committee awardeddid not award a $53,300 bonus to Mr. Sherman for the period through December 31, 2014, which bonus was paid in 532,995 shares of common stock.2016.
In addition to the annual bonus, in the event of a change in control transaction, as defined in the Sherman Employment Agreement, Mr. Sherman willwas to be entitled to a bonus equal to 3.25% of the value of the transaction resulting in a change in control, minus the fair market value of all Restricted Shares issued to Mr. Sherman prior to the date of the change in control transaction.
Pursuant to the Sherman Agreement, Mr. Sherman’s employment maycould be terminated for “Cause”,“Cause,” if Mr. Sherman (a) iswas convicted of any fraud or embezzlement, (b) after written notice, willfully breachesbreached or habitually neglectsneglected his duties and responsibilities, (c) commitscommitted acts of dishonesty, gross negligence or willful misconduct or (d) violatesviolated any law or regulation relating to the business operations of the Company that may have had a material adverse effect on the Company. If the Company terminatesterminated Mr. Sherman’s employment for reasons other than for Cause, the Company shallwould have been required to pay a severance in an amount equal to six months of Mr. Sherman’s base salary.
Prior November 2015,As stated above, Mr. Sherman was employed pursuant to an employment agreement which first took effectresigned from his position as President and Chief Marketing Officer on October 1, 2014. Mr. Sherman received a base salary of $14,583 per month, and was eligible for an annual bonus and stock option compensation.April 25, 2018.
Daniel Kerker. Mr. Kerker is employed as the Company’s Chief Financial Officer pursuant to an Employment Agreement, dated March 1, 2012 (the “Kerker Agreement”) and effective October 15, 2012. The term of the Kerker Agreement is for a period of three years, which shall extend automatically for successive one-year periods unless the Kerker Agreement is terminated by either party. Mr. Kerker receives a base salary of $12,500 per month until the earlier of September 1, 2012 or the Company achieving $1,000,000 in monthly gross sales, in which case the base salary shall be increased (a) to $15,000 per month, or (b) if the Company achieves $2,000,000 in monthly gross sales, to $16,250 per month. Mr. Kerker is also eligible to receive an annual bonus as approved by the Board and shall be entitled to earn stock option compensation to acquire a total of 430,043 shares of the Company’s common stock over the term of the agreement. During the year ended December 31, 2015, the Compensation Committee awarded a $63,960 bonus to Mr. Kerker for the period through December 31, 2014, which bonus was paid in 639,594 shares of common stock.
Mr. Kerker’s employment may be terminated for “Cause”, if Mr. Kerker (a) is convicted of any fraud or embezzlement, (b) after written notice, willfully breaches or habitually neglects his duties and responsibilities, (c) commits acts of dishonesty, gross negligence or willful misconduct or (d) violates any law or regulation relating to the business operations of the Company that may have a material adverse effect on the Company. If the Company terminates Mr. Kerker’s employment for reasons other than for Cause, the Company shall pay a severance in an amount equal to six months of Mr. Kerker’s base salary.
Robert Van Boerum. Mr. Van Boerum is employed as the Company’s Chief Operations Officer pursuant to a two-year employment agreement, dated September 11, 2015 (the “Van Boerum Agreement”). Under the terms and conditions of the Van Boerum Agreement, Mr. Van Boerum receives a base salary of $14,583.33 per month. Mr. Van Boerum is also be eligible for an annual bonus equal to 30% of his salary, which bonus will be awarded at the sole discretion of the Company’s Compensation Committee, and is eligible to earn stock option compensation at the discretion of the Compensation Committee. During the year ended December 31, 2015, the Compensation Committee awarded a $38,433 bonus to Mr. Van Boerum for the period through December 31, 2014.
The Van Boerum Agreement may be terminated for “Cause”, if Mr. Van Boerum (a) is convicted of any fraud or embezzlement, (b) after written notice, willfully breaches or habitually neglects his duties and responsibilities, (c) commits acts of dishonesty, gross negligence or willful misconduct or (d) violates any law or regulation relating to the business operations of the Company that may have a material adverse effect on the Company. If the Company terminates Mr. Van Boerum’s employment for reasons other than for Cause, the Company shall pay a severance in an amount equal to six months of Mr. Van Boerum’s base salary.
Other than as set forth above, there arewere no arrangements or understandings between our Named Executive Officers and any other person pursuant to which they were appointed as officers.officers as of December 31, 2018. None of our Named Executive Officers hasas of December 31, 2018 had a family relationship that is required to be disclosed under Item 401(d) of Regulation S-K.
Director Compensation
PursuantIn previous years, pursuant to the Company’s Director Compensation Plan, non-employee directors (“Outside Directors”) shall receivereceived (a) a $30,000 annual retainer, payable in equal quarterly installments in either cash or shares of common stock, (b) additional committee retainers as determined by the Board, and (c) reimbursement for expenses related to Board meeting attendance and committee participation. Directors that arewere also employees of the Company dodid not receive additional compensation for serving on the Board. In September 2017, non-employee directors were issued options as payment for outstanding board fees. Since that time, the Company is no longer accruing expense pursuant to the Director Compensation Plan, and has not yet adopted a new Director Compensation Plan since the consummation of the Share Exchange.
The following table discloses certain information concerning the compensation of the Company’s non-employee directors for the year ended December 31, 2015:2018:
| Name | | Fees earned or Paid in Cash ($) | | Option Awards ($) | | Stock Awards ($) | | Total ($) | | Fees earned or Paid in Cash ($) | | | |
| | | | | | | | | | | | | | $- |
| | | | | | | | | | | | | | $- |
| | | | | | | | | | | | | | $- | $21,344 | $- | $21,344 |
| | | | | | | | | | | | | | |
| | | | | | | | | | | | | | |
James Greco (1) | | $- |
| Kevin Sherman | | $- |
| (1) | As stated above, Ms. Cappello was appointed toand Messrs. LeVecke and Greco resigned from their positions as member of the Company’s Board on April 26, 2019, effective upon consummation of Directors, effective July 31, 2015.the Share Exchange. |
| (2) | Mr. LeVeckeDuring the year ended December 31, 2018, Scot Cohen was appointedgranted options to the Company’s Boardpurchase 7,114,826 shares of Directors common stock, which options had a value on February 18, 2015. |
(3) | Messrs. Wistreich and Imbrogno each resigned fromgrant date of $21,344, as a Director of the Board of Directors on March 10, 2015.Directors. |
Outstanding Equity Awards as of December 31, 20152018
The following table sets forth all equity awards held by our Named Executive Officers at December 31, 2015.2018:
| | | Stock Awards |
| Name | | Number of shares or units of stock that have not vested (#) | | | Market Value of shares or units of stock that have not vested ($) | | | Equity incentive plan awards: Number of unearned shares, units or other rights that have not vested (#) | | | Equity incentive plan awards: Market or Payout value of unearned shares, units or other rights that have not vested ($) | |
| | | | | | | | | | | | | |
| Kevin Sherman | | | 2,398,275 | (1) | | $ | 290,191 | | | | - | | | $ | - | |
| Daniel Kerker | | | 2,398,275 | (1) | | $ | 290,191 | | | | - | | | $ | - | |
| Robert Van Boerum | | | 1,923,706 | (1) | | $ | 232,768 | | | | - | | | $ | - | |
| Lance Leonard | | | 3,672,268 | (2) | | $ | 444,344 | | | | - | | | $ | - | |
| |
| Name | Number of shares or units of stock that have not vested (#) | Market Value of shares or units of stock that have not vested ($) | Equity incentive plan awards: Number of unearned shares, units or other rights that have not vested (#) | Equity incentive plan awards: Market or Payout value of unearned shares, units or other rights that have not vested ($) |
| Robert Van Boerum | 4,329,219(1) | $- | - | $- |
| James J. Greco | 12,644,921(2) | $- | - | $- |
| Kevin Sherman | 35,971,988(3) | $- | - | $- |
| (1) | Non-vested shares are scheduled to vest equally in four annual installments, beginningas follows: 818,925 on September 30, 2016.2019, 338,000 on September 30, 2020, and 3,172,294 upon a change of control transaction. Mr. Van Boerum was appointed to serve as the Company’s Principal Executive Officer and Principal Financial Officer effective May 15, 2018, following Mr. Greco’s resignation as Chief Executive Officer. Mr. Van Boerum resigned from his position as Principal Executive Officer and Principal Financial Officer on April 26, 2019. |
| | |
| (2) | Non-vested shares vest as follows: 12,644,921 upon a change of control transaction. Mr. LeonardGreco resigned from his position as Chief Executive Officer on May 15, 2018. |
| |
| (3) | Non-vested shares vest as follows: 35,971,988 upon a change of control transaction. Mr. Sherman resigned from his position as President and Chief Marketing Officer on April 25, 2018 but continues to serve on the Company effective January 15, 2016. Upon resignation, Mr. Leonard forfeited all non-vested restricted stock awards.Company’s Board of Directors. |
Cancellation of Stock Option Exercises and Cancellation of Stock Options
Between June and July 2015, the Company and each of the holders of all outstanding options to purchase shares of the Company’s Common Stock agreed to cancel and forfeit their options, such that, as of July 10, 2015, no options to purchase shares of the Company’s Common Stock were outstanding. There were no options exercised by the Named Executive Officers or Directors in fiscal 2015 before these cancellations.
On August 6, 2015, the Company’s board of directors authorized an issuance of an aggregate total of 19,491,375 shares of restricted Common Stock pursuant to the terms and conditions of the Company’s 2013 Stock Incentive Plan to certain employees, including those that agreed to cancel previously issued stock options.
The cancellation of the stock options and issuance of restricted stock was accounted for as a modification in accordance with the provisions of ASC Topic 718 Compensation – Stock Compensation. The Company recorded approximately $1,055,000 of stock based compensation in connection with the transaction.
Equity Compensation Plan Information
The following table includes information as of December 31, 20152018 for our equity compensation plans:
Plan category | | Number of securities to be issued upon exercise of outstanding options, warrants and rights | | | Weighted-average exercise price of outstanding options, warrants and rights | | | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) | |
| | (a) | | | (b) | | | (c) | |
Equity compensation plans approved by security holders | | | - | | | $ | - | | | | 508,625 | |
| | | | | | | | | | | | |
Equity compensation plans not approved by security holders | | | - | | | | - | | | | - | |
| | | | | | | | | | | | |
Total | | | - | | | $ | - | | | | 508,625 | |
| Plan category | Number of securities to be issued upon exercise of outstanding options, warrants and rights | Weighted-average exercise price of outstanding options, warrants and rights | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) |
| | | | |
| Equity compensation plans approved by stockholders | 20,000,000 | $0.030 | - |
| | | | |
| Equity compensation plans not approved by stockholders | 71,759,826 | $0.015 | - |
| | | | |
| Total | 91,759,826 | $0.018 | - |
2013 Stock Incentive Plan. The 2013 Stock Incentive Plan (the “2013 Plan”) was adopted by the Company’s Board of Directors on December 31, 2013. The 2013 Plan reservesinitially reserved for issuance 20.0 million shares of common stock for issuance to all employees (including, without limitation, officers and directors who are also employees) of the Company or any subsidiary of the Company (each a “Subsidiary”), any non-employee director, consultants and independent contractors of the Company or any Subsidiary, and any joint venture partners (including, without limitation, officers, directors and partners thereof) of the Company or any Subsidiary. Awards under the 2013 Plan may be made in the form of: (i) incentive stock options within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended, once the 2013 Plan has been approved by a majority of the Company’s stockholders; (ii) stock options that do not qualify as incentive stock options; and/or (iii) awards of shares that are subject to certain restrictions specified in the 2013 Plan. On May 8, 2019, the Board of Directors authorized increasing the number of shares reserved for issuance under the plan to a total of 65.0 million shares of common stock and to ratify the issuance of any and all awards made prior to that date, subject to stockholder approval.
Options to purchase an aggregate total of 11,999,998 shares of common stock were issued under the 2013 Plan during the year ended December 31, 2014, which options were subsequently canceled on July 1, 2015. During the year ended December 31, 2015,2018, the Company did not issue any restricted stock awards pursuant to the 2013 Plan; however, the Company issued an aggregate total of 15,389,451 restricted34,652,903 stock option awards pursuant to the 2013 Plan during the 2018 fiscal year.
Subsequent to the year ended December 31, 2018, on May 16, 2019, the Board approved an amendment to all of the outstanding stock options held by Mr. Sherman that were issued under the 2013 Plan, in the aggregate amount of 35,971,988, to extend the expiration date of such stock options by five years.
2019 Omnibus Incentive Plan. The 2019 Omnibus Incentive Plan (the “2019 Plan”) was adopted by the Company’s Board of Directors on May 8, 2019, subject to stockholder approval and registration or qualification of the shares subject to the 2019 Plan with the federal and state securities authorities. The 2019 Plan reserved for issuance ___ billion shares of common stock for issuance to all employees (including, without limitation, officers and directors who are also employees) of the Company or any Subsidiary, any non-employee director, consultants and independent contractors of the Company or any Subsidiary, and any joint venture partners (including, without limitation, officers, directors and partners thereof) of the Company or any Subsidiary. Awards under the 2019 Plan may be made in the form of: (i) incentive stock options within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended, once the 2019 Plan has been approved by a majority of the Company’s stockholders; (ii) stock options that do not qualify as incentive stock options; and/or (iii) awards of shares that are subject to certain restrictions specified in the 2019 Plan.
Post-Employment Compensation, Pension Benefits, Nonqualified Deferred Compensation
There were no post-employment compensation, pension or nonqualified deferred compensation benefits earned by the Named Executive Officers during the year ended December 31, 2015.2018.
None.
We are filing the registration statement of which this prospectus forms a part to permit holders of the shares of our common stock described in the section entitled “Selling Stockholders” to resell such shares. We will not receive any proceeds from the resale of any shares offered by this prospectus by the selling stockholders.
DETERMINATION OF OFFERING PRICE The selling stockholders will sell at prevailing market prices or privately negotiated prices.
MARKSECURITYET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS Our common stock is traded on the OTC Pink Marketplace under the symbol “CHUC.” Prior to July 3, 2019, our common stock was traded on the OTC Pink Marketplace under the symbol “TRUU.”
The following table sets forth high and low sales prices for our common stock for the calendar quarters indicated as reported by the OTC Pink Marketplace. These prices represent quotations between dealers without adjustment for retail markup, markdown, or commission and may not represent actual transactions.
| | | |
| 2019 | | |
| First Quarter ended March 31, 2019 | $0.01 | $0.002 |
| Second Quarter ended June 30, 2019 | $0.08 | $0.004 |
| Third Quarter ended September 30, 2019 (through July 9, 2019) | $0.04 | $0.01 |
| | | |
| 2018 | | |
| First Quarter ended March 31, 2018 | $0.03 | $0.01 |
| Second Quarter ended June 30, 2018 | $0.03 | $0.01 |
| Third Quarter ended September 30, 2018 | $0.01 | $0.01 |
| Fourth Quarter ended December 31, 2018 | $0.01 | $0.01 |
| | | |
| 2017 | | |
| First Quarter ended March 31, 2017 | $0.13 | $0.07 |
| Second Quarter ended June 30, 2017 | $0.17 | $0.08 |
| Third Quarter ended September 30, 2017 | $0.15 | $0.07 |
| Fourth Quarter ended December 31, 2017 | $0.07 | $0.01 |
Holders
AtJuly 9, 2019, there were18,935,746,396shares of our common stock outstanding, and approximately 437 stockholders of record. At July 9, 2019, there were 206,249 shares of our Series A Preferred outstanding held by120stockholders of record.
Transfer Agent
Our Transfer Agent and Registrar for our common stock is Corporate Stock Transfer located in Denver, Colorado.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENTAND RELATED STOCKHOLDER MATTERS
As of May 3, 2016, we had threeThe Company currently has two classes of voting stocksecurities issued and outstanding: (i) Common Stock; common stock and (ii) Series B Preferred; and (iii) Series CA Preferred. The following tables set forth information regarding sharescontain the beneficial ownership of Series B Preferred, Series C Preferred and Common Stock beneficiallyour outstanding voting securities owned as of May 3, 2016 by:
| | (i) | Each of our officers and directors; |
| | (ii) | All officer and directors as a group; and |
| | (iii) | Each person known by us to beneficially own five percent or more of the outstanding shares of our Series BA Preferred Series C Preferred and Common Stock. Percent ownership is calculated based on 1,317,870 shares of Series B Preferred, 88,266 shares of Series C Preferred and 112,049,107 shares Common Stock outstanding at May 3, 2016. common stock. |
Percent ownership is calculated based on 206,249 shares of Series A Preferred and 18,935,746,396 shares common stock outstanding as of July 9, 2019.
For purposes of this section, beneficial ownership is determined in accordance with the rules of the SEC. In computing the number of shares beneficially owned by a person and the percentage of ownership by that person in each table below, shares of voting common stock subject to rights held by that person to acquire such shares currently or within 60 days are deemed outstanding. Such shares are not deemed outstanding for the purpose of computing the percentage of ownership by any other person.
Beneficial Ownership of Series BA Preferred
Name and Address (1) | | Series B Convertible Preferred Stock(2)(3) | | | % Ownership of Class (4) | |
Scot Cohen (5) | | | 135,000 | | | | 10.24 | % |
Total Officers and Directors (1) | | | 135,000 | | | | 10.24 | % |
| | | | | | | | | |
First Bank & Trust as custodian of Ronald L. Chez IRA 820 Church Street Evanston Illinois, 60201 | | | 425,000 | | | | 32.25 | % |
Wolfson Equities LLC 1 State Street Plaza, 29th Floor New York, NY 10004 | | | 187,500 | | | | 9.01 | % |
Joe Kolling 58 Beacon Bay Newport Beach, CA 92660 | | | 155,556 | | | | 14.23 | % |
V3 Capital Partners LLC 20 East 20th Street, Apt. 6 New York, NY 10003 | | | 118,750 | | | | 11.80 | % |
Name and Address (1) | Series A Convertible Preferred Stock | % Ownership of Class |
| Executive Officers and Directors |
| Scot Cohen | | |
| Director | 3,750 | 1.8% |
| Keith Stump | | |
| Director | 3,000 | 1.5% |
| Total Officers and Directors | 6,750 | 3.3% |
| Greater Than 5% Stockholders |
Red Beard Holdings, LLC (2) | | |
| 17595 Harvard Avenue, Suite C511 | | |
| Irvine, California 92614 | 33,750 | 16.4% |
Iroquois Capital Management, LLC (3) | | |
| 125 Park Avenue, 25th Floor | | |
| New York, New York 10017 | 32,813 | 15.9% |
Hudson Bay Capital Management, LP (4) | | |
| 777 Third Avenue, 30th Floor | | |
| New York, New York 10017 | 11,250 | 5.5% |
SDS Capital Partners II, LLC (5) | | |
| 500 Summer Street, Suite 405 | | |
| Stamford, Connecticut 06901 | 11,250 | 5.5% |
Altium Growth Fund, LP (6) | | |
| 551 Fifth Avenue, 19th Floor | | |
| New York, New York 10176 | 11,025 | 5.3% |
| (1) | Each of the Company’s officers and directors who dowill not hold shares of Series BA Preferred were excluded from this table. Unless otherwise indicated, the address for each stockholder is 18662 MacArthur Blvd., Suite 110, Irvine, CA 92612. 1007 Brioso Drive, Costa Mesa, California 92627. |
| |
| (2) | Subject toBased on Company records as of July 9, 2019. Mr. Smith is a manager of Red Beard, and has dispositive power and voting power over the limitations in the Certificate of Designation, each share of Series B Preferred is convertible into that number of shares of Common Stock equal to the Stated Value, divided by the Conversion Price, as defined in the Certificate of Designation. As of December 31, 2015, the Conversion Price was $0.25.securities reported herein.
|
| (3) | Based on Company records and ownership information from Schedule 13G filed by Iroquois Capital Management, LLC (“Iroquois Capital Management”), Mr. Richard Abbe and Ms. Kimberly Page on May 24, 2019. Mr. Abbe shares authority and responsibility for the investments made on behalf of Iroquois Master Fund with Ms. Kimberly Page, each of whom is a director of the Iroquois Master Fund. As such, Mr. Abbe and Ms. Page may each be deemed to be the beneficial owner of the shares of Series A Preferred reported herein. |
| (4) | Based on Company records as of July 9, 2019. Sander Gerber, Authorized Signor for Hudson Bay Capital Management, LP may be deemed to be the beneficial owner of all shares of common stock underlying the common stock held by Hudson Bay Capital Management, LP. |
| (5) | Based on Company records as of July 9, 2019. Steve Derby, Managing Member of SDS Capital Partners II, LLC may be deemed to be the beneficial owner of all shares of common stock underlying the common stock held by SDS Capital Partners II, LLC. |
| (6) | Based on Company records as of July 9, 2019. Jacob Gottlieb, Chief Executive Officer of Altium Growth Fund, LP may be deemed to be the beneficial owner of all shares of common stock underlying the common stock held by Altium Growth Fund, LP. |
Beneficial Ownership of Common Stock
Name, Address and Title (if applicable) (1) | | Shares Issuable Upon Conversion of Preferred A Stock (2)
| Shares Issuable upon Exercise of Warrants (3)
| Shares Issuable upon Exercise of Vested Stock Options | Total Number of Shares Beneficially Owned | |
Executive Officers and Directors |
| Brandon Stump | | | | | | |
| Chief Executive Officer and Director | 9,379,218,889 | - | - | - | 9,379,218,889 | 49.5% |
| Ryan Stump | | | | | | |
| Chief Operating Officer and Director | 4,019,665,353 | | | | 4,019,665,353 | 21.2% |
| David Allen | | | | | | |
| Chief Financial Officer | - | - | - | - | - | 0.0% |
| Mitch Brantley | | | | | | |
| Chief Marketing Officer | - | - | - | - | - | 0.0% |
| Adam Mirkovich | | | | | | |
| Chief Information Officer | - | - | - | - | - | 0.0% |
Scot Cohen (4)
| | | | | | |
| Director | 81,240,266 | 84,625,280 | 56,416,355 | 7,244,826 | 229,526,727 | 1.2% |
| Keith Stump | | | | | | |
| Director | 93,086,946 | 67,700,224 | 45,133,084 | - | 205,920,254 | 1.1% |
Executive Officers and Directors, as a group (6 persons) | 13,573,211,454 | 152,325,504 | 101,549,439 | 7,244,826 | 13,834,331,223 | 72.1% |
Greater Than 5% Stockholders |
Vincent C. Smith (5)
| | | | | | |
| 17595 Harvard Avenue, Suite C511 | | | | | | |
| Irvine, California 92614 | 2,214,058,642 | 761,627,520 | 513,130,526 | - | 3,488,816,688 | 17.3% |
Red Beard Holdings, LLC (6)
| | | | | | |
| 17595 Harvard Avenue, Suite C511 | | | | | | |
| Irvine, California 92614 | 2,152,825,308 | 761,627,520 | 513,130,526 | - | 3,427,583,354 | 17.0% |
Iroquois Capital Management, LLC (7)
| | | | | | |
| 125 Park Avenue, 25th Floor | | | | | | |
| New York, New York 10017 | 500,232,693 | 740,471,200 | 493,643,101 | - | 1,734,346,994 | 8.6% |
| (1) | Unless otherwise indicated, the address for each stockholder is 1007 Brioso Drive, Costa Mesa, California 92627. |
| (2) | Pursuant to the Certificate of Designation of the Series A Preferred (“Series A COD”), shares of Series BA Preferred may not be converted or exercised, as applicable, to the extent that the holder and its affiliates would own more than 4.99% (or 9.99% upon the election of any holder of Series A Preferred) of the Company’s outstanding Common Stock common stock after such conversion. conversion (the “Series A Ownership Limitation”);provided, however, that any holder of shares of Series A Preferred may waive the Conversion Limitation upon 61 days written notice to the Company. |
| The Certificate of DesignationSeries A COD also entitles each share of Series BA Preferred to vote, on an as converted basis, along with the Common Stock; common stock; provided, however, that the Series BA Preferred may not be voted to the extent that the holder and its affiliates would control more than 9.99% of the Company’s voting power.power (the “Series A Voting Limitation”). |
(4) | Beneficial ownership is determinedOwnership percentages in this table were calculated in accordance with the rulesSection 13(d) of the SECExchange Act, and generally includes votingdo not reflect any adjustments due to the Series A Ownership Limitation or investment power with respectthe Series A Voting Limitation.
|
| (3) | Certain of the warrants included in this table are subject to securities.blockers that prevent a holder from exercising Investor Warrants or Placement Agent Warrants in the event that such exercise would result in the holder and its affiliates beneficially owning in excess of 4.99% of the Company’s issued and outstanding common stock immediately thereafter, which limit may be increased to 9.99% at the election of the holder (the “Warrant Exercise Limitation”). Ownership percentages in this table were calculated in accordance with Section 13(d) of the Exchange Act, and do not reflect any adjustments due to the Warrant Exercise Limitation. |
(5)(4) | Includes 3,750 shares held directly by Mr. Cohen, 118,750 sharessecurities held by V3 Capital Partners and 12,500 shares held by the Scot Jason Cohen Foundation. Mr. Cohen is the Managing Partner of V3 Capital Partners and is an officer of the Scot Jason Cohen Foundation. |
Beneficial Ownership of Series C Preferred
| Name and Address (1) | | Series C Convertible Preferred Stock | | | % Ownership of Class (2) | |
Red Beard Holdings, LLC 2560 East Chapman Avenue #173 Orange, CA 92869 | | | | | | | | |
Chris Turoci 974 Sandstone Dr. Glendora, CA 91740 | | | | | | | | |
(1) | Each of the Company’s directors and officers was excluded from this table, as none of our officers or directors hold shares of Series C Preferred.
|
(2) | Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or investment power with respect to securities. |
Beneficial Ownership of Common Stock
| Name, Address and Title (if applicable) (1) | | Number of Shares (1) | | | % Ownership of Class (2) | |
Kevin Sherman Chief Executive Officer and Director | | | | | | | | |
Daniel Kerker Chief Financial Officer, Treasurer and Secretary | | | | | | | | |
Robert Van Boerum Chief Operations Officer | | | | | | | | |
| | | | | | | | |
| | | | | | | | |
| | | | | | | | |
Total officers and directors (4) | | | | | | | | |
Vincent C. Smith (5)(6) 2560 East Chapman Avenue #173 Orange, CA 92869 | | | | | | | | |
Vincent C. Smith Annuity Trust 2015-1 (7) 2560 East Chapman Avenue #173 Orange, CA 92869 | | | | | | | | |
Red Beard Holdings, LLC (5)(8) 2560 East Chapman Avenue #173 Orange, CA 92869 | | | | | | | | |
First Bank & Trust as custodian of Ronald L. Chez IRA (9) 820 Church Street Evanston Illinois, 60201 | | | | | | | | |
Chris Turoci (10) 974 Sandstone Dr. Glendora, CA 91740 | | | | | | | | |
(1) | Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or investment power with respect to securities. All entries exclude beneficial ownership May 3, 2016. |
(2) | Percentages are rounded to nearest one-hundredth of one percent. Percentages are based on 112,049,107 shares of Common Stock outstanding. Warrants, options or other derivative securities that are presently exercisable or exercisable within 60 days are deemed to be beneficially owned by the person holding the options for the purpose of computing the percentage ownership of that person, but are not treated as outstanding for the purpose of computing the percentage of any other person. |
(3) | Comprised of 3,610,000 shares held of record, 60,000 shares issuable upon conversion of 3,750 shares of Series B Preferred, 17,500 shares issuable upon exercise of warrants, 1,900,000 shares issuable upon conversion of 118,750 shares of Series B Preferred held by V3 Capital Partners, 700,000 shares issuable upon exercise of warrants held by V3 Capital Partners, 200,000 shares issuable upon conversion of 12,500 shares of Series B Preferred held by the Scot Jason Cohen Foundation and 58,334 shares issuable upon exercise of warrants held by the Scot Jason Cohen Foundation each of which are exercisable within 60 days of May 3, 2016.
Mr. Cohen is the Managing Partner of V3 Capital Partners and an officer of the Scot Jason Cohen Foundation, and has dispositive and/or voting power over these shares. |
(4) | Comprised of 9,637,536 shares of Common Stock held of record and an aggregate total of 2,935,834 shares issuable pursuant to certain derivative securities (as described above) each of which are exercisable within 60 days of May 3, 2016. |
| (5) | Pursuant to Section 5 of the Third Amended and Restated Certificate of Designations, Preferences, Rights and Limitations of the Series C Convertible Preferred Stock (the “Series C Certificate of Designation”), no holder of Series C Preferred may exercise the voting rights otherwise attributable to the Series C Preferred if such holder, together with any “affiliate” of such Holder (as such term is defined in Rule 144 under the Securities Act of 1933, as amended) or any person or entity deemed to be part of a “group” with such holder (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amendedIncludes securities held by Vincent C. Smith Annuity Trust 2015-1 (the “Exchange ActSmith Trust”))) would control in excess of 50% of the total voting power of the outstanding shares of capital stock of the Company at the time of such vote (the “, and LB 2, LLC (“Voting LimitationLB 2”); and Red Beard Holdings, LLC (“providedRed Beard”), however, that any holder of shares of Series C Preferred may waive the Voting Limitation upon 60 days written notice to the Company.
Ownership percentages in this table were calculated in accordance with Section 13(d) of the Exchange Act, and do not reflect any adjustments due to the Voting Limitation.
|
(6) | Basedbased on Company records and ownership information from Amendment No. 45 to Schedule 13D filed by Vincent C. Smith on December 14, 2015.April 25, 2016. Mr. Smith is the trustee for the Vincent C. Smith Annuity Trust 2015-1 (the “Smith Trust,”) and manager of LB 2 and Red Beard Holdings, LLC (“Red Beard”).Beard. As such, Mr. Smith has dispositive power and subject to certain limitations in the Series C Certificate of Designation, voting power over, and may be deemed to be the beneficial owner of the securities held by each of these entities. In addition to the securities held by the Smith Trust and Red Beard, shares held by Mr. Smith include 17,500,000 shares issuable upon exercise of warrants, presently exercisable within 60 days of May 3, 2016, and 1,459,329 shares held by LB 2, LLC, an entity managed by Mr. Smith.
|
(7)(6) | Based on Company records and ownership information from Amendment No. 45 to Schedule 13D filed by Vincent C. Smith on December 14, 2015. Includes 15,633,333 shares issuable upon exercise of warrants, which warrants are exercisable within 60 days of May 3,April 25, 2016. Mr. Vincent C. Smith is the trustee of the Smith Trust, and has dispositive and/or voting power over the shares. |
(8) | Based on ownership information from Amendment No. 4 to Schedule 13D filed by Vincent C. Smith on December 14, 2015. Includes 37,647,333 shares issuable upon conversion of 56,471 shares of Series C Preferred and 12,449,913 shares issuable upon exercise of warrants, each of which are exercisable within 60 days of May 3, 2016.
Mr. Vincent C. Smith is a manager of Red Beard, Holdings, LLC, and has dispositive power and subject to certain limitations in the Series C Certificate of Designation, voting power over the shares.
|
(9)(7) | Based on Company records and ownership information from Amendment No. 2 to Schedule 13D13G filed by Individual Retirement AccountsIroquois Capital Management, LLC (“Iroquois Capital Management”), Mr. Richard Abbe and Ms. Kimberly Page on May 24, 2019. Mr. Abbe shares authority and responsibility for the benefitinvestments made on behalf of Ronald L. Chez, Ronald L. Chez Individually and the Chez Family Foundation on December 8, 2014. Includes 6,800,000 shares issuable upon conversion of 425,000 shares of Series B Preferred and 1,983,334 shares issuable upon exercise of warrants,Iroquois Master Fund with Ms. Kimberly Page, each of which are exercisable within 60 dayswhom is a director of May 3, 2016.the Iroquois Master Fund. As such, Mr. Abbe and Ms. Page may each be deemed to be the beneficial owner of all shares of common stock underlying the common stock held by Iroquois Master Fund. |
This prospectus relates to the sale from time to time by the selling stockholders of up to 26,317,060,072 shares of our common stock, which consists of: (i) 17,628,941,493 shares of common stock, (ii) up to 4,654,349,239 shares of common stock issuable upon conversion of outstanding shares of our Series A Convertible Preferred Stock, par value $0.001 per share (“Series A Preferred”), and (iii) up to 4,033,769,340 shares of common stock issuable upon exercise of certain outstanding common stock purchase warrants (the “Warrants”), each issued in connection with the Share Exchange. When we refer to the “selling stockholders” in this prospectus, we mean the persons and entities listed in the table below, and their respective pledgees, donees, permitted transferees, assignees, successors and others who later come to hold any of the selling stockholders’ interests in shares of our common stock other than through a public sale.
Selling Stockholders Table
The table below presents information as of July 9, 2019, regarding the selling stockholders and the shares of common stock the selling stockholders may offer and sell from time to time under this prospectus. More specifically, the following table sets forth as to the selling stockholders:
●
the number of shares of our common stock that the selling stockholders beneficially owned prior to this offering;
●
the total number of shares of our common stock that the selling stockholders may offer for resale pursuant to this prospectus; and
●
the number and percent of shares of our common stock beneficially held by the selling stockholders after this offering, assuming all of the resale shares of common stock are sold by the selling stockholders and that the selling stockholders do not acquire any additional shares of our common stock prior to their assumed sale of all of the resale shares.
The table was prepared based on information supplied to us by the selling stockholders. Although we have assumed for purposes of the table below that the selling stockholders will sell all of the securities offered by this prospectus, because the selling stockholders may offer from time to time all or some of their securities covered under this prospectus, or in another permitted manner, no assurances can be given as to the actual number of securities that will be resold by the selling stockholders or that will be held by the selling stockholders after completion of the resales. In addition, the selling stockholders may have sold, transferred or otherwise disposed of the securities in transactions exempt from the registration requirements of the Securities Act, since the date the selling stockholders provided the information regarding their securities holdings. Information covering the selling stockholders may change from time to time and changed information will be presented in a supplement to this prospectus if and when necessary and required.
Except as described above, there are currently no agreements, arrangements or understandings with respect to the resale of any of the securities covered by this prospectus.
The applicable percentages of ownership are based on an aggregate of 18,935,746,396 shares of our common stock issued and outstanding on July 9, 2019. The number of shares common stock beneficially owned by the selling stockholders is determined under rules promulgated by the SEC.
| | | Number of Shares of Common Stock Being Offered Pursuant to this Prospectus | Shares of Common Stock Beneficially Owned After Completion of the Offering (1) |
Name of Selling Stockholder (2) | Shares of Common Stock Beneficially Owned Prior to the Offering (3) | | Series A Conversion Shares | | | |
| | | | | | | |
| ABCS Partners (7) | 42,312,266 | 42,312,266 | - | - | - | * |
| Alan Finkelstein (8) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Alan R. Cornell Revocable Living Trust dtd 05/20/2010 (9) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Albert & Hiedi Gentile (10) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Allan Lipkowitz Revocable Trust dtd 08/26/2005 (11) | 16,078,732 | 2,679,777 | 8,039,402 | 5,359,554 | - | * |
| Alok and Ankur Agrawal (12) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Altium Growth Fund, LP (13) | 497,594,446 | 82,932,041 | 248,798,323 | 165,864,082 | - | * |
| Alto Opportunity Master Fund, SPC-Segregated Master Portfolio B (14) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Anand Kumar Sethia (15) | 9,477,990 | 1,579,658 | 4,739,016 | 3,159,316 | - | * |
| Andrew Arno (16) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Andrew Good (17) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Andrew Lester (18) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Andrew Rosen (19) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Anna Sacchetti (20) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Anthony Azzara (21) | 25,387,472 | 4,231,227 | 12,693,792 | 8,462,453 | - | * |
| Antonino Marciano (22) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Aroon Dalamal (23) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Aukee LLC (24) | 10,154,989 | 1,692,491 | 5,077,517 | 3,384,981 | - | * |
| Ben Healy (25) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Big Boy LLC (26) | 135,399,850 | 22,566,542 | 67,700,224 | 45,133,084 | - | * |
| Bigger Capital Fund LP (27) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Brandon Stump (28) | 9,379,218,889 | 9,379,218,889 | - | - | - | * |
| Brio Capital Master Fund Ltd (29) | 118,474,870 | 19,745,725 | 59,237,696 | 39,491,449 | - | * |
| Bruce Bernstein (30) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Bruce Doniger (31) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Byron Hughey (32) | 3,384,997 | 564,164 | 1,692,506 | 1,128,327 | - | * |
| Casey G Schoonover (33) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Casimir S. Skrzypczak (34) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Christopher Coleman (35) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Christopher Cozzolino (36) | 1,692,491 | 1,692,491 | - | - | - | * |
| Christopher Fiore (37) | 44,645,788 | 7,052,045 | 21,156,320 | 14,104,089 | 2,333,334 | * |
| Christopher J. & Denise M. Blum, JTWROS (38) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Clayton A. Struve (39) | 118,474,870 | 19,745,725 | 59,237,696 | 39,491,449 | - | * |
| Cobrador Multi-Strategy Partners, LP (40) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Conner Raisin (41) | 423,122,627 | 423,122,627 | - | - | - | * |
| Cox Investment Partners, LP (42) | 169,249,813 | 28,208,178 | 84,625,280 | 56,416,355 | - | * |
| Daniel D. Sambucci (43) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Daniel Harlin (44) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Daniel Salvas (45) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Daniel W. and Allaire Hummel JTWROS (46) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| David A Jenkins (47) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| David A Newman (48) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| E Celli & E Satloff TT Thomas I Unterberg Grandchildren's TR U/A DTD 04/26/1993 (49) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Empery Asset Master, Ltd (50) | 376,053,040 | 62,675,230 | 188,027,351 | 125,350,459 | - | * |
| Empery Tax Efficient II, LP (51) | 311,459,557 | 51,909,697 | 155,730,466 | 103,819,393 | - | * |
| Empery Tax Efficient, LP (52) | 74,111,558 | 12,351,872 | 37,055,943 | 24,703,744 | - | * |
| Empire Group Ltd. (53) | 33,855,856 | 5,641,636 | 16,925,056 | 11,283,271 | 5,893 | * |
| Eric Fosselman (54) | 13,539,986 | 2,256,655 | 6,770,022 | 4,513,309 | - | * |
| Ernest J. & Michele M. Mattei JTWROS (55) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Ernest M. Violet (56) | 47,389,948 | 7,898,290 | 23,695,078 | 15,796,579 | - | * |
| FirstFire Global Opportunities Fund LLC (57) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Four Jr. Investments, Ltd. (58) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Gabriel Adetoro (59) | 10,154,989 | 1,692,491 | 5,077,517 | 3,384,981 | - | * |
| Gregory Castaldo (60) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Heyer 1999 Family Trust No 1 (61) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Hudson Bay Master Fund Ltd (62) | 507,749,435 | 84,624,532 | 253,875,840 | 169,249,063 | - | * |
| Hudson Equity Partners, LLC (63) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Igor Semenov (64) | 152,324,831 | 25,387,360 | 76,162,752 | 50,774,719 | - | * |
| Ilario & Barbara J. Licul JTWROS (65) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Iroquois Capital Investment Group, LLC (66) | 1,456,726,555 | 430,174,705 | 613,533,280 | 409,018,570 | 4,000,000 | * |
| Iroquois Master Fund Ltd. (67) | 257,874,718 | 42,312,266 | 126,937,920 | 84,624,532 | 4,000,000 | * |
| James Gilbert (68) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| JD Advisors, LLC (69) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| JNS Holdings Group LLC (70) | 17,124,906 | 16,924,906 | - | - | 200,000 | * |
| Joel Pruzansky (71) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| John Athanasopoulos (72) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| John Sanderson (73) | 146,207,296 | 24,367,775 | 73,103,971 | 48,735,550 | - | * |
| John V. Wagner, Jr. (74) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Jonathan P. & Laura Greene JTWROS (75) | 4,231,246 | 705,205 | 2,115,632 | 1,410,409 | - | * |
| Jordan Sigalos (76) | 70,520,404 | 70,520,404 | - | - | - | * |
| Justin Keener D/B/A JMJ Financial (77) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Keith Stump (78) | 205,920,254 | 93,086,946 | | 45,133,084 | - | * |
| Kenneth F. Kremm (79) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Kevin Andrew McColl (80) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Konstantin Kozlov (81) | 6,769,994 | 1,128,328 | 3,385,011 | 2,256,655 | - | * |
| Lee Harrison Corbin (82) | 25,387,472 | 4,231,227 | 12,693,792 | 8,462,453 | - | * |
| Lee J. Seidler Revocable Trust dtd 04/12/1990 (83) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Lei Xia (84) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Leonard Stern (85) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Lina Kay (86) | 44,004,952 | 7,334,127 | 22,002,573 | 14,668,253 | - | * |
| Louis Sanzo (87) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Marc A Levinson (88) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Marilyn Kane (89) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Matthew Montesano (90) | 141,040,909 | 141,040,909 | - | - | - | * |
| Mel S. & Wendy Lavitt (91) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Michael Chill (92) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Michael J. Mathieu (93) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Michael P Valentine (94) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Michael Silverman (95) | 140,589,930 | 70,069,113 | 42,312,640 | 28,208,177 | - | * |
| Nat Tursi (96) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Opes Equities, Inc. (97) | 2,256,654 | 2,256,654 | - | - | - | * |
| Patrick G Patel (98) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Pauline M. Howard Trust dtd 01/02/1998 (99) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Pensco Trust Co Custodian FBO Andrew J. Malik, IRA (100) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Peter K Janssen (101) | 25,951,599 | 11,847,435 | 8,462,528 | 5,641,636 | - | * |
| Peter Ohler (102) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Philip W. Faucette II (103) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Proactive Capital Partners, LP (104) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Prokopi Sarris (105) | 184,481,479 | 184,481,479 | - | - | - | * |
| Red Beard Holdings LLC (106) | 3,073,832,068 | 1,324,615,069 | 761,627,520 | 507,747,190 | 479,842,289 | 10% |
| Richard N Molinsky (107) | 18,079,130 | 2,820,818 | 8,462,528 | 5,641,636 | 1,154,148 | * |
| Richard Pashayan (108) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Robert Burkhardt (109) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Robert Reitz (110) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Roman Livson (111) | 1,692,491 | 1,692,491 | - | - | - | * |
| Ryan Stump (112) | 4,019,665,353 | 4,019,665,353 | - | - | - | * |
| Scot Cohen (113) | 269,834,965 | 101,549,439 | 84,625,280 | 56,416,355 | 27,243,891 | * |
| SDS Capital Partners II, LLC (114) | 507,749,435 | 84,624,532 | 253,875,840 | 169,249,063 | - | * |
| SEG-RedaShex LLC (115) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Shaar Hazuhov, LLC (116) | 42,312,454 | 7,052,045 | 21,156,320 | 14,104,089 | - | * |
| Shanup Gundecha (117) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Shay Capital LLC (118) | 169,249,813 | 28,208,178 | 84,625,280 | 56,416,355 | - | * |
| Stephen Renaud (119) | 136,640,768 | 69,222,867 | 40,450,884 | 26,967,018 | - | * |
| Stormy Monday LLC (120) | 11,283,271 | 11,283,271 | - | - | - | * |
| The Bradley R. Kroenig Revocable Trust dtd 05/11/2016, Fourth Amended and Restated Trust dtd 09/13/2017 (121) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| The Craig R. Whited & Gilda Whited Joint Living Trust dtd 03/25/2016 (122) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| The Fourys Co. Ltd (123) | 25,387,472 | 4,231,227 | 12,693,792 | 8,462,453 | - | * |
| Thomas A. McGurk, Jr. (124) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Thomas Israel Unterberg (125) | 67,699,925 | 11,283,271 | 33,850,112 | 22,566,542 | - | * |
| Thomas Israel Unterberg TTEE Ellen Unterberg Celli Family Trust UA DTD 03/22/1993 (126) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Thomas Israel Unterberg TTEE Emily Unterberg Satloff Family Trust U/A DTD 03/25/1993 (127) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Thomas J. Enright, Jr. (128) | 22,002,477 | 3,667,064 | 11,001,286 | 7,334,127 | - | * |
| Thomas Zahavi (129) | 42,650,953 | 7,108,461 | 21,325,571 | 14,216,921 | - | * |
| Tim Elmes, LLC Pension Plan (130) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| US International Consulting Network-New Jersey Corp (dba ICN Holding) (131) | 44,004,952 | 7,334,127 | 22,002,573 | 14,668,253 | - | * |
| V3 Capital (132) | 75,284,362 | 73,341,261 | - | - | 1,943,101 | * |
| Wallace P. Kithcart, Jr. (133) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Warberg WF VI LP (134) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Westwood Capital Opportunity Fund LLC (135) | 169,249,813 | 28,208,178 | 84,625,280 | 56,416,355 | - | * |
| Willaim Rosenstadt (136) | 2,256,654 | 2,256,654 | - | - | - | * |
| William J Febbo (137) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| William Strawbridge (138) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| William Sykes (139) | 42,312,454 | 7,052,045 | 21,156,320 | 14,104,089 | - | * |
| Yad Zahav LLC (140) | 146,682,522 | 146,682,522 | - | - | - | * |
| Zachary Arrick (141) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
(10)(1) | ComprisedBeneficial ownership of 1,513,052the selling stockholders after the offering assumes (i) the selling stockholders have the ability to fully convert all shares of Series A Preferred held and to exercise all Investor Warrants, despite the Beneficial Ownership Limitation, as more specifically set forth in the section of record, 5,245,333this prospectus entitled “Prospectus Summary- The Share Exchange,” (ii) the conversion of all shares of Series A Preferred, and exercise of all Warrants held by the selling stockholders, and (iii) that each selling stockholder will sell all of the shares of common stock offered by it under this prospectus, including all shares of common stock that may be issued upon conversion of shares of Series A Preferred and the exercise of the Warrants identified herein. |
| (2) | Information concerning other selling stockholders will be set forth in one or more amendments to the registration statement, of which this prospectus forms a part, and/or prospectus supplements from time to time, as required. |
| (3) | Includes the (i) number of shares of common stock owned by each selling stockholder prior to the Share Exchange and (ii) all Series A Conversion Shares and Warrant Shares issuable upon conversion and/or exercise of 7,868 shares of Series CA Preferred 720,000and Warrants, as applicable, that may be held by each selling stockholder as of the date of this prospectus, in each case assuming that the issuance of such shares issuable upon conversion of 45,000is not limited by the Beneficial Ownership Limitation. |
| (4) | Includes shares of common stock issued during the Share Exchange to the Series B PreferredA Members and 2,045,648the Direct Investors and shares issuable upon exercise of warrants, each of which are exercisable within 60 days of May 3, 2016.issued as Advisory Shares. |
| (5) | Includes Investor Warrants issued during the Share Exchange to the Series A Members and the Director Investors, and the Broker Warrants issued to Katalyst Securities LLC. |
| (6) | Calculation of the percent of shares beneficially owned by each selling stockholder after the offering assumes that only such selling stockholder’s derivative securities, including, without limitation, shares of Series A Preferred and all any Warrants were converted and/or exercised. Accordingly, the number of issued and outstanding shares used to calculate percent ownership was increased by the number of shares of common stock issuable upon the conversion and/or exercise of such derivative securities held by such selling stockholder, in each case assuming that the issuance of such shares is not limited by the Beneficial Ownership Limitation, or other beneficial ownership limitations set forth therein. |
| (7) | The address of ABCS Partners is 21 Inns Road, Scarsdale, NY 10583. Jeffrey Berman, Managing Partner of ABCS Partners, may be deemed to have voting and investment power over these securities. |
| (8) | The address of Alan Finkelstein is 132 Wilmot Circle, Scarsdale, NY 10583. |
| (9) | The address of Alan R. Cornell Revocable Living Trust dtd 05/20/2010 is 17640 Lake Estates Drive, Boca Raton, FL 33496. Alan R. Cornell, Trustee of the Alan R. Cornell Revocable Living Trust, may be deemed to have voting and investment power over these securities. |
| (10) | The address of Albert & Hiedi Gentile is 5 Mountain View Avenue, Mayfield, NY 12117. |
| (11) | The address of Allan Lipkowitz Revocable Trust dtd 08/26/2005 is 2686 Anza Trail, Palm Springs, CA 92264. Allan Lipkowitz, Trustee of the Allan Lipkowitz Revocable Trust, may be deemed to have voting and investment power over these securities. |
| (12) | The address of Alok and Ankur Agrawal is 18841 SW 41st Street, Miramar, FL 33029. |
| (13) | Altium Capital Management, LP, the investment manager of Altium Growth Fund, LP, has voting and investment power over these securities. Jacob Gottlieb is the managing member of Altium Capital Growth GP, LLC, which is the general partner of Altium Growth Fund, LP. Each of Altium Growth Fund, LP and Jacob Gottlieb disclaims beneficial ownership over these securities. The principal address of Altium Capital Management, LP is 551 Fifth Avenue, 19th Floor New York, New York 10176. |
| (14) | The address for Alto Opportunity Master Fund, SPC- Segregated Master Portfolio B (“Alto Opportunity”) is 222 Broadway, 19th Floor, New York, NY 10038. Waqas Khatri, Director of Alto Opportunity, may be deemed to have voting and investment power over these securities. |
| (15) | The address of Anand Kumar Sethia is Flat 7 Pavilion, 34 St. John's Wood Road, London, UK NW8 7HB. |
| (16) | The address of Andrew Arno is 160 Riverside Boulevard, Apt. 31D, New York, NY 10069. |
| (17) | The address of Andrew Good is 34 Dexter Avenue, Watertown, MA 02472. |
| (18) | The address of Andrew Lester is 68 Byram Ridge Road, Armonk, NY 10504. |
| (19) | The address of Andrew Rosen is 33 Mountain Avenue, Maplewood, NJ 07040. |
| (20) | The address of Anna Sacchetti is 54-36 252nd Street, Little Neck, NY 11362. |
| (21) | The address of Anthony Azzara is 11284 162nd Place N, Jupiter, FL 33478. |
| (22) | The address of Antonino Marciano is 2003 N. Ocean Blvd., Apt. 302, Boca Raton, FL 33431. |
| (23) | The address of Aroon Dalamal is Villa 33, Hattan 2, Dubai, UAE. |
| (24) | The address of Aukee LLC is 7 Douglass Manor, Covington, IN 47932. Kyle A. McGurk, Vice President of Aukee LLC, may be deemed to have voting and investment power over these securities. |
| (25) | The address of Ben Healy is 425 Fifth Avenue, 32E, New York, NY 10016. |
| (26) | The address of Big Boy LLC is 1111 Bayside Drive, Suite 270, Newport Beach, CA 92625. Jeff Gehl, Managing Partner of Big Boy LLC, may be deemed to have voting and investment power over these securities. |
| (27) | The address of Bigger Capital Fund LP is 159 Jennings Road, Cold Spring Harbor, NY 11724. Michael Bigger, Managing Member of Bigger Capital Fund LP, may be deemed to have voting and investment power over these securities. |
| (28) | The address of Brandon Stump is 1007 Brioso Drive, Costa Mesa, CA 92627. |
| (29) | The address of Brio Capital Master Fund Ltd is 100 Merrick Road, Suite 401W, Rockville Centre, NY 11570-4800. Shaye Hirsch, Director of Brio Capital Master Fund Ltd, may be deemed to have voting and investment power over these securities. |
| (30) | The address of Bruce Bernstein is 84 White Street, 9C, New York, NY 10013. |
| (31) | The address of Bruce Doniger is 17 Brookby Road, Scarsdale, NY 10583. |
| (32) | The address of Byron Hughey is 1111 Dogwood Drive, McLean, VA 22101. |
| (33) | The address of Casey G Schoonover is 777 Driggs Avenue, Apt. #2, Brooklyn, NY 11211. |
| (34) | The address of Casimir S. Skrzypczak is 413 Indies Drive, Orchid, FL 32963. |
| (35) | The address of Christopher Coleman is 5 Flagg Avenue, Montauk, NY 11954. |
| (36) | The address of Christopher Cozzolino is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017. |
| (37) | The address of Christopher Fiore is 340 East 64th Street, Apt. 9C, New York, NY 10065. |
| (38) | The address of Christopher J. & Denise M. Blum, JTWROS is 525 Budds Landing Road, Warwick, MD 21912. |
| (39) | The address of Clayton A. Struve is c/o RMR Wealth Mgt., 630 Third Ave. 5th Fl, New York, NY 10017. |
| (40) | The address of Cobrador Multi-Strategy Partners, LP is 32 Creemer Road, Armonk, NY 10504. David E. Graber, Managing Principal of Cobrador Multi-Strategy Partners, LP, may be deemed to have voting and investment power over these securities. |
| (41) | The address of Conner Raisin is 23 Goodwill Ct Newport Beach, CA 92663. |
| (42) | The address of Cox Investment Partners, LP is 4514 Cole Avenue #1175, Dallas, TX 75205. Craig Sanders, Manager of Cox Investment Partners, LP, may be deemed to have voting and investment power over these securities. |
| (43) | The address of Daniel D. Sambucci is 2003 N. Ocean Blvd., Apt. #N301, Boca Raton, FL 33431-8305. |
| (44) | The address of Daniel Harlin is 512 Walnut Street, New Orleans, LA 70118. |
| (45) | The address of Daniel Salvas is 6335 Around Hills Road, Indianapolis, IN 46226. |
| (46) | The address of Daniel W. and Allaire Hummel JTWROS is 284 Great House Farm Lane, Chesapeake City, MD 21915. |
| (47) | The address of David A Jenkins is 9611 North US Highway One, Box 390, Sebastian, FL 32958. |
| (48) | The address of David A Newman is 494 Pelican Lane South, Jupiter, FL 33458. |
| (49) | The address of E Celli & E Satloff TT Thomas I Unterberg Grandchildren's TR U/A DTD 04/26/1993 is 993 Park Avenue, Apt. 5S, New York, NY 10028-0922. |
| (50) | Empery Asset Management LP, the authorized agent of Empery Asset Master Ltd ("EAM"), has discretionary authority to vote and dispose of the shares held by EAM and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by EAM. EAM, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of Empery Asset Master, Ltd is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| (51) | Empery Asset Management LP, the authorized agent of Empery Tax Efficient, LP ("ETE"), has discretionary authority to vote and dispose of the shares held by ETE and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE. ETE, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of Empery Tax Efficient II, LP is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| (52) | Empery Asset Management LP, the authorized agent of Empery Tax Efficient II, LP ("ETE II"), has discretionary authority to vote and dispose of the shares held by ETE II and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE Il. ETE II, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of Empery Tax Efficient, LP is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| (53) | The address of Empire Group Ltd. is c/o Primeway S.A., 3rd Floor, Yamraj Building, Market Square, Road Town, Tortola, British Virgin Islands. Primeway S.A., Director of Empire Group Ltd, may be deemed to have voting and investment power over these securities. |
| (54) | The address of Eric Fosselman is 402 McDaniel Drive, Landenberg, PA 19350. |
| (55) | The address of Ernest J. & Michele M. Mattei JTWROS is 108 Gary Lynn Lane, Windsor, CT 06103. |
| (56) | The address of Ernest M. Violet is 228 East Shore Road, Jamestown, RI 02835. |
| (57) | The address of FirstFire Global Opportunities Fund LLC is 1040 1st Avenue, Suite 190, New York, NY 10022. Eliezer S. Fireman, Managing Member of FirstFire Global Opportunities Fund LLC, may be deemed to have voting and investment power over these securities. |
| (58) | The address of Four Jr. Investments, Ltd. is 844 Harbour Isles Pl., North Palm Beach, FL 33410. Robert Burke, Manager of Four Jr. Investments, Ltd., may be deemed to have voting and investment power over these securities. |
| (59) | The address of Gabriel Adetoro is 195 Classon Avenue, 2B, Brooklyn, NY 11205. |
| (60) | The address of Gregory Castaldo is 3776 Steven James Drive, Garnet Valley, PA 19061. |
| (61) | The address of Heyer 1999 Family Trust No 1 is c/o Mistral Equity Partners, 650 5th Ave. 10th Floor, New York, NY 10019. Steven J. Heyer, Trustee of the Heyer 1999 Family Trust No 1, may be deemed to have voting and investment power over these securities. |
| (62) | The address of Hudson Bay Master Fund Ltd is c/o Hudson Bay Capital Mgt., 777 Third Avenue, 30th Floor, New York, NY 10017. Hudson Bay Capital Management, LP, the investment manager of Hudson Bay Master Fund Ltd., has voting and investment power over these securities. Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial ownership over these securities. |
| (63) | The address of Hudson Equity Partners, LLC is 14 Arbor Field Way, Lake Grove, NY 11755. Jagdish Malhotra, Managing Member of Hudson Equity Partners, LLC, may be deemed to have voting and investment power over these securities. |
| (64) | The address of Igor Semenov is 9971 Winding Ridge Lane, Davie, FL 33324. |
| (65) | The address of Ilario & Barbara J. Licul JTWROS is 30 Waterside Plaza, Suite 7, New York, NY 10010. |
| (66) | The address of Iroquois Capital Investment Group, LLC is c/o Iroquois Capital, 125 Park Avenue, 25th Floor, New York, NY 10017. Richard Abbe may be deemed to have voting and investment power over these securities. |
| (67) | The address of Iroquois Master Fund Ltd. is c/o Iroquois Capital, 125 Park Avenue, 25th Floor, New York, NY 10017. Richard Abbe shares authority and responsibility for the investments made on behalf of Iroquois Master Fund with Kimberly Page, each of whom is a director of the Iroquois Master Fund. As such, Mr. Abbe and Ms. Page may each be deemed to have voting and investment power over these securities. |
| (68) | The address of James Gilbert is 859 Nowita Place, Venice, CA 90291. |
| (69) | The address of JD Advisors, LLC is 3543 Paxton Avenue, Cincinnati, OH 45208. Dan Kelly, Co-Manager of JD Advisors, LLC, may be deemed to have voting and investment power over these securities. |
| (70) | The address of JNS Holdings Group LLC is 3 Pinecrest Road, Scarsdale, NY 10583. Josh Silverman, Member of JNS Holdings Group LLC, may be deemed to have voting and investment power over these securities. |
| (71) | The address of Joel Pruzansky is 1066 Clinton Ave., Suite 200, Clifton, NJ 07013. |
| (72) | The address of John Athanasopoulos is 14 1/2 Fayette Street, Apt. 5, Cambridge, MA 02139. |
| (73) | The address of John Sanderson is 10324 Brookhollow Circle, Highlands Ranch, CO 80129. |
| (74) | The address of John V. Wagner, Jr. is 233 Jardin Drive, Los Altos, CA 94022. |
| (75) | The address of Jonathan P. & Laura Greene JTWROS is 94 West Mill Station Drive, Newark, DE 19701. |
| (76) | The address of Jordan Sigalos is 3395 Michelson Drive, #5551, Irvine, CA 92612. |
| (77) | The address of Justin Keener D/B/A JMJ Financial is 1688 Meridian Avenue, Ste 700, Miami Beach, FL 33139. |
| (78) | The address of Keith Stump is 686 Ashbrooke Way, Hudson, OH 44236. |
| (79) | The address of Kenneth F. Kremm is 3728 St. Andrews Drive, The Colony, TX 75056. |
| (80) | The address of Kevin Andrew McColl is 94 Polo Lane RD1 Manurewa, Auckland, New Zealand 2576. |
| (81) | The address of Konstantin Kozlov is Korneichuka Street 49-176, Moscow, Russia 127543. |
| (82) | The address of Lee Harrison Corbin is 45 Avon Road, Larchmont, NY 10538. |
| (83) | The address of Lee J. Seidler Revocable Trust dtd 04/12/1990 is 5001 Joewood Drive, Sanibel, FL 33957. Lee J. Seidler, Trustee of the Lee J. Seidler Revocable Trust, may be deemed to have voting and investment power over these securities. |
| (84) | The address of Lei Xia is 33 Bay State Road, Wellesley, MA 02481. |
| (85) | The address of Leonard Stern is 110 East 40th Street, Suite 802, New York, NY 10016. |
| (86) | The address of Lina Kay is 9703 Collins Ave, Apt. 2508 S, Bal Harbor, FL 33154. |
| (87) | The address of Louis Sanzo is 32 Boulevard, Malba, NY 11357. |
| (88) | The address of Marc A Levinson is 9 Stony Brook Drive, North Caldwell, NJ 07006. |
| (89) | The address of Marilyn Kane is 330 E. 38th Street, Apt. 16N, New York, NY 10016. |
| (90) | The address of Matthew Montesano is 3395 Michelson Drive, #5551, Irvine, CA 92612. |
| (91) | The address of Mel S. & Wendy Lavitt is 630 Mellow Mt. Road, P.O. Box 70, Park City, UT 84060. |
| (92) | The address of Michael Chill is 600 West End avenue, Apt. 8-A, New York, NY 10024. |
| (93) | The address of Michael J. Mathieu is 20 Andrews Road, Westborough, MA 01581. |
| (94) | The address of Michael P Valentine is 21 Fox Trace Lane, Hudson, OH 44236. |
| (95) | The address of Michael Silverman is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Silverman has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (96) | The address of Nat Tursi is 141-59 11th Avenue, Whitestone, NY 11356. |
| (97) | The address of Opes Equities, Inc. is 30 Waterside Plaza, Suite 7, New York, NY 10010. Barbara J. Glenns, Vice President of Opes Equities, Inc., may be deemed to have voting and investment power over these securities. |
| (98) | The address of Patrick G Patel is 3 Lagoon Drive East, Toms River, NJ 08753. |
| (99) | The address of Pauline M. Howard Trust dtd 01/02/1998 is 5 River Road, Elkton, MD 21922. |
| (100) | The address of Pensco Trust Co Custodian FBO Andrew J. Malik, IRA is 700 Park Avenue, PHB, New York, NY 10021. Andrew J. Malik may be deemed to have voting and investment power over these securities. |
| (101) | The address of Peter K Janssen is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Janssen has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (102) | The address of Peter Ohler is 14246 Dorcellin Court, Nevada City, CA 95959. |
| (103) | The address of Philip W. Faucette II is 7725 Friendship Church Road, Brown Summit, NC 27214. |
| (104) | The address of Proactive Capital Partners, LP is 150 East 58th Street, 20th Floor, New York, NY 10155. Jeffrey Ramson, Manager of Proactive Capital Partners, LP, may be deemed to have voting and investment power over these securities. |
| (105) | The address of Prokopi Sarris is 30-47 43rd Street, Astoria, NY 11103. |
| (106) | The address of Red Beard Holdings LLC is 17595 Harvard Avenue, Suite C511, Irvine, CA 92614. Vincent C. Smith, Manager of Red Beard Holdings LLC, may be deemed to have voting and investment power over these securities. |
| (107) | The address of Richard N Molinsky is 51 Lord's Highway East, Weston, CT 06883. |
| (108) | The address of Richard Pashayan is 3 Whitehall Boulevard South, Garden City, NY 11530. |
| (109) | The address of Robert Burkhardt is 165 West End Avenue, #22E, New York, NY 10023. |
| (110) | The address of Robert Reitz is 380 Atterbury Boulevard, Hudson, OH 44236. |
| (111) | The address of Roman Livson is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Livson has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (112) | The address of Ryan Stump is 246 Orange Street, Newport Beach, CA 92663. |
| (113) | The address of Scot Cohen is 20 East 20th Street, New York, NY 10003. |
| (114) | The address of SDS Capital Partners II, LLC is 500 Summer Street, Suite 405, Stamford, CT 06901. Steve Derby, Managing Member of SDS Capital Partners II, LLC, may be deemed to have voting and investment power over these securities. |
| (115) | The address of SEG-RedaShex LLC is 135 Sycamore Drive, Roslyn, NY 11576. Jonathan Schechter, Managung Member of SEG-RedaShex LLC, may be deemed to have voting and investment power over these securities. |
| (116) | The address of Shaar Hazuhov, LLC is 100 Hewes Street, Brooklyn, NY 11249. |
| (117) | The address of Shanup Gundecha is 11309 Ridgegate Drive, Raleigh, NC 27617. |
| (118) | The address of Shay Capital LLC is 280 Park Avenue, 5th Floor West, New York, NY 10017. Michael Murray, President of Shay Capital LLC, may be deemed to have voting and investment power over these securities. |
| (119) | The address of Stephen Renaud is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Renaud has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (120) | The address of Stormy Monday LLC is 84 White Street, Apt. #9C, New York, NY 10013. Bruce Bernstein, Member of Stormy Monday LLC, may be deemed to have voting and investment power over these securities. |
| (121) | The address of The Bradley R. Kroenig Revocable Trust dtd 05/11/2016, Fourth Amended and Restated Trust dtd 09/13/2017 is 657 Daniel Court, Wyckoff, NJ 07481. Bradley R. Kroenig, Trustee of the The Bradley R. Kroenig Revocable Trust, may be deemed to have voting and investment power over these securities. |
| (122) | The address of The Craig R. Whited & Gilda Whited Joint Living Trust dtd 03/25/2016 is 31145 Palos Verdes Drive East, Rancho Palos Verdes, CA 90275. Craig Whited, Trustee of the Craig R. Whited & Gilda Whited Joint Living Trust, may be deemed to have voting and investment power over these securities. |
| (123) | The address of The Fourys Co. Ltd is Alan Yanowitz, General Partner, 25825 Science Park Drive, #110, Beachwood, OH 44122. Alan Yanowitz, General Partner of The Fourys Co. Ltd., may be deemed to have voting and investment power over these securities. |
| (124) | The address of Thomas A. McGurk, Jr. is 7 Douglass Manor, Covington, IN 47932. |
| (125) | The address of Thomas Israel Unterberg is 100 West River Road, Rumson, NJ 07760. |
| (126) | The address of Thomas Israel Unterberg TTEE Ellen Unterberg Celli Family Trust UA DTD 03/22/1993 is 100 West River Road, Rumson, NJ 07760. |
| (127) | The address of Thomas Israel Unterberg TTEE Emily Unterberg Satloff Family Trust U/A DTD 03/25/1993 is 100 West River Road, Rumson, NJ 07760. |
| (128) | The address of Thomas J. Enright, Jr. is 698 Ashbrooke Way, Hudson, OH 44236. |
| (129) | The address of Thomas Zahavi is 240 Danbury Circle North, Rochester, NY 14618. |
| (130) | The address of Tim Elmes, LLC Pension Plan is 901 E. Las Olas Boulevard, Suite 101, Fort Lauderdale, FL 33301. |
| (131) | The address of US International Consulting Network-New Jersey Corp (dba ICN Holding) is 80 Scenic Drive, Suite 5, Freehold, NJ 07728. Igor Kokorine, Chief Financial Officer of US International Consulting Network-New Jersey Corp, may be deemed to have voting and investment power over these securities. |
| (132) | The address of V3 Capital is 20 East 20th Street, New York, NY 10003. Scot Cohen. Managing Partner of V3 Capital, may be deemed to have voting and investment power over these securities. |
| (133) | The address of Wallace P. Kithcart, Jr. is 9287 Hickory Ridge Drive, Streetsboro, OH 44241. |
| (134) | The address of Warberg WF VI LP is 716 Oak Street, Winnetka, IL 60093. Daniel Warsh, Manager of Warberg WF VI LP, may be deemed to have voting and investment power over these securities. |
| (135) | The address of Westwood Capital Opportunity Funds LLC is 312 Westwood Rd., Woodmere, NY 11598. Ari Zinberg, Chief Investment Officer of Westwood Capital Opportunity Funds LLC, may be deemed to have voting and investment power over these securities. |
| (136) | The address of Willaim Rosenstadt is c/o Ortoli Rosenstadt LLP, 366 Madison Avenue, 3rd Floor, New York, NY 10017. |
| (137) | The address of William J Febbo is 34 Calle Mimosa, San Juan, PR 00927. |
| (138) | The address of William Strawbridge is 11 Graceful Elm Court, The Woodlands, TX 77381. |
| (139) | The address of William Sykes is 19296 East County Road 1700 N, Charleston, IL 61920-8385. |
| (140) | The address of Yad Zahav LLC is 100 Hewes Street, Brooklyn, NY 11249. Ahron Gold, Officer of Yad Zahav LLC, may be deemed to have voting and investment power over these securities. |
| (141) | The address of Zachary Arrick is 435 W. 31st Street #41F, New York, NY 10001. |
Each selling stockholder and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their shares of common stock covered hereby on the OTC Pink Marketplace or any other stock exchange, market or trading facility on which the shares are traded or in private transactions. These sales may be at fixed or negotiated prices. A selling stockholder may use any one or more of the following methods when selling shares:
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
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an exchange distribution in accordance with the rules of the applicable exchange;
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privately negotiated transactions;
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settlement of short sales;
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in transactions through broker-dealers that agree with the selling stockholders to sell a specified number of such securities at a stipulated price per security;
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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a combination of any such methods of sale; or
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any other method permitted pursuant to applicable law.
The selling stockholders also may resell all or a portion of the securities in open market transactions in reliance upon Rule 144 under the Securities Act, as permitted by that rule, or Section 4(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria and conform to the requirements of those provisions
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. If the selling stockholders effect such transactions by selling securities to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the securities for whom they may act as agent or to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction will not be in excess of a customary brokerage commission in compliance with NASD Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with NASD IM-2440.
In connection with the sale of the common stock or interests in common stock, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of the common stock short and deliver these securities to close out their short positions, or loan or pledge the shares of common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each selling stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute their shares of common stock.
The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the shares. The Company has agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
The selling stockholders will be subject to the prospectus delivery requirements of the Securities Act, including Rule 172 thereunder. The selling stockholders have advised us that there is no underwriter or coordinating broker acting in connection with the proposed sale of the resale shares by the selling stockholders.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the shares may be resold by the selling stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act, or any other rule of similar effect (assuming that the shares were at no time held by any affiliate of ours, and all warrants are exercised by “cashless exercise” as provided in each of the warrants) or (ii) all of the shares have been sold pursuant to this prospectus or Rule 144 under the Securities Act, or any other rule of similar effect. The resale shares will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale shares of common stock covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale shares may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act, and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of shares of the common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
DESCRIPTION OF CAPITAL STOCK
General
TheAs of the date of this prospectus, the Company’s authorized capital stock currently consists of 300.0 million50.0 billion shares of common stock, and 5.0 million shares of preferred stock, $0.001 par value per share, of which 2.75 million300,000 shares have been designated as Series A Convertible Preferred Stock (“Series A Preferred”) and 1,500,000 shares have been designated as Series B Convertible Preferred Stock (“Series B Preferred”) and 200,000 shares have been designated as Series C Convertible Preferred Stock (“Series C Preferred”).
Common Stock
As of May 3, 2016,July 9, 2019, there were 112,049,10718,935,746,396 shares of common stock outstanding. Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the Company’s stockholders. Holders of ourcommon stock are entitled to one vote for each share held on all matters submitted to a vote of the Company’s stockholders. Holders of common stock are entitled to receive, ratably, any dividends that may be declared by our Board of Directors out of legally available funds, subject to any preferential dividend rights of any outstanding preferred stock.Preferred Stock. Upon the Company’s liquidation, dissolution or winding up of the Company, holders of our Common Stock common stock are entitled to receive, ratably, the Company’s net assets available after the payment of all debts and other liabilities, and subject to the prior rights of any outstanding preferred stock.Preferred Stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights. The outstanding shares of common stock are fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are also subject to, and may be adversely affected by, the rights of holders of shares of any series of preferred stockPreferred Stock which the Company may designate and issue in the future without further stockholder approval.
Preferred StockSelling Stockholders Table
The Board is currently authorized, without further stockholder approval, to issuetable below presents information as of July 9, 2019, regarding the selling stockholders and the shares of common stock the selling stockholders may offer and sell from time to time upunder this prospectus. More specifically, the following table sets forth as to the selling stockholders:
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the number of shares of our common stock that the selling stockholders beneficially owned prior to this offering;
●
the total number of shares of our common stock that the selling stockholders may offer for resale pursuant to this prospectus; and
●
the number and percent of shares of our common stock beneficially held by the selling stockholders after this offering, assuming all of the resale shares of common stock are sold by the selling stockholders and that the selling stockholders do not acquire any additional shares of our common stock prior to their assumed sale of all of the resale shares.
The table was prepared based on information supplied to us by the selling stockholders. Although we have assumed for purposes of the table below that the selling stockholders will sell all of the securities offered by this prospectus, because the selling stockholders may offer from time to time all or some of their securities covered under this prospectus, or in another permitted manner, no assurances can be given as to the actual number of securities that will be resold by the selling stockholders or that will be held by the selling stockholders after completion of the resales. In addition, the selling stockholders may have sold, transferred or otherwise disposed of the securities in transactions exempt from the registration requirements of the Securities Act, since the date the selling stockholders provided the information regarding their securities holdings. Information covering the selling stockholders may change from time to time and changed information will be presented in a supplement to this prospectus if and when necessary and required.
Except as described above, there are currently no agreements, arrangements or understandings with respect to the resale of any of the securities covered by this prospectus.
The applicable percentages of ownership are based on an aggregate of 18,935,746,396 shares of our common stock issued and outstanding on July 9, 2019. The number of shares common stock beneficially owned by the selling stockholders is determined under rules promulgated by the SEC.
| | | Number of Shares of Common Stock Being Offered Pursuant to this Prospectus | Shares of Common Stock Beneficially Owned After Completion of the Offering (1) |
Name of Selling Stockholder (2) | Shares of Common Stock Beneficially Owned Prior to the Offering (3) | | Series A Conversion Shares | | | |
| | | | | | | |
| ABCS Partners (7) | 42,312,266 | 42,312,266 | - | - | - | * |
| Alan Finkelstein (8) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Alan R. Cornell Revocable Living Trust dtd 05/20/2010 (9) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Albert & Hiedi Gentile (10) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Allan Lipkowitz Revocable Trust dtd 08/26/2005 (11) | 16,078,732 | 2,679,777 | 8,039,402 | 5,359,554 | - | * |
| Alok and Ankur Agrawal (12) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Altium Growth Fund, LP (13) | 497,594,446 | 82,932,041 | 248,798,323 | 165,864,082 | - | * |
| Alto Opportunity Master Fund, SPC-Segregated Master Portfolio B (14) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Anand Kumar Sethia (15) | 9,477,990 | 1,579,658 | 4,739,016 | 3,159,316 | - | * |
| Andrew Arno (16) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Andrew Good (17) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Andrew Lester (18) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Andrew Rosen (19) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Anna Sacchetti (20) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Anthony Azzara (21) | 25,387,472 | 4,231,227 | 12,693,792 | 8,462,453 | - | * |
| Antonino Marciano (22) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Aroon Dalamal (23) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Aukee LLC (24) | 10,154,989 | 1,692,491 | 5,077,517 | 3,384,981 | - | * |
| Ben Healy (25) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Big Boy LLC (26) | 135,399,850 | 22,566,542 | 67,700,224 | 45,133,084 | - | * |
| Bigger Capital Fund LP (27) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Brandon Stump (28) | 9,379,218,889 | 9,379,218,889 | - | - | - | * |
| Brio Capital Master Fund Ltd (29) | 118,474,870 | 19,745,725 | 59,237,696 | 39,491,449 | - | * |
| Bruce Bernstein (30) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Bruce Doniger (31) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Byron Hughey (32) | 3,384,997 | 564,164 | 1,692,506 | 1,128,327 | - | * |
| Casey G Schoonover (33) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Casimir S. Skrzypczak (34) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Christopher Coleman (35) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Christopher Cozzolino (36) | 1,692,491 | 1,692,491 | - | - | - | * |
| Christopher Fiore (37) | 44,645,788 | 7,052,045 | 21,156,320 | 14,104,089 | 2,333,334 | * |
| Christopher J. & Denise M. Blum, JTWROS (38) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Clayton A. Struve (39) | 118,474,870 | 19,745,725 | 59,237,696 | 39,491,449 | - | * |
| Cobrador Multi-Strategy Partners, LP (40) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Conner Raisin (41) | 423,122,627 | 423,122,627 | - | - | - | * |
| Cox Investment Partners, LP (42) | 169,249,813 | 28,208,178 | 84,625,280 | 56,416,355 | - | * |
| Daniel D. Sambucci (43) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Daniel Harlin (44) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Daniel Salvas (45) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Daniel W. and Allaire Hummel JTWROS (46) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| David A Jenkins (47) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| David A Newman (48) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| E Celli & E Satloff TT Thomas I Unterberg Grandchildren's TR U/A DTD 04/26/1993 (49) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Empery Asset Master, Ltd (50) | 376,053,040 | 62,675,230 | 188,027,351 | 125,350,459 | - | * |
| Empery Tax Efficient II, LP (51) | 311,459,557 | 51,909,697 | 155,730,466 | 103,819,393 | - | * |
| Empery Tax Efficient, LP (52) | 74,111,558 | 12,351,872 | 37,055,943 | 24,703,744 | - | * |
| Empire Group Ltd. (53) | 33,855,856 | 5,641,636 | 16,925,056 | 11,283,271 | 5,893 | * |
| Eric Fosselman (54) | 13,539,986 | 2,256,655 | 6,770,022 | 4,513,309 | - | * |
| Ernest J. & Michele M. Mattei JTWROS (55) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Ernest M. Violet (56) | 47,389,948 | 7,898,290 | 23,695,078 | 15,796,579 | - | * |
| FirstFire Global Opportunities Fund LLC (57) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Four Jr. Investments, Ltd. (58) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Gabriel Adetoro (59) | 10,154,989 | 1,692,491 | 5,077,517 | 3,384,981 | - | * |
| Gregory Castaldo (60) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Heyer 1999 Family Trust No 1 (61) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Hudson Bay Master Fund Ltd (62) | 507,749,435 | 84,624,532 | 253,875,840 | 169,249,063 | - | * |
| Hudson Equity Partners, LLC (63) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Igor Semenov (64) | 152,324,831 | 25,387,360 | 76,162,752 | 50,774,719 | - | * |
| Ilario & Barbara J. Licul JTWROS (65) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Iroquois Capital Investment Group, LLC (66) | 1,456,726,555 | 430,174,705 | 613,533,280 | 409,018,570 | 4,000,000 | * |
| Iroquois Master Fund Ltd. (67) | 257,874,718 | 42,312,266 | 126,937,920 | 84,624,532 | 4,000,000 | * |
| James Gilbert (68) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| JD Advisors, LLC (69) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| JNS Holdings Group LLC (70) | 17,124,906 | 16,924,906 | - | - | 200,000 | * |
| Joel Pruzansky (71) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| John Athanasopoulos (72) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| John Sanderson (73) | 146,207,296 | 24,367,775 | 73,103,971 | 48,735,550 | - | * |
| John V. Wagner, Jr. (74) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Jonathan P. & Laura Greene JTWROS (75) | 4,231,246 | 705,205 | 2,115,632 | 1,410,409 | - | * |
| Jordan Sigalos (76) | 70,520,404 | 70,520,404 | - | - | - | * |
| Justin Keener D/B/A JMJ Financial (77) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Keith Stump (78) | 205,920,254 | 93,086,946 | | 45,133,084 | - | * |
| Kenneth F. Kremm (79) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Kevin Andrew McColl (80) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Konstantin Kozlov (81) | 6,769,994 | 1,128,328 | 3,385,011 | 2,256,655 | - | * |
| Lee Harrison Corbin (82) | 25,387,472 | 4,231,227 | 12,693,792 | 8,462,453 | - | * |
| Lee J. Seidler Revocable Trust dtd 04/12/1990 (83) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Lei Xia (84) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Leonard Stern (85) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Lina Kay (86) | 44,004,952 | 7,334,127 | 22,002,573 | 14,668,253 | - | * |
| Louis Sanzo (87) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Marc A Levinson (88) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Marilyn Kane (89) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Matthew Montesano (90) | 141,040,909 | 141,040,909 | - | - | - | * |
| Mel S. & Wendy Lavitt (91) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Michael Chill (92) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Michael J. Mathieu (93) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Michael P Valentine (94) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Michael Silverman (95) | 140,589,930 | 70,069,113 | 42,312,640 | 28,208,177 | - | * |
| Nat Tursi (96) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Opes Equities, Inc. (97) | 2,256,654 | 2,256,654 | - | - | - | * |
| Patrick G Patel (98) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Pauline M. Howard Trust dtd 01/02/1998 (99) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Pensco Trust Co Custodian FBO Andrew J. Malik, IRA (100) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Peter K Janssen (101) | 25,951,599 | 11,847,435 | 8,462,528 | 5,641,636 | - | * |
| Peter Ohler (102) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Philip W. Faucette II (103) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Proactive Capital Partners, LP (104) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Prokopi Sarris (105) | 184,481,479 | 184,481,479 | - | - | - | * |
| Red Beard Holdings LLC (106) | 3,073,832,068 | 1,324,615,069 | 761,627,520 | 507,747,190 | 479,842,289 | 10% |
| Richard N Molinsky (107) | 18,079,130 | 2,820,818 | 8,462,528 | 5,641,636 | 1,154,148 | * |
| Richard Pashayan (108) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Robert Burkhardt (109) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Robert Reitz (110) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Roman Livson (111) | 1,692,491 | 1,692,491 | - | - | - | * |
| Ryan Stump (112) | 4,019,665,353 | 4,019,665,353 | - | - | - | * |
| Scot Cohen (113) | 269,834,965 | 101,549,439 | 84,625,280 | 56,416,355 | 27,243,891 | * |
| SDS Capital Partners II, LLC (114) | 507,749,435 | 84,624,532 | 253,875,840 | 169,249,063 | - | * |
| SEG-RedaShex LLC (115) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Shaar Hazuhov, LLC (116) | 42,312,454 | 7,052,045 | 21,156,320 | 14,104,089 | - | * |
| Shanup Gundecha (117) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Shay Capital LLC (118) | 169,249,813 | 28,208,178 | 84,625,280 | 56,416,355 | - | * |
| Stephen Renaud (119) | 136,640,768 | 69,222,867 | 40,450,884 | 26,967,018 | - | * |
| Stormy Monday LLC (120) | 11,283,271 | 11,283,271 | - | - | - | * |
| The Bradley R. Kroenig Revocable Trust dtd 05/11/2016, Fourth Amended and Restated Trust dtd 09/13/2017 (121) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| The Craig R. Whited & Gilda Whited Joint Living Trust dtd 03/25/2016 (122) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| The Fourys Co. Ltd (123) | 25,387,472 | 4,231,227 | 12,693,792 | 8,462,453 | - | * |
| Thomas A. McGurk, Jr. (124) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Thomas Israel Unterberg (125) | 67,699,925 | 11,283,271 | 33,850,112 | 22,566,542 | - | * |
| Thomas Israel Unterberg TTEE Ellen Unterberg Celli Family Trust UA DTD 03/22/1993 (126) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Thomas Israel Unterberg TTEE Emily Unterberg Satloff Family Trust U/A DTD 03/25/1993 (127) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Thomas J. Enright, Jr. (128) | 22,002,477 | 3,667,064 | 11,001,286 | 7,334,127 | - | * |
| Thomas Zahavi (129) | 42,650,953 | 7,108,461 | 21,325,571 | 14,216,921 | - | * |
| Tim Elmes, LLC Pension Plan (130) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| US International Consulting Network-New Jersey Corp (dba ICN Holding) (131) | 44,004,952 | 7,334,127 | 22,002,573 | 14,668,253 | - | * |
| V3 Capital (132) | 75,284,362 | 73,341,261 | - | - | 1,943,101 | * |
| Wallace P. Kithcart, Jr. (133) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Warberg WF VI LP (134) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Westwood Capital Opportunity Fund LLC (135) | 169,249,813 | 28,208,178 | 84,625,280 | 56,416,355 | - | * |
| Willaim Rosenstadt (136) | 2,256,654 | 2,256,654 | - | - | - | * |
| William J Febbo (137) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| William Strawbridge (138) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| William Sykes (139) | 42,312,454 | 7,052,045 | 21,156,320 | 14,104,089 | - | * |
| Yad Zahav LLC (140) | 146,682,522 | 146,682,522 | - | - | - | * |
| Zachary Arrick (141) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| (1) | Beneficial ownership of the selling stockholders after the offering assumes (i) the selling stockholders have the ability to fully convert all shares of Series A Preferred held and to exercise all Investor Warrants, despite the Beneficial Ownership Limitation, as more specifically set forth in the section of this prospectus entitled “Prospectus Summary- The Share Exchange,” (ii) the conversion of all shares of Series A Preferred, and exercise of all Warrants held by the selling stockholders, and (iii) that each selling stockholder will sell all of the shares of common stock offered by it under this prospectus, including all shares of common stock that may be issued upon conversion of shares of Series A Preferred and the exercise of the Warrants identified herein. |
| (2) | Information concerning other selling stockholders will be set forth in one or more amendments to the registration statement, of which this prospectus forms a part, and/or prospectus supplements from time to time, as required. |
| (3) | Includes the (i) number of shares of common stock owned by each selling stockholder prior to the Share Exchange and (ii) all Series A Conversion Shares and Warrant Shares issuable upon conversion and/or exercise of shares of Series A Preferred and Warrants, as applicable, that may be held by each selling stockholder as of the date of this prospectus, in each case assuming that the issuance of such shares is not limited by the Beneficial Ownership Limitation. |
| (4) | Includes shares of common stock issued during the Share Exchange to the Series A Members and the Direct Investors and shares issued as Advisory Shares. |
| (5) | Includes Investor Warrants issued during the Share Exchange to the Series A Members and the Director Investors, and the Broker Warrants issued to Katalyst Securities LLC. |
| (6) | Calculation of the percent of shares beneficially owned by each selling stockholder after the offering assumes that only such selling stockholder’s derivative securities, including, without limitation, shares of Series A Preferred and all any Warrants were converted and/or exercised. Accordingly, the number of issued and outstanding shares used to calculate percent ownership was increased by the number of shares of common stock issuable upon the conversion and/or exercise of such derivative securities held by such selling stockholder, in each case assuming that the issuance of such shares is not limited by the Beneficial Ownership Limitation, or other beneficial ownership limitations set forth therein. |
| (7) | The address of ABCS Partners is 21 Inns Road, Scarsdale, NY 10583. Jeffrey Berman, Managing Partner of ABCS Partners, may be deemed to have voting and investment power over these securities. |
| (8) | The address of Alan Finkelstein is 132 Wilmot Circle, Scarsdale, NY 10583. |
| (9) | The address of Alan R. Cornell Revocable Living Trust dtd 05/20/2010 is 17640 Lake Estates Drive, Boca Raton, FL 33496. Alan R. Cornell, Trustee of the Alan R. Cornell Revocable Living Trust, may be deemed to have voting and investment power over these securities. |
| (10) | The address of Albert & Hiedi Gentile is 5 Mountain View Avenue, Mayfield, NY 12117. |
| (11) | The address of Allan Lipkowitz Revocable Trust dtd 08/26/2005 is 2686 Anza Trail, Palm Springs, CA 92264. Allan Lipkowitz, Trustee of the Allan Lipkowitz Revocable Trust, may be deemed to have voting and investment power over these securities. |
| (12) | The address of Alok and Ankur Agrawal is 18841 SW 41st Street, Miramar, FL 33029. |
| (13) | Altium Capital Management, LP, the investment manager of Altium Growth Fund, LP, has voting and investment power over these securities. Jacob Gottlieb is the managing member of Altium Capital Growth GP, LLC, which is the general partner of Altium Growth Fund, LP. Each of Altium Growth Fund, LP and Jacob Gottlieb disclaims beneficial ownership over these securities. The principal address of Altium Capital Management, LP is 551 Fifth Avenue, 19th Floor New York, New York 10176. |
| (14) | The address for Alto Opportunity Master Fund, SPC- Segregated Master Portfolio B (“Alto Opportunity”) is 222 Broadway, 19th Floor, New York, NY 10038. Waqas Khatri, Director of Alto Opportunity, may be deemed to have voting and investment power over these securities. |
| (15) | The address of Anand Kumar Sethia is Flat 7 Pavilion, 34 St. John's Wood Road, London, UK NW8 7HB. |
| (16) | The address of Andrew Arno is 160 Riverside Boulevard, Apt. 31D, New York, NY 10069. |
| (17) | The address of Andrew Good is 34 Dexter Avenue, Watertown, MA 02472. |
| (18) | The address of Andrew Lester is 68 Byram Ridge Road, Armonk, NY 10504. |
| (19) | The address of Andrew Rosen is 33 Mountain Avenue, Maplewood, NJ 07040. |
| (20) | The address of Anna Sacchetti is 54-36 252nd Street, Little Neck, NY 11362. |
| (21) | The address of Anthony Azzara is 11284 162nd Place N, Jupiter, FL 33478. |
| (22) | The address of Antonino Marciano is 2003 N. Ocean Blvd., Apt. 302, Boca Raton, FL 33431. |
| (23) | The address of Aroon Dalamal is Villa 33, Hattan 2, Dubai, UAE. |
| (24) | The address of Aukee LLC is 7 Douglass Manor, Covington, IN 47932. Kyle A. McGurk, Vice President of Aukee LLC, may be deemed to have voting and investment power over these securities. |
| (25) | The address of Ben Healy is 425 Fifth Avenue, 32E, New York, NY 10016. |
| (26) | The address of Big Boy LLC is 1111 Bayside Drive, Suite 270, Newport Beach, CA 92625. Jeff Gehl, Managing Partner of Big Boy LLC, may be deemed to have voting and investment power over these securities. |
| (27) | The address of Bigger Capital Fund LP is 159 Jennings Road, Cold Spring Harbor, NY 11724. Michael Bigger, Managing Member of Bigger Capital Fund LP, may be deemed to have voting and investment power over these securities. |
| (28) | The address of Brandon Stump is 1007 Brioso Drive, Costa Mesa, CA 92627. |
| (29) | The address of Brio Capital Master Fund Ltd is 100 Merrick Road, Suite 401W, Rockville Centre, NY 11570-4800. Shaye Hirsch, Director of Brio Capital Master Fund Ltd, may be deemed to have voting and investment power over these securities. |
| (30) | The address of Bruce Bernstein is 84 White Street, 9C, New York, NY 10013. |
| (31) | The address of Bruce Doniger is 17 Brookby Road, Scarsdale, NY 10583. |
| (32) | The address of Byron Hughey is 1111 Dogwood Drive, McLean, VA 22101. |
| (33) | The address of Casey G Schoonover is 777 Driggs Avenue, Apt. #2, Brooklyn, NY 11211. |
| (34) | The address of Casimir S. Skrzypczak is 413 Indies Drive, Orchid, FL 32963. |
| (35) | The address of Christopher Coleman is 5 Flagg Avenue, Montauk, NY 11954. |
| (36) | The address of Christopher Cozzolino is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017. |
| (37) | The address of Christopher Fiore is 340 East 64th Street, Apt. 9C, New York, NY 10065. |
| (38) | The address of Christopher J. & Denise M. Blum, JTWROS is 525 Budds Landing Road, Warwick, MD 21912. |
| (39) | The address of Clayton A. Struve is c/o RMR Wealth Mgt., 630 Third Ave. 5th Fl, New York, NY 10017. |
| (40) | The address of Cobrador Multi-Strategy Partners, LP is 32 Creemer Road, Armonk, NY 10504. David E. Graber, Managing Principal of Cobrador Multi-Strategy Partners, LP, may be deemed to have voting and investment power over these securities. |
| (41) | The address of Conner Raisin is 23 Goodwill Ct Newport Beach, CA 92663. |
| (42) | The address of Cox Investment Partners, LP is 4514 Cole Avenue #1175, Dallas, TX 75205. Craig Sanders, Manager of Cox Investment Partners, LP, may be deemed to have voting and investment power over these securities. |
| (43) | The address of Daniel D. Sambucci is 2003 N. Ocean Blvd., Apt. #N301, Boca Raton, FL 33431-8305. |
| (44) | The address of Daniel Harlin is 512 Walnut Street, New Orleans, LA 70118. |
| (45) | The address of Daniel Salvas is 6335 Around Hills Road, Indianapolis, IN 46226. |
| (46) | The address of Daniel W. and Allaire Hummel JTWROS is 284 Great House Farm Lane, Chesapeake City, MD 21915. |
| (47) | The address of David A Jenkins is 9611 North US Highway One, Box 390, Sebastian, FL 32958. |
| (48) | The address of David A Newman is 494 Pelican Lane South, Jupiter, FL 33458. |
| (49) | The address of E Celli & E Satloff TT Thomas I Unterberg Grandchildren's TR U/A DTD 04/26/1993 is 993 Park Avenue, Apt. 5S, New York, NY 10028-0922. |
| (50) | Empery Asset Management LP, the authorized agent of Empery Asset Master Ltd ("EAM"), has discretionary authority to vote and dispose of the shares held by EAM and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by EAM. EAM, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of Empery Asset Master, Ltd is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| (51) | Empery Asset Management LP, the authorized agent of Empery Tax Efficient, LP ("ETE"), has discretionary authority to vote and dispose of the shares held by ETE and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE. ETE, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of Empery Tax Efficient II, LP is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| (52) | Empery Asset Management LP, the authorized agent of Empery Tax Efficient II, LP ("ETE II"), has discretionary authority to vote and dispose of the shares held by ETE II and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE Il. ETE II, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of Empery Tax Efficient, LP is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| (53) | The address of Empire Group Ltd. is c/o Primeway S.A., 3rd Floor, Yamraj Building, Market Square, Road Town, Tortola, British Virgin Islands. Primeway S.A., Director of Empire Group Ltd, may be deemed to have voting and investment power over these securities. |
| (54) | The address of Eric Fosselman is 402 McDaniel Drive, Landenberg, PA 19350. |
| (55) | The address of Ernest J. & Michele M. Mattei JTWROS is 108 Gary Lynn Lane, Windsor, CT 06103. |
| (56) | The address of Ernest M. Violet is 228 East Shore Road, Jamestown, RI 02835. |
| (57) | The address of FirstFire Global Opportunities Fund LLC is 1040 1st Avenue, Suite 190, New York, NY 10022. Eliezer S. Fireman, Managing Member of FirstFire Global Opportunities Fund LLC, may be deemed to have voting and investment power over these securities. |
| (58) | The address of Four Jr. Investments, Ltd. is 844 Harbour Isles Pl., North Palm Beach, FL 33410. Robert Burke, Manager of Four Jr. Investments, Ltd., may be deemed to have voting and investment power over these securities. |
| (59) | The address of Gabriel Adetoro is 195 Classon Avenue, 2B, Brooklyn, NY 11205. |
| (60) | The address of Gregory Castaldo is 3776 Steven James Drive, Garnet Valley, PA 19061. |
| (61) | The address of Heyer 1999 Family Trust No 1 is c/o Mistral Equity Partners, 650 5th Ave. 10th Floor, New York, NY 10019. Steven J. Heyer, Trustee of the Heyer 1999 Family Trust No 1, may be deemed to have voting and investment power over these securities. |
| (62) | The address of Hudson Bay Master Fund Ltd is c/o Hudson Bay Capital Mgt., 777 Third Avenue, 30th Floor, New York, NY 10017. Hudson Bay Capital Management, LP, the investment manager of Hudson Bay Master Fund Ltd., has voting and investment power over these securities. Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial ownership over these securities. |
| (63) | The address of Hudson Equity Partners, LLC is 14 Arbor Field Way, Lake Grove, NY 11755. Jagdish Malhotra, Managing Member of Hudson Equity Partners, LLC, may be deemed to have voting and investment power over these securities. |
| (64) | The address of Igor Semenov is 9971 Winding Ridge Lane, Davie, FL 33324. |
| (65) | The address of Ilario & Barbara J. Licul JTWROS is 30 Waterside Plaza, Suite 7, New York, NY 10010. |
| (66) | The address of Iroquois Capital Investment Group, LLC is c/o Iroquois Capital, 125 Park Avenue, 25th Floor, New York, NY 10017. Richard Abbe may be deemed to have voting and investment power over these securities. |
| (67) | The address of Iroquois Master Fund Ltd. is c/o Iroquois Capital, 125 Park Avenue, 25th Floor, New York, NY 10017. Richard Abbe shares authority and responsibility for the investments made on behalf of Iroquois Master Fund with Kimberly Page, each of whom is a director of the Iroquois Master Fund. As such, Mr. Abbe and Ms. Page may each be deemed to have voting and investment power over these securities. |
| (68) | The address of James Gilbert is 859 Nowita Place, Venice, CA 90291. |
| (69) | The address of JD Advisors, LLC is 3543 Paxton Avenue, Cincinnati, OH 45208. Dan Kelly, Co-Manager of JD Advisors, LLC, may be deemed to have voting and investment power over these securities. |
| (70) | The address of JNS Holdings Group LLC is 3 Pinecrest Road, Scarsdale, NY 10583. Josh Silverman, Member of JNS Holdings Group LLC, may be deemed to have voting and investment power over these securities. |
| (71) | The address of Joel Pruzansky is 1066 Clinton Ave., Suite 200, Clifton, NJ 07013. |
| (72) | The address of John Athanasopoulos is 14 1/2 Fayette Street, Apt. 5, Cambridge, MA 02139. |
| (73) | The address of John Sanderson is 10324 Brookhollow Circle, Highlands Ranch, CO 80129. |
| (74) | The address of John V. Wagner, Jr. is 233 Jardin Drive, Los Altos, CA 94022. |
| (75) | The address of Jonathan P. & Laura Greene JTWROS is 94 West Mill Station Drive, Newark, DE 19701. |
| (76) | The address of Jordan Sigalos is 3395 Michelson Drive, #5551, Irvine, CA 92612. |
| (77) | The address of Justin Keener D/B/A JMJ Financial is 1688 Meridian Avenue, Ste 700, Miami Beach, FL 33139. |
| (78) | The address of Keith Stump is 686 Ashbrooke Way, Hudson, OH 44236. |
| (79) | The address of Kenneth F. Kremm is 3728 St. Andrews Drive, The Colony, TX 75056. |
| (80) | The address of Kevin Andrew McColl is 94 Polo Lane RD1 Manurewa, Auckland, New Zealand 2576. |
| (81) | The address of Konstantin Kozlov is Korneichuka Street 49-176, Moscow, Russia 127543. |
| (82) | The address of Lee Harrison Corbin is 45 Avon Road, Larchmont, NY 10538. |
| (83) | The address of Lee J. Seidler Revocable Trust dtd 04/12/1990 is 5001 Joewood Drive, Sanibel, FL 33957. Lee J. Seidler, Trustee of the Lee J. Seidler Revocable Trust, may be deemed to have voting and investment power over these securities. |
| (84) | The address of Lei Xia is 33 Bay State Road, Wellesley, MA 02481. |
| (85) | The address of Leonard Stern is 110 East 40th Street, Suite 802, New York, NY 10016. |
| (86) | The address of Lina Kay is 9703 Collins Ave, Apt. 2508 S, Bal Harbor, FL 33154. |
| (87) | The address of Louis Sanzo is 32 Boulevard, Malba, NY 11357. |
| (88) | The address of Marc A Levinson is 9 Stony Brook Drive, North Caldwell, NJ 07006. |
| (89) | The address of Marilyn Kane is 330 E. 38th Street, Apt. 16N, New York, NY 10016. |
| (90) | The address of Matthew Montesano is 3395 Michelson Drive, #5551, Irvine, CA 92612. |
| (91) | The address of Mel S. & Wendy Lavitt is 630 Mellow Mt. Road, P.O. Box 70, Park City, UT 84060. |
| (92) | The address of Michael Chill is 600 West End avenue, Apt. 8-A, New York, NY 10024. |
| (93) | The address of Michael J. Mathieu is 20 Andrews Road, Westborough, MA 01581. |
| (94) | The address of Michael P Valentine is 21 Fox Trace Lane, Hudson, OH 44236. |
| (95) | The address of Michael Silverman is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Silverman has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (96) | The address of Nat Tursi is 141-59 11th Avenue, Whitestone, NY 11356. |
| (97) | The address of Opes Equities, Inc. is 30 Waterside Plaza, Suite 7, New York, NY 10010. Barbara J. Glenns, Vice President of Opes Equities, Inc., may be deemed to have voting and investment power over these securities. |
| (98) | The address of Patrick G Patel is 3 Lagoon Drive East, Toms River, NJ 08753. |
| (99) | The address of Pauline M. Howard Trust dtd 01/02/1998 is 5 River Road, Elkton, MD 21922. |
| (100) | The address of Pensco Trust Co Custodian FBO Andrew J. Malik, IRA is 700 Park Avenue, PHB, New York, NY 10021. Andrew J. Malik may be deemed to have voting and investment power over these securities. |
| (101) | The address of Peter K Janssen is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Janssen has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (102) | The address of Peter Ohler is 14246 Dorcellin Court, Nevada City, CA 95959. |
| (103) | The address of Philip W. Faucette II is 7725 Friendship Church Road, Brown Summit, NC 27214. |
| (104) | The address of Proactive Capital Partners, LP is 150 East 58th Street, 20th Floor, New York, NY 10155. Jeffrey Ramson, Manager of Proactive Capital Partners, LP, may be deemed to have voting and investment power over these securities. |
| (105) | The address of Prokopi Sarris is 30-47 43rd Street, Astoria, NY 11103. |
| (106) | The address of Red Beard Holdings LLC is 17595 Harvard Avenue, Suite C511, Irvine, CA 92614. Vincent C. Smith, Manager of Red Beard Holdings LLC, may be deemed to have voting and investment power over these securities. |
| (107) | The address of Richard N Molinsky is 51 Lord's Highway East, Weston, CT 06883. |
| (108) | The address of Richard Pashayan is 3 Whitehall Boulevard South, Garden City, NY 11530. |
| (109) | The address of Robert Burkhardt is 165 West End Avenue, #22E, New York, NY 10023. |
| (110) | The address of Robert Reitz is 380 Atterbury Boulevard, Hudson, OH 44236. |
| (111) | The address of Roman Livson is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Livson has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (112) | The address of Ryan Stump is 246 Orange Street, Newport Beach, CA 92663. |
| (113) | The address of Scot Cohen is 20 East 20th Street, New York, NY 10003. |
| (114) | The address of SDS Capital Partners II, LLC is 500 Summer Street, Suite 405, Stamford, CT 06901. Steve Derby, Managing Member of SDS Capital Partners II, LLC, may be deemed to have voting and investment power over these securities. |
| (115) | The address of SEG-RedaShex LLC is 135 Sycamore Drive, Roslyn, NY 11576. Jonathan Schechter, Managung Member of SEG-RedaShex LLC, may be deemed to have voting and investment power over these securities. |
| (116) | The address of Shaar Hazuhov, LLC is 100 Hewes Street, Brooklyn, NY 11249. |
| (117) | The address of Shanup Gundecha is 11309 Ridgegate Drive, Raleigh, NC 27617. |
| (118) | The address of Shay Capital LLC is 280 Park Avenue, 5th Floor West, New York, NY 10017. Michael Murray, President of Shay Capital LLC, may be deemed to have voting and investment power over these securities. |
| (119) | The address of Stephen Renaud is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Renaud has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (120) | The address of Stormy Monday LLC is 84 White Street, Apt. #9C, New York, NY 10013. Bruce Bernstein, Member of Stormy Monday LLC, may be deemed to have voting and investment power over these securities. |
| (121) | The address of The Bradley R. Kroenig Revocable Trust dtd 05/11/2016, Fourth Amended and Restated Trust dtd 09/13/2017 is 657 Daniel Court, Wyckoff, NJ 07481. Bradley R. Kroenig, Trustee of the The Bradley R. Kroenig Revocable Trust, may be deemed to have voting and investment power over these securities. |
| (122) | The address of The Craig R. Whited & Gilda Whited Joint Living Trust dtd 03/25/2016 is 31145 Palos Verdes Drive East, Rancho Palos Verdes, CA 90275. Craig Whited, Trustee of the Craig R. Whited & Gilda Whited Joint Living Trust, may be deemed to have voting and investment power over these securities. |
| (123) | The address of The Fourys Co. Ltd is Alan Yanowitz, General Partner, 25825 Science Park Drive, #110, Beachwood, OH 44122. Alan Yanowitz, General Partner of The Fourys Co. Ltd., may be deemed to have voting and investment power over these securities. |
| (124) | The address of Thomas A. McGurk, Jr. is 7 Douglass Manor, Covington, IN 47932. |
| (125) | The address of Thomas Israel Unterberg is 100 West River Road, Rumson, NJ 07760. |
| (126) | The address of Thomas Israel Unterberg TTEE Ellen Unterberg Celli Family Trust UA DTD 03/22/1993 is 100 West River Road, Rumson, NJ 07760. |
| (127) | The address of Thomas Israel Unterberg TTEE Emily Unterberg Satloff Family Trust U/A DTD 03/25/1993 is 100 West River Road, Rumson, NJ 07760. |
| (128) | The address of Thomas J. Enright, Jr. is 698 Ashbrooke Way, Hudson, OH 44236. |
| (129) | The address of Thomas Zahavi is 240 Danbury Circle North, Rochester, NY 14618. |
| (130) | The address of Tim Elmes, LLC Pension Plan is 901 E. Las Olas Boulevard, Suite 101, Fort Lauderdale, FL 33301. |
| (131) | The address of US International Consulting Network-New Jersey Corp (dba ICN Holding) is 80 Scenic Drive, Suite 5, Freehold, NJ 07728. Igor Kokorine, Chief Financial Officer of US International Consulting Network-New Jersey Corp, may be deemed to have voting and investment power over these securities. |
| (132) | The address of V3 Capital is 20 East 20th Street, New York, NY 10003. Scot Cohen. Managing Partner of V3 Capital, may be deemed to have voting and investment power over these securities. |
| (133) | The address of Wallace P. Kithcart, Jr. is 9287 Hickory Ridge Drive, Streetsboro, OH 44241. |
| (134) | The address of Warberg WF VI LP is 716 Oak Street, Winnetka, IL 60093. Daniel Warsh, Manager of Warberg WF VI LP, may be deemed to have voting and investment power over these securities. |
| (135) | The address of Westwood Capital Opportunity Funds LLC is 312 Westwood Rd., Woodmere, NY 11598. Ari Zinberg, Chief Investment Officer of Westwood Capital Opportunity Funds LLC, may be deemed to have voting and investment power over these securities. |
| (136) | The address of Willaim Rosenstadt is c/o Ortoli Rosenstadt LLP, 366 Madison Avenue, 3rd Floor, New York, NY 10017. |
| (137) | The address of William J Febbo is 34 Calle Mimosa, San Juan, PR 00927. |
| (138) | The address of William Strawbridge is 11 Graceful Elm Court, The Woodlands, TX 77381. |
| (139) | The address of William Sykes is 19296 East County Road 1700 N, Charleston, IL 61920-8385. |
| (140) | The address of Yad Zahav LLC is 100 Hewes Street, Brooklyn, NY 11249. Ahron Gold, Officer of Yad Zahav LLC, may be deemed to have voting and investment power over these securities. |
| (141) | The address of Zachary Arrick is 435 W. 31st Street #41F, New York, NY 10001. |
Each selling stockholder and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their shares of common stock covered hereby on the OTC Pink Marketplace or any other stock exchange, market or trading facility on which the shares are traded or in private transactions. These sales may be at fixed or negotiated prices. A selling stockholder may use any one or more of the following methods when selling shares:
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
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an exchange distribution in accordance with the rules of the applicable exchange;
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privately negotiated transactions;
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settlement of short sales;
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in transactions through broker-dealers that agree with the selling stockholders to sell a specified number of such securities at a stipulated price per security;
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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a combination of any such methods of sale; or
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any other method permitted pursuant to applicable law.
The selling stockholders also may resell all or a portion of the securities in open market transactions in reliance upon Rule 144 under the Securities Act, as permitted by that rule, or Section 4(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria and conform to the requirements of those provisions
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. If the selling stockholders effect such transactions by selling securities to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the securities for whom they may act as agent or to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction will not be in excess of a customary brokerage commission in compliance with NASD Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with NASD IM-2440.
In connection with the sale of the common stock or interests in common stock, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of the common stock short and deliver these securities to close out their short positions, or loan or pledge the shares of common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each selling stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute their shares of common stock.
The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the shares. The Company has agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
The selling stockholders will be subject to the prospectus delivery requirements of the Securities Act, including Rule 172 thereunder. The selling stockholders have advised us that there is no underwriter or coordinating broker acting in connection with the proposed sale of the resale shares by the selling stockholders.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the shares may be resold by the selling stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act, or any other rule of similar effect (assuming that the shares were at no time held by any affiliate of ours, and all warrants are exercised by “cashless exercise” as provided in each of the warrants) or (ii) all of the shares have been sold pursuant to this prospectus or Rule 144 under the Securities Act, or any other rule of similar effect. The resale shares will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale shares of common stock covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale shares may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act, and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of shares of the common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
DESCRIPTION OF CAPITAL STOCK General
As of the date of this prospectus, the Company’s authorized capital stock currently consists of 50.0 billion shares of common stock, and 5.0 million shares of preferred stock, in one or more series and to fix or alter the designations, preferences, rights, qualifications, limitations or restrictions$0.001 par value per share, of thewhich 300,000 shares of each series, including the dividend rights, dividend rates, conversion rights, voting rights, term of redemption (including sinking fund provisions), redemption price or prices, liquidation preferences and the number of shares constituting any series or designations without further vote or action by the stockholders. The issuance of preferred stock may have the effect of delaying, deferring or preventing a change in control of management without further action by the stockholders and may adversely affect the voting and other rights of the holders of common stock. The issuance of preferred stock with voting and conversion rights may adversely affect the voting power of the holders of common stock, including the loss of voting control to others.
As of May 3, 2016, we had two outstanding series ofbeen designated as Series A Convertible Preferred Stock the (“Series BA Preferred”) and the Series C Preferred. Below is a summary of the terms of the Series B Preferred and Series C Preferred. For a full description of the rights and preferences associated with each series of Preferred Stock, please refer to the Series B Certificate of Designation and the Series C Certificate of Designation (each defined below), each available1,500,000 shares have been designated as an exhibit to our filings with the SEC.
Series B Convertible Preferred Stock
In November 2013, the Certificate of Designation, Preferences, Rights and Limitations of the Series B Convertible Preferred Stock (the “(“Series B Certificate of DesignationPreferred”) was filed with the Nevada Secretary of State, and subsequently amended and restated in February 2015, in order to designate 2.75 million shares of our Preferred Stock as Series B Preferred. The following summarizes the current rights and preferences of the Series B Preferred: .
As of RankJuly 9, 2019. The Series B Preferred ranks senior to, there were 18,935,746,396 shares of common stock outstanding. Holders of our common stock andare entitled to one vote for each share held on parity withall matters submitted to a vote of the Series C Preferred.
Company’s stockholders. Dividends. Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the Series B Preferred Company’s stockholders. Holders of common stock are entitled to receive, cumulativeratably, any dividends at the rate per share of 5% per annum, which dividends are currently payable in either cash or shares of common stock.
Voting Rights. Subject to certain restrictions in the Series B Certificate of Designation, the holders of the Series B Preferred are entitled to vote alongside holder of common stock, on an as-converted basis, on all matters as to which the approval of the stockholdersthat may be required.
Liquidation.Directors out of legally available funds, subject to any preferential dividend rights of any outstanding Preferred Stock. Upon anythe liquidation, dissolution or winding-upwinding up of the Company, whether voluntary or involuntary (a “Liquidation”), the holders of Series B Preferred our common stock are entitled to receive, out ofratably, the Company’s net assets whether capital or surplus, an amount equalavailable after the payment of all debts and other liabilities, and subject to the stated value of the Series B Preferred ($4 per share), plus any accrued and unpaid dividends thereon, before any distribution or payment shall be made to the holdersprior rights of any junior securities, includingoutstanding Preferred Stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights. The outstanding shares of common stock are fully paid and nonassessable. The rights, preferences and privileges of holders of our common stock. Ifstock are also subject to, and may be adversely affected by, the assetsrights of the Company are insufficient to pay, in full, such amounts, then the entire assets to be distributed to the holders of the Series B Preferred shall be ratably distributed among the holders in accordance with the respective amounts that would be payable on such shares if all amounts payable thereon were paid in full.
Conversion. Each share of Series B Preferred is convertible, at the option of the holder, into that number of shares of common stock equal toany series of Preferred Stock which the stated value thereof, divided by $0.25 per share (the "Series B Conversion Shares"). The Company has the option to require the conversion of the Series B Preferred into Series B Conversion Sharesmay designate and issue in the event the daily trading volume of the Company's common stock, divided by the closing price, equals at least $250,000 for 20 consecutive trading days and the average closing price of the Company's common stock is at least $0.62 per share for 10 consecutive trading days.future without further stockholder approval.
Certain Price and Share Adjustments.
a) Stock Dividends and Stock Splits. If the Company (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of common stock on shares of common stock or any other common stock equivalents; (ii) subdivides outstanding shares of common stock into a larger number of shares; (iii) combines (including by way of a reverse stock split) outstanding shares of common stock into a smaller number of shares; or (iv) issues, in the event of a reclassification of shares of the common stock, any shares of capital stock of the Company, then the conversion price shall be adjusted accordingly.
b) Merger or Reorganization. If the Company is involved in any reorganization, recapitalization, reclassification, consolidation or merger in which the common stock is converted into or exchanged for securities, cash or other property than each shares of Series B Preferred shall be convertible into the kind and amount of securities, cash or other property that a holder of the number of shares of common stock issuable upon conversion of one share of Series B Preferred prior to any such merger or reorganization would have been entitled to receive pursuant to such transaction.
Series C Convertible Preferred Stock
In February 2015, the Certificate of Designation, Preferences, Rights and Limitations of the Series C Convertible Preferred Stock (the “Series C Certificate of Designation”) was first filed with the Nevada Secretary of State, and most recently amended and restated in April 2016, in order to designate 200,000 shares of our preferred stock as Series C Preferred. The following summarizes the current rights and preferences of the Series C Preferred:
Rank. The Series C Preferred ranks senior to our common stock, and on parity with the Series B Preferred.
Voting Rights. Subject to certain limitations in the Series C Certificate of Designation, the holders of the Series C Preferred are entitled to vote alongside holder of common stock, on an as-converted basis, on all matters as to which the approval of the stockholders may be required.
Liquidation. Upon any Liquidation, the holders of Series C Preferred are entitled to receive out of the Company’s assets, whether capital or surplus, an amount equal to the stated value of the Series C Preferred ($100 per share), plus any accrued and unpaid dividends thereon, before any distribution or payment shall be made to the holders of any junior securities, including the common stock. If the Company’s assets are insufficient to pay, in full, such amounts, then the entire assets to be distributed to the holders of the Series C Preferred shall be ratably distributed among the holders in accordance with the respective amounts that would be payable on such shares if all amounts payable thereon were paid in full.
Conversion. Each share of Series C Preferred is convertible, at the option of the holder, into that number of shares of common stock equal to the stated value thereof, divided by $0.15 per share (the “Series C Conversion Shares”). The Company has the option to require the conversion of the Series C Preferred into Series C Conversion Shares in the event the average closing price of the Company's common stock is at least $0.62 per share for 10 consecutive trading days.
Certain Price and Share Adjustments.
a) Stock Dividends and Stock Splits. If the Company (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of common stock on shares of common stock or any other Common Stock equivalents; (ii) subdivides outstanding shares of common stock into a larger number of shares; (iii) combines (including by way of a reverse stock split) outstanding shares of common stock into a smaller number of shares; or (iv) issues, in the event of a reclassification of shares of the common stock, any shares of capital stock of the Company, then the conversion price shall be adjusted accordingly.
b) Merger or Reorganization. If the Company is involved in any reorganization, recapitalization, reclassification, consolidation or merger in which the common stock is converted into or exchanged for securities, cash or other property than each shares of Series C Preferred shall be convertible into the kind and amount of securities, cash or other property that a holder of the number of shares of common stock issuable upon conversion of one share of Series C Preferred prior to any such merger or reorganization would have been entitled to receive pursuant to such transaction.
DESCRIPTION OF SECURITIES TO BE REGISTERED
This prospectus relates to the registration of a total of 44,863,395 shares of common stock by the Company, on behalf of the Selling Stockholders listed on page 38 of this prospectus (the “Registrable Securities”). Below is a description of the transactions by which the Company issued the Registrable Securities to the Selling Stockholders.
August 2015Series C Offering
On August 13, 2015 (the “Initial Investment Date”), Red Beard Holdings, LLC (“Red Beard”) entered into a Securities Purchase Agreement (the “Purchase Agreement”), pursuant to which Red Beard agreed to purchase up to 17,648 shares of Series C Preferred for $113.33 per share (the “Shares”) over the course of three separate closings (the “Series C Offering”). The Company issued an aggregate total of 7,942 Shares on the Initial Investment Date, and 6,177 Shares on August 28, 2015 and the remaining 3,529 Shares on September 15, 2015. As additional consideration for the purchase of Shares in the Series C Offering, Red Beard received five-year warrants, originally exercisable for $0.17 per share (the “Exercise Price”), to purchase that number of shares of the Company's common stock equal to 35% of that number of shares of common stock determined by dividing (i) the Stated Value (as such term is defined in the Series C Amendment) of the Shares by (ii) the Exercise Price (the “Warrant Shares”).
In addition to the Purchase Agreement, the Company and Red Beard entered into a Registration Rights Agreement (the “Registration Rights Agreement”), pursuant to which the Company agreed to register the Warrant Shares issuable upon exercise of the Warrants, and the shares of common stock issuable upon conversion of the Shares, under the Securities Act on a Registration Statement on Form S-1 (the “Registration Statement”) on or before February 13, 2016.
On October 16, 2015, the Company and Red Beard executed an amendment to the Purchase Agreement (the “Purchase Agreement Amendment”). Pursuant to the terms and conditions of the Purchase Agreement Amendment, the Company sold to Red Beard an additional 8,823 Shares for gross proceeds of approximately $1.0 million. As additional consideration for the purchase of the Shares, Red Beard received a Warrant to purchase approximately 1.81 million shares of the Company’s common stock.
The Company, Red Beard and Vincent C. Smith also entered into an amendment to the Registration Rights Agreement (the “Registration Rights Amendment”), in order to include within the definition of “Registrable Securities”: (i) the shares of common stock issuable upon conversion of the Shares and upon exercise of the Warrant issued in connection with the Purchase Agreement Amendment, and (ii) the shares of common stock issuable upon exercise of the Personal Guaranty Warrant, as defined below.
Niagara Agreement and Personal Guaranty
On October 9, 2015, our wholly owned subsidiary, True Drinks, Inc., a Delaware corporation (“True Drinks”), entered into a bottling agreement (the “Niagara Agreement”) with Niagara Bottling, LLC, a Delaware limited liability company (“Niagara”), pursuant to which Niagara will become the exclusive manufacturer of AquaBall(TM) Naturally Flavored Water for the next five years.
The Niagara Agreement requires the Company to deliver to Niagara its minimum volume requirements for the upcoming 12-month period on or before February 1st of each year (the “Annual Commitment”), which Annual Commitment may not be less than 3.2 million Cases (defined in the Niagara Agreement as a pack of 24 bottles of AquaBall(TM) Naturally Flavored Water) per purchase order. Subject to the terms and conditions of the Niagara Agreement, the Company will pay to Niagara $6.35 per Case manufactured, for an annual financial liability of approximately $20.3 million per year.
Mr. Vincent C. Smith, the Company’s largest shareholder, executed a personal guaranty of True Drinks’ obligations under the Niagara Agreement (the “Personal Guaranty”). As consideration for Mr. Smith’s execution of the Personal Guaranty, the Company issued to Mr. Smith a five-year warrant (the “Personal Guaranty Warrant”), to purchase 17.5 million shares of the Company’s common stock for $0.188 per share.
As noted above, on October 16, 2015, the Company agreed to include the shares of common stock issuable upon exercise of the Personal Guaranty Warrant within the definition of “Registrable Securities” in the Registration Rights Amendment.
Issuance of Novelty Warrant
In October 2015, the Company engaged Novelty Capital Group LLC (“Novelty”) to provide the Company with certain advisory services related to investor relations. As consideration, the Company issued to Novelty a warrant (the “Novelty Warrant”) to purchase up to 884,211 shares of common stock for $0.19 per share, subject to a monthly vesting schedule over a 12-month period, provided the Company continued to engage Novelty. The Novelty Warrant also provided Novelty with piggyback registration rights.
On February 14, 2016, the Company terminated its engagement of Novelty. As of that date, a total of 294,737 shares had vested under the Novelty Warrant.
November Series C Offering and Adjustment of Exercise Price of the Warrants and Personal Guaranty Warrant
On November 25, 2015, the Company and Red Beard entered into a securities purchase agreement, pursuant to which Red Beard agreed to purchase up to 30,000 shares of Series C Preferred for $100 per share over the course of three separate closings between November 2015 and January 2016 (the “November Purchase Agreement”). As additional consideration for the purchase of the shares of Series C Preferred, Red Beard received five-year warrants, exercisable for $0.15 per share, to purchase that number of shares of the Company's common stock equal to 35% of the shares of common stock issuable upon conversion of the shares of Series C Preferred purchased.
Due to certain adjustment provisions in the Warrants and the Personal Guaranty Warrant, the issuance of the warrants pursuant to the November Purchase Agreement caused a decrease in the exercise price of the Warrants issued during private placement transactions between August 2015 and October 2015 and the Personal Guaranty Warrant to $0.15 per share. However, the exercise price of the Novelty Warrant remained unchanged.
Note Exchange
On January 20, 2016, the Company and holders (the “Holders”) of Secured Notes in the principal amount of $500,000 entered into Note Exchange Agreements pursuant to which the Holders agreed to convert the outstanding principal balance of their Secured Notes into an aggregate total of 4,413 shares of Series C Preferred and Warrants to purchase up to an agate total of 1,029,701 shares of common stock for $0.17 per share. Each Note Exchange Agreement provided piggyback registration rights to the Holders for the shares of common stock issuable upon conversion of the shares of Series C Preferred and upon exercise of the Warrants.
Pursuant to the terms and conditions of the Registration Rights Amendment, and certain provisions in the Note Exchange Agreement and the Novelty Warrant, the Company has agreed to register the Registrable Securities under the Securities Act. Accordingly, we filed a Registration Statement on Form S-1, of which this prospectus forms a part, with respect to the resale of the Registrable Securities from time to time. In addition, we agreed in the Registration Rights Agreement to use our best efforts to keep the registration statement effective until the Registrable Securities are sold or may be sold without registration or prospectus delivery requirements under the Securities Act, subject to certain restrictions.
Selling Stockholders Table
We filed a Registration Statement on Form S-1 with the SEC, of which this prospectus forms a part, with respect to the resale of the Registerable Securities from time to time under Rule 415 of the Securities Act. The Registerable Securities were registered to permit secondary public trading thereof. Subject to the restrictions described in this prospectus, the Selling Stockholders may offer the Registerable Securities for resale from time to time. In addition, subject to the restrictions described in this prospectus, the Selling Stockholders may sell, transfer or otherwise dispose of all or a portion of any Registerable Securities held in transactions exempt from the registration requirements of the Securities Act. See “Plan of Distribution” below for more information.
The table below presents information as of May 3, 2016,July 9, 2019, regarding the Selling Stockholdersselling stockholders and the Registerable Securities shares of common stock the Selling Stockholders (and their donees, pledgees, assignees, transferees and other successors in interest)selling stockholders may offer and sell from time to time under this prospectus. More specifically, the following table sets forth as to the Selling Stockholders:selling stockholders:
● | the number of shares of our common stock beneficially owned by each Selling Stockholders prior to the offering for resale of any of the shares of our common stock being registered by the registration statement of which this prospectus is a part; |
●
the number of shares of our common stock that the selling stockholders beneficially owned prior to this offering;
● | the number of shares of our common stock that may be offered for resale for the Selling Stockholders’ account under this prospectus; and |
●
the total number of shares of our common stock that the selling stockholders may offer for resale pursuant to this prospectus; and
● | the number and percent of shares of our common stock to be held by the Selling Stockholders after the offering of the resale securities, assuming all of the resale shares of common stock are sold by the Selling Stockholders and that the Selling Stockholders do not acquire any other shares of our common stock prior to their assumed sale of all of the resale shares. |
●
the number and percent of shares of our common stock beneficially held by the selling stockholders after this offering, assuming all of the resale shares of common stock are sold by the selling stockholders and that the selling stockholders do not acquire any additional shares of our common stock prior to their assumed sale of all of the resale shares.
None of the Selling Stockholders has held a position as an officer or director of the company, nor has any Selling Stockholder had any material relationship of any kind with us or any of our affiliates. Except as otherwise indicated in the footnotes to the table, the Selling Stockholders possess sole voting and investment power with respect to the shares shown, and no Selling Stockholder is a broker-dealer or an affiliate of a broker-dealer.
The following table was prepared based on information supplied to us by the Selling Stockholder, as well as certain information known to us asselling stockholders. Although we have assumed for purposes of the date of this prospectus. Except as indicatedtable below that the share amounts under the columns “Shares Beneficially Owned Before the Offering” and “Maximum Number of Shares Offered” consist of the Registrable Securities, and the share amounts under the columns “Shares Beneficially Owned after the Offering” assumeselling stockholders will sell all of the securities offered shares areby this prospectus, because the selling stockholders may offer from time to time all or some of their securities covered under this prospectus, or in another permitted manner, no assurances can be given as to the actual number of securities that will be resold by the selling stockholders or that will be held by the selling stockholders after completion of the resales. In addition, the selling stockholders may have sold, pursuanttransferred or otherwise disposed of the securities in transactions exempt from the registration requirements of the Securities Act, since the date the selling stockholders provided the information regarding their securities holdings. Information covering the selling stockholders may change from time to time and changed information will be presented in a supplement to this prospectus if and when necessary and required.
Except as described above, there are currently no agreements, arrangements or understandings with respect to the resale of any of the securities covered by this prospectus.
The applicable percentages of ownership are based on an aggregate of 18,935,746,396 shares of our common stock issued and outstanding on July 9, 2019. The number of shares common stock beneficially owned by the selling stockholders is determined under rules promulgated by the SEC.
| | | Shares Beneficially Owned Prior to Offering* | | | Maximum Number of Shares Being Offered Pursuant to this Prospectus | | | Shares Beneficially Owned After Offering* | |
| Name of Selling Security Holder (1) | | Number | | | Percent | | | | | | | | | | |
Red Beard Holdings, LLC (2) | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | |
Novelty Capital Group LLC (7) | | | | | | | | | | | | | | | | | | | | |
| | | Number of Shares of Common Stock Being Offered Pursuant to this Prospectus | Shares of Common Stock Beneficially Owned After Completion of the Offering (1) |
Name of Selling Stockholder (2) | Shares of Common Stock Beneficially Owned Prior to the Offering (3) | | Series A Conversion Shares | | | |
| | | | | | | |
| ABCS Partners (7) | 42,312,266 | 42,312,266 | - | - | - | * |
| Alan Finkelstein (8) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Alan R. Cornell Revocable Living Trust dtd 05/20/2010 (9) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Albert & Hiedi Gentile (10) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Allan Lipkowitz Revocable Trust dtd 08/26/2005 (11) | 16,078,732 | 2,679,777 | 8,039,402 | 5,359,554 | - | * |
| Alok and Ankur Agrawal (12) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Altium Growth Fund, LP (13) | 497,594,446 | 82,932,041 | 248,798,323 | 165,864,082 | - | * |
| Alto Opportunity Master Fund, SPC-Segregated Master Portfolio B (14) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Anand Kumar Sethia (15) | 9,477,990 | 1,579,658 | 4,739,016 | 3,159,316 | - | * |
| Andrew Arno (16) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Andrew Good (17) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Andrew Lester (18) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Andrew Rosen (19) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Anna Sacchetti (20) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Anthony Azzara (21) | 25,387,472 | 4,231,227 | 12,693,792 | 8,462,453 | - | * |
| Antonino Marciano (22) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Aroon Dalamal (23) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Aukee LLC (24) | 10,154,989 | 1,692,491 | 5,077,517 | 3,384,981 | - | * |
| Ben Healy (25) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Big Boy LLC (26) | 135,399,850 | 22,566,542 | 67,700,224 | 45,133,084 | - | * |
| Bigger Capital Fund LP (27) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Brandon Stump (28) | 9,379,218,889 | 9,379,218,889 | - | - | - | * |
| Brio Capital Master Fund Ltd (29) | 118,474,870 | 19,745,725 | 59,237,696 | 39,491,449 | - | * |
| Bruce Bernstein (30) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Bruce Doniger (31) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Byron Hughey (32) | 3,384,997 | 564,164 | 1,692,506 | 1,128,327 | - | * |
| Casey G Schoonover (33) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Casimir S. Skrzypczak (34) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Christopher Coleman (35) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Christopher Cozzolino (36) | 1,692,491 | 1,692,491 | - | - | - | * |
| Christopher Fiore (37) | 44,645,788 | 7,052,045 | 21,156,320 | 14,104,089 | 2,333,334 | * |
| Christopher J. & Denise M. Blum, JTWROS (38) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Clayton A. Struve (39) | 118,474,870 | 19,745,725 | 59,237,696 | 39,491,449 | - | * |
| Cobrador Multi-Strategy Partners, LP (40) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Conner Raisin (41) | 423,122,627 | 423,122,627 | - | - | - | * |
| Cox Investment Partners, LP (42) | 169,249,813 | 28,208,178 | 84,625,280 | 56,416,355 | - | * |
| Daniel D. Sambucci (43) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Daniel Harlin (44) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Daniel Salvas (45) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Daniel W. and Allaire Hummel JTWROS (46) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| David A Jenkins (47) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| David A Newman (48) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| E Celli & E Satloff TT Thomas I Unterberg Grandchildren's TR U/A DTD 04/26/1993 (49) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Empery Asset Master, Ltd (50) | 376,053,040 | 62,675,230 | 188,027,351 | 125,350,459 | - | * |
| Empery Tax Efficient II, LP (51) | 311,459,557 | 51,909,697 | 155,730,466 | 103,819,393 | - | * |
| Empery Tax Efficient, LP (52) | 74,111,558 | 12,351,872 | 37,055,943 | 24,703,744 | - | * |
| Empire Group Ltd. (53) | 33,855,856 | 5,641,636 | 16,925,056 | 11,283,271 | 5,893 | * |
| Eric Fosselman (54) | 13,539,986 | 2,256,655 | 6,770,022 | 4,513,309 | - | * |
| Ernest J. & Michele M. Mattei JTWROS (55) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Ernest M. Violet (56) | 47,389,948 | 7,898,290 | 23,695,078 | 15,796,579 | - | * |
| FirstFire Global Opportunities Fund LLC (57) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Four Jr. Investments, Ltd. (58) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Gabriel Adetoro (59) | 10,154,989 | 1,692,491 | 5,077,517 | 3,384,981 | - | * |
| Gregory Castaldo (60) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Heyer 1999 Family Trust No 1 (61) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Hudson Bay Master Fund Ltd (62) | 507,749,435 | 84,624,532 | 253,875,840 | 169,249,063 | - | * |
| Hudson Equity Partners, LLC (63) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Igor Semenov (64) | 152,324,831 | 25,387,360 | 76,162,752 | 50,774,719 | - | * |
| Ilario & Barbara J. Licul JTWROS (65) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Iroquois Capital Investment Group, LLC (66) | 1,456,726,555 | 430,174,705 | 613,533,280 | 409,018,570 | 4,000,000 | * |
| Iroquois Master Fund Ltd. (67) | 257,874,718 | 42,312,266 | 126,937,920 | 84,624,532 | 4,000,000 | * |
| James Gilbert (68) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| JD Advisors, LLC (69) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| JNS Holdings Group LLC (70) | 17,124,906 | 16,924,906 | - | - | 200,000 | * |
| Joel Pruzansky (71) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| John Athanasopoulos (72) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| John Sanderson (73) | 146,207,296 | 24,367,775 | 73,103,971 | 48,735,550 | - | * |
| John V. Wagner, Jr. (74) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Jonathan P. & Laura Greene JTWROS (75) | 4,231,246 | 705,205 | 2,115,632 | 1,410,409 | - | * |
| Jordan Sigalos (76) | 70,520,404 | 70,520,404 | - | - | - | * |
| Justin Keener D/B/A JMJ Financial (77) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Keith Stump (78) | 205,920,254 | 93,086,946 | | 45,133,084 | - | * |
| Kenneth F. Kremm (79) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Kevin Andrew McColl (80) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Konstantin Kozlov (81) | 6,769,994 | 1,128,328 | 3,385,011 | 2,256,655 | - | * |
| Lee Harrison Corbin (82) | 25,387,472 | 4,231,227 | 12,693,792 | 8,462,453 | - | * |
| Lee J. Seidler Revocable Trust dtd 04/12/1990 (83) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Lei Xia (84) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Leonard Stern (85) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Lina Kay (86) | 44,004,952 | 7,334,127 | 22,002,573 | 14,668,253 | - | * |
| Louis Sanzo (87) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Marc A Levinson (88) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Marilyn Kane (89) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Matthew Montesano (90) | 141,040,909 | 141,040,909 | - | - | - | * |
| Mel S. & Wendy Lavitt (91) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Michael Chill (92) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Michael J. Mathieu (93) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Michael P Valentine (94) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| Michael Silverman (95) | 140,589,930 | 70,069,113 | 42,312,640 | 28,208,177 | - | * |
| Nat Tursi (96) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Opes Equities, Inc. (97) | 2,256,654 | 2,256,654 | - | - | - | * |
| Patrick G Patel (98) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Pauline M. Howard Trust dtd 01/02/1998 (99) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Pensco Trust Co Custodian FBO Andrew J. Malik, IRA (100) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Peter K Janssen (101) | 25,951,599 | 11,847,435 | 8,462,528 | 5,641,636 | - | * |
| Peter Ohler (102) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Philip W. Faucette II (103) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Proactive Capital Partners, LP (104) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Prokopi Sarris (105) | 184,481,479 | 184,481,479 | - | - | - | * |
| Red Beard Holdings LLC (106) | 3,073,832,068 | 1,324,615,069 | 761,627,520 | 507,747,190 | 479,842,289 | 10% |
| Richard N Molinsky (107) | 18,079,130 | 2,820,818 | 8,462,528 | 5,641,636 | 1,154,148 | * |
| Richard Pashayan (108) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Robert Burkhardt (109) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Robert Reitz (110) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Roman Livson (111) | 1,692,491 | 1,692,491 | - | - | - | * |
| Ryan Stump (112) | 4,019,665,353 | 4,019,665,353 | - | - | - | * |
| Scot Cohen (113) | 269,834,965 | 101,549,439 | 84,625,280 | 56,416,355 | 27,243,891 | * |
| SDS Capital Partners II, LLC (114) | 507,749,435 | 84,624,532 | 253,875,840 | 169,249,063 | - | * |
| SEG-RedaShex LLC (115) | 50,774,945 | 8,462,454 | 25,387,584 | 16,924,907 | - | * |
| Shaar Hazuhov, LLC (116) | 42,312,454 | 7,052,045 | 21,156,320 | 14,104,089 | - | * |
| Shanup Gundecha (117) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Shay Capital LLC (118) | 169,249,813 | 28,208,178 | 84,625,280 | 56,416,355 | - | * |
| Stephen Renaud (119) | 136,640,768 | 69,222,867 | 40,450,884 | 26,967,018 | - | * |
| Stormy Monday LLC (120) | 11,283,271 | 11,283,271 | - | - | - | * |
| The Bradley R. Kroenig Revocable Trust dtd 05/11/2016, Fourth Amended and Restated Trust dtd 09/13/2017 (121) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| The Craig R. Whited & Gilda Whited Joint Living Trust dtd 03/25/2016 (122) | 84,624,906 | 14,104,089 | 42,312,640 | 28,208,177 | - | * |
| The Fourys Co. Ltd (123) | 25,387,472 | 4,231,227 | 12,693,792 | 8,462,453 | - | * |
| Thomas A. McGurk, Jr. (124) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Thomas Israel Unterberg (125) | 67,699,925 | 11,283,271 | 33,850,112 | 22,566,542 | - | * |
| Thomas Israel Unterberg TTEE Ellen Unterberg Celli Family Trust UA DTD 03/22/1993 (126) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Thomas Israel Unterberg TTEE Emily Unterberg Satloff Family Trust U/A DTD 03/25/1993 (127) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| Thomas J. Enright, Jr. (128) | 22,002,477 | 3,667,064 | 11,001,286 | 7,334,127 | - | * |
| Thomas Zahavi (129) | 42,650,953 | 7,108,461 | 21,325,571 | 14,216,921 | - | * |
| Tim Elmes, LLC Pension Plan (130) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| US International Consulting Network-New Jersey Corp (dba ICN Holding) (131) | 44,004,952 | 7,334,127 | 22,002,573 | 14,668,253 | - | * |
| V3 Capital (132) | 75,284,362 | 73,341,261 | - | - | 1,943,101 | * |
| Wallace P. Kithcart, Jr. (133) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| Warberg WF VI LP (134) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| Westwood Capital Opportunity Fund LLC (135) | 169,249,813 | 28,208,178 | 84,625,280 | 56,416,355 | - | * |
| Willaim Rosenstadt (136) | 2,256,654 | 2,256,654 | - | - | - | * |
| William J Febbo (137) | 33,849,963 | 5,641,636 | 16,925,056 | 11,283,271 | - | * |
| William Strawbridge (138) | 8,462,491 | 1,410,409 | 4,231,264 | 2,820,818 | - | * |
| William Sykes (139) | 42,312,454 | 7,052,045 | 21,156,320 | 14,104,089 | - | * |
| Yad Zahav LLC (140) | 146,682,522 | 146,682,522 | - | - | - | * |
| Zachary Arrick (141) | 16,924,982 | 2,820,818 | 8,462,528 | 5,641,636 | - | * |
| (1) | Beneficial ownership of the selling stockholders after the offering assumes (i) the selling stockholders have the ability to fully convert all shares of Series A Preferred held and to exercise all Investor Warrants, despite the Beneficial Ownership Limitation, as more specifically set forth in the section of this prospectus entitled “Prospectus Summary- The Share Exchange,” (ii) the conversion of all shares of Series A Preferred, and exercise of all Warrants held by the selling stockholders, and (iii) that each selling stockholder will sell all of the shares of common stock offered by it under this prospectus, including all shares of common stock that may be issued upon conversion of shares of Series A Preferred and the exercise of all derivative securities held by the Selling Stockholder.Warrants identified herein. |
** | Less than 1%.
|
(1)(2) | Information concerning other Selling Stockholdersselling stockholders will be set forth in one or more amendments to the registration statement, of which this prospectus forms a part, and/or prospectus supplements from time to time, ifas required. |
(2)(3) | See table titled “Security OwnershipIncludes the (i) number of Certain Beneficial Ownersshares of common stock owned by each selling stockholder prior to the Share Exchange and Management” on p. 35(ii) all Series A Conversion Shares and Warrant Shares issuable upon conversion and/or exercise of shares of Series A Preferred and Warrants, as applicable, that may be held by each selling stockholder as of the date of this prospectus, for information regarding securities heldin each case assuming that the issuance of such shares is not limited by Red Beard Holdings, LLC (“Red Beard”) priorthe Beneficial Ownership Limitation.
|
| (4) | Includes shares of common stock issued during the Share Exchange to this offering.the Series A Members and the Direct Investors and shares issued as Advisory Shares. |
| (5) | Includes Investor Warrants issued during the Share Exchange to the Series A Members and the Director Investors, and the Broker Warrants issued to Katalyst Securities LLC. |
Shares offered pursuant| (6) | Calculation of the percent of shares beneficially owned by each selling stockholder after the offering assumes that only such selling stockholder’s derivative securities, including, without limitation, shares of Series A Preferred and all any Warrants were converted and/or exercised. Accordingly, the number of issued and outstanding shares used to this prospectus consistcalculate percent ownership was increased by the number of 17,647,333 shares of common stock issuable upon the conversion of 26,471 shares of Series C Preferred and 5,449,912 shares issuable uponand/or exercise of Warrants issuedsuch derivative securities held by such selling stockholder, in each case assuming that the issuance of such shares is not limited by the Beneficial Ownership Limitation, or other beneficial ownership limitations set forth therein. |
| (7) | The address of ABCS Partners is 21 Inns Road, Scarsdale, NY 10583. Jeffrey Berman, Managing Partner of ABCS Partners, may be deemed to have voting and investment power over these securities. |
| (8) | The address of Alan Finkelstein is 132 Wilmot Circle, Scarsdale, NY 10583. |
| (9) | The address of Alan R. Cornell Revocable Living Trust dtd 05/20/2010 is 17640 Lake Estates Drive, Boca Raton, FL 33496. Alan R. Cornell, Trustee of the Alan R. Cornell Revocable Living Trust, may be deemed to have voting and investment power over these securities. |
| (10) | The address of Albert & Hiedi Gentile is 5 Mountain View Avenue, Mayfield, NY 12117. |
| (11) | The address of Allan Lipkowitz Revocable Trust dtd 08/26/2005 is 2686 Anza Trail, Palm Springs, CA 92264. Allan Lipkowitz, Trustee of the Allan Lipkowitz Revocable Trust, may be deemed to have voting and investment power over these securities. |
| (12) | The address of Alok and Ankur Agrawal is 18841 SW 41st Street, Miramar, FL 33029. |
| (13) | Altium Capital Management, LP, the investment manager of Altium Growth Fund, LP, has voting and investment power over these securities. Jacob Gottlieb is the managing member of Altium Capital Growth GP, LLC, which is the general partner of Altium Growth Fund, LP. Each of Altium Growth Fund, LP and Jacob Gottlieb disclaims beneficial ownership over these securities. The principal address of Altium Capital Management, LP is 551 Fifth Avenue, 19th Floor New York, New York 10176. |
| (14) | The address for Alto Opportunity Master Fund, SPC- Segregated Master Portfolio B (“Alto Opportunity”) is 222 Broadway, 19th Floor, New York, NY 10038. Waqas Khatri, Director of Alto Opportunity, may be deemed to have voting and investment power over these securities. |
| (15) | The address of Anand Kumar Sethia is Flat 7 Pavilion, 34 St. John's Wood Road, London, UK NW8 7HB. |
| (16) | The address of Andrew Arno is 160 Riverside Boulevard, Apt. 31D, New York, NY 10069. |
| (17) | The address of Andrew Good is 34 Dexter Avenue, Watertown, MA 02472. |
| (18) | The address of Andrew Lester is 68 Byram Ridge Road, Armonk, NY 10504. |
| (19) | The address of Andrew Rosen is 33 Mountain Avenue, Maplewood, NJ 07040. |
| (20) | The address of Anna Sacchetti is 54-36 252nd Street, Little Neck, NY 11362. |
| (21) | The address of Anthony Azzara is 11284 162nd Place N, Jupiter, FL 33478. |
| (22) | The address of Antonino Marciano is 2003 N. Ocean Blvd., Apt. 302, Boca Raton, FL 33431. |
| (23) | The address of Aroon Dalamal is Villa 33, Hattan 2, Dubai, UAE. |
| (24) | The address of Aukee LLC is 7 Douglass Manor, Covington, IN 47932. Kyle A. McGurk, Vice President of Aukee LLC, may be deemed to have voting and investment power over these securities. |
| (25) | The address of Ben Healy is 425 Fifth Avenue, 32E, New York, NY 10016. |
| (26) | The address of Big Boy LLC is 1111 Bayside Drive, Suite 270, Newport Beach, CA 92625. Jeff Gehl, Managing Partner of Big Boy LLC, may be deemed to have voting and investment power over these securities. |
| (27) | The address of Bigger Capital Fund LP is 159 Jennings Road, Cold Spring Harbor, NY 11724. Michael Bigger, Managing Member of Bigger Capital Fund LP, may be deemed to have voting and investment power over these securities. |
| (28) | The address of Brandon Stump is 1007 Brioso Drive, Costa Mesa, CA 92627. |
| (29) | The address of Brio Capital Master Fund Ltd is 100 Merrick Road, Suite 401W, Rockville Centre, NY 11570-4800. Shaye Hirsch, Director of Brio Capital Master Fund Ltd, may be deemed to have voting and investment power over these securities. |
| (30) | The address of Bruce Bernstein is 84 White Street, 9C, New York, NY 10013. |
| (31) | The address of Bruce Doniger is 17 Brookby Road, Scarsdale, NY 10583. |
| (32) | The address of Byron Hughey is 1111 Dogwood Drive, McLean, VA 22101. |
| (33) | The address of Casey G Schoonover is 777 Driggs Avenue, Apt. #2, Brooklyn, NY 11211. |
| (34) | The address of Casimir S. Skrzypczak is 413 Indies Drive, Orchid, FL 32963. |
| (35) | The address of Christopher Coleman is 5 Flagg Avenue, Montauk, NY 11954. |
| (36) | The address of Christopher Cozzolino is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017. |
| (37) | The address of Christopher Fiore is 340 East 64th Street, Apt. 9C, New York, NY 10065. |
| (38) | The address of Christopher J. & Denise M. Blum, JTWROS is 525 Budds Landing Road, Warwick, MD 21912. |
| (39) | The address of Clayton A. Struve is c/o RMR Wealth Mgt., 630 Third Ave. 5th Fl, New York, NY 10017. |
| (40) | The address of Cobrador Multi-Strategy Partners, LP is 32 Creemer Road, Armonk, NY 10504. David E. Graber, Managing Principal of Cobrador Multi-Strategy Partners, LP, may be deemed to have voting and investment power over these securities. |
| (41) | The address of Conner Raisin is 23 Goodwill Ct Newport Beach, CA 92663. |
| (42) | The address of Cox Investment Partners, LP is 4514 Cole Avenue #1175, Dallas, TX 75205. Craig Sanders, Manager of Cox Investment Partners, LP, may be deemed to have voting and investment power over these securities. |
| (43) | The address of Daniel D. Sambucci is 2003 N. Ocean Blvd., Apt. #N301, Boca Raton, FL 33431-8305. |
| (44) | The address of Daniel Harlin is 512 Walnut Street, New Orleans, LA 70118. |
| (45) | The address of Daniel Salvas is 6335 Around Hills Road, Indianapolis, IN 46226. |
| (46) | The address of Daniel W. and Allaire Hummel JTWROS is 284 Great House Farm Lane, Chesapeake City, MD 21915. |
| (47) | The address of David A Jenkins is 9611 North US Highway One, Box 390, Sebastian, FL 32958. |
| (48) | The address of David A Newman is 494 Pelican Lane South, Jupiter, FL 33458. |
| (49) | The address of E Celli & E Satloff TT Thomas I Unterberg Grandchildren's TR U/A DTD 04/26/1993 is 993 Park Avenue, Apt. 5S, New York, NY 10028-0922. |
| (50) | Empery Asset Management LP, the authorized agent of Empery Asset Master Ltd ("EAM"), has discretionary authority to vote and dispose of the shares held by EAM and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by EAM. EAM, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of Empery Asset Master, Ltd is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| (51) | Empery Asset Management LP, the authorized agent of Empery Tax Efficient, LP ("ETE"), has discretionary authority to vote and dispose of the shares held by ETE and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE. ETE, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of Empery Tax Efficient II, LP is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| (52) | Empery Asset Management LP, the authorized agent of Empery Tax Efficient II, LP ("ETE II"), has discretionary authority to vote and dispose of the shares held by ETE II and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE Il. ETE II, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of Empery Tax Efficient, LP is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| (53) | The address of Empire Group Ltd. is c/o Primeway S.A., 3rd Floor, Yamraj Building, Market Square, Road Town, Tortola, British Virgin Islands. Primeway S.A., Director of Empire Group Ltd, may be deemed to have voting and investment power over these securities. |
| (54) | The address of Eric Fosselman is 402 McDaniel Drive, Landenberg, PA 19350. |
| (55) | The address of Ernest J. & Michele M. Mattei JTWROS is 108 Gary Lynn Lane, Windsor, CT 06103. |
| (56) | The address of Ernest M. Violet is 228 East Shore Road, Jamestown, RI 02835. |
| (57) | The address of FirstFire Global Opportunities Fund LLC is 1040 1st Avenue, Suite 190, New York, NY 10022. Eliezer S. Fireman, Managing Member of FirstFire Global Opportunities Fund LLC, may be deemed to have voting and investment power over these securities. |
| (58) | The address of Four Jr. Investments, Ltd. is 844 Harbour Isles Pl., North Palm Beach, FL 33410. Robert Burke, Manager of Four Jr. Investments, Ltd., may be deemed to have voting and investment power over these securities. |
| (59) | The address of Gabriel Adetoro is 195 Classon Avenue, 2B, Brooklyn, NY 11205. |
| (60) | The address of Gregory Castaldo is 3776 Steven James Drive, Garnet Valley, PA 19061. |
| (61) | The address of Heyer 1999 Family Trust No 1 is c/o Mistral Equity Partners, 650 5th Ave. 10th Floor, New York, NY 10019. Steven J. Heyer, Trustee of the Heyer 1999 Family Trust No 1, may be deemed to have voting and investment power over these securities. |
| (62) | The address of Hudson Bay Master Fund Ltd is c/o Hudson Bay Capital Mgt., 777 Third Avenue, 30th Floor, New York, NY 10017. Hudson Bay Capital Management, LP, the investment manager of Hudson Bay Master Fund Ltd., has voting and investment power over these securities. Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial ownership over these securities. |
| (63) | The address of Hudson Equity Partners, LLC is 14 Arbor Field Way, Lake Grove, NY 11755. Jagdish Malhotra, Managing Member of Hudson Equity Partners, LLC, may be deemed to have voting and investment power over these securities. |
| (64) | The address of Igor Semenov is 9971 Winding Ridge Lane, Davie, FL 33324. |
| (65) | The address of Ilario & Barbara J. Licul JTWROS is 30 Waterside Plaza, Suite 7, New York, NY 10010. |
| (66) | The address of Iroquois Capital Investment Group, LLC is c/o Iroquois Capital, 125 Park Avenue, 25th Floor, New York, NY 10017. Richard Abbe may be deemed to have voting and investment power over these securities. |
| (67) | The address of Iroquois Master Fund Ltd. is c/o Iroquois Capital, 125 Park Avenue, 25th Floor, New York, NY 10017. Richard Abbe shares authority and responsibility for the investments made on behalf of Iroquois Master Fund with Kimberly Page, each of whom is a director of the Iroquois Master Fund. As such, Mr. Abbe and Ms. Page may each be deemed to have voting and investment power over these securities. |
| (68) | The address of James Gilbert is 859 Nowita Place, Venice, CA 90291. |
| (69) | The address of JD Advisors, LLC is 3543 Paxton Avenue, Cincinnati, OH 45208. Dan Kelly, Co-Manager of JD Advisors, LLC, may be deemed to have voting and investment power over these securities. |
| (70) | The address of JNS Holdings Group LLC is 3 Pinecrest Road, Scarsdale, NY 10583. Josh Silverman, Member of JNS Holdings Group LLC, may be deemed to have voting and investment power over these securities. |
| (71) | The address of Joel Pruzansky is 1066 Clinton Ave., Suite 200, Clifton, NJ 07013. |
| (72) | The address of John Athanasopoulos is 14 1/2 Fayette Street, Apt. 5, Cambridge, MA 02139. |
| (73) | The address of John Sanderson is 10324 Brookhollow Circle, Highlands Ranch, CO 80129. |
| (74) | The address of John V. Wagner, Jr. is 233 Jardin Drive, Los Altos, CA 94022. |
| (75) | The address of Jonathan P. & Laura Greene JTWROS is 94 West Mill Station Drive, Newark, DE 19701. |
| (76) | The address of Jordan Sigalos is 3395 Michelson Drive, #5551, Irvine, CA 92612. |
| (77) | The address of Justin Keener D/B/A JMJ Financial is 1688 Meridian Avenue, Ste 700, Miami Beach, FL 33139. |
| (78) | The address of Keith Stump is 686 Ashbrooke Way, Hudson, OH 44236. |
| (79) | The address of Kenneth F. Kremm is 3728 St. Andrews Drive, The Colony, TX 75056. |
| (80) | The address of Kevin Andrew McColl is 94 Polo Lane RD1 Manurewa, Auckland, New Zealand 2576. |
| (81) | The address of Konstantin Kozlov is Korneichuka Street 49-176, Moscow, Russia 127543. |
| (82) | The address of Lee Harrison Corbin is 45 Avon Road, Larchmont, NY 10538. |
| (83) | The address of Lee J. Seidler Revocable Trust dtd 04/12/1990 is 5001 Joewood Drive, Sanibel, FL 33957. Lee J. Seidler, Trustee of the Lee J. Seidler Revocable Trust, may be deemed to have voting and investment power over these securities. |
| (84) | The address of Lei Xia is 33 Bay State Road, Wellesley, MA 02481. |
| (85) | The address of Leonard Stern is 110 East 40th Street, Suite 802, New York, NY 10016. |
| (86) | The address of Lina Kay is 9703 Collins Ave, Apt. 2508 S, Bal Harbor, FL 33154. |
| (87) | The address of Louis Sanzo is 32 Boulevard, Malba, NY 11357. |
| (88) | The address of Marc A Levinson is 9 Stony Brook Drive, North Caldwell, NJ 07006. |
| (89) | The address of Marilyn Kane is 330 E. 38th Street, Apt. 16N, New York, NY 10016. |
| (90) | The address of Matthew Montesano is 3395 Michelson Drive, #5551, Irvine, CA 92612. |
| (91) | The address of Mel S. & Wendy Lavitt is 630 Mellow Mt. Road, P.O. Box 70, Park City, UT 84060. |
| (92) | The address of Michael Chill is 600 West End avenue, Apt. 8-A, New York, NY 10024. |
| (93) | The address of Michael J. Mathieu is 20 Andrews Road, Westborough, MA 01581. |
| (94) | The address of Michael P Valentine is 21 Fox Trace Lane, Hudson, OH 44236. |
| (95) | The address of Michael Silverman is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Silverman has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (96) | The address of Nat Tursi is 141-59 11th Avenue, Whitestone, NY 11356. |
| (97) | The address of Opes Equities, Inc. is 30 Waterside Plaza, Suite 7, New York, NY 10010. Barbara J. Glenns, Vice President of Opes Equities, Inc., may be deemed to have voting and investment power over these securities. |
| (98) | The address of Patrick G Patel is 3 Lagoon Drive East, Toms River, NJ 08753. |
| (99) | The address of Pauline M. Howard Trust dtd 01/02/1998 is 5 River Road, Elkton, MD 21922. |
| (100) | The address of Pensco Trust Co Custodian FBO Andrew J. Malik, IRA is 700 Park Avenue, PHB, New York, NY 10021. Andrew J. Malik may be deemed to have voting and investment power over these securities. |
| (101) | The address of Peter K Janssen is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Janssen has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (102) | The address of Peter Ohler is 14246 Dorcellin Court, Nevada City, CA 95959. |
| (103) | The address of Philip W. Faucette II is 7725 Friendship Church Road, Brown Summit, NC 27214. |
| (104) | The address of Proactive Capital Partners, LP is 150 East 58th Street, 20th Floor, New York, NY 10155. Jeffrey Ramson, Manager of Proactive Capital Partners, LP, may be deemed to have voting and investment power over these securities. |
| (105) | The address of Prokopi Sarris is 30-47 43rd Street, Astoria, NY 11103. |
| (106) | The address of Red Beard pursuant to the Purchase Agreement and Purchase Agreement Amendment.Holdings LLC is 17595 Harvard Avenue, Suite C511, Irvine, CA 92614. Vincent CC. Smith, Manager of Red Beard has dispositive power, and, subjectHoldings LLC, may be deemed to certain limitations in the Series C Certificate of Designation, voting power over the shares |
(3) | See table titled “Security Ownership of Certain Beneficial Owners and Managementhave” on p. 35 of this prospectus for information regarding securities held by Mr. Smith held prior to this offering.
Shares offered pursuant to this prospectus consist of 17,500,000 shares of Common Stock issuable upon exercise of the Personal Guaranty Warrant.
|
(4) | Due to Mr. Smith’s role as Manager of Red Beard, shares beneficially owned prior to, and after this offering include shares held by Red Beard.
|
(5) | See table titled “Security Ownership of Certain Beneficial Owners and Management” on p. 35 of this prospectus for information regarding securities held by Mr. Turoci held prior to this offering.
Shares offered pursuant to this prospectus include 1,765,333 shares of Common Stock issuable upon conversion of 2,648 shares of Series C Preferred and 617,648 shares issuable upon exercise of Warrants issued to Mr. Turoci in connection with the Note Exchange.
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(6) | Shares beneficially owned prior to this offering include 699,334 shares of Common Stock issuable upon conversion of 1,049 shares of Series B Preferred and 244,767 shares issuable upon exercise of certain warrants issued to Mr. Ahmed.
Shares offered pursuant to this prospectus include 1,176,667 shares of Common Stock issuable upon conversion of 1,765 shares of Series C Preferred and 411,765 shares issuable upon exercise of Warrants issued to Mr. Ahmed in connection with the Note Exchange.
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(7) | Shares offered pursuant to this prospectus consist of 294,737 shares of common stock issuable upon exercise of the Novelty Warrant.
Jonathon Skeels, Managing Member of Novelty, has voting and dispositiveinvestment power over these shares.securities.
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| (107) | The address of Richard N Molinsky is 51 Lord's Highway East, Weston, CT 06883. |
| (108) | The address of Richard Pashayan is 3 Whitehall Boulevard South, Garden City, NY 11530. |
| (109) | The address of Robert Burkhardt is 165 West End Avenue, #22E, New York, NY 10023. |
| (110) | The address of Robert Reitz is 380 Atterbury Boulevard, Hudson, OH 44236. |
| (111) | The address of Roman Livson is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Livson has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (112) | The address of Ryan Stump is 246 Orange Street, Newport Beach, CA 92663. |
| (113) | The address of Scot Cohen is 20 East 20th Street, New York, NY 10003. |
| (114) | The address of SDS Capital Partners II, LLC is 500 Summer Street, Suite 405, Stamford, CT 06901. Steve Derby, Managing Member of SDS Capital Partners II, LLC, may be deemed to have voting and investment power over these securities. |
| (115) | The address of SEG-RedaShex LLC is 135 Sycamore Drive, Roslyn, NY 11576. Jonathan Schechter, Managung Member of SEG-RedaShex LLC, may be deemed to have voting and investment power over these securities. |
| (116) | The address of Shaar Hazuhov, LLC is 100 Hewes Street, Brooklyn, NY 11249. |
| (117) | The address of Shanup Gundecha is 11309 Ridgegate Drive, Raleigh, NC 27617. |
| (118) | The address of Shay Capital LLC is 280 Park Avenue, 5th Floor West, New York, NY 10017. Michael Murray, President of Shay Capital LLC, may be deemed to have voting and investment power over these securities. |
| (119) | The address of Stephen Renaud is c/o Katalyst Securities, 630 Third Avenue, 5th Floor, New York, NY 10017.Mr. Renaud has advised the Company that he is affiliated with Katalyst Securities, a broker-dealer, and that the securities were received solely as an investment and not with a view to or for resale or distribution. |
| (120) | The address of Stormy Monday LLC is 84 White Street, Apt. #9C, New York, NY 10013. Bruce Bernstein, Member of Stormy Monday LLC, may be deemed to have voting and investment power over these securities. |
| (121) | The address of The Bradley R. Kroenig Revocable Trust dtd 05/11/2016, Fourth Amended and Restated Trust dtd 09/13/2017 is 657 Daniel Court, Wyckoff, NJ 07481. Bradley R. Kroenig, Trustee of the The Bradley R. Kroenig Revocable Trust, may be deemed to have voting and investment power over these securities. |
| (122) | The address of The Craig R. Whited & Gilda Whited Joint Living Trust dtd 03/25/2016 is 31145 Palos Verdes Drive East, Rancho Palos Verdes, CA 90275. Craig Whited, Trustee of the Craig R. Whited & Gilda Whited Joint Living Trust, may be deemed to have voting and investment power over these securities. |
| (123) | The address of The Fourys Co. Ltd is Alan Yanowitz, General Partner, 25825 Science Park Drive, #110, Beachwood, OH 44122. Alan Yanowitz, General Partner of The Fourys Co. Ltd., may be deemed to have voting and investment power over these securities. |
| (124) | The address of Thomas A. McGurk, Jr. is 7 Douglass Manor, Covington, IN 47932. |
| (125) | The address of Thomas Israel Unterberg is 100 West River Road, Rumson, NJ 07760. |
| (126) | The address of Thomas Israel Unterberg TTEE Ellen Unterberg Celli Family Trust UA DTD 03/22/1993 is 100 West River Road, Rumson, NJ 07760. |
| (127) | The address of Thomas Israel Unterberg TTEE Emily Unterberg Satloff Family Trust U/A DTD 03/25/1993 is 100 West River Road, Rumson, NJ 07760. |
| (128) | The address of Thomas J. Enright, Jr. is 698 Ashbrooke Way, Hudson, OH 44236. |
| (129) | The address of Thomas Zahavi is 240 Danbury Circle North, Rochester, NY 14618. |
| (130) | The address of Tim Elmes, LLC Pension Plan is 901 E. Las Olas Boulevard, Suite 101, Fort Lauderdale, FL 33301. |
| (131) | The address of US International Consulting Network-New Jersey Corp (dba ICN Holding) is 80 Scenic Drive, Suite 5, Freehold, NJ 07728. Igor Kokorine, Chief Financial Officer of US International Consulting Network-New Jersey Corp, may be deemed to have voting and investment power over these securities. |
| (132) | The address of V3 Capital is 20 East 20th Street, New York, NY 10003. Scot Cohen. Managing Partner of V3 Capital, may be deemed to have voting and investment power over these securities. |
| (133) | The address of Wallace P. Kithcart, Jr. is 9287 Hickory Ridge Drive, Streetsboro, OH 44241. |
| (134) | The address of Warberg WF VI LP is 716 Oak Street, Winnetka, IL 60093. Daniel Warsh, Manager of Warberg WF VI LP, may be deemed to have voting and investment power over these securities. |
| (135) | The address of Westwood Capital Opportunity Funds LLC is 312 Westwood Rd., Woodmere, NY 11598. Ari Zinberg, Chief Investment Officer of Westwood Capital Opportunity Funds LLC, may be deemed to have voting and investment power over these securities. |
| (136) | The address of Willaim Rosenstadt is c/o Ortoli Rosenstadt LLP, 366 Madison Avenue, 3rd Floor, New York, NY 10017. |
| (137) | The address of William J Febbo is 34 Calle Mimosa, San Juan, PR 00927. |
| (138) | The address of William Strawbridge is 11 Graceful Elm Court, The Woodlands, TX 77381. |
| (139) | The address of William Sykes is 19296 East County Road 1700 N, Charleston, IL 61920-8385. |
| (140) | The address of Yad Zahav LLC is 100 Hewes Street, Brooklyn, NY 11249. Ahron Gold, Officer of Yad Zahav LLC, may be deemed to have voting and investment power over these securities. |
| (141) | The address of Zachary Arrick is 435 W. 31st Street #41F, New York, NY 10001. |
Each Selling Stockholderselling stockholder and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their shares of common stock covered hereby on the OTC Pink Marketplace or any other stock exchange, market or trading facility on which the shares are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling Stockholderselling stockholder may use any one or more of the following methods when selling shares:
· | on any national securities exchange, market or quotation service on which our common stock may be listed or quoted at the time of sale; |
●
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
· | in transactions other than on these exchanges or systems or in the over-the-counter market; |
●
block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;
· | in ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
●
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
· | in block trades in which the broker-dealer will attempt to sell the securities as agent, but may position and resell a portion of the block as principal to facilitate the transaction; |
●
an exchange distribution in accordance with the rules of the applicable exchange;
· | in purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
●
privately negotiated transactions;
· | in an exchange distribution in accordance with the rules of the applicable exchange; |
●
settlement of short sales;
· | in privately negotiated transactions; |
●
in transactions through broker-dealers that agree with the selling stockholders to sell a specified number of such securities at a stipulated price per security;
· | in put or call option transactions; |
●
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
· | in transactions involving short sales through broker-dealers; |
●
a combination of any such methods of sale; or
· | in transactions wherein the Selling Stockholder sells securities short themselves and delivers the securities● any other method permitted pursuant to close out short positions; |
· | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
· | in transactions that may involve crosses or block transactions; |
· | in transactions where broker-dealers may agree with the Selling Stockholders to sell a specified number of securities at a stipulated price per security; |
· | a combination of any such methods of sale; or |
· | in any other method permitted by applicable law. |
The Selling Stockholdersselling stockholders also may also sell sharesresell all or a portion of the securities in open market transactions in reliance upon Rule 144 under Rule 144the Securities Act, as permitted by that rule, or Section 4(1) under the Securities Act, if available, rather than under this prospectus.prospectus, provided that they meet the criteria and conform to the requirements of those provisions
Broker-dealers engaged by the Selling Stockholdersselling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealersIf the selling stockholders effect such transactions by selling securities to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or discountscommissions from the Selling Stockholders (or, if any broker-dealer actsselling stockholders or commissions from purchasers of the securities for whom they may act as agent for the purchaser of shares, from the purchaser)or to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction will not be in excess of a customary brokerage commission in compliance with NASD Rule 2440 of the Financial Industry Regulatory Authority, Inc.;2440; and in the case of a principal transaction a markup or markdown in compliance with IM-2440 of the Financial Industry Regulatory Authority, Inc.NASD IM-2440.
In connection with the sale of the common stock or interests therein,in common stock, the Selling Stockholdersselling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The Selling Stockholdersselling stockholders may also sell shares of the common stock short and deliver these securities to close out their short positions, or loan or pledge the shares of common stock to broker-dealers that in turn may sell these securities. The Selling Stockholdersselling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholdersselling stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be “underwriters” within the meaning of the Securities Act of 1933, as amended, in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each Selling Stockholderselling stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute their shares of common stock.
The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the shares. The Company has agreed to indemnify the Selling Stockholdersselling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
Because Selling Stockholders may be deemed to be “underwriters” within the meaning of the Securities Act, theyThe selling stockholders will be subject to the prospectus delivery requirements of the Securities Act, including Rule 172 thereunder. The Selling Stockholdersselling stockholders have advised us that there is no underwriter or coordinating broker acting in connection with the proposed sale of the resale shares by the Selling Stockholders.selling stockholders.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the shares may be resold by the Selling Stockholdersselling stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act, or any other rule of similar effect (assuming that the shares were at no time held by any affiliate of ours, and all warrants are exercised by “cashless exercise” as provided in each of the warrants) or (ii) all of the shares have been sold pursuant to this prospectus or Rule 144 under the Securities Act, or any other rule of similar effect. The resale shares will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale shares of common stock covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale shares may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the Selling Stockholdersselling stockholders will be subject to applicable provisions of the Exchange Act, and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of shares of the common stock by the Selling Stockholdersselling stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholdersselling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
DESCRIPTION OF CAPITAL STOCK General
EXPERTSAs of the date of this prospectus, the Company’s authorized capital stock currently consists of 50.0 billion shares of common stock, and 5.0 million shares of preferred stock, $0.001 par value per share, of which 300,000 shares have been designated as Series A Convertible Preferred Stock (“Series A Preferred”) and 1,500,000 shares have been designated as Series B Convertible Preferred Stock (“Series B Preferred”).As of July 9, 2019, there were 18,935,746,396 shares of common stock outstanding. Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the Company’s stockholders. Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the Company’s stockholders. Holders of common stock are entitled to receive, ratably, any dividends that may be declared by our Board of Directors out of legally available funds, subject to any preferential dividend rights of any outstanding Preferred Stock. Upon the liquidation, dissolution or winding up of the Company, holders of our common stock are entitled to receive, ratably, the Company’s net assets available after the payment of all debts and other liabilities, and subject to the prior rights of any outstanding Preferred Stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights. The outstanding shares of common stock are fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are also subject to, and may be adversely affected by, the rights of holders of shares of any series of Preferred Stock which the Company may designate and issue in the future without further stockholder approval.
Preferred Stock
The Board is currently authorized, without further stockholder approval, to issue from time to time up to an aggregate of 5.0 million shares of Preferred Stock in one or more series and to fix or alter the designations, preferences, rights, qualifications, limitations or restrictions of the shares of each series, including the dividend rights, dividend rates, conversion rights, voting rights, term of redemption (including sinking fund provisions), redemption price or prices, liquidation preferences and the number of shares constituting any series or designations without further vote or action by the stockholders. The issuance of Preferred Stock may have the effect of delaying, deferring or preventing a change in control of management without further action by the stockholders and may adversely affect the voting and other rights of the holders of common stock. The issuance of Preferred Stock with voting and conversion rights may adversely affect the voting power of the holders of common stock, including the loss of voting control to others.
The consolidated financial statementsAs of July 10, 2019, we had two outstanding series of Preferred Stock; Series A Preferred and Series B Preferred,. Below is a summary of the terms of each outstanding series of Preferred Stock. For a full description of the rights and preferences associated with each series of Preferred Stock, please refer to the Series A Certificate of Designation and Series B Certificate of Designation filed as of December 31, 2015 and 2014, and for the years then ended included in this prospectus and elsewhere inexhibits to the registration statement have been audited by of which this prospectus forms a part.
Series A Preferred
Squar Milner LLP (formerly On April 25, 2019, in connection with the Share Exchange, the Company filed the Series A COD with the Secretary of State of the State of Nevada, designating 300,000 shares of our Preferred Stock as Series A Convertible Preferred Stock. Each share of Series A Preferred has a stated value of $100 per share (the “Squar, Milner, Peterson, Miranda & Williamson, LLP)Series A Stated Value”), an independent registered public accounting firm, as indicated in their report with respect thereto, which report will be included herein in reliance uponand ranks senior to all of the authorityCompany’s outstanding securities, including shares of said firm as experts in auditing and accounting in giving said reports.Series B Preferred.
LEGAL MATTERSThe Series A Preferred provides holders with the right to receive a one-time dividend payment equal to 8% of the Series A Stated Value (the “Series A Dividend”), which Series A Dividend is payable by the Company on the earlier to occur of (i) when declared at the election of the Company, (ii) one year from the date of issuance, or (iii) when a holder elects to convert its shares of Series A Preferred into Common Stock.Each share of Series A Preferred is convertible, at the option of the holder, into that number of shares of Common Stock equal to the Series A Stated Value plus all accrued but unpaid dividends, divided by $0.0044313, which conversion rate is subject to adjustment in accordance with the terms of the Series A COD; provided, however, that holders of the Series A Preferred may not convert any shares of Series A Preferred into Common Stock unless and until the Company has effected the Authorized Share Increase. In addition, holders of Series A Preferred are prohibited from converting Series A Preferred into Common Stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% (or 9.99% upon the election of the holder prior to the issuance of the Series A Preferred) of the total number of shares of Common Stock then issued and outstanding. Each share of Series A Preferred is convertible at the option of the Company at the same conversion rate set forth above, at such time, if ever, that the Company’s Common Stock is listed on the Nasdaq Stock Market and the Company has paid the Series A Dividend. In addition, upon the occurrence of a Bankruptcy Event (as defined in the Series A COD), the Company shall be required to redeem, in cash, all outstanding shares of Series A Preferred at a price equal to the conversion amount; provided, however, that holders of the Series A Preferred shall have the right to waive, in whole or in part, such right to receive payment upon the occurrence of a Bankruptcy Event.
Holders of the Series A Preferred shall vote on an as-converted basis along with holders of the Company’s Common Stock on all matters presented to the Company’s stockholders; provided, however, that the number of votes that any holder, together with its affiliates, may exercise in connection with all of the Company securities held by such holder shall not exceed 9.99% of the voting power of the Company. In addition, pursuant to the Series A COD, the Company shall not take the following actions without obtaining the prior consent of at least a majority of the holders of the outstanding Series A Preferred, voting separately as a single class: (i) amend the Company’s Charter or Amended and Restated Bylaws, or file a certificate of designation or certificate of amendment to any series of preferred stock if such action would adversely affect the holders of the Series A Preferred, (ii) increase or decrease the authorized number of shares of Series A Preferred, (iii) create or authorize any series of stock that ranks senior to, or on parity with, the Series A Preferred, (iv) purchase, repurchase or redeem any shares of junior stock, or (v) pay dividends on any junior or parity stock. Furthermore, so long as at least 25% of the Series A Preferred remain outstanding, holders of the Series A Preferred (other than the Direct Investors) shall have a right to appoint two members to the Company’s Board of Directors, and the Board shall not consist of more than five members, unless the holders of a majority of the outstanding Series A Preferred have consented to an increase in such number.
Series B Convertible Preferred Stock
On April 26, 2019, in connection with the Share Exchange, the Company filed the Series B COD, designating 1.5 million shares of Preferred Stock as Series B Preferred. The Series B Preferred ranks junior to the Series A Preferred and senior to all of the Company’s other outstanding securities.
The validitySeries B Preferred is structured to act as a Common Stock equivalent. Each share of Series B Preferred will automatically convert into 10,000 shares of common stock, subject to certain adjustments, once the Authorized Share Increase is effective. Shares of Series B Preferred may not be converted into Common Stock until the Authorized Share Increase is effective. Holders of the Series B Preferred are not entitled to dividends, unless the Company’s Board of Directors elects to issue a dividend to holders of common stock.
Holders of Series B Preferred are entitled to vote on an as-converted basis along with holders of the Company’s Common Stock on all matters presented to the Company’s stockholders. In addition, pursuant to Series B COD, the Company may not take the following actions without obtaining the prior consent of at least 50% of the holders of the outstanding Series B Preferred, voting separately as a single class: (i) amend the provisions of the Series B COD so as to adversely affect holders of the Series B Preferred, (ii) increase the authorized number of shares of Series B Preferred, or (iii) effect any distribution with respect to junior stock, unless the Company also provides such distribution to holders of the Series B Preferred.
As a result of the filing of the Amended and Restated Charter on June 28, 2019 and the increase of our authorized common stock to 50.0 billion shares, all 1,396,305 outstanding shares of Series B Preferred automatically converted into a total of 13,963,047,716 shares of common stock in accordance with the Series B COD.
Resale Registration Rights
Pursuant to the Registration Rights Agreements and subject to the rules and regulations of the SEC, we have agreed to file a shelf registration statement covering the resale of the shares of common stock issuable upon conversion of the Series A Preferred and Series B Preferred, and shares of common stock issuable upon exercise of the Investor Warrants held by the former Members and Direct Investors who are parties to the agreements. We are required to use our best effort to file the shelf registration statement within 30 days following the Closing Date. The registration statement of which this prospectus forms a part is the shelf registration statement that we are required to file under the Registration Rights Agreements. In the event fewer than all of our outstanding shares of common stock can be registered due to limitations on the use of Rule 415 of the Securities Act for the resale of the shares of common stock, the so-called Rule 415 doctrine, priority will be given to the shares issued in the Share Exchange.
Registration of these shares under the Securities Act would result in the shares becoming saleable under the Securities Act immediately upon the effectiveness of such registration, except for shares held by affiliates. Any sales of securities by holders of these shares could adversely affect the trading prices, if any, of our common stock offered herebystock.
Certain legal matters in connection with this offering will be passed upon for us by Disclosure Law Group, a Professional Corporation, of San Diego, California.
The consolidated financial statements for True Drinks Holdings, Inc. appearing in this prospectus for the years ended December 31, 2018 and 2017 (which report expresses and unqualified opinion and an explanatory paragraph related to the Company’s ability to continue as a going concern) have been audited by Squar Milner LLP of Irvine, California, an independent registered public accounting firm, as set forth in their report thereon. Such consolidated financial statements are included in this prospectus in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
No expert or counsel namedThe financial statements for Charlie’s appearing in this prospectus for the years ended December 31, 2018 and 2017 have been audited by Squar Milner LLP ofIrvine, California, an independent registered public accounting firm, as having prepared or certified any part ofset forth in their reports thereon. Such financial statements are included in this prospectus or havingin reliance upon such reports given an opinion uponon the validityauthority of the securities being registered or upon other legal matterssuch firm as experts in connection with the registration or offering of the common stock was employed for such purpose on a contingency basis, or had, or is to receive, in connection with this offering, a substantial interest, direct or indirect, in us or any of our subsidiaries, nor was any such person connected with us as a promoter, managing or principal underwriter, voting trustee, director, officer, or employee.
accounting and auditing.
WWHEREHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1, withwhich includes amendments and exhibits, under the SEC.Securities Act and the rules and regulations under the Securities Act for the registration of common stock being offered by this prospectus. This prospectus, which formsconstitutes a part of thatthe registration statement, does not contain all of the information includedthat is in the registration statement and the exhibits and schedules thereto as permitted by the rules and regulations of the SEC. For further information with respect to us and the shares of our common stock offered hereby, please refer to the registration statement, including its exhibits and schedules. Statements contained in this prospectus as to the contents of any contract or other document referred to hereinthat summarize documents are not necessarily complete, and wherein each case you should refer to the contract or othercopy of the document isfiled as an exhibit to the registration statement, each such statement is qualified in all respects by the provisions of such exhibit, to which reference is hereby made. You may review a copy of thestatement. The registration statement and other public filings can be obtained from the SEC’s internet site at www.sec.gov.
As a public company, we are required to file our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements on Schedule 14A and other information (including any amendments) with the SEC. You can find the Company’s SEC filings at the SEC’s public reference room at 100 F Street, N.E., Washington, DC 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms. The registration statement can also be reviewed by accessing the SEC’s website at http://www.sec.gov. We are subject to the information and reporting requirements of the Securities Exchange Act of 1934 and, in accordance therewith, file periodic reports, proxy statements or information statements, and other information with the SEC. These reports can also be reviewed by accessing the SEC’s website.
You should rely onlyOur Internet address iswww.charliesholdings.com. Information contained on the information provided in this prospectus, any prospectus supplement or asour website is not part of the registration statement filedthis Annual Report on Form S-110-K. Our SEC filings (including any amendments) will be made available free of which this prospective is a part,charge onwww.charliesholdings.com, as soon as reasonably practicable after we electronically file such registration statement is amended and in effectmaterial with, or furnish it to, the SEC. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus, any prospectus supplement or any document incorporated by reference is accurate as of any date other than the date of those documents.
CHARLIE’S HOLDINGS, INC.
INDEX TO FINANCIAL STATEMENTS
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RREPORTEPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Boardshareholders and the board of Directors and Shareholdersdirectors
True Drinks Holdings, Inc.
Irvine, CaliforniaCA
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of True Drinks Holdings, Inc. and its subsidiaries (the "Company")Company) as of December 31, 20152018 and 2014 and2017, the related consolidated statements of operations, stockholders' (deficit) equity,deficit and cash flows for the years then ended. These consolidated financial statements areended, and the responsibility of the Company's management. Our responsibility isrelated notes to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement. The Company was not required to have, nor were we engaged to perform, an audit of its internal control over(collectively, the financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
statements). In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of True Drinks Holdings, Inc.the Company as of December 31, 20152018 and 20142017, and the consolidated results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.
As discussed in Note 1, theGoing Concern
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As of and fordiscussed in Note 1 to the year ended December 31, 2015,financial statements, the Company incurred a net loss of $11,990,563, has negative working capital of $5,303,989,suffered recurring losses from operations and an accumulated deficit of $30,348,644.its total liabilities exceed its total assets. A significant amount of additional capital will be necessary to advance the marketability of the Company's products to the point at which the Company can sustain operations. These conditions, among others, raiseThis raises substantial doubt about the Company's ability to continue as a going concern. Management's plans regardingin regard to these matters also are also described in Note 1. The accompanying consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ Squar Milner LLP (formerly Squar, Milner, Peterson, Miranda & Williamson, LLP)
March 24, 2016We have served as the Company's auditor since 2012.
Newport Beach,April 1, 2019
Irvine, California
TRUE
DRINKSDRINKS HOLDINGS, INC.
December 31, 20152018 and 20142017
| | | 2015 | | | 2014 | |
| ASSETS | | | | | | |
Current Assets: | | | | | | |
| Cash | | $ | 376,840 | | | $ | 668,326 | |
| Accounts receivable, net | | | 1,843,415 | | | | 343,709 | |
| Inventory | | | 1,558,719 | | | | 1,363,443 | |
| Prepaid expenses and other current assets | | | 75,923 | | | | 628,675 | |
| Total Current Assets | | | 3,854,897 | | | | 3,004,153 | |
| | | | | | | | | |
| Restricted Cash | | | 209,360 | | | | 133,198 | |
| Property and Equipment, net | | | 4,530 | | | | 4,587 | |
| Patents, net | | | 1,070,588 | | | | 1,211,765 | |
| Trademarks, net | | | - | | | | 6,849 | |
| Goodwill | | | 3,474,502 | | | | 3,474,502 | |
| Total Assets | | $ | 8,613,877 | | | $ | 7,835,054 | |
| | | | | | | | | |
| LIABILITIES AND STOCKHOLDERS’ (DEFICIT) EQUITY | | | | | | | | |
| | | | | | | | | |
Current Liabilities: | | | | | | | | |
| Accounts payable and accrued expenses | | $ | 1,623,046 | | | $ | 1,922,285 | |
| Debt | | | 1,336,819 | | | | 4,263,002 | |
| Derivative liabilities | | | 6,199,021 | | | | 1,569,522 | |
| Total Current Liabilities | | | 9,158,886 | | | | 7,754,809 | |
| | | | | | | | | |
Commitments and Contingencies (Note 7) | | | | | | | | |
| | | | | | | | | |
Stockholders’ (Deficit) Equity: | | | | | | | | |
| Common Stock, $0.001 par value, 300,000,000 and 120,000,000 shares authorized, 111,434,284 and 48,622,675 shares issued and outstanding at December 31, 2015 and December 31, 2014, respectively | | | 111,434 | | | | 48,623 | |
| Preferred Stock – Series B (liquidation preference of $4 per share), $0.001 par value, 2,750,000 shares authorized, 1,317,870 and 1,490,995 shares issued and outstanding at December 31, 2015 and December 31, 2014, respectively | | | 1,318 | | | | 1,491 | |
| Preferred Stock – Series C (liquidation preference $100 per share), $0.001 par value, 150,000 and 0 shares authorized, 48,853 and 0 shares issued and outstanding at December 31, 2015 and December 31, 2014, respectively | | | 49 | | | | - | |
| Additional paid in capital | | | 29,690,834 | | | | 18,388,212 | |
| Accumulated deficit | | | (30,348,644 | ) | | | (18,358,081 | ) |
| | | | | | | | | |
| Total Stockholders’ (Deficit) Equity | | | (545,009 | ) | | | 80,245 | |
| | | | | | | | | |
| Total Liabilities and Stockholders’ (Deficit) Equity | | $ | 8,613,877 | | | $ | 7,835,054 | |
| | | |
| ASSETS | | |
Current Assets: | | |
| Cash and cash equivalents | $43,181 | $76,534 |
| Accounts receivable, net | 990 | 55,469 |
| Inventory, net | 2,035 | 1,176,101 |
| Prepaid expense and other current assets | 6,712 | 80,918 |
| Total Current Assets | 52,918 | 1,389,022 |
| | | |
| Property and Equipment, net | 1,129 | 5,896 |
| Goodwill | 1,576,502 | 3,474,502 |
| Total Assets | $1,630,549 | $4,869,420 |
| | | |
| LIABILITIES AND STOCKHOLDERS’ DEFICIT | | |
| | | |
Current Liabilities: | | |
| Accounts payable and accrued expense | $1,095,579 | $7,432,799 |
| Debt, Short-term | 7,813,786 | 764,563 |
| Derivative liabilities | 879,257 | 8,337 |
| Total Current Liabilities | 9,788,622 | 8,205,699 |
| | | |
| Debt, long-term | - | 2,050,000 |
| | | |
| Total liabilities | 9,788,622 | 10,255,699 |
| | | |
Commitments and Contingencies (Note 6) | | |
| | | |
Stockholders’ Deficit: | | |
| Common Stock, $0.001 par value, 7,000,000,000 shares authorized, 245,684,343 and 218,151,591 shares issued and outstanding at December 31, 2018 and December 31, 2017, respectively | 245,685 | 218,152 |
| Preferred Stock – Series B (liquidation preference of $4 per share), $0.001 par value, 2,750,000 shares authorized, 1,285,585 shares issued and outstanding at December 31, 2018 and December 31, 2017 | 1,285 | 1,285 |
| Preferred Stock – Series C (liquidation preference $100 per share), $0.001 par value, 200,000 shares authorized, 105,704 shares issued and outstanding at December 31, 2018 and December 31, 2017 | 106 | 106 |
| Preferred Stock – Series D (liquidation preference $100 per share), $0.001 par value, 50,000 shares authorized, 34,250 shares issued and outstanding at December 31, 2018 and December 31, 2017 | 34 | 34 |
| Additional paid in capital | 43,715,465 | 42,635,493 |
| Accumulated deficit | (52,120,648) | (48,241,349) |
| | | |
| Total Stockholders’ Deficit | (8,158,073) | (5,386,279) |
| | | |
| Total Liabilities and Stockholders’ Deficit | $1,630,549 | $4,869,420 |
The accompanying notes are an integral part of these consolidated financial statements.
TRUE
TRUE DRINKS HOLDINGS, INC. For the Years Ended December 31, 20152018 and 20142017
| | | | 2015 | | | | 2014 | | | |
| Net Sales | | $ | 6,121,097 | | | $ | 4,693,414 | | $1,947,052 | $3,823,334 |
| | | | | | | | |
| Cost of Sales | | | 6,282,087 | | | | 4,401,702 | | 1,228,448 | 3,052,144 |
| | | | | | | | |
| Gross (Loss) Profit | | (160,990 | ) | | 291,712 | | |
| Gross Profit | | 718,604 | 771,190 |
| | | | | | | | |
| Operating Expenses | | | | | | | |
| Operating Expense | | |
| Selling and marketing | | 5,073,211 | | | 4,388,108 | | 411,371 | 5,620,193 |
| General and administrative | | | 5,475,673 | | | | 4,450,101 | | 10,997,813 | 5,079,138 |
| Total operating expenses | | | 10,548,884 | | | | 8,838,209 | | |
| Contract settlement expense | | - | 4,514,569 |
| Total operating expense | | 11,409,184 | 15,213,900 |
| | | | | | | | |
| Operating Loss | | (10,709,874 | ) | | (8,546,497 | ) | (10,690,580) | (14,442,710) |
| | | | | | | | |
| Other Expense | | | | | | | |
| Other (Expense) Income | | |
| Change in fair value of derivative liabilities | | 1,262,329 | | | 621,159 | | 8,883,383 | 2,331,888 |
| Interest expense | | (257,389 | ) | | (202,773 | ) | |
| Other (expense) income | | | (2,285,629 | ) | | | 11,508 | | |
| Impairment of patent | | - | (130,000) |
| Impairment of goodwill | | (1,898,000) | - |
| Interest (expense) | | (813,545) | (158,419) |
| Other income (expense) | | 639,443 | (47,902) |
| Total Other (Expense) Income | | 6,811,281 | 1,995,567 |
| | | | (1,280,689 | ) | | | 429,894 | | |
| NET LOSS | | (3,879,299) | (12,447,143) |
| | | | | | | | |
| Net Loss | | $ | (11,990,563 | ) | | $ | (8,116,603 | ) | |
| | | | | | | | |
| Dividends on Preferred Stock | | $ | 271,838 | | | $ | 434,096 | | |
| Declared Dividends on Preferred Stock | | 260,688 | 261,793 |
| | | | | | | | |
| Net loss attributable to common stockholders | | $ | (12,262,401 | ) | | $ | (8,550,699 | ) | $(4,139,987) | $(12,708,936) |
| | | | | | | | |
| Net loss per common share | | | | | | | |
| Basic and diluted | | $ | (0.16 | ) | | $ | (0.23 | ) | $(0.01) | $(0.07) |
| | | | | | | | |
| Weighted average common shares | | | | | | | |
| outstanding, basic and diluted | | | 75,346,961 | | | | 36,429,303 | | 230,204,655 | 193,799,475 |
The accompanying notes are an integral part of these consolidated financial statements.
TRUETRUE DRINKS HOLDINGS, INC.STOCKHOLDERS’ (DEFICIT) EQUITYDEFICIT
For the Years Ended December 31, 20152018 and 2014
| | | Common Stock | | Preferred Stock (Series B and C) | | | Additional Paid-In Capital | | Accumulated Deficit | | | Total Stockholders' (Deficit) Equity | |
| | | Shares | | | Amount | | Shares | | | Amount | | | | | | |
Balance – December 31, 2013 | | | 27,885,587 | | $ | 27,886 | | | 1,776,923 | | | $ | 1,777 | | | $ | 14,751,170 | | $ | (10,241,478 | ) | | $ | 4,539,355 | |
| Conversion of Preferred Stock to Common Stock | | | 16,021,632 | | | 16,022 | | | (1,001,352 | ) | | | (1,001 | ) | | | (15,021 | ) | | - | | | | - | |
| Issuance of Preferred Stock for debt conversions, net of warrants issued | | | - | | | - | | | 204,732 | | | | 205 | | | | 619,154 | | | - | | | | 619,359 | |
| Issuance of Common Stock for services | | | 1,751,270 | | | 1,751 | | | 5,692 | | | | 5 | | | | 542,775 | | | - | | | | 544,531 | |
| Issuance of Preferred Stock for cash, net of warrants issued | | | - | | | - | | | 505,000 | | | | 505 | | | | 1,440,064 | | | - | | | | 1,440,569 | |
| Issuance of Common Stock for settlement of debt | | | 2,004,002 | | | 2,004 | | | - | | | | - | | | | 599,647 | | | - | | | | 601,651 | |
| Cashless exercise of warrants | | | 78,427 | | | 78 | | | - | | | | - | | | | (78 | ) | | - | | | | | |
| Stock-based compensation | | | - | | | - | | | - | | | | - | | | | 497,271 | | | - | | | | 497,271 | |
| Dividends declared on Preferred Stock | | | - | | | - | | | - | | | | - | | | | (434,096 | ) | | - | | | | (434,096 | ) |
| Reclassification of Derivative liability | | | - | | | - | | | - | | | | - | | | | 44,751 | | | - | | | | 44,751 | |
| Issuance of Common Stock for dividends on Preferred Stock | | | 881,757 | | | 882 | | | - | | | | - | | | | 342,575 | | | - | | | | 343,457 | |
| Net Loss | | | - | | | - | | | - | | | | - | | | | - | | | (8,116,603 | ) | | | (8,116,603 | ) |
Balance – December 31, 2014 | | | 48,622,675 | | $ | 48,623 | | | 1,490,995 | | | $ | 1,491 | | | $ | 18,388,212 | | $ | (18,358,081 | ) | | $ | 80,245 | |
| Conversion of Preferred Stock to Common Stock | | | 55,947,335 | | | 55,947 | | | (252,891 | ) | | | (252 | ) | | | (55,695) | | | - | | | | - | |
| Issuance of Preferred Stock for debt conversions, net of warrants issued | | | - | | | - | | | 12,148 | | | | 12 | | | | 835,514 | | | - | | | | 835,526 | |
| Issuance of Common Stock for services | | | 2,413,811 | | | 2,414 | | | - | | | | - | | | | 485,412 | | | - | | | | 487,826 | |
| Issuance of Preferred Stock Series C for cash, net of warrants issued | | | - | | | - | | | 116,471 | | | | 116 | | | | 8,750,478 | | | - | | | | 8,750,594 | |
| Stock-based compensation | | | - | | | - | | | - | | | | - | | | | 1,055,448 | | | - | | | | 1,055,448 | |
| Dividends declared on Preferred Stock | | | - | | | - | | | - | | | | - | | | | (271,838 | ) | | - | | | | (271,838 | ) |
| Issuance of Common Stock for Employee Bonuses | | | 2,187,818 | | | 2,188 | | | - | | | | - | | | | 216,594 | | | - | | | | 218,782 | |
| Issuance of Common Stock for dividends on Preferred Stock | | | 1,512,645 | | | 1,512 | | | - | | | | - | | | | 287,459 | | | - | | | | 288,971 | |
| Issuance of Restricted Stock to Employees | | | 750,000 | | | 750 | | | - | | | | - | | | | (750 | ) | | - | | | | - | |
| Net Loss | | | - | | | - | | | - | | | | - | | | | - | | | (11,990,563 | ) | | | (11,990,563 | ) |
| Balance – December 31, 2015 | | | 111,434,284 | | $ | 111,434 | | | 1,366,723 | | | $ | 1,367 | | | $ | 29,690,834 | | $ | (30,348,644 | ) | | $ | (545,009 | ) |
TRUE DRINKS HOLDINGS, INC.
For the Years Ended December 31, 2015 and 2014
| | | | 2015 | | | 2014 | |
| CASH FLOWS FROM OPERATING ACTIVITIES | | | | | | | |
| Net loss | | $ | (11,990,563 | ) | | $ | (8,116,603 | ) |
| Adjustments to reconcile net loss to net cash used in operating activities | | | | | | | | |
| Depreciation | | | 3,087 | | | | 6,161 | |
| Amortization | | | 148,026 | | | | 182,843 | |
| Provision for bad debt expense | | | (51,769 | ) | | | (48,473 | ) |
| Change in estimated fair value of derivative liabilities | | | (1,262,329 | ) | | | (621,159 | ) |
| Fair value of warrants issued for guaranty | | | 2,263,783 | | | | - | |
| Fair value of stock issued for services | | | 487,826 | | | | 544,531 | |
| Fair value of stock issued for bonuses | | | 218,782 | | | | - | |
| Stock based compensation | | | 1,055,448 | | | | 497,271 | |
| Changes in operating assets and liabilities: | | | | | | | | |
| Accounts receivable | | | (1,447,937 | ) | | | (120,168 | ) |
| Inventory | | | (195,276 | ) | | | (306,687 | ) |
| Prepaid expenses and other current assets | | | 552,752 | | | | (37,241 | ) |
| Accounts payable and accrued expenses | | | (214,899 | ) | | | 1,369,819 | |
| Net cash used in operating activities | | | (10,433,069 | ) | | | (6,649,706 | ) |
| | | | | | | | | |
| CASH FLOWS FROM INVESTING ACTIVITIES: | | | | | | | | |
| Change in restricted cash | | | (76,162 | ) | | | (133 | ) |
| Purchase of property and equipment | | | (3,030 | ) | | | (2,349 | ) |
| Net cash used in investing activities | | | (79,192 | ) | | | (2,482 | ) |
| | | | | | | | | |
| CASH FLOWS FROM FINANCING ACTIVITIES | | | | | | | | |
| Proceeds from issuance of Series B Preferred Stock, net | | | - | | | | 1,857,413 | |
| Proceeds from issuance of Series C Preferred Stock, net | | | 11,999,958 | | | | - | |
| Proceeds from debt | | | 1,103,817 | | | | 4,263,002 | |
| Repayments on debt | | | (2,883,000 | ) | | | (1,936,667 | ) |
| Net cash provided by financing activities | | | 10,220,775 | | | | 4,183,748 | |
| | | | | | | | | |
| NET DECREASE IN CASH | | | (291,486 | ) | | | (2,468,440 | ) |
| | | | | | | | | |
CASH – beginning of year | | | 668,326 | | | | 3,136,766 | |
| | | | | | | | | |
CASH – end of year | | $ | 376,840 | | | $ | 668,326 | |
| SUPPLEMENTAL DISCLOSURES | | | | | | | | |
| Cash paid for interest | | $ | 179,056 | | | $ | 7,944 | |
| Non-cash financing and investing activities: | | | | | | | | |
| Conversion of preferred stock to common stock | | $ | 55,695 | | | $ | 15,021 | |
| Conversion of notes payable and accrued interest to common stock | | $ | - | | | $ | 818,926 | |
| Conversion of notes payable and accrued interest to Series C preferred stock | | $ | 1,214,207 | | | $ | - | |
| Dividends paid in common stock | | $ | 288,971 | | | $ | 343,457 | |
| Dividends declared but unpaid | | $ | 271,838 | | | $ | 434,096 | |
| Reclassification of derivative liability | | $ | - | | | $ | 44,751 | |
| Warrants issued in connection with Series B offering | | $ | - | | | $ | 616,411 | |
| Warrants issued in connection with Series C offering | | $ | 3,249,364 | | | $ | - | |
| Warrants issued in connection with debt conversions | | $ | 378,681 | | | $ | - | |
| Issuance of common stock for settlement of debt | | $ | - | | | $ | 601,651 | |
| Cashless exercise of warrants | | $ | - | | | $ | 78 | |
| | | | | | | | |
| | | | | | | | | | | | |
| Balance – December 31, 2016 | 119,402,009 | $119,402 | 1,292,870 | $1,293 | 109,352 | $109 | - | $- | $33,456,325 | $(35,794,206) | $(2,217,077) |
| Issuance of Preferred Stock Series D for cash, net of warrants issued | - | - | - | - | - | - | 45,625 | 46 | 1,934,523 | - | 1,934,569 |
| Issuance of Common Stock for services | 7,209,156 | 7,209 | - | - | - | - | - | - | 598,291 | - | 605,500 |
| Conversion of Preferred Stock to Common Stock | 10,131,901 | 10,132 | (7,285) | (8) | (3,648) | (3) | (11,375) | (12) | (10,109) | - | - |
| Stock-based compensation | - | - | - | - | - | - | - | - | 530,005 | - | 530,005 |
| Dividends declared on Preferred Stock | - | - | - | - | - | - | - | - | (261,793) | - | (261,793) |
| Issuance of Common Stock for dividends on Preferred Stock | 2,385,387 | 2,385 | - | - | - | - | - | - | 259,780 | - | 262,165 |
| Issuance of Common Stock in exchange for warrants | 79,023,138 | 79,024 | - | - | - | - | - | - | 6,001,254 | - | 6,080,278 |
| Warrants issued as debt discount | - | - | - | - | - | - | - | - | 127,217 | - | 127,217 |
| Net loss | - | - | - | - | - | - | - | - | - | (12,447,143) | (12,447,143) |
| Balance – December 31, 2017 | 218,151,591 | $218,152 | 1,285,585 | $1,285 | 105,704 | $106 | 34,250 | $34 | $42,635,493 | $(48,241,349) | $(5,386,279) |
| Stock-based compensation | - | - | - | - | - | - | - | - | 294,796 | - | 294,796 |
| Dividends declared on Preferred Stock | - | - | - | - | - | - | - | - | (260,688) | - | (260,688) |
| Issuance of Common Stock for dividends on Preferred Stock | 22,532,752 | 22,533 | - | - | - | - | - | - | 236,727 | - | 259,260 |
| Issuance of Restricted Common Stock to Employees | 5,000,000 | 5,000 | - | - | - | - | - | - | (5,000) | - | - |
| Beneficial Conversion Feature on Debt | - | - | - | - | - | - | - | - | 814,137 | - | 814,137 |
| Net loss | - | - | - | - | - | - | - | - | - | (3,879,299) | (3,879,299) |
| Balance – December 31, 2018 | 245,684,343 | $245,685 | 1,285,585 | $1,285 | 105,704 | $106 | 34,250 | $34 | $43,715,465 | $(52,120,648) | $(8,158,073) |
The accompanying notes are an integral part of these consolidated financial statements.
TTRUERUE DRINKS HOLDINGS, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Years Ended December 31, 2018 and 2017
| | | |
| CASH FLOWS FROM OPERATING ACTIVITIES | | |
| Net loss | $(3,879,299) | $(12,447,143) |
| Adjustments to reconcile net loss to net cash used in operating activities | | |
| Depreciation | 4,767 | 5,168 |
| Amortization | - | 120,000 |
| Accretion of debt discount | 413,536 | 26,460 |
| Impairment of patent | - | 130,000 |
| Impairment of goodwill | 1,898,000 | - |
| Provision for bad debt expense | 26,303 | 273,294 |
| Provision for inventory losses | (93,000) | (17,000) |
| Change in estimated fair value of derivative liabilities | (8,883,383) | (2,331,888) |
| Fair value of stock issued for services | 9,754,303 | 605,500 |
| Stock based compensation | 294,796 | 530,005 |
| Changes in operating assets and liabilities: | | |
| Accounts receivable, net | 28,176 | 208,054 |
| Inventory | (169,047) | (840,189) |
| Prepaid expense and other current assets | 74,206 | 46,340 |
| Accounts payable and accrued expense | (2,548,108) | 7,262,995 |
| Net cash used in operating activities | (3,078,750) | (6,428,404) |
| | | |
| | | |
| CASH FLOWS FROM FINANCING ACTIVITIES | | |
| Proceeds from issuance of Series D Preferred Stock, net | - | 4,562,500 |
| Net repayments on line of credit facility | (10,953) | (96,444) |
| Proceeds from notes payable | 3,056,350 | 2,050,000 |
| Repayments on notes payable | - | (235,994) |
| Net cash provided by financing activities | 3,045,397 | 6,280,062 |
| | | |
| NET DECREASE IN CASH | (33,353) | (148,342) |
| | | |
CASH AND CASH EQUIVALENTS – beginning of year | 76,534 | 224,876 |
| | | |
CASH AND CASH EQUIVALENTS – end of year | $43,181 | $76,534 |
| SUPPLEMENTAL DISCLOSURES | | |
| Interest paid in cash | $432 | $75,708 |
| Non-cash financing and investing activities: | | |
| Conversion of preferred stock to common stock | $- | $10,109 |
| Dividends paid in common stock | $259,260 | $262,165 |
| Dividends declared but unpaid | $260,688 | $261,793 |
| Debt discount recorded | $2,250,250 | $127,217 |
| Derecognition of debt discount | $1,436,113 | $- |
| Notes payable issued in exchange for accounts payable | $3,790,540 | $1,049,564 |
| Warrants issued in connection with preferred offering | $- | $2,627,931 |
| Warrants exchanged for common stock | $- | $6,080,278 |
| Issuance of restricted stock | $5,000 | $- |
The accompanying notes are an integral part of these consolidated financial statements.
TRUE DRINKS HOLDINGS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 – ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Overview
True Drinks Holdings, Inc. (the "Company", "us" or "we") was incorporated in the state of Nevada in January 2001 and is the holding company for True Drinks, Inc. (“True Drinks”), formed ona company incorporated in the state of Delaware in January 19, 2012 that specialized in Delaware to create and commercialize all-natural, vitamin-enhanced drinks. OurPreviously, our primary business iswas the development, marketing, sale and distribution of our flagship product, AquaBall™AquaBall® Naturally Flavored Water, a vitamin-enhanced, naturally flavored water drink packaged in our patented stacking spherical bottles.Water. We distribute AquaBall™previously distributed AquaBall® nationally through select retail channels, such as grocery stores, mass merchandisers, drug stores club stores and online. We alsoAlthough, as noted below, we have discontinued the production, distribution and sale of AquaBall®, we continue to market and distribute Bazi® All Natural Energy, a liquid nutritional supplement drink, which is currently distributed through select retail channels, online and through our existing database of customers.
OurAs of December 31, 2018, our principal place of business is 18662 MacArthur Boulevard,2 Park Plaza, Suite 110,1200, Irvine, California 92612.92614. Our telephone number is (949) 203-3500. Our corporate website address is http://www.truedrinks.com.www.truedrinks.com. Our Common Stock,common stock, par value $0.001 (“Common Stock”)per share, is currently listed for quotation on the OTC Pink Marketplace under the symbol TRUU.“TRUU.”
Recent DevelopmentsCessation of Production of AquaBall®, and Management’s Plan
Bottling Agreement with Niagara Bottling
On October 9, 2015, we entered into anDuring the first quarter of 2018, due to the weakness in the sale of the Company’s principal product, AquaBall® Naturally Flavored Water, and continued substantial operating losses, the Company’s Board of Directors determined to discontinue the production of AquaBall®, and, as set forth below, terminate the bottling agreement (the “Niagara Agreement”) withby and between Niagara Bottling LLC, the Company’s contract bottling manufacturer (“Bottler” or “Niagara”), wherein Niagara will becomeand True Drinks (the “Bottling Agreement”). In addition, the exclusive manufacturerCompany notified Disney Consumer Products, Inc. (“Disney”) of AquaBall™ Naturally Flavored Waterthe Company’s desire to terminate its licensing agreement with Disney (“Disney License”), pursuant to which the Company was able to feature various Disney characters on each AquaBall® bottle. As a result of management’s decision, and the Company’s failure to pay certain amounts due Disney under the terms of the Disney License, the Disney License terminated, and Disney claimed amounts due of approximately $178,000, net of $378,000 drawn from an irrevocable letter of credit posted in connection with the execution of the Disney License. In addition, Disney sought additional payments for minimum royalty amounts required to be paid Disney through the next five years. With Niagara, we have produced an improved “clean label” formulationremainder of AquaBall™, which remains sugarthe term of the Disney License. On July 17, 2018 the Company and calorie free but has eliminatedDisney entered into a settlement and release whereby in exchange for a payment to Disney of $42,000, the parties agreed to release each other from any and all preservatives.claims related to the Disney License.
The Niagara Agreement requiresIn April 2018, the Company sold its remaining AquaBall® inventory to deliver to Niagara its minimum volume requirementsRed Beard for an aggregate purchase price of approximately $1.44 million (the “Purchase Price”). As payment for the upcoming 12-month period on or before February 1stPurchase Price, the principal amount of each yearthe senior secured convertible promissory note issued to Red Beard by the Company in the principal amount of $2.25 million (the “Annual CommitmentRed Beard Note”), which Annual Commitment may not be less than 3.2 million Cases (defined was reduced by the Purchase Price, resulting in the Niagara Agreement as a pack of 24 bottles of AquaBall™ Naturally Flavored Water). Subjectapproximately $814,000 owed to Red Beard under the terms and conditions of the Niagara Agreement,Red Beard Note as of April 5, 2018. Management is currently negotiating with Red Beard to convert the Company will pay Niagara $6.35 per Case manufactured, for an annual financial liabilityremaining amounts due under the terms of approximately $20.3 million per year. We expect to begin delivering Cases manufactured by Niagara in second quarterthe Red Beard Note into shares of fiscal 2016.the Company’s common stock.
OurThe Company has reduced its staff to one employee, and has contracted with former management and other professionals to continue operations. In addition, the Company has taken other steps to minimize general, administrative and other operating costs, while maintaining only those costs and expenses necessary to maintain sales of Bazi® and otherwise continue operations while the Board of Directors and the Company’s principal stockholder explore corporate opportunities, as more particularly described below. Management has also worked to reduce accounts payable by negotiating settlements with creditors, including Disney, utilizing advances from Red Beard aggregating approximately $505,000 since September 30, 2018, and is currently negotiating with its remaining creditors to settle additional accounts payable.
Management is currently exploring, together with its largest shareholder, Mr. Vincent C. Smith, executedavailable options to maximize the value of AquaBall® as well as the value of its continued operations consisting of the marketing and sale of Bazi®. In addition, although no assurances can be given, management is actively exploring and negotiating, together with its largest shareholder, opportunities to engage in one or more strategic or other transactions that would maximize the value of the Company as a fully reporting operating public company with a focus on developing consumer brands, as well as restructuring its preferred capital and indebtedness in order to position the Company as an attractive candidate for such transactions.
Termination of Bottling Agreement and Issuance of Notes
On April 5, 2018 (the “Effective Date”), True Drinks settled all amounts due the Bottler under the terms of the Bottling Agreement (the “Settlement”). As of the Effective Date, the damage amount claimed by the Bottler under the Bottling Agreement was $18,480,620, which amount consisted of amounts due to the Bottler for product as well as amounts due for True Drink’s failure to meet certain minimum requirements under the Bottling Agreement (the “Outstanding Amount”). Concurrently, an affiliate of Red Beard and the Bottler agreed to terminate a personal guaranty of ourRed Beard’s obligations under the NiagaraBottling Agreement in an amount not to exceed $10.0 million (the “PersonalAffiliate Guaranty”) (the Bottling Agreement and the Affiliate Guaranty are hereinafter referred to as the “2015 Agreements”).
Under the terms of the Settlement, in exchange for the termination of the 2015 Agreements, the Bottler agreed to accept, among other things: (i) a promissory note in the principal amount of $4,644,906 (the “Principal Amount”), with a 5% per annum interest rate, to be compounded, annually (“Note One”), (ii) a promissory note with a principal amount equal to the Outstanding Amount (“Note Two”), and (iii) a cash payment of $2,185,158 (the “Cash Payment”).
The Principal Amount and all interest payments due under Note One shall be due and payable to the Bottler in full on or before the December 31, 2019 (the “Note Payment”). On January 14, 2019, the Company, True Drinks and Red Beard entered into an Assignment and Assumption Agreement, pursuant to which the Company and True Drinks assigned, and Red Beard assumed, all outstanding rights and obligations of the Company and True Drinks under the terms of Note One. As a result, all obligations of the Company and True Drinks under Note One, including for the payment of amounts due thereunder, were assigned to Red Beard.
Note Two shall have no force or effect except under certain conditions and shall be reduced by any payments made to the Bottler under the terms of the Settlement. True Drinks and the Company shall be jointly and severally responsible for all amounts due, if any, under Note Two, which shall automatically expire and terminate on December 31, 2019.
In consideration for the guarantee of the Company’s obligations in connection with the Settlement, including as a joint and several obligor under the terms of Note One, the Company agreed to issue Red Beard 348,367,950 shares of the Company’s common stock (the “Shares”), which Shares were to be issued at such time as the Company amended its Articles of Incorporation to increase the number of authorized shares of common stock from 300.0 million to at least 2.0 billion (the “Amendment”), but in no event later than September 30, 2018. As a condition to the Company’s obligation to issue the Shares, Red Beard executed, and caused its affiliates to execute, a written consent of shareholders to approve the Amendment. As discussed below, on November 15, 2018, the Company amended its Articles of Incorporation to increase the number of authorized shares of common stock to 7.0 billion, thereby triggering the Company’s obligation to issue the Shares to Red Beard.
In connection with the Settlement, and in order to offset any financial obligation Mr. Smith may incurmake the Cash Payment described above, the Company issued the Red Beard Note to Red Beard, which Red Beard Note accrues interest at a rate of 5% per annum. In May 2018, as a result of the Personal Guaranty, the Company issuedsale to Red Beard Holdings, LLC, an entity affiliated with Mr. Smith (“of the Company’s remaining AquaBall® inventory, the principal amount of the Red Beard”), a senior secured promissory note Note was reduced by the Purchase Price.
Pursuant to the terms of the Red Beard Note, Red Beard shall have the right, at its sole option, to convert the outstanding balance due into that number of fully paid and non-assessable shares of the Company’s common stock equal to the outstanding balance divided by $0.005 (the “NoteConversion Option”) pursuant to which; provided, however, that the Company will borrow any amounts paidshall have the right, at its sole option, to Niagara by Mr. Smithpay all or a portion of the accrued and unpaid interest due and payable to Red Beard upon its exercise of the Conversion Option in cash. Pursuant to the terms of the Red Beard Note, such Conversion Option shall not be exercisable unless and until such time as the Company has filed the Amendment with the Nevada Secretary of State, which occurred on November 15, 2018. As a result of the Personal Guaranty. Any amounts borrowedIncrease in Authorized, Red Beard may now exercise its Conversion Option under the Red Beard Note willat any time.
All outstanding principal and interest due under the terms of the Red Beard Note shall be due and payable to Red Beard in full on or before December 31, 2019 and is secured by a continuing security interest in substantially all of the Company’s assets, will accrue interest at 2.0%, plusassets. Management is currently negotiating with Red Beard to exercise the Maximum Rate (as such term is definedConversion Option, resulting in the Note) and, subject to certainconversion of all amounts due under the terms and conditions of the Red Beard Note will be due and payable within 10 years. As consideration for Mr. Smith’s execution of the Personal Guaranty, the Company issued to Mr. Smith a five-year warrant (the “Personal Guaranty Warrant”), to purchase 17.5 millioninto shares of the Company’s Common Stock for $0.188 per share. The Personal Guaranty Warrant contains a price-protection feature that adjusts the exercise price in the event of certain dilutive issuances of securities. Such price-protection feature results in the Personal Guaranty Warrant being classified as a derivative liability and, as such, the value, totaling $2,263,783, was recorded to derivative liabilities during the year ended December 31, 2015.
common stock.
Food Labs Promissory Note
Extension of Licensing Agreements
DuringOn September 18, 2018, the quarter ended September 30, 2015, weCompany and Food Labs, Inc. (“Food Labs”) entered into renewed Licensing Agreements with both Marvel Characters B.V. (“Marvel”) and Disney Consumer Products, Inc. (“Disney”),an agreement, pursuant to which we secured licensesthe Company sold and issued to feature certain MarvelFood Labs a promissory note in the principal amount of $50,000 (the “Food Labs Note”). The Food Labs Note (i) accrues interest at a rate of 5% per annum, (ii) includes an additional lender’s fee equal to $500, or 1% of the principal amount, and Disney characters on bottles of AquaBall™ Naturally Flavored Water through 2017. Our agreement with Marvel expires(iii) matures on December 31, 2017, and requires payment of a 5% royalty rate on sales of AquaBall™ Naturally Flavored Water adorned with Marvel characters, paid quarterly, with a total guarantee of $200,000. Our agreement with Disney expires on March 31, 2017, and requires payment of a 5% royalty rate on sales of AquaBall™ Naturally Flavored Water adorned with Disney characters, paid quarterly, with a total guarantee of $450,870. We are also required2019. Food Labs is controlled by Red Beard. The Company currently intends to make an annual ‘common marketing fund’ contribution equalborrow additional amounts from Red Beard, as more particularly set forth under “Red Beard Line-of-Credit” below, to 1% of our sales, and must spend a total of $820,000 on advertising and promotional opportunities overpay Food Labs all amounts due Food Labs under the termterms of the agreement with Disney.Food Labs Note.
Increase in Authorized Shares of Common Stock
Increase of Authorized Common Stock.
On June 10, 2015, weNovember 15, 2018, the Company filed a Certificate of Amendment to ourits Articles of Incorporation with the Secretary of State of the State of Nevada to increase the total authorized shares of Common Stock from 120.0 million shares to 200.0 million shares, and on January 4, 2016, we filed a second Certificate of Amendment to our Articles of Incorporation to increase the total authorized shares of Common Stock from 200.0 million to 300.0 million shares.
Creation of Series C Preferred and Amendments to Series C Certificate of Designation
On February 18, 2015, we filed the Certificate of Designation, Preferences, Rights and Limitations of the Series C Convertible Preferred Stock (the “Series C Certificate of Designation”) with the Nevada Secretary of State, designating 50,000 shares of our preferred stock as Series C Convertible Preferred Stock (the “Series C Preferred”). We subsequently filed amendments to the Series C Certificate of Designation in August 2015 and November 2015 in order to increase the number of shares of preferred common stock designated as Series C Preferredauthorized for issuance thereunder from 300 million to 115,000 and then 150,000 shares.7 billion shares (the “Increase in Authorized”).
Financing Activity
Series C Offerings. During the year ended December 31, 2015, the Company and certain accredited investors entered into securities purchase agreements to purchase up to 117,648 shares of Series C Preferred Stock. The Company issued an aggregate total of 116,471 shares of Series C Preferred during 2015 for prices ranging from $100 per share to $113.33 per share for a total gross proceeds of approximately $12 million. As additional consideration for participating in this offering, the purchasers were issued five-year warrants to purchase an aggregate total of 26,449,913 shares of Common Stock, exercisable at $0.15 per share. Each warrant contains a price-protection feature that adjusts the exercise price in the event of certain dilutive issuances of securities. Such price-protection feature is determined to be a derivative liability and, as such, the value of all such warrants issued, totaling $3,249,364, was recorded to derivative liabilities during the year ended December 31, 2015.
March Note Exchange. On March 27, 2015, holders of outstanding notes totaling $1,147,000 and accrued interest totaling $67,207 agreed to exchange all remaining principal and accrued interest into shares of Series C Preferred on substantially similar terms to those offered in the February 2015 offering of Series C Preferred (the “March Note Exchange”). As a result of the MarchIncrease in Authorized, Red Beard may now exercise its Conversion Option under the Red Beard Note Exchange,at any time and, while no assurances can be given, management believes that the Conversion Option will be exercised by Red Beard resulting in the conversion of all amounts due Red Beard by the Company issued an aggregate totalunder the terms of 12,148the Red Beard Note being converted into shares of Series C Preferred and five-year warrants to purchase an aggregate total of 2,834,536 shares of Common Stock for $0.15 per share. Each warrant issued in connection with the March Note Exchange contains a price-protection feature that adjusts the exercise price in the event of certain dilutive issuances of securities. Such price-protection feature results in the warrants being classified as a derivative liability and, as such, the value of all warrants issued in connection with the March Note Exchange, totaling $378,681, was recorded to derivative liabilities during the year ended December 31, 2015. common stock
Red Beard Line-of-Credit
Note Financing. On September 9, 2015,November 19, 2018, the Company beganentered into a private offering,line-of-credit with Red Beard, effective October 25, 2018, pursuant to certain accredited investors (the “Note Investors”), of: (i) senior subordinated secured promissory notes (the “Secured Notes”) inwhich the aggregate principal amount ofCompany may borrow up to $2.5 million; and (ii) and five-year warrants$250,000 (the “Red Beard LOC”);provided, however, that Red Beard may, in its sole discretion, decline to purchase that numberprovide additional advances under the Red Beard LOC upon written notice the Company of shares equalits intent to 15%decline to make such advances. Interest shall accrue on the outstanding principal of the principal amount of the Secured Note purchased by each Note Investor (“Note Warrants”), divided by the ten-day average closing price of the Company’s Common Stock (the “Note Financing”). Each Secured Note issued accrues interestRed Beard LOC at a rate of 12%8% per annum, and matures one year fromannum;provided, however, that upon the dateoccurrence of issuance. Asan Event of Default, as defined in the Red Beard LOC, the accrual of interest shall increase to a rate of 10% per annum. Prior to December 31, 2015,2019 (the “MaturityDate”), Red Beard has the Company had issued an aggregate total of 236,843 Note Warrants in connection with the issuance of the Secured Notes.
Consulting Agreement. During the year ended December 31, 2015, the Company issued 2,413,811 shares of Common Stock in connection with certain consulting agreements. The Company expensed the fair value of the Common Stock issued of $487,826 to consulting expense.
January Note Exchange. On January 20, 2016, the Company and Note Investors holding Secured Notes in the principal amount of $500,000 entered into Note Exchange Agreements pursuant to which the Note Investors agreedright, at its sole option, to convert the outstanding principal balance, plus all accrued but unpaid interest due under the Red Beard LOC (the “Outstanding Balance”) into that number of theirshares of common stock equal to the Outstanding Balance divided by $0.005. As of March 29, 2019, the Company has borrowed a total of $505,000 under the Red Beard LOC, and intends to borrow additional amounts from Red Beard under the Red Beard LOC equal to the principal and accrued interest due under the terms of the Food Labs Note, totaling approximately $51,870 as of March 29, 2019, therefore terminating the Food Labs Note.
Note Extensions
On January 28, 2019, the Company entered into agreements with the holders of three Senior Secured Promissory Notes into(the “Notes”) to extend the maturity date of each of the Notes by 60 days (the “Extension Agreements”). The Notes were each issued between July 25, 2017 to July 31, 2017, originally matured six months after issuance, have an aggregate totalprincipal balance of 4,413$750,000, and accrue interest at a rate of 8% per annum. As a result of the Extension Agreements, the Notes matured on March 26, 2019, March 31, 2019 and April 1, 2019, respectively. The Company is currently in negotiations with the noteholders for possible further extensions or conversion of the balance due under the notes into equity of the Company. While no assurances can be given, management is currently negotiating with Red Beard to convert all amounts due Red Beard under the terms of the Red Beard LOC into shares of Series C Preferred and five-year warrants to purchase up to an aggregate total of 1,029,701 shares of Common Stock for $0.17 per share.the Company’s common stock.
Basis of Presentation and Going Concern
The accompanying financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America, which contemplates continuation of the Company as a going concern. For the year ended December 31, 2015,2018, the Company incurred a net loss of $11,990,563.$3,879,299. At December 31, 2015,2018, the Company hashad negative working capital of $5,303,989$9,735,704 and an accumulated deficit of $30,348,644.$52,120,648. A significant amount of additional capital will be necessary to advance the marketability of the Company'sCompany’s products to the point at which the Company can sustain operations. These conditions, among others, raise substantial doubt about the Company'sCompany’s ability to continue as a going concern. Management's plans are to continue to raise capital through equity and debt offerings, and to expand sales as rapidly as economically viable. The accompanying consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Principles of Consolidation
The accompanying condensed consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries True Drinks, Inc., Bazi, Inc. and GT Beverage Company, LLC. All inter-company accounts and transactions have been eliminated in the preparation of these condensed consolidated financial statements.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenuesrevenue and expensesexpense during the reporting period. Significant estimates made by management include, among others, derivative liabilities, provision for losses on accounts receivable, allowances for obsolete and slow movingslow-moving inventory, stock compensation, deferred tax asset valuation allowances, derivative liabilities, and the realization of long-lived and intangible assets, including goodwill. Actual results could differ from those estimates.
Revenue Recognition
In accordanceMay 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2014-09, Revenue from Contracts with Staff Accounting Bulletin ("Customers (Topic 606), (ASC 606). The underlying principle of ASC 606 is to recognize revenue to depict the transfer of goods or services to customers at the amount expected to be collected. ASC 606 creates a five-step model that requires entities to exercise judgment when considering the terms of contract(s), which includes (1) identifying the contract(s) or agreement(s) with a customer, (2) identifying our performance obligations in the contract or agreement, (3) determining the transaction price, (4) allocating the transaction price to the separate performance obligations, and (5) recognizing revenue as each performance obligation is satisfied. The Company adopted ASC 606 effective January 1, 2018, and adoption of such standard had no effect on previously reported balances.SAB") No. 104 “Revenue
Recognition in Financial Statements”,of sales of the products sold by the Company since the adoption of the new standard has had no quantitative effect on the financial statements. However, the guidance requires additional disclosures to help users of financial statements better understand the nature, amount, timing, and uncertainty of revenue that is recognized.
The Company previously recognized and continues to recognize revenue when risk of loss transferred to our customers and collection of the receivable was reasonably assured, which generally occurs when the product is shipped. A product is not shipped without an order from the customer and credit acceptance procedures performed.
Under the new guidance, revenue is recognized atwhen control of promised goods or services is transferred to our customers, in an amount that reflects the point of shipment, at which time titleconsideration we expect to be entitled to in exchange for those goods or services. The Company does not have any significant contracts with customers requiring performance beyond delivery. All orders have a written purchase order that is passed. Net sales include sales of products, slotting fees, discountsreviewed for credit worthiness, pricing and freightother terms before fulfillment begins. Shipping and handling charges. With approved credit,activities are performed before the customer obtains control of the goods and therefore represent a fulfillment activity rather than a promised service to the customer. Revenue and costs of sales are recognized when placed under the customer’s control. Control of the products that we provide wholesalesell, transfers to the customer upon shipment from our facilities, and the Company’s performance obligations are satisfied at that time.
All products sold by the Company are beverage products. The products are offered for sale as finished goods only, and there are no performance obligations required post-shipment for customers payment termsto derive the expected value from them. Contracts with customers contain no incentives or discounts that could cause revenue to be allocated or adjusted over time.
The Company does not allow for returns, although it does for damaged products, if support for the damage that occurs pre-fulfillment is provided, returns are permitted. Damage product returns have been insignificant. Due to the insignificant amount of up to net 30 days. Amounts receivedhistorical returns as well as the standalone nature of the Company’s products and assessment of performance obligations and transaction pricing for unshipped merchandise are recorded as customer depositsits sales contracts, the Company does not currently maintain a contract asset or liability balance for obligations. The Company assess its contracts and are included in accrued expenses.the reasonableness of its conclusions on a quarterly basis.
Cash and Cash Equivalents
The Company considers all highly liquid investments with original maturities of three months or less, to be cash equivalents. The Company maintains cash with high credit quality financial institutions. At certain times, such amounts may exceed Federal Deposit Insurance Corporation (“FDIC”) insurance limits. The Company has not experienced any losses on these amounts. At December 31, 2015 and 2014, the Company had no cash equivalents.
Restricted Cash
At December 31, 2015, the Company had $209,360 in restricted cash with a financial institution securing a letter of credit. The letter of credit matures in August 2017 and was issued as part of the contractual obligations related to the Disney Agreement, as described above in Note 1, under the heading “Recent Developments.” The Company made an initial deposit of $209,000 during the quarter ended September 30, 2015 to secure the new letter of credit in connection with the Disney Agreement.
Accounts Receivable
We maintainThe Company records its trade accounts receivable at net realizable value. This value includes an appropriate allowance for estimated sales returns and allowances, and uncollectible accounts to reflect any losses anticipated and charged to the provision for doubtful accounts. Credit is extended to our customers based on an evaluation of their financial condition; generally, collateral is not required. An estimate of uncollectible amounts is made by management based upon historical bad debts, current customer receivable balances, age of customer receivable balances, the customer’s financial condition and current economic trends, all of which are subject to change. Actual uncollected amounts have historically been consistent with the Company’s expectations. Receivables are charged off against the reserve for doubtful accounts when, in management’s estimation, further collection efforts would not result in a reasonable likelihood of receipt, or later as proscribed by statutory regulations.Based on our estimates, we recorded an allowance for doubtful accounts which is analyzed on a periodic basis to ensure that it is adequate to the best of management’s knowledge. Management develops an estimateapproximately $0 and $391,000 as of the allowance for doubtful accounts receivable based on the perceived likelihood of ultimate payment. Although the Company expects to collect amounts due, actual collections may differ from these estimated amounts. The allowance for doubtful accounts was approximately $110,000 and $162,000 at December 31, 20152018 and December 31, 2014, respectively.2017, respectfully.
Concentrations
The Company has no significant off-balance sheet concentrations of credit risk such as foreign exchange contracts, options contracts or other foreign hedging arrangements. The Company maintains the majority of its cash balances with two financial institutions. There are funds in excess of the federally insured amount, or that are subject to credit risk, and the Company believes that the financial institutions are financially sound, and the risk of loss is minimal.
We utilized a varietyPrior to the termination of suppliers to purchase raw materials for the AquaBall™ Naturally Flavored Water during the year ended December 31, 2015. We anticipate that beginningBottling Agreement in May 2016,early 2018, all production of AquaBallTM will be completedAquaBall® was done by Niagara. Niagara Bottling, LLC pursuant to the terms and conditions of our 5-year bottling agreement. Niagara will handlehandled all aspects of production, including the procurement of all raw materials necessary to produce AquaBallTMAquaBall®. We utilized two facilities to handle any necessary repackaging of AquaBall® into six packs or 15-packs for club customers.
During 2015,2018, we relied significantly on one supplier for 100% of our purchases of certain raw materials for Bazi®. Bazi, Inc. has sourced these raw materials from this supplier since 2007 and does not anticipate any issues with the supply of these raw materials.2007.
OneNo customer represented 79%made up more than 10% of the Company’s accounts receivable and 47%at December 31, 2018 or 2017. The transaction whereby Red Beard purchased all remaining inventory of AquaBall Naturally Flavored Water for approximately $1.44 million accounted for approximately 74% of net sales duringfor the year ended December 31, 2015, while one2018. No customer represented 37%made up more than 10% of the Company’snet sales and three customers represented 44% of accounts receivable duringfor the year ended December 31, 2014. No other customers exceeded 10% of the Company’s sales or accounts receivable during the year ended December 31, 2015 or 2014.2017.
A significant portion of our revenue comesduring the years ended December 31, 2018 and 2017 came from sales of the AquaBall™AquaBall® Naturally Flavored Water. For the yearyears ended December 31, 20152018 and 2014,2017, sales of AquaBall™AquaBall® accounted for 97%91% and 90%94% of the Company’s total revenue, respectively.
Fair Value Mattersof Financial Instruments
The Company does not have any assets or liabilities carried at fair value on a recurring or non-recurring basis, except for derivative liabilities.
The Company’s financial instruments consist of cash, accounts receivable, accounts payable, andderivative liability accrued expenses,expense, and notes payable. Management believes that the carrying amount of these financial instruments approximates their fair values, due to their relatively short-term nature.
The carrying amount of the Company’s debt is considered a level 3 liability, based on inputs that are unobservable.
Inventory
Inventory is stated atAs of December 31, 2018 and 2017, the lower of cost or market on a FIFO (first-in first-out) basis. Provision is made to reduce excess or obsolete inventory to the estimated net realizable value. The Company purchasespurchased for resale a vitamin-enhanced flavored water beverage and a liquid dietary supplement.
Management reviewsInventories are stated at the carrying valuelower of inventory in relation to its sales history and industry trends to determine an estimatedcost (based on the first-in, first-out method) or net realizable value. Changes in economic conditions or customer demand could result inCost includes shipping and handling fees and costs, which are subsequently expensed to cost of sales. The Company provides for estimated losses from obsolete or slow movingslow-moving inventories and writes down the cost of inventory that cannot be sold or must be sold at reduced pricesthe time such determinations are made. Reserves are estimated based on inventory on hand, historical sales activity, industry trends, the retail environment, and could result in anthe expected net realizable value.
The Company maintained inventory reserve. Inventory reserves were not significantof $0 and $93,000 as of December 31, 2015 or 2014.2018 and 2017, respectively. The 2017 inventory reserve is related to our remaining finished goods inventory of AquaBall® prior to the production of our new formulation of AquaBall® produced by Niagara.
Inventory is comprised of the following:
| | | December 31, 2015 | | | December 31, 2014 | | | |
| Purchased materials | | $ | 689,703 | | | $ | 796,609 | | $- | $29,012 |
| Finished goods | | | 869,016 | | | | 566,834 | | 2,035 | 1,240,089 |
| Allowance for obsolescence reserve | | - | (93,000) |
| Total | | $ | 1,558,719 | | | $ | 1,363,443 | | $2,035 | $1,176,101 |
Property and Equipment
Property and equipment are stated at cost. The Company provides for depreciation of property and equipment using the straight-line method based on estimated useful lives of between three and ten years. Property and equipment is not significant to the consolidated financial statements as of or for the years ended December 31, 20152018 and 2014.2017.
Long-Lived Assets
The Company reviews its long-lived assets for impairment whenever changes in circumstances indicate that the carrying amount of an asset may not be recoverable. For purposes of evaluating the recoverability of long-lived assets, the recoverability test is performed using undiscounted net cash flows estimated to be generated by the asset. An impairment was not deemed necessary in 20152018 or 2014.2017.
Intangible AssetsGoodwill and identifiable intangible assets
Intangible assets consistsAs a result of acquisitions, we have goodwill and other identifiable intangible assets. In business combinations, goodwill is generally determined as the excess of the direct costs incurred for application fees and legal expenses associated with trademarks on the Company’s products, customer list, and the estimatedfair value of GT Beverage Company, LLC’sthe consideration transferred, plus the fair value of any noncontrolling interests in the acquiree, over the fair value of the net assets acquired and liabilities assumed as of the acquisition date. Accounting for acquired goodwill in accordance with GAAP requires significant judgment with respect to the determination of the valuation of the acquired assets and liabilities assumed in order to determine the final amount of goodwill recorded in business combinations. Goodwill is not amortized, rather, it is evaluated for impairment on an annual basis, or more frequently when a triggering event occurs between annual tests that would more likely than not reduce the fair value of the reporting unit below its carrying value. Such impairment evaluations compare the reporting unit’s estimated fair value to its carrying value. During the years ended December 31, 2018 and 2017, we recognized impairment on goodwill of $1,898,000 and $0, respectively.
Identifiable intangible assets consist primarily of customer relationships recognized in business combinations. Identifiable intangible assets with finite lives are amortized over their estimated useful lives, which represent the period over which the asset is expected to contribute directly or indirectly to future cash flows. Identifiable intangible assets are reviewed for impairment whenever events and circumstances indicate the carrying value of such assets or liabilities may not be recoverable and exceed their fair value. If an impairment loss exists, the carrying amount of the identifiable intangible asset is adjusted to a new cost basis. The new cost basis is amortized over the remaining useful life of the asset. Tests for impairment or recoverability require significant management judgment, and future events affecting cash flows and market conditions could adversely impact the valuation of these assets and result in impairment losses. During the years ended December 31, 2018 and 2017 we recognized impairment on identifiable intangible assets of $0 and $130,000, respectively, related to the interlocking spherical bottle patent acquired on March 31, 2012. The Company’s intangible assets are amortized over their estimated remaining useful lives. Thein the acquisition of GT Beverage Company, evaluates the useful lives of its intangible assets annually and adjusts the lives according to the expected useful life. No impairment was deemed necessary as of December 31, 2015 or December 31, 2014.Inc.
Goodwill
Goodwill represents the future economic benefits arising from other assets acquired that are individually identified and separately recognized. Goodwill and intangible assets acquired in a purchase business combination and determined to have an indefinite useful life are not amortized, but are tested for impairment at least annually.
Income Taxes
The Company accounts for income taxes in accordance with FASB Accounting Standards Codification 740 (“ASC Topic 740”). Under the asset and liability method of ASC Topic 740, deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax basis. Deferred tax assets and liabilities are measured using enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled.
Stock-Based Compensation
Total stock-based compensation expense, for all of the Company’s stock-based awards recognized for the year ended December 31, 20152018 and 20142017 was $1,055,448$294,796 and $497,271,$530,005, respectively.
The Company uses a Black-Scholes option-pricing model (the “Black-Scholes Model”) to estimate the fair value of the stock option and warrants. The use of a valuation model requires the Company to make certain assumptions with respect to selected model inputs. Expected volatility is calculated based on the historical volatility of the Company’s stock price over the contractual term of the option. The expected life is based on the contractual term of the option and expected employee exercise and post-vesting employment termination behavior. Currently it is based on the simplified approach provided by SAB 107. The risk-free interest rate is based on U.S. Treasury zero-coupon issues with a remaining term equal to the expected life assumed at the date of the grant (see Note 3 below).
Shares, warrants and options issued to non-employees for services are accounted for at fair value, based on the fair value of instrument issued or the fair value of the services received, whichever is more readily determinable.
Derivative Instruments
A derivative is an instrument whose value is “derived” from an underlying instrument or index such as a future, forward, swap, option contract, or other financial instrument with similar characteristics, including certain derivative instruments embedded in other contracts (“embedded derivatives”) and for hedging activities. As a matter of policy, the Company does not invest in financial derivatives or engage in hedging transactions. However, the Company has entered into complex financing transactions that involve financial instruments containing certain features that have resulted in the instruments being deemed derivatives or containing embedded derivatives. The Company may engage in other similar complex debt transactions in the future, but not with the intention to enter into derivative instruments. Derivatives and embedded derivatives, if applicable, are measured at fair value using the binomial lattice- (“Binomial Lattice”) pricing model and marked to market and reflected on our consolidated statement of operations as other (income) expense at each reporting period. However, such new and/or complex instruments may have immature or limited markets. As a result, the pricing models used for valuation of derivatives often incorporate significant estimates and assumptions, which may impact the level of precision in the financial statements. Furthermore, depending on the terms of a derivative or embedded derivative, the valuation of derivatives may be removed from the financial statements upon conversion of the underlying instrument into some other security.
Net Loss Per Share
EarningsWe compute earnings (loss) per share requireusing the two-class method, as unvested restricted common stock contains nonforfeitable rights to dividends and meets the criteria of a participating security. Under the two-class method, earnings are allocated between common stock and participating securities. The presentation of both basic earnings per common share and diluted earnings per share is required only for each class of common share. Sincestock and not for participating securities. As such, we present basic and diluted earnings per share for our one class of common stock.
The two-class method includes an earnings allocation formula that determines earnings per share for each class of common stock according to dividends declared and undistributed earnings for the Company has aperiod. A company’s reported net lossearnings is reduced by the amount allocated to participating securities to arrive at the earnings allocated to common stockholders for all periods presented, Common Stock equivalents are not included in the weighted average calculation since their effect would be anti-dilutive.purposes of calculating earnings per share. At December 31, 20152018 and 2014,2017, the Company had 120,573,694116,700,107 and 52,577,964198,957,185 shares of common stock equivalents outstanding, respectively.
Unvested restricted common stock, common stock options, and the Warrants are antidilutive and excluded from the computation of diluted earnings per share if the assumed proceeds upon exercise or vesting are greater than the cost to reacquire the same number of shares at the average market price during the period. For the years ended December 31, 2018 and 2017, the impact of all outstanding unvested shares of Common Stock equivalents outstanding, respectively.restricted common stock, common stock options, and the Warrants are excluded from diluted loss per share as their impact would be antidilutive.
The Company has evaluated its business to determine if it has multiple segments and has determined that it operates under a single segment.
Research and Development
Research and development costs are expensed as incurred.
Recent Accounting Pronouncements
In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers: Topic 606. This ASU outlines a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers and supersedes most current revenue recognition guidance. This accounting standard is effective forExcept as noted below, the Company for the year ending December 31, 2017 including interim reporting periods withinhas reviewed all recently issued, but not yet effective accounting pronouncements and has concluded that reporting period. Early adoption isthere are no recently issued, but not permitted. The Company is currently evaluating theyet effective pronouncements that may have a material impact this accounting standard will have on the Company'sCompany’s future financial position, results of operations or cash flows.statements.
On February 25, 2016, the FASB issued ASU 2016-2, "Leases"“Leases” (Topic 842), which is intended to improve financial reporting for lease transactions. This ASU will require organizations that lease assets, such as real estate, airplanes and manufacturing equipment, to recognize on their balance sheet the assets and liabilities for the rights to use those assets for the lease term and obligations to make lease payments created by those leases that have terms of greater than 12 months. The recognition, measurement, and presentation of expensesexpense and cash flows arising from a lease by a lessee primarily will depend on its classification as finance or operating lease. This ASU will also require disclosures to help investors and other financial statement users better understand the amount and timing of cash flows arising from leases. These disclosures will include qualitative and quantitative requirements, providing additional information about the amounts recorded in the financial statements. The ASU is effective for the Company for the year ending December 31, 2019 and interim reporting periods within that year, and early adoption is permitted. Management has not yet determinedbelieves the effect of this ASU will have no impact on the Company'sCompany’s consolidated financial statements.
In August 2016, FASB issued ASU No. 2016-15, “Statement of Cash Flows: Classification of Certain Cash Receipts and Cash Payments” (“ASU 2016-15”), which eliminates the diversity in practice related to the classification of certain cash receipts and payments. ASU 2016-15 designates the appropriate cash flow classification, including requirements to allocate certain components of these cash receipts and payments among operating, investing and financing activities. The retrospective transition method, requiring adjustment to all comparative periods presented, is required unless it is impracticable for some of the amendments, in which case those amendments would be prospectively adopted as of the earliest date practicable. The new guidance was effective for us in the first quarter of 2018. The adoption of ASU 2016-15 did not have a material impact on the Company’s financial statements.
NOTE 2 – STOCKHOLDERS’SHAREHOLDERS’ EQUITY
Securities
Common Stock. The holders of Common Stock common stock are entitled to receive, when and as declared by the Board of Directors, dividends payable either in cash, in property or in shares of Common Stock common stock of the Company. Dividends have no cumulative rights and dividends will not accumulate if the Board of Directors does not declare such dividends.
Series A Preferred. On January 18, 2013, upon the filing of the Amendment to the Articles of Incorporation, the Company converted 1,544,565 shares of Series A Preferred issued to former True Drinks shareholders into 25,304,017 shares of the Company’s Common Stock. In February 2015, the Company filed a Certificate of Elimination with the State of Nevada to eliminate the Series A Preferred Stock.
Series B Preferred. Each share of the Company’s Series B Preferred Convertible Stock (“Series B Preferred”)has a stated value of $4.00 per share (“Stated Value”) and accrued annual dividends equal to 5% of the Stated Value, payable by the Company in quarterly installments, in either cash or shares of Common Stock. common stock. Each share of Series B Preferred wasis convertible, at the option of the holder, into that number of shares of Common Stock common stock equal to the Stated Value, divided by $0.25 per share (the “Series BConversion Shares”). The Company also has the option to require the conversion of the Series B Preferred into Series B Conversion Shares in the event: (i) there were sufficient authorized shares of Common Stock common stock reserved as Series B Conversion Shares; (ii) the Series B Conversion Shares were registered under the Securities Act of 1933, as amended (the “Securities Act”), or the Series B Conversion Shares were freely tradable, without restriction, under Rule 144 of the Securities Act; (iii) the daily trading volume of the Company's Common Stock,Company’s common stock, multiplied with the closing price, equaled at least $250,000 for 20 consecutive trading days; and (iv) the average closing price of the Company's Common Stock Company’s common stock was at least $0.62 per share for 10 consecutive trading days.
During the year ended December 31, 2015,2018, the Company declared $271,838$260,688 in dividends on outstanding shares of its Series B Preferred. The Company issued a total of 1,512,64522,533 shares of Common Stock common stock to pay $288,971$259,260 of cumulative unpaid dividends. As of December 31, 2015,2018, there remained $271,838$67,136 in cumulative unpaid dividends on the Series B Preferred.
Series C Preferred. Each share of Series C Preferred has a stated value of $100 per share, and isas of the year ended December 31, 2018, was convertible, at the option of each respective holder, into that number of shares of Common Stock common stock equal to $100, divided by $0.15$0.025 per share (the “Series CConversion Shares”).The Company also has the option to require conversion of the Series C Preferred into Series C Conversion Shares in the event: (i) there are sufficient authorized shares of Common Stock common stock reserved as Series C Conversion Shares; (ii) the Series C Conversion Shares are registered under the Securities Act, of 1933, or the Series C Conversion Shares are freely tradable, without restriction, under Rule 144 of the Securities Act; and (iii) the average closing price of the Company's Common Stock Company’s common stock is at least $0.62 per share for 10 consecutive trading day.
Subsequent to the year end, and in connection with dilution resulting from the Niagara Settlement, the conversion price was reset to $0.025 per share.
Series D Preferred. Each share of Series D Preferred has a stated value of $100 per share, and, following the expiration of the 20 day calendar day period set forth in Rule 14c-2(b) under the Exchange Act, commencing upon the distribution of an Information Statement on Schedule 14C to the Company’s stockholders, each share of Series D Preferred is convertible, at the option of each respective holder, into that number of shares of the Company’s common stock equal to the stated value, divided by $0.025 per share (the “Series D Conversion Shares”). The Certificate of Designation also gives the Company the option to require the conversion of the Series D Preferred into Series D Conversion Shares in the event: (i) there are sufficient authorized shares of common stock reserved as Series D Conversion Shares; (ii) the Series D Conversion Shares are registered under the Securities Act, or the Series D Conversion Shares are freely tradable, without restriction, under Rule 144 of the Securities Act; and (iii) the average closing price of the Company’s common stock is at least $0.62 per share for 10 consecutive trading days.
Issuances
Between January and February 2014, the Company issued 505,000 shares of its Series B Preferred to certain accredited investors pursuant to subscription agreements in exchange for total net proceeds of $1,857,413. The investors also received five-year warrants to purchase 2,356,667 shares of the Company’s Common Stock for $0.30 per share. The Company also issued 667,467 warrants to its capital advisors in connection with the investment. Each warrant contains a price-protection feature that adjusts the exercise price in the event of certain dilutive issuances of securities. Such price-protection feature is determined to be a derivative liability and, as such, the value of all warrants issued totaling $416,844, was recorded to derivative liabilities during the year ended December 31, 2014.
During 2014, holders of 1,001,352 shares of the Series B Preferred Stock converted those shares into 16,021,632 shares of Common Stock.
In May and July 2014, the Company issued 69,138 and 9,289 shares of Common Stock, respectively, pursuant to a cashless exercise of a total of 179,633 outstanding warrants.
During 2014, holders of $818,926 in outstanding principal, lender’s fees and interest on certain convertible notes payable exchanged this total for 204,732 shares of Series B Preferred and warrants to purchase 921,596 shares of Common Stock for $0.30 per share. Each warrant issued contains a price-protection feature that adjusts the exercise price in the event of certain dilutive issuances of securities. Such price-protection feature is determined to be a derivative liability and, as such, the value of all warrants issued totaling $199,567, was recorded to derivative liabilities. The total value of all such warrants, $199,567, was recorded against Additional Paid In Capital.
During 2014, the Company issued 1,751,270 shares of Common Stock and 5,692 shares of Series B Preferred in connection with various consulting agreements. The Company expensed the fair value of the Common Stock issued of $544,531 to consulting expense.
During 2014, the Company issued 2,004,002 shares of Common Stock in consideration for the settlement of lawsuits and related legal payments.
Issuances
Between February 8, 2017 and August 21, 2017, the Company and certain accredited investors entered into securities purchase agreements to purchase up to 117,648 shares of Series C Preferred Stock. The Company issued an aggregate total of 116,47145,625 shares of Series CD Preferred during 2015 for prices ranging from $100 per share in a series of private placement transactions (the “Series D Financing”). As additional consideration, investors in the Series D Financing received warrants to $113.33purchase up to 60,833,353 shares of common stock, an amount equal to 200% of the Series D Conversion Shares issuable upon conversion of shares of Series D Preferred purchased under the Series D Financing, exercisable for $0.15 per share. In accordance with the terms and conditions of the Securities Purchase Agreement executed in connection with the Series D Financing, all warrants issued were exchanged for shares of common stock pursuant to the Warrant Exchange Program (defined below). During the year ended December 31, 2017, 6,875 shares of Series D Preferred were converted to common stock.
Beginning on February 8, 2017 the Company and holders of outstanding common stock purchase warrants (the “Outstanding Warrants”) entered into Warrant Exchange Agreements, pursuant to which each holder agreed to cancel their respective Outstanding Warrants in exchange for one-half of a share of common stock for a total gross proceedsevery share of approximately $12 common stock otherwise issuable upon exercise of Outstanding Warrants (the “Warrant Exchange Program”). As of the date of this Annual Report on Form 10-K, the Company has issued 79,040,135 shares of common stock, in exchange for the cancellation of 158,080,242 Outstanding Warrants.
NOTE 3 –WARRANTS AND STOCK BASED COMPENSATION
Warrants
On July 26, 2017, the Company commenced an offering of Senior Secured Promissory Notes (the “SecuredNotes”) in the aggregate principal amount of up to $1.5 million to certain accredited investors (the “SecuredNote Financing”). The amount available was subsequently raised to $2.3 million. As additional consideration for participating in this offering, the purchasers were issuedSecured Note Financing, investors received five-year warrants, exercisable for $0.15 per share, to purchase an aggregate totalthat number of 26,449,913 shares of Common Stock, exercisable atthe Company’s common stock equal to 50% of the principal amount of the Secured Note purchased, divided by $0.15 per share. Each warrant contains a price-protection feature that adjustsBetween July 26, 2017 and December 31, 2018, the exercise priceCompany offered and sold Secured Notes in the eventaggregate principal amount of certain dilutive issuances of securities. Such price-protection feature is determined to be a derivative liability$2,465,000 and as such, the value of all such warrants issued totaling $3,249,364, was recorded to derivative liabilities during the year ended December 31, 2015.
On March 27, 2015, holders of outstanding notes totaling $1,147,000 and accrued interest totaling $67,207 agreed to exchange all remaining principal and accrued interest into shares of Series C Preferred on substantially similar terms to those offered in the February 2015 offering of Series C Preferred. As a result of the execution of certain Exchange Agreements and the consummation of March Note Exchange, the Company issued an aggregate total of 12,148 shares of Series C Preferred and five-year warrantsWarrants to purchase an aggregate total of 2,834,536up to 8,216,671 shares of Common Stock for $0.15 per share. Each warrant issued in connection with the March Note Exchange contains a price-protection feature that adjusts the exercise price in the event of certain dilutive issuances of securities. Such price-protection feature results in the warrants being classified as a derivative liability and, as such, the value of all warrants issued in connection with the March Note Exchange, totaling $378,681, was recorded common stock to derivative liabilities during the year ended December 31, 2015.
On October 9, 2015 the Company issued to Vincent C. Smith a five-year warrant to purchase 17,500,000 shares of Common Stock for $0.188 per share as consideration for the execution of a personal guaranty of True Drinks’ obligations under the Niagara Agreement. The warrant contains a price-protection feature that adjusts the exercise price in the event of certain dilutive issuances of securities. Such price-protection feature is determined to be a derivative liability and, as such, the value of the warrant issued totaling $2,263,783, was recorded to derivative liabilities and is included in other expense in the accompanying consolidated statements of operations as of December 31, 2015.
During the year ended December 31, 2015, the Company issued 2,413,811 shares of Common Stock in connection with certain consulting agreements. The Company expensed the fair value of the Common Stock issued of $487,826.
On April 22, 2015, the Company cancelled 2,593,912 options to certain former Directors of the Company. The Company replaced these stock options with 2,594,914 warrants, 1,120,478 of these warrants had an exercise price of $0.25 per share, and 1,474,436 of the warrants had an exercise price of $0.38 per share. The expiration date of 1,120,478 of the warrants is November 12, 2016, and the expiration date on 1,474,436 of the warrants is March 9, 2018.
On October 9, 2015, the Company issued five-year warrants for 884,209 shares at an exercise price of $0.19 per share in exchange for services. The warrants vest over a 12-month period. As of December 31, 2015, 221,053 warrant shares had vested and $19,895 was expensed accordingly.
NOTE 3 – STOCK OPTIONS AND WARRANTS
Warrants
A summary of the Company’s warrant activity for the years ended December 31, 20152018 and 20142017 is presented below:
| | | Weighted Average Exercise Price |
| Outstanding, December 31, 2016 | 101,396,416 | $0.15 |
| Granted | 68,666,690 | - |
| Exercised | - | - |
| Expired | - | - |
| Exchanged | (158,080,242) | 0.15 |
| Outstanding, December 31, 2017 | 11,982,864 | $0.17 |
| Granted | 1,383,334 | 0.15 |
| Exercised | - | - |
| Expired | (3,304,944) | 0.22 |
| Exchanged | - | - |
| Outstanding, December 31, 2018 | 10,061,254 | $0.15 |
| | | Warrants Outstanding | | | Weighted Average Exercise Price |
| Outstanding, December 31, 2013 | | | 12,590,467 | | | $ | 0.55 | |
| Granted | | | 4,022,936 | | | | 0.30 | |
| Exercised | | | (179,633 | ) | | | 0.25 | |
| Expired | | | (58,500 | ) | | | 25.09 | |
| Outstanding, December 31, 2014 | | | 16,375,270 | | | $ | 0.40 | |
| Granted | | | 50,543,837 | | | | 0.16 | |
| Exercised | | | - | | | | - | |
| Expired | | | - | | | | - | |
| Outstanding, December 31, 2015 | | | 66,919,107 | | | $ | 0.18 | |
As of December 31, 2015,2018, the Company had the following outstanding warrants to purchase shares of its Common Stock: common stock:
| Warrants Outstanding | | | Weighted Average Exercise Price Per Share | | | Weighted Average Remaining Life (Yrs.) | |
| | 61,453 | | | $ | 30.00 | | | | 0.06 | |
| | 63,098,264 | | | $ | 0.15 | | | | 4.13 | |
| | 1,120,479 | | | $ | 0.25 | | | | 1.74 | |
| | 1,474,435 | | | $ | 0.38 | | | | 1.53 | |
| | 1,164,476 | | | $ | 0.19 | | | | 4.76 | |
| | 66,919,107 | | | $ | 0.18 | | | | 4.04 | |
| Weighted Average Exercise Price Per Share | Weighted Average Remaining Life (Yrs.) |
9,633,621 | $0.15 | 3.49 |
427,633 | $0.19 | 1.97 |
10,061,254 | $0.15 | 3.42 |
Non-Qualified Stock Options
NoDuring the year ended December 31, 2018, the Company granted options were grantedto a certain employee to purchase a total of 200,000 shares of common stock with an exercise price of $0.025, which expire five years from the date of issuance. Also, during the year ended December 31, 2015 and2018, the Company and holders of allgranted options to certain employees to purchase a total of 70,424,891 shares of common stock with an exercise price of $0.015, which expire ten years from the date of issuance. These options vest upon a change of control transaction as defined in the Company’s Stock Incentive Plan. Also, during the year ended December 31, 2018, the company reset the exercise price and extended the expiration date of options to certain employees and certain members of the Company’s Common Stock agreedBoard of Directors. The reset options gave the holders the option to cancel or forfeit their options.purchase an aggregate total of 19,999,935 shares of common stock. The exercise prices were reset to $0.025 per common share, and the expiration dates were extended five years from the date of the reset. The original exercise prices of these options were between $0.07 and $0.15 per share, and the original expiration dates ranged from September 2021 to September 2022.
The weighted average estimated fair value per share of the stock options at grant date was $0.007 and $0.015 per share, respectively. The value of the options for which the exercise price was reset and the expiration date was extended in 2018 was also $0.008 per share. Such fair values were estimated using the Black-Scholes stock option pricing model and the following weighted average assumptions.
| |
| Expected life | |
| Estimated volatility | 75% |
| Risk-free interest rate | 1.1% |
| Dividends | - |
Stock option activity during the year ended December 31, 20152018 is summarized as follows:
| | | Options Outstanding | | Weighted Average Exercise Price | | | Weighted Average Exercise Price |
| Options outstanding at December 31, 2014 | | 12,379,593 | | $ | 0.37 | | |
| Options outstanding at December 31, 2017 | | 41,770,782 | $0.08 |
| Exercised | | - | | | - | | - |
| Granted | | - | | | - | | 70,624,891 | 0.015 |
| Forfeited | | (12,379,593 | ) | | | 0.37 | | (20,635,847) | 0.070 |
| Expired | | | - | | | - | | - |
| Options outstanding at December 31, 2015 | | | - | | $ | - | | |
| Options outstanding at December 31, 2018 | | 91,759,826 | 0.018 |
Cancellation of Stock Options and Issuance of Restricted Stock. Between June and July 2015, the Company and each of the holders of all outstanding options to purchase shares of the Company’s Common Stock agreed to cancel or forfeit their options, such that, as of July 10, 2015, no options to purchase shares of the Company’s Common Stock were outstanding.
On August 6, 2015, the Company’s board of directors authorized an issuance of an aggregate total of 19,491,375 shares of restricted Common Stock pursuant to the terms and conditions of the Company’s 2013 Stock Incentive Plan to certain employees, including those that agreed to cancel previously issued stock options. In December 2015, the Company issued 750,000 shares of restricted stock under the plan.Awards
The cancellation of the stock options and issuance of restricted stock was accounted for as a modification in accordance with the provisions of ASC Topic 718 Compensation – Stock Compensation. The Company recorded approximately $1,055,000 of stock based compensation in connection with the transaction.
NOTE 4 – INTANGIBLE ASSETS
The Company has incurred costs to trademark eight of its current products and marketing nomenclatures. During 2015, the Company purchased a patent in relation to the purchase of GT Beverage, and also assumed the trademarks of Bazi Intl. Patents and trademarks are being amortized over the lesser of their remaining life or 15 years.
Intangible assets are:
| | December 31, 2015 | | | December 31, 2014 | |
| Patents and trademarks | $ | 1,706,849 | | | $ | 1,706,849 | |
| Accumulated amortization | | (636,261 | ) | | | (488,235 | ) |
| | $ | 1,070,588 | | | $ | 1,218,614 | |
Amortization expense for the year ended December 31, 20152018, the Company did not issue any shares of restricted stock. During the year, a total of 1,854,061 shares were forfeited.
As of December 31, 2018, no shares were unvested out of the total of 1,500,000 granted shares.
A summary of the Company’s restricted common stock activity for the years ended December 31, 2018 and 2014 was $148,768 and $182,843, respectively. For these assets, amortization expense over the next five years and thereafter2017 is expected to be as follows:presented below:
| | | Patent and Trademark Amortization | |
| 2016 | | $ | 141,177 | |
| 2017 | | | 141,177 | |
| 2018 | | | 141,177 | |
| 2019 | | | 141,177 | |
| 2020 | | | 141,177 | |
| 2021 and thereafter | | | 364,703 | |
| | | $ | 1,070,588 | |
| Restricted Common Stock Awards |
| Outstanding, December 31, 2016 | 12,772,229 |
| Granted | 3,591,240 |
| Issued | (2,289,156) |
| Forfeited | (10,720,252) |
| Outstanding, December 31, 2017 | 3,354,061 |
| Granted | - |
| Issued | - |
| Forfeited | (1,854,061) |
| Outstanding, December 31, 2018 | 1,500,000 |
NOTE 54 – INCOME TAXES
The Company does not have significant income tax expense or benefit for the year ended December 31, 20152018 or 2014.2017. Tax net operating loss carryforwards have resulted in a net deferred tax asset with a 100% valuation allowance applied against such asset at December 31, 20152018 and 2014.2017. Such tax net operating loss carryforwards (“NOL”) approximated $27.6$52.1 million at December 31, 2015.2018. Some or all of such NOL may be limited by Section 382 of the Internal Revenue Code and will begin to expire in the year 2032.
The provision for income taxes differs from the amounts which would be provided by applying the statutory federal income tax rate of 34% to the net loss before provision for income taxes for the years ended December 31, 2018 and 2017 are as follows:
| | | |
| Income tax expense (benefit) at statutory rate | $(815,000) | $(2,613,900) |
| Change in valuation allowance | 815,000 | 2,613,900 |
| Income tax expense | $- | $- |
The components of income tax expense (benefit) attributable to continuing operations are as follows:
| | | |
| Current expense: | | |
| Federal | $- | $- |
| State | - | - |
| | | |
| Deferred expense (benefit): | | |
| Federal | $- | $- |
| State | - | - |
| | | |
| Total | $- | $- |
The income tax effect of temporary differences between financial and tax reporting and net operating loss carryforwards gives rise to a deferred tax asset at December 31, 20152018 and 20142017 as follows:
| | | 2015 | | | 2014 | | | |
| Deferred tax asset –NOL’s | | $ | 11,040,000 | | | $ | 6,800,000 | | $10,900,000 | $10,131,000 |
| Less valuation allowance | | | (11,040,000 | ) | | | (6,800,000 | ) | (10,900,000) | (10,131,000) |
| Net deferred tax asset | | $ | - | | | $ | - | | $- |
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become realizable. Management considers the scheduled reversal of deferred tax liabilities, projected future taxable income, and tax planning strategies in making this assessment. Based upon the history of the Company and projections for future taxable income over the periods in which the deferred tax assets are realizable, management believes it is not more likely than not that the Company will realize the benefits of these deductible differences and therefore a full valuation allowance against the deferred tax assets has been established.
On December 22, 2017, the U.S. enacted the Tax Cuts and Jobs Act (“Tax Act”) that instituted fundamental changes to the taxation of multinational corporations. The Tax Act includes changes to the taxation of foreign earnings by implementing a dividend exemption system, expansion of the current anti-deferral rules, a minimum tax on low-taxed foreign earnings and new measures to deter base erosion. The Tax Act also includes a permanent reduction in the corporate tax rate to 21%, repeal of the corporate alternative minimum tax, expensing of capital investment, and limitation of the deduction for interest expense. Furthermore, as part of the transition to the new tax system, a one-time transition tax is imposed on a U.S. shareholder’s historical undistributed earnings of foreign affiliates. Although the Tax Act is generally effective January 1, 2018, GAAP requires recognition of the tax effects of new legislation during the reporting period that includes the enactment date, which was December 22, 2017.
As a result of the merger with Bazi Intl. on October 15, 2012, the Company may have access to utilize a portion of the net operating loss carryforwards of Bazi Intl., which, in total, were approximately $25 million at the time of the merger. The Company is uncertain as to the portion of the Bazi net operating loss carryforwards that may be limited by Section 382 of the Internal Revenue Code.
The Tax Reform Act of 1986 contains provisions that limit the utilization of net operating loss and tax credit carryforwards if there has been a change of ownership as described in Section 382 of the Internal Revenue Code. Such an analysis has not been performed by the Company to determine the impact of these provisions on the Company’s net operating losses, though management believes the impact would be minimal, if any.losses. A limitation under these provisions would reduce the amount of losses available to offset future taxable income of the Company.
ASC 740 prescribes a recognition threshold and measurement attribute for the recognition and measurement of tax positions taken or expected to be taken on income tax returns. ASC Topic 740 also provides guidance on de-recognition of income tax assets and liabilities, classification of current and deferred income tax assets and liabilities, and accounting for interest and penalties associated with tax positions.
Based on management’s assessment of ASC Topic 740, management concluded that the Company does not have any uncertain tax positions as of December 31, 2015.2018. There have been no income tax related interest or penalties assessed or recorded and if interest and penalties were to be assessed, the Company would charge interest and penalties to income tax expense. It is not anticipated that unrecognized tax benefits would significantly increase or decrease within 12 months of the reporting date. The Company and its subsidiaries have several years of past due income tax returns. Until returns are filed and the related statute of limitations are met (generally 3 years for federal and 4 years for state), such past due returns remain open to examination by applicable authorities.
NOTE 65 – DEBT
A summary of convertible notes payable as of December 31, 2015 and 2014 is as follows:
| | | Amount | |
| Outstanding, December 31, 2013 | | $ | 2,596,667 | |
| Borrowings | | | 4,263,002 | |
| Repayments | | | (1,936,667 | ) |
| Conversions to Common Stock | | | (660,000 | ) |
| Outstanding, December 31, 2014 | | $ | 4,263,002 | |
| Borrowings | | | 1,103,817 | |
| Repayments | | | (2,883,000 | ) |
| Conversions to Series C Preferred Stock | | | (1,147,000 | ) |
| Outstanding, December 31, 2015 | | $ | 1,336,819 | |
In March 2015, the Company paid off approximately $2.7 million of the Company’s $3.8 million in outstanding promissory notes. Following these payments, the Company and each of the holders of the remaining notes entered into Exchange Agreements, wherein the holders agreed to exchange the remaining principal of $1,147,000 and accrued interest of any such notes into shares of Series C Preferred on substantially similar terms to those offered in connection with the issuance of shares of Series C Preferred and warrants consummated in February 2015.
As described under Note 2, “Shareholder’s Equity” above, in September 2015, the Company began a private offering to certain accredited investors of: (i) Secured Notes in the aggregate principal amount of up to $2.5 million; and (ii) and Note Warrants to purchase that number of shares equal to 15% of the principal amount of the Secured Note purchased by each investor, divided by the ten-day average closing price of the Company’s Common Stock. Each Secured Note accrues interest at a rate of 12% per annum, and will mature one year from the date of issuance. As of December 31, 2015, the Company had issued Secured Notes in the aggregate principal amount of $855,000 and Note Warrants to purchase an aggregate total of 280,265 shares of Common Stock. Subsequent to December 31, 2015, Secured Notes in the aggregate principal amount of $500,000 were exchanged for shares of Series C Preferred and warrants. See Note 10 “Subsequent Events” below.
In September 2015, the Company issued promissory notes to certain related parties in the aggregate principal amount of $100,000. The notes expired on October 31, 2015 and were paid. Upon repayment, the Company paid a lender's fee to the related parties equal to 10% of the principal amount.
The Company entered into a line-of-credit agreement with a financial institution on June 30, 2014. The terms of the agreement allowallowed the Company to borrow up to the lesser of $1.5 million or 85% of the sum of eligible accounts receivables. The line of credit agreement matured on July 31, 2018 and was not renewed by the Company. At December 31, 2015,2018 and 2017, the total outstanding on the line-of-credit approximated $482,000was $0 and $10,953, respectively.
A summary of the Company did not have any availability to borrow. The line-of-credit bears interest at Prime rate (3.5% as of December 31, 2015) plus 4.5%2018 and 2017 is as follows:
| |
| Outstanding, December 31, 2017 | $10,953 |
| Net repayments | (10,953) |
| Outstanding December 31, 2018 | $- |
Food Labs Note Payable
As disclosed in Note 1 above, on September 18, 2018, the Company issued a promissory note to Food Labs in the principal amount of $50,000. The Food Labs Note (i) accrues interest at a rate of 5% per annum, as well as a monthly(ii) includes an additional lender’s fee equal to $500, or 1% of 0.50%the principal amount, and (iii) matures on December 31, 2019. At December 31, 2018, the average amounttotal outstanding on the line,Food Labs Note was $51,227.
Note Payable
In April 2017, the Company converted approximately $1,088,000 of accounts payable into a secured note payable agreement with Niagara (the “Niagara Note”). The Niagara Note called for monthly payments of principal and interest totaling $25,000 through December 2017, and monthly payments of approximately $52,000 through maturity. The note bore interest at 8% per annum, was scheduled to mature in April 2019 and was secured by the personal guarantee which secures the Bottling Agreement. As of the date of the Niagara Settlement described in Note 1, the remaining balance on the Niagara Note was $854,366 and was settled in full in exchange for a new note payable.
As of December 31, 2018, and in connection with the Niagara Settlement as further discussed in Note 1 above, the Niagara Note was settled in full, and a new note was issued in the principal amount of $4,644,906. The note bears interest at 5% per annum and matures in December 2019.
In April 2018, the Company issued a senior secured convertible promissory note in the amount of $2,250,000 to Red Beard in order to pay the initial payment of the Niagara Settlement. Also, in April 2018, the Company sold its remaining AquaBall® inventory to Red Beard for the Purchase Price of $1,436,113. As payment for the Purchase Price, the principal amount of the note was reduced by the Purchase Price, resulting in approximately $814,000 owed to Red Beard under the terms of the Red Beard Note as of April 5, 2018. The note bears interest at 5% per annum, matures in December 2019 and is secured by a continuing security interest in substantially all of the accounts receivablesCompany’s assets.
Pursuant to the terms of the Red Beard Note, Red Beard shall have the right, at its sole option, to convert the outstanding balance due into that are funded against.number of fully paid and non-assessable shares of the Company’s common stock equal to the outstanding balance divided by $0.005 (the “Conversion Option”); provided, however, that the Company shall have the right, at its sole option, to pay all or a portion of the accrued and unpaid interest due and payable to Red Beard upon its exercise of the Conversion Option in cash. Pursuant to the terms of the Red Beard Note, such Conversion Option shall not be exercisable unless and until such time as the Company has filed the Amendment with the Nevada Secretary of State, which occurred on November 15, 2018. During the year ended December 31, 2018, the Company recorded a beneficial conversion feature of the note in the amount of $2,250,250. The line-of-credit maturesamount is netted against the note payable balance as a debt discount with the corresponding entry to additional paid-in capital. During the year ended December 31, 2018, a total of $1,436,113 of the beneficial conversion feature was derecognized. The debt discount is amortized as interest expense through the maturity date. During the year ended December 31, 2018, a total of $346,052 of the debt discount was amortized and recorded as expense.
Secured Note Financing
As disclosed in Note 3 above, on July 26, 2017, the Company commenced an offering of Secured Notes in the aggregate principal amount of up to $1.5 million to certain accredited investors. The amount available was subsequently raised to $2.3 million. Between July 26, 2017 and December 31, 2016.2018, the Company offered and sold Secured Notes in the aggregate principal amount of $2,465,000 and issued warrants to purchase up to 8,216,671 shares of common stock to participating accredited investors. The warrants were valued at $127,466 and were recorded as a discount to notes payable. During the year ended December 31, 2018, a total of $67,474 of the debt discount was amortized and recorded as expense.
The Secured Notes (i) accrue interest at a rate of 8% per annum, (ii) have a maturity date of 1.5 years from the date of issuance, and (iii) are subject to a pre-payment and change in control premium of 125% of the principal amount of the Secured Notes at the time of pre-payment or change in control, as the case may be. To secure the Company’s obligations under the Secured Notes, the Company granted to participating investors a continuing security interest in substantially all of the Company’s assets pursuant to the terms and conditions of a Security Agreement (the “Security Agreement”).
In addition, during the year ended December 31, 2018, Red Beard advanced the Company $455,000 to be used specifically to settle certain accounts payable owing to certain creditors, including Disney, and to provide funds to pay certain operating, administrative and related costs to continue operations. As of December 31, 2018, the Company had settled $834,000 in accounts payable to creditors, including Disney, in consideration for the payment to such creditors of approximately $193,000. The terms of the advances to the Company by Red Beard to finance the settlements, and to allow the Company to continue as a going concern, are currently being negotiated.
A summary of the note payable as of December 31, 2018 and 2017 is as follows:
| |
| Outstanding, December 31, 2017 | $2,803,610 |
| Borrowings on notes payable | 3,056,350 |
| Note payable issued in exchange for accounts payable | 3,790,540 |
| Reduction of note payable for the sale of inventory | (1,436,113) |
| Recording of debt discount on secured notes | (2,250,250) |
| Derecognition of debt discount | 1,436,113 |
| Amortization of debt discount to interest expense | 413,536 |
| Outstanding December 31, 2018 | $7,813,786 |
NOTE 76 – COMMITMENTS AND CONTINGENCIES
TheDuring the quarter ended September 30, 2017, the Company has entered in a number of agreements with various consultants. Termination of any of these agreements could result in termination fees.
The Company leasesmoved its corporate office in Irvine, California on a one-year term. The Company recently movedheadquarters and entered into a new officelease for the facility, which lease was scheduled to expire on March 31, 2019. Due to the Company’s financial condition and extended itsmanagement’s plan, the lease fromwas terminated on May 11, 2018. The Company and the lessor recently agreed to settle all amounts due under the old lease for an expiration dateaggregate of July 31, 2016 to December 31, 2016.$15,750 as consideration for termination of the lease. Total rent expense related to the Company'sthis and our previous operating lease for the year ended December 31, 20152018 was $55,640. Total remaining payments$47,609. Management is currently occupying office space located at 2 Park Plaza in Irvine California, which the Company rents for $500 on the lease througha month to month basis.
As of December 31, 2016 are $42,687.
The2018 and 2017, the Company maintainsmaintained employment agreements with certain key members of management. The agreements provideprovided for minimum base salaries, eligibility for stock options, performance bonuses and severance payments.
The Company has entered in a number of agreements with various consultants. Termination of any of these agreements could result in termination fees.
Legal Proceedings
From time to time, claims are made against the Company in the ordinary course of business, which could result in litigation. Claims and associated litigation are subject to inherent uncertainties, and unfavorable outcomes could occur. In the opinion of management, the resolution of these matters, if any, will not have a material adverse impact on the Company’s financial position or results of operations. Other than as set forth below, there are no additional pending or threatened legal proceedings at this time.
Delhaize America Supply Chain Services, Inc. v. True Drinks, Inc. On May 8, 2018, Delhaize America Supply Chain Services, Inc. (“Delhaize”) filed a complaint against the Company in the General Court of Justice Superior Court Division located in Wake County, North Carolina alleging breach of contract, among other causes of action, related to contracts entered into by and between the two parties. Delhaize is seeking in excess of $25,000 plus interest, attorney’s fees and costs. We believe the allegations are currently not involved in any litigation that weunfounded and are defending the case vigorously. We believe could havethe probability of incurring a material adverse effect on our financial condition or resultsloss to be remote.
The Irvine Company, LLC v. True Drinks, Inc.On September 10, 2018, The Irvine Company, LLC (“Irvine”) filed a complaint against the Company in the Superior Court of operations.
Orange County, located in Newport Beach, California, alleging breach of contract related to the Company’s early termination of its lease agreement with Irvine in May 2018. Pursuant to the Complaint, Irvine sought to recover approximately $74,000 in damages from the Company. In November 2018, the Company and Irvine agreed to settle the lawsuit for an aggregate of $15,750.
NOTE 87 – FAIR VALUE MEASUREMENTS
The application of fair value measurements may be on a recurring or nonrecurring basis depending on the accounting principles applicable to the specific asset or liability or whether management has elected to carry the item at its estimated fair value. FASB ASC 820-10-35 specifies a hierarchy of valuation techniques based on whether the inputs to those techniques are observable or unobservable. Observable inputs reflect market data obtained from independent sources, while unobservable inputs reflect the Company’s market assumptions. These two types of inputs create the following fair value hierarchy:
- Level 1: Observable inputs such as quoted prices in active markets;
- Level 2: Inputs, other than the quoted prices in active markets, that are observable either directly or indirectly; and
- Level 3: Unobservable inputs in which there is little or no market data, which require the reporting entity to develop its own assumptions.
This hierarchy requires the Company to use observable market data, when available, and to minimize the use of unobservable inputs when estimating fair value.
The Company assesses its recurring fair value measurements as defined by FASB ASC 810. Liabilities measured at estimated fair value on a recurring basis include derivative liabilities. Transfers between fair value classifications occur when there are changes in pricing observability levels. Transfers of financial liabilities among the levels occur at the beginning of the reporting period. There were no transfers between Level 1, Level 2 and/or Level 3 during the year ended December 31, 2015.2018. The Company had no Level 1 or 2 fair value measurements during 20152018 or 2014.2017.
The following table presents the estimated fair value of financial liabilities measured at estimated fair value on a recurring basis included in the Company’s financial statements as of December 31, 20152018 and 2014:2017:
| | | | | | Level 1 | | | Level 2 | | | Level 3 | |
| | | Total carrying value | | | Quoted market prices in active markets | | | Internal Models with significant observable market parameters | | | Internal models with significant unobservable market parameters | |
| Derivative liabilities - December 31, 2015 | | $ | 6,199,021 | | | $ | - | | | $ | - | | | $ | 6,199,021 | |
| Derivative liabilities - December 31, 2014 | | $ | 1,569,522 | | | $ | - | | | $ | - | | | $ | 1,569,522 | |
| | | | | |
| | | Quoted market prices in active markets | Internal Models with significant observable market parameters | Internal models with significant unobservable market parameters |
| Derivative liabilities - December 31, 2018 | $879,257 | - | - | $879,257 |
| Derivative liabilities - December 31, 2017 | $8,337 | $- | $- | $8,337 |
The following table presents the changes in recurring fair value measurements included in net loss for the years ended December 31, 20152018 and 2014:2017:
| | | Recurring Fair Value Measurements | |
| | | Changes in Fair Value Included in Net Loss | |
| | | Other Income | | | Other Expense | | | Total | |
Derivative liabilities - December 31, 2015 | | $ | 1,262,329 | | | $ | - | | | $ | 1,262,329 | |
| Derivative liabilities - December 31, 2014 | | $ | 621,159 | | | $ | - | | | $ | 621,159 | |
| | Recurring Fair Value Measurements |
| | Changes in Fair Value Included in Net Loss |
| | | | |
| Derivative liabilities - December 31, 2018 | $8,883,383 | $- | $8,883,383 |
| Derivative liabilities - December 31, 2017 | $2,331,888 | $- | $2,331,888 |
The table below sets forth a summary of changes in the fair value of our Level 3 financial liabilities for the year ended December 31, 2015:
| | | December 31, 2014 | | | Recorded new Derivative Liabilities | | | Reclassification of Derivative Liabilities | | | Change in Estimated Fair Value Recognized in Results of Operations | | | December 31, 2015 | |
| Derivative liabilities | | $ | 1,569,522 | | | $ | 5,891,828 | | | $ | - | | | $ | (1,262,329 | ) | | $ | 6,199,021 | |
| | | Recorded new Derivative Liabilities | Reclassification of Derivative Liabilities | Change in Estimated Fair Value Recognized in Results of Operations | |
| Derivative liabilities | $8,337 | $9,754,303 | $- | $(8,883,383) | $879,257 |
The table below sets forth a summary of changes in the fair value of our Level 3 financial liabilities for the year ended December 31, 2014:
| | | December 31, 2013 | | | Recorded new Derivative Liabilities | | | Reclassification of Derivative Liabilities | | | Change in Estimated Fair Value Recognized in Results of Operations | | | December 31, 2014 | |
| Derivative liabilities | | $ | 1,619,021 | | | $ | 616,411 | | | $ | (44,751) | | | $ | (621,159 | ) | | $ | 1,569,522 | |
| | | Recorded new Derivative Liabilities | Reclassification of Derivative Liabilities | Change in Estimated Fair Value Recognized in Results of Operations | |
| Derivative liabilities | $5,792,572 | $2,627,931 | $(6,080,278) | $(2,331,888) | $8,337 |
NOTE 98 – LICENSING AGREEMENTS
We originallyfirst entered into a three-year licensing agreementagreements with Disney Consumer Products, Inc. (“Disney”) and an 18-month licensing agreement with Marvel Characters, B.V. (“Marvel”) (collectively, the “Licensing Agreements”) in 2012. Each Licensing Agreement allowsallowed us to feature popular Disney and Marvel characters on AquaBall™ AquaBall®Naturally Flavored Water, allowing AquaBall™ AquaBall®to stand out among other beverages marketed towards children. Under the terms and conditions of the Licensing Agreements, we work with the Disney and Marvel teams to create colorful, eye-catching labels that surround the entire spherical shape of each AquaBall™. Once the label designs are approved, we work with Disney and Marvel to set retail calendars, rotating the placement of different AquaBall™ designs over the course of the year.
In 2015,March 2017, the Company and Disney entered into a renewed Licensing Agreement,licensing agreement, which extended the Company’s license with Disney through March 31, 2017 (the “Disney Agreement”).2019. The terms of the Disney Agreement entitleLicense entitled Disney to receive a royalty rate of 5% on sales of AquaBall™ AquaBall®Naturally Flavored Water adorned with Disney characters, paid quarterly, with a total guarantee of $450,870$807,000 over the period from April 1, 20152017 through March 31, 2017.2019. In addition, the Company iswas required to make a ‘common marketing fund’ contribution equal to 1% of sales due annually during the agreement. TheDisney License. As discussed in Note 1 above, in connection with the Company’s discontinued production of AquaBall®, the Company is required to spend a total of $820,000 on advertising and promotional opportunities over the termnotified Disney of the Company’s desire to terminate the Disney Agreement.License in early 2018.As a result of the Company’s decision to discontinue the production of AquaBall® and terminate the Disney License, and considering amounts due, Disney drew from a letter of credit funded by Red Beard in the amount of $378,000 on or about June 1, 2018. Subsequently, Disney and the Company agreed to a settlement and release of all claims related to the Disney License in consideration for the payment to Disney of $42,000.
The former Marvel Licensing Agreement (“Marvel Agreement”) stipulated a royalty rate of 5% on sales of AquaBall™ Naturally Flavored Water adorned with Marvel characters, paid quarterly. The total royalty guarantee paid during the period from July 1, 2015 through December 31, 2015 was $37,500.
On August 22, 2015, the Company and Marvel entered into a renewed Licensing Agreement to extend the Company'sCompany’s license to feature certain Marvel characters on bottles of AquaBall™AquaBall® Naturally Flavored Water through December 31, 2017. The Marvel Agreement requiresrequired the Company to pay to Marvel a 5% royalty rate on sales of AquaBall™AquaBall® Naturally Flavored Water adorned with Marvel characters, paid quarterly, through December 31, 2017, with a total guarantee of $200,000.$200,000 over the period from January 1, 2016 through December 31, 2017. The Company decided not to renew the Marvel Agreement for another term. Thus, the Licensing Agreement expired by its terms on December 31, 2017.
NOTE 109 – SUBSEQUENT EVENTS
The Company evaluated subsequent events through the date the accompanying consolidated financial statements were issued. Subsequent to December 31, 2015, the following events occurred:Assignment and Assumption of Secured Promissory Note
January Note Exchange. On January 20, 2016,14, 2019, the Company and True Drinks, Inc., a wholly owned subsidiary of the Company (“True”), entered into an Assignment and Assumption Agreement with Red Beard, pursuant to which the Company and True assigned, and Red Beard assumed, all outstanding rights and obligations of the Company and True due under the terms of Note Investors holding Secured NotesOne in the principal amount of $500,000$4,644,906, which was originally issued by the Company, True Drinks and Red Beard jointly to Niagara Bottling, LLC on April 5, 2018 (the “Assignment”). As a result of the Assignment, all obligations of the Company and True under the terms of the Note, including for the payment of amounts due thereunder, are assigned to Red Beard.
Secured Note Extensions
On January 28, 2019, the Company entered into agreements with the holders of three Senior Secured Promissory Notes (the “Notes”) to extend the maturity date of each of the Notes by 60 days (the “Extension Agreements”). The Notes were each issued between July 25, 2017 to July 31, 2017, originally matured six months after issuance, have an aggregate principal balance of $750,000, and accrue interest at a rate of 8% per annum. As a result of the Extension Agreements, the Notes matured on March 26, 2019, March 31, 2019 and April 1, 2019, respectively. The Company is currently in negotiations with the note holders for possible further extensions or conversion of the balance due under the notes into equity of the Company.
Management has reviewed and evaluated additional subsequent events and transactions occurring after the balance sheet date through the filing of this Annual Report on Form 10-K and determined that, other than as disclosed above, no subsequent events occurred.
Financial Statements of True Drinks Holdings, Inc. for the three months ended March 31, 2019 and 2018
TRUE DRINKS HOLDINGS, INC. CONDENSED CONSOLIDATED BALANCE SHEETS
(unaudited)
| | | |
| ASSETS | | |
Current Assets: | | |
| Cash and cash equivalents | $401 | $43,181 |
| Accounts receivable, net | 1,173 | 990 |
| Inventory, net | 25,657 | 2,035 |
| Prepaid expenses and other current assets | - | 6,712 |
| Total Current Assets | 27,231 | 52,918 |
| | | |
| Property and Equipment, net | - | 1,129 |
| Goodwill | 1,576,502 | 1,576,502 |
| Total Assets | $1,603,733 | $1,630,549 |
| | | |
| LIABILITIES AND STOCKHOLDERS’ DEFICIT | | |
| | | |
Current Liabilities: | | |
| Accounts payable and accrued expenses | $710,615 | $1,095,579 |
| Debt | 3,394,497 | 7,813,786 |
| Derivative liabilities | - | 879,257 |
| Total Current Liabilities | 4,105,112 | 9,788,622 |
| | | |
Commitments and Contingencies (Note 5) | | |
| | | |
Stockholders’ Deficit: | | |
| Common Stock, $0.001 par value, 7,000,000,000 shares authorized, 511,229,641 and 245,684,343 shares issued and outstanding at March 31, 2019 and December 31, 2018, respectively | 511,230 | 245,685 |
| Preferred Stock – Series B (liquidation preference of $4 per share), $0.001 par value, 2,750,000 shares authorized, 1,285,585 shares issued and outstanding at March 31, 2019 and December 31, 2018 | 1,285 | 1,285 |
| Preferred Stock – Series C (liquidation preference $100 per share), $0.001 par value, 200,000 shares authorized, 105,704 shares issued and outstanding at March 31, 2019 and December 31, 2018 | 106 | 106 |
| Preferred Stock – Series D (liquidation preference $100 per share), $0.001 par value, 50,000 shares authorized, 34,250 shares issued and outstanding at March 31, 2019 and December 31, 2018 | 34 | 34 |
| Additional paid in capital | 50,145,370 | 43,715,465 |
| Accumulated deficit | (53,159,404) | (52,120,648) |
| | | |
| Total Stockholders’ Deficit | (2,501,379) | (8,158,073) |
| | | |
| Total Liabilities and Stockholders’ Deficit | $1,603,733 | $1,630,549 |
The accompanying notes are an integral part of these condensed consolidated financial statements.
TRUE DRINKS HOLDINGS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
| | Three Months Ended March 31, |
| | | |
| | | |
| Net Sales | $28,014 | $301,626 |
| | | |
| Cost of Sales | 14,145 | 309,505 |
| | | |
| Gross Profit (Loss) | 13,869 | (7,879) |
| | | |
| Operating Expenses | | |
| Selling and marketing | 20,692 | 176,140 |
| General and administrative | 217,543 | 872,999 |
| Total operating expenses | 238,235 | 1,049,139 |
| | | |
| Operating Loss | (224,366) | (1,057,018) |
| | | |
| Other Income (Expense) | | |
| Change in fair value of derivative liabilities | (975,430) | - |
| Interest expense | (192,932) | (64,267) |
| Other income | 353,972 | 408,900 |
| Total (Expense) Other Income | (814,390) | 344,633 |
| | | |
| NET LOSS | $(1,038,756) | $(712,385) |
| | | |
| Declared dividends on Preferred Stock | 64,279 | 64,279 |
| | | |
| Net loss attributable to common stockholders | $(1,103,035) | $(776,664) |
| | | |
| Net loss per common share | | |
| Basic and diluted | $(0.00) | $(0.00) |
| | | |
| Weighted average common shares outstanding | | |
| Basic and diluted | 486,287,708 | 220,643,334 |
The accompanying notes are an integral part of these condensed consolidated financial statements.
TRUE DRINKS HOLDINGS, INC. CONDENSED CONSOLIDATED STATEMENTS OF
STOCKHOLDERS’ DEFICIT
For the Three Months Ended March 31, 2019 and 2018
(Unaudited)
| | | | | | | | |
| | | | | | | | | | | | |
| Balance – December 31, 2018 | 245,684,343 | $245,685 | 1,285,585 | $1,285 | 105,704 | $106 | 34,250 | $34 | $43,715,465 | $(52,120,648) | $(8,158,073) |
| Stock-based compensation | - | - | - | - | - | - | - | - | 16,881 | - | 16,881 |
| Dividends declared on Preferred Stock | - | - | - | - | - | - | - | - | (64,279) | - | (64,279) |
| Issuance of Common Stock for dividends on Preferred Stock | 15,677,348 | 15,677 | - | - | - | - | - | - | 51,459 | - | 67,136 |
| Issuance of Restricted Common Stock to employees | 1,500,000 | 1,500 | - | - | - | - | - | - | (1,500) | - | - |
| Assumption of debt by related party | - | - | - | - | - | - | - | - | 4,821,025 | - | 4,821,025 |
| Reclassification of derivative liability | 248,367,950 | 248,368 | - | - | - | - | - | - | 1,606,319 | - | 1,854,687 |
| Net loss | - | - | - | - | - | - | - | - | - | (1,038,756) | (1,038,756) |
| Balance – March 31, 2019 | 511,229,641 | $511,230 | 1,285,585 | $1,285 | 105,704 | $106 | 34,250 | $34 | $50,145,370 | $(53,159,404) | $(2,501,379) |
| | | | | | | | |
| | | | | | | | | | | | |
| Balance – December 31, 2017 | 218,151,591 | $218,152 | 1,285,585 | $1,285 | 105,704 | $106 | 34,250 | $34 | $42,635,493 | $(48,241,349) | $(5,386,279) |
| Stock-based compensation | - | - | - | - | - | - | - | - | 220,009 | - | 220,009 |
| Dividends declared on Preferred Stock | - | - | - | - | - | - | - | - | (64,279) | - | (64,279) |
| Issuance of Common Stock for dividends on Preferred Stock | 2,737,841 | 2,738 | - | - | - | - | - | - | 62,970 | - | 65,708 |
| Debt discount recorded in connection with borrowings on debt | - | - | - | - | - | - | - | - | 250 | - | 250 |
| Net loss | - | - | - | - | - | - | - | - | - | (712,385) | (712,385) |
| Balance – March 31, 2018 | 220,889,432 | $220,890 | 1,285,585 | $1,285 | 105,704 | $106 | 34,250 | $34 | $42,854,443 | $(48,953,734) | $(5,876,976) |
The accompanying notes are an integral part of these condensed consolidated financial statements.
TRUE DRINKS HOLDINGS, INC. CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
| | Three Months Ended March 31, |
| | | |
| CASH FLOWS FROM OPERATING ACTIVITIES | | |
| Net loss | $(1,038,756) | $(712,385) |
| Adjustments to reconcile net loss to net cash used in operating activities | | |
| Depreciation | 1,129 | 1,234 |
| Accretion of debt discount | 125,617 | 17,862 |
| Provision for bad debt expense | - | 103,522 |
| Change in estimated fair value of derivative liabilities | 975,430 | - |
| Stock based compensation | 16,881 | 220,009 |
| Change in operating assets and liabilities: | | |
| Accounts receivable, net | (183) | (104,890) |
| Inventory, net | (23,622) | 278,382 |
| Prepaid expenses and other current assets | 6,712 | 44,115 |
| Accounts payable and accrued expenses | (205,988) | (409,336) |
| Net cash used in operating activities | (142,780) | (561,487) |
| | | |
| CASH FLOWS FROM FINANCING ACTIVITIES | | |
| Net borrowings on line-of-credit facility | - | 83,131 |
| Proceeds from notes payable | 100,000 | 415,000 |
| Net cash provided by financing activities | 100,000 | 498,131 |
| | | |
| NET DECREASE IN CASH | (42,780) | (63,356) |
| | | |
CASH AND CASH EQUIVALENTS- beginning of period | 43,181 | 76,534 |
| | | |
CASH AND CASH EQUIVALENTS- end of period | $401 | $13,178 |
| | | |
| SUPPLEMENTAL DISCLOSURES | | |
| Interest paid in cash | $- | $432 |
| Non-cash financing and investing activities: | | |
| Dividends paid in common stock | $67,136 | $65,708 |
| Dividends declared but unpaid | $64,279 | $64,279 |
| Debt discount recorded in connection with borrowings on debt | $- | $250 |
| Restricted stock issuance | $1,500 | $- |
| Extinguishment of warrant and derivative liabilities | $1,854,687 | $- |
| Assumption of debt and accrued interest by related party | $4,821,025 | $- |
The accompanying notes are an integral part of these condensed consolidated financial statements.
TRUEDRINKS HOLDINGS, INC. NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
March 31, 2019
NOTE 1 — ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization and Business
Overview
True Drinks Holdings, Inc. (the “Company,” “us” or “we”) was incorporated in the state of Nevada in January 2001 and is the holding company for True Drinks, Inc. (“True Drinks”), a company incorporated in the state of Delaware in January 2012 that specialized in all-natural, vitamin-enhanced drinks. Prior to the first quarter of 2018, our primary business was the development, marketing, sale and distribution of AquaBall® Naturally Flavored Water. We distributed AquaBall® nationally through select retail channels, such as grocery stores, mass merchandisers, drug stores and online. Although, as noted below, we had discontinued the production, distribution and sale of AquaBall®, as of March 31, 2019 we continued to market and distribute Bazi® All Natural Energy, a liquid nutritional supplement drink, which was distributed online and through our existing database of customers.
As discussed in detail in Note 9 – Subsequent Events, on April 26, 2019, the Company entered into a Securities Exchange AgreementsAgreement with each of the members of Charlie’s Chalk Dust, LLC, a Delaware limited liability company (“CCD”), and certain direct investors, pursuant to which the Company acquired all outstanding membership interests of CCD beneficially owned by its members in exchange for Company securities (the “Exchange”). As a result, CCD became a wholly owned subsidiary of the Company.
Since the date of the Share Exchange, the Company’s primary business is the development, marketing and distribution of high quality vapor products. The Company now distributes its vapor products both domestically and internationally through select distributors, specialty retailers and third-party online resellers.
Cessation of Production of AquaBall®, and Management’s Plan
During the first quarter of 2018, due to the weakness in the sale of the Company’s principal product, AquaBall® Naturally Flavored Water, and continued substantial operating losses, the Company’s Board of Directors determined to discontinue the production of AquaBall®, and, as set forth below, terminate the bottling agreement by and between Niagara Bottling LLC, the Company’s contract bottling manufacturer (“Bottler” or “Niagara”), and True Drinks (the “Bottling Agreement”). In addition, the Company notified Disney Consumer Products, Inc. (“Disney”) of the Company’s desire to terminate its licensing agreement with Disney (“Disney License”), pursuant to which the Company was able to feature various Disney characters on each AquaBall® bottle. As a result of management’s decision, and the Company’s failure to pay certain amounts due Disney under the terms of the Disney License, the Disney License terminated, and Disney claimed amounts due of approximately $178,000, net of $378,000 drawn from an irrevocable letter of credit posted in connection with the execution of the Disney License. In addition, Disney sought additional payments for minimum royalty amounts required to be paid Disney through the remainder of the term of the Disney License. On July 17, 2018, the Company and Disney entered into a settlement and release whereby in exchange for a payment to Disney of $42,000, the parties agreed to release each other from any and all claims related to the Disney License.
In April 2018, the Company sold its remaining AquaBall® inventory to Red Beard for an aggregate purchase price of approximately $1.44 million (the “Purchase Price”). As payment for the Purchase Price, the principal amount of the senior secured convertible promissory note issued to Red Beard by the Company in the principal amount of $2.25 million (the “Red Beard Note”) was reduced by the Purchase Price, resulting in approximately $814,000 owed to Red Beard under the terms of the Red Beard Note Investorsas of April 5, 2018. As of March 31, 2019, the Company owed Red Beard $569,741 in principal and accrued but unpaid interest pursuant to the Red Beard Note. On April 26, 2019, subsequent to the quarter ended March 31, 2019, Red Beard converted all amounts due under the terms of the Red Beard Note into shares of common stock. See Note 9 –Subsequent Eventsfor additional information regarding the conversion of the Red Beard Note into common stock.
As of March 31, 2019, the Company had reduced its staff to one employee, and had contracted with former management and other professionals to continue operations. In addition, the Company had taken other steps to minimize general, administrative and other operating costs, while maintaining only those costs and expenses necessary to maintain sales of Bazi® and otherwise continue operations while the Board of Directors and the Company’s principal stockholder explored certain opportunities, as more particularly described below. Management also worked to reduce accounts payable by negotiating settlements with creditors, including Disney, utilizing advances from Red Beard aggregating approximately $605,000 as of March 31, 2019, and focused on negotiating with its remaining creditors to settle additional accounts payable.
Termination of Bottling Agreement and Issuance of Notes
On April 5, 2018 (the “Effective Date”), True Drinks settled all amounts due the Bottler under the terms of the Bottling Agreement (the “Settlement”). As of the Effective Date, the damage amount claimed by the Bottler under the Bottling Agreement was $18,480,620, which amount consisted of amounts due to the Bottler for product as well as amounts due for True Drink’s failure to meet certain minimum requirements under the Bottling Agreement (the “Outstanding Amount”). Concurrently, an affiliate of Red Beard and the Bottler agreed to terminate a personal guaranty of Red Beard’s obligations under the Bottling Agreement in an amount not to exceed $10.0 million (the “Affiliate Guaranty”) (the Bottling Agreement and the Affiliate Guaranty are hereinafter referred to as the “2015 Agreements”).
Under the terms of the Settlement, in exchange for the termination of the 2015 Agreements, the Bottler agreed to accept, among other things: (i) a promissory note in the principal amount of $4,644,906 (the “Principal Amount”), with a 5% per annum interest rate, to be compounded, annually (“Note One”), (ii) a promissory note with a principal amount equal to the Outstanding Amount (“Note Two”), and (iii) a cash payment of $2,185,158 (the “Cash Payment”).
The Principal Amount and all interest payments due under Note One shall be due and payable to the Bottler in full on or before the December 31, 2019 (the “Note Payment”). On January 14, 2019, the Company, True Drinks and Red Beard entered into an Assignment and Assumption Agreement, pursuant to which the Company and True Drinks assigned, and Red Beard assumed, all outstanding rights and obligations of the Company and True Drinks under the terms of Note One. As a result, all obligations of the Company and True Drinks under Note One, including for the payment of amounts due thereunder, were assigned to Red Beard.
Note Two shall have no force or effect except under certain conditions and shall be reduced by any payments made to the Bottler under the terms of the Settlement. True Drinks and the Company shall be jointly and severally responsible for all amounts due, if any, under Note Two, which shall automatically expire and terminate on December 31, 2019.
In consideration for the guarantee of the Company’s obligations in connection with the Settlement, including as a joint and several obligor under the terms of Note One, the Company agreed to issue Red Beard 348,367,950 shares of the Company’s common stock (the “Shares”), which Shares were to be issued at such time as the Company amended its Articles of Incorporation to increase the number of authorized shares of common stock from 300.0 million to at least 2.0 billion (the “Amendment”), but in no event later than September 30, 2018. As a condition to the Company’s obligation to issue the Shares, Red Beard executed, and caused its affiliates to execute, a written consent of shareholders to approve the Amendment. As discussed below, on November 15, 2018, the Company amended its Articles of Incorporation to increase the number of authorized shares of common stock to 7.0 billion, thereby triggering the Company’s obligation to issue the Shares to Red Beard.
In connection with the Settlement, and in order to make the Cash Payment described above, the Company issued the Red Beard Note to Red Beard, which Red Beard Note accrued interest at a rate of 5% per annum. In May 2018, as a result of the sale to Red Beard of the Company’s remaining AquaBall® inventory, the principal amount of the Red Beard Note was reduced by the Purchase Price.
Pursuant to the terms of the Red Beard Note, Red Beard had the right, at its sole option, to convert the outstanding balance due under the Red Beard Note into that number of fully paid and non-assessable shares of the Company’s common stock equal to the outstanding balance divided by $0.005 (the “Conversion Option”);provided, however, that the Company had the right, at its sole option, to pay all or a portion of the accrued and unpaid interest due and payable to Red Beard upon its exercise of the Conversion Option in cash. Pursuant to the terms of the Red Beard Note, such Conversion Option could not be exercisable unless and until such time as the Company filed the Amendment with the Nevada Secretary of State, which occurred on November 15, 2018. As a result of the Increase in Authorized, Red Beard was able exercise its Conversion Option under the Red Beard Note at any time, which it elected to do on April 26, 2019 in connection with the Share Exchange, as more particularly discussed below in Note 9 – Subsequent Events.
Food Labs Promissory Note
On September 18, 2018, the Company and Food Labs, Inc. (“Food Labs”) entered into an agreement, pursuant to which the Company sold and issued to Food Labs a promissory note in the principal amount of $50,000 (the “Food Labs Note”). The Food Labs Note (i) accrued interest at a rate of 5% per annum, (ii) included an additional lender’s fee equal to $500, or 1% of the principal amount, and (iii) was scheduled to mature on December 31, 2019. Food Labs is controlled by Red Beard. See Note 9 –Subsequent Eventsfor additional information regarding the sale of the Food Labs Note to Red Beard, and the subsequent conversion of all amounts due under the Food Labs Note into shares of common stock, thereby terminating the Food Labs Note.
Increase in Authorized Shares of Common Stock
On November 15, 2018, the Company filed a Certificate of Amendment to its Articles of Incorporation with the Secretary of State of the State of Nevada to increase the total number of shares of common stock authorized for issuance thereunder from 300.0 million to 7.0 billion shares (the “Increase in Authorized”).
As a result of the Increase in Authorized, Red Beard could exercise its Conversion Option under the Red Beard Note at any time, which it elected to do on April 26, 2019 in connection with the Share Exchange, as more particularly discussed below in Note 9 – Subsequent Events.
Red Beard Line-of-Credit
On November 19, 2018, the Company entered into a line-of-credit with Red Beard, effective October 25, 2018, pursuant to which the Company could borrow up to $250,000 (the “Red Beard LOC”);provided, however, that Red Beard could, in its sole discretion, decline to provide additional advances under the Red Beard LOC upon written notice the Company of its intent to decline to make such advances. Interest accrued on the outstanding principal of amount of the Red Beard LOC at a rate of 8% per annum;provided, however, that upon the occurrence of an Event of Default, as defined in the Red Beard LOC, the accrual of interest would have increased to a rate of 10% per annum. Prior to December 31, 2019 (the “Maturity Date”), Red Beard had the right, at its sole option, to convert the outstanding principal balance, plus all accrued but unpaid interest due under the Red Beard LOC (the “Outstanding Balance”) into that number of shares of common stock equal to the Outstanding Balance divided by $0.005. As of March 31, 2019, the Company had borrowed a total of $605,000 under the Red Beard LOC, which was increased to $655,000 as of April 11, 2019. On April 26, 2019, Red Beard converted all amounts due under the Red Beard LOC into shares of common stock, thereby terminating the Red Beard LOC, as more particularly discussed in Note 9 – Subsequent Events.
Note Extensions
On January 28, 2019, the Company entered into agreements with the holders of three Senior Secured Promissory Notes (the “Notes”) to extend the maturity date of each of the Notes by 60 days (the “Extension Agreements”). The Notes were each issued between July 25, 2017 to July 31, 2017, originally matured six months after issuance, had an aggregate principal balance of $750,000, and accrued interest at a rate of 8% per annum. As a result of the Extension Agreements, the Notes matured on March 26, 2019, March 31, 2019 and April 1, 2019, respectively. On April 26, 2019, in connection with the Share Exchange, Red Beard purchased each of the Notes, and thereafter converted al amounts due under the Notes into shares of common stock, thereby terminating the Notes, as more particularly discussed in Note 9 –Subsequent Events.
Basis of Presentation and Going Concern
The accompanying condensed consolidated balance sheet as of December 31, 2018, which has been derived from audited financial statements included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, and the accompanying interim condensed consolidated financial statements have been prepared by management pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”) for interim financial reporting. These interim condensed consolidated financial statements are unaudited and, in the opinion of management, include all adjustments (consisting only of normal recurring adjustments and accruals) necessary to fairly present the Company’s financial condition, results of operations and cash flows as of and for the periods presented in accordance with accounting principles generally accepted in the United States of America (“GAAP”). Operating results for the three-month period ended March 31, 2019 are not necessarily indicative of the results that may be expected for the year ending December 31, 2019, or for any other interim period during such year. Certain information and footnote disclosures normally included in financial statements prepared in accordance with GAAP have been omitted in accordance with the rules and regulations of the SEC, although the Company believes that the disclosures made are adequate to make the information not misleading. The accompanying condensed consolidated financial statements should be read in conjunction with the audited consolidated financial statements and notes thereto contained in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed with the SEC on April 1, 2019.
The accompanying condensed consolidated financial statements have been prepared in conformity with GAAP, which contemplates continuation of the Company as a going concern. As of and for the three months ended March 31, 2019, the Company had a net loss of $1,038,756, negative working capital of $4,077,881, and an accumulated deficit of $53,159,404. The Company had $401 in cash at March 31, 2019.The Company currently requires additional capital to execute its business plan, marketing and operating plan, and therefore sustain operations, which capital may not be available on favorable terms, if at all. The accompanying condensed consolidated financial statements do not include any adjustments that will result if the Company is unable to secure the capital necessary to execute its business, marking or operating plan.
Principles of Consolidation
The accompanying condensed consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries as of March 31, 2019, including True Drinks, Inc., Bazi, Inc. and GT Beverage Company, LLC. All inter-company accounts and transactions have been eliminated in the preparation of these condensed consolidated financial statements.
Because CCD became a wholly owned subsidiary of the Company subsequent to the quarter ended March 31, 2019, the financial statements do not include the accounts of CCD.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expense during the reporting period. Significant estimates made by management include, among others, deferred tax asset valuation allowances and the realization of long-lived and intangible assets, including goodwill. Actual results could differ from those estimates.
Revenue Recognition
In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2014-09, Revenue from Contracts with Customers (Topic 606), (ASC 606). The underlying principle of ASC 606 is to recognize revenue to depict the transfer of goods or services to customers at the amount expected to be collected. ASC 606 creates a five-step model that requires entities to exercise judgment when considering the terms of contract(s), which includes (1) identifying the contract(s) or agreement(s) with a customer, (2) identifying our performance obligations in the contract or agreement, (3) determining the transaction price, (4) allocating the transaction price to the separate performance obligations, and (5) recognizing revenue as each performance obligation is satisfied. The Company adopted ASC 606 effective January 1, 2018, and adoption of such standard had no effect on previously reported balances.
Recognition of sales of the products sold by the Company since the adoption of the new standard has had no quantitative effect on the financial statements. However, the guidance requires additional disclosures to help users of financial statements better understand the nature, amount, timing, and uncertainty of revenue that is recognized.
The Company previously recognized and continues to recognize revenue when risk of loss transferred to our customers and collection of the receivable was reasonably assured, which generally occurs when the product is shipped. A product is not shipped without an order from the customer and credit acceptance procedures performed.
Under the new guidance, revenue is recognized when control of promised goods or services is transferred to our customers, in an amount that reflects the consideration we expect to be entitled to in exchange for those goods or services. As of March 31, 2019, the Company did not have any significant contracts with customers requiring performance beyond delivery. All orders had a written purchase order that was reviewed for credit worthiness, pricing and other terms before fulfillment begins. Shipping and handling activities were performed before the customer obtained control of the goods and therefore represented a fulfillment activity rather than a promised service to the customer. Revenue and costs of sales were recognized when placed under the customer’s control. Control of the products that we sell, transfers to the customer upon shipment from our facilities, and the Company’s performance obligations are satisfied at that time.
All products sold by the Company as of March 31, 2019 were beverage products. The products were offered for sale as finished goods only, and there were no performance obligations required post-shipment for customers to derive the expected value from them. Contracts with customers contained no incentives or discounts that could cause revenue to be allocated or adjusted over time.
As of March 31, 2019, the Company did not allow for returns, although it did for damaged products, if support for the damage that occurred pre-fulfillment was provided, returns were permitted. Damaged product returns were insignificant. Due to the insignificant amount of historical returns as well as the standalone nature of the Company’s products and assessment of performance obligations and transaction pricing for its sales contracts, the Company does not currently maintain a contract asset or liability balance for obligations. The Company assess its contracts and the reasonableness of its conclusions on a quarterly basis
Cash and Cash Equivalents
The Company considers all highly liquid investments with original maturities of three months or less, to be cash equivalents. The Company maintains cash with high credit quality financial institutions. At certain times, such amounts may exceed Federal Deposit Insurance Corporation (“FDIC”) insurance limits. The Company has not experienced any losses on these amounts.
Accounts Receivable
The Company records its trade accounts receivable at net realizable value. This value includes an appropriate allowance for estimated sales returns and allowances, and uncollectible accounts to reflect any losses anticipated and charged to the provision for doubtful accounts. Credit is extended to the Company’s customers based on an evaluation of their Secured Notesfinancial condition; generally, collateral is not required. An estimate of uncollectible amounts is made by management based upon historical bad debts, current customer receivable balances, age of customer receivable balances, the customer’s financial condition and current economic trends, all of which are subject to change. Actual uncollected amounts have historically been consistent with the Company’s expectations. Receivables are charged off against the reserve for doubtful accounts when, in management’s estimation, further collection efforts would not result in a reasonable likelihood of receipt, or later as proscribed by statutory regulations.
Concentrations
The Company has no significant off-balance sheet concentrations of credit risk, such as foreign exchange contracts, options contracts or other foreign hedging arrangements. The Company maintains the majority of its cash balances with two financial institutions. There are funds in excess of the federally insured amount, or that are subject to credit risk, and the Company believes that the financial institutions are financially sound and the risk of loss is minimal.
Prior to the termination of the Bottling Agreement in early 2018, all production of AquaBall® was done by Niagara. Niagara handled all aspects of production, including the procurement of all raw materials necessary to produce AquaBall®. We utilized two facilities to handle any necessary repackaging of AquaBall® into six packs or 15-packs for club customers.
During the first quarter of 2019, we relied significantly on one supplier for 100% of our purchases of certain raw materials for Bazi®. Bazi, Inc. has sourced these raw materials from this supplier since 2007 and does not anticipate any issues with the supply of these raw materials.
No customer made up more than 10% of accounts receivable at March 31, 2019 or December 31, 2018.
All of the Company’s revenue during the three months ended March 31, 2019 was derived from the sale of Bazi.
Inventory
As of March 31, 2019, the Company purchased for resale a liquid dietary supplement. Prior to the termination of the Bottling Agreement and the discontinued production of AquaBall® in the quarter ended June 30, 2018, the Company also purchased for resale a vitamin-enhanced flavored water beverage.
Inventories are stated at the lower of cost (based on the first-in, first-out method) or net realizable value. Cost includes shipping and handling fees and costs, which are subsequently expensed to cost of sales. The Company provides for estimated losses from obsolete or slow-moving inventories and writes down the cost of inventory at the time such determinations are made. Reserves are estimated based on inventory on hand, historical sales activity, industry trends, the retail environment and the expected net realizable value.
The Company maintained inventory reserves of $0 as of March 31, 2019 and December 31, 2018.
Inventory is comprised of the following:
| | | |
| Purchased materials | $13,155 | $- |
| Finished goods | 12,502 | 2,035 |
| Total | $25,657 | $2,035 |
Long-Lived Assets
The Company reviews its long-lived assets for impairment whenever changes in circumstances indicate that the carrying amount of an asset may not be recoverable. For purposes of evaluating the recoverability of long-lived assets, the recoverability test is performed using undiscounted net cash flows estimated to be generated by the asset. No impairment was deemed necessary during the quarter ended March 31, 2019.
Goodwill and Identifiable Intangible Assets
As a result of acquisitions, we have goodwill and other identifiable intangible assets. In business combinations, goodwill is generally determined as the excess of the fair value of the consideration transferred, plus the fair value of any noncontrolling interests in the acquiree, over the fair value of the net assets acquired and liabilities assumed as of the acquisition date. Accounting for acquired goodwill in accordance with GAAP requires significant judgment with respect to the determination of the valuation of the acquired assets and liabilities assumed in order to determine the final amount of goodwill recorded in business combinations. Goodwill is not amortized, rather, it is evaluated for impairment on an annual basis, or more frequently when a triggering event occurs between annual tests that would more likely than not reduce the fair value of the reporting unit below its carrying value. Such impairment evaluations compare the reporting unit’s estimated fair value to its carrying value.
Identifiable intangible assets consist primarily of customer relationships recognized in business combinations. Identifiable intangible assets with finite lives are amortized over their estimated useful lives, which represent the period over which the asset is expected to contribute directly or indirectly to future cash flows. Identifiable intangible assets are reviewed for impairment whenever events and circumstances indicate the carrying value of such assets or liabilities may not be recoverable and exceed their fair value. If an impairment loss exists, the carrying amount of the identifiable intangible asset is adjusted to a new cost basis. The new cost basis is amortized over the remaining useful life of the asset. Tests for impairment or recoverability require significant management judgment, and future events affecting cash flows and market conditions could adversely impact the valuation of these assets and result in impairment losses.
Beneficial Conversion Feature of Convertible Debt
The Company accounts for convertible debt in accordance with the guidelines established by FASB ASC 470-20, “Debt with Conversion and Other Options.” The Beneficial Conversion Feature (“BCF”) gives the debt holder the ability to convert debt into common stock at a price per share that is less than the trading price to the public on the date of the debt. The beneficial value is calculated as the intrinsic value (the market price of the stock at the commitment date in excess of the conversion rate) of the beneficial conversion feature of the debt, and is recorded as a discount to the related debt and an addition to additional paid in capital. The discount is amortized over the remaining outstanding period of related debt using the interest method.
Income Taxes
As the Company’s calculated provision (benefit) for income tax is based on annual expected tax rates, no income tax expense was recorded for the three-month period ended March 31, 2019 and 2018. At March 31, 2019, the Company had tax net operating loss carryforwards and a related deferred tax asset, which had a full valuation allowance.
Stock-Based Compensation
For the three-month periods ended March 31, 2019 and 2018, general and administrative expense included stock based compensation expense of $16,881 and $220,009, respectively.
The Company uses a Black-Scholes option-pricing model (the “Black-Scholes Model”) to estimate the fair value of outstanding stock options and warrants not accounted for as derivatives. The use of a valuation model requires the Company to make certain assumptions with respect to selected model inputs. Expected volatility is calculated based on the historical volatility of the Company’s stock price over the contractual term of the option or warrant. The expected life is based on the contractual term of the option or warrant and expected exercise and, in the case of options, post-vesting employment termination behavior. Currently, our model inputs are based on the simplified approach provided by Staff Accounting Bulletin (“SAB”) 110. The risk-free interest rate is based on U.S. Treasury zero-coupon issues with a remaining term equal to the expected life assumed at the date of the grant.
The fair value for restricted stock awards is calculated based on the stock price on the date of grant.
Fair Value of Financial Instruments
The Company’s financial instruments consist of cash, accounts receivable, accounts payable and accrued expense, and debt. Management believes that the carrying amount of these financial instruments approximates their fair values, due to their relatively short-term nature.
Derivative Instruments
A derivative is an instrument whose value is “derived” from an underlying instrument or index such as a future, forward, swap, option contract, or other financial instrument with similar characteristics, including certain derivative instruments embedded in other contracts (“embedded derivatives”) and for hedging activities. As a matter of policy, the Company does not invest in financial derivatives or engage in hedging transactions. However, the Company has entered into complex financing transactions that involve financial instruments containing certain features that have resulted in the instruments being deemed derivatives or containing embedded derivatives. Derivatives and embedded derivatives, if applicable, are measured at fair value using the binomial lattice- (“Binomial Lattice”) pricing model and marked to market and reflected on our consolidated statement of operations as other (income) expense at each reporting period.
Basic and Diluted Income (Loss) Per Share
Our computation of earnings per share (“EPS”) includes basic and diluted EPS. Basic EPS is measured as the income (loss) available to common stock holders divided by the weighted average common shares outstanding for the period. Diluted (loss) income per share reflects the potential dilution, using the treasury stock method, that could occur if securities or other contracts to issue common stock were exercised or converted into common stock or resulted in the issuance of common stock that then shared in the income (loss) of the Company as if they had been converted at the beginning of the periods presented, or issuance date, if later. In computing diluted income (loss) per share, the treasury stock method assumes that outstanding options and warrants are exercised and the proceeds are used to purchase common stock at the average market price during the period. Options and warrants may have a dilutive effect under the treasury stock method only when the average market price of the common stock during the period exceeds the exercise price of the options and warrants. Potential common shares that have an antidilutive effect (i.e., those that increase income per share or decrease loss per share) are excluded from the calculation of diluted EPS.
Income (loss) per common share is computed by dividing net income (loss) by the weighted average number of shares of common stock outstanding during the respective periods. Basic and diluted income (loss) per common share is the same for periods in which the Company reported an operating loss because all converted preferred shares, warrants and stock options outstanding are anti-dilutive. At March 31, 2019 and 2018, we excluded 113,872,026 and 116,674,110 shares of common stock equivalents, respectively,as their effect would have been anti-dilutive.
Recent Accounting Pronouncements
Except as noted below, the Company has reviewed all recently issued, but not yet effective accounting pronouncements and has concluded that there are no recently issued, but not yet effective pronouncements that may have a material impact on the Company’s future financial statements.
On February 25, 2016, the FASB issued ASU 2016-2, “Leases” (Topic 842), which is intended to improve financial reporting for lease transactions. This ASU will require organizations that lease assets, such as real estate, airplanes and manufacturing equipment, to recognize on their balance sheet the assets and liabilities for the rights to use those assets for the lease term and obligations to make lease payments created by those leases that have terms of greater than 12 months. The recognition, measurement, and presentation of expense and cash flows arising from a lease by a lessee primarily will depend on its classification as finance or operating lease. This ASU will also require disclosures to help investors and other financial statement users better understand the amount and timing of cash flows arising from leases. These disclosures will include qualitative and quantitative requirements, providing additional information about the amounts recorded in the financial statements. The ASU is effective for the Company for the year ending December 31, 2019 and interim reporting periods within that year, and early adoption is permitted. On January 1, 2019, the Company adopted this standard, which had no impact on the Company’s consolidated financial statements.
NOTE 2 — SHAREHOLDERS’ EQUITY
Securities
As of March 31, 2019, our authorized capital stock consisted of 7.0 billion shares of common stock, and 5.0 million shares of preferred stock, $0.001 par value per share, of which 2.75 million shares were designated as Series B Convertible Preferred Stock (“Series B Preferred”), 200,000 shares were designated as Series C Convertible Preferred Stock (“Series C Preferred”) and 50,000 shares were designated as Series D Convertible Preferred Stock (“Series D Preferred”).
Subsequent to the quarter ended March 31, 2019, the Certificates of Designation, Preferences, Rights and Limitations of the Series B Preferred, Series C Preferred and Series D Preferred (each, a “COD”) were amended, all issued and outstanding shares of Series B Preferred, Series C Preferred and Series D Preferred were converted into common stock, and Certificates of Withdrawal were filed with the Secretary of State of the State of Nevada to eliminate each of the foregoing series of preferred stock. Thereafter, the Company filed Certificates of Designation with the Secretary of State of the State of Nevada to designate two new series of preferred stock – the Series A Convertible Preferred Stock and the Series B Convertible Preferred Stock. See Note 9 –Subsequent Eventsfor additional information regarding the amendments to the CODs, conversion and elimination of our Series B, C and D Preferred, and the creation of the two new series of preferred stock.
Below is a summary of the rights and preferences associated with each type of security of the Company as of March 31, 2019.
Common Stock. The holders of common stock are entitled to receive, when and as declared by the Board of Directors, dividends payable either in cash, in property or in shares of common stock of the Company. Dividends have no cumulative rights and dividends will not accumulate if the Board of Directors does not declare such dividends.
Series B Preferred. Each share of the Company’s Series B Preferred Convertible Stock (“Series B Preferred”) had a stated value of $4.00 per share (“Stated Value”) and accrued annual dividends equal to 5% of the Stated Value, payable by the Company in quarterly installments, in either cash or shares of common stock. At March 31, 2019, each share of Series B Preferred was convertible, at the option of the holder, into that number of shares of common stock equal to the Stated Value, divided by $0.25 per share (the “Series BConversion Shares”). The Company also had the option to require the conversion of the Series B Preferred into Series B Conversion Shares in the event: (i) there were sufficient authorized shares of common stock reserved as Series B Conversion Shares; (ii) the Series B Conversion Shares were registered under the Securities Act of 1933, as amended (the “Securities Act”), or the Series B Conversion Shares were freely tradable, without restriction, under Rule 144 of the Securities Act; (iii) the daily trading volume of the Company’s common stock, multiplied with the closing price, equaled at least $250,000 for 20 consecutive trading days; and (iv) the average closing price of the Company’s common stock was at least $0.62 per share for 10 consecutive trading days.
During the three months ended March 31, 2019, the Company declared $64,279 in dividends on outstanding shares of its Series B Preferred. As of March 31, 2019, there remained $64,279 in cumulative unpaid dividends on the Series B Preferred.
Series C Preferred. Each share of Series C Preferred had a stated value of $100 per share, and as of the quarter ended March 31, 2019, was convertible, at the option of each respective holder, into that number of shares of common stock equal to $100, divided by $0.025 per share (the “Series C Conversion Shares”). The Company also had the option to require conversion of the Series C Preferred into Series C Conversion Shares in the event: (i) there was sufficient authorized shares of common stock reserved as Series C Conversion Shares; (ii) the Series C Conversion Shares were registered under the Securities Act, or the Series C Conversion Shares were freely tradable, without restriction, under Rule 144 of the Securities Act; and (iii) the average closing price of the Company’s common stock was at least $0.62 per share for 10 consecutive trading day.
Series D Preferred. Each share of Series D Preferred had a stated value of $100 per share, and, following the expiration of the 20 day calendar day period set forth in Rule 14c-2(b) under the Exchange Act, commencing upon the distribution of an Information Statement on Schedule 14C to the Company’s stockholders, each share of Series D Preferred was convertible, at the option of each respective holder, into that number of shares of the Company’s common stock equal to the stated value, divided by $0.025 per share (the “Series D Conversion Shares”). The Certificate of Designation also gave the Company the option to require the conversion of the Series D Preferred into Series D Conversion Shares in the event: (i) there were sufficient authorized shares of common stock reserved as Series D Conversion Shares; (ii) the Series D Conversion Shares were registered under the Securities Act, or the Series D Conversion Shares were freely tradable, without restriction, under Rule 144 of the Securities Act; and (iii) the average closing price of the Company’s common stock was at least $0.62 per share for 10 consecutive trading days.
Issuances of Securities
Between February 8, 2017 and August 21, 2017, the Company issued an aggregate total of 4,41345,625 shares of Series CD Preferred and five-yearfor $100 per share in a series of private placement transactions (the “Series D Financing”). As additional consideration, investors in the Series D Financing received warrants to purchase up to 60,833,353 shares of common stock, an agateamount equal to 200% of the Series D Conversion Shares issuable upon conversion of shares of Series D Preferred purchased under the Series D Financing, exercisable for $0.15 per share. In accordance with the terms and conditions of the Securities Purchase Agreement executed in connection with the Series D Financing, all warrants issued were exchanged for shares of common stock pursuant to the Warrant Exchange Program (defined below). During the year ended December 31, 2018, no shares of Series D Preferred were converted to common stock.
NOTE 3 — WARRANTSAND STOCK BASED COMPENSATION
Warrants
On July 26, 2017, the Company commenced an offering of Senior Secured Promissory Notes (the “SecuredNotes”) in the aggregate principal amount of up to $1.5 million to certain accredited investors (the “SecuredNote Financing”). The amount available was subsequently raised to $2.3 million. As additional consideration for participating in the Secured Note Financing, investors received five-year warrants, exercisable for $0.15 per share, to purchase that number of shares of the Company’s common stock equal to 50% of the principal amount of the Secured Note purchased, divided by $0.15 per share. Between July 26, 2017 and March 31, 2018, the Company offered and sold Secured Notes in the aggregate principal amount of $2,465,000 and issued Warrants to purchase up to 8,216,671 shares of common stock to participating investors.
A summary of the Company’s warrant activity for the three months ended March 31, 2019 is presented below:
| | | Weighted Average Exercise Price |
| Outstanding, December 31, 2018 | 10,061,254 | $0.15 |
| Granted | - | - |
| Exercised | - | - |
| Expired | (1,416,950) | 0.15 |
| Outstanding, March 31, 2019 | 8,644,304 | $0.15 |
As of March 31, 2019, the Company had the following outstanding warrants to purchase shares of its common stock:
| Weighted Average Exercise Price Per Share | Weighted Average Remaining Life (Yrs.) |
8,216,671 | $0.15 | 3.53 |
427,633 | 0.19 | 1.47 |
8,644,304 | $0.15 | 3.43 |
Stock-Based Compensation
Non-Qualified Stock Options
During the quarter ended March 31, 2019, the Company did not grant any stock options.
During the three months ended March 31, 2018, the Company granted stock options to purchase an aggregate 200,000 shares of common stock. The Company also reset the exercise price and extended the expiration date of options to certain employees and certain members of the Company’s Board of Directors. The reset options gave the holders the option to purchase an aggregate total of 1,029,41319,999,935 shares of Common Stock common stock. The exercise prices were reset to $0.025 per common share, and the expiration dates were extended five years from the date of the reset. The original exercise prices of these options were between $0.07 and $0.15 per share, and the original expiration dates ranged from September 2021 to September 2022. The weighted average estimated fair value per share of the stock options at grant date was $0.000 and $0.008 per share, respectively. The value of the options for $0.17which the exercise price was reset and the expiration date was extended in 2018 was also $0.008 per share. Such fair values were estimated using the Black-Scholes stock option pricing model and the following weighted average assumptions.
| |
| Expected life | |
| Estimated volatility | 75% |
| Risk-free interest rate | 1.1% |
| Dividends | - |
Stock option activity during the three months ended March 31, 2019 is summarized as follows:
| | | Weighted Average Exercise Price |
| Options outstanding at December 31, 2018 | 91,759,826 | $0.018 |
| Exercised | - | - |
| Granted | - | - |
| Forfeited | - | - |
| Expired | - | - |
| Options outstanding at March 31, 2019 | 91,759,826 | $0.18 |
Restricted Stock Awards
During the three months ended March 31, 2019 and 2018, the Company did not grant any restricted stock awards under the Company’s 2013 Stock Incentive Plan, as amended.
| Restricted Common Stock Awards |
| Outstanding, December 31, 2018 | 1,500,000 |
| Granted | - |
| Issued | (1,500,000) |
| Forfeited | - |
| Outstanding, March 31, 2019 | - |
NOTE 4 — DEBT
Line-of-Credit Facility
The Company entered into a line-of-credit agreement with a financial institution on June 30, 2014. The terms of the agreement allowed the Company to borrow up to the lesser of $1.5 million or 85% of the sum of eligible accounts receivables. The line of credit agreement matured on July 31, 2018 and was not renewed by the Company. At March 31, 2019, the total outstanding on the line-of-credit was $0.
Food Labs Note Payable
As disclosed in Note 1 above, on September 18, 2018, the Company issued a promissory note to Food Labs in the principal amount of $50,000. The Food Labs Note (i) accrued interest at a rate of 5% per annum, (ii) included an additional lender’s fee equal to $500, or 1% of the principal amount, and (iii) was scheduled to mature on December 31, 2019. At March 31, 2019, the total outstanding on the Food Labs Note was $51,329.Subsequent to the quarter ended March 31, 2019, Red Beard purchased the Food Labs Note from Food Labs, and thereafter converted all amounts due under the Food Labs note into shares of common stock.See Note 9 –Subsequent Eventsfor additional information regarding the sale of the Food Labs Note to Red Beard, and the subsequent conversion of all amounts due under the Food Labs Note into common stock.
Note Payable
In April 2017, the Company converted approximately $1,088,000 of accounts payable into a secured note payable agreement with Niagara (the “Niagara Note”). The Niagara Note called for monthly payments of principal and interest totaling $25,000 through December 2018, and monthly payments of approximately $52,000 through maturity. The note bore interest at 8% per annum, was scheduled to mature in April 2019 and was secured by the personal guarantee which secured the Bottling Agreement. As of the date of the Niagara Settlement described in Note 1, the remaining balance on the Niagara Note was $854,366 and was settled in full in exchange for a new note payable.
As of March 31, 2019, and in connection with the Niagara Settlement as further discussed in Note 1 above, the Niagara Note was settled in full, and Note One was issued in the principal amount of $4,644,906. Note One bore interest at 5% per annum, and was scheduled to mature in December 2019. On January 14, 2019, the Company, True Drinks and Red Beard entered into an Assignment and Assumption Agreement, pursuant to which the Company and True Drinks assigned, and Red Beard assumed, all outstanding rights and obligations of the Company and True Drinks under the terms of Note One. As a result, all obligations of the Company and True Drinks under Note One, including for the payment of amounts due thereunder, were assigned to Red Beard.
In April 2018, the Company issued a senior secured convertible promissory note in the amount of $2,250,000 to Red Beard in order to pay the initial payment of the Niagara Settlement. Also, in April 2018, the Company sold its remaining AquaBall® inventory to Red Beard for the Purchase Price of $1,436,113. As payment for the Purchase Price, the principal amount of the note was reduced by the Purchase Price, resulting in approximately $814,000 owed to Red Beard under the terms of the Red Beard Note as of April 5, 2018. The note bore interest at 5% per annum, was scheduled to mature in December 2019 and was secured by a continuing security interest in substantially all of the Company’s assets.
Pursuant to the terms of the Red Beard Note, Red Beard had the right, at its sole option, to convert the outstanding balance due into that number of fully paid and non-assessable shares of the Company’s common stock equal to the outstanding balance divided by $0.005 (the “Conversion Option”);provided, however, that the Company had the right, at its sole option, to pay all or a portion of the accrued and unpaid interest due and payable to Red Beard upon its exercise of the Conversion Option in cash. Pursuant to the terms of the Red Beard Note, such Conversion Option was not to be exercisable unless and until such time as the Company filed the Amendment with the Nevada Secretary of State, which occurred on November 15, 2018. During the three months ended March 31, 2019, a total of $125,617 of the debt discount was amortized and recorded as expense.
Subsequent to the quarter ended March 31, 2019, Red Beard elected to convert the entire balance due under the Red Beard Note into shares of common stock.See Note 9 –Subsequent Eventsfor additional information regarding the conversion of the Red Beard Note into common stock.
Secured Note Financing
As disclosed in Note 3 above, on July 26, 2017, the Company commenced an offering of Secured Notes in the aggregate principal amount of up to $1.5 million to certain accredited investors. The amount available was subsequently raised to $2.3 million. Between July 26, 2017 and March 31, 2018, the Company offered and sold Secured Notes in the aggregate principal amount of $2,465,000 and issued warrants to purchase up to 8,216,671 shares of common stock to participating accredited investors. The warrants were valued at $127,466 and were recorded as a discount to notes payable. During the three months ended March 31, 2019, a total of $10,263 of the debt discount was amortized and recorded as expense.
The Secured Notes (i) accrued interest at a rate of 8% per annum, (ii) had a maturity date of 1.5 years from the date of issuance, and (iii) were subject to a pre-payment and change in control premium of 125% of the principal amount of the Secured Notes at the time of pre-payment or change in control, as the case may be. To secure the Company’s obligations under the Secured Notes, the Company granted to participating investors a continuing security interest in substantially all of the Company’s assets pursuant to the terms and conditions of a Security Agreement (the “Security Agreement”). Subsequent to the quarter ended March 31, 2019, the Secured Notes were each sold to Red Beard, who thereafter converted the amounts due under each of the Secured Notes into shares of common stock.See Note 9 –Subsequent Eventsfor additional information regarding the and conversion of the Secured Notes.
In addition, during the three months ended March 31, 2019, Red Beard advanced the Company $100,000 to be used specifically to settle certain accounts payable owing to certain creditors, and to provide funds to pay certain operating, administrative and related costs to continue operations. As of March 31, 2019, the Company had settled approximately $850,000 in accounts payable to creditors, including Disney, in consideration for the payment to such creditors of approximately $210,000.
A summary of the notes payable as of March 31, 2019 and December 31, 2018 is as follows:
| |
| Outstanding, December 31, 2018 | $7,813,786 |
| Borrowings on notes payable | 100,000 |
| Amortization of debt discount to interest expense | 125,617 |
| Assumption of debt by related party | (4,644,906) |
| Outstanding March 31, 2019 | $3,394,497 |
NOTE 5 — COMMITMENTS AND CONTINGENCIES
During the quarter ended September 30, 2017, the Company moved its corporate headquarters and entered into a new lease for the facility, which lease was scheduled to expire on March 31, 2019. Due to the Company’s financial condition and management’s plan, the lease was terminated on May 11, 2018. The Company and the lessor recently agreed to settle all amounts due under the old lease for an aggregate of $15,750 as consideration for termination of the lease. Total rent expense related to this and our previous operating lease for the three months ended March 31, 2018 was $31,986. As of March 31, 2019, management was occupying office space located at 2 Park Plaza in Irvine California, which the Company rented for $500 per month.
Legal Proceedings
From time to time, claims are made against the Company in the ordinary course of business, which could result in litigation. Claims and associated litigation are subject to inherent uncertainties, and unfavorable outcomes could occur. In the opinion of management, the resolution of these matters, if any, will not have a material adverse impact on the Company’s financial position or results of operations. Other than as set forth below, there are no additional pending or threatened legal proceedings at this time.
Delhaize America Supply Chain Services, Inc. v. True Drinks, Inc. On May 8, 2018, Delhaize America Supply Chain Services, Inc. (“Delhaize”) filed a complaint against the Company in the General Court of Justice Superior Court Division located in Wake County, North Carolina alleging breach of contract, among other causes of action, related to contracts entered into by and between the two parties. Delhaize is seeking in excess of $25,000 plus interest, attorney’s fees and costs. We believe the allegations are unfounded and are defending the case vigorously. We believe the probability of incurring a material loss to be remote.
The Irvine Company, LLC v. True Drinks, Inc.On September 10, 2018, The Irvine Company, LLC (“Irvine”) filed a complaint against the Company in the Superior Court of Orange County, located in Newport Beach, California, alleging breach of contract related to the Company’s early termination of its lease agreement with Irvine in May 2018. Pursuant to the Complaint, Irvine sought to recover approximately $74,000 in damages from the Company. In November 2018, the Company and Irvine agreed to settle the lawsuit for an aggregate of $15,750.
NOTE 6 – FAIR VALUE MEASUREMENTS
The application of fair value measurements may be on a recurring or nonrecurring basis depending on the accounting principles applicable to the specific asset or liability or whether management has elected to carry the item at its estimated fair value. FASB ASC 820-10-35 specifies a hierarchy of valuation techniques based on whether the inputs to those techniques are observable or unobservable. Observable inputs reflect market data obtained from independent sources, while unobservable inputs reflect the Company’s market assumptions. These two types of inputs create the following fair value hierarchy:
- Level 1: Observable inputs such as quoted prices in active markets;
- Level 2: Inputs, other than the quoted prices in active markets, that are observable either directly or indirectly; and
- Level 3: Unobservable inputs in which there is little or no market data, which require the reporting entity to develop its own assumptions.
This hierarchy requires the Company to use observable market data, when available, and to minimize the use of unobservable inputs when estimating fair value.
The Company assesses its recurring fair value measurements as defined by FASB ASC 810. Liabilities measured at estimated fair value on a recurring basis include derivative liabilities. Transfers between fair value classifications occur when there are changes in pricing observability levels. Transfers of financial liabilities among the levels occur at the beginning of the reporting period.There were no transfers between Level 1, Level 2 and/or Level 3 during the three months ended March 31, 2019. The Company had no Level 1 or 2 fair value measurements at March 31, 2019 or December 31, 2018.
The following table presents the estimated fair value of financial liabilities measured at estimated fair value on a recurring basis included in the Company’s financial statements as of March 31, 2019 and December 31, 2018:
| | | | | |
| | | Quoted market prices in active markets | Internal Models with significant observable market parameters | Internal models with significant unobservable market parameters |
| Derivative liabilities – March 31, 2019 | $- | $- | $- | $- |
| Derivative liabilities – December 31, 2018 | $879,257 | $- | $- | $879,257 |
The following table presents the changes in recurring fair value measurements included in net loss for the three months ended March 31, 2019 and 2018:
| | Recurring Fair Value Measurements |
| | Changes in Fair Value Included in Net Income |
| | | | |
| Derivative liabilities – March 31, 2019 | $- | $(975,430) | $(975,430) |
| Derivative liabilities – March 31, 2018 | $- | $- | $- |
The table below sets forth a summary of changes in the fair value of our Level 3 financial liabilities for the three months ended March 31, 2019:
| | | Recorded New Derivative Liabilities | Reclassification of Derivative Liabilities to Additional Paid in Capital | Change in Estimated Fair Value Recognized in Results of Operations | |
| Derivative liabilities | $879,257 | $- | $(1,854,687) | $975,430 | $- |
The table below sets forth a summary of changes in the fair value of our Level 3 financial liabilities for the three months ended March 31, 2018:
| | | Recorded New Derivative Liabilities | Reclassification of Derivative Liabilities to Additional Paid in Capital | Change in Estimated Fair Value Recognized in Results of Operations | |
| Derivative liabilities | $8,337 | $- | $- | $- | $8,337 |
NOTE 7 – LICENSING AGREEMENTS
We first entered into licensing agreements with Disney Consumer Products, Inc. (“Disney”) and an 18-month licensing agreement with Marvel Characters, B.V. (“Marvel”) (collectively, the “Licensing Agreements”) in 2012. Each Licensing Agreement allowed us to feature popular Disney and Marvel characters on AquaBall®Naturally Flavored Water, allowing AquaBall®to stand out among other beverages marketed towards children.
In March 2017, the Company and Disney entered into a renewed licensing agreement, which extended the Company’s license with Disney through March 31, 2019. The terms of the Disney License entitled Disney to receive a royalty rate of 5% on sales of AquaBall®Naturally Flavored Water adorned with Disney characters, paid quarterly, with a total guarantee of $807,000 over the period from April 1, 2017 through March 31, 2019. In addition, the Company was required to make a ‘common marketing fund’ contribution equal to 1% of sales due annually during the Disney License. As discussed in Note 1 above, in connection with the Company’s discontinued production of AquaBall®, the Company notified Disney of the Company’s desire to terminate the Disney License in early 2018.As a result of the Company’s decision to discontinue the production of AquaBall® and terminate the Disney License, and considering amounts due, Disney drew from a letter of credit funded by Red Beard in the amount of $378,000 on or about June 1, 2018. Subsequently, Disney and the Company agreed to a settlement and release of all claims related to the Disney License in consideration for the payment to Disney of $42,000.
NOTE 8 – INCOME TAXES
The Company evaluated events subsequent to December 31, 2018 for their potential impact on the financial statements and disclosures through April 3, 2019, the date the financial statements were available to be issued.
The income tax effect of temporary differences between financial and tax reporting and net operating loss carryforwards gives rise to a deferred tax asset at March 31, 2019 and 2018 as follows:
| | | |
| Deferred tax asset –NOL’s | $11,200,000 | $10,300,000 |
| Less valuation allowance | (11,200,000) | (10,300,000) |
| Net deferred tax asset | $- | $- |
NOTE 9 – SUBSEQUENT EVENTS
Management has reviewed and evaluated additional subsequent events and transactions occurring after the balance sheet date through the filing of this Annual Report on Form 10-K and determined that, other than as disclosed below, no subsequent events occurred. For additional information regarding the below subsequent events, please refer to the Current Report on Form 8-K filed with the SEC on April 30, 2019 (the “8-K”), as well as Amendment No. 1 to 8-K, filed with the SEC on May 1, 2019.
The Share Exchange
On April 26, 2019 (the “Closing Date”), the Company entered into a Securities Exchange Agreement (the “Exchange Agreement”), with each of the members (“Members”) of CCD and certain direct investors (“Direct Investors”), pursuant to which the Company acquired all outstanding membership interests of CCD beneficially owned by the Members in exchange for the issuance by the Company of units (“Units”), with such Units consisting of an aggregate of (i) 15,655,538,349 shares of common stock (which included the issuance of an aggregate of 1,396,305 shares a newly created class of Series B Convertible Preferred Stock, par value $0.001 per share (“New Series B Preferred”), convertible into an aggregate of 13,963,047,716 shares of common stock, issued to certain individuals in lieu of common stock); (ii) 206,249 shares of a newly created class of Series A Convertible Preferred Stock, par value $0.001 per share (“Series A Preferred”), convertible into an aggregate of 4,654,349,239 shares of common stock; and (iii) warrants to purchase an aggregate of 3,102,899,493 shares of common stock (the “Investor Warrants,” and together with the common stock, Series A Preferred and New Series B Preferred, the “Securities”). As a result of the Share Exchange, CCD became a wholly owned subsidiary of the Company.
The Investor Warrants have a term of five years, and are exercisable at a price of $0.0044313 per share, subject to certain adjustments. The Investor Warrants may be exercised at any time at the option of the holder; provided, however, that the Investor Warrants shall not become exercisable unless and until such time that the Company has amended its Amended and Restated Articles of Incorporation, as amended (“Charter”), to increase the number of shares authorized for issuance thereunder by a sufficient amount to allow for the conversion and/or exercise of all Securities issued to the Members and Direct Investors in the Share Exchange (the “Increase in Authorized”). In addition, pursuant to the terms of the Investor Warrants, a holder may not exercise any portion of the Investor Warrants in the event that such exercise would result in the holder and its affiliates beneficially owning in excess of 4.99% of the Company’s issued and outstanding common stock immediately thereafter, which limit may be increased to 9.99% at the election of the holder.
As a condition to entering into the Share Exchange, the Company was required to convert all of its currently issued and outstanding Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, and Series D Convertible Preferred Stock (collectively, the “Old Preferred”), and existing indebtedness, into shares of common stock. In addition, upon consummation of the Share Exchange, CCD was provided with the right to appoint two directors to the Company’s Board of Directors.
In connection with the Share Exchange, the Company also entered into Registration Rights Agreements (the “Registration Rights Agreements”) with each of the Members and Direct Investors, pursuant to which the Company agreed to use its best efforts to file a registration statement with the SEC no later than 30 days after the Closing Date in order to register, on behalf of the Members and Direct Investors, the shares of common stock, shares of common stock issuable upon conversion of the Series A Preferred and New Series B Preferred, and shares of common stock issuable upon exercise of the Investor Warrants.
Immediately prior to, and in connection with, the Share Exchange, CCD consummated a private offering of membership interests that resulted in net proceeds to CCD of approximately $27.5 million (the “CCD Financing”). Katalyst Securities LLC (“Katalyst”) acted as the sole placement agent in connection with the CCD Financing pursuant to an Engagement Letter entered into by and between Katalyst, CCD and the Company on February 15, 2019, which was thereafter amended on April 16, 2019. As consideration for its services in connection with the CCD Financing and Exchange, the Company issued to Katalyst and its designees five-year warrants to purchase an aggregate of 930,869,848 shares of common stock at a price of $0.0044313 per share (the “Placement Agent Warrants”). The Placement Agent Warrants have substantially the same terms as those set forth in the Investor Warrants.
As additional consideration for advisory services provided in connection with the CCD Financing and Exchange, the Company issued an aggregate of 902,661,671 shares of common stock (the “Advisory Shares”), including to Scot Cohen, a member of the Company’s Board of Directors, pursuant to a Subscription Agreement.
The Share Exchange resulted in a change of control of the Company, with the Members and Direct Investors owning approximately 85.7% of the Company’s outstanding voting securities immediately after the Share Exchange, and the Company’s current stockholders beneficially owning approximately 14.3% of the issued and outstanding voting securities, which includes the Advisory Shares. Together, Ryan Stump and Brandon Stump, the founders of CCD and the Company’s newly appointed Chief Executive Officer and Chief Operating Officer, respectively, own in excess of 50% of the Company’s issued and outstanding voting securities as a result of the Share Exchange. Upon issuance of the common stock, conversion of the Series A Preferred and New Series B Preferred, and exercise of the Investor Warrants and Placement Agent Warrants issued in connection with the Share Exchange, and assuming that the Company’s Charter is further amended to effect the Increase in Authorized, it is anticipated that the Company shall have an aggregate of approximately 27.7 billion shares of common stock issued and outstanding, of which approximately 24.3 billion shares issued or issuable in connection with the Share Exchange are and shall be restricted until such time as such shares are registered under the Securities Act or an exemption therefrom is available to permit the resale of such shares.
Debt Restructuring
On April 26, 2019, in connection with the Share Exchange, Red Beard purchased substantially all outstanding indebtedness of the Company, including, without limitation, the Food Labs Note and Secured Notes. Thereafter, the Company entered into a Debt Conversion Agreement with Red Beard, pursuant to which Red Beard converted all indebtedness then held by Red Beard, amounting to an aggregate of $4,227,250, into 1,070,741,474 shares of the Company’s common stock (the “Debt Conversion”). As a result of the Debt Conversion, all indebtedness, liabilities and other obligations of the Company held by and owed to Red Beard were cancelled and deemed satisfied in full.
Restructuring of the Old Series B Preferred, Old Series C Preferred and Old Series D Preferred
On April 26, 2019, in connection with the Share Exchange, the Company filed Amendments to the Certificate of Designation After Issuance of Class or Series with the Secretary of State of the State of Nevada to amend the Certificates of Designation, Preferences, Rights and Limitations, as amended (each, a “COD”), of the Company’s Old Preferred, consisting of Series B Convertible Preferred Stock (“Old Series B Preferred”), Series C Convertible Preferred Stock (“Old Series C Preferred”) and Series D Convertible Preferred Stock (“Old Series D Preferred”) (the “Amendments”). Each of the CODs were amended to provide the Company with the right, at its election, to convert all of the issued and outstanding shares of Old Preferred into common stock, at a price of $0.25 per share in the case of the Old Series B Preferred, and $0.025 per share in the case of the Old Series C Preferred and Old Series D Preferred. In addition, the Series B Preferred COD was amended to remove Section 8 in its entirety, which required the Company to redeem all outstanding shares of Old Series B Preferred under certain circumstances.
Prior to effecting each of the Amendments, the Company obtained written consent from the holders of the requisite number of outstanding shares of Old Series B Preferred, Old Series C Preferred and Old Series D Preferred, as set forth in their respective CODs, to effect such Amendments.
Immediately after effecting the Amendments, the Company provided each holder of the Old Series B Preferred, Old Series C Preferred and Old Series D Preferred with a Mandatory Conversion Notice, pursuant to which the Company converted all outstanding shares of the Old Preferred into an aggregate of 580,385,360 shares of common stock.
Promptly after distributing the Mandatory Conversion Notices to all holders of the Old Preferred, the Company filed Certificates of Withdrawal for each of the Old Series B Preferred, Old Series C Preferred and Old Series D Preferred with the Secretary of State of the State of Nevada, thereby eliminating the Old Series B Preferred, Old Series C Preferred and Old Series D Preferred and returning them to authorized but unissued shares of the Company’s preferred stock.
Creation of Series A Preferred
On April 25, 2019, in connection with the Share Exchange, the Company filed the Certificate of Designation, Preferences and Rights of the Series A Convertible Preferred Stock (the “Series A COD”) with the Secretary of State of the State of Nevada, designating 300,000 shares of its preferred stock as Series A Convertible Preferred Stock. Each share of Series A Preferred has a stated value of $100 per share (the “Series A Stated Value”). The Series A Preferred rank senior to all of the Company’s outstanding securities, including the Company’s Series B Convertible Preferred Stock.
The Series A Preferred provides the holders with the right to receive a one-time dividend payment equal to 8% of the Series A Stated Value (the “Series A Dividend”), which Series A Dividend shall be paid by the Company on the earlier to occur of (i) when declared at the election of the Company, (ii) one year from the date of issuance, or (iii) when a holder elects to convert its shares of Series A Preferred into common stock.
Each share of Series A Preferred is convertible, at the option of the holder, into that number of shares of common stock equal to the Series A Stated Value plus all accrued but unpaid dividends, divided by $0.0044313, which conversion rate is subject to adjustment in accordance with the terms of the Series A COD; provided, however, that holders of the Series A Preferred may not convert any shares of Series A Preferred into common stock unless and until the Company has effected the Increase in Authorized. In addition, holders of Series A Preferred are prohibited from converting Series A Preferred into common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% (or 9.99% upon the election of the holder prior to the issuance of the Series A Preferred) of the total number of shares of common stock then issued and outstanding. Each share of Series A Preferred is convertible at the option of the Company, at the same conversion rate set forth above, at such time, if ever, that the Company’s common stock is listed on the Nasdaq Stock Market and the Company has paid the Series A Dividend. In addition, upon the occurrence of a Bankruptcy Event (as defined in the Series A COD), the Company shall be required to redeem, in cash, all outstanding shares of Series A Preferred at a price equal to the conversion amount; provided, however, that holders of the Series A Preferred shall have the right to waive, in whole or in part, such right to receive payment upon the occurrence of a Bankruptcy Event.
Holders of the Series A Preferred shall vote on an as-converted basis along with holders of the Company’s common stock on all matters presented to the Company’s stockholders; provided, however, that the number of votes that any holder, together with its affiliates, may exercise in connection with all of the Company securities held by such holder shall not exceed 9.99% of the voting power of the Company. In addition, pursuant to the Series A COD, the Company shall not take the following actions without obtaining the prior consent of at least a majority of the holders of the outstanding Series A Preferred, voting separately as a single class: (i) amend the Company’s Charter or bylaws, or file a certificate of designation or certificate of amendment to any series of preferred stock if such action would adversely affect the holders of the Series A Preferred, (ii) increase or decrease the authorized number of shares of Series A Preferred, (iii) create or authorize any series of stock that ranks senior to, or on parity with, the Series A Preferred, (iv) purchase, repurchase or redeem any shares of junior stock, or (v) pay dividends on any junior or parity stock. Furthermore, so long as at least 25% of the Series A Preferred remain outstanding, holders of the Series A Preferred (other than the Direct Investors) shall have a right to appoint two members to the Company’s Board of Directors, and the Board shall not consist of more than five members, unless the holders of a majority of the outstanding Series A Preferred have consented to an increase in such number.
Creation of New Series B Preferred
On April 26, 2019, in connection with the Share Exchange and subsequent to filing a Certificate of Withdrawal for the Old Series B Preferred, the Company filed the Certificate of Designation, Preferences and Rights of the Series B Convertible Preferred Stock (the “New Series B COD”) with the Secretary of State of the State of Nevada, designating 1.5 million shares of its preferred stock as Series B Convertible Preferred Stock. The New Series B Preferred ranks junior to the Series A Preferred and senior to all of the Company’s other outstanding securities.
The New Series B Preferred is structured to act as a common stock equivalent. Upon the Company amending its Charter to effect the Increase in Authorized, each share of New Series B Preferred shall be converted into 10,000 shares of common stock, subject to certain adjustments. Shares of Common StockNew Series B Preferred may not be converted into common stock until the Increase in Authorized is effective. Holders of the New Series B Preferred are not entitled to dividends, unless the Company’s Board of Directors elects to issue a dividend to holders of common stock.
Holders of the New Series A Preferred vote on an as-converted basis along with holders of the Company’s common stock on all matters presented to the Company’s stockholders. In addition, pursuant to the New Series B COD, the Company shall not take the following actions without obtaining the prior consent of at least 50% of the holders of the outstanding New Series B Preferred, voting separately as a single class: (i) amend the provisions of the New Series B COD so as to adversely affect holders of the New Series B Preferred, (ii) increase the authorized number of shares of New Series B Preferred, or (iii) effect any distribution with respect to junior stock, unless the Company also provides such distribution to holders of the New Series B Preferred.
Brandon Stump Employment Agreement
On April 26, 2019, in connection with the Share Exchange, Brandon Stump, a co-founder and the Chief Executive Officer of CCD, was appointed as Chief Executive Officer of the Company. In connection with his appointment as Chief Executive Officer, the Company and Brandon Stump entered into an employment agreement (the “B. Stump Employment Agreement”), pursuant to which Brandon Stump shall (i) serve as the Company’s Chief Executive Officer for a term of three years, renewable for one-year periods thereafter, during which time he shall report to the Company’s Board of Directors; (ii) be subject to a non-competition requirement for three years after his termination; (iii) be subject to a non-solicitation requirement for one year after his termination, and be entitled to receive the following compensation for his services as Chief Executive Officer: (a) an annual base salary of $500,000, which shall increase on an annual basis by an amount not less than $25,000 per year, as determined by the Compensation Committee of the Company’s Board of Directors, (b) an annual cash bonus of up to $750,000 per year, which cash bonus will be determined based on the Company’s achievement of audited gross revenue targets of $35.0 million per year, as more particularly set forth in the B. Stump Employment Agreement, (c) certain milestone based bonuses, (d) an annual award of shares of common stock having an aggregate value equal to one-half of Brandon Stump’s annual base salary in effect for such year, which shares shall vest quarterly in equal amounts over a three year period commencing on the issuance date, (e) participation in the Company’s retirement plan, if any, (f) reimbursement of all reasonable business-related expenses incurred by Brandon Stump, (e) full health insurance coverage for he and his dependents, and at least $5.0 million of life insurance, (g) 21 paid vacation days per year, and (h) a monthly automobile allowance of $750 per month.
The Company may terminate the B. Stump Employment Agreement in the event of Brandon Stump’s death or disability, or for Cause, as defined in the B. Stump Employment Agreement;provided, however, that at no time may the Company terminate him without Cause. Brandon Stump may terminate the B. Stump Employment Agreement at any time for any reason. In the event that his employment is terminated by him without Good Reason, as defined in the B. Stump Employment Agreement, or by the Company for Good Cause as a result of a Change in Control, he shall be entitled to the following compensation: (i) any earned but unpaid salary through the termination date, (ii) unpaid and unreimbursed expenses, (iii) earned but unpaid bonuses, and (iv) any accrued vacation days;provided, however, that in the event that the B. Stump Employment Agreement is terminated by Brandon Stump for any reason, he shall also be entitled to one year’s severance, consisting of one year’s base salary, milestone bonuses and certain other benefits. In the event his employment is terminated by the Company without Cause or Brandon Stump terminates it for Good Reason, as defined in the B. Stump Employment Agreement, then he shall be entitled to the following compensation: (i) all amounts due to him through the termination date, (ii) full vesting of any and all previously granted equity-based incentive awards, and (iii) health insurance coverage for a period of 18 months after the termination date. In addition, effective upon a Change in Control, regardless of whether the B. Stump Employment Agreement is terminated, his base salary for the year in which the Change in Control occurred and any years thereafter shall automatically increase by 20% and the milestone bonuses shall automatically decrease by 30%.
Ryan Stump Employment Agreement
On April 26, 2019, in connection with the Share Exchange, Ryan Stump, a co-founder and the Chief Operating Officer of CCD, was appointed as Chief Operating Officer of the Company. In connection with his appointment as Chief Operating Officer, the Company and Ryan Stump entered into an employment agreement (the “R. Stump Employment Agreement”), pursuant to which Ryan Stump shall (i) serve as the Company’s Chief Operating Officer for a term of three years, renewable for one-year periods thereafter, during which time he shall report to the Company’s Chief Executive Officer; (ii) be subject to a non-competition requirement for three years after his termination; (iii) be subject to a non-solicitation requirement for one year after his termination, and be entitled to receive the following compensation for his services as Chief Operating Officer: (a) an annual base salary of $500,000, which shall increase on an annual basis by amount that is not less than $25,000 per year, as determined by the Compensation Committee of the Company’s Board of Directors, (b) an annual cash bonus of up to $750,000 per year, which cash bonus will be determined based on the Company’s achievement of a gross revenue target of $35.0 million per year, as more particularly set forth in the R. Stump Employment Agreement, (c) certain milestone based bonuses, (d) an annual award of shares of common stock having an aggregate value equal to one-half of Ryan’s annual base salary in effect for such year, which shares shall vest quarterly in equal amounts over a three year period commencing on the issuance date, (e) participation in the Company’s retirement plan, if any, (f) reimbursement of all reasonable business-related expenses incurred by Ryan Stump, (e) full health insurance coverage for he and his dependents, and at least $5.0 million of life insurance, (g) 21 paid vacation days per year, and (h) a monthly automobile allowance of $750 per month.
The Company may terminate the R. Stump Employment Agreement in the event of Ryan Stump’s death or disability, or for Cause, as defined in the R. Stump Employment Agreement;provided, however, that at no time may the Company terminate him without Cause. Ryan Stump may terminate the R. Stump Employment Agreement at any time for any reason. In the event that his employment is terminated by him without Good Reason, as defined in the R. Stump Employment Agreement, or by the Company for Good Cause as a result of a Change in Control, he shall be entitled to the following compensation: (i) any earned but unpaid salary through the termination date, (ii) unpaid and unreimbursed expenses, (iii) earned but unpaid bonuses, and (iv) any accrued vacation days;provided, however, that in the event that the R. Stump Employment Agreement is terminated by Ryan Stump for any reason, he shall also be entitled to one year’s severance, consisting of one year’s base salary, milestone bonuses and certain other benefits. In the event that his employment is terminated by the Company without Cause or he terminates it for Good Reason, as defined in the R. Stump Employment Agreement, then Ryan Stump shall be entitled to the following compensation: (i) all amounts due to him through the termination date, (ii) full vesting of any and all previously granted equity-based incentive awards, and (iii) health insurance coverage for a period of 18 months after the termination date. In addition, effective upon a Change in Control, regardless of whether the R. Stump Employment Agreement is terminated, his base salary for the year in which the Change in Control occurred and any years thereafter shall automatically increase by 20% and the milestone bonuses shall automatically decrease by 30%.
TRUE DRINKSREPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Members
Charlie’s Chalk Dust, LLC
Opinion on the Financial Statements
We have audited the accompanying balance sheets of Charlie’s Chalk Dust, LLC (the Company) as of December 31, 2018 and 2017, the related statements of operations, changes in members’ equity and cash flows for the years then ended, and the related notes to the financial statements (collectively, the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018 and 2017, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ Squar Milner LLP
We have served as the Company’s auditor since 2018.
Irvine, California
April 3, 2019
CHARLIE’S CHALK DUST, LLC BALANCE SHEETS
December 31, 2018 and 2017
| | | |
|
| Current Assets | | |
| Cash | $304,548 | $655,076 |
| Accounts receivable, net | 710,934 | 933,073 |
| Inventories, net | 657,576 | 369,604 |
| Prepaid expenses and other current assets | 427,525 | 440,620 |
| Total current assets | 2,100,583 | 2,398,373 |
| | | |
| Property and Equipment, net | 45,371 | 46,920 |
| Other Assets | 41,500 | 37,500 |
| | | |
| Total assets | $2,187,454 | $2,482,793 |
LIABILITIES AND MEMBERS’ EQUITY |
| Liabilities | | |
| Accounts payable | $925,366 | $464,340 |
| Accrued expenses | 291,299 | 193,860 |
| Note payable | – | 166,667 |
| Deferred revenue | 179,562 | 114,526 |
| Total current liabilities | 1,396,227 | 939,393 |
| Members’ Equity | 791,227 | 1,543,400 |
| Total liabilities and members’ equity | $2,187,454 | $2,482,793 |
| | | |
CHARLIE’S CHALK DUST, LLC STATEMENTS OF OPERATIONS
For the Years Ended December 31, 2018 and 2017
| | | |
| NET REVENUES | $20,840,794 | $12,233,925 |
| COST OF GOODS SOLD | 8,514,790 | 5,475,051 |
| GROSS PROFIT | 12,326,004 | 6,758,874 |
| OPERATING EXPENSES | | |
| Sales and marketing | 2,904,456 | 1,862,441 |
| Product development | 95,180 | 116,040 |
| General and administrative | 2,126,945 | 1,523,334 |
| Total operating expenses | 5,126,581 | 3,501,815 |
| INCOME FROM OPERATIONS | 7,199,423 | 3,257,059 |
| | | |
| OTHER INCOME | 453 | 9,410 |
| NET INCOME | $7,199,876 | $3,266,469 |
| | | |
| EARNINGS PER UNIT | | |
| Basic and diluted earnings per unit | $7,200 | $3,266 |
| Basic and diluted weighted-average number of units outstanding | 1,000 | 1,000 |
CHARLIE’S CHALK DUST, LLC STATEMENTS OF CHANGES IN MEMBERS’ EQUITY
For the Years Ended December 31, 2018 and 2017
| BALANCE - January 1, 2017 | $666,931 |
| |
| Member distributions | (2,390,000) |
| |
| Net income | 3,266,469 |
| |
| BALANCE - December 31, 2017 | 1,543,400 |
| |
| Member distributions | (7,952,049) |
| |
| Net income | 7,199,876 |
| |
| BALANCE - December 31, 2018 | $791,227 |
| |
CHARLIE’S CHALK DUST, LLC STATEMENTS OF CASH FLOWS
For the Years Ended December 31, 2018 and 2017
| | | |
| CASH FLOWS FROM OPERATING ACTIVITIES | | |
| Net Income | $7,199,876 | $3,266,469 |
| Adjustments to reconcile net income to net cash provided by operating activities | | |
| Depreciation and amortization | 17,917 | 19,084 |
| Provision for bad debt | 93,447 | 3,830 |
| Changes in operating assets and liabilities: | | |
| Accounts receivable | 128,692 | (620,014) |
| Inventories | (287,972) | 51,575 |
| Prepaid expenses and other current assets | 13,095 | (237,809) |
| Other assets | (4,000) | (1,000) |
| Accounts payable and accrued expenses | 558,465 | 446,323 |
| Deferred revenue | 65,036 | 92,869 |
| Net cash provided by operating activities | 7,784,556 | 3,021,327 |
| CASH FLOWS FROM INVESTING ACTIVITIES | | |
| Purchase of property and equipment | (16,368) | – |
| Net cash used in investing activities | (16,368) | – |
| CASH FLOWS FROM FINANCING ACTIVITIES | | |
| Member distributions | (7,952,049) | (2,390,000) |
| Principal payments on note payable | (166,667) | (166,667) |
| Net cash used in financing activities | (8,118,716) | (2,556,667) |
| INCREASE (DECREASE) IN CASH | (350,528) | 464,660 |
CASH – beginning of year | 655,076 | 190,416 |
CASH – end of year | $304,548 | $655,076 |
| | | |
1.
ORGANIZATION AND NATURE OF OPERATIONS Description of Organization
Charlie’s Chalk Dust, LLC (the “Company” or “CCD”) was incorporated in Delaware in 2014 as a limited liability corporation. The Company is a formulator, marketer and distributor of branded e-cigarette liquid. CCD’s products are produced domestically through contract manufacturers for sale to distributors and specialty retailers throughout the United States of America, as well as over 80 countries worldwide. The Company is headquartered in Costa Mesa, California.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Accounting
The Company’s financial statements are prepared on the accrual basis of accounting in accordance with accounting principles generally accepted in the United States of America (“GAAP”).
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Segment Reporting
The Company and its subsidiaries currently operate in one business segment. The following information disaggregates the Company’s revenues from contracts with customers as a percentage of total net revenues by geographic market and major customer type for the years ending December 31:
| | | |
| Geographic Market | | |
| International | 28% | 35% |
| United States | 72% | 65% |
| Total | 100% | 100% |
| Customer Type | | |
| Retailers | 44% | 45% |
| Distributors | 56% | 55% |
| Total | 100% | 100% |
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Segment Reporting (continued)
Sales by geographic market are calculated based on the shipping address and does not reflect further sub-distribution that may occur after control of the inventory has transferred to the Company’s customer. The Company’s primary international markets include the United Kingdom, Italy, Spain, Belgium, Australia, Sweden and Canada.
Revenue Recognition
The Company recognizes revenues in accordance with Accounting Standards Codification (“ASC”) 606 – Contracts with Customers. The Company’s revenues are generated from contracts with customers that consist of sales to retailers and distributors. The Company’s contracts with customers are generally short term in nature with the delivery of product as a single performance obligation. Revenue from the sale of product is recognized at the point in time when the single performance obligation has been satisfied and control of the product has transferred to the customer. In evaluating the timing of the transfer of control of products to customers, the Company considers several indicators, including significant risks and rewards of products, the right to payment, and the legal title of the products. Based on the assessment of control indicators, sales are generally recognized when products are received by customers.
Shipping generally occurs prior to the transfer of control to the customer and is therefore accounted for as a fulfillment expense. In circumstances where shipping and handling activities occur after the customer has obtained control of the product, the Company elected to account for shipping and handling activities as a fulfillment cost rather than an additional promised service. Contract durations are generally less than one year, and therefore costs paid to obtain contracts, which generally consist of sales commissions, are recognized as expenses in the period incurred.
Revenue is measured by the transaction price, which is defined as the amount of consideration expected to be received in exchange for providing goods to customers. The transaction price is adjusted for estimates of known or expected variable consideration, which includes refunds and returns as well as incentive offers and promotional discounts on current orders.
Sales returns are generally not material to the financial statements, and do not comprise a significant portion of variable consideration. Estimates for sales returns are based on, among other things, an assessment of historical trends, information from customers, and anticipated returns related to current sales activity. These estimates are established in the period of sale and reduce revenue in the period of the sale.
Variable consideration related to incentive offers and promotional programs are recorded as a reduction to revenue based on amounts the Company expects to collect. Estimates are regularly updated and the impact of any adjustments are recognized in the period the adjustments are identified. In many cases, key sales terms such as pricing and quantities ordered are established at the time an order is placed and incentives have very short-term durations.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Revenue Recognition (continued)
Amounts billed and due from customers are short term in nature and are classified as receivables since payments are unconditional and only the passage of time related to credit terms is required before payments are due. The Company does not grant payment financing terms greater than one year. Payments received in advance of revenue recognition are recorded as deferred revenue.
Shipping and Handling Costs
Shipping and handling costs incurred are included in cost of goods sold and totaled $719,772 and $594,566 for the years ended December 31, 2018 and 2017, respectively.
Earnings Per Unit
Earnings per unit is calculated by dividing net income of the Company by the weighted average number of units outstanding during the year. The Company does not have any potentially dilutive instruments.
Cash and Cash Equivalents
The Company considers all highly liquid investments with an original maturity of three months or less when purchased to be cash equivalents. As of December 31, 2018 and 2017, there were no cash equivalents.
Accounts Receivable
Accounts receivable is recorded at the invoiced amount and does not bear interest. The allowance for doubtful accounts is the Company’s best estimate of the amount of probable credit losses in existing accounts receivable. The allowance for doubtful accounts is reviewed on a monthly basis and past due balances are reviewed individually for collectability. Account balances are written off against the allowance when it is determined that it is probable that the receivable will not be recovered. As of December 31, 2018 and 2017, the allowance for bad debt totaled $151,109 and $57,623, respectively.
Inventories
Inventories primarily consist of finished goods and are stated at the lower of cost (determined by the average cost method) or net realizable value. The Company provides estimates of excess and obsolete inventories determined primarily upon inventory on hand, historical sales activity, industry trends and expected net realizable value. As of December 31, 2018 and 2017, the reserve for excess and obsolete inventories totaled $73,549 and $61,914, respectively.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Property and Equipment
Property and equipment is stated at cost less accumulated depreciation. Depreciation is calculated using the straight-line method over the estimated useful lives of the assets which range from five to seven years for equipment, three years for software, and ten years for furniture. Leasehold improvements are amortized over the lesser of the related lease term or their estimated useful life. Expenditures for repairs and maintenance are charged to expense as incurred. Upon disposition of property and equipment, the costs and related accumulated depreciation amounts are relieved and any resulting gain or loss is reflected in operations during the period of disposition.
Impairment of Long-Lived Assets
The Company reviews its long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of these assets is determined by comparing the forecasted undiscounted cash flows attributable to such assets including any cash flows upon their eventual disposition to their carrying value. If the carrying value of the assets exceeds the forecasted undiscounted cash flows, then the assets are written down to their estimated fair value. For the years ended December 31, 2018 and 2017, there were no such impairments.
Advertising
The Company expenses advertising cost as incurred. Advertising expenses amounted to $541,911 and $371,984 during the years ended December 31, 2018 and 2017, respectively, and are included in sales and marketing expense in the accompanying statements of operations.
Note Payable
The Company had a note payable to a former employee in connection with a separation agreement executed in October 2015. The note required an initial payment of $250,000 and 36 monthly payments of $13,889 beginning in February 2016. The balance of the note as of December 31, 2017 was $166,667, which was repaid in full during the year ended December 31, 2018.
Income Taxes
No provision for income taxes has been made in the financial statements as the Company is a “pass through” entity. Each member is individually liable for tax on their share of the Company’s income or loss. The Company prepares a calendar year informational tax return.
While electing Limited Liability Company status, the Company does not believe it has any uncertain income tax positions that are more likely than not to materially affect its consolidated financial statements. The Company’s federal and state income tax returns remain open to agency examination for the standard statutory length of time after filing.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Income Taxes (continued)
On February 8, 2019, the Company was notified by the Internal Revenue Service (“IRS”) that its form 1065, for the year ended December 31, 2017, has been selected for examination. The Company has responded to the IRS’s notice and is in the process of scheduling further correspondence related to the examination.
Recently Issued Accounting Pronouncements
The Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2014-09, Revenue from Contracts with Customers (Topic 606). The amendments in this update create common revenue recognition guidance for entities reporting revenue under U.S. GAAP and IFRS by requiring entities to recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods and services. Entities should apply the following five steps: (1) identify the contract(s) with a customer, (2) identify performance obligations in the contract, (3) determine transaction price, (4) allocate transaction price to performance obligations in the contract, and (5) recognize revenue when (or as) the entity satisfies a performance obligation. Entities should also disclose qualitative and quantitative information about (1) contracts with customers, including revenue and impairments recognized, disaggregation of revenue, and information about contract balances and performance obligations and related transaction price allocation to remaining performance obligations, (2) significant judgments and changes thereof in determining the timing of performance obligations over time or at a point in time and the transaction price and amounts allocated to performance obligations, and (3) assets recognized from the costs to obtain or fulfill a contract. The amendments in this update are effective for annual reporting periods beginning after December 15, 2017.
The Company adopted this guidance on January 1, 2018 using the modified retrospective transition method. Prior periods were not adjusted and, based on the Company’s implementation assessment, no cumulative-effect adjustment was made to the opening balance of retained earnings. The adoption of this standard did not have a material impact on the financial statements other than expanded disclosures. For further description of the Company’s revenue recognition policy refer to the Revenue Recognition section above and for disaggregated revenue information refer to the Segment Reporting section above.
In February 2016, the FASB issued ASU 2016-02, Leases. Most prominent among the changes in the standard is the recognition of right-of-use (“ROU”) assets and lease liabilities by lessees for those leases classified as operating leases under the existing guidance. The standard requires entities to recognize and measure leases existing at, or entered into after, the beginning of the earliest comparative period presented using a modified retrospective approach, with certain practical expedients available. In July 2018, the FASB issued a practical expedient that would allow entities the option to apply the provisions of the new lease guidance at the effective date of adoption without adjusting the comparative periods presented.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Recently Issued Accounting Pronouncements (continued)
The standard is effective for the Company in the year beginning January 1, 2019. The Company is continuing to assess the potential impacts of this standard and currently expects that the most significant impact on the financial statements will be the recognition of ROU assets and lease liabilities for operating leases. The Company has not yet determined which practical expedients will be utilized in connection with adopting the new standard, nor have any quantitative impacts on the financial statements been determined.
Accrued expenses consisted of the following as of December 31:
| | | |
| Sales commissions | $70,400 | $74,878 |
| Wages | 217,484 | $112,911 |
| Payroll taxes | 3,415 | 6,071 |
| Total accrued expenses | $291,299 | $193,860 |
4.
PROPERTY AND EQUIPMENT, NET
Property and equipment consisted of the following as of December 31:
| | | |
| Equipment | $64,536 | $54,572 |
| Furniture | 22,509 | 16,105 |
| Leasehold improvements | 20,000 | 20,000 |
| Software | 3,150 | 3,150 |
| | 110,195 | 93,827 |
| Less: Accumulated depreciation | (64,824) | (46,907) |
| Property and equipment, net | $45,371 | $46,920 |
| | | |
Depreciation and amortization expense totaled $17,917 and $19,084, respectively, during the years ended December 31, 2018 and 2017.
During the years ended December 31, 2018 and December 31, 2017, purchases from three vendors represented 97% and 94%, respectively, of total inventory purchases. As of December 31, 2018, and December 31, 2017, amounts owed to these vendors totaled $653,647 and $278,802, respectively, which are included in accounts payable in the accompanying balance sheets.
Operating Leases
On August 17, 2015, the Company entered into a 36-month lease agreement for its corporate offices in Costa Mesa California, which includes the use of warehouse space. The lease agreement commenced on October 1, 2015 and required monthly rental payments. On October 1, 2018 this lease agreement was renewed for 12-months. On February 14, 2018 the Company entered into a 36-month lease agreement for auxiliary warehouse space located in Santa Ana California. The lease agreement commenced on April 1, 2018 and required monthly rental payments with the addition of variable common-area operating expenses.
Future minimum lease payments under these lease agreements for the years ending December 31 are as follows:
| 2019 | $206,678 |
| 2020 | 39,672 |
| 2021 | 9,918 |
| Total payments | $256,268 |
Litigation
During the ordinary course of the Company’s business, it is subject to various claims and litigation. Management believes that the outcome of such claims or litigation will not have a material adverse effect on the Company’s financial position, results of operations or cash flow. As of December 31, 2018, there were no outstanding legal claims concerning CCD.
Contract Manufacturers
The Company uses contract manufacturers in the United States to produce goods. The manufacturers use the Company’s formulas to fill the Company’s orders and do not require purchase commitments from the Company.
The Company issues membership interests in the form of units with a single class authorized. 1000 membership units were authorized and issued at the Company’s formation and remain outstanding as of December 31, 2018. The Manager (as defined in the LLC agreement) shall approve the admission or withdrawal of Members as well as the sale, grant, issuance or redemption of units. The Manager with the consent of Members owning at least sixty-five percent of the then outstanding units, may admit to the Company additional member(s) who will be issued units on such terms as are determined by the Manager. In addition, the Company has an arrangement with three employees to participate in any type of equity sale of the Company in the aggregate amount of 4.5% of the proceeds. The ability of the holders to exercise this arrangement is contingent upon an equity transaction and as of December 31, 2018 and 2017, it was not probable that the equity participation rights would be triggered and therefore no stock-based compensation has been recognized in the accompanying financial statements.
The Company evaluated events subsequent to December 31, 2018 for their potential impact on the financial statements and disclosures through April 3, 2019, the date the financial statements were available to be issued.
The Company has a savings plan that became available to employees in January 2019 which is intended to qualify under Section 401(k) of the Internal Revenue Code (the “Plan”). Eligible employees may elect to make contributions to the Plan through salary deferrals up to 100% of their base pay, subject to limitations. The Company matches contributions up to 3% of compensation and then matches 50% of contributions up to the next 2% of compensation.
Financial Statements of Charlie’s Chalk Dust, LLC for the three months ended March 31, 2019 and 2018 (unaudited)
CHARLIE’S CHALK DUST, LLC CONDENSED BALANCE SHEETS
| | | |
| | | |
|
| Current Assets | | |
| Cash | $1,243,081 | $304,548 |
| Accounts receivable, net | 1,103,118 | 710,934 |
| Inventories, net | 677,768 | 657,576 |
| Lease right-of-use, current portion, net | 41,272 | – |
| Prepaid expenses and other current assets | 379,125 | 427,525 |
| Total current assets | 3,444,364 | 2,100,583 |
| | | |
| Property and Equipment, net | 54,652 | 45,371 |
| Lease right-of-use | 38,347 | – |
| Other Assets | 41,500 | 41,500 |
| | | |
| Total assets | $3,578,863 | $2,187,454 |
LIABILITIES AND MEMBERS’ EQUITY |
| Commitments and Contingencies (Note 6) | | |
| Liabilities | | |
| Accounts payable | $805,745 | $925,366 |
| Accrued expenses | 221,664 | 291,299 |
| Lease right-of-use liability, current portion | 39,672 | – |
| Deferred revenue | 184,003 | 179,562 |
| Total current liabilities | 1,251,084 | 1,396,227 |
| Lease Right-of-Use Liability | 40,347 | – |
| Total liabilities | 1,291,431 | 1,396,227 |
| Members’ Equity | 2,287,432 | 791,227 |
Total liabilities and members’ equity | $3,578,863 | $2,187,454 |
| | | |
See accompanying notes to the unaudited interim condensed financial statements.
CHARLIE’S CHALK DUST, LLC CONDENSED STATEMENTS OF OPERATIONS
(unaudited)
| | Three Months Ended March 31, |
| | | |
| NET REVENUES | $6,647,545 | $5,432,370 |
| COST OF GOODS SOLD | 2,750,274 | 2,165,289 |
| GROSS PROFIT | 3,897,271 | 3,267,081 |
| OPERATING EXPENSES | | |
| Sales and marketing | 767,042 | 718,036 |
| Product development | 39,542 | 31,976 |
| General and administrative | 615,572 | 460,105 |
| Total operating expenses | 1,422,156 | 1,210,117 |
| INCOME FROM OPERATIONS | 2,475,115 | 2,056,964 |
| | | |
| OTHER INCOME | 90 | 95 |
| NET INCOME | $2,475,205 | $2,057,059 |
| | | |
| EARNINGS PER UNIT | | |
| Basic and diluted earnings per unit | $2,475 | $2,057 |
| Basic and diluted weighted-average number of units outstanding | 1,000 | 1,000 |
| | | |
See accompanying notes to the unaudited interim condensed financial statements.
CHARLIE’S CHALK DUST, LLC CONDENSED STATEMENTS OF CHANGES IN MEMBERS’ EQUITY
| BALANCE – January 1, 2018 | $1,543,400 |
| |
| Member distributions | (1,150,000) |
| |
| Net income | 2,057,059 |
| |
| BALANCE – March 31, 2018 | $2,450,459 |
| |
| BALANCE – January 1, 2019 | $791,227 |
| |
| Member distributions | (979,000) |
| |
| Net income | 2,475,205 |
| |
| BALANCE - March 31, 2019 | $2,287,432 |
| |
See accompanying notes to the unaudited interim condensed financial statements.
CHARLIE’S CHALK DUST, LLC CONDENSED STATEMENTS OF CASH FLOWS
| | Three Months Ended March 31, |
| | | |
| CASH FLOWS FROM OPERATING ACTIVITIES | | |
| Net income | $2,475,205 | $2,057,059 |
| Adjustments to reconcile net income to net cash provided by operating activities | | |
| Depreciation and amortization | 3,573 | 4,771 |
| Noncash lease expense | 1,110 | – |
| Recoveries for bad debt | (42,705) | – |
| Changes in operating assets and liabilities: | | |
| Accounts receivable | (349,479) | (120,294) |
| Inventories | (20,192) | (351,397) |
| Prepaid expenses and other current assets | 48,400 | (88,010) |
| Lease right-of-use asset | 9,208 | – |
| Other assets | – | (4,000) |
| Accounts payable | (119,621) | 161,216 |
| Accrued expenses | (69,635) | 121,487 |
| Lease right-of-use liability | (9,918) | – |
| Deferred revenue | 4,441 | 168,353 |
| Net cash provided by operating activities | 1,930,387 | 1,949,185 |
| CASH FLOWS FROM INVESTING ACTIVITIES | | |
| Purchase of property and equipment | (12,854) | – |
| Net cash used in investing activities | (12,854) | – |
| CASH FLOWS FROM FINANCING ACTIVITIES | | |
| Member distributions | (979,000) | (1,150,000) |
| Principal payments on note payable | – | (41,667) |
| Net cash used in financing activities | (979,000) | (1,191,667) |
| INCREASE IN CASH | 938,533 | 757,518 |
CASH – beginning of period | 304,548 | 655,076 |
CASH – end of period | $1,243,081 | $$1,412,594 |
| NONCASH INVESTING AND FINANCING ACTIVITIES | | |
| Acquisition of right-of-use asset through lease liability | $88,827 | $– |
See accompanying notes to the unaudited interim condensed financial statements.
1.
ORGANIZATION AND NATURE OF OPERATIONS Description of Organization
Charlie’s Chalk Dust, LLC (the “Company” or “CCD”) was incorporated in Delaware in 2014 as a limited liability corporation. The Company is a formulator, marketer and distributor of branded e-cigarette liquid. CCD’s products are produced domestically through contract manufacturers for sale to distributors and specialty retailers throughout the United States of America, as well as over 80 countries worldwide. The Company is headquartered in Costa Mesa, California.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The accompanying unaudited interim condensed financial statements have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”). Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) have been omitted pursuant to such SEC rules and regulations; nevertheless, the Company believes that the disclosures are adequate to make the information presented not misleading. Amounts related to disclosure of December 31, 2018 balances within these interim condensed financial statements were derived from the audited 2018 financial statements and notes thereto. These financial statements and the notes hereto should be read in conjunction with the December 31, 2018 financial statements and notes thereto. In the opinion of the Company, all adjustments, including normal recurring adjustments necessary to present fairly the financial position, results of operations, and cash flows of the Company for the interim period have been included. The results of operations for the interim period are not necessarily indicative of the results for any subsequent interim period or for the full year.
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Segment Reporting
The Company currently operates in one business segment. The following information disaggregates the Company’s revenues from contracts with customers as a percentage of total net revenues by geographic market and major customer type for the three months ended March 31, 2019 and 2018:
| | Three Months EndedMarch 31,2019 | Three Months EndedMarch 31,2018 |
| Geographic Market | | |
| International | 19% | 30% |
| United States | 81% | 70% |
| Total | 100% | 100% |
| Customer Type | | |
| Retailers | 35% | 52% |
| Distributors | 65% | 48% |
| Total | 100% | 100% |
Sales by geographic market are calculated based on the shipping address and does not reflect further sub-distribution that may occur after control of the inventory has transferred to the Company’s customer. The Company’s primary international markets include the United Kingdom, Italy, Spain, Belgium, Australia, Sweden and Canada.
Revenue Recognition
The Company recognizes revenues in accordance with Accounting Standards Codification (“ASC”) 606 – Contracts with Customers. The Company’s revenues are generated from contracts with customers that consist of sales to retailers and distributors. The Company’s contracts with customers are generally short term in nature with the delivery of product as a single performance obligation. Revenue from the sale of product is recognized at the point in time when the single performance obligation has been satisfied and control of the product has transferred to the customer. In evaluating the timing of the transfer of control of products to customers, the Company considers several indicators, including significant risks and rewards of products, the right to payment, and the legal title of the products. Based on the assessment of control indicators, sales are generally recognized when products are received by customers.
Shipping generally occurs prior to the transfer of control to the customer and is therefore accounted for as a fulfillment expense. In circumstances where shipping and handling activities occur after the customer has obtained control of the product, the Company elected to account for shipping and handling activities as a fulfillment cost rather than an additional promised service. Contract durations are generally less than one year, and therefore costs paid to obtain contracts, which generally consist of sales commissions, are recognized as expenses in the period incurred.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Revenue Recognition (continued)
Revenue is measured by the transaction price, which is defined as the amount of consideration expected to be received in exchange for providing goods to customers. The transaction price is adjusted for estimates of known or expected variable consideration, which includes refunds and returns as well as incentive offers and promotional discounts on current orders.
Sales returns are generally not material to the financial statements, and do not comprise a significant portion of variable consideration. Estimates for sales returns are based on, among other things, an assessment of historical trends, information from customers, and anticipated returns related to current sales activity. These estimates are established in the period of sale and reduce revenue in the period of the sale.
Variable consideration related to incentive offers and promotional programs are recorded as a reduction to revenue based on amounts the Company expects to collect. Estimates are regularly updated and the impact of any adjustments are recognized in the period the adjustments are identified. In many cases, key sales terms such as pricing and quantities ordered are established at the time an order is placed and incentives have very short-term durations.
Amounts billed and due from customers are short term in nature and are classified as receivables since payments are unconditional and only the passage of time related to credit terms is required before payments are due. The Company does not grant payment financing terms greater than one year. Payments received in advance of revenue recognition are recorded as deferred revenue.
Shipping and Handling Costs
Shipping and handling costs incurred are included in cost of goods sold and totaled $177,000 and $148,508 for the three months ended March 31, 2019 and 2018, respectively.
Earnings Per Unit
Earnings per unit is calculated by dividing net income of the Company by the weighted average number of units outstanding during the year. The Company does not have any potentially dilutive instruments.
Cash and Cash Equivalents
The Company considers all highly liquid investments with an original maturity of three months or less when purchased to be cash equivalents. As of March 31, 2019 and December 31, 2018, there were no cash equivalents.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Accounts Receivable
Accounts receivable is recorded at the invoiced amount and does not bear interest. The allowance for doubtful accounts is the Company’s best estimate of the amount of probable credit losses in existing accounts receivable. The allowance for doubtful accounts is reviewed on a monthly basis and past due balances are reviewed individually for collectability. Account balances are written off against the allowance when it is determined that it is probable that the receivable will not be recovered. As of March 31, 2019 and December 31, 2018, the allowance for bad debt totaled $108,404 and $151,109, respectively.
Inventories
Inventories primarily consist of finished goods and are stated at the lower of cost (determined by the average cost method) or net realizable value. The Company provides estimates of excess and obsolete inventories determined primarily upon inventory on hand, historical sales activity, industry trends and expected net realizable value. As of March 31, 2019 and December 31, 2018, the reserve for excess and obsolete inventories totaled $40,792 and $73,549, respectively.
Property and Equipment
Property and equipment is stated at cost less accumulated depreciation. Depreciation is calculated using the straight-line method over the estimated useful lives of the assets which range from five to seven years for equipment, three years for software, and ten years for furniture. Leasehold improvements are amortized over the lesser of the related lease term or their estimated useful life. Expenditures for repairs and maintenance are charged to expense as incurred. Upon disposition of property and equipment, the costs and related accumulated depreciation amounts are relieved and any resulting gain or loss is reflected in operations during the period of disposition.
Impairment of Long-Lived Assets
The Company reviews its long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of these assets is determined by comparing the forecasted undiscounted cash flows attributable to such assets including any cash flows upon their eventual disposition to their carrying value. If the carrying value of the assets exceeds the forecasted undiscounted cash flows, then the assets are written down to their estimated fair value. For the three months ended March 31, 2019 and 2018, there were no such impairments.
Advertising
The Company expenses advertising cost as incurred. Advertising expenses amounted to $129,158 and $86,735 during the three months ended March 31, 2019 and 2018, respectively, and are included in sales and marketing expense in the accompanying condensed statements of operations.
2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Note Payable
The Company had a note payable to a former employee in connection with a separation agreement executed in October 2015. The note required an initial payment of $250,000 and 36 monthly payments of $13,889 beginning in February 2016. The balance of the note as of March 31, 2019 was $0.
Income Taxes
No provision for income taxes has been made in the financial statements as the Company is a “pass through” entity. Each member is individually liable for tax on their share of the Company’s income or loss. The Company prepares a calendar year informational tax return.
While electing Limited Liability Company status, the Company does not believe it has any uncertain income tax positions that are more likely than not to materially affect its consolidated financial statements. The Company’s federal and state income tax returns remain open to agency examination for the standard statutory length of time after filing.
On February 8, 2019, the Company was notified by the Internal Revenue Service (“IRS”) that its form 1065, for the year ended December 31, 2017, has been selected for examination. The Company has responded to the IRS’s notice and is in the process of scheduling further correspondence related to the examination.
Recently Issued Accounting Pronouncements
In February 2016, the Financial Accounting Standard Board (“FASB”) issued Accounting Standards Update (“ASU”) 2016-02, Leases (ASC 842), which supersedes the existing guidance for lease accounting, Leases (Topic 840). ASU 2016-02 requires lessees to recognize Right-Of-Use (“ROU”) Asset and Lease Liability for virtually all of their leases (other than leases that meet the definition of a short-term lease). On January 1, 2019, the Company adopted FASB ASC Topic 842 using the modified retrospective method for all material leases that existed at or commenced after January 1, 2019. ROU Assets are amortized over their estimated useful life, which represents the full term of the lease. The lease liability is representative of the present value of future payments due under the lease, discounted using the incremental borrowing rate. The lease liability will be increased by accreted interest at the incremental borrowing rate and reduced by future payments made under the lease obligation. On January 1, 2019, the Company recognized right of use (ROU) assets and liabilities of $88,827 in the accompanying condensed balance sheets. The Company made a policy election to not recognize right-of-use assets and lease liabilities for short-term (less than 12 months) leases for all asset classes. There was no impact to retained earnings upon the adoption of ASC 842.
Accrued expenses consisted of the following:
| | | |
| Wages | $145,907 | $217,484 |
| Sales commissions | 69,409 | 70,400 |
| Payroll taxes | 3,415 | 3,415 |
| Other accrued expenses | 2,933 | - |
| Total accrued expenses | $221,664 | $291,299 |
| | | |
4.
PROPERTY AND EQUIPMENT, NET
Property and equipment consisted of the following:
| | | |
| Equipment | $71,786 | $64,536 |
| Furniture | 22,509 | 22,509 |
| Leasehold improvements | 25,605 | 20,000 |
| Software | 3,149 | 3,150 |
| | 123,049 | 110,195 |
| Less: Accumulated depreciation | (68,397) | (64,824) |
| Property and equipment, net | $54,652 | $45,371 |
| | | |
Depreciation and amortization expense totaled $3,573 and $4,771, respectively, during the three months ended March 31, 2019 and 2018.
During the three months ended March 31, 2019 purchases from two vendors represented 92% of total inventory purchases. During the three months ended March 31, 2018 purchases from three vendors represented 100% of total inventory purchases. As of March 31, 2019 and December 31, 2018, amounts owed to these vendors totaled $295,216 and $653,647, respectively, which are included in accounts payable in the accompanying condensed balance sheets.
No customer made up more than 10% of accounts receivable at March 31, 2019 and 2018. No customer exceeded 10% of total net sales for the three-month periods ended March 31, 2019 and March 31, 2018.
6.
COMMITMENTS AND CONTINGENCIES
Operating Leases
On August 17, 2015, the Company entered into a 36-month lease agreement for its corporate offices in Costa Mesa California, which includes the use of warehouse space. The lease agreement commenced on October 1, 2015 and required monthly rental payments. On October 1, 2018 this lease agreement was renewed for 12-months. On February 14, 2018, the Company entered into a 36-month lease agreement for auxiliary warehouse space located in Santa Ana California. The lease agreement commenced on April 1, 2018 and requires monthly rental payments with the addition of variable common-area operating expenses. These leases do not have significant rent escalation holidays, concessions, leasehold improvement incentives or other build-out clauses. Further these leases do not contain contingent rent provisions. The leases do include both lease (e.g., fixed rent) and non-lease components (e.g., common-area and other maintenance costs). The non-lease components are deemed to be executory costs and are therefore excluded from the minimum lease payments used to determine the present value of the operating lease obligation and related right-of-use asset.
This lease does not provide an implicit rate and we estimated our incremental interest rate to be 5%. We used our estimated incremental borrowing rate and other information available at the lease commencement date in determining the present value of the lease payments.
Future minimum lease payments under these lease agreements are as follows for the annual periods ending December 31 are as follows:
| Remainder of 2019 | $30,645 |
| 2020 | 41,778 |
| 2021 | 10,521 |
| Total lease payments | 82,944 |
| Less: interest | (2,925) |
| Present value of lease liabilities | $80,019 |
Litigation
During the ordinary course of the Company’s business, it is subject to various claims and litigation. Management believes that the outcome of such claims or litigation will not have a material adverse effect on the Company’s financial position, results of operations or cash flow. As of March 31, 2019, there were no outstanding legal claims concerning CCD.
Contract Manufacturers
The Company uses contract manufacturers in the United States to produce goods. The manufacturers use the Company’s formulas to fill the Company’s orders and do not require purchase commitments from the Company.
The Company issues membership interests in the form of units with a single class authorized. 1,000 membership units were authorized and issued at the Company’s formation and remain outstanding as of March 31, 2019. The Manager (as defined in the LLC agreement) shall approve the admission or withdrawal of Members (“Members”) as well as the sale, grant, issuance or redemption of units. The Manager with the consent of Members owning at least sixty-five percent of the then outstanding units, may admit to the Company additional member(s) who will be issued units on such terms as are determined by the Manager. In addition, the Company had previously entered into an agreement with four employees that provides non-profit sharing, capital participation features in the aggregate amount of 5% of the Company’s equity value. The ability of the holders to exercise this arrangement is contingent upon an equity transaction and as of March 31, 2019, it was not probable that the equity participation rights would be triggered and therefore no stock-based compensation has been recognized in the accompanying financial statements.
The Company evaluated events subsequent to March 31, 2019 for their potential impact on the financial statements and disclosures through June 12, 2019, the date the financial statements were available to be issued.
On April 26, 2019 (the “Closing Date”), CCD entered into a Securities Exchange Agreement with True Drinks Holdings Inc. (“True Drinks”) and certain direct investors pursuant to which True Drinks acquired all outstanding membership interests of CCD beneficially owned by the Members in exchange for the issuance by True Drinks of units (“Units”), with such Units consisting of an aggregate of (i) 15,655,538,349 shares of common stock (which includes the issuance of an aggregate of 1,396,305 shares a newly created class of Series B Convertible Preferred Stock, par value $0.001 per share (“New Series B Preferred”), convertible into an aggregate of 13,963,047,716 shares of common stock, issued to certain individuals in lieu of common stock); (ii) 206,249 shares of a newly created class of Series A Convertible Preferred Stock, par value $0.001 per share (“Series A Preferred”), convertible into an aggregate of 4,654,349,239 shares of common stock; and (iii) warrants to purchase an aggregate of 3,102,899,493 shares of common stock (the “Investor Warrants,” and together with the common stock, Series A Preferred and New Series B Preferred, the (“Securities”) (the “Share Exchange”). As a result of the Share Exchange, CCD became a wholly owned subsidiary of True Drinks.
Immediately prior to, and in connection with, the Share Exchange, CCD consummated a private offering of membership interests that resulted in net proceeds to CCD of approximately $27.5 million (the “CCD Financing”). Katalyst Securities LLC (“Katalyst”) acted as the sole placement agent in connection with the CCD Financing pursuant to an Engagement Letter entered into by and between Katalyst, CCD and True Drinks on February 15, 2019. As consideration for its services in connection with the CCD Financing and Exchange, the Company issued to Katalyst and its designees five-year warrants to purchase an aggregate of 930,869,848 shares of common stock at a price of $0.0044313 per share (the “Placement Agent Warrants”). The Placement Agent Warrants have substantially the same terms as those set forth in the Investor Warrants.
PROSPECTUS
CHARLIE’S HOLDINGS, INC.
26,317,060,072Shares
Prospectus
Common Stock
All dealers that buy, sell or trade the common stock identified herein may be required to deliver a prospectus, regardless of whether they are participating in this offering. This is in addition to the dealers’ obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
, 2019
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table presents the costs and expenses in connection with the issuance and distribution of the securities to be registered, other than underwriting discounts and commissions, payable by us in connection with the sale of common stock being registered. Except as otherwise noted, we will pay all of these amounts. All amounts are estimates except the Securities and Exchange Commission (“SEC”) registration fee.
| | | | |
Accounting fees and expenses | | | | |
| | | | |
Miscellaneous fees and expenses | | | | |
| | | | |
| SEC registration fee | $31,897 |
| Accounting fees and expenses | $15,000 |
| Legal fees and expenses | $* |
| Miscellaneous fees and expenses | $* |
| Total | $* |
*
To be provided by amendment.
Item 14. Indemnification of Directors and Officers
Our Articles of Incorporation, as amended and restated, provide to the fullest extent permitted by the Nevada Revised Statutes, that our directors or officers shall not be personally liable to us or our shareholdersstockholders for damages for breach of such director’s or officer’s fiduciary duty. The effect of this provision of our Articles of Incorporation is to eliminate our rights and our shareholdersstockholders lights (through shareholders’stockholders’ derivative suits on behalf of our company) to recover damages against a director or officer for breach of the fiduciary duty of care as a director or officer (including breaches resulting from negligent or grossly negligent behavior), except under certain situations defined by statute. We believe that the indemnification provisions in our Articles of Incorporation are necessary to attract and retain qualified persons as directors and officers.
Our Bylaws also provide that the Board of Directors may also authorize us to indemnify our employees or agents, and to advance the reasonable expenses of such persons, to the same extent, following the same determinations, and upon the same conditions as are required for the indemnification of, and advancement of, expenses to our directors and officers. As of the date of this Registration Statement, the Board of Directors has not extended indemnification rights to persons other than directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling us pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 15. Recent Sales of Unregistered Securities
In addition toOther than the issuances disclosed in the accompanying prospectus, we have not issued the following securities since April 2013June 10, 2016 that were not registered under the Securities Act of 1933. Each of the securities were offered and sold in transactions exempt from registration under the Securities Act, in reliance on Section 4(2) thereof and Rule 506 of Regulation D thereunder and/or Section 3(a)(9) of the Securities Act. Each of the investors represented that it was an "accredited investor" as defined in Regulation D under the Securities Act.
In addition to the Share Exchange, as described in the accompanying prospectus, we have issued the following securities during the preceding three years that were not registered under the Securities Act of 1933. Each of the securities were offered and sold in transactions exempt from registration under the Securities Act, in reliance on Section 4(2) thereof and Rule 506 of Regulation D thereunder and/or Section 3(a)(9) of the Securities Act. Each of the investors represented that it was an "accredited investor" as defined in Regulation D under the Securities Act.
Restructuring of the Old Series B OfferingPreferred, Old Series C Preferred and Old Series D Preferred
On November 25, 2013,April 26, 2019, in connection with the Share Exchange, the Company commencedfiled Amendments to the Certificate of Designation After Issuance of Class or Series with the Secretary of State of the State of Nevada to amend the Certificates of Designation, Preferences, Rights and Limitations, as amended (each, a private offering“COD”), of up to 2.0 million sharesthe Company’s Old Preferred, consisting of Series B Convertible Preferred for $4.00Stock (“Old Series B Preferred”), Series C Convertible Preferred Stock (“Old Series C Preferred”) and Series D Convertible Preferred Stock (“Old Series D Preferred”) (the “Amendments”). Each of the CODs were amended to provide the Company with the right, at its election, to convert all of the issued and outstanding shares of Old Preferred into Common Stock, at a price of $0.25 per share in the case of the Old Series B Preferred, and $0.025 per share in the case of the Old Series C Preferred and Old Series D Preferred.
Immediately after effecting the Amendments, the Company provided each holder of the Old Series B Preferred, Old Series C Preferred and Old Series D Preferred with a Mandatory Conversion Notice, pursuant to which the Company converted all outstanding shares of the Old Preferred into an aggregate of 580,385,360 shares of common stock.
Settlement and Termination of Bottling Agreement
On April 5, 2018 (the “Effective Date”), the Company settled all amounts due under the terms of the Bottling Agreement with Niagara Bottling LLC (the “Bottler”), the Company’s contract bottling manufacturer at that time (the “Settlement”). Under the terms of the Settlement, the Bottler agreed to accept, among other things: (i) a promissory note in the principal amount of $4,644,906 (the “Principal Amount”), with a 5% per annum interest rate, to be compounded, annually (“Purchase PriceNote One”), (ii) a promissory note with a principal amount equal to the Outstanding Amount (“Note Two”), and five-year warrants(iii) a cash payment of $2,185,158 (the “Series BCash PaymentWarrants”).
The Principal Amount and all interest payments due under Note One shall be due and payable to the Bottler in full on or before the December 31, 2019 (the “Note Payment”). On January 14, 2019, the Company, its subsidiary, True Drinks, Inc. (“True Drinks”) and Red Beard entered into an Assignment and Assumption Agreement, pursuant to which the Company and True Drinks assigned, and Red Beard assumed, all outstanding rights and obligations of the Company and True Drinks under the terms of Note One. As a result, all obligations of the Company and True Drinks under Note One, including for the payment of amounts due thereunder, were assigned to Red Beard.
Note Two shall have no force or effect except under certain conditions and shall be reduced by any payments made to the Bottler under the terms of the Settlement. True Drinks and the Company shall be jointly and severally responsible for all amounts due, if any, under Note Two, which shall automatically expire and terminate on December 31, 2019.
In consideration for the guarantee of the Company’s obligations in connection with the Settlement, including as a joint and several obligor under the terms of Note One, the Company agreed to issue Red Beard 348,367,950 shares of the Company’s common stock (the “Shares”), which Shares were to be issued at such time as the Company amended its Articles of Incorporation to increase the number of authorized shares of Common Stock from 300.0 million to at least 2.0 billion (the “Amendment”), but in no event later than September 30, 2018. As a condition to the Company’s obligation to issue the Shares, Red Beard executed, and caused its affiliates to execute, a written consent of shareholders to approve the Amendment. On November 15, 2018, the Company amended its Articles of Incorporation to increase the number of authorized shares of Common Stock to 7.0 billion, thereby triggering the Company’s obligation to issue the Shares to Red Beard.
Food Labs Promissory Note
On September 18, 2018, the Company and Food Labs, Inc. (“Food Labs”) entered into an agreement, pursuant to which the Company sold and issued to Food Labs a promissory note in the principal amount of $50,000 (the “Food Labs Note”). The Food Labs Note (i) accrues interest at a rate of 5% per annum, (ii) includes an additional lender’s fee equal to $500, or 1% of the principal amount, and (iii) matures on December 31, 2019. Food Labs is controlled by Red Beard. The Company currently intends to borrow additional amounts from Red Beard, as more particularly set forth under “Red Beard Line-of-Credit” below, to pay Food Labs all amounts due Food Labs under the terms of the Food Labs Note.
Red Beard Line-of-Credit
On November 19, 2018, the Company entered into a line-of-credit with Red Beard, effective October 25, 2018, pursuant to which the Company may borrow up to $250,000 (the “Red Beard LOC”); provided, however, that Red Beard may, in its sole discretion, decline to provide additional advances under the Red Beard LOC upon written notice the Company of its intent to decline to make such advances. Interest shall accrue on the outstanding principal of amount of the Red Beard LOC at a rate of 8% per annum; provided, however, that upon the occurrence of an Event of Default, as defined in the Red Beard LOC, the accrual of interest shall increase to a rate of 10% per annum. Prior to December 31, 2019 (the “Maturity Date”), Red Beard has the right, at its sole option, to convert the outstanding principal balance, plus all accrued but unpaid interest due under the Red Beard LOC (the “Outstanding Balance”) into that number of shares of common stock equal to the Outstanding Balance divided by $0.005.
July 2017 Issuances of Senior Secured Promissory Notes
On July 26, 2017, the Company commenced an offering of Senior Secured Promissory Notes (the “SecuredNotes”), in the aggregate principal amount of up to $1.5 million to certain accredited investors (the “SecuredNote Financing”). As additional consideration for participating in the Secured Note Financing, investors received five-year warrants, exercisable for $0.30$0.15 per share, (the "Exercise Price"), to purchase that number of shares of the Company's Company’s common stock equal to 35%50% of the Purchase Price,principal amount of the Secured Note purchased, divided by the Exercise Price$0.15 per share (the “Series B OfferingWarrants”). As
The Secured Notes (i) bear interest at a rate of 8% per annum, (ii) have a maturity date of 1.5 years from the date of issuance, and (iii) are subject to a pre-payment and change in control premium of 125% of the date hereof,principal amount of the Secured Notes at the time of pre-payment or change in control, as the case may be. To secure the Company’s obligations under the Secured Notes, the Company will also grant to participating investors a continuing security interest in substantially all of the Company’s assets pursuant to the terms and conditions of a Security Agreement.
Over the course of the Secured Note Financing, the Company offered and sold Secured Notes in the aggregate principal amount of $2,465,000 and issued Warrants to purchase up to 8.2 million shares of common stock to participating investors.
Series D Offering
Beginning on February 8, 2017, the Company and certain accredited investors (the “Investors”) entered into a Securities Purchase AgreementsAgreement (the “PurchaseAgreement”), wherein the Company commenced an offering to Investors up to 50,000 shares of its Series D Convertible Preferred Stock (“Series D Preferred”) for $100 per share (the “Series D Offering”). As additional consideration, Investors also received five-year warrants (the “Warrants”), to purchase approximately 2.0 millionup to 200% of the conversion shares issuable upon conversion of shares of Series BD Preferred purchased under the Series D Offering for $0.15 per share. In accordance with the terms and Series B Warrants to purchase approximately 9.3 million shares of common stock.
Merriman Capital, Inc. (“Merriman”) acted as placement agent for the majorityconditions of the securitiesPurchase Agreement, all Warrants issued during the Series B Offering. As consideration for its services, Merriman received: (i) cash compensation totaling $523,250; (ii) five-year warrants to purchase 1,188,200 shares of common stock for $0.25 per share; and (iii) five-year warrants to purchase 346,560 shares of common stock for $0.30 per share. Candlewood Securities, Inc. (“Candlewood”) also acted as placement agent for a portion of the securities issued during the final closing of the Series B Offering, and received, as consideration for its services: (i) cash compensation totaling $53,550; (ii) five-year warrants to purchase 91,800 shares of common stock for $0.25 per share; and (iii) five-year warrants to purchase 26,775 shares of common stock for $0.30 per share (together, with the warrants issued to Merriman, the “Placement Agent Warrants”).
Inin connection with the Series BD Offering were exchanged for shares of common stock pursuant to the Warrant Exchange Program, as further described below.
During 2017, the Company issued an aggregate total of 45,625 shares of Series D Preferred, as well as warrants to purchase up to an aggregate total of 60,833,353 shares of Common Stock. The issuance of the shares of Series D Preferred during the year ended December 31, 2017 resulted in gross proceeds to the Company of $4.56 million.
Warrant Exchange
Beginning on February 8, 2017, the Company and certain holders (the “Note Holders”) of our outstanding convertible debt agreed to cancel such debt, totaling $739,706 in principal and accrued interest, in exchange for 205,476 Shares and Warrants to purchase 862,995 shares of common stock for $0.30 per share (the “Note Conversion”).
On November 29, 2013, the Company executed a Loan and Security Agreement, and other ancillary documents to receive a $2.0 million term loan from Avid Bank (the "Bank") (the "Term Loan"), which Term Loan will accrue interest at a rate of prime plus 2.75% and will mature on November 29, 2015. As additional consideration for the issuance of the Term Loan, the Company issued to the Bank a five-year warrant to purchase 200,000 shares of common stock for $0.30 per share.
Note Offering
On June 20, 2013 the Company commenced a private offering of: (i) convertible promissory notes (the “Notes”) in the aggregate principal amount of up to $3.3 million; and (ii) and five-year warrants to purchase shares of the Company’s common stock at an(the “Outstanding Warrants”), entered into Warrant Exchange Agreements (the “Exchange Agreement”), pursuant to which the Holders agreed to cancel all Outstanding Warrants held, in exchange for one-half of a share of Common Stock for every share of Common Stock otherwise issuable upon exercise price of $1.10 per shareOutstanding Warrants (the “WarrantsWarrant Exchange Program”) to certain accredited investors (the “Note Offering”). DuringOver the year ended December 31, 2013,course of the Warrant Exchange Program, the Company issued Notes79,040,135 shares of Common Stock, in the aggregate principal amount of $3,126,000, which amount included $600,000 issued as considerationexchange for the exchangecancellation of the outstanding principal and accrued interest of certain promissory notes previously issued by the Company.158,080,242 Outstanding Warrants.
Between October and May 2013,On April 13, 2016, the Company sold senior secured convertible notes (“Bridge Notes”)and Red Beard entered into a securities purchase agreement pursuant to a limited numberwhich Red Beard agreed to purchase an aggregate total of accredited investors in the aggregate principal amount of $2,119,000. The Bridge Notes carried an original term of 120 days, accrued interest at 9% per annum, earned a lender’s fee of 10% which was added to the principal of the note, earned a common stock award of 5,000 shares of common stock per $25,000 unit purchased, and the principal, interest and lender’s fee was convertible, at the option of the holder, into50,000 shares of the Company’s common stock at a priceSeries C Convertible Preferred Stock (“Series C Preferred”) for $100 per share over the course of $0.01two closings. The Company issued 25,000 shares of Series C Preferred to Red Beard on April 13, 2016. As additional consideration, investors will receive five-year warrants to purchase up to an aggregate total of approximately 33.3 million shares of Common Stock for $0.15 per share. CertainOn April 13, 2016, the Company issued to Red Beard warrants to purchase approximately 16.7 million shares of Common Stock.
On July 13, 2016, the notes Bridge Notessecurities purchase agreement was amended to modify the closing schedule for the remaining 25,000 shares of Series C Preferred to be purchased. As amended, 10,000 shares of Series C Preferred were extended to November 29, 2013.purchased on July 15, 2016, and the remaining 25,000 shares were purchased between August 31, 2016 and September 13, 2016.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits. The exhibits are incorporated by reference to the Exhibit Index attached hereto and a part hereof by reference.
(b) Financial Statements. See page F-1 for an index of the financial statements included in the Registration Statement.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by sectionSection 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20%20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, eachpurchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Registration Statement as of the date the filed prospectus was deemed part of and included in the Registration Statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering other than registration statements relying onmade pursuant to Rule 430B415(a)(1)(i), (vii), or other than prospectuses filed in reliance on Rule 430A,(x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statementRegistration Statement as of the earlier of the date itsuch form of prospectus is first used after effectiveness. effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the Registration Statement relating to the securities in the Registration Statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however,, that no statement made in a registration statement or prospectus that is part of the registration statementRegistration Statement or made in a document incorporated or deemed incorporated by reference into the registration statementRegistration Statement or prospectus that is part of the registration statementRegistration Statement will, as to a purchaser with a time of contract of sale prior to such first use,effective date, supersede or modify any statement that was made in the registration statementRegistration Statement or prospectus that was part of the registration statementRegistration Statement or made in any such document immediately prior to such date of first use.effective date.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act, of 1933as amended, may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange CommissionSEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit orsuitor proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine,Costa Mesa, State of California, on May 6, 2016.July 10, 2019.
| | | TRUE DRINKSCHARLIE'S HOLDINGS, INC. | |
| | | | |
| | | By: /s/ Kevin Sherman Brandon Stump Kevin ShermanBrandon Stump
Chief Executive Officer and Director (Principal Executive Officer) | |
Each person whose signature appears below appoints Brandon Stump and David Allen, and each of them, any of whom may act without the joinder of the other, as his true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any Registration Statement (including any amendment thereto) for this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them of their or his substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | | Title | | Date |
*/s/ Brandon Stump
Kevin ShermanBrandon Stump
| | Chief Executive Officer and Director (Principal (Principal Executive Officer) | | May 6, 2016 |
| | | | |
*
Daniel Kerker
| | Chief Financial Officer and Secretary (Principal Accounting Officer) | | |
| | | | | |
*/s/ Ryan Stump
Ramona CappelloRyan Stump
| | ChairmanChief Operating Officer and Director | | |
| | | | | |
*/s/ David Allen
Scot CohenDavid Allen
| | DirectorChief Financial Officer and Secretary (Principal Financial Officer) | | |
| | | | | |
*/s/ Scot Cohen
Neil LeVeckeScot Cohen
| | Director | | |
| | | | | |
* By: /s/ Keith Stump Kevin ShermanStump | | Director | | July 10, 2019 |
Attorney-in-fact | | | | |
INDEX TO EXHIBITS
| Exhibit No | | Description |
| | Agreement and Plan of Merger among Bazi International, Inc., Bazi Acquisition Sub, Inc., GT Beverage Company, Inc. and MKM Capital Advisors, LLC dated as of June 7, 2012, incorporated herein by reference from Exhibit 2.1 to the Current Report on Form 8-K filed on June 21, 2012. |
| | Articles of Incorporation, incorporated herein by reference from Exhibit 3.01 to Form SB-2 filed on February 27, 2001. |
| | Certification of Amendment to the Articles of Incorporation incorporated herein by reference tofrom Exhibit 3.1.1 filed withto Form 10-QSB filed on November 14, 2003. |
| | Amended and Restated By-laws filed with Form 10-KSB on March 3, 2005, as Exhibit 3.2, and incorporated herein by reference. |
| | Amendment to the Amended and Restated BylawsArticles of Bazi International,Incorporation of Charlie’s Holdings, Inc., incorporated by reference from Exhibit 3.1 to the Current Report on Form 8-K filed July 2, 2019.
|
| | Amended and Restated By-laws, incorporated herein by reference from Exhibit 3.2 to Form 10-KSB filed on March 3, 2005 |
| | Amendment to the Amended and Restated Bylaws of Bazi International, Inc., incorporated herein by reference from Exhibit 3.1 to the Current Report on Form 8-K filed on October 17, 2012.2012 |
| | Amended and Restated Articles of Incorporation filed withincorporated herein by reference from Exhibit 3.1 to the Current Report on Form 8-K filed on August 2, 2010 as Exhibit 3.1, and incorporated herein by reference. |
| | Certification of Amendment to the Article of Incorporation withincorporated herein by reference from Exhibit 3.1 to the Current Report on Form 8-K on filed May 20, 2011 as Exhibit 3.1, and incorporated herein by reference. |
| | Certificate of Amendment to the Articles of Incorporation, incorporated herein by reference from Exhibit 3.1 to the Current Report on Form 8-K filed on January 22, 2013. |
| | Certificate of Amendment to the Articles of Incorporation of True Drinks Holdings, Inc., dated February 6, 2014, incorporated herein by reference from Exhibit 3.1 to the Current Report on Form 8-K filed on February 6, 2014. |
| | Certificate of Amendment to the Articles of Incorporation of True Drinks Holdings, Inc., dated June 10, 2015, incorporated herein by reference from Exhibit 3.1 to the Current Report on Form 8-K filed on June 25, 2015. |
| | Amended and Restated By-laws, filed withincorporated herein by reference from Exhibit 3.2 to the Quarterly Report on Form 10-Q filed on August 13, 2015 as Exhibit 3.2, and incorporated herein by reference. |
| | Certificate of Amendment to the Articles of Incorporation of True Drinks Holding, Inc. dated December 30, 2015, incorporated herein by reference from Exhibit 3.1 to the Current Report on Form 8-K, filefiled on January 7, 2016. |
| | Certificate of Amendment of the Articles of Incorporation of True Drinks Holding, Inc. dated November 13, 2018, incorporated herein by reference from Exhibit 3.1 to the Quarterly Report on Form 10-Q filed on November 20, 2018. |
| | Certificate of Designation, Preferences, Rights and Limitations of Series A Convertible Preferred Stock of Bazi International, Inc., incorporated herein by reference from Exhibit 4.2 to the Current Report on Form 8-K filed on October 17, 2012.2012 |
| | Certificate of Withdrawal of the Series A Convertible Preferred Stock of True Drinks Holdings, Inc., dated February 18, 2015, incorporated by reference from Exhibit 3.3 to the Current Report on Form 8-K filed on February 23, 2015. |
| | Certificate of Designation, Preferences, Rights, and Limitations of Series B Convertible Preferred Stock of True Drinks Holdings, Inc., incorporated by reference from Exhibit 3.1 to the Current Report on Form 8-K, filed November 26, 2013. |
| | First Amended and Restated Certificate of Designation, Preferences, Rights and Limitations of the Series B Convertible Preferred Stock of True Drinks Holdings, Inc., dated February 18, 2015, incorporated by reference from Exhibit 3.2 to the Current Report on Form 8-K filed on February 23, 2015. |
| | Certificate of Designation, Preferences, Rights and Limitations of the Series C Convertible Preferred Stock of True Drinks Holdings, Inc., dated February 18, 2015, incorporated by reference from Exhibit 3.1 to the Current Report on Form 8-K filed on February 23, 2015. |
| | First Amended and Restated Certificate of Designation, Preferences, Rights and Limitations of the Series C Convertible Preferred Stock of True Drinks Holdings, Inc., dated March 26, 2015, incorporated by reference from Exhibit 4.1 to the Current Report on Form 8-K filed on April 1, 2015. |
| | Second Amended and Restated Certificate of Designation, Preferences, Rights and Limitations of the Series B Convertible Preferred Stock of True Drinks Holdings, Inc., dated August 12, 2015, incorporated herein by reference from Exhibit 3.1 to the Current Report on Form 8-K filed August 18, 2015 |
| | Amendment No. 1 to the Second Amended and Restated Certificate of Designation, Preferences, Rights and Limitations of the Series C Convertible Preferred Stock of True Drinks Holdings, Inc., dated November 24, 2015, incorporated herein by reference from Exhibit 4.1 to the Current Report on Form 8-K filed December 1, 2015. |
| | Third Amended and Restated Certificate of Designation, Preferences, Rights and Limitations of the Series BC Convertible Preferred Stock of True Drinks Holdings, Inc., dated April 13,12, 2016, incorporated herein by reference from Exhibit 4.1 to the Current Report on Form 8-K filed April 19, 2016 |
| | Certificate of Designation, Preferences, Rights and Limitations of the Series D Convertible Preferred Stock of True Drinks Holdings, Inc., dated January 24, 2017, incorporated herein by reference from Exhibit 4.1 to the Current Report on Form 8-K filed February 15, 2017 |
| | Second Amended and Restated Certificate of Designation, Preferences, Rights and Limitations of the Series B Convertible Preferred stock, dated April 26, 2019, incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K, filed August 19, 2015.April 30, 2019. |
| | OpinionFourth Amended and Restated Certificate of Disclosure Law Group
|
| | Employment agreement with Lance Leonard,Designation, Preferences, Rights and Limitations of the Series C Convertible Preferred stock, dated April 26, 2019, incorporated by reference to Exhibit 10.3 filed with3.2 to the AnnualCurrent Report on Form 10-K,8-K, filed April 5, 2013.
|
| | First Amended and Restated Certificate of Designation, Preferences, Rights and Limitations of the Series D Convertible Preferred stock, dated April 26, 2019, incorporated by reference to Exhibit 3.3 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Certificate of Withdrawal of the Series B Convertible Preferred Stock, dated April 26, 2019, incorporated by reference to Exhibit 3.4 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Certificate of Withdrawal of the Series C Convertible Preferred Stock, dated April 26, 2019, incorporated by reference to Exhibit 3.5 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Certificate of Withdrawal of the Series D Convertible Preferred Stock, dated April 26, 2019, incorporated by reference to Exhibit 3.6 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Certificate of Designations, Preferences and Rights of the Series A Convertible Preferred Stock, dated April 25, 2019, incorporated by reference to Exhibit 3.7 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock, dated April 26, 2019, incorporated by reference to Exhibit 3.9 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Form of Investor Warrant, dated April 26, 2019, incorporated by reference to Exhibit 3.8 to the Current Report on Form 8-K, filed April 30, 2019. |
| 5.1* |
| Opinion of Disclosure Law Group, a Professional Corporation |
| | Employment agreement with Dan Kerker, incorporated by reference to Exhibit 10.4 filed with the Annual Report on Form 10-K, filed April 5, 2013.2013 |
| | Employment agreement with Kevin Sherman, incorporated by reference from Exhibit 10.3 filed with the Annual Report on Form 10-K, filed March 31, 2014. |
| | Form of Securities Purchase Agreement, incorporated by reference from Exhibit 10.1 to the Current Report on Form 8-K, filed November 26, 2013. |
| | Loan and Security Agreement, by and between the Company and Avidbank, dated November 29, 2013, incorporated by reference from Exhibit 10.1
|
| | 2013 Stock Incentive Plan, incorporated by reference from Exhibit 10.17 to the Annual Report on Form 10-K, filed March 31, 2014. |
| | Secured Promissory Note issued on September 12, 2014 by True Drinks Holdings, Inc. to Scot Cohen, incorporated by reference from Exhibit 10.1 to the Current Report on Form 8-K, filed October 2, 2014.
|
| | Form of Secured Promissory Note, incorporated by reference from Exhibit 10.2 to the Current Report on Form 8-K, filed October 2, 2014.
|
| | Form of Securities Purchase Agreement, dated February 20, 2015, incorporated by reference from Exhibit 10.1 to the Current Report on Form 8-K, filed February 23, 2015. |
| | Form of Amendment No. 1 to Securities Purchase Agreement, dated March 27, 2015, incorporated by reference from Exhibit 10.1 to the Current Report on Form 8-K filed on April 1, 2015. |
| | Form of Common Stock Purchase Warrant, dated February 20, 2015, incorporated by reference from Exhibit 10.2 to the Current Report on Form 8-K, filed February 23, 2015. |
| | Form of Registration Rights Agreement, dated February 20, 2015, incorporated by reference from Exhibit 10.3 to the Current Report on Form 8-K, filed February 23, 2015. |
| | Form of Indemnification Agreement, dated February 20, 2015, incorporated by reference from Exhibit 10.4 to the Current Report on Form 8-K, filed February 23, 2015. |
| | Form of Note Exchange Agreement, dated March 27, 2015, incorporated by reference from Exhibit 10.2 to the Current Report on Form 8-K filed on April 1, 2015. |
| | Form of Securities Purchase Agreement, dated August 13, 2015 incorporated by reference from Exhibit 10.1 to the Current Report on Form 8-K, filed August 18, 2015. |
| | Form of Common Stock Purchase Warrant, dated August 13, 2015 incorporated by reference from Exhibit 10.2 to the Current Report on Form 8-K, filed August 18, 2015. |
| | Form of Registration Rights Agreement, dated August 13, 2015, incorporated by reference from Exhibit 10.3 to the Current Report on Form 8-K, filed August 18, 2015. |
| | Form of Senior Subordinated Secured Promissory Note, incorporated by reference from Exhibit 10.1 to the Current Report on Form 8-K, filed September 11, 2015. |
| | Form of Warrant, incorporated by reference from Exhibit 10.2 to the Current Report on Form 8-K, filed September 11, 2015. |
| | Employment Agreement, by and between the Company and Robert Van Boerum, dated September 9, 2015, incorporated by reference from Exhibit 10.3 to the Current Report on Form 8-K, filed September 11, 2015. |
| | Senior Secured Promissory Note, dated October 9, 2015, incorporated by reference from Exhibit 10.2 to the Current Report on Form 8-K, filed October 27, 2015. |
| | Personal Guaranty Warrant, dated October 9, 2015, incorporated by reference from Exhibit 10.3 to the Current Report on Form 8-K, filed October 27, 2015. |
| | Amendment No.1 to Securities Purchase Agreement, dated October 16, 2015, incorporated by reference from Exhibit 10.4 to the Current Report on Form 8-K, filed October 27, 2015. |
| | Amendment No. 1 to Registration Rights Agreement, dated October 16, 2015, incorporated by reference from Exhibit 10.5 to the Current Report on Form 8-K, filed October 27, 2015. |
| | Form of Securities Purchase Agreement, incorporated by reference from Exhibit 10.1 to the Current Report on Form 8-K, filed December 1, 2015. |
| | Form of Warrant, incorporated by reference from Exhibit 10.2 to the Current Report on Form 8-K, filed December 1, 2015. |
| | Form of Registration Rights Agreement, incorporated by reference from Exhibit 10.3 to the Current Report on Form 8-K, filed December 1, 2015. |
| | Employment Agreement, by and between True Drinks Holdings, Inc. and Kevin Sherman, dated November 25, 2015, incorporated by reference from Exhibit 10.4 to the Current Report on Form 8-K, filed December 1, 2015. |
| | Form of Note Exchange Agreement, incorporated by reference from Exhibit 10.29 to the Annual Report on Form 10-K, filed March 24, 2016. |
10.30 | | Form of Securities Purchase Agreement, dated April 13, 2016, incorporated by reference from Exhibit 10.1 to the Current Report on Form 8-K, filed April 19, 2016.2016 |
10.31 | | Form of Common Stock Purchase Warrant, dated April 13, 2016, incorporated by reference from Exhibit 10.2 to the Current Report on Form 8-K, filed April 19, 2016.2016 |
10.32 | | Debt Conversion Agreement by and between True Drinks Holdings, Inc. and Red Beard, LLC, dated April 26, 2019, incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Form of Amendment No. 1Exchange Agreement, dated April 26, 2019, incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Form of Registration Rights Agreement, dated April 13, 2016,26, 2019, incorporated by reference fromto Exhibit 10.3 to the Current Report on Form 8-K, filed April 19, 2016.30, 2019. |
| | Code of Ethics filed with Form 10-K on March 31, 2011Engagement Letter by and incorporated herein by reference.
|
| | Board Charter filed with Form 10-K on March 31, 2011 and incorporated herein by reference.
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| | Subsidiaries ofbetween True Drinks Holdings, Inc., Charlie’s Chalk Dust LLC and Katalyst Securities LLC, dated February 15, 2019, incorporated by reference fromto Exhibit 21.110.4 to the AnnualCurrent Report on Form 10-K,8-K, filed April 2, 2015.
|
| | Amendment to Engagement Letter, dated April 16, 2019, incorporated by reference to Exhibit 10.5 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Subscription Agreement, dated April 26, 2019, incorporated by reference to Exhibit 10.6 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Employment Agreement by and between True Drinks Holdings, Inc. and Brandon Stump, dated April 26, 2019, incorporated by reference to Exhibit 10.7 to the Current Report on Form 8-K, filed April 30, 2019. |
| | Employment Agreement by and between True Drinks Holdings, Inc. and Ryan Stump, dated April 26, 2019, incorporated by reference to Exhibit 10.8 to the Current Report on Form 8-K, filed April 30, 2019. |
| 23.1* | | Consent of Disclosure Law Group (included in Exhibit 5.1) |
| | Consent of Squar Milner LLP (formerly Squar, Milner, Peterson, Miranda & Williamson, LLP) |
| | Consent of Squar Milner LLP regarding the financial statements of True Drinks Holdings, Inc. (filed herewith) |
| | Power of Attorney incorporated by reference(included in signature page to Exhibit 24.1, filed with the Registration Statement on Form S-1, filed February 17, 2016registration statement) |
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* PreviouslyTo be filed by amendment.