UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
EXCHANGE ACT OF 1934
For the fiscal year ended
SECURITIES EXCHANGE ACT OF 1934
Commission file number:
(Exact name of registrant as specified in its charter)
| |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
|
|
|
|
| |
( | (Zip Code) |
Tel: (
Securities registered pursuant to Section 12 (b) of the Act:
Title of each class |
| KWIK |
| OTCQB |
None |
| None |
| None |
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.0001 per share
________________________
(Title of Class)
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined by Rule 405 of the Securities Act.
Yes ¨
1
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
Yes ¨
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the Registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
| Large accelerated filer | ¨ | Accelerated filer | ¨ |
| x | Smaller reporting company | ||
|
|
| Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the Company, based on the closing price of the shares of common stock on The Over the Counter Venture Market (“OTCQB”) on June 30, 2022, was $
2
TABLE OF CONTENTS
|
|
|
|
| Page |
PART I |
|
|
Item 1. | 4 | |
Item 1A. | 6 | |
Item 1B. | 26 | |
Item 2. | 26 | |
Item 3. | 26 | |
Item 4. | 26 | |
|
|
|
PART II |
|
|
Item 5. | 27 | |
Item 6. | 29 | |
Item 7. | Management’s Discussion and Analysis of Financial Condition and Results of Operations | 29 |
Item 7A. | 32 | |
Item 8. | 32 | |
Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure | 32 |
Item 9A. | 32 | |
Item 9B. | 33 | |
|
|
|
PART III |
|
|
Item 10. | 34 | |
Item 11. | 36 | |
Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters | 39 |
Item 13. | Certain Relationships and Related Transactions, and Director Independence | 41 |
Item 14. | 42 | |
|
|
|
PART IV |
|
|
Item 15. | 43 | |
Item 16. | 43 |
3
PART I
Cautionary Note Regarding Forward-Looking Statements
This Annual Report on Form 10-K for the fiscal year ended December 31, 2022 (the “Form 10-K”) contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, relating to our business and financial outlook, which are based on our current beliefs, assumptions, expectations, estimates, forecasts and projections about future events only as of the date of this Form 10-K, and are not statements of historical fact. We make such forward-looking statements pursuant to the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. These statements are often identified by the use of words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “project,” “will,” “would” or the negative or plural of these words or similar expressions or variations. Such forward-looking statements and forward-looking information are subject to a number of risks, uncertainties, assumptions and other factors that could cause actual results and the timing of certain events to differ materially from future results expressed or implied by the forward-looking statements or forward-looking information. Factors that could cause or contribute to such differences include, but are not limited to, those identified in this Form 10-K, and in our other SEC public filings. Therefore, these forward-looking statements are not guarantees or promises of our future performance and involve risks, uncertainties, estimates and assumptions that are difficult to predict. As a result, our actual outcomes and results may differ materially from those expressed in these forward-looking statements. You should not place undue reliance on any of these forward-looking statements. Further, any forward-looking statement speaks only as of the date hereof, unless it is specifically otherwise stated to be made as of a different date. We undertake no obligation to further update any such statement, or the risk factors described in Item 1A under the heading “Risk Factors,” to reflect new information, the occurrence of future events or circumstances or otherwise.
ITEM 1. BUSINESS.
KwikClick, Inc., (the Company) was organized pursuant to the laws of the State of Delaware on November 16, 1993. Beginning in 2020, the Company commenced its KwikClick business operations to allow sellers to make products or services available on the KwikClick platform, at Kwik.com, offering a self-determined discount on goods or services in exchange for exposure and substantially increased sales volume.
Competition
We directly or indirectly compete with online resellers across the Internet. Many of the resellers and companies have far greater financial, human, and technological resources that make competition with them a serious challenge for our company. We compete with “affiliate marketing”, which is a structure where influencers earn a percentage of sales by promoting products from others. Affiliate marketers can select a product that they have an affinity with, promote it to others, and earn a profit for each sale that they make. Like the KwikClick system, affiliate marketing allows for passive income, meaning the seller or influencer makes money even at times when the seller or influencer is not actively doing anything.
We also compete with companies that sell software and services to small businesses, enabling sellers to sell from their own website or otherwise run their business independently of our platform. We also compete with retailers for the attention of the buyer. A buyer has the choice of shopping with any online or offline retailer, whether large marketplaces or national retail chains or local consignment and vintage stores or other venues or marketplaces. The KwikClick platform will compete directly with shopping platforms such as Etsy, Wish, Amazon, Shopify and other e-commerce platforms where independent sellers may create their own shop or re-selling environment. To the degree KwikClick will offer a similar platform, direct competition exists. KwikClick may also be complimentary to each of these platforms as KwikClick may license the use of the app to store owners to offer commissions for referral marketing of influencers on Etsy, Amazon, etc. This licensing function may expand the revenue of KwikClick.
KwikClick also competes with the network marketing industry from a compensation standpoint earned from the sale of products. But unlike network marketing, the enrollment, recruiting, and the exclusive selling of specific products is not required in KwikClick making the earning of commissions potentially more likely. We intend to target representatives of network marketing companies who may choose to use the KwikClick platform to market to their network.
4
KwikClick will also compete with the social networking sites such as Facebook, TikTok, Byte, WeChat, Twitter, Instagram, etc. Finally, KwikClick will compete with common interest social platforms such as dating, and business networking sites.
Intellectual Property
Protection of our technology and intellectual property is an important component of our success. We rely on intellectual property laws, including patent, trade secret, copyright, and trademark laws in the United States. We also use confidentiality procedures, defensive licensing and acquisitions, non-disclosure agreements, invention assignment agreements, and other contractual rights to protect us and our intellectual property. We file patents and register domain names and trademarks in the United States. We rely upon unregistered copyrights and common law protection for certain trademarks.
Trademarks
The Company owns the URL “kwikclick.com”, which is the Company’s official Website. On September 17, 2020, the Company filed a trademark application with the United States Patent and Trademark Office for the name “KwikClick”, Serial #90189311. The trademark application seeks to protect use of the name “KwikClick” in connection with providing a website for connecting buyers and sellers of multi-level marketing goods and services; providing a website for connecting sellers with buyers; business consultancy; business sales management and marketing consulting services; consultancy services regarding business strategies; information, advisory, and consultancy services relating to business establishment, administration, and management; multi-level marketing services; multi-level marketing consulting services; business advisor and consultant services in the fields of business management and multi-level marketing; multi-level marketing business development services provided to independent sales consultants; providing organizational development consultancy; and providing a website featuring business information on multi-level marketing business services.
Patents
Ninety patent applications have been filed by, or on behalf of, the Company. Strategically, the purpose of the patent application filings is an attempt to protect the Company’s “first-mover” advantage and to hinder and/or exclude competing “me-too” products and reduce or deter industry competition. Recently, the Company was granted its first patent with the remainder currently pending approval. Furthermore, we may provide licensing to markets and products where we do not wish to directly operate. We have filed applications with the United States Patent and Trademark Office in connection with 35 inventions that we believe cover the base technology for our "single product tree" multi-level marketing method and many derivative inventions covering the related value chain. We believe that the inventions for which we seek patent protection span our unique KwikClick platform's various applications. Areas covered include using social media plug-ins for enhanced marketing, motivating and growth techniques, product ratings and recommendations, attaching KwikClick to other companies with multi-level sales compensation structures and other marketing portal connections such "as seen on TV" sales.
Other areas for which we are attempting to get patent protection include automation of areas such as enrollment, taxes, tracking distributors' profits, managing uplines and downlines, and managing warranties. We seek patent protection for potential connections to other business models such as other company websites, credit cards, franchises, frequent flier programs, lotteries, retail, online stores shopping carts, and referrals to banking. Although there are many tools to be built into the KwikClick platform, we are attempting to have our portfolio cover unique areas for customer sales support, such as suggestive selling and managing incentives and rewards for networks, allowing them to create unique bonus plans. We are seeking protections for inventions covering all aspects of AI/ML processing, security systems, and the "Hyperlink Data structure and messaging system," which we see as a foundation of using our wave compensation system. We have attempted to define the patents that we seek to cover our plan to allow distributors to integrate product information for their online marketing efforts. We also seek to protect methods to bring in and leverage "big influencers" in a product tree based on our wave compensation model.
We believe that the patent portfolio that we seek to be innovative. We believe that our founder’s experience in working with multi-level compensation companies and system designs has been important to our current portfolio.
5
We anticipate that Mr. Cooper will continue to develop other inventions in our space. In addition to our pending patent portfolio, we catalogued many trade secrets as well, to further enhance the portfolio, which may hinder other parties’ ability to reverse engineer our system. We believe that our portfolio will provide us with protection from competitors who attempt to copy our innovations. There is no assurance, however, as to whether or when the pending patent applications will result in the award of any patents.
Government Regulation
As with any company operating on the internet, we are subject to a growing number of local, national, and international laws and regulations. These laws are often complex, sometimes contradict other laws, and are frequently changing. Compliance is costly and can require changes to our business practices and significant amounts of management time and focus. Laws may be interpreted and enforced in different ways in various locations around the world, posing a significant challenge to our global business. For example, federal and state laws in the United States, and other national laws govern the processing of payments, consumer protection, and the privacy of consumer information; other laws define and regulate unfair and deceptive trade practices. Still other laws dictate when and how sales or other taxes must be collected. Laws of defamation apply online and vary by country. The growing focus on data privacy and regulation of e-commerce worldwide could impose additional compliance burdens and costs on us or on sellers and could subject us to significant operational costs for internal compliance and risk to our business. In addition, some of these requirements may introduce friction into the buying and selling experience on our platform and may impact the scope and effectiveness of our marketing efforts, which could negatively impact our business and future outlook. Additionally, in the event that we ever operate internationally, we will need to comply with various laws associated with doing business outside of the United States, including anti-money laundering, sanctions, anti-corruption, and export control laws. Non-compliance with any applicable laws and regulations could result in penalties or significant legal liability. See “Risk Factors—Regulatory, Compliance, and Legal Risks.”
ITEM 1A. RISK FACTORS.
Our business is subject to numerous risks and uncertainties. These risks and uncertainties may cause our operations to vary materially from those contemplated by our forward-looking statements. These risk factors include:
RISK FACTORS RELATING TO OUR COMPANY AND OUR STOCK
We are a developing company any only recently started generating revenue.
We are not an established company. We currently generate only small amounts of revenue from platform operations. Prior to that, our activities were substantially limited to development activities. Even though we have designed our platform, done much of the development and intellectual property protection work, we currently do not have a meaningful share of our market.
Our balance sheet is weak, and we lack liquidity
Our balance sheet is weak. There is no guarantee that we can obtain the funding needed for our operations and for acquisitions on acceptable terms, if at all, and neither our directors, officers, nor any third-party is obligated to provide any financing. A failure to pay our expenses when they become due and payable could materially adversely affect our Company and the trading price of our common stock.
We may not be profitable in the future
We have not been profitable during any of our years of operation. We face many risks that could prevent us from achieving profits in future years as well. There is no assurance that we will be profitable in the future. There is no assurance that any business that we develop, or acquisition we make, will be profitable. A failure to achieve profitability could materially adversely affect our Company and the trading price of our common stock.
6
Our common stock lacks a meaningful public market
At present, only a limited market exists for our common stock and there is no assurance that a regular trading market will develop and if developed, that it will be sustained. An owner of our common stock may, therefore, be unable to sell our common stock should he or she desire to do so. Or, if an owner of our common stock decides to sell our common stock, such sales could drive the price of our common stock significantly lower. Furthermore, it is unlikely that a lending institution will accept our common stock as pledged collateral for loans. This lack of liquidity could materially adversely affect our Company and the trading price of our common stock.
Our common stock may never be listed on a national exchange
Our common stock has been listed on the OTCQB exchange. It should not be assumed listing requirements under this or other exchanges will be maintained, including but not limited to requirements associated with maintenance of a minimum net worth, minimum stock price, and ability to establish a sufficient number of market makers.
Our common stock may be considered a “penny stock” and may be difficult to trade
The U.S. Securities and Exchange Commission (“SEC”) has adopted regulations which generally define “penny stock” to be an equity security that has a market or exercise price of less than $5.00 per share, subject to specific exemptions. The market price of our common stock may be less than $5.00 per share and, therefore, may be designated as a “penny stock” according to SEC rules. This designation requires any broker or dealer selling these securities to disclose certain information concerning the transaction, to obtain a written agreement from the purchaser, and to determine that the purchaser is reasonably suitable to purchase the securities. These rules may restrict the ability of brokers or dealers to sell our common stock and may adversely affect the ability of investors to sell our common stock and may materially adversely affect our business and the trading price of our common stock. For example, many brokers refuse to clear or trade in penny stocks. As part of a settlement with the SEC in September 2019, COR Clearing, a large clearing firm in the U.S., agreed to exit a key penny stock clearing business by significantly limiting the sale of penny stocks deposited at COR.
Our common stock lacks institutional or analyst support
Our Company lacks institutional support. In addition, investment banks with research capabilities do not currently follow our common stock. This lack of institutional or analyst support lessens the trading volume and general market interest in our common stock and may adversely affect an investor’s ability to trade a significant amount of our common stock. This lack of institutional or analyst support could materially adversely affect our Company and the trading price of our common stock.
The public float of our common stock is small
The public float of our common stock is small, which may limit the ability of some institutions to invest in our common stock. This lack of liquidity could materially adversely affect our Company and the trading price of our common stock.
The trading price of our common stock may be volatile and could drop quickly and unexpectedly
The stocks of micro-cap and small-cap companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macro-economic developments in North America and globally, and market perceptions of the attractiveness of particular industries. This volatility could materially adversely affect our Company by making it more difficult to raise capital or complete acquisitions. In addition, securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. Our Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert our management’s attention and resources away from our business. For these reasons and others, quick and unexpected drops in the trading price of our common stock are likely from time to time. Volatility in our common stock price could materially adversely affect our Company and the trading price of our common stock.
7
We have only recently commenced generating revenue. It may be difficult to predict our financial performance because our quarterly operating results may fluctuate
We have only recently commenced generating revenue. Our revenue and operating results may vary significantly from quarter to quarter due to a variety of factors, some of which may be beyond our control. Factors that may affect our quarterly operating results, especially if our revenues increase, may include, but are not limited to, the following: (1) fluctuations in customer demand for our products and services; (2) the timing and nature of future sales transactions and the accounting treatment with respect to customer contracts; (3) the timing and nature of future capital raises and acquisitions; (4) the introduction of (new) products or services and the market responses to those introductions; (5) customer budgetary pressures and the timing of availability of funding for purchases, or delays in processing or making payments for products or services that have been delivered; (6) changes in pricing policies or service offerings; (7) changes in the level of administrative costs, sales, marketing and other operating expenses to support future growth; (8) fluctuations in the cost of marketing and advertising; (9) competitive factors; (10) fluctuations in our common stock price which may impact the amount of stock-based compensation expense we are required to record; (11) possible impairments of the recorded amounts of goodwill, intangible assets, or other long-lived assets; (12) the timing and amount of expenses associated with future litigation or restructuring activities; (13) new accounting pronouncements, or new interpretations of existing accounting pronouncements, that impact the manner in which we account for, measure or disclose our results of operations, financial position or other financial measures; (14) deterioration in the credit quality of our accounts receivable; (15) disputes or disagreements with our customers; (16) changes in our customers’ strategies, budgets or priorities for developing, acquiring, deploying, or evaluating software or other technology; (17) new software or other technologies; (18) changes in laws, rules and regulations; (19) changes in our effective income tax rate; (20) costs related to the development or acquisition of software, other technology, or businesses; (21) increases in the costs of software licenses or other intellectual property-related costs; and (22) general economic conditions.
Consequently, period-to-period comparisons of our results of operations will not necessarily be meaningful, and you should not rely on period-to-period comparisons of our results of operations as an indication of our future performance. Our results of operations may fall below the expectations of acquisition candidates, of research analysts (if any), of investors, or of our own forecasts in some future periods, which may have a material adverse effect on our Company and the trading price of our common stock.
We are adversely affected by the difficult economy and by turmoil in the financial markets
Businesses are materially adversely affected by periods of significant economic slowdown or recession, fears of inflation or deflation, rising interest rates, declining demand for our products or our clients’ products, or a public perception that any of these events are occurring or may occur, which could adversely affect our revenues, results of operations, and cash flow. In addition, as to our acquisition strategies, the capital and credit markets have been experiencing, and continue to experience volatility and disruption. Current national and global financial and business conditions have been very difficult, and numerous financial institutions and businesses either have gone into bankruptcy or have had to be rescued by governmental authorities. Access to financing has been negatively impacted by both sub-prime mortgages and the liquidity crisis affecting the asset-backed commercial paper market. Credit remains tight. In many cases, the markets have exerted downward pressure on stock prices and credit capacity for certain issuers. These factors could materially adversely affect our Company and the trading price of our common stock.
We may not be able to raise needed capital
We need to raise substantial amounts of additional capital both for organic growth and for acquisitions. In addition, our aggregate future capital requirements are uncertain. The amount of capital that we will need in the future will depend on many factors that we cannot predict with any certainty, including the market acceptance of our products and services; the levels of promotion and advertising that will be required to launch our new products and services and achieve and maintain a competitive position in the marketplace; our business, product, capital expenditures and technology plans, and product and technology roadmaps; technological advances; our competitors’ responses to our products and services; our pursuit of mergers and acquisitions; and our relationships with our customers.
8
We cannot provide assurance that we will be able to raise the needed capital on commercially acceptable terms, or at all. Delay, disruption, or failure to obtain sufficient financing may result in the delay or failure of our business plans. Our inability to raise sufficient capital on commercially acceptable terms, or at all, could have a material adverse effect on our Company and the trading price of our common stock.
Our common stock is expected to be subject to significant dilution as a result of fund raising and issuance of employee, director and consultant incentive shares
We intend to raise money and incentivize employees, directors and consultants by issuing shares of our common stock. We are likely to issue significant numbers of shares of our common stock, or options, warrants, or other securities convertible into shares of our common stock, as a portion of the consideration for acquisitions. We are also likely to issue significant numbers of shares, options and/or warrants to our officers and directors. Such transactions may significantly increase the number of outstanding shares of our common stock and may be highly dilutive to our existing Stockholders. In addition, the securities that we issue may have rights, preferences or privileges senior to those of the holders of our outstanding common stock. If millions of options and warrants were to be exercised, the number of outstanding shares of our common stock would increase significantly. All of the foregoing stock issuance and resulting dilution of investor shares could have a material adverse and downward effect on our Company and the trading price of our common stock.
Raising capital by selling our common stock is difficult to accomplish
Selling equity can be difficult to accomplish for companies that are not traded on national exchanges such as Nasdaq or New York Stock Exchange, particularly for companies in the development stage. Our common stock is only traded on the over the counter “OTC” market. This difficulty caused by our OTC market status may make future acquisitions either unlikely or too difficult and expensive. This could materially adversely affect our Company and the trading price of our common stock.
Raising capital by selling our common stock could be expensive
If we were to raise capital by selling common stock or securities convertible into common stock, it could be expensive. We may be required to pay broker and other fees equal to 7%-10%, or more, of the gross sales proceeds, raised, in addition to legal, accounting and other fees and expenses. In addition, when it becomes known within the investment community that an issuer is seeking to raise equity capital, it is common for the common stock of that issuer to be sold off in the market, lowering the trading price of the issuer’s common stock in advance of the pricing of the issue. This could make raising capital by selling equity securities significantly more expensive and could materially adversely affect the trading price of our common stock.
Debt financing is difficult to obtain
Debt financing is difficult to obtain in the current credit markets. This difficulty may make future acquisitions either unlikely or too difficult and expensive. This could materially adversely affect our Company and the trading price of our common stock.
Raising capital by borrowing could be risky
If we were to raise capital by borrowing to fund our operations or acquisitions, it could be risky. Borrowing typically results in less dilution than in connection with equity financings, but it also would increase our risk, in that cash is required to service the debt, ongoing covenants are typically employed which can restrict the way in which we operate our business, and if the debt comes due either upon maturity or an event of default, we may lack the resources at that time to either pay off or refinance the debt, or if we are able to refinance, the refinancing may be on terms that are less favorable than those originally in place, and may require additional equity or quasi-equity accommodations. These risks could materially adversely affect our Company and the trading price of our common stock.
9
Our financing decisions may be made without Stockholder approval
Our financing decisions and related decisions regarding levels of debt, capitalization, distributions, acquisitions, and other key operating parameters, are determined by our board of directors in its discretion, in many cases without any notice to or vote by our Stockholders. This could materially adversely affect our Company and the trading price of our common stock.
We lack investor relations, public relations, and advertising resources
We lack the resources to properly support investor relations, public relations, and advertising efforts. This puts us at a disadvantage with potential acquisition candidates, investors, research analysts, customers, and job applicants. These disadvantages could materially adversely affect our Company and the trading price of our common stock.
Sales of our common stock could cause the trading price of our common stock to fall
Sellers of our common stock might include our existing stockholders who have held our common stock for years and may seek to simultaneously sell their shares of our common stock. Since the trading volume of our common stock is very low and the amount of our common stock in the public float is very small, any sales or attempts to sell our common stock, or the perception that sales or attempts to sell our common stock could occur, could adversely affect the trading price of our common stock.
An increase in interest rates may have an adverse effect on the trading price of our Stock
An increase in market interest rates may tend to make our common stock less attractive relative to other investments, which could adversely affect the trading price of our common stock.
Increases in taxes and regulatory compliance costs may reduce our revenue
Costs resulting from changes in or new income taxes, value-added taxes, service taxes, or other taxes, may not be able to be passed along to clients and consequently may adversely affect our margins. This could materially adversely affect our Company and the trading price of our common stock.
We are adversely affected by regulatory uncertainties
Regulatory uncertainties regarding potential adverse changes in federal and state laws and governmental regulations materially adversely affect our business, our clients’ businesses, and the trading price of our common stock.
A small number of stockholders have significant influence over us
A small number of our stockholders and members of our board of directors and management acting together would be able to exert significant influence over us through their ability to influence the election of directors and all other matters that require action by our Stockholders. The voting power of these individuals could have the effect of preventing or delaying a change in control of our Company which they oppose even if our other stockholders believe it is in their best interests. Fred W. Cooper owns 68,918,323 shares of our post-reverse split stock which constitutes 45.03% of our outstanding stock. As a result, Fred W. Cooper has substantial influence over our policies and management and at this time has practical, if not actual, control over the company. We may take actions supported by Fred W. Cooper that may not be viewed by some stockholders to be in our best interest, or Mr. Cooper could prevent or delay a change in our control which he opposes even if our other stockholders believe it is in their best interests. This could materially adversely affect our Company and the trading price of our common stock.
Retaining and attracting directors and officers may be expensive
We cannot make any assurances regarding the future roles of our current directors and chief executive officer. Some of our directors are and will in the future be involved in other businesses, and are not required to, and do not, commit their full time to our affairs, thereby causing conflicts of interest in allocating their time between our operations and the operations of other businesses. We have no employment agreements with any of our existing directors or chief
10
executive officer. Attracting and retaining our directors and officers may be expensive and may require that we enter into long-term employment agreements, issue stock options, and otherwise incentivize our directors and officers. The costs of these incentives could materially adversely affect our Company and the trading price of our common stock.
We indemnify our directors and officers, and certain other parties
Our bylaws specifically limit the liability of our chief executive officer and directors to the fullest extent permitted by law. As a result, aggrieved parties may have a more limited right to action than they would have had if such provisions were not present. The bylaws also provide for indemnification of our chief executive officer and directors for any losses or liabilities they may incur as a result of the manner in which they operated our business or conducted internal affairs, provided that in connection with these activities they acted in good faith and in a manner which they reasonably believed to be in, or not opposed to, our best interest. In the ordinary course of business, we also may provide indemnifications of varying scope and terms to customers, vendors, lessors, business partners, and other parties with respect to certain matters, including, but not limited to, losses arising out of our breach of such agreements, services to be provided by us, or from intellectual property infringement claims made by third parties. We may also agree to indemnify former officers, directors, and employees of acquired companies in connection with the acquisition of such companies. Such indemnification agreements may not be subject to maximum loss clauses. It is not possible to determine the maximum potential amount of exposure in regard to these obligations to indemnify, due to the limited history of prior indemnification claims and the unique facts and circumstances involved in each particular situation. Use of our capital or assets for such indemnification would reduce amounts available for the operations or for distribution to our investors, which could materially adversely affect our Company and the trading price of our common stock.
We do not expect to pay dividends
For the foreseeable future, it is anticipated that earnings, if any, which may be generated from our operations will be used to finance our growth and that dividends may not be paid to the holders of our common stock, which may have a material adverse effect on our Company and the trading price of our common stock.
Our cost of being a publicly traded company will increase significantly as our business operations expand
During the time that we were a shell corporation trading on the OTC Markets, our costs of being a publicly traded company have been relatively limited. However, if and when we expand our operations, our management expenses, legal and accounting fees, and other costs associated with being a publicly traded company, are likely to increase significantly. We expect these additional costs to continue. We will eventually need to hire additional qualified employees and/or additional consultants and professionals, in order to have appropriate internal financial controls and accurate financial reporting, and otherwise to comply with the requirements of the Sarbanes-Oxley Act. While we cannot state with certainty what all of these costs will be, we believe that our management expenses, legal and accounting fees, and other costs associated with being a publicly traded company, will increase.
RISK FACTORS RELATING TO THE ONLINE SALES AND NETWORK BUSINESS
Impact of the COVID-19 Pandemic on Our Business
The COVID-19 pandemic has prompted national, regional, and local governments, including those in the markets that the Company operates in, to implement preventative or protective measures to control its spread. As a result, there have been disruptions in business operations around the world. As our operations may largely be conducted remotely and are largely office and service work based and not involved in manufacturing or direct face to face client service contacts, we have not been impacted significantly by the COVID-19 pandemic.
While the Company will continue to navigate the financial, operational, and personnel challenges presented by the COVID-19 pandemic, the full impact of COVID-19 on our operational and financial performance will depend on future developments, including the duration and spread of the pandemic, the potential uncertainty related to (and proliferation of) new strains, and related actions taken by federal, state, local and international government officials, to prevent and manage the spread of COVID-19. All of these efforts are uncertain, out of our control, and cannot be predicted at this time.
11
If we experience a technology disruption or failure that results in a loss of information, if personal data or sensitive information about members of our community or employees is misused or disclosed, or if we or our third-party providers are unable to protect against software and hardware vulnerabilities, service interruptions, cyber incidents, ransomware, security incidents, or security breaches, then members of our community may curtail use of our platform, we may be exposed to liability or incur additional expenses, and our reputation could suffer.
Like all online services, we are vulnerable to power outages, telecommunications failures, and catastrophic events, as well as computer viruses, break-ins, phishing attacks, denial-of-service attacks, ransomware, and other cyber incidents. Any of these occurrences could lead to interruptions or shutdowns of our platform, loss of data, or unauthorized disclosure of personal or financial information of our members or employees. As we grow our business, expand internationally, and gain greater public visibility, we may face a higher risk of being targeted by cyber-attacks. Although we have integrated a variety of recovery systems, security protocols, network protection mechanisms and other security measures into our systems, networks and physical facilities, which are designed to protect against, detect and minimize security breaches, including security testing, encryption of sensitive information, and authentication technology, we cannot assure you that such measures will be adequate to prevent or detect service interruption, system failure, data loss or theft, or other material adverse consequences, particularly given the increasingly sophisticated tools and methods used by hackers, organized cyber criminals, and cyber terrorists.
In addition, in the future we may experience security breaches because of non-technical issues, including intentional, inadvertent, or social engineering breaches occurring through our employees or employees of our third-party service providers. In addition, if our employees or employees of our third-party service providers fail to comply with our internal security policies and practices, member or employee data may be improperly accessed, used, or disclosed.
Our security and access controls for our systems may not be adequate, which may heighten the risk of a cyber-attack or security breach. Among other things, our applications, systems, networks, software and physical facilities could have material vulnerabilities, be breached or the personal or confidential information that we store could be otherwise compromised due to employee error or malfeasance, if, for example, third parties attempt to fraudulently induce our employees or our members to disclose information or user names and/or passwords, or otherwise compromise the security of our networks, systems and/or physical facilities. Additionally, employees or service providers may inadvertently misconfigure resources or misdirect certain communications in manners that may lead to security incidents on which we must then expend effort and expenses to correct.
Due to the COVID-19 pandemic, as businesses move to online remote infrastructure for core work, we and our affiliates and sellers may be more vulnerable to cyber-attacks. Cyber-attacks could also result in the theft of our intellectual property or user data.
A successful cyber-attack could occur and persist for an extended period of time before being detected. Because the techniques used by hackers change frequently, we may be unable to anticipate these techniques or implement adequate preventive measures. In addition, because any investigation of a cybersecurity incident would be inherently unpredictable, the extent of a particular cybersecurity incident and the path of investigating the incident may not be immediately clear. It may take a significant amount of time before an investigation can be completed and full and reliable information about the incident is known. While an investigation is ongoing, we may not necessarily know the extent of the harm or how best to remediate it, certain errors or actions could be repeated or compounded before they are discovered and remediated, and communication to the public, regulators, members of our community, and other stakeholders may be inaccurate, any or all of which could further increase the costs and consequences of a cybersecurity incident. Applicable rules regarding how to respond, notice to users and reporting to regulators vary by jurisdiction, and may subject KwikClick to additional liability and reputational harm.
Our production systems are expected to increasingly rely on internal technology, along with cloud services and software provided by our third-party service providers. In the event of a cyber-incident, even partial unavailability of our production systems could impair our ability to serve our customers, manage transactions, or operate our marketplaces. We intend to implement disaster recovery mechanisms, including systems to back up key data and production systems, but these systems may be inadequate or incomplete. For example, these disaster recovery systems may be susceptible to cyber-incidents if not sufficiently separated from primary systems, not comprehensive, or not
12
at a scale sufficient to replace our primary systems. Insufficient production and disaster recovery systems could, in the event of a cyber-incident, harm our growth prospects, our business, and our reputation for maintaining trusted marketplaces.
The costs and effort to respond to a security breach and/or to mitigate any security vulnerabilities that may be identified could be significant, our efforts to address these problems may not be successful, and these problems could result in unexpected interruptions, delays, cessation of service, negative publicity, and other harm to our business and our competitive position. We could be required to fundamentally change our business activities and practices in response to a security breach or related regulatory actions or litigation, which could have an adverse effect on our business.
Cyber-attacks aimed at disrupting our and our third-party service providers’ services have occurred regularly in the past, and we expect they will continue to occur in the future. If we or our third-party service providers experience security breaches that result in marketplace performance or availability problems or the loss, compromise, or unauthorized disclosure of personal data or other sensitive information, or if we fail to respond appropriately to any security breaches that we may experience, people may become unwilling to provide us the information necessary to set up an account with us. Existing sellers and buyers may stop listing new items for sale, decrease their purchases, or close their accounts altogether. We could also face damage to our reputation, potential liability, regulatory investigations in multiple jurisdictions, and costly remediation efforts and litigation, which may not be adequately covered by insurance. Any of these results could harm our growth prospects, our business, and our reputation for maintaining trusted marketplaces.
We must rely on the security practices of third-party service providers, which may be outside of our direct control. Additionally, some of our likely third-party service providers, such as identity verification and payment processing providers, regularly have access to payment card information and other confidential and sensitive member data. We may have contractual and regulatory obligations to supervise the security and privacy practices of our third-party service providers. Despite our best efforts, if these third parties fail to adhere to adequate security practices or experience a cyber-attack such as a breach of their networks, our members’ data may be improperly accessed, used, or disclosed. More generally, our third-party service providers may not have adequate security and privacy controls, may not properly exercise their compliance, regulatory or notification requirements, including as to personal data, or may not have the resources to properly respond to an incident. Many of our service providers have moved to a remote work environment and may, as a result, be more vulnerable to cyber-attacks.
Our software may contain undetected errors.
The software underlying our platform is highly interconnected and complex and may contain undetected errors or vulnerabilities, some of which may only be discovered after the code has been released. Due to the interconnected nature of the software underlying our platform, updates to parts of our code, third-party code, and APIs, on which we rely and that maintain the functionality of our marketplaces and business, could have an unintended impact on other sections of our code, which may result in errors or vulnerabilities to our platform that negatively impact the user experience and functionality of our marketplaces. In some cases, such as our mobile apps, errors may only be correctable through updates distributed through slower, third-party mechanisms, such as app stores, and may need to comply with third-party policies and procedures to be made available, which may add additional delays due to app review and user delay in updating their mobile apps. Any errors or vulnerabilities discovered in our code after release could also result in damage to our reputation, loss of our community members, loss of revenue, or liability for damages, any of which could adversely affect our growth prospects and our business.
Our business, financial performance and growth depends on our ability to attract and retain an active and engaged community of buyers and sellers.
Our financial performance will be significantly determined by our success in attracting and retaining active buyers and active sellers. For example, our revenue is expected to be driven by the number of active buyers and buyer engagement, as well as the number of active sellers and seller engagement. If we are not successful in encouraging buyers to return to us and purchase items in our marketplaces more frequently and sellers to list items for sale and use our services, our financial performance may be negatively impacted.
13
Our revenue is expected to be concentrated in our most active buyers and sellers. If we are unable to attract and retain buyers and sellers who contribute to an active community, our business, financial performance, and growth could be harmed. The demand for the goods listed in our marketplaces is dependent on consumer preferences which can change quickly and may differ across generations and cultures, or due to other macro events. If demand for the goods that our sellers offer declines, we may not be able to attract and retain our buyers and our business could be harmed. If buyers do not find our platform appealing, whether because of a negative experience, lack of competitive shipping costs, delayed shipping times, inadequate customer service, lack of buyer-friendly features, declining interest in the nature of the goods offered by our sellers, or other factors, they may make fewer purchases and they may stop referring others to us. Likewise, if sellers are dissatisfied with their experience on our platform, or feel they have more attractive alternatives, they may stop listing items in our marketplaces and using our services and may stop referring others to us. Under any of these circumstances, we may have difficulty attracting new buyers and sellers without incurring additional expense.
Our business is expected to depend on third-party services and technology which we may utilize to maintain and scale the technology underlying our platform and our business operations.
Our business operations are expected to be dependent upon a number of third-party service providers, such as cloud service providers, marketing platforms and providers, and payments and shipping providers. Any disruption in their services, any failure on their part to deliver their services in accordance with our scale and expectations, or any failure on our part to maintain appropriate oversight on these third-party providers during the course of our engagement with them, could significantly harm our business.
We expect to be unable to exercise significant oversight over some of these providers, which will increase our vulnerability to their financial conditions and to problems with the services they provide, such as technical failures, deprecation of key services, privacy or security concerns. Our efforts to update our infrastructure or supply chain may not be successful as we may not sufficiently distribute our risk across providers or geographies or our efforts to do so may take longer than anticipated. If we experience failures in our technology infrastructure or supply chain or do not expand our technology infrastructure or supply chain successfully, then our ability to run our software and platform could be significantly impacted, which could harm our business.
Our business is expected to depend on continued and unimpeded access to third-party services, platforms and infrastructure that we rely upon to maintain and scale our platform.
Our sellers and buyers will rely on access to the internet or mobile networks to access our marketplaces. Internet service providers may choose to disrupt or degrade access to our platform or increase the cost of such access. Mobile network operators or operating system providers could block or place onerous restrictions on the ability to download and use our mobile apps.
Internet service providers or mobile network operators could also attempt to charge us for providing access to our platform. In addition, we could face discriminatory or anticompetitive practices that could impede both our and our sellers’ growth prospects, increase our costs, and harm our business.
Outside of the United States, it is possible that governments of one or more countries may seek to censor content available on our platform or may even attempt to block access to our platform. If we are restricted from operating in one or more countries, our ability to attract and retain sellers and buyers may be adversely affected and we may not be able to grow our business as we anticipate.
In addition, our sellers rely on continued and unimpeded access to postal services and shipping carriers to deliver their goods reliably and timely to buyers. As a result of the COVID-19 pandemic and other factors, our sellers have experienced increased delays in delivery of their goods. If these shipping delays continue or worsen, or if shipping rates increase significantly, our sellers may have increased costs, and/or our buyers may have a poor purchasing experience and may lose trust in our marketplaces, which could negatively impact our business, financial performance, and growth.
14
We may be unable to adequately protect our intellectual property.
Our intellectual property is an essential asset of our business. To establish and protect our intellectual property rights, we rely on a combination of trade secret, copyright, trademark, and patent laws, as well as confidentiality procedures and contractual provisions. The efforts we have taken to protect our intellectual property may not be sufficient or effective. We generally do not elect to register our copyrights, relying instead on the laws protecting unregistered intellectual property, which may not be sufficient. We intend to rely on both registered and unregistered trademarks, which may not always be comprehensive in scope. In addition, our copyrights and trademarks, whether or not registered, and patents may be held invalid or unenforceable if challenged and may be of limited territorial reach. While we have applied for patent protection with respect to some of our intellectual property, patent filings may not be adequate alone to protect our intellectual property. From time to time, we acquire intellectual property from third parties, but these acquired assets, like our internally developed intellectual property, may be held invalid, be unenforceable, or may otherwise not be effective in protecting our platform. We rely on trade secret protection for parts of our technology and intellectual property. To the extent we do seek patent protection, any U.S. or other patents issued to us may not be sufficiently broad to protect our proprietary technologies.
In addition, we may not be effective in policing unauthorized use of our intellectual property and authorized uses may not have the intended effect. Even if we do detect violations, we may need to engage in litigation or licensing to enforce our intellectual property rights. Any enforcement efforts we undertake, including litigation, could be time-consuming and expensive and could divert our management’s attention. In addition, our efforts may be met with defenses and counterclaims challenging the validity and enforceability of our intellectual property rights or may result in a court determining that our intellectual property rights are unenforceable. The legal framework surrounding protection of intellectual property changes frequently throughout the world, particularly as to technologies used in e-commerce, and these changes may impact our ability to protect our intellectual property and defend against third-party claims. If we are unable to cost-effectively protect our intellectual property rights, then our business could be harmed.
STRATEGIC RISKS RELATED TO OUR BUSINESS AND INDUSTRY
Our first significant customer base is expected to be through a group of network marketing companies which are subject to extensive regulation and scrutiny and any failure by these types of companies to comply with these regulations could materially harm our business, financial condition, and operating results.
We plan to enter into software license agreements with a group of network marketing companies making it a potentially significant, if not primary, source of revenue to us. The compensation practices of these direct-selling organizations are subject to a number of federal, state, and foreign regulations administered by the FTC and other federal, state, and foreign agencies. Regulations applicable to network marketing organizations generally are directed at preventing fraudulent or deceptive schemes, sometimes referred to as “pyramid” or “multi-level marketing” schemes, by ensuring that product sales ultimately are made to consumers and that advancement within an organization is based on genuine demands and sales of the organization’s products rather than investments in the organization or other non-retail sales-related criteria. For example, in certain foreign countries, compensation to distributors in the direct-selling industry may be limited to a certain percentage of sales.
The regulatory requirements concerning network marketing programs do not include “bright line” rules and are inherently fact-based and, thus, we are subject to the risk that these regulations or the enforcement or interpretation of these regulations by regulators or courts can change. Regulatory authorities also periodically review legislative and regulatory policies and initiatives and may promulgate new or revised regulations. For example, in 2018, the FTC released its nonbinding Business Guidance Concerning Multi-Level Marketing. The adoption of new regulations, or changes in the interpretations or enforcement of existing regulations, may result in significant compliance costs or require these companies to change or cease aspects of its network marketing program. In addition, the ambiguity surrounding these regulations can also affect the public perception of our company and our business. Allegations regarding the legality of network marketing programs have been raised against many companies in the past, which has often led to intense public scrutiny of the companies and the industry in general. The failure of network marketing company programs to comply with current or newly adopted laws, rules, and regulations, or any allegations or charges to that effect brought by federal, state, or foreign regulators, could have a material adverse impact these company’s business and in turn our business.
15
We face intense competition and may not be able to compete effectively.
Operating e-commerce related platforms or marketplaces is highly competitive, and we expect competition to increase in the future. To be successful, we need to attract and retain sellers and buyers. As a result, we face competition from a wide range of online and offline competitors.
We compete for sellers with marketplaces, retailers and companies that sell software and services to small businesses. For example, in addition to listing their goods for sale on KwikClick, KwikClick sellers can list their goods with other online retailers, such as Etsy, Amazon, eBay, Google, or Alibaba, or sell their goods through local consignment and vintage stores and other venues or marketplaces, including through commerce channels on social networks like Facebook, Instagram, and TikTok. They may also sell wholesale directly to traditional retailers, including large national retailers, who discover their goods in our marketplaces or otherwise.
We also compete with companies that sell software and services to small businesses, enabling a seller to sell from their own website or otherwise run their business independently of our platform, or enable them to sell through multiple channels, such as BigCommerce, Wix, and Shopify.
We compete to attract, engage, and retain sellers based on many factors, including:
•the value of our brand and its awareness.
•effectiveness of our marketing.
•the intended global scale of our marketplaces and the breadth of our online presence.
•our intended tools, education, and services, which support a seller in running their business.
•the number and engagement of buyers.
•our policies and fees.
•the ability of a seller to scale their business; and
•the strength of our seller and buyer community
In addition, we compete with retailers for the attention of buyers. A buyer has the choice of shopping with any online or offline retailer, including large e-commerce marketplaces, such as Etsy, Amazon, eBay, or Alibaba, national retail chains, such as Walmart, or Target, social commerce channels like Instagram or Facebook, event-driven platforms and vertical experiences like Zola and Wayfair, resale commerce and streaming video commerce sites and apps, and other venues or marketplaces. Many of these competitors offer low-cost or free shipping, fast shipping times, favorable return policies, and other features that may be difficult or impossible for our sellers to match. As pandemic-related restrictions on movement ease, competition may intensify as buyers return to traditional brick and mortar retail stores.
We compete to attract, engage, and retain buyers based on many factors, including:
•the breadth and quality of items that sellers list in our marketplaces.
•the value of our platform, its trust and awareness.
•the person-to-person commerce experience.
•customer service.
•our reputation for trustworthiness.
•the effectiveness of our mobile apps.
•ease of payment; and
•the availability and reliability of our platform.
Many of our competitors and potential competitors have longer operating histories, greater resources, better name recognition, or more customers than we do. They may invest more to develop and promote their services than we do, and they may offer lower fees to sellers than we do. Large, widely adopted platforms may benefit from significant user bases, access to user or industry-wide data, the ability to unilaterally set policies and standards, and control over complementary services such as fulfillment, advertising or on-platform apps or e-commerce transactions. To the extent
16
KwikClick and our sellers may rely on these competitors’ services, they may unintentionally reduce our ability to service our users, or intentionally seek to disintermediate the KwikClick platform.
We believe that it is, and that it should continue to be, relatively easy for new businesses to create online commerce offerings or tools or services that enable entrepreneurship. However, as the technology space is increasingly subject to regulation, there is a risk that legislation, and regulatory or competition inquiries, even if focused on large, widely adopted platforms, may inadvertently impede smaller platforms and small businesses, including us and our sellers. For example, legislation and inquiries may result in obligations with which only large platforms are situated to comply. If legislation or inquiries, even if focused on other entities, requires us to expend significant resources in response or results in the imposition of new obligations, our business and results of operations could be adversely affected.
Local companies or more established companies based in markets where we operate outside of the United States may also have a better understanding of local customs, providing them a competitive advantage. If we are unable to compete successfully, or if competing successfully requires us to expend significant resources in response to our competitors’ actions, our business and results of operations could be adversely affected.
If the widely adopted mobile, social, search, and/or advertising solutions that we, our sellers and our buyers rely on as part of our key offering are no longer available or effective, or if access to these major platforms is limited, the use of our marketplaces could decline.
Our business model is dependent on widely adopted third-party platforms to reach our customers, such as popular mobile, social, search and advertising offerings. If we are not able to deliver a rewarding experience on these platforms, or if our or our sellers’ access to these platforms is limited, or if these large platforms implement features that compete with us or our sellers, then our products and marketing efforts may suffer, and our sellers’ ability to manage and scale their business may be harmed. In addition, we may not be able to deliver a rewarding experience, we may have limited access to, or we may be unable to invest significant time and resources towards, integration with and offering our services through new or updated devices, operating system versions, and social networks. If our solutions and integrations are ineffective or unavailable, then our products and marketing efforts may suffer, and our sellers’ ability to manage and scale their business may be harmed. As a consequence, our sellers may choose to sell elsewhere, and our business may suffer.
The success of our marketplaces could also be harmed by factors outside our control, such as actions taken by providers of mobile and desktop operating systems, social networks, or search and advertising platforms, including:
•policy changes that interfere with, add tolls to, or otherwise limit our ability to provide users with a full experience of our platform, such as for our mobile apps or social network presence.
•unfavorable treatment received by our platform, especially as compared to competing platforms, such as the placement of our mobile apps in a mobile app download store.
•increased costs to distribute or use our platform via mobile apps, social networks, or established search and advertising systems.
•changes in mobile operating systems, such as iOS and Android, that degrade the functionality of our mobile website or mobile apps or that give preferential treatment to competitive products.
•changes to social networks that degrade the e-commerce functionality, features or marketing of us or our sellers’ shops and products; or
•implementation and interpretation of regulatory or industry standards by these widely adopted platforms that, as a side effect, degrade the e-commerce functionality, features or marketing of us or our sellers’ shops and products.
If sellers and buyers encounter difficulty accessing or using our marketplaces through these widely adopted access providers, our business, financial performance, and growth may be adversely affected.
17
Our marketing efforts to help grow our business may not be effective.
Maintaining and promoting awareness of our marketplaces and services is important to our ability to attract and retain sellers and buyers. One of the key parts of our strategy for the KwikClick marketplace is to bring more new buyers to the marketplace and create more habitual buyers by inspiring more frequent purchases across multiple categories and purchase occasions. We continue to conceptualize and develop our marketing strategies, which may not succeed for a variety of reasons, including our inability to execute and implement our plans.
Our marketing efforts are expected to include search engine optimization, search engine marketing, social media, mobile push notifications, and email marketing. If we fail to scale and deliver an effective return on investment in any of these marketing efforts, it may harm our business.
We obtain a significant number of visits via search engines such as Google. Search engines frequently change the algorithms that determine the ranking and display of results of a user’s search or make other changes to the way results are displayed, which can negatively affect the placement of links to our marketplaces and reduce the number of visits or otherwise negatively impact our marketing efforts.
We intend to attract customers via visits from social media platforms such as Facebook, Instagram, and Pinterest. Search engines, social networks, and other third parties typically require compliance with their policies and procedures, which may be subject to change or new interpretation with limited ability to negotiate, which could negatively impact our marketing capabilities (including marketing services for our sellers) and revenue. KwikClick-provided controls for users to limit third-party advertising features, the growing use of online ad-blocking software and technological changes to browsers and mobile operating systems, may impact the effectiveness of our marketing efforts because we may reach a smaller audience, fail to bring more buyers, or fail to increase frequency of visits to our platform. In addition, ongoing legal and regulatory changes in the data privacy sphere, such as the E.U. General Data Protection Regulation (“GDPR”) the California Consumer Privacy Act of 2018 (“CCPA”), and the California Privacy Rights Act of 2020 (“CPRA”), may impact the scope and effectiveness of marketing and advertising services generally, including those used on our platform.
We also may seek visits to our platform through email marketing. If we are unable to successfully deliver emails to our sellers and buyers, if our email subscription tools do not function correctly, or if our sellers and buyers do not open our emails, whether by choice, because those emails are marked as low priority or spam, or for other reasons, our business could be adversely affected. As e-commerce, search, and social networking, as well as related regulatory regimes, evolve, we must continue to evolve our marketing tactics and technology accordingly and, if we are unable to do so, our business could be adversely affected.
Some providers of consumer devices, mobile or desktop operating systems, and web browsers have implemented, or have announced plans to implement, ways to block tracking technologies which, if widely adopted, could also result in online tracking methods becoming significantly less effective. Similarly, our vendors, particularly those providing advertising and analytics products and services have, and may continue to, modify their products and services based on legal and technical changes relating to privacy in ways that could reduce the efficiency of our marketing efforts and our access to data about use of our platform. Any reduction in our ability to make effective use of such technologies could harm our ability to personalize the experience of buyers, increase our costs, and limit our ability to attract and retain our sellers and buyers on cost-effective terms. As a result, our business and results of operations could be adversely affected.
Enforcement of our marketplace policies may negatively impact our brand, reputation, and/or our financial performance.
We intend to develop, maintain and enforce policies that outline expectations for users while they engage with our services, whether as a seller, a buyer or a third-party. Additionally, we intend to prohibit a range of items on our marketplaces, including (but not limited to): drugs, alcohol, tobacco, weapons, endangered animal products, hazardous materials, recalled items, highly regulated items, items violating intellectual property rights of others, illegal products, pornography, items from federally sanctioned jurisdictions, hateful content, and items that promote or glorify violence.
18
We intend to enforce these policies in order to uphold the safety and integrity of our marketplaces, engender trust in the use of our services, and encourage positive connections among members of the community. We intend to attempt to enforce these policies in a consistent and principled manner that is transparent and explicable to stakeholders. However, policy enforcement is a combination of human and technological review. As a result, there could be errors, it could be subject to different or inconsistent regional consensus or regulatory standards in different jurisdictions, or it could be perceived to be arbitrary, unclear, or inconsistent. This could lead to negative public perception of our enforcement, distrust from members, or lack of confidence in the use of our services and could negatively impact our brand reputation. In particular, certain enforcement decisions, even those we deem necessary for the health and safety of our marketplaces, may be received negatively by stakeholders or the public. We may choose to limit or prohibit the sale of items in our marketplaces based on our policies, even though we could benefit financially from the sale of those items. From time to time, we may revise our policies in ways that we believe will enhance trust in our platform, even though the changes may be perceived unfavorably.
REGULATORY, COMPLIANCE, AND LEGAL RISKS
Failure to deal effectively with constantly evolving fraud or other illegal activity could harm our business.
We intend to adopt policies and procedures that are intended to ensure compliance with law, including, for example anti-corruption, anti-money laundering, export control, and trade sanctions requirements, and we have measures in place to detect and limit the occurrence of fraudulent and other illegal activity in our marketplaces, however, those policies, procedures, and measures may not always be effective. Further, the measures that we use to detect and limit the occurrence of fraudulent and other illegal activity must be dynamic and require significant investment and resources, particularly as our marketplaces increase in public visibility and size. Bad actors constantly apply continually evolving technologies and ways to commit fraud and other illegal activity, and regulations requiring marketplaces to detect and limit these activities are increasing. Our measures may not always keep up with these changes. If we fail to limit the impact of illegal activity in our marketplaces, we could be subject to penalties, fines, other enforcement actions and/or significant expenses and our business, reputation, financial performance, and growth could be adversely affected.
We rely upon third-party service providers to perform certain compliance services. If we or our service providers do not perform adequately, our compliance tools may not be effective, which could increase our expenses, lead to potential legal liability, and negatively impact our business.
Our brand may be harmed if third parties or members of our community use or attempt to use KwikClick as part of their illegal or unethical business practices.
Our emphasis on our mission and guiding principles makes our reputation particularly sensitive to allegations of illegal or unethical business practices by our sellers or other members of our community. We want our seller policies to promote legal and ethical business practices. KwikClick expects sellers to work only with manufacturers who comply with all applicable laws, who do not use child or involuntary labor, who do not discriminate, and who promote sustainability and humane working conditions. Although we seek to influence, we do not directly control our sellers, vendors, or other members of our community or their business practices and cannot ensure that they comply with our policies. If members of our community engage in illegal or unethical business practices, or are perceived to do so, we may receive negative publicity and our reputation may be harmed.
We may be subject to claims that items listed by sellers in our marketplace are counterfeit, infringing, illegal, harmful or otherwise violate our policies.
Items listed in our marketplaces may be accused of infringing upon third-party copyrights, trademarks, patents, or other intellectual property rights. We have intellectual property complaint and take-down procedures in place to address these communications, and we believe such procedures are important to promote confidence in our marketplaces, along with both proactive and reactive anti-counterfeiting measures that we intend to use and continue to develop. We follow these procedures to review complaints and relevant facts to determine the appropriate action, which may include removal of the item from our marketplaces and, in certain cases, closing the shops of sellers who violate our policies.
19
Our procedures may not effectively reduce or eliminate our liability. Our tools and procedures may be subject to error or enforcement failures and may not be adequately staffed, and we may be subject to an increasing number of erroneous or fraudulent demands to remove content. In addition, we may be subject to civil or criminal liability for activities carried out by sellers on our platform, especially outside the United States where laws may offer less protection for intermediaries and platforms than the United States.
Under current U.S. copyright laws such as the Digital Millennium Copyright Act § 512 et. seq., we may benefit from statutory safe harbor provisions that protect us from copyright liability for content posted on our platform by sellers and buyers, and we rely upon user content platform protections under 47 U.S.C. § 230 (commonly referred to as CDA § 230), that limits most non-intellectual property law claims against KwikClick based upon content posted by users on our platform. However, trademark and patent laws do not include similar statutory provisions, and limits on platform liability for these forms of intellectual property are primarily based upon court decisions. Similarly, laws related to product liability vary by jurisdiction, and the liability of marketplace platforms for products and services of sellers, while traditionally limited, is subject to increasing debate in courts, legislatures, and with regulators. These safe harbors and court rulings, including analogous ones in other state and international jurisdictions, may change unfavorably. Moreover, changes focused on actions by very large platforms that perform retailer-like functions may directly or indirectly also impact us, our sellers, buyers and vendors.
Proposed laws in Europe and the United States may change the scope of platform liability, and ongoing case law developments may unpredictably increase our liability as a platform for user activity. In that event, we may be held directly or secondarily liable for the intellectual property infringement, product compliance deficiencies, consumer protection deficiencies, privacy and data protection incidents, or regulatory issues of our sellers, including potentially for their conduct over which we have no control or influence.
Regardless of the validity of any claims made against us, we may incur significant costs and efforts to defend against or settle them. If a governmental authority determines that we have aided and abetted the infringement or sale of counterfeit, harmful or unlawful goods or if legal changes result in us potentially being liable for actions by sellers on our platform, we could face regulatory, civil, or criminal penalties. Successful claims by third-party rights owners could require us to pay substantial damages or refrain from permitting any further listing of the relevant items. These types of claims could force us to modify our business practices, which could lower our revenue, increase our costs, or make our platform less user-friendly. These claims, or legal and regulatory changes, could require the removal of non-infringing, lawful or completely unrelated content, which could negatively impact our business and our ability to retain sellers. Moreover, public perception that unlicensed, counterfeit, harmful or unlawful items are commonly offered by sellers in our marketplaces, even if factually incorrect, could result in negative publicity and damage to our reputation.
We may be involved in litigation and regulatory matters that are expensive and time consuming and that may require changes to our strategy, the features of our platform and/or how our business operates.
In addition to intellectual property claims, we may become involved in other litigation matters, including consumer protection, product liability, security and privacy, commercial, or shareholder derivative lawsuits, either individually or, where available, on a class-action basis. We may become subject to heightened regulatory scrutiny, inquiries, or investigations, including with respect to our sellers, vendors or third parties, relating to broad, industry-wide concerns, such as antitrust, product liability, and privacy, that could lead to increased expenses or reputational damage. For example, while we have stated on our platform that items offered by sellers on KwikClick, such as masks and hand sanitizers, are not medical-grade, and that our sellers cannot make substantive medical or health claims, we may nevertheless be subject to claims based in whole or in part on the actions of sellers in violation of that directive.
Under certain circumstances, we have contractual and other legal obligations to indemnify and to incur legal expenses on behalf of current and former directors, officers, and underwriters. Any lawsuit or regulatory action to which we are a party, with or without merit, may result in an unfavorable judgment. We also may decide to settle lawsuits or regulatory actions, even if non-meritorious, on unfavorable terms. Any such negative outcome could result in payments of substantial damages or fines, damage to our reputation, or adverse changes to our offerings or business practices. Any of these results could adversely affect our business. In addition, defending claims is costly and can impose a significant burden on our management.
20
We will attempt to limit certain claims against us under our Terms of Use, including through requirements for arbitration, limits on class actions, limitations of liability, venue selection, and indemnification requirements. These requirements may be subject to differing interpretations and legal frameworks in different U.S. federal, state, and foreign jurisdictions or courts, and may have reduced or no enforceability in some jurisdictions. If these claim limitations are unavailable to us, it could significantly increase our costs, require significant resources across multiple jurisdictions, result in complex or inconsistent decisions, and subject us to forum shopping by third parties seeking jurisdictions amenable to their claims.
Actions brought against us may result in lawsuits, enforcement actions, injunctions, settlements, damages, fines, or penalties, which could have a material adverse effect on our financial condition or results of operations or require changes to our business. Although we establish accruals for our litigation and regulatory matters in accordance with applicable accounting guidance when those matters proceed to a stage where they present loss contingencies that are both probable and reasonably estimable, there may be a material exposure to loss in excess of any amounts accrued, or in excess of any loss contingencies disclosed as reasonably possible. Such loss contingencies may not be probable and reasonably estimable until the proceedings have progressed significantly, which could take several years and occur close to resolution of the matter.
Expanding and evolving regulations in the areas of privacy and user data protection could create technological, economic and complex cross-border business impediments to our business and those of our sellers.
We collect, receive, store, process, generate, use, transfer, disclose, make accessible, protect, secure, dispose of and share personal information, confidential information and other potentially protected information necessary to provide our service, to operate our business, for legal and marketing purposes, and for other business-related purposes.
Data protection has become a significant issue in the United States, countries in the European Union, and in many other countries in which we operate. In addition to the actual and potential changes in law described elsewhere in these Risk Factors, global developments in privacy and data security regulations are changing some of the ways we, our sellers, our vendors and other third parties collect, use, and share personal information and other proprietary or confidential information. Compliance with these changing regulations have necessitated some specific product changes for our non-U.S. activities and required additional compliance obligations for us and for our relationships with sellers, vendors, and other third parties.
In the European Union, the GDPR contains strict requirements for processing the personally identifiable information of individuals residing in the European Economic Area (“EEA”), Switzerland and (in a form frozen as of December 31, 2020 and as further separately domestically amended), the United Kingdom. The GDPR seeks to harmonize the data protection regulations throughout these jurisdictions. The regulation contains numerous requirements and changes from previous E.U. law, including more robust obligations on data processors, greater rights for data subjects (requiring potentially significant changes to both our technology and operations), security and accountability obligations, and significantly heavier documentation and record-keeping requirements for data protection compliance programs. Specifically, the GDPR introduced numerous privacy-related changes for companies operating in the European Union, including greater control over personal data by data subjects (e.g., the “right to be forgotten”), increased data portability, access, and redress rights for E.U. consumers, data breach notification requirements, increased rules for online and email marketing, compliance requirements related to our sellers, vendors and third parties, and stronger regulatory enforcement regimes. The GDPR is subject to changing interpretations due to decisions of data protection authorities, courts, and related legislative efforts both E.U.-wide and in particular jurisdictions. The GDPR requirements apply to some third-party transactions (such as commercial contracts with partners and vendors) and to transfers of information between us and our subsidiaries, including user and employee information. GDPR requirements may also apply, depending on interpretation of its reach, to some users in our worldwide community of sellers. We may experience difficulty retaining or obtaining new E.U. sellers, or current and new sellers may limit their selling into the European Union, due to the legal requirements, compliance cost, potential risk exposure, and uncertainty for them in respect of their own compliance obligations with respect to GDPR. In addition, although our sellers are independent businesses, it is possible that a privacy authority could deem us jointly and severally liable for actions of our sellers or vendors, which would increase our potential liability exposure and costs of compliance, which could negatively impact our business. We could face potential liability, regulatory investigation, and costly litigation, which may not be adequately covered by insurance.
21
In the United States, rules and regulations governing data privacy and security include those promulgated under the authority of the Federal Trade Commission Act, the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, California’s CCPA (effective January 1, 2020) and CPRA (effective January 1, 2023), and other state and federal laws relating to privacy, consumer protection, and data security. The CCPA and CPRA introduce new requirements regarding the handling of personal information of California consumers and households, including compliance and record keeping obligations, the right to request access to and deletion of their personal information, and the right to opt out of the sale of their personal information and provides a private right of action and statutory damages for data breaches.
Other jurisdictions in the United States are beginning to expand existing regulations or propose laws similar to the CCPA. If more stringent privacy legislation arises in the United States, it could increase our potential liability and adversely affect our business, results of operations, and financial condition. Additionally, other countries outside of Europe have enacted or are considering enacting similar cross-border data transfer restrictions and laws requiring local data residency, and strict limitations to the processing of personal information, which could increase the cost and complexity of delivering our services and operating our business. In the past year, for example, Brazil recently enacted the General Data Protection Law, New Zealand recently enacted the New Zealand Privacy Act, China released its draft Personal Information Protection Law, and Canada introduced the Digital Charter Implementation Act.
GDPR, CCPA, and similar laws coming into effect in other jurisdictions may continue to change the data protection landscape globally, may be potentially inconsistent or incompatible, and could result in potentially significant operational costs for internal compliance and risk to our business. Some of these requirements may introduce friction into the buying and selling experience on our platform and may impact the scope and effectiveness of our marketing efforts, which could negatively impact our business and outlook. Beyond GDPR and CCPA/CPRA, individual jurisdictions continue to pass laws related to data protection, such as data privacy and data breach notification, resulting in a diverse set of requirements across states, countries, and regions. Non-compliance with these laws could result in proceedings against us by one or more data protection authorities, other public authorities, third parties, or individuals. Under GDPR alone, noncompliance could result in fines of up to 20 million Euros or up to 4% of the annual global revenue of the noncompliant company, whichever is greater. We may not be entirely successful in our compliance efforts due to various factors either within our control (such as limited internal resource allocation) or outside our control (such as a lack of vendor cooperation, new regulatory interpretations, or lack of regulatory guidance in respect of certain GDPR requirements).
In addition, E.U. data protection laws, including the GDPR, also generally prohibit the transfer of personal information from Europe to the United States and most other countries unless the recipient country has been deemed to have adequate privacy protections in place to protect the personal information. Parties transferring protected personal data to jurisdictions deemed inadequate must establish a legal basis for, and implement specific safeguards for, such intra-party or inter-party transfers. A recent judgment of the Court of Justice of the European Union found a common basis for such transfers, the E.U.-U.S. Privacy Shield, insufficient, and a parallel arrangement with Switzerland may similarly be deemed insufficient. While KwikClick did not rely upon Privacy Shield for cross-border transfers, Reverb previously had done so. While effective solutions may be available to permit these transfers, such as Standard Contractual Clauses (“SCCs”) continuing changes to the rules related to cross-border transfers may nonetheless impede KwikClick and Reverb’s ability to effectively transfer data between jurisdictions with parties such as partners, vendors and users, or may make such transfers of personal data more costly. Another recent decision and related European Commission guidance and updates to the SCCs may impose additional obligations on companies seeking to rely on the SCCs and may require significant expense and resources associated with compliance. For example, transfers with the United Kingdom might be deemed inadequate after its departure from the European Union and European Economic Area and require substantial expense and resources to comply with based upon adequacy mechanisms such as SCCs. Transfers by us or our vendors of personal information from Europe pursuant to SCCs may not comply with E.U. data protection law, may increase our exposure to the GDPR’s heightened sanctions for violations of its cross-border data transfer restrictions, and may result in lower sales on our platform because of difficulty of establishing a lawful basis for personal information transfers out of Europe.
Although we will endeavor to comply with our policies and documentation, we may at times fail to do so or may be perceived to have failed to do so. Moreover, despite our efforts, we may not be successful in achieving compliance, such as if our employees or vendors fail to comply with our published policies and documentation. Such failures can subject us to potential international, local, state, and federal action under both data protection and consumer protection
22
laws. We are or may also be subject to the terms of our own and third-party external and internal privacy and security policies, codes, representations, certifications, industry standards, publications and frameworks and contractual obligations to third parties related to privacy, information security, including contractual obligations to indemnify and hold harmless third parties from the costs or consequences of non-compliance with data protection laws or other obligations.
Our sellers and vendors may be subject to similar privacy requirements, which may significantly increase costs and resources dedicated to their compliance with such requirements. We may have contractual and other legal obligations to notify relevant stakeholders of security breaches related to us or, in some cases, our third-party service providers. Many jurisdictions have enacted laws requiring companies to notify individuals, regulatory authorities, and others of security breaches involving certain types of data. In addition, our agreements with certain stakeholders may require us to notify them in the event of such a security breach. Such mandatory disclosures, even if only related to actions of a third-party vendor, are costly, could lead to negative publicity, may cause our community members to lose confidence in the effectiveness of our security measures and require us to expend significant capital and other resources to respond to and/or alleviate problems caused by the actual or perceived security breach, and may cause us to breach customer contracts. Our contracts, our representations, or industry standards, may require us to use industry-standard or reasonable measures to safeguard sensitive personal information or confidential information. A security breach could lead to claims by our community members, or other relevant stakeholders that we have failed to comply with such legal or contractual obligations. As a result, we could be subject to legal action, or our community members could end their relationships with us. There can be no assurance that any indemnifications, limitations of liability or other remedies in our contracts would be enforceable or adequate or would otherwise protect us from liabilities or damages.
We may not have adequate insurance coverage for security incidents or breaches, including fines, judgments, settlements, penalties, costs, attorney fees and other impacts that arise out of incidents or breaches. If the impacts of a security incident or breach, or the successful assertion of one or more large claims against us that exceeds our available insurance coverage, is of a type not subject to insurance, or results in changes to our insurance policies (including premium increases or the imposition of large deductible or co-insurance requirements), it could have an adverse effect on our business. In addition, we cannot be sure that our existing insurance coverage, cyber coverage and coverage for errors and omissions will continue to be available on acceptable terms or that our insurers will not deny coverage as to all or part of any future claim or loss. Our risks are likely to increase as we continue to expand, grow our customer base, and process, store, and transmit increasingly large amounts of proprietary and sensitive data.
Our business and our sellers and buyers may be subject to evolving sales and other tax regimes in various jurisdictions, which may harm our business.
The application of indirect taxes, such as sales and use tax, value-added tax, provincial tax, goods and services tax, business tax, withholding tax, digital service tax, gross receipt tax, and tax information reporting obligations to businesses like ours and to our sellers and buyers is a complex and evolving issue. Significant judgment is required to evaluate applicable tax obligations and as a result amounts recorded are estimates and are subject to adjustments. In many cases, the ultimate tax determination is uncertain because it is not clear when and how new and existing statutes might apply to our business or to our sellers’ businesses. In some cases, it may be difficult or impossible for us to validate information provided to us by our sellers on which we must rely to ascertain any obligations that may apply to us related to our sellers’ businesses, given the intricate nature of these regulations as they apply to particular products or services and that many of the products and services sold in our marketplace are unique or handmade. If we are found to be deficient in how we have addressed our tax obligations, our business could be adversely impacted.
Various jurisdictions (including the U.S. states and E.U. member states) are seeking to, or have recently imposed additional reporting, record-keeping, indirect tax collection and remittance obligations, or revenue-based taxes on businesses like ours that facilitate online commerce. If requirements like these become applicable in additional jurisdictions, our business, collectively with KwikClick sellers’ businesses, could be harmed. For example, taxing authorities in many U.S. states and in other countries have targeted e-commerce platforms as a means to calculate, collect, and remit indirect taxes for transactions taking place over the internet, and have enacted laws and others are considering similar legislation. Such changes to current law or new legislation could adversely affect our business if the requirement of tax to be charged on items sold on our marketplaces causes our marketplaces to be less attractive to current and prospective buyers, which could materially impact our business and KwikClick sellers’ businesses. This
23
legislation could also require us or our sellers to incur substantial costs in order to comply, including costs associated with tax calculation, collection, remittance, and audit requirements, which could make selling on our marketplaces less attractive. Additionally, the European Union, certain member states, and other countries have proposed or enacted taxes on online advertising and marketplace service revenues. Our results of operations and cash flows could be adversely affected by additional taxes of this nature imposed on us prospectively or retroactively or additional taxes or penalties resulting from the failure to provide information about our buyers, sellers, and other third parties for tax reporting purposes to various authorities. In some cases, we also may not have sufficient notice to enable us to build solutions and adopt processes to properly comply with new reporting or collection obligations by the applicable effective date.
Our business is subject to a large number of U.S. and non-U.S. laws, many of which are evolving.
We are subject to a variety of laws and regulations in the United States and around the world, including those relating to traditional businesses, such as employment laws and taxation, and laws and regulations focused on e-commerce and online marketplaces, such as online payments, privacy, anti-spam, data security and protection, online platform liability, intellectual property, product liability, and consumer protection. In the event that we commence international operations, we will also need to comply with various laws associated with doing business outside of the United States, including anti-money laundering, sanctions, anti-corruption, and export control laws. In some cases, non-U.S. privacy, data security, consumer protection, e-commerce, and other laws and regulations are more detailed or comprehensive than those in the United States and, in some countries, are actively enforced.
These laws and regulations are continuously evolving, and compliance is costly and can require changes to our business practices and significant management time and effort. In some jurisdictions, these laws and regulations may be subject to attempts to apply such domestic rules world-wide against KwikClick or its subsidiaries, and occasionally may subject us to inconsistent obligations across jurisdictions.
Additionally, it is not always clear how existing laws apply to online marketplaces as many of these laws do not address the unique issues raised by online marketplaces or e-commerce. For example, as described elsewhere in these Risk Factors, laws relating to privacy are evolving differently in different jurisdictions. Federal, state, and non-U.S. governmental authorities, as well as courts interpreting the laws, continue to evaluate and assess the privacy requirements that are applicable to KwikClick.
New platform liability laws, potential amendments to existing laws, and ongoing regulatory and judicial interpretation of these laws imparting liability for conduct by users of a platform may create costs and uncertainty for both KwikClick and sellers on our platform. This may even be the case for new laws or regulations focused on other technology areas or other third parties that nonetheless indirectly or unintentionally impact us, our sellers or our vendors. For example, the European Union’s recent e-Copyright and Platform to Business directives, and pending Digital Services Act and Digital Markets Act, may impact us directly, as well as impacting our sellers and vendors. In addition, there have been various Congressional efforts to restrict the scope of the protections available to online platforms for third-party user content under intellectual property laws such as the Digital Millennium Copyright Act § 512 et. seq., or user content platform protections under 47 U.S.C. § 230 (commonly referred to as CDA § 230) and our current protections from liability for third-party content in the United States could significantly decrease or change. We could incur significant costs investigating and defending such claims and, if we are found liable, significant damages.
We may operate under an increasing number of regulatory regimes protecting us and our sellers and buyers worldwide, such as intellectual property and anti-counterfeiting laws, payments and taxation, competition, marketplace platform regulation, hate speech laws, and general commerce regulation. These laws, and court or regulatory interpretations of these laws, may shift quickly in the United States and worldwide. We may not have the resources or scale to effectively adapt to and comply with any changes to these regulatory regimes which may limit our ability to take advantage of the protections these regimes offer. In addition, some of these changes may be at least partially inconsistent with how our platform operates, especially if they are adopted in the context of, or in a manner best suited for, larger platforms, which may make it harder for us to utilize these regimes to protect our marketplaces. If we are unable to cost-effectively protect our platform, sellers and buyers under these regulatory regimes, such as if the regulations place requirements on our sellers that they find difficult or impossible to comply with, limit the functions or features our marketplace can offer, or require us to take actions at a scale inconsistent with the size, investment, and operation of our marketplace, our business could be harmed.
24
Existing and future laws and regulations enacted by federal, state, or non-U.S. governments or the inconsistent enforcement of such laws and regulations could impede the growth of e-commerce or online marketplaces, which could have a negative impact on our business and operations. Examples include data localization requirements, limitation on marketplace scope or ownership, intellectual property intermediary liability rules, regulation of online speech, limits on network neutrality, and rules related to security, privacy, or national security, which may impede us, our users, or our vendors. We could also face regulatory challenges or be subject to allegations of discriminatory or anti-competitive practices that could impede both our and our sellers’ growth prospects, increase our costs, and harm our business. We may be subject to regulatory requests for information or testimony related to regulatory challenges of third parties, such as our competitors or our vendors, which could cause us to incur significant costs and expend significant resources in response and could impact our relationship with those third parties.
We strive to comply with all applicable laws, but they may conflict with each other, and by complying with the laws or regulations of one jurisdiction, we may find that we are violating the laws or regulations of another jurisdiction. Despite our efforts, we may not have fully complied in the past and may not fully comply in the future, particularly where the applicable regulatory regimes have not been broadly interpreted. If we become liable under laws or regulations applicable to us, we could be required to pay significant fines and penalties, our reputation may be harmed, and we may be forced to change the way we operate. That could require us to incur significant expenses or to discontinue certain services, which could negatively affect our business.
Additionally, if third parties with whom we work violate applicable laws or our policies, those violations could result in other liabilities for us and could harm our business. Our ability to rely on insurance, or indemnification and other contractual remedies to limit these liabilities, may be insufficient or unavailable in some cases. Furthermore, the circumstances in which we may be held liable for the acts, omissions, or responsibilities of our sellers is uncertain, complex, and evolving. For example, certain laws have recently been enacted seeking to hold marketplaces like ours responsible for certain compliance obligations for which sellers have traditionally been responsible. If an increasing number of such laws are passed, the resulting compliance costs and potential liability risk could negatively impact our business.
We may be subject to intellectual property claims, which, even if untrue, could be extremely costly to defend, damage our brand, require us to pay significant damages, and limit our ability to use certain technologies in the future.
Companies on the internet and technology industries are frequently subject to litigation based on allegations of infringement or other violations of intellectual property rights. We periodically receive communications that claim we have infringed, misappropriated, or misused others’ intellectual property rights. To the extent we gain greater public recognition and scale worldwide, we may face a higher risk of being the subject of intellectual property claims. Third parties may have intellectual property rights that they claim cover significant aspects of our technologies or business methods and prevent us from expanding our offerings. Third parties may also allege a company is secondarily liable for intellectual property infringement, or that it is a joint infringer with another party, including claims that KwikClick is liable, either directly, indirectly, or vicariously, for infringement claims against sellers using KWIKClick’s platform, our vendors, or other third parties, and that statutory, judicial, or other immunities and defenses do not protect us. Any intellectual property claims against us, with or without merit, could be time consuming and expensive to settle or litigate and could divert the attention of our management. Litigation regarding intellectual property rights is inherently uncertain due to the complex issues involved, and we may not be successful in defending ourselves in such matters. For claims against us, insurance may be insufficient or unavailable, and for claims related to actions of third parties, either indemnification or remedies against those parties may be insufficient or unavailable.
Some of our competitors have extensive portfolios of issued patents. Many potential litigants, including some of our competitors, patent holding companies, and other intellectual property rights holders, have the ability to dedicate substantial resources to enforcing their perceived intellectual property rights. Any claims successfully brought directly against us or implicating us as part of an action against third parties, such as our sellers or vendors, could subject us to significant liability for damages, and we may be required to stop using technology or other intellectual property alleged to be in violation of a third-party’s rights in one or more jurisdictions where we do business. We also might be required to seek a license for third-party intellectual property. Even if a license is available, we could be required to pay significant royalties or submit to unreasonable terms, which would increase our operating expenses. We may
25
also be required to develop alternative non-infringing technology, which could require significant time and expense. If we cannot license or develop technology for any allegedly infringing aspect of our business, we would be forced to limit our service and may be unable to compete effectively. Any of these results could harm our business.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
ITEM 2. PROPERTIES
Our principal executive office is located at 585 West 500 South Suite 130, Bountiful, Utah 84010. The space is suitable for the conduct of our business and will be for the foreseeable future. The Company does not own or lease any real property.
ITEM 3. LEGAL PROCEEDINGS
From time to time, we may become involved in various lawsuits and legal proceedings which arise in the ordinary course of business. However, litigation is subject to inherent uncertainties, and an adverse result in these or other matters may arise from time to time that may harm our business.
Our primary source of revenue from the Kwik platform was from NewAge, Inc. through Software Licensing Agreement dated September 21, 2021. On August 30, 2022, NewAge filed for Chapter 11 bankruptcy in Delaware, Case #22-10819. As a part of that bankruptcy, on October 7, 2022, NewAge filed an adversary proceeding against KwikClick claiming that NewAge bought the source code upon which the KwikClick platform is allegedly built when NewAge purchased a company called Ariix, LLC in November 2020.
The specific causes of action against KwikClick include tortious interference with contractual relations, fraud (license agreement), breach of contract (license agreement), aiding and abetting a breach of fiduciary duty, violation of the Defend Trade Secrets Act, misappropriation of trade secrets, tortious interference with contractual relations, conspiracy, unjust enrichment, declaratory judgment, turnover (bankruptcy), avoidance (bankruptcy), constructive trust (bankruptcy) and fraudulent transfer (bankruptcy).
KwikClick vehemently disputes NewAge’s allegations, disputes that NewAge owns the source code upon which KwikClick is built, and seeks to vigorously defend itself and may file third party claims and counterclaims in connection with the litigation. As of April 12, 2023, NewAge has yet to serve KwikClick with the Complaint and has requested that the Court extend the time by which NewAge must serve the Complaint on KwikClick.
If KwikClick is unable to defend itself in the adversary proceeding, it is unlikely that the Company will be able to continue as a going concern. Other than the reference above, to the knowledge of management, no director or executive officer is party to any other action in which any party has an interest adverse to us.
ITEM 4. MINE SAFETY DISCLOSURES.
Not applicable.
26
PART II
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
Our common stock is currently quoted on the OTC Pink under the trading symbol “KWIK”. Trading in stocks quoted on the OTC Pink is often thin and is characterized by wide fluctuations in trading prices due to many factors that may have little to do with a company’s operations or business prospects. We cannot assure you that there will be a market for our common stock in the future.
For the periods indicated, the following table sets forth the high and low bid prices per share of common stock-based on inter-dealer prices, without retail mark-up, mark-down or commission and may not represent actual transactions.
Sales Prices (1) | ||||
|
| High |
| Low |
Year Ended December 31, 2022 |
|
|
|
|
4th Quarter |
| $5.15 |
| $1.50 |
3rd Quarter |
| $7.00 |
| $3.50 |
2nd Quarter |
| $3.50 |
| $3.50 |
1st Quarter |
| $3.50 |
| $1.11 |
|
|
|
|
|
Year Ended December 31, 2021 |
|
|
|
|
4th Quarter |
| $1.11 |
| $1.11 |
3rd Quarter |
| $1.11 |
| $1.11 |
2nd Quarter |
| $1.11 |
| $1.11 |
1st Quarter |
| $1.11 |
| $1.11 |
|
|
|
|
|
Year Ended December 31, 2020 |
|
|
|
|
4th Quarter |
| $80.00 |
| $1.11 |
3rd Quarter |
| $80.00 |
| $21.22 |
2nd Quarter |
| $21.22 |
| $21.22 |
1st Quarter |
| $21.64 |
| $21.22 |
|
|
|
|
|
(1)The above table sets forth the range of high and low closing sales prices per share of our common stock as reported by nasdaq.com for the periods indicated.
Holders
As of April 13, 2023, we had 149,442,605 shares of our Common Stock, par value $0.0001, issued and outstanding. There were 559 beneficial owners of our Common Stock.
Transfer Agent and Registrar
The transfer agent for our capital stock is Standard Registrar and Transfer Company, with an address of 440 East 400 South Suite 200, Salt Lake City, Utah 84111 with a telephone of (801) 571-8844.
Penny Stock Regulations
The Securities and Exchange Commission has adopted regulations which generally define “penny stock” to be an equity security that has a market price of less than $5.00 per share. Our Common Stock is currently within the definition of a penny stock and will be subject to rules that impose additional sales practice requirements on broker-dealers who sell such securities to persons other than established customers and accredited investors (generally those
27
with assets in excess of $1,000,000, or annual incomes exceeding $200,000 individually, or $300,000, together with their spouse).
For transactions covered by these rules, the broker-dealer must make a special suitability determination for the purchase of such securities and have received the purchaser’s prior written consent to the transaction. Additionally, for any transaction, other than exempt transactions, involving a penny stock, the rules require the delivery, prior to the transaction, of a risk disclosure document mandated by the SEC relating to the penny stock market. The broker-dealer also must disclose the commissions payable to both the broker-dealer and the registered representative, current quotations for the securities and, if the broker-dealer is the sole market-maker, the broker-dealer must disclose this fact and the broker-dealer’s presumed control over the market. Finally, monthly statements must be sent disclosing recent price information for the penny stock held in the account and information on the limited market in penny stocks. Consequently, the “penny stock” rules may restrict the ability of broker-dealers to sell our Common Stock and may affect the ability of investors to sell their Common Stock in the secondary market.
In addition to the “penny stock” rules promulgated by the Securities and Exchange Commission, the Financial Industry Regulatory Authority (“FINRA”) has adopted rules that require that in recommending an investment to a customer, a broker-dealer must have reasonable grounds for believing that the investment is suitable for that customer. Prior to recommending speculative low-priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information about the customer’s financial status, tax status, investment objectives and other information. Under interpretations of these rules, FINRA believes that there is a high probability that speculative low-priced securities will not be suitable for at least some customers. The FINRA requirements make it more difficult for broker-dealers to recommend that their customers buy our Common Stock, which may limit the investors’ ability to buy and sell our stock.
Dividend Policy
Any future determination as to the declaration and payment of dividends on shares of our Common Stock will be made at the discretion of our board of directors out of funds legally available for such purpose. We are under no contractual obligations or restrictions to declare or pay dividends on our shares of Common Stock. In addition, we currently have no plans to pay such dividends. Our board of directors currently intends to retain all earnings for use in the business for the foreseeable future.
Equity Compensation Plan Information
We offer stock options, stock appreciation rights, and stock awards to certain of our employees, including our executive officers, as the long-term incentive component of our compensation program. We may grant equity awards to new hires upon their commencing employment with us. Our stock options allow employees to purchase shares of our common stock at a price per share equal to the fair market value of our common stock on the date of grant and may or may not be intended to qualify as “incentive stock options” for U.S. federal income tax purposes. Our stock appreciation rights allow employees to receive a cash payment for the difference between the market price of our common stock on the date of exercise and the strike price. We sometimes also offer stock options, stock appreciation rights and stock awards to our consultants in lieu of cash. Our stock options allow consultants to purchase shares of our common stock at a price per share equal to the fair market value of our common stock on the date of grant and are not intended to qualify as “incentive stock options” for U.S. federal income tax purposes. Our stock appreciation rights allow consultants to receive a cash payment for the difference between the market price of our common stock on the date of exercise and the strike price. Stock options, stock appreciation rights, and stock awards granted to our executive officers may be subject to accelerated vesting in certain circumstances. Our Board of Directors adopted the 2021 Equity Incentive Plan to (1) encourage selected employees, officers, directors, consultants and advisers to improve our operations and increase our profitability, (2) encourage selected employees, officers, directors, consultants and advisers to accept or continue employment or association with us, and (3) increase the interest of selected employees, officers, directors, consultants and advisers in our welfare through participation in the growth in value of our common stock. All of our current employees, directors and consultants are eligible to participate in the 2021 Plan.
28
Purchases of Equity Securities by the Registrant and Affiliated Purchasers
Previously, all of the 100,000 designated shares of the Company’s Series B Super Voting Convertible Preferred Stock were held by Fred Cooper, our Founder. On or about September 21, 2021, Mr. Cooper tendered the 100,000 Shares for cancellation. Currently, there are no shares of Series B Super Voting Convertible Preferred Stock outstanding. We have not otherwise repurchased any shares of our common stock during the fiscal years ended December 31, 2022 or 2021.
Recent Sales of Unregistered Securities
During the quarter ended December 31, 2022, the Company issued 75,000 shares of common stock to a consultant for services performed between January 1, 2021 through September 30, 2022. The shares had a fair value of $100,000.
During the quarter ended December 31, 2022, the Company converted its loans from Fred Cooper, a majority shareholder, in exchange for a funding commitment for up to $2,000,000 and 20,000,000 shares of common stock.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This Management’s Discussion and Analysis (“MD&A”) section discusses our results of operations, liquidity and financial condition and certain factors that may affect our future results. You should read this MD&A in conjunction with our financial statements and accompanying notes included elsewhere in this report.
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our risk factors, financial statements and related notes that appear elsewhere in this Annual Report on Form 10-K. In addition to historical financial information, the following discussion contains forward-looking statements that reflect our plans, estimates and beliefs. Our actual results could differ materially from those discussed in the forward-looking statements. Risk factors that could cause or contribute to these differences include those discussed below and elsewhere in this Form 10-K.
INTRODUCTION
Management’s Discussion and Analysis (“MD&A”) of our financial condition and results of operations is provided as a supplement to the accompanying financial statements and related notes to help provide an understanding of our financial condition, the changes in our financial condition and the results of operations.
Overview
KWIKClick, Inc., a Delaware corporation. KWIKClick is a social interaction, selling, and referral software platform. Stores and manufacturers (“Brands”) wishing to promote their products or services on the KWIKClick software platform, pay nothing to use the platform, which connects them to promoters, influencers, and customers, all referred to as “affiliates”. The Brands establish an incentive budget, which is an amount discounted from their regular retail pricing, which is used by KWIKClick to entice users to promote a product or refer others to purchase a product. With no conditions such as follower size, invitation, or negotiation, any consumers or influencers who open a KWIKClick account and become users or affiliates, may receive a cash-back reward, paid from the Brand’s incentive budget administered by KWIKClick, for all purchases they make, and can immediately share their own automatically encoded link, associated with the product they purchased, to other consumers. Shared links that lead to a purchase and/or repurchases result in commission payments which are electronically paid to the referrer. When the Brand is paid for the consumer purchases through the KWIKClick platform, the Brand’s incentive budget is paid to KWIKClick. KWIKClick receives the entire incentive budget as revenue for generating the sales through its platform and recognizes cost of sales upon calculation and payment of the commissions paid to the wave of affiliates.
The essential driver of sales activity on the platform by sellers and buyers is the free-use mobile application which has the potential to turn all social media activity into a product solicitation on behalf of sellers in an unobtrusive manner. Furthermore, the software automates person-to-person requests for recommendations by simply sharing a link to any mobile device. Much like a “pin” can be sent to share locations, the encoded link provides to the requestor a way to
29
instantly purchase the goods or services of interest. Traditionally on other platforms, and based on the reach of a contracted influencer, compensation may include only a single commission paid for an initial purchase attributable to the influencer. Unique to KWIKClick, the affiliate commission program is not limited to a single purchase produced by an influencer. Furthermore, no contract is needed between the influencer and the seller. The KWIKClick software passively identifies the participant in the campaign who made the referral, and the corresponding individual who made the purchase. A commission is paid to the influencer each and every time a purchase is made by a particular consumer.
The process of listing items for sale by a seller is referred to as a campaign. Influencers or participants with ANY number of friends or followers, can join a campaign by promoting items through social media with an encoded link within the posted photo or video, or by sample sharing an encoded link to a mobile device when they are asked for a recommendation. The potential number of campaigns that can be created by sellers are virtually unlimited due to the number of goods or services and/or orders made available in the KWIKClick platform. The number of campaigns an individual can participate in is unlimited. The number of permutations, or waves, in the campaigns of senders and recipients is virtually endless. The potential length of the wave on any one campaign is limited only to the number of potential unique consumers of any given product. The number of waves on which an individual can earn commissions is based on the number of links an individual earns commissions on and the net dollar amount of total incentive budget offered by the seller. The larger the incentive budget, the greater number of waves on which individuals earn and the total amount of commissions earned at any given level in the wave follows an exponential growth pattern. Accordingly, a single social media post, sent to anyone, could go viral and create an exponential source of commissions on all units sold on any single product to any number of individuals as long as the product continues to be sold. Commissions are sent to the recipients electronic account of choice. Participation in KWIKClick and earning commissions from this incentive sharing is completely free to participants and completely voluntary. Participants have nothing financially at stake.
Unlike current methods of affiliate marketing which are based on a seller’s contracts with influencers which are motivated by an influencer’s number of followers, number of views, engagements etc., sellers on the KWIKClick application only pay commissions through the incentive budget they offer when a sale actually occurs. Further, sellers are provided key analytical information on purchases made, reviews, activity and purchasing habits of their customers from the data collected from use of the KWIKClick application.
The patent pending KWIKClick application and website are free to download, distribute and use. In any scenario, sellers and buyers all access the same KWIKClick platform.
Revenues
As of the date of the December 31, 2022 financial statements, the Company is in early stage revenue. The Company commenced revenue generation in September 2021 in connection with its software license with Newage Inc., a network marketing company. Despite the license agreement being the source of the Company’s initial revenues until July 2022, revenues hereafter are anticipated to be primarily sourced from the Company’s KwikClick platform. The Company is currently working with Shopify, which facilitates over $200 Billion Gross Merchandise Volume (GMV) annually for other ecommerce platforms. Once the Company integration with Shopify is fully approved, the Company will then initiate planned integrations with WooCommerce, BigCommerce, Magento and others. With these integrations, we believe the company will then be on track to generate positive cash flows and increasing profitability.
Operating Expenses
Operating expenses for the fiscal year ended December 31, 2022 were $4,619,470 as compared to $2,622,362 for the comparable prior period, an increase of $1,997,108 or 76%. The increase is primarily the result of a full year of expenses related to the approximately 35 employees and consultants. The employees and consultants worked on design and coding of our website, applications and platform, marketing, legal, accounting and typical general and administrative expenses in connection with running the business. The expenses in connection with the Company’s revenue source is expected to mostly consist of commission payments made to influencers, users and other affiliates of the Kwik platform. We anticipate operating expenses to continue at current levels through the first two quarters of 2023, then will accelerate to service an increase in revenues through the remainder of 2023.
30
Capitalized Patent Costs
Since KwikClick, LLC’s inception in 2020, the Company has spent considerable time and effort developing its intellectual property and developing its software platform. Throughout 2022, the most significant use of cash was for legal counsel, including patent and trademark counsel. Our patent counsel has prepared and filed dozens of patent applications, the purpose of which is to protect the Company’s “first-mover” advantage and to hinder and/or exclude competing “me-too” products and reduce or deter industry competition. Recently, the Company was granted its first patent with the remainder currently pending approval. Furthermore, we may provide licensing to markets and products where we do not wish to directly operate. We have filed applications with the United States Patent and Trademark Office in connection with 35 inventions that we believe cover the base technology for our "single product tree" multi-level marketing method and many derivative inventions covering the related value chain. We believe that the inventions for which we seek patent protection span our unique KwikClick platform's various applications. Areas covered include using social media plug-ins for enhanced marketing, motivating and growth techniques, product ratings and recommendations, attaching KwikClick to other companies with multi-level sales compensation structures and other marketing portal connections. We anticipate similar capital expenditures throughout the year ending December 31, 2023.
Liquidity and capital resources
As of December 31, 2022, we had cash and cash equivalents of $30,583 compared to $609,682 of cash at December 31, 2021. Most of the cash depletion in 2022 has been due to software and platform development payments as well as payments to our patent legal counsel. Based on currently available capital resources (cash), we estimate that we would not be able to conduct our planned operations without immediate additional funding. Our current “burn rate” of cash is approximately $275,000 per month, at which rate we cannot survive unless we increase revenues or obtain additional equity or debt financing. While our majority shareholder has committed to continue to provide funding for the foreseeable future, there is no assurance that we can increase revenues and/or obtain additional necessary financing, much less on reasonable terms.
Our current liabilities as of December 31, 2022, totaled $729,663, compared to $2,038,398 on December 31, 2021. If the Company doesn’t begin to generate sufficient revenue or raise additional funds through financing, the Company may need to incur additional liabilities with certain related parties to sustain the Company’s existence. Currently, there can be no assurance that the Company will be able to raise additional funds necessary to further develop or operate its business or that such funding can be at commercially reasonable terms.
We have historically been funded primarily from private placements of stock and loans from Company affiliates and may continue to be so funded for the foreseeable future. However, there is no assurance that we can obtain additional funds.
During the quarter ended December 31, 2022, the Company converted its loan principal of $1,459,489 and accrued interest payable of $20,250 totaling $1,479,739 owed to Fred Cooper, a majority shareholder, in exchange for a funding commitment for up to $2,000,000 and 20,000,000 shares. The shares were issued in December 2022, and the balance of $520,261 under the commitment was recorded as a subscription receivable at December 31, 2022. During the first quarter of 2023, Mr. Cooper funded the remainder of the Subscription Receivable in connection with the funding commitment also provided additional funding of $75,000 to the Company. In connection with the additional funding, the Company entered into a promissory note which will be subject to a security agreement that will require us to pledge our patents and other intellectual property as collateral for the loan. We believe that our patents and intellectual property are valuable assets and are important to our business operations. However, we have entered into this loan agreement in order to meet our financial obligations and to ensure that we have sufficient working capital to continue our operations. While we do not anticipate any default on the loan, in the event that we do default, Mr. Cooper may take possession of our intellectual property and patents. This could have a material adverse effect on our business and operations.
Management has determined that additional capital will be required in the form of equity or debt securities. There is no assurance that management will be able to raise capital on terms acceptable to the Company. If we are unable to obtain enough additional capital, we may have to cease filing the required reports and cease operations completely. If we obtain additional funds by selling any of our equity securities or by issuing common stock to pay current or future
31
obligations, the percentage ownership of our shareholders will be reduced, shareholders may experience additional dilution, or the equity securities may have rights preferences or privileges senior to the common stock.
Going Concern Risk
As reflected in the accompanying financial statements, the Company has a net loss of $3,946,791 for the year ended December 31, 2022. If the Company doesn’t begin to generate sufficient revenue or raise additional funds through financing, the Company may need to incur additional liabilities with certain outside and related parties to sustain the Company’s existence. The Company will require additional funding to finance the growth of its future operations as well as to achieve its strategic objectives. As a result of the Covid-19 crisis, the Company may experience difficulties in raising these funds due to economic impacts on funding sources. This raises substantial doubt about the Company’s ability to continue as a going concern. The ability of the Company to continue as a going concern is dependent on the Company’s ability to raise additional capital and generate revenue. The financial statements do not include any adjustments that might be necessary if the Company is unable to continue as a going concern.
Off-Balance Sheet Arrangements
There are no off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to investors.
Critical Accounting Estimates
Occasionally, the Company utilizes its shares to compensate certain employees and consultants to develop the KwikClick platform or provide other services to the Company. Due to the lack of an active trading market for the Company’s shares, it is difficult to measure the fair market value of shares issued for compensation. The Company carefully considers the price of the shares contemporary to the event of compensation and applies a reasonable valuation upon issuance.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
As a smaller reporting company, we are not required to provide the information required by this Item.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The full text of our audited financial statements as of December 31, 2022 and December 31, 2021 begins on page F-1 of this Form 10-K.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
Disclosure Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our filings under the Exchange Act is recorded, processed, summarized and reported within the periods specified in the rules and forms of the SEC. This information is accumulated to allow timely decisions regarding required disclosure. Our principal executive officer and principal financial officer evaluated the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report and he determined that our disclosure controls and procedures were ineffective due to material weaknesses discussed below.
The certificates of our principal executive officer and principal financial and accounting officer attached as Exhibits 31.1 and 31.2 to this Annual Report on Form 10-K include, in paragraph 4 of such certifications, information
32
concerning our disclosure controls and procedures, and internal control over financial reporting. Such certifications should be read in conjunction with the information contained in this Item 9A for a more complete understanding of the matters covered by such certifications.
Management’s Annual Report on Internal Control Over Financial Reporting
As required by the SEC rules and regulations for the implementation of Section 404 of the Sarbanes-Oxley Act, our management is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of our consolidated financial statements for external reporting purposes in accordance with GAAP. Our internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets, if any, of our company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of consolidated financial statements in accordance with GAAP, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on the consolidated financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect errors or misstatements in our consolidated financial statements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree or compliance with the policies or procedures may deteriorate. Management assessed the effectiveness of our internal control over financial reporting on December 31, 2022 and 2021. In making these assessments, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (2013 Framework) (COSO).
Based on our assessments and those criteria and on an evaluation under the supervision and with the participation of our management, our principal executive officer and principal financial officer have concluded that our internal controls over financial reporting as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act were not effective as of December 31, 2022 and 2021 to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act is (i) recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms and (ii) accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.
Based on this evaluation, our management concluded that, as of December 31, 2022, our internal control over financial reporting was not effective due to (i) insufficient segregation of duties in the finance and accounting functions due to limited personnel; and (ii) inadequate corporate governance policies. In the future, subject to working capital limitations, we intend to take appropriate and reasonable steps to make improvements to remediate these deficiencies.
This annual report on Form 10-K does not include an attestation report of our registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by our registered public accounting firm pursuant to Securities and Exchange Commission rules that permit us to provide only management’s report in this annual report.
Changes in Internal Control Over Financial Reporting
There have not been any changes in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) under the Exchange Act) during the fiscal period to which this report relates that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
ITEM 9B. OTHER INFORMATION
None.
33
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Executive Officers and Directors
The following table sets forth certain information regarding our current Directors and Executive Officers as of April 12, 2023:
Name |
| Age |
| Position |
Jeff Roberts |
| 43 |
| Director |
Dan Shaw |
| 73 |
| Director |
Robert Green |
| 66 |
| Director |
Brady Cooper (1) |
| 22 |
| Director and Corporate Secretary |
Matt Williams (2) |
| 49 |
| President, Principal Executive Officer |
Jeffrey Yates (3) |
| 60 |
| Chief Financial Officer, Principal Accounting Officer |
(1)Brady Cooper was appointed as Director and Secretary on September 1, 2022.
(2)Matt Williams was appointed as Principle Executive Officer on September 1, 2022.
(3)Jeffrey Yates was appointed as Chief Financial Officer and Principal Accounting Officer on October 1, 2022.
Our directors serve in such capacity until the next annual meeting of our shareholders and until their successors have been elected and qualified.
Jeff Roberts serves as a member of the board of directors. Since April 2016, Mr. Roberts has served as the Executive Vice President and Chief Financial Officer of Savage Services Corporation, a provider of a broad portfolio of services to move and manage critical materials through the US and the world. Prior to joining Savage, Mr. Roberts served as CFO of Maxum Enterprises, an integrated marine and land-based chemicals, petroleum, and lubricants supply company. In that role, he led the company’s Risk, Business Development, Corporate Finance, IT, Credit, Tax, Treasury, Collections, and accounting teams and served for seven months as interim President. Jeff previously was the Controller and Retail Division CFO at Flying J and worked in auditing positions with PRG Schultz and Ernst and Young. Originally from Pocatello, Idaho, Jeff earned a bachelor’s degree in accounting at Utah State University and a master’s degree in professional accountancy from Weber State University. He is a licensed Certified Public Accountant (CPA) in the State of Utah. Mr. Roberts is qualified to serve on the board of directors because of his significant financial and managerial experience with growing and large enterprises.
Dan Shaw serves as a member of the board of directors. For at least the past 30 years, Mr. Shaw has been a self-employed entrepreneur and investor. For at least the past five years, Mr. Shaw’s primary focus and revenue sources has been Impact Payment Systems, LLC, an on-line variable payment installment loan lender that Mr. Shaw was involved in acquiring nearly a decade ago through Integra Financial Service, LLC, an entity substantially owned and controlled by Mr. Shaw. Mr. Shaw has been recognized as the National Outstanding Citizen for his leadership in the parks and recreation Industry. He also holds membership in several prestigious organizations including Boy Scouts of America. An avid outdoorsman, Mr. Shaw competes as a rodeo “heeler” on a two-man roping team. He currently serves as the President and CEO of the Day of ‘47 Rodeo, a charitable organization. A former coach for the Junior Olympic Ski Team in Park City, Utah, Mr. Shaw began competitive snow skiing at the age of 12 and is still and active participant in the sport. Mr. Shaw is qualified to serve on the board of directors because of his significant business development and management experience.
Robert Green has served as a sales and customer service executive in numerous companies such as Apple Computer, Iomega, Compaq, Hewlett Packer, Ariix and PrenticeWorx. Mr. Green is qualified to serve on the board of directors because of his prolonged experience defining and enhancing the customer experience, particularly in the environment in which the Company is operating.
Brady Cooper is currently Vice President of Product at Kwik. His responsibilities include managing the entire product design for the users, brands and influencers which includes the development of specialized software and technology for the Company’s platform. Mr. Cooper also manages the development of the mobile app.
34
Mr. Cooper attended Utah State University, Jon M. Huntsman School of Business, where he studied business management and information systems. Mr. Cooper has built custom computers and was an IT Business Analyst. Mr. Cooper is qualified to serve on the board of directors because of his significant development expertise and his unique insight into our target customer demographic.
Matt Williams has served as President of KwikClick since September 2021. Prior to KwikClick, Mr. Williams served as president of Pro Star Logistics, Inc. which he co-founded in 2007. In 2017 Pro Star Logistics had reached over $90 million in annual revenue with more than 300 employees and merged with Visible Supply Chain Management. Following the merger, Mr. Williams led Pro Star Logistics, Inc.’s Logistics business unit to a doubling of profitability and supported Visible’s executive leadership as a member of the Corporate Executive Team. In 2019 Visible agreed to purchase Mr. Williams’ ownership interest and Mr. Williams transitioned to a consultative role with Pro Star Logistics, Inc., supporting the Visible team through 2020.
Mr. Williams serves in various philanthropic and professional roles including serving on the Board of Directors for Red Barn Academy (a non-profit residential treatment center), serving on an Advisory Board for School of Business at Weber State University, serving on the Board of Directors for TribeHouse (a professional networking company), and activity supporting investments as a Limited Partner in various venture funds. Prior to founding Pro Star Logistics, Mr. Williams gained experience in operational, sales, and leadership roles at UPS, 3Com, Iomega, US Express, Watkins Motor Lines, and FedEx. He holds a degree from Weber State University in Logistics and Operations Management. In 2013 Mr. Williams was named by Utah Business Magazine as one of their “40 under 40” business leadership award recipients. Mr. Williams is qualified to serve on the board of directors because of his significant experience with growing companies and public companies.
Jeffrey Yates has served as Chief Financial & Accounting Officer for KwikClick, Inc. since October 1, 2022. Previously, he was a co-founder of ARIIX, a global direct selling company operating in 29 countries with sales of $220M. In the past he also held the position of Chief Financial Officer & Vice President of USANA Health Sciences, Inc., Chief Financial Officer & Executive Vice President of Deseret Book Company, Chief Financial Officer for Franklin Covey Stores, and Senior Accountant at PriceWaterhouse LLP. He is a member of The American Institute of Certified Public Accountants and a member of the Utah Association of Certified Public Accountants. He received a Master of Accountancy and an undergraduate degree in management accounting from Brigham Young University. Mr. Yates is qualified to serve on the board of directors because of his extensive experience in corporate financial leadership in start-ups, emerging growth, and public companies.
Family Relationships
None.
Compliance with Section 16(a) of the Exchange Act
Section 16(a) of the Exchange Act, as amended, will require our executive officers and directors and persons who own more than 10% of a registered class of our equity securities to file with the Securities and Exchange Commission initial statements of beneficial ownership, reports of changes in ownership and annual reports concerning their ownership of our common stock and other equity securities, on Form 3, 4 and 5 respectively. Executive officers, directors and greater than 10% shareholders are required by the Securities and Exchange Commission regulations to furnish our company with copies of all Section 16(a) reports they file.
Board Committee
In October 2022, the Board adopted resolutions to form an Audit Committee and a Compensation Committee. The initial members of both committees consist of independent directors Jeff Roberts and Dan Shaw. Mr. Roberts was designated Chair of the Audit Committee and Mr. Shaw designated Chair of the Compensation Committee. Neither committee has adopted a charter and neither has started formal functions, The Company has yet to form a Nominating Committee. As the Company’s business expands, the directors will evaluate the necessity of forming additional committees and increasing the activities of the Audit and Compensation Committees.
35
Code of Ethics
The Company has not adopted a code of ethics to apply to its principal executive officer, principal financial officer, principal accounting officer and controller, or persons performing similar functions.
ITEM 11. EXECUTIVE COMPENSATION
Summary Compensation Table
Set forth below is information for the fiscal years indicated relating to the compensation of each person who served as our principal executive officer (the “Named Executive Officer”) during the past two fiscal years.
| Year | Salary ($)(1) | Bonus ($) | Stock Awards ($) | Option Awards ($) | Non-Equity Incentive Plan Compensation ($) | Non-Qualified Deferred Compensation Earnings ($) | All Other Compensation ($) | Total ($) |
Matt Williams | 2022 2021 | $- $- | $- $- | $666,667 $333,333 | $- $- | $- $- | $- $- | $100,000 $- | $666,667 $333,333 |
Jeffrey Yates | 2022 | $- | $- | $- | $- | $- | $- | $10,000 | $10,000 |
Brady Cooper | 2022 | $42,500 | $- | $- | $- | $- | $- | $- | $42,500 |
(1)Salaries include compensation received from the Company or its wholly owned subsidiary KWIKClick, LLC.
(2)Matt Williams was appointed as President of the Company on September 2, 2021. Mr. Williams was appointed as principal executive officer September 1, 2022. In May 2022, the Company issued 100,000 shares to Mr. Williams for a total value of $100,000 for the kwik.com domain which had been transferred to the Company in 2021.
(3)Jeffrey Yates was appointed Chief Financial Officer and PFO October 1, 2022.
(4) Brady Cooper was appointed as a Director and Corporate Secretary September 1, 2022.
36
DIRECTOR COMPENSATION
Our Board of Directors does not currently receive any cash consideration for their services as members of the Board of Directors. The Board of Directors receives stock-based consideration for their services to the Company. The Board of Directors reserves the right and intends in the future to award the members of the Board of Directors cash or additional stock-based consideration for their services to the Company, which awards, if and when granted shall be in the sole determination of the Board of Directors.
Name | Fees earned or paid in cash | Stock awards | Option awards | Non-equity incentive plan compensation | Change in pension value and nonqualified deferred compensation earnings | All other compensation | Total |
Daniel Shaw |
| $75,000 |
|
|
|
| $75,000 |
Jeff Roberts |
| $75,000 |
|
|
|
| $75,000 |
David Hunt |
| $75,000 |
|
|
|
| $75,000 |
On October 14, 2021, the Board unanimously adopted the following director incentives:
(1)The Company agreed to the issuance of 75,000 shares of KWIK common stock to three of the Company’s directors Daniel Shaw, Jeff Roberts and David Hunt as compensation for their Board Service.
Executive Compensation Philosophy
Our Board of Directors determines the compensation given to our executive officers in their sole determination. Our Board of Directors reserves the right to pay our executive or any future executives a salary, and/or issue them shares of common stock in consideration for services rendered and/or to award incentive bonuses which are linked to our performance, as well as to the individual executive officer’s performance. This package may also include long-term stock-based compensation to certain executives, which is intended to align the performance of our executives with our long-term business strategies. Additionally, while our Board of Directors has not granted any performance base stock options to date, the Board of Directors reserves the right to grant such options in the future, if the Board in its sole determination believes such grants would be in the best interests of the Company.
Incentive Bonus
The Board of Directors may grant incentive bonuses to our executive officer and/or future executive officers in its sole discretion, if the Board of Directors believes such bonuses are in the Company’s best interest, after analyzing our current business objectives and growth, if any, and the amount of revenue we are able to generate each month, which revenue is a direct result of the actions and ability of such executives.
Equity Awards
We offer stock options, stock appreciation rights, and stock awards to certain of our employees, including our executive officers, as the long-term incentive component of our compensation program. We may grant equity awards to new hires upon their commencing employment with us. Our stock options allow employees to purchase shares of our common stock at a price per share equal to the fair market value of our common stock on the date of grant and may or may not be intended to qualify as “incentive stock options” for U.S. federal income tax purposes. Our stock appreciation rights allow employees to receive a cash payment for the difference between the market price of our common stock on the date of exercise and the strike price. We sometimes also offer stock options, stock appreciation rights and stock awards to our consultants in lieu of cash. Our stock options allow consultants to purchase shares of our common stock at a price per share equal to the fair market value of our common stock on the date of grant and are not intended to qualify as “incentive stock options” for U.S. federal income tax purposes. Our stock appreciation rights allow consultants to receive a cash payment for the difference between the market price of our common stock on the
37
date of exercise and the strike price. Stock options, stock appreciation rights, and stock awards granted to our executive officers may be subject to accelerated vesting in certain circumstances.
No Tax Gross-Ups
We do not make gross-up payments to cover our executive officers’ personal income taxes that may pertain to any of the compensation paid or provided by our company.
2021 Equity Incentive Plan
Plan Purpose
Our Board of Directors adopted the 2021 Plan to (1) encourage selected employees, officers, directors, consultants and advisers to improve our operations and increase our profitability, (2) encourage selected employees, officers, directors, consultants and advisers to accept or continue employment or association with us, and (3) increase the interest of selected employees, officers, directors, consultants and advisers in our welfare through participation in the growth in value of our common stock. All of our current employees, directors and consultants are eligible to participate in the 2021 Plan.
Administration
The 2021 Plan is to be administered by the Board or by a committee to which administration of the Plan, or of part of thereof, is delegated by the Board. The 2021 Plan is currently administered by our Compensation Committee, which we refer to below as the “Administrator.” The Administrator is responsible for selecting the officers, employees, directors, consultants and advisers who will receive Options, Stock Appreciation Rights and Stock Awards. Subject to the requirements imposed by the 2021 Plan, the Administrator is also responsible for determining the terms and conditions of each Option and Stock Appreciation Right award, including the number of shares subject to the Option, the exercise price, expiration date and vesting period of the Option and whether the option is an Incentive Option or a Non-Qualified Option. Subject to the requirements imposed by the 2021 Plan, the Administrator is also responsible for determining the terms and conditions of each Stock Award, including the number of shares granted, the purchase price (if any), and the vesting, transfer and other restrictions imposed on the stock. The Administrator has the power, authority and discretion to make all other determinations deemed necessary or advisable for the administration of the 2021 Plan or of any award under the 2021 Plan.
Neither the Board nor any committee of the Board to which administration of the 2021 Plan is delegated will provide advice to participants about whether or not to accept or exercise their awards. Each participant must make his or her own decision about whether or not to accept or exercise an award.
The 2021 Plan is not subject to the Employee Retirement Income Security Act of 1974 and is not a qualified pension, profit sharing or bonus plan under Section 401(a) of the Internal Revenue Code.
Stock Subject to the 2021 Plan
Subject to the provisions of the 2021 Plan relating to adjustments upon changes in common stock, an aggregate of 890,000 shares of common stock is currently subject to outstanding awards under the 2021 Plan or future awards under the 2021 Plan.
If awards granted under the 2021 Plan expire or otherwise terminate or are cancelled without being exercised in full, the shares of common stock not acquired pursuant to such awards will again become available for issuance under the 2021 Plan. If shares of common stock issued pursuant to awards under the 2021 Plan are forfeited to or repurchased by us, the forfeited or repurchased stock will again become available for issuance under the 2021 Plan.
If shares of common stock subject to an award are not delivered to a participant because such shares are withheld for payment of taxes incurred in connection with the exercise of an Option, or the issuance of shares under a Stock Award, or the award is exercised through a reduction of shares subject to the award (“net exercised”), then the number of shares that are not delivered will not again be available for issuance under the 2021 Plan. In addition, if the exercise
38
price of any award is satisfied by the tender of shares of common stock to us (whether by actual delivery or attestation), the shares tendered will not again be available for issuance under the 2021 Plan.
Eligibility
All directors, employees, consultants and advisors of the Company and its subsidiaries are eligible to receive awards under the 2021 Plan. Incentive Options may only be granted under the 2021 Plan to a person who is a full-time officer or employee of the Company or a subsidiary. The Administrator will determine from time-to-time which directors, employees, consultants, and advisers will be granted awards under the 2021 Plan.
As of December 31, 2022, there were 0 shares previously issued or subject to outstanding awards under the 2021 Plan and 10,000,000 shares were available for future issuance under the 2021 Plan.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The following table sets forth certain information regarding the beneficial ownership of common stock of the Company by (i) each person who, to the Company’s knowledge, owns more than 5% of its common stock, (ii) each of the Company’s named executive officers and directors, and (iii) all of the Company’s named executive officers and directors as a group. Shares of the Company’s Common Stock subject to options, warrants, or other rights currently exercisable, or exercisable within 60 days of the date hereof, are deemed to be beneficially owned and outstanding for computing the share ownership and percentage of the person holding such options, warrants or other rights, but are not deemed outstanding for computing the percentage of any other person. As of the date hereof, the Company has 129,442,605 shares of common stock issued and outstanding.
Name | Number of | Beneficial | Options/ |
Fred W. Cooper (1) | 68,918,323 | 46.12% | - |
Matt Williams (2) | 1,100,000 | 0.74% | - |
Brady Cooper (3) | 4,030,000 | 2.70% | - |
Jeffrey Yates (4) | 100,000 | 0.07% | - |
Dan Shaw (5) | 107,504 | 0.07% | - |
Jeff Roberts (6) | 75,000 | 0.05% | - |
Wenhan Zhang (7) | 7,500,000 | 5.02% |
|
Cielo Family Heritage Trust (8) | 10,068,035 | 6.74% |
|
Total of All Officers, Directors, and Affiliates as a group (6 persons and/or entities) | 91,898,862 | 61.49% |
|
1.The address for Fred W. Cooper is 585 West 500 South, Bountiful, Utah 84010.
2.The address for Matt Williams is 585 West 500 South Suite 130, Bountiful, Utah 84010. Mr. Williams serves as the Company’s President.
3.The address for Brady Cooper is 585 West 500 South Suite 130, Bountiful, Utah 84010. Mr. Cooper serves as the Company’s Secretary.
4.The address for Jeffrey Yates is 585 West 500 South Suite 130, Bountiful, Utah 84010. Mr. Yates is the Chief Financial Officer and principal financial officer of the Company.
5.The address for Dan Shaw is 585 West 500 South Suite 130, Bountiful, Utah 84010. Mr. Shaw is a member of the Company’s Board of Directors and has beneficial ownership and/or voting control over 107,504 shares of the Company’s common stock. The common stock over which Mr. Shaw has voting control is held in various limited liability companies and trusts directly or indirectly controlled by Mr. Shaw.
6.The address for Jeff Roberts is 585 West 500 South Suite 130, Bountiful, Utah 84010. Mr. Roberts is a member of the Company’s Board of Directors
39
7.The address for Wenhan Zhang is 585 West 500 South Suite 130, Bountiful, Utah 84010 and is a shareholder of the Company.
8.The address for Cielo Family Heritage Trust is 585 West 500 South Suite 130, Bountiful, Utah 84010 and is a shareholder of the Company.
9.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 also includes shares of stock subject to options and warrants currently exercisable or exercisable within 60 days of the date of this table. In determining the percent of common stock owned by a person or entity as of December 31, 2022 (a) the numerator is the number of shares of the class beneficially owned by such person or entity, including shares which may be acquired within 60 days on exercise of warrants or options and conversion of convertible securities, and (b) the denominator is the sum of (i) the total shares of common stock outstanding as of the date of this Form 10, which is 149,442,605 shares, and (ii) the total number of shares that the beneficial owner may acquire upon exercise of the derivative securities. Unless otherwise stated, each beneficial owner has sole power to vote and dispose of its shares.
40
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE
Software Licensing and Exclusivity Agreement
Our primary source of revenue from the Kwik platform was from NewAge, Inc. through a Software Licensing Agreement dated September 21, 2021 and later terminated in July 2022.
Affiliate Loans and Defaults
We have been funded by loans from affiliates. During the quarter ended December 31, 2022, the Company converted its loan principal of $1,459,489 and accrued interest of $20,250 totaling $1,479,739 owed to Fred Cooper, a majority shareholder, in exchange for a funding commitment for up to $2,000,000 and 20,000,000 shares. The shares were valued at $0.10 per share. As of December 31, 2021, we had outstanding obligations due to Mr. Cooper totaling $34,489.
Review, Approval and Ratification of Related Party Transactions
Given our small size and limited financial resources, we have not adopted formal policies and procedures for the review, approval or ratification of transactions, such as those described above, with our executive officer(s), Director(s) and significant stockholders. We intend to establish formal policies and procedures in the future, once we have sufficient resources and have appointed additional Directors, so that such transactions will be subject to the review, approval or ratification of our Board of Directors, or an appropriate committee thereof. On a moving forward basis, our directors will continue to approve any related party transaction.
Indemnification of Directors and Officers
Our Certificate of Incorporation and Bylaws do not have any specific provisions relating to indemnification of our officers and directors. Without limiting the application of the foregoing, the Board of Directors may adopt bylaws from time to time with respect to indemnification, to provide at all times the fullest indemnification permitted by the laws of the State of Delaware, and may cause the Company to purchase and maintain insurance on behalf of any person who is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust, or other enterprise against any liability asserted against such person and incurred in any such capacity or arising out of such status, whether or not the Company would have the power to indemnify such person. The indemnification provided shall continue as to a person who has ceased to be a director, officer, employee, or agent, and shall inure to the benefit of the heirs, executors and administrators of such person.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
We have not entered into any agreements with our directors and executive officers that require us to indemnify these persons against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred (including expenses of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that the person is or was a director or officer of our Company or any of our affiliated enterprises. We do not maintain any policy of directors’ and officers’ liability insurance that insures its directors and officers against the cost of defense, settlement or payment of a judgment under any circumstances.
41
Director Independence
Our board of directors is currently composed of two members, both of whom could qualify as independent directors in accordance with the published listing requirements of the NASDAQ Global Market. The NASDAQ independence definition includes a series of objective tests, such as that the director is not, and has not been for at least three years, one of our employees and that neither the director, nor any of his family members has engaged in various types of business dealings with us. In addition, our board of directors has not made a subjective determination as to each director that no relationships exist which, in the opinion of our board of directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director, though such subjective determination is required by the NASDAQ rules. Had our board of directors made these determinations, our board of directors would have reviewed and discussed information provided by the directors and us with regard to each director’s business and personal activities and relationships as they may relate to us and our management.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
The Company has engaged Heaton & Company, PLLC (“Heaton”) as the Company’s independent registered public accounting firm.
The Company’s CEO signs engagement letters with Heaton before Heaton does any audit or tax-related work for the Company. Heaton was approved to provide audit services for the Company for the years ended December 31, 2022 and 2021. Heaton does not provide tax services for the Company.
The following describes the audit fees, audit-related fees, tax fees, and all other fees for professional services provided by Heaton:
For the year ended December 31, 2022: |
| For the year ended December 31, 2021: |
Audit Fees: $32,000 |
| Audit Fees: $32,000 |
Audit-Related Fees: None |
| Audit-Related Fees: None |
Tax Fees: None |
| Tax Fees: None |
All Other Fees: None |
| All Other Fees: None |
42
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
Financial Statements and Schedules
The financial statements are set forth under Item 8 of this Annual Report on Form 10-K. Financial statement schedules have been omitted since they are either not required, not applicable, or the information is otherwise included.
Exhibit List
The following Exhibits have been previously filed in the below referenced filings or have been attached hereto, and in any case, as is stated on the cover of this Report, all of the below Exhibits are incorporated herein by reference.
3.1* | |
3.2* | |
|
|
This Form |
|
10-K | April 12, 2023 |
31.1 | |
31.2 | |
32.1 | |
32.2 | |
|
|
101.INS | XBRL Instance Document* |
101.PRE | XBRL Taxonomy Extension Presentation Linkbase* |
101.LAB | XBRL Taxonomy Extension Label Linkbase* |
101.DEF | XBRL Taxonomy Extension Definition Linkbase* |
101.CAL | XBRL Taxonomy Extension Calculation Linkbase* |
101.SCH | XBRL Taxonomy Extension Schema* |
*Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed “furnished” and not “filed” or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933 or deemed “furnished” and not “filed” for purposes of Section 18 of the Securities and Exchange Act of 1934, and otherwise are not subject to liability under these sections.
*Filed with the Registration Statement Form 10-12(g) on September 30, 2021
ITEM 16. FORM 10–K SUMMARY
This Item is optional. We may provide summaries in future Form 10-K filings.
43
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
KwikClick, Inc.
By: /s/ Matt Williams
Matt Williams, President
Date: April 17, 2023
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
By: /s/ Matt Williams
Matt Williams, President
Principal Executive Officer
Date: April 17, 2023
By: /s/ Jeffrey Yates
Jeffery Yates, Chief Financial Officer
Principal Financial Officer
Date: April 17, 2023
By: /s/ Brady Cooper
Brady Cooper Secretary
Date: April 17, 2023
By: /s/ Daniel Shaw
Daniel Shaw
Director
Date: April 17, 2023
By: /s/ Jeff Roberts
Jeff Roberts
Director
Date: April 17, 2023
By: /s/ Robert Green
Robert Green
Director
Date: April 17, 2023
44
KWIKCLICK, INC. AND SUBSIDIARY KWIKCLICK, LLC.
INDEX TO THE CONSOLIDATED FINANCIAL STATEMENTS
45
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
KwikClick, Inc.
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of KwikClick, Inc. the Company) as of December 31, 2022, and 2021 and the related consolidated statements of operations, changes in stockholders’ equity (deficit) and cash flows for the years ended December 31, 2022 and December 31, 2021, and the related notes (collectively referred to as the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2022, and 2021 and the results of its operations and its cash flows for the years ended December 31, 2022 and December 31, 2021, in conformity with accounting principles generally accepted in the United States of America.
Consideration of the Company’s Ability to Continue as a Going Concern
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 3, the Company has not yet generated revenues sufficient to cover its operating expenses and has negative working capital. This and other factors raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also discussed in Note 3. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated 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 the 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 consolidated 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 consolidated 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 consolidated 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.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
F-1
Stock for Services and Compensation
As described in Note 5 to the consolidated financial statements, the Company issued common stock for services. Management establishes their estimate for the value of the stock for services using recent sales of common stock.
The principal considerations for our determination that performing procedures relating to stock for services is a critical audit matter are due to the material impact it has on the consolidated financial statements.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included, among others, evaluating the reasonableness of the historical sales of stock used by management to determine the expense related to stock for services.
/s/ Pinnacle Accountancy Group of Utah
We have served as the Company’s auditor since 2021
(a dba of Heaton & Company, PLLC)
April 12, 2023
F-2
KWIKCLICK, INC
CONSOLIDATED BALANCE SHEETS
| December 31, |
| December 31, | ||
2022 |
| 2021 | |||
ASSETS |
|
|
|
| |
Current assets: |
|
|
|
|
|
Cash and cash equivalents | $ |
|
| ||
Total current assets |
|
|
| ||
|
|
|
|
|
|
Equipment, net |
|
|
| ||
Intellectual property, net |
|
|
| ||
Right of use asset |
|
|
| ||
Total assets | $ |
|
| ||
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS' DEFICIT |
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
Accounts payable | $ |
|
| ||
Accrued liabilities |
|
|
| ||
Lease obligation |
|
|
| ||
Shareholder loans |
|
|
| ||
Stock issuable |
|
|
| ||
Total current liabilities |
|
|
| ||
Long-term liabilities: |
|
|
|
|
|
Lease obligation, net of current portion |
|
|
| ||
Total liabilities |
|
|
| ||
|
|
|
|
|
|
Stockholders' deficit |
|
|
|
|
|
Preferred stock, $ |
|
|
| ||
Common stock, $ |
|
|
| ||
Additional paid-in-capital |
|
|
| ||
Subscription receivable |
| ( |
|
| |
Accumulated deficit |
| ( |
|
| ( |
Total stockholders' deficit |
|
|
| ( | |
Total liabilities and stockholders' deficit | $ |
|
| ||
The accompanying footnotes are an integral part of these consolidated financial statements
F-3
KWIKCLICK, INC
CONSOLIDATED STATEMENTS OF OPERATIONS
|
| For the Year Ended | ||||
|
| December 31, | ||||
| 2022 |
| 2021 | |||
|
|
|
|
|
|
|
Revenues: |
|
|
|
|
|
|
Brand Services Revenue |
| $ |
|
| ||
Software Licensing Revenue |
|
|
|
| ||
Total revenue |
|
|
|
| ||
|
|
|
|
|
|
|
Operating costs and expenses: |
|
|
|
|
|
|
Cost of Revenue |
|
|
|
| ||
Management and payroll |
|
|
|
| ||
Research and development |
|
|
|
| ||
General and administrative |
|
|
|
| ||
Total operating costs and expenses |
|
|
|
| ||
|
|
|
|
|
|
|
Loss from operations |
|
| ( |
|
| ( |
|
|
|
|
|
|
|
Other income (expenses) |
|
|
|
|
|
|
Interest expense |
|
| ( |
|
| |
Loss before income taxes |
|
| ( |
|
| ( |
|
|
|
|
|
|
|
Provision for (benefit from) income taxes |
|
|
|
| ||
|
|
|
|
|
|
|
Net loss |
| $ | ( |
|
| ( |
|
|
|
|
|
|
|
Basic and diluted loss per share |
| $ | ( |
|
| ( |
|
|
|
|
|
|
|
Weighted average shares outstanding - basic and diluted |
|
|
|
| ||
The accompanying footnotes are an integral part of these consolidated financial statements.
F-4
KWIKCLICK, INC
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
For the Years Ended December 31, 2022 and 2021
| ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Additional |
|
|
|
|
| Total |
|
| Preferred Stock |
| Common Stock |
| Paid-in |
| Subscription |
| Accumulated |
| Stockholders' | ||||
| Shares |
| Amount |
| Shares |
| Amount |
| Capital |
| Receivable |
| Deficit |
| Equity (Deficit) | |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Balance December 31, 2020 |
| $ |
|
| $ |
| $ |
|
|
| $( |
| $ | ||
| Issuance of common stock for cash |
|
|
|
|
|
|
|
|
|
|
| ||||
| Issuance of common stock for services |
|
|
|
|
|
|
|
|
|
|
| ||||
| Issuance of stock options for services |
|
|
|
|
|
|
|
|
|
|
|
|
| ||
| Cancellation of preferred shares | ( |
| ( |
|
|
|
|
|
|
|
|
|
| ||
| Net loss |
|
|
|
|
|
|
|
|
|
|
|
| ( |
| ( |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Balance December 31, 2021 |
| $ |
|
| $ |
| $ |
| $ |
| $( |
| $( | ||
| Issuance of common stock for cash |
|
|
|
|
|
|
|
|
|
|
| ||||
| Issuance of common stock for services |
|
|
|
|
|
|
|
|
|
|
| ||||
| Issuance of common stock for settlement of stock issuable |
|
|
|
|
|
|
|
|
|
|
| ||||
| Issuance of common stock for intellectual property acquisition |
|
|
|
|
|
|
|
|
|
|
| ||||
| Issuance of common stock for conversion of shareholder loans and accrued interest |
|
|
|
|
|
|
| ( |
|
|
| ||||
| Issuance of stock for accrued compensation |
|
|
|
|
|
|
|
|
|
|
| ||||
| Stock based compensation |
|
|
|
|
|
|
|
|
|
|
| ||||
| Net loss |
|
|
|
|
|
|
|
|
|
|
|
| ( |
| ( |
| Balance December 31, 2022 |
| $ |
|
| $ |
| $ |
| $( |
| $( |
| $ | ||
The accompanying footnotes are an integral part of these consolidated financial statements.
F-5
KWIKCLICK, INC
CONSOLIDATED STATEMENTS OF CASH FLOWS
|
| For the Year Ended | ||
|
| December 31, |
| December 31, |
| 2022 |
| 2021 | |
Cash flows from operating activities: |
|
|
|
|
Net loss |
| $( |
| $( |
Adjustments to reconcile net loss to net cash used in operating activities: |
|
|
|
|
Depreciation and amortization |
|
| ||
Stock for services and compensation |
|
| ||
Loss on sale of equipment |
|
| ||
Amortization right of use asset |
|
| ||
Changes in operating assets and liabilities: |
|
|
|
|
Lease obligations |
| ( |
| |
Accrued liabilities |
|
| ||
Accounts payable |
| ( |
| |
Net cash used in operating activities |
| ( |
| ( |
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
Purchase of intellectual property |
| ( |
| ( |
Proceeds from sale of equipment |
|
| ||
Purchase of equipment |
| ( |
| ( |
Net cash used in investing activities |
| ( |
| ( |
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
Refund of stock payable |
| ( |
| |
Proceeds from stock issuable |
|
| ||
Proceeds from shareholders loans |
|
| ||
Payments on shareholder loans |
| ( |
| |
Proceeds from issuance of common stock |
|
| ||
Net cash provided by financing activities |
|
| ||
|
|
|
|
|
Net decrease in cash and cash equivalents |
| ( |
| ( |
Cash and cash equivalents at beginning of period |
|
| ||
Cash and cash equivalents at end of period |
| $ |
| $ |
|
|
|
|
|
|
|
|
|
|
Cash paid for income taxes |
| $ |
| $ |
Cash paid for interest |
| $ |
| $ |
|
|
|
|
|
Schedule of Non-Cash Investing and Financing Activities |
|
|
|
|
Common stock issued for intellectual property |
| $ |
| $ |
Common stock issued for stock issuable settlement |
| $ |
| $ |
Common stock issued for accrued compensation – related party |
| $ |
| $ |
Subscription receivable |
| $ |
| $ |
Initial recognition of right of use asset and lease obligation |
| $ |
| $ |
Common stock issued for conversion of shareholder loans and accrued interest |
| $ |
| $ |
Preferred stock cancellation |
| $ |
| $ |
The accompanying footnotes are an integral part of these consolidated financial statements.
F-6
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
NOTE 1. BUSINESS
KwikClick, Inc., (the Company) was organized pursuant to the laws of the State of Delaware on November 16, 1993. Beginning in 2020, the Company commenced its KwikClick business operations to allow sellers to make products or services available on the KwikClick platform, at Kwik.com, offering a self-determined incentive budget on goods or services in exchange for exposure and substantially increased sales volume. KWIKClick is a social interaction, selling, and referral software platform. Stores and manufacturers (“Brands”) wishing to promote their products or services on the KWIKClick software platform, which connects them to promoters, influencers, and customers. When the Brand is paid for the consumer purchases through the KWIKClick platform, the Brand pays an incentive budget to KWIKClick. KWIKClick receives the entire incentive budget as revenue for generating the sales through its platform, and recognizes cost of sales upon calculation and payment of the commissions paid to the wave of affiliates.
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Accounting Basis
These consolidated financial statements are prepared on the accrual basis of accounting in conformity with accounting principles generally accepted in the United States of America (“US GAAP”). The Company's fiscal year end is December 31.
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of the Company and its wholly owned subsidiary KwikClick LLC. Intercompany transactions and balances have been eliminated in consolidation.
Cash and Cash Equivalents
Cash equivalents include all highly liquid investments with an original maturity of three months or less when purchased. The Company did not have cash equivalents at December 31, 2022 or 2021.
Net Loss Per Share
The Company presents both basic and diluted earnings per share (EPS) on the face of the statements of operations. Basic EPS is computed by dividing net loss by the weighted average number of shares outstanding during the period. Diluted EPS gives effect to all dilutive potential common shares outstanding during the period under the treasury stock method using the if-converted method. Due to the incurrence of net losses, the Company did not include outstanding instruments convertible into common stock that would be anti-dilutive. As of December 31, 2022 the Company had
Property and Equipment
Property and equipment are recorded at cost. Expenditures for major betterments and additions are charges to the asset accounts, while replacements, maintenance and repairs which do not improve or extend the lives of the respective assets are charged to expense as incurred.
Property and Equipment as of December 31, 2022 and 2021 were as follows:
| 2022 |
| 2021 | |
Office Equipment |
| $ |
| $ |
Less Accumulated Depreciation |
| ( |
| ( |
| $ |
| $ |
F-7
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
Intangible Assets
Patents are recorded at cost. Expenditures for securing the patents are charges to the asset account.
Intangible Assets as of December 31, 2022 and 2021 were as follows:
| 2022 |
| 2021 | |
Patents |
| $ |
| $ |
Domain |
|
| ||
Less Accumulated Amortization |
| ( |
| ( |
| $ |
| $ |
Depreciation and Amortization
Depreciation of property and equipment is computed by the straight-line method using various rates based generally on the useful lives of the assets, which range from five to seven years.
During the year ended December 31, 2022 and 2021, the Company recorded depreciation expense of $
Amortization of Patents is computed by the straight-line method over the useful lives of the patents, which are fifteen years.
During the year ended December 31, 2022 and 2021, the Company recorded amortization expense of $
Future Amortization Expense
Year | Amount |
2023 | $ |
2024 | |
2025 | |
2026 | |
2027 | |
Thereafter | |
| $ |
Impairment of Long-Lived Tangible Assets and Intellectual Property
The Company reviews long-lived tangible and intellectual property assets for potential impairment annually and when events or changes in circumstances indicate the carrying amount of an asset may not be recoverable. In the event the expected undiscounted future cash flows resulting from the use of the asset is less than the carrying amount of the asset, an impairment loss is recorded equal to the excess of the asset’s carrying value over its fair value. The Company did not recognize an impairment charge in the year ended December 31, 2022 or 2021.
Research and Development
Research and development costs primarily consist of internal and external engineering staff wages, coding, and related on-going activities associated with upgrading and enhancing the Company’s internally developed software platform. Research and development costs that do not meet the criteria for capitalization, including those costs determined to be probable to result in additional functionality, are expensed as incurred. For the years ended December 31, 2022 and 2021 the Company did not capitalize any research and development costs.
F-8
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
Revenue Recognition
The Company determines the measurement of revenue and the timing of revenue recognition utilizing the following core principles:
·Step 1: Identify the contract with the customer
·Step 2: Identify the performance obligations in the contract
·Step 3: Determine the transaction price
·Step 4: Allocate the transaction price to the performance obligations in the contract
·Step 5: Recognize revenue when the Company satisfies a performance obligation
Revenue is measured based on the amount of consideration that the Company expects to receive, reduced by estimates for return allowances, promotional discounts, and rebates. Revenue excludes any amounts collected on behalf of third parties, including product costs for goods not owned and indirect taxes.
A description of the Company’s revenue generating activities is as follows:
Third-Party Seller Services (Brand Services Revenue):
The Company offers programs that provide sellers a software platform to sell their products. For some contracts the Company provides payment processing and order fulfillment facilitation. The Company is not the seller of record in these transactions.
The Company generally determines stand-alone revenue based on a percentage of the prices charged by the seller to deliver products sold. The commissions and any related fulfillment, shipping, and transaction processing fees the Company earns from these arrangements are recognized when the services are rendered, which generally occurs upon delivery of the related products to a third-party carrier or to the product purchaser. The Company does not incur material costs in obtaining third party seller contracts.
Software Licensing (Hosting Arrangement):
The Company licenses the use of its internally developed software to third parties for a fixed fee over a specified term. Revenue under these arrangements are recognized ratably over the contract term. Applicable sales commissions paid in connection with contracts exceeding one year are capitalized and amortized over the contract term. During the years ended December 31, 2022 and 2021 the Company did not incur material sales commissions.
Return Allowances
The fees earned by the Company are subject to returns under similar terms as set by the third-party services using the Company’s software platform. The Company does not assume responsibility for refund or replacement of product costs. Return allowances, which reduce revenue and cost of sales, are estimated using historical experience. During the years ended December 31, 2022 and 2021, the Company did not incur material returns.
Cost of Sales
Cost of sales primarily consist of commissions paid to third party influencers and consumers. Payment processing and related transaction costs, including those associated with seller transactions, are classified in general and administrative expenses on our consolidated statements of operations.
F-9
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
Reclassifications
During the year ended December 31, 2022, the Company determined it does not obtain any form of control of the products sold on its software platform. In these transactions the Company is considered an agent and records revenue as the net amount it retains for its role in facilitating third-party sales. During 2021, the Company presented its revenue and cost of sales inclusive of the consideration received and paid for the products controlled by the seller. As of result of the agency determination the Company grossed down its 2021 revenue and cost of sales as follows:
| As Presented |
|
|
| As Reclassified |
| December 31, |
|
|
| December 31, |
| 2021 |
| Reclassification |
| 2021 |
|
|
|
|
|
|
Revenue | $ |
| ( |
| $ |
Licensing Revenue |
|
|
| ||
Total Revenue | $ |
|
|
| $ |
|
|
|
|
|
|
Cost of Revenue | $ |
| ( |
| $ |
During the year ended December 31, 2021 the Company presented its statements of operations on a granular basis that has been grouped for the current year presentation.
The following table provides an illustration of the reclassified operating expenses:
|
| As Presented: |
|
|
| As Reclassified: |
|
| December 31, |
| Reclassification |
| December 31, |
|
|
|
|
|
|
|
Operating Expenses: |
|
|
|
|
|
|
General and administrative |
| $ |
| $ |
| $ |
Management and payroll |
|
|
| |||
Research and development |
|
|
| |||
Amortization and depreciation |
|
| ( |
| ||
Legal and professional |
|
| ( |
| ||
Marketing |
|
| ( |
| ||
Office supplies |
|
| ( |
| ||
Outside services |
|
| ( |
| ||
Rent |
|
| ( |
| ||
Total operating expenses |
| $ |
|
|
| $ |
The reclassification did not have a material impact on the Company’s financial position, results of operations, or cash flows as of and for the year ended December 31, 2021.
Stock Based Compensation
Stock-based compensation costs for eligible employees and non-employees are measured at fair value on the date of grant. For awards containing only a service condition, compensation expense is recognized over the award’s requisite service period on a straight-line basis. For awards containing performance and service conditions, where certain conditions must be satisfied prior to vesting, compensation expense is recognized over the requisite service period, which is defined as the longest explicit, implicit or derived service period, based on management’s estimate of the probability and timing of the performance criteria being satisfied, adjusted at each balance sheet date. Changes in the subjective and probability-based assumptions can materially affect the estimates of the fair value of the awards and timing of recognition of stock-based compensation expense and consequently, the related amount recognized in the
F-10
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
consolidated statements of operations. There were no issuances of awards subject to performance conditions during the years ended December 31, 2022 and 2021.
The Company does not estimate forfeitures when determining the fair value of stock-based awards, rather forfeitures of non-vested awards are recognized in the periods in which they occur.
Fair Value Measurements
US GAAP define fair value as the price that would be received for an asset or the exit price that would be paid to transfer a liability in the principal or most advantageous market in an orderly transaction between market participants on the measurement date, and also establishes a fair value hierarchy which requires an entity to maximize the use of observable inputs, where available. The three-level hierarchy of valuation techniques established to measure fair value is defined as follows:
Level 1 - Quoted prices in active markets for identical assets or liabilities.
Level 2 - Observable inputs, other than Level 1 prices, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.
Level 3 - Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.
Whenever possible, the Company is required to use observable market inputs (Level 1 - quoted market prices) when measuring fair value. The Company performed fair value measurements of its common stock and stock options, using unobservable inputs within Level 3 of the hierarchy.
The fair value of cash and equivalents, accounts payable, accrued liabilities, and shareholder loans approximates the carrying amount of these financial instruments due to their short-term maturity.
Advertising
The Company expenses advertising costs as incurred. Advertising expense was $
Use of Estimates
The preparation of financial statements in conformity with US GAAP 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 expenses during the reporting period. Actual results could differ from those estimates.
Lease Accounting
The Company occupies office space under a lease arrangement. The property is leased under a noncancelable agreement that contains a lease term in excess of twelve months on the date of entry as well as renewal options for additional periods. The agreement, which has been classified as an operating lease, provides for base minimum rental payments, as well non-lease components including insurance, taxes, maintenance, and other common area costs.
At the lease commencement date, the Company recognizes a right-of-use asset and a lease liability for all leases, except short-term leases with an original term of twelve months or less. The right-of-use asset represents the right to use the leased asset for the lease term. The lease liability represents the present value of the lease payments under the lease. The right-of-use asset is initially measured at cost, which primarily comprises the initial amount of the lease liability, plus any prepayments to the lessor and initial direct costs such as brokerage commissions, less any lease incentives received. All right-of-use assets are periodically reviewed for impairment in accordance with standards that
F-11
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
apply to long-lived assets. The lease liability is initially measured at the present value of the lease payments, discounted using the rate implicit in the contract if available or an estimate of our incremental borrowing rate for a collateralized loan with the same term as the underlying lease. The discount rates used for the initial measurement of lease liabilities as of the date of entry were based on the original lease terms.
Lease payments included in the measurement of lease liabilities consist of (i) fixed lease payments for the noncancelable lease term, (ii) fixed lease payments for optional renewal periods where it is reasonably certain the renewal option will be exercised, and (iii) variable lease payments that depend on an underlying index or rate, based on the index or rate in effect at lease commencement. Certain real estate lease agreements require payments for non-lease costs such as utilities and common area maintenance. The Company has elected an accounting policy to not separate implicit components of the contract that may be considered non-lease related.
Lease expense for operating leases consists of the fixed lease payments recognized on a straight-line basis over the lease term plus variable lease payments as incurred. The lease payments are allocated between a reduction of the lease liability and interest expense. Depreciation of the right-of-use asset for operating leases reflects the use of the asset on straight-line basis over the expected term of the lease.
Income Taxes
Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amount of existing assets and liabilities and their respective tax basis and operating loss and tax credit carry-forwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized as income in the period that includes the enactment date. Valuation allowances are established when necessary in order to reduce deferred tax assets to the amounts expected to be recovered.
The Company applies accounting guidance for income taxes with respect to uncertain tax positions. As a result of this guidance, a tax position is recognized as a benefit only if it is “more likely than not” that the tax position would be sustained in a tax examination with a tax examination being presumed to occur. The amount recognized is the largest amount of tax benefit that has a greater than 50% cumulative likelihood of being realized on examination. For tax positions not meeting the “more likely than not” test, no tax benefit is recorded.
Foreign Currency Translation
The Company’s functional and reporting currency is the United States dollar. Monetary assets and liabilities denominated in foreign currencies are translated using the exchange rate prevailing at the balance sheet date. Non-monetary assets and liabilities denominated in foreign currencies are translated at rates of exchange in effect at the date of the transaction. Average monthly rates are used to translate revenues and expenses. Gains and losses arising on translation or settlement of foreign currency denominated transactions or balances are included in the determination of income. The Company did not have material translation adjustments during the periods presented.
Reclassifications
Certain prior year amounts have been reclassified for consistency with the current year presentation. These reclassifications are not material and had no effect on the previously reported financial position, results of operations, or cash flows.
Going Concern
As reflected in the accompanying consolidated financial statements, the Company has a net loss of $
F-12
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
As a result of the Covid-19 crisis, the Company may experience difficulties in raising these funds due to economic impacts on funding sources. This raises substantial doubt about the Company's ability to continue as a going concern. The ability of the Company to continue as a going concern is dependent on the Company's ability to raise additional capital and generate revenue. The financial statements do not include any adjustments that might be necessary if the Company is unable to continue as a going concern.
NOTE 4. INCOME TAXES
The Company follows ASC 740, Income Taxes, which requires a company to determine whether it is more likely than not that a tax position will be sustained upon examination based upon the technical merits of the position. If the more-likely-than-not threshold is met, a company must measure the tax position to determine the amount to recognize in the financial statements. The Company does not have any material unrecognized tax benefits as of December 31, 2022 or 2021.
Deferred taxes are provided on a liability method whereby deferred tax assets are recognized for deductible temporary differences and operating loss and tax credit carryforwards and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the reported amounts of assets and liabilities and their tax basis. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax asset will not be realized. Deferred tax assets and liabilities are adjusted for the effects of changes in tax laws and rates on the date of enactment.
| 2022 |
| 2021 | |
Deferred tax asset: |
|
|
|
|
Net operating loss carryover |
| $ |
| $ |
Valuation allowance |
| ( |
| ( |
| $ |
| $ |
A reconciliation of amounts obtained by applying Federal tax rates of
| 2022 |
| 2021 | |
Book income |
| $( |
| $( |
Stock for services |
|
| ||
Stock options |
|
| ||
Accrued liabilities – related party (unissued stock compensation) |
|
| ||
Change in valuation allowance |
|
| ||
Income tax expense |
| $ |
| $ |
The Company’s tax returns are subject to audit for the years ended December 31, 2022 and 2021.
NOTE 5. STOCKHOLDERS' EQUITY
Preferred Stock
The Company is authorized to issue up to
F-13
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
Common Stock
The Company issued the following shares of common stock for the years ended December 31, 2022 and 2021:
During the quarter ended December 31, 2022, the Company converted its loan principal of $1,459,489 and accrued interest payable of $
In September 2022, the Company issued
In July and August 2022, the Company issued
During the period from June through December 31, 2022, the Company issued
In May 2022, the Company issued
In May 2022, the Company issued
In May 2022, the Company issued
In April 2022, the Company issued
During the year ended December 31, 2021 the Company issued
During the year ended December 31, 2021, the Company also issued
Common Stock Compensation
Our Board of Directors adopted the 2021 Plan to (1) encourage selected employees, officers, directors, consultants and advisers to improve our operations and increase our profitability, (2) encourage selected employees, officers, directors, consultants and advisers to accept or continue employment or association with us, and (3) increase the interest of selected employees, officers, directors, consultants and advisers in our welfare through participation in the growth in value of our common stock. All of our current employees, directors and consultants are eligible to participate in the 2021 Plan. At December 31, 1022, no awards have been issued under the plan and 10,000,000 shares are available for issuance.
At the discretion of the compensation committee, the Company has granted common stock awards for various employees. The awards issued to date are earned and recognized over the requisite service period. The fair value of the award is estimated on the grant date.
F-14
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
A summary of the stock-based compensation associated with common stock awards is as follows:
|
| Common Stock |
|
| Weighted Grant Date | ||
Outstanding at January 1, 2022 |
|
|
|
| $ | ||
Granted |
|
|
|
|
| ||
Forfeited or cancelled |
|
|
|
|
| – | |
Vested |
|
| ( | ) |
|
| |
Outstanding at December 31, 2022 |
|
|
|
| $ | ||
During the year ended December 31, 2022, the Company granted
During 2022, the Company entered into various other agreements totaling
During the year ended December 31, 2022, the Company recognized total stock-based compensation of $
Stock Options
In October 2021, the Company issued 400,000 fully vested options exercisable into shares of common stock with an estimated grant date fair value $
2021 Equity Incentive Plan
NOTE 6. RELATED PARTY TRANSACTIONS
Shareholder Loans Payable
During the quarter ended December 31, 2022, the Company converted its loan principal of $1,459,489 and accrued interest of $20,250 totaling $1,479,739 owed to Fred Cooper, a majority shareholder, in exchange for a funding commitment for up to $2,000,000 and
During the years ended December 31, 2022 and 2021, the Company recognized total interest expense of $
During the year ended December 31, 2021, the Company also issued
F-15
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
During the years ended December 31, 2022 and 2021, the Company had a Software Licensing Agreement with NewAge, Inc., a company affiliated with Fred W. Cooper, our majority stockholder. Under the agreement, which terminated on July 31, 2022, the Company received licensing fees totaling $
NOTE 7. COMMITMENTS AND CONTINGENCIES
On October 7, 2022, NewAge, the licensee of the related party SL Agreement filed an adversary proceeding against the Company as part of their Chapter 11 bankruptcy filing (Delaware Case #22-10819). NewAge contends they are the rightful owner of the intellectual property used in our operations and the underlying technology of the SL Agreement. NewAge's adversary proceeding contends that the Company's intellectual property was developed by Ariix, LLC which Mr. Fred Cooper was a founder, major shareholder, and CEO. In November 2020, Ariix, LLC was acquired by NewAge and Mr. Cooper became a Director of NewAge. NewAge alleges it purchased the intellectual property in the acquisition of Ariix, LLC.
The Company believes that the code base and functionality of its software platform differs materially from any intellectual property owned by NewAge. The Company has expended significant resources in developing its software platform independent of NewAge and intends to vigorously defend and assert its intellectual property rights. In the event the Company does not prevail it may be required to impair substantially all of its intangible assets with a carrying value of approximately $1,067,000 at December 31, 2022, and may be forced to discontinue its on-going fee-based sales platform. The adversary Complaint filed by NewAge claims money damages in an amount to be determined at trial, but does not state any specific dollar amount of alleged damages. The Complaint has yet to be served on KwikClick as of the issuance date of these financial statements, and NewAge has requested extensions of time to serve the Complaint. As such, litigation is in its early stages, and an estimate of reasonably possible loss cannot be made at this time. As such, there has been no further adjustment to the accompanying balance sheet or statements of operations or cash flows as of and for the year ended December 31, 2022.
NOTE 8. OPERATING LEASE
As of December 31, 2022, the Company leased its Bountiful, Utah corporate headquarters under a non-cancellable lease arrangement. The operating lease, which expires in January 2025, calls for base monthly payments on an escalating basis ranging from $
The following table summarizes the Company’s undiscounted cash payment obligations for its non-cancelable lease liabilities through the end of the expected term of the lease:
2023 |
| $ |
| |
2024 |
|
|
| |
2025 |
|
|
| |
Total undiscounted cash payments |
|
|
| |
Less imputed interest |
|
| ( | ) |
Present value of payments |
| $ |
|
The Company recognized lease expense associated with its non-cancelable operating lease totaling $
F-16
KWIKCLICK, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 2022 and 2021
NOTE 9. SUBSEQUENT EVENTS
The Company has evaluated subsequent events from December 31, 2022, through the date the financial statements were issued and has determined that there are no material events that need to be disclosed, except as follows:
In the first quarter of 2023, Mr. Cooper funded the remainder of the Subscription Receivable of $520,261 in connection with the commitment letter for $2,000,000. Mr. Cooper also provided additional funding of $75,000 to the Company. In connection with the additional funding, the Company entered into a promissory note which will be subject to a security agreement that will require us to pledge our patents and other intellectual as collateral for the loan. We believe that our intellectual property and patents are valuable assets and are important to our business operations. However, we have entered into this loan agreement in order to meet our financial obligations and to ensure that we have sufficient working capital to continue our operations. While we do not anticipate any default on the loan, in the event that we do default, Mr. Cooper may take possession of our intellectual property and patents. This could have a material adverse effect on our business and operations.
F-17