UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
| [X] | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended: December 31, 2019
or
| [ ] | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from ____________ to ____________
Commission file number: 000-55903
BLUE STAR FOODS CORP.
(Exact name of registrant as specified in its charter)
| Delaware | 82-4270040 | |
| (State
or other jurisdiction of incorporation or organization) |
(IRS
Employer Identification No.) | |
| 3000
NW 109th Avenue Miami, Florida |
33172 | |
| (Address of principal executive offices) | (Zip Code) |
(305) 836-6858
(Registrant’s telephone number, including area code)
N/A
(Former name, former address and former fiscal year, if changed since last report)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) |
Name of each exchange on which registered | ||
| None | N/A | N/A |
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $0.0001 par value
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [ ] No [X]
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Exchange Act. Yes [ ] No [X]
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past 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. Yes [X] No [ ]
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 (or for such shorter period that the registrant was required to submit such files). Yes [X] No [ ]
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer a smaller reporting company, or an emerging growth company. See the definitions of the “large accelerated filer,” “accelerated filer,” “non-accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large Accelerated Filer | [ ] | Accelerated Filer | [ ] | |
| Non-Accelerated Filer | [ ] | Smaller reporting company | [X] | |
| Emerging Growth Company | [X] | |||
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 Exchange Act). Yes [ ] No [X]
There was no trading market for the registrant’s common stock as of June 30, 2019, the last business day of the registrant’s most recently completed second fiscal quarter. Therefore, there was no aggregate market value of the voting and non-voting common equity as of such date.
As of May 29, 2020, there were 17,557,575 shares of the registrant’s common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Not Applicable.
TABLE OF CONTENTS
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EXPLANTORY NOTE
On March 30, 2020, Blue Star Foods Corp. (the “Company”) filed a Current Report on Form 8-K, and is filing this Annual Report on Form 10-K for its fiscal year ended December 31, 2019 (the “Annual Report”), in reliance on the Securities and Exchange Commission’s March 4, 2020 Order (Release No. 34-88318), as modified on March 25, 2020 (Release No. 34-88465) pursuant to Section 36 of the Securities Exchange Act of 1934.
As result of the global outbreak of the COVID-19 virus, certain “stay at home” orders and other restrictions imposed as a result of the COVID-19 pandemic, Company management as well as professional staff and consultants have been hindered and delayed in conducting the work required to prepare the financial statements for the Annual Report. This has, in turn, impacted the Company’s ability to compile and review certain information required to complete its audit and file this Annual Report by its original due date, March 30, 2020.
Except for historical information, this report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Such forward-looking statements include, among others, those statements including the words “believes”, “anticipates”, “expects”, “intends”, “estimates”, “plans” and words of similar import. Such forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements, or industry results, to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements.
Forward-looking statements are based on our current expectations and assumptions regarding our business, potential target businesses, the economy and other future conditions. Because forward-looking statements relate to the future, by their nature, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict. Our actual results may differ materially from those contemplated by the forward-looking statements. We caution you therefore that you should not rely on any of these forward-looking statements as statements of historical fact or as guarantees or assurances of future performance. Important factors that could cause actual results to differ materially from those in the forward-looking statements include changes in local, regional, national or global political, economic, business, competitive, market (supply and demand) and regulatory conditions and the following:
| ● | Our ability to raise capital when needed and on acceptable terms and conditions; | |
| ● | Our ability to make acquisitions and integrate acquired businesses into our company; | |
| ● | Our ability to attract and retain management with experience in the business of importing, packaging and selling of seafood; | |
| ● | Our ability to negotiate, finalize and maintain economically feasible agreements with suppliers and customers; | |
| ● | The availability of crab meat and other premium seafood products we sell; | |
| ● | The intensity of competition; and | |
| ● | Changes in the political and regulatory environment and in business and fiscal conditions in the United States and overseas. |
These risks and others described under the section “Risk Factors” below are not exhaustive.
Given these uncertainties, readers of this Annual Report on Form 10-K (“Annual Report”) are cautioned not to place undue reliance on such forward-looking statements. We disclaim any obligation to update any such factors or to publicly announce the result of any revisions to any of the forward-looking statements contained herein to reflect future events or developments.
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All references in this Annual Report to the “Company”, “we”, “us”, or “our”, are to Blue Star Foods Corp. (formerly AG Acquisition Group II, Inc.), a Delaware corporation, and its consolidated subsidiary, John Keeler & Co., Inc., d/b/a Blue Star Foods, a Florida corporation, and its wholly-owned subsidiary, Coastal Pride Seaford, LLC, a Florida limited liability company.
History
We were incorporated on October 17, 2017 in the State of Delaware as a blank check company to be used as a vehicle to pursue a business combination with an unidentified target. Prior to the Merger (as defined below), we engaged in organizational efforts. Following the Merger, we discontinued our prior activities of seeking a business for a merger or acquisition. In connection with the Merger, the Company changed its name from “AG Acquisition Group II, Inc.” to “Blue Star Foods Corp.” and succeeded to the business of John Keeler & Co., Inc., d/b/a Blue Star Foods, a Florida corporation formed on May 5, 1995 (“ Keeler & Co.”), an international seafood company that imports, packages and sells refrigerated pasteurized crab meat, and other premium seafood products, including crab cakes, finfish and wakami salad, as its sole line of business.
Merger
On November 8, 2018 (the “Closing Date”), we entered into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”), with Keeler & Co., Blue Star Acquisition Corp., our newly formed, wholly-owned Florida subsidiary (“Acquisition Sub”), and John Keeler, Keeler & Co’s sole stockholder (the “Sole Stockholder”). Pursuant to the terms of the Merger Agreement, Acquisition Sub merged with and into Keeler & Co, which was the surviving corporation and thus became our wholly-owned subsidiary (the “Merger”).
At the Closing Date, each of the 500 shares of common stock of Keeler & Co issued and outstanding immediately prior to the closing of the Merger was converted into 30,000 shares of our common stock. As a result, an aggregate of 15,000,000 shares of our common stock were issued to the Sole Stockholder.
At the effective time of the Merger, the Company redeemed an aggregate of 9,250,000 shares of common stock from the pre-Merger stockholders of the Company (the “Pre-Merger Holders”) for cancellation by the Company (the “Share Redemption”) and, as a result, the Pre-Merger Holders retained an aggregate of 750,000 shares of common stock after the Merger, representing a value of $1.5 million. The shares were redeemed in consideration for the direct benefit the Pre-Merger Holders will receive in connection with the consummation of the Merger.
Offering
Concurrently with the closing of the Merger, we closed a private placement offering (the “Offering”) in which we sold an aggregate of 725 units of our securities (the “Units”) at a purchase price of $1,000 per Unit, for aggregate gross proceeds of $725,000. Each Unit consisted of one share of the Company’s 8% Series A convertible preferred stock, par value $0.0001 per share (the “Series A Stock”) and a Warrant to purchase one-half of one share of common stock for every share of common stock that would be received upon conversion of a share of Series A Stock (the “Warrant Shares”), at an exercise price of $2.40. The Series A Stock is convertible into shares (the “Conversion Shares”) of the Company’s common stock, at a conversion rate of $2.00 per share (the “Conversion Rate”). We issued 353,250 Warrant Shares in the Offering, which Warrant Shares are exercisable independently of any conversion of Series A Stock. The net proceeds of the Offering were used by the Company for general corporate purposes.
(the “Series A Stock”), initially convertible into shares (the “Conversion Shares”) of the Company’s Common Stock, at a conversion rate of $2.00 per share, and (ii) a three-year warrant (the “Warrant”) to purchase one-half of one share of Common Stock for every share of Common Stock that would be received upon conversion of a share of Series A Stock (the “Warrant Shares”), at an exercise price equal to $2.40.
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Company Settlement
Effective upon the closing of the Merger, we issued an aggregate of 688 Units to eleven “accredited investors” (the “Settlement Parties”) for each such individual or entity entering into a settlement and mutual general release agreement (the “Settlement Agreement”) with the Company in full and complete settlement and satisfaction and release of claims such Settlement Parties may have against the Company (the “Company Settlement”).
2018 Equity Incentive Award Plan
In connection with the Merger, we adopted the 2018 Equity Incentive Award Plan (the “2018 Plan”), which was effective immediately prior to the consummation of the Merger. The principal purpose of the 2018 Plan is to attract, retain and motivate selected employees, consultants and non-employee directors through the granting of stock-based compensation awards and cash-based performance bonus awards. 7,500,000 shares of common stock are reserved for issuance under the 2018 Plan as future incentive awards to executive officers, employees, consultants and directors.
Upon the closing of the Merger, (i) options to purchase an aggregate of 104 shares of Keeler & Co’s common stock at an exercise price of $10,000 per share, which were outstanding immediately prior to the closing of the Merger, were converted into ten-year immediately exercisable options to purchase an aggregate of 3,120,000 shares of common stock at an exercise price of $0.333 under the 2018 Plan, and (ii) ten-year options to purchase 3,120,000 shares of common stock at an exercise price of $2.00, which vest one-year from the date of grant, were issued under the 2018 Plan.
Changes to the Board of Directors and Executive Officers
On the Closing Date of the Merger, Laura Anthony and Howard Gostfrand, the then-current directors and Chief Financial Officer and Chief Executive Officer of the Company, respectively, resigned from all such positions as directors and officers of the Company and were replaced by new officers and directors. Immediately following the closing of the Merger, our board of directors was reconstituted to consist of John Keeler, Carlos Faria, Christopher Constable and Nubar Herian.
Lock-ups
In connection with the Merger, each of our executive officers and directors after giving effect to the Merger (the “Restricted Holders”) and each of the Pre-Merger Holders, holding at the closing date of the Merger an aggregate of 750,000 shares of our common stock, entered into lock-up agreements (the “Lock-Up Agreements”), whereby the Restricted Holders are restricted for a period of 18 months and the Pre-Merger Holders are restricted for 12 months, after the Merger (the “Restricted Period”), from sales or dispositions (including pledges) in excess of 50% of all of the Common Stock held by (or issuable to) them and at a price below $2.20 per share (such restrictions together the “Lock-Up”). Notwithstanding such restrictions, during the Restricted Period (i) the Restricted Holders may transfer up to 10% of their shares to a charitable organization which agrees to be bound by such Lock-Up restrictions and (ii) the Pre-Merger Holders may transfer up to 10% of their shares to a third party which agrees to be bound by such Lock-Up restrictions. From and after the Restricted Period, neither the Restricted Holders nor the Pre-Merger Holders may sell, dispose or otherwise transfer more than one-third of the Common Stock held by such Holder in any two-month period.
Redemption from Pre-Merger Holders
In connection with the Merger, the Company redeemed an aggregate of 9,250,000 shares of Common Stock from the Company’s pre-Merger stockholders (the “Pre-Merger Holders”) for cancellation by the Company (the “Share Redemption”) and, as a result, the stockholders retained an aggregate of 750,000 shares of common stock after the Merger (the “Retained Shares”), representing a value of $1.5 million. The shares were redeemed in consideration for the direct benefit the Pre-Merger Holders will receive in connection with the consummation of the Merger.
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Our authorized capital stock currently consists of 100,000,000 shares of Common Stock, and 5,000,000 shares of the preferred stock, of which 10,000 shares have been designated as Series A Stock. Our Common Stock is not traded on any exchange or quoted on the OTC Markets, and there is no public market for our Common Stock.
Coastal Pride Acquisition
On November 26, 2019, Keeler & Co., Inc. (the “Purchaser”) entered into an Agreement and Plan of Merger and Reorganization (the “Coastal Merger Agreement”) with Coastal Pride Company, Inc., a South Carolina corporation (“Coastal Pride”), Coastal Pride Seafood, LLC, a Florida limited liability company and newly-formed, wholly-owned subsidiary of Keeler & Co. (the “Acquisition Subsidiary” and, upon the effective date of the Coastal Merger, the “Surviving Company), and The Walter F. Lubkin, Jr. Irrevocable Trust dated 1/8/03 (the “Trust”), Walter F. Lubkin III (“Lubkin III”), Tracy Lubkin Greco (“Greco”) and John C. Lubkin (“Lubkin”), constituting all of the shareholders of Coastal Pride immediately prior to the Coastal Merger (collectively, the “Sellers”). Pursuant to the terms of the Coastal Merger Agreement, Coastal Pride merged with and into the Acquisition Subsidiary, with the Acquisition Subsidiary being the surviving company (the “Coastal Merger”).
Coastal Pride is a seafood company, based in Beaufort, South Carolina, that imports pasteurized and fresh crabmeat sourced primarily from Mexico and Latin America and sells premium branded label crabmeat throughout North America.
Pursuant to the terms of the Coastal Merger Agreement, the following consideration was paid by Keeler & Co.:
(i) an aggregate of $394,622 in cash (the “Cash Consideration”);
(ii) a five-year 4% promissory note in the principal amount of $500,000 (the “Lubkin Note), issued by Keeler & Co. to Walter Lubkin Jr. (“Walter Jr.”);
(iii) three-year 4% convertible promissory notes in the aggregate principal amount of $210,000 (collectively, the “Sellers Notes” and together with the Lubkin Note, the “Notes”), issued by Keeler & Co. to Greco, Walter III and Lubkin, pro rata to their ownership of Coastal Pride immediately prior to the Merger;
(iii) 500,000 shares of common stock of the Company, issued to Walter Lubkin, Jr. (the “Walter Jr. Shares”); and
(iii) an aggregate of 795,000 shares of common stock of the Company, issued to Greco, Walter III and Lubkin, pro rata to their ownership of Coastal Pride immediately prior to the Coastal Merger (together with the Walter Jr. Shares, the “Consideration Shares”).
The Notes are subject to a right of offset against the Sellers’ indemnification obligations as described in the Coastal Merger Agreement and are subordinate and subject to prior payment of all indebtedness of John Keeler under the Loan Agreement with ACF Finco I LP (“ACF”), as described below.
Principal and interest under the Lubkin Note are payable quarterly, commencing February 26, 2020, in an amount equal to the lesser of (i) $25,000 and (i) 25% of the Surviving Company’s quarterly earnings before interest, tax, depreciation and amortization.
One-sixth of the principal and interest under the Sellers Notes are payable quarterly commencing on August 26, 2021. The Sellers Notes are convertible into shares of common stock of the Company at the Seller’s option, at any time after the first anniversary of the date of the Note, at the rate of one share for each $2.00 of principal and/or interest so converted (the “Conversion Shares”).
The Purchaser has the right to prepay the Notes in whole or in part at any time without penalty or premium.
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At the effective time of the Coastal Merger, the Sellers entered into leak-out agreements (each, a “Leak-Out Agreement”) pursuant to which the Sellers and Walter Jr. may not directly or indirectly pledge, sell, or transfer any of the Consideration Shares or Conversion Shares, or enter into any swap or other arrangement that transfers any of the economic consequences of ownership of any such shares for one year from the date of the Coastal Merger. Thereafter, each Seller and Walter Jr. may transfer up to 25% of the aggregate of the Consideration Shares and the Conversion Shares held by such person, in each successive six-month period.
In connection with the Coastal Merger, Lubkin III and Greco agreed to serve as president and chief financial officer, respectively, of the Surviving Company.
Loan Agreement with ACF
ACF and Keeler & Co. are parties to a Loan and Security Agreement, originally dated as of August 31, 2016 (as amended, the “Loan Agreement”). Keeler & Co.’s obligations under the Loan Agreement are guaranteed by the Company. As a condition to ACF’s waiver of certain events of default under the Loan Agreement, and consent to the formation of the Acquisition Subsidiary and the Coastal Merger, the Acquisition Subsidiary and Keeler & Co. entered into the Joinder and Seventh Amendment to the Loan Agreement (the “Seventh Amendment”) which resulted, among other things, in the Surviving Company becoming an additional borrower under the Loan Agreement.
Company Overview
We are an international seafood company that imports, packages and sells refrigerated pasteurized crab meat, and other premium seafood products. Our current source of revenue is from importing blue and red swimming crab meat primarily from Indonesia, Philippines and China and distributing it in the United States, Canada and Europe under several premium brand names such as Blue Star, Oceanica, Pacifika, Crab & Go, First Choice, Good Stuff and Coastal Pride Fresh. Our products are also sold in Mexico, Central America, the Caribbean, the European Union, the United Arab Emirates, Singapore and Hong Kong. The crab meat which we import is processed in 13 plants throughout Southeast Asia. Our suppliers are primarily via co-packing relationships, including two affiliated suppliers. We sell primarily to food service distributors. We also sell our products to wholesalers, retail establishments and seafood distributors.
Our premium proprietary brands are differentiated in terms of quality and price point.
We believe that we utilize best-in-class technology, in both resource sustainability management and ecological packaging.
The Company’s executive offices and warehouse facility are based in Miami, Florida. The offices of Coastal Pride Seafood LLC are located in Beaufort, South Carolina. Additionally, the Company may, from time to time, utilize third party warehouses located in Miami, Baltimore, Philadelphia and Los Angeles.
Strategy
Our strategy is to create a vertically integrated seafood company that offers customers high quality products while maintaining a focus on our core values of delivering food safety, traceability and certified sustainability.
We plan to grow the Company organically by continuing to grow our customer base, offering additional species to our customers, introducing new value-added product lines and strategically acquiring companies with strong portfolio of anchored categories that we believe we can integrate into a larger, vertically integrated company.
Competitive Strengths -Sustainable and Traceable Product Sourcing
We believe that our greatest point of differentiation from other seafood companies are our efforts to ensure that our seafood products are ethically sourced in a method that is consistent with our core values and those of our customers.
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We purchase the majority of our crab product from processors which source the crab meat from local fishermen in Indonesia, the Philippines, Thailand, Vietnam, Sri Lanka and India, to whom we pay a premium in order to outfit their boats with a proprietary GPS-based system. This system allows us to trace where the crab product originates and ensure that only mature crabs are being harvested by the use of collapsible traps and not gill nets.
We have created a technology platform that tracks the product through its entire chain of custody and collects and transmits various data to the Company in real-time, from the loading site, to the packing plant, through the sorting and pasteurization process and the exporting process to the end customer. Our technology allows our customers access to their “Scan on Demand” QR code-enabled traceability application.
The crab meat is purchased directly from processors with whom we have long-standing relationships, that have agreed to source their product in a sustainable manner. All crab meat is sourced under the Company’s FDA approved Hazard Analysis Critical Control Point (“HACCP”) Plan. Additionally, all suppliers are certified by the British Retail Consortium (the “BRC”) and are audited annually to ensure safety and quality of our product.
Our warehouse facility in Miami, Florida is the only crab meat facility audited by the BRC (graded A++) in the U.S.
Proprietary Brands. We have created several brands of crab meat that are well regarded amongst our customers and are differentiated by product quality and price point.
| ● | Blue Star is packed with only high quality Portunus Pelagicus species crab and is produced under exacting specifications and quality control requirements. |
| ● | Pacifika is a quality brand for the price conscious end-user. The Portunus Haanii crab meat is packed in China and is ideal for upscale plate presentations. |
| ● | Oceanica is made from the Portunus Haanii crab, which is caught and processed in Vietnam. It is an affordable choice to help reduce food cost without sacrificing the look / taste of dishes. |
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Crab + Go Premium Seafood is geared towards millennials as part of the trend toward prepackaged grab and go items. The product is packaged in flexible foil pouches. |
| ● | Crab + Go Premium Seafood is geared towards millennials as part of the trend toward prepackaged grab and go items. The product is packaged in flexible foil pouches. |
| ● | Lubkin Brand is packed with good quality Portunus Pelagicus specie crab in the Philippines & Indonesia |
| ● | First Choice is a quality brand packed with Portunus Haanii crab from Malaysia |
| ● | Good Stuff is a premium brand packed with the high quality Callinectes specie crab from Mexico. |
| ● | Fresh Brand is packed with Callinectes Sapidus crab from Venezuela & The USA. |
Eco-Friendly Packaging. Another major point of differentiation from our competitors is our use of sustainable and ethical packaging. Our green pouches for Eco-Fresh crab meat are patented in the United States, Europe, Thailand, the Philippines and Indonesia under patent Nos.1526091 B1 and US Patents 8,337,922 and 8,445,046. Since their introduction in 2003, these pouches have saved in excess of one million metric tons of carbon dioxide emissions versus metal can packaging material.
Competition
In general, the international seafood industry is intensely competitive and highly fragmented. We compete with local and overseas manufacturers and importers engaged in similar products.
The Company’s primary competitors are Tri Union Frozen Products, Inc. (Chicken of the Sea Frozen Foods), Phillips Foods, Inc., Harbor Seafood, Inc., Newport International and Twin Tails Seafood Corp.
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Industry Overview
The international seafood industry is going through a period of rapid change as it strives to meet the needs of a growing population around the world, where food consumption habits are evolving. We believe there are powerful trends emerging in the developing world (including a growing demand for animal-based protein) as well as and in the developed world (where there is an increased awareness and focus on sustainable sourcing and protecting marine ecosystems).
Population Growth and Global Seafood Consumption
| ● | The United Nations estimates that there will be close to 9.8 billion people on our planet by the year 2050(1), a significant increase from the existing population estimates of 7.6 billion. (1) | |
| (1) | United Nations – Department of Economic and Social Affairs (2017) |
| ● | As the population has grown, so has per capita consumption. World per capita apparent fish consumption increased from an average of 9.9 kg in the 1960s to 14.4 kg in the 1990s and 19.7 kg in 2013, with preliminary estimates for 2014 and 2015 pointing towards further growth beyond 20 kg. (2) | |
| (2) | Food and Agriculture Organization of the United Nations “The State of the World Fisheries and Aquaculture – 2016”. |
Sources of Seafood
| ● | Global total capture fishery production in 2014 was 93.4 million tons, of which 81.5 million tons from marine waters and 11.9 million tons from inland waters (3). | |
| (3) | Food and Agriculture Organization of the United Nations “The State of the World Fisheries and Aquaculture – 2016”. | |
| ● | Where seafood comes is sourced is changing in order to meet the demand. In 2014, a milestone was reached when the aquaculture sector’s contribution to the supply of fish for human consumption overtook that of wild-caught fish for the first time (4). | |
| (4) | Food and Agriculture Organization of the United Nations “The State of the World Fisheries and Aquaculture – 2016”. |
Seafood Industry Participants
| ● | The mix of parties involved in seafood varies from the local village fisherman, to large, international, vertically-integrated seafood companies. | |
| ● | The total number of fishing vessels in the world in 2014 is estimated at about 4.6 million, with the fleet in Asia being the largest, consisting of 3.5 million vessels and accounting for 75 percent of the global fleet, followed by Africa (15%), Latin America and the Caribbean (6%), North America (2%) and Europe (2%) (5). | |
| (5) | Food and Agriculture Organization of the United Nations “The State of the World Fisheries and Aquaculture – 2016”. |
Growth Strategy
We intend to grow the business organically and through strategic acquisitions.
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Organic growth – We believe that allocating additional capital to our existing business plan will allow us to continue to meet growing demand from end-customers for seafood products. The Company also currently intends to introduce new species, including lobster tails, fin fish and other specialty seafood proteins in the next 18 months.
Acquisitions –We also currently intend to evaluate strategic acquisitions in the fragmented seafood industry. We believe that such potential acquisitions may add value in several ways, including geographical diversification and new anchor category specifies offerings, as well as operational and price synergies.
Products
We currently have the following products: Blue Star, Pacifika, Oceanica, Crab & Go Premium Seafood, Lubkin, First Choice, Good Stuff and Coastal Pride Fresh.
Blue Star is packed with only high quality Portunus Pelagicus species crab and is produced under exacting specifications and quality control requirements.
Pacifika is a quality brand for the price conscious end-user. The Portunus Haanii crab meat is packed in China and is ideal for upscale plate presentations.
Oceanica is made from the Portunus Haanii crab, which is caught and processed in Vietnam. It is an affordable choice to help reduce food cost without sacrificing the look / taste of dishes.
Crab + Go Premium Seafood is geared towards millennials as part of the trend toward prepackaged grab and go items. The product is packaged in flexible foil pouches.
Lubkin Brand is Packed with good quality Portunus Pelagicus specie crab in the Philippines & Indonesia.
First Choice is a quality brand packed with Portunus Haanii crab. Meat from Malaysia.
Good Stuff is a premium brand packed with high quality Callinectes specie from Mexico.
Coastal Pride fresh Brand is packed with Callinectes Sapidus from Venezuela & The USA.
Grab + Go Premium Seafood is geared towards millennials as part of the trend toward pre-packaged, grab-and-go items. The product is packaged in flexible foil pouches.
Suppliers
We purchase crab meat directly from 13 processors with which we have long-standing relationships, that have agreed to source their product in a sustainable manner. All crab meat is sourced under the Company’s FDA approved HACCP Plan. Additionally, all suppliers are certified by the BRC grade A and are audited annually to ensure safety and quality.
The Company has three suppliers which accounted for approximately 63% of the Company’s total purchases during the year ended December 31, 2019. These three suppliers are located in the United States, Indonesia and the Philippines, which accounted for approximately 90% of the Company’s total purchases during 2019. These suppliers included Bacolod Blue Star Export Corp. (“Bacolod”), an affiliated party based in the Philippines, which accounted for approximately 27% of the Company’s total purchases during 2019. During 2019, the Company purchased inventory from a competitor that went out of business in the United States accounting for 21% of purchases, and four non-affiliated Indonesian suppliers, that made up the balance of the 30% of the supply concentration.
Sales, Marketing and Distribution
The Company’s products are sold in the United States, Mexico, Canada, Central America, the Caribbean, the European Union, the United Arab Emirates, Singapore and Hong Kong. Its primary current source of revenue is importing blue and red swimming crab meat primarily from Indonesia, Mexico, Venezuela, Malaysia, Sri-Lanka, China, the Philippines and Vietnam and distributing it in the United States, Canada and Europe under several brand names such as Blue Star, Oceanica, Pacifika, and Lubkin’s Coastal Pride, First Choice, Good Stuff, Coastal Pride Fresh.
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The Company has a sales team of eight employees based throughout the U.S. who sell directly to customers most of whom are in the food service and retail industry and also manage a network of five regional and national brokers, that cover both the retail and wholesale segments. The sales team and brokers help to pull the products through the system by creating demand at the end user level and pulling the demand through our distributor customers. We sell to retail customers either directly or via distributors that specialize in the retail segment.
The Company does not own its own fleet of trucks and utilizes “LTL” national freight carriers to deliver its products to its customers. Less than truckload freight shipping (“LTL”) is used for the transportation of small freight or when freight does not require the use of an entire trailer. When shipping LTL, we pay for a portion of a standard truck trailer, and other shippers and their shipments fill the unoccupied space.
Our Technology
We have created a technology platform that tracks the product through its entire chain of custody and collects and transmits various data to the Company in real-time, from the loading site, to the packing plant, through the sorting and pasteurization process and the exporting process to the end customer. Our technology allows our customers access to their “Scan on Demand” QR code-enabled traceability application.
Customers
Our customer base is comprised of some of the largest companies in the food service and retail industry. We sell our crab meat to our customers through purchase orders. Currently, almost 63% of our revenue is derived from fortune 500 customers. For the fiscal year ended December 31, 2019, sales to food distributors accounted for 42% of our revenue, sales to large buying cooperatives accounted for 16% of our revenue, and sales to retail and wholesale clubs accounting for 16% of our revenue. The balance of our revenue derived from smaller seafood distributors and value-added processors.
Our sales are diversified geographically throughout the United States, with Florida being the largest geographic concentration at 26% of sales. As typical in the seafood industry, a large portion of our revenue is located along the eastern seaboard with 57% of our revenue derived from sales to customers along the East Coast from Massachusetts to Florida. International sales directly or through our affiliate in the United Kingdom, Strike the Gold Foods, Ltd. make up roughly 3% of revenue.
The Company had three customers which accounted for approximately 47% of revenue during the year ended December 31, 2019. Outstanding receivables from these customers accounted for approximately 20% of the total accounts receivable as of December 31, 2019. The loss of any major customer could have a material adverse impact on the Company’s results of operations, cash flows and financial position.
Intellectual Property
Our intellectual property is an essential element of our business. We use a combination of patent, trademark, copyright, trade secret and other intellectual property laws and confidentiality agreements to protect our intellectual property. Our policy is to seek patent protection in the United States and in certain foreign jurisdictions for our products, processes and other technology where available and when appropriate. We also in-license technology, inventions and improvements we consider important to the development of our business.
In addition to our patents, we also rely upon trade secrets, know-how, trademarks, copyright protection and continuing technological and licensing opportunities to develop and maintain our competitive position. We have periodically monitored and continue to monitor the activities of our competitors and other third parties with respect to their use of intellectual property. We require our employees to execute confidentiality and non-competition agreements upon commencing employment with us. Despite these safeguards, any of our know-how or trade secrets not protected by a patent could be disclosed to, or independently developed by, a competitor.
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It is our standard practice to require our employees to sign agreements acknowledging that all inventions, trade secrets, works of authorship, developments and other processes generated by them on our behalf are our property, and assigning to us any ownership in those works Despite our precautions, it may be possible for third parties to obtain and use without consent intellectual property that we own. Unauthorized use of our intellectual property by third parties, and the expenses incurred in protecting our intellectual property rights, may adversely affect our business.
Borrowings under our loan and security agreement with ACF are secured by substantially all of our personal property, including our intellectual property.
The following is a list of our patents:
| Title | Country |
Patent No. OR Publication No |
Issue Date | Application No. |
Application Date |
| POUCH-PACKAGED CRABMEAT PRODUCT AND METHOD | US | 2015/0257426 A1 | 14/205,742 | 3/12/2014 | |
| METHOD FOR PACKAGING CRABMEAT | US | 8445046 B2 | 5/21/2013 | 13/681,027 | 11/19/2012 |
| METHOD FOR PACKAGING CRABMEAT | US | 8337922 B2 | 12/25/2012 | 10/691,480 | 10/21/2003 |
| METHOD FOR PACKAGING CRABMEAT | EPC | 1526091 B1 | 10/21/2004 | ||
| TH | 28,256 | ||||
| PH | 1-2005-000216 | ||||
| ID | 21261 |
Our patents expire 20 years from the date of issuance.
The following is a list of our registered trademarks, and trademarks for which we have filed applications.
| Mark | Registration No | Registration Date |
Application No. | Application Date |
| AMERICA’S FAVORITE CRABMEAT | 2961590 | 7-Jun-05 | 78344059 |
22-Dec-03 |
| ECO-FRESH | 4525998 | 6-May-14 | 77922376 |
28-Jan-10 |
 |
3858522 | 5-Oct-10 | 77885209 |
3-Dec-09 |
 |
3818057 | 13-Jul-10 | 77885203 | 3-Dec-09 |
| OCEANICA | 3711200 | 17-Nov-09 |
77595180 |
17-Oct-08 |
 |
2419060 | 9-Jan-01 | 75855876 |
19-Nov-99 |
| Lubkin’s Coastal Pride | 2879531 |
8/31/04 | 78289067 | 8/19/03 |
| Lubkin’s Good Stuff | N/A |
N/A |
87919629 | 5/14/18 |
| Lubkin’s First Choice | H/A | N/A | 88645685 |
10/8/19 |
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Government Regulation
Our distribution facility in Florida and our international suppliers are certified in accordance with the HACCP, standards for exporting aquatic products to the United States. The HACCP standards are developed by the U.S. Food and Drug Administration (the “FDA”), pursuant to the FDA’s HACCP regulation, Title 21, Code of Federal Regulations, part 123, and are used by the FDA to help ensure food safety and control sanitary standards.
Food Safety and Labeling
We are subject to extensive regulation, including, among other things, the Food, Drug and Cosmetic Act, as amended by the Food Safety Modernization Act (“FSMA”), the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, and the rules and regulations promulgated thereunder by the FDA. FSMA was enacted in order to aid the effective prevention of food safety issues in the food supply. This comprehensive and evolving regulatory program will impact how food is grown, packed, processed, shipped and imported into the United States and will govern compliance with Good Manufacturing Practices regulations (“GMPs”). The FDA has finalized seven major rules to implement FSMA, recognizing that ensuring the safety of the food supply is a shared responsibility among many different points in the global supply chain. The FSMA rules are designed to make clear specific actions that must be taken at each of these points to prevent contamination. Some aspects of these laws use a strict liability standard for imposing sanctions on corporate behavior. If we fail to comply with applicable laws and regulations, we may be subject to civil remedies, including fines, injunctions, recalls, or seizures, and criminal sanctions, any of which could impact our results of operations.
In addition, the Nutrition Labeling and Education Act of 1990 prescribes the format and content of certain information required to appear on the labels of food products.
Our operations and products are also subject to state and local regulation, including the registration and licensing of plants, enforcement by state health agencies of various state standards, and the registration and inspection of facilities. Compliance with federal, state and local regulation is costly and time-consuming. Enforcement actions for violations of federal, state, and local regulations may include seizure and condemnation of products, cease and desist orders, injunctions or monetary penalties. We believe that our practices are sufficient to maintain compliance with applicable government regulations.
Trade
For the purchase of products harvested or manufactured outside of the United States, and for the shipment of products to customers located outside of the United States, we are subject to customs laws regarding the import and export of shipments. Our activities, including working with customs brokers and freight forwarders, are subject to regulation by U.S. Customs and Border Protection, part of the Department of Homeland Security.
Federal Trade Commission
We are subject to certain regulations by the U.S. Federal Trade Commission. Advertising of our products is subject to such regulation pursuant to the Federal Trade Commission Act and the regulations promulgated thereunder.
Employee Safety Regulations
We are subject to certain health and safety regulations, including regulations issued pursuant to the Occupational Safety and Health Act. These regulations require us to comply with certain manufacturing, health, and safety standards to protect our employees from accidents.
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Anticorruption
Because we are organized under the laws of a state in the U.S. and our principal place of business is in the U.S., we are considered a “domestic concern” under the Foreign Corrupt Practices Act (“FCPA”) and are covered by the anti-bribery provisions of the FCPA. The anti-bribery provisions of the FCPA prohibit any domestic concern and any officer, director, employee, or agent, acting on behalf of the domestic concern from paying or authorizing payment of anything of value to (i) influence any act or decision by a foreign official; (ii) induce a foreign official to do or omit to do any act in violation of his/her lawful duty; (iii) secure any improper advantage; or (iv) induce a foreign official to use his/her influence to assist the payor in obtaining or retaining business, or directing business to another person.
Environmental Regulation
We are subject to a number of federal, state, and local laws and other requirements relating to the protection of the environment and the safety and health of personnel and the public. These requirements relate to a broad range of our activities, including: the discharge of pollutants into the air and water; the identification, generation, storage, handling, transportation, disposal, recordkeeping, labeling, and reporting of, and emergency response in connection with, hazardous materials (including asbestos) associated with our operations; noise emissions from our facilities; and safety and health standards, practices, and procedures that apply to the workplace and the operation of our facilities. Insurance
We maintain general liability and product liability, property, worker’s compensation and business interruption insurance and are in the process of obtaining director and officer insurance in amounts and on terms that we believe are customary for companies similarly situated. In addition, we maintain excess insurance where we believe it is reasonably cost effective.
Employees
As of May 28, 2020, we have eighteen full time employees and no part-time employees. We believe that our future success will depend, in part, on our continued ability to attract, hire and retain qualified personnel.
THIS ANNUAL REPORT CONTAINS CERTAIN STATEMENTS RELATING TO FUTURE EVENTS OR THE FUTURE FINANCIAL PERFORMANCE OF OUR COMPANY. YOU ARE CAUTIONED THAT SUCH STATEMENTS ARE ONLY PREDICTIONS AND INVOLVE RISKS AND UNCERTAINTIES, AND THAT ACTUAL EVENTS OR RESULTS MAY DIFFER MATERIALLY. IN EVALUATING SUCH STATEMENTS, YOU SHOULD SPECIFICALLY CONSIDER THE VARIOUS FACTORS IDENTIFIED IN THIS ANNUAL REPORT, INCLUDING THE MATTERS SET FORTH BELOW, WHICH COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE INDICATED BY SUCH FORWARD-LOOKING STATEMENTS.
AN INVESTMENT IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS BEFORE DECIDING TO INVEST IN OUR COMPANY. IF ANY OF THE FOLLOWING RISKS ACTUALLY OCCUR, OUR BUSINESS, FINANCIAL CONDITION, RESULTS OF OPERATIONS AND PROSPECTS FOR GROWTH WOULD LIKELY SUFFER.
Risks Relating to Our Company and Business
Future acquisitions may have an adverse effect on our ability to manage our business.
Selective acquisitions currently form part of our strategy to further expand our business. If we are presented with appropriate opportunities, we may acquire additional businesses, services or products that are complementary to our core business. Future acquisitions and the subsequent integration of new companies into ours would require significant attention from our management. Future acquisitions would also expose us to potential risks, including risks associated with the assimilation of new operations, services and personnel, unforeseen or hidden liabilities, the diversion of resources from our existing businesses and technologies, the inability to generate sufficient revenue to offset the costs and expenses of acquisitions and potential loss of, or harm to, relationships with employees as a result of integration of new businesses. The diversion of our management’s attention and any difficulties encountered in any integration process could have a material adverse effect on our ability to manage our business.
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The value of crab meat is subject to fluctuation which may result in volatility of our results of operations and the value of an investment in the Company.
Our business is dependent upon the sale of a commodity which value is subject to fluctuation and which value greatly fluctuates. Our net sales and operating results vary significantly due to the volatility of the value of the crab meat that we sell which may result in the volatility of the market price of our common stock.
A material decline in the population and biomass of crab meat that we sell in the fisheries from which we obtain our crab meat would materially and adversely affect our business.
The population and biomass of crab meat are subject to natural fluctuations which are beyond our control and which may be exacerbated by disease, reproductive problems or other biological issues and may be affected by changes in weather and global environmental changes. The overall health of a crab or other fish is difficult to measure, and fisheries management is still a relatively inexact science. Since we are unable to predict the timing and extent of fluctuations in the population and biomass of our products, we are unable to engage in any measures that might alleviate the adverse effects of these fluctuations. Any such fluctuation which results in a material decline in the population and biomass in the fisheries from which we obtain our crab meat would materially and adversely affect our business. Our operations are also subject to the risk of variations in supply.
We are subject to the risk of product contamination and product liability claims.
The sales of our products may involve the risk of injury to consumers. Such injuries may result from tampering by unauthorized personnel, product contamination or spoilage, including the presence of foreign objects, substances, chemicals, or residues introduced during the packing, storage, handling or transportation phases. While we are subject to governmental inspection and regulations and believe our facilities comply in all material respects with all applicable laws and regulations, including internal product safety policies, we cannot be sure that consumption of our products will not cause a health-related illness in the future or that we will not be subject to claims or lawsuits relating to such matters. Even if a product liability claim is unsuccessful, the negative publicity surrounding any assertion that our products caused illness or injury could adversely affect our reputation with existing and potential customers and our brand image.
A significant portion of our revenues are derived from a single product, crab meat, and therefore we are highly susceptible to changes in market demand, which may be affected by factors over which we have limited or no control.
A significant portion of our revenues are derived from a single product, crab meat. We therefore are highly susceptible to changes in market demand, which may be impacted by factors over which we have limited or no control. Factors that could lead to a decline in market demand for crab meat include economic conditions and evolving consumer preferences. A substantial downturn in market demand for crab meat may have a material adverse effect on our business and on our results of operations.
Risks Related to Our Industry
Regulation of the fishing industry may have an adverse impact on our business.
The international community has been aware of and concerned with the worldwide problem of depletion of natural fish stocks. In the past, these concerns have resulted in the imposition of quotas that subject individual countries to strict limitations on the amount of seafood that is allowed to be caught or harvested. Environmental groups have been lobbying for additional limitations. If international organizations or national governments were to impose additional limitations on crab meat or the seafood products we sell, this could have a negative impact on our results of operations.
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Segments of the seafood industry in which we operate are competitive, and our inability to compete successfully could adversely affect our business, results of operations and financial condition.
We compete with major integrated seafood companies such as Tri Union Frozen Products, Inc. (Chicken of the Sea Frozen Foods), Phillips Foods, Inc., Harbor Seafood, Inc., Bonamar Corporation and Twin Tails Seafood Corp. Some of our competitors have the benefit of marketing their products under brand names that have better market recognition than ours or have stronger marketing and distribution channels than we do. Increased competition as to any of our products could result in price reduction, reduced margins and loss of market share, which could negatively affect our profitability. An increase in imported products in the U.S. at low prices could also negatively affect our profitability.
Our insurance coverage may be inadequate to cover losses we may incur or to fully replace a significant loss of assets.
Our involvement in the fishing industry may result in liability for pollution, property damage, personal injury or other hazards. Although we believe we have obtained insurance in accordance with industry standards to address such risks, such insurance has limitations on liability and/or deductible amounts that may not be sufficient to cover the full extent of such liabilities or losses. In addition, such risks may not, in all circumstances, be insurable or, in certain circumstances, we may choose not to obtain insurance to protect against specific risks due to the high premiums associated with such insurance or for other reasons. The payment of such uninsured liabilities would reduce the funds available to us. If we suffer a significant event or occurrence that is not fully insured, or if the insurer of such event is not solvent, we could be required to divert funds from capital investment or other uses towards covering any liability or loss for such events.
Our operations, revenue and profitability could be adversely affected by changes in laws and regulations in the countries where we do business.
The governments of countries into which we sell our products, from time to time, consider regulatory proposals relating to raw materials, food safety and markets, and environmental regulations, which, if adopted, could lead to disruptions in distribution of our products and increase our operational costs, which, in turn, could affect our profitability. To the extent that we increase our product prices as a result of such changes, our sales volume and revenues may be adversely affected.
Furthermore, these governments may change import regulations or impose additional taxes or duties on certain imports from time to time. These regulations and fees or new regulatory developments may have a material adverse impact on our operations, revenue and profitability. If one or more of the countries into which we sell our products bars the import or sale of crab meat or related products, our available market would shrink significantly, adversely impacting our results of operations and growth potential.
A decline in discretionary consumer spending may adversely affect our industry, our operations and ultimately our profitability.
Luxury products, such as premium grade crab meat, are discretionary purchases for consumers. Any reduction in consumer discretionary spending or disposable income may affect the crab meat industry significantly. Many economic factors outside of our control could affect consumer discretionary spending, including the financial markets, consumer credit availability, prevailing interest rates, energy costs, employment levels, salary levels, and tax rates. Any reduction in discretionary consumer spending could materially adversely affect our business and financial condition.
Risks Related to Our Reliance on Third Parties
We are dependent on third parties for our operations.
Our business is dependent upon our relationships with vendors in Southeast Asia for co-packing, processing and shipping product to us. If for any reason these companies became unable or unwilling to continue to provide services to us, this would likely lead to a temporary interruption in our ability to import our products until we found another entity that could provide these services. Failure to find a suitable replacement, even on a temporary basis, would have an adverse effect on our results of operations.
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We are primarily dependent on two suppliers to provide our crab meat product.
The Company had two suppliers which accounted for approximately 42% of the Company’s total purchases during the year ended December 31, 2019. These two suppliers are located in Indonesia and the Philippines. These suppliers included Bacolod, which accounted for approximately 27% of the Company’s total purchases during 2019. The loss of any major supplier could have a material adverse impact on the Company’s results of operations, cash flows and financial position. John Keeler, our Executive Chairman, owns 95%, of Bacolod, an exporter of pasteurized crab meat from the Philippines, and 95% of Bicol Blue Star Export Co., a Philippine company (“Bicol”), and an indirect supplier of crab meat to the Company through Bacolod.
Three customers accounted for 46% of our revenue.
The Company had three customers which accounted for approximately 46% of revenue during the year ended December 31, 2019. Outstanding receivables from these customers accounted for approximately 24% of the total accounts receivable as of December 31, 2019. The loss of any major customer could have a material adverse impact on the Company’s results of operations, cash flows and financial position.
All of our significant customer contracts and some of our supplier contracts are short-term and may not be renewable on terms favorable to us, or at all.
All of our customers and some of our suppliers operate through purchase orders or short-term contracts. Though we have long-term business relationships with many of our customers and suppliers and alternative sources of supply for key items, we cannot be sure that any of these customers or suppliers will continue to do business with us on the same basis. Additionally, although we try to renew these contracts as they expire, there can be no assurance that these customers or suppliers will renew these contracts on terms that are favorable to us, if at all. The termination of, or modification to, any number of these contracts may adversely affect our business and prospects, including our financial performance and results of operations.
Risks Related to Our Financial Condition and Capital Requirements
Our independent registered public accounting firm has included an explanatory paragraph relating to our ability to continue as a going concern in its report on our audited financial statements.
The report from our independent registered public accounting firm for the fiscal year ended December 31, 2019 includes an explanatory paragraph stating that for the year ended December 31, 2019, the Company incurred a net loss of $5,021,703, has an accumulated deficit of $8,952,466 and working capital deficit of $2,786,086, inclusive of $2,910,136 in subordinated stockholder debt. These factors raise substantial doubt about the Company’s ability to continue as a going concern. The Company’s ability to continue as a going concern is dependent on its ability to increase revenues, execute on its business plan to acquire complimentary companies, raise capital and continue to sustain adequate working capital to finance its operations. If we are unable to do so, our financial condition and results of operations will be materially and adversely affected and we may be unable to continue as a going concern.
We need to raise additional capital to fund our existing commercial operations and develop and commercialize new products and expand our operations.
Our current available cash balances and anticipated cash flow from operations are insufficient to satisfy our liquidity requirements., We will require substantial additional funds our operations, for the service of debt and to fund our business objectives We will have to continue to rely on equity and debt financing. There can be no assurance that financing, whether debt or equity, will always be available to us in the amount required at any particular time or for any particular period or, if available, that it can be obtained on terms favorable to us. Additionally, the continued spread of COVID-19 and uncertain market conditions may limit the Company’s ability to access capital.
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COVID-19 has also caused significant disruptions to the global financial markets, which severely impacts our ability to raise additional capital.
The full impact of the COVID-19 outbreak continues to evolve as of the date of this report, is highly uncertain and subject to change. Management is actively monitoring the situation but given the daily evolution of the COVID-19 outbreak, the Company is not able to estimate the effects of the COVID-19 outbreak on its operations or financial condition in the next 12 months. However, while significant uncertainty remains, the Company believes it is likely that the COVID-19 outbreak may have a negative impact on its ability to raise additional financing.
We may consider raising additional capital in the future to expand our business, to pursue strategic investments, to take advantage of financing opportunities or for other reasons, including to:
| ● | increase our sales and marketing efforts and address competitive developments; | |
| ● | provide for supply and inventory costs; | |
| ● | fund development and marketing efforts of any future products or additional features to then-current products; | |
| ● | acquire, license or invest in new technologies; | |
| ● | acquire or invest in complementary businesses or assets; and | |
| ● | finance capital expenditures and general and administrative expenses. |
Our present and future funding requirements will depend on many factors, including:
| ● | our ability to achieve revenue growth and improve gross margins; | |
| ● | the cost of expanding our operations and offerings, including our sales and marketing efforts; | |
| ● | the effect of competing market developments; | |
| ● | costs related to international expansion; and the continuing effects of COVID-19. |
The various ways we could raise additional capital carry potential risks. If we raise funds by issuing equity securities, dilution to our stockholders could result. Any equity securities issued also could provide for rights, preferences or privileges senior to those of holders of our Common Stock. If we raise funds by issuing debt securities, those debt securities would have rights, preferences and privileges senior to those of holders of our Common Stock. The terms of debt securities issued or borrowings pursuant to a credit agreement could impose significant restrictions on our operations. If we raise funds through collaborations and licensing arrangements, we might be required to relinquish significant rights or grant licenses on terms that are not favorable to us.
We incur significant costs as a result of operating as a public company and our management expects to devote substantial time to public company compliance.
As a public company, we incur significant legal, accounting and other expenses due to our compliance with regulations and disclosure obligations applicable to us, including compliance with the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley Act”), and the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) as well as rules implemented by the SEC, and the OTC Markets. Stockholder activism, the current political environment and the current high level of government intervention and regulatory reform may lead to substantial new regulations and disclosure obligations, which may lead to additional compliance costs and impact, in ways we cannot currently anticipate, the manner in which we operate our business. Our management and other personnel devote a substantial amount of time to these compliance programs and monitoring of and compliance with, public company reporting obligations. These rules and regulations cause us to incur significant legal and financial compliance costs and make some activities more time consuming and costly.
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To comply with the requirements of being a public company, we may need to undertake various actions, including implementing new internal controls and procedures and hiring new accounting or internal audit staff. The Sarbanes-Oxley Act requires that we maintain effective disclosure controls and procedures and internal control over financial reporting. We are continuing to develop and refine our disclosure controls and other procedures that are designed to ensure that information required to be disclosed by us in the reports that we file with the SEC is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and that information required to be disclosed in reports under the Exchange Act is accumulated and communicated to our principal executive and financial officers. Our current controls and any new controls that we develop may become inadequate and weaknesses in our internal control over financial reporting may be discovered in the future. Any failure to develop or maintain effective controls could negatively impact the results of periodic management evaluations and annual independent registered public accounting firm attestation reports regarding the effectiveness of our internal control over financial reporting that we may be required to include in our periodic reports we will file with the SEC under Section 404 of the Sarbanes-Oxley Act, harm our operating results, cause us to fail to meet our reporting obligations or result in a restatement of our prior period financial statements. In the event that we are not able to demonstrate compliance with the Sarbanes-Oxley Act, that our internal control over financial reporting is perceived as inadequate or that we are unable to produce timely or accurate financial statements, investors may lose confidence in our operating results and the price of our common stock could decline. In addition, if we are unable to continue to meet these requirements, our common stock may not be able to be eligible for quotation on the OTC Markets or meet the eligibility requirements for the NASDAQ Stock Market.
We are required to comply with the SEC rules that implement Section 404 of the Sarbanes-Oxley Act and are therefore are required to make a formal assessment of the effectiveness of our internal control over financial reporting for that purpose. We are required to comply with certain of these rules, which require management to certify financial and other information in our quarterly and annual reports and provide an annual management report on the effectiveness of our internal control over financial reporting. During the evaluation and testing process, if we identify one or more material weaknesses in our internal control over financial reporting, we will be unable to assert that our internal control over financial reporting is effective.
Our independent registered public accounting firm will not be required to formally attest to the effectiveness of our internal control over financial reporting until the first annual report required to be filed with the SEC following the date we are no longer an “emerging growth company” as defined in the JOBS Act depending on whether we choose to rely on certain exemptions set forth in the JOBS Act. If we are unable to assert that our internal control over financial reporting is effective, or if our independent registered public accounting firm is unable to express an opinion on the effectiveness of our internal control over financial reporting, we could lose investor confidence in the accuracy and completeness of our financial reports, which could harm our business.
Our loan and security agreement with ACF Finco I LP (“ACF”), contains operating and financial covenants that may restrict business and financing activities of our wholly-owned subsidiaries, John Keeler & Co, Inc. and Coastal Pride.
As of December 31, 2019, we had $6,917,968 in outstanding debt to ACF. Borrowings under our loan and security agreement with ACF are secured by substantially all of our personal property, including our intellectual property. Our loan and security agreement contains affirmative and negative covenants which restricts our wholly-owned subsidiary, John Keeler & Co, Inc.’s and its subsidiary, Coastal Pride’s ability to, among other things:
| ● | dispose of or sell its assets; | |
| ● | make material changes in its business; |
| ● | merge with or acquire other entities or assets; | |
| ● | incur additional indebtedness; |
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| ● | create liens on its assets; | |
| ● | pay dividends; and | |
| ● | make investments. |
The operating and financial restrictions and covenants in our loan and security agreement, as well as any future financing agreements into which we may enter, may restrict our or our subsidiary’s ability to finance operations and engage in, expand or otherwise pursue business activities and strategies. Our ability to comply with these covenants may be affected by events beyond our control, and future breaches of any of these covenants could result in a default under our loan and security agreement. If not waived, future defaults could cause all of the outstanding indebtedness under our loan and security agreement to become immediately due and payable and terminate all commitments to extend further credit.
If we do not have or are unable to generate sufficient cash available to repay our debt obligations when they become due and payable, either upon maturity or in the event of a default, we may not be able to obtain additional debt or equity financing on favorable terms, if at all, which may negatively impact our ability to operate and continue our business as a going concern.
We face risks related to the current global economic environment which could harm our business, financial condition and results of operations.
The state of the global economy continues to be uncertain. The current global economic conditions and uncertain credit markets, concerns regarding the availability of credit pose a risk that could impact our international relationships, as well as our ability to manage normal commercial relationships with our customers, suppliers and creditors, including financial institutions. Global trade issues and the impositions of tariffs could also have an adverse effect on our international business activities. If the current global economic environment deteriorates, our business could be negatively affected.
Risks Related to Administrative, Organizational and Commercial Operations and Growth
We may be unable to manage our future growth effectively, which could make it difficult to execute our business strategy.
We anticipate growth in our business operations. This future growth could create a strain on our organizational, administrative and operational infrastructure, including manufacturing operations, quality control, technical support and customer service, sales force management and general and financial administration. Our ability to manage our growth properly will require us to continue to improve our operational, financial and management controls, as well as our reporting systems and procedures. If we are unable to manage our growth effectively, we may be unable to execute our business plan, which could have a material adverse effect on our business and our results of operations.
If we are unable to support demand for our current and our future products, including ensuring that we have adequate resources to meet increased demand our business could be harmed.
As our commercial operations and sales volume grow, we will need to continue to increase our workflow capacity for processing, customer service, billing and general process improvements and expand our internal quality assurance program, among other things. We may also need to purchase additional equipment and increase our manufacturing, maintenance, software and computing capacity to meet increased demand. We cannot assure you that any of these increases in scale, expansion of personnel, purchase of equipment or process enhancements will be successfully implemented.
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The loss of our Executive Chairman and Chief Executive Officer or our inability to attract and retain highly skilled officers and key personnel could negatively impact our business.
Our success depends on the skills, experience and performance of our Executive Chairman and Chief Executive Officer. The individual and collective efforts of these individuals will be important as we continue to develop and expand our commercial activities. The loss or incapacity of existing members of our executive management team could negatively impact our operations if we experience difficulties in hiring qualified successors. Qualified employees periodically are in great demand and may be unavailable in the time frame required to satisfy our customers’ requirements. Expansion of our business could require us to employ additional personnel. There can be no assurance that we will be able to attract and retain sufficient numbers of skilled employees in the future. The loss of personnel or our inability to hire or retain sufficient personnel at competitive rates could impair the growth of our business.
If we were sued for product liability or professional liability, we could face substantial liabilities that exceed our resources.
The marketing and sale of our products could lead to the filing of product liability claims alleging that our product made users ill. A product liability claim could result in substantial damages and be costly and time-consuming for us to defend.
We maintain product liability insurance, but this insurance may not fully protect us from the financial impact of defending against product liability claims. Any product liability claim brought against us, with or without merit, could increase our insurance rates or prevent us from securing insurance coverage in the future. Additionally, any product liability lawsuit could lead to regulatory investigations, product recalls or withdrawals, damage our reputation or cause current vendors, suppliers and customers to terminate existing agreements and potential customers and partners to seek other suppliers, any of which could negatively impact our results of operations.
We face risks associated with our international business.
Our international business operations are subject to a variety of risks, including:
| ● | difficulties with managing foreign and geographically dispersed operations; | |
| ● | having to comply with various U.S. and international laws, including export control laws and the FCPA, and anti-money laundering laws; | |
| ● | changes in uncertainties relating to foreign rules and regulations; | |
| ● | tariffs, export or import restrictions, restrictions on remittances abroad, imposition of duties or taxes that limit our ability to import product; | |
| ● | limitations on our ability to enter into cost-effective arrangements with distributors, or at all; | |
| ● | fluctuations in foreign currency exchange rates; | |
| ● | imposition of limitations on production, sale or export in foreign countries; | |
| ● | imposition of limitations on or increase of withholding and other taxes on remittances and other payments by foreign processors or joint ventures; | |
| ● | imposition of differing labor laws and standards; | |
| ● | economic, political or social instability in foreign countries and regions; | |
| ● | an inability, or reduced ability, to protect our intellectual property, including any effect of compulsory licensing imposed by government action; | |
| ● | availability of government subsidies or other incentives that benefit competitors in their local markets that are not available to us; |
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| ● | difficulties in recruiting and retaining personnel, and managing international operations; | |
| ● | less developed infrastructure; and impositions on operations from Covid-19. |
If we expand into other target markets we cannot assure you that our expansion plans will be realized, or if realized, be successful. We expect each market to have particular regulatory and funding hurdles to overcome and future developments in these markets, including the uncertainty relating to governmental policies and regulations, could harm our business. If we expend significant time and resources on expansion plans that fail or are delayed, our reputation, business and financial condition may be harmed.
Our results may be impacted by changes in foreign currency exchange rates.
Currently, the majority of our international sales contracts are denominated in U.S. dollars. We pay certain of our suppliers in a foreign currency and we may pay others in the future in foreign currency. As a result, an increase in the value of the U.S. dollar relative to foreign currencies could require us to reduce our selling price or risk making our product less competitive in international markets or our costs could increase. Also, if our international sales increase, we may enter into a greater number of transactions denominated in non-U.S. dollars, which could expose us to foreign currency risks, including changes in currency exchange rates.
A larger portion of our revenues may be denominated in other foreign currencies if we expand our international operations. Conducting business in currencies other than U.S. dollars subjects us to fluctuations in currency exchange rates that could have a negative impact on our operating results. Fluctuations in the value of the U.S. dollar relative to other currencies impact our revenues, cost of revenues and operating margins and result in foreign currency translation gains and losses.
We could be negatively impacted by violations of applicable anti-corruption laws or violations of our internal policies designed to ensure ethical business practices.
We operate in a number of countries throughout the world, including in countries that do not have as strong a commitment to anti-corruption and ethical behavior that is required by U.S. laws or by corporate policies. We are subject to the risk that we, our U.S. employees or our employees located in other jurisdictions or any third parties that we engage to do work on our behalf in foreign countries may take action determined to be in violation of anti-corruption laws in any jurisdiction in which we conduct business. Any violation of anti-corruption laws or regulations could result in substantial fines, sanctions, civil and/or criminal penalties and curtailment of operations in certain jurisdictions and might harm our business, financial condition or results of operations. Further, detecting, investigating and resolving actual or alleged violations is expensive and can consume significant time and attention of our senior management.
We depend on our information technology systems, and any failure of these systems could harm our business.
We depend on information technology and telecommunications systems for significant elements of our operations. We have developed propriety software for the management and operation of our business. We have installed and expect to expand a number of enterprise software systems that affect a broad range of business processes and functional areas, including for example, systems handling human resources, financial controls and reporting, contract management, regulatory compliance and other infrastructure operations.
Information technology and telecommunications systems are vulnerable to damage from a variety of sources, including telecommunications or network failures, malicious human acts and natural disasters. Moreover, despite network security and back-up measures, some of our servers are potentially vulnerable to physical or electronic break-ins, computer viruses and similar disruptive problems. Despite the precautionary measures we have taken to prevent unanticipated problems that could affect our information technology and telecommunications systems, failures or significant downtime of our information technology or telecommunications systems or those used by our third-party service providers could prevent us from providing support services and product to our customers and managing the administrative aspects of our business. Any disruption or loss of information technology or telecommunications systems on which critical aspects of our operations depend could harm our business.
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Our operations are vulnerable to interruption or loss due to natural or other disasters, power loss, strikes and other events beyond our control.
We conduct a significant portion of our activities, including administration and data processing, at facilities located in Southern Florida that have experienced major hurricanes and floods which could affect our facilities, , could significantly disrupt our operations, and delay or prevent product shipment during the time required to repair, rebuild or replace damaged processing facilities; these delays could be lengthy and costly. Our suppliers in Southeast Asia are also vulnerable to natural disasters which could disrupt their operations and their ability to supply product to us. If any of our customers’ facilities are negatively impacted by a disaster, product shipments could be delayed. Additionally, customers may delay purchases of products until operations return to normal. Even if we and/or our suppliers are able to quickly respond to a disaster, the ongoing effects of the disaster could create some uncertainty in the operations of our business. In addition, our facilities may be subject to a shortage of available electrical power and other energy supplies. Any shortages may increase our costs for power and energy supplies or could result in blackouts, which could disrupt the operations of our affected facilities and harm our business.
Risks Related to Intellectual Property
Our intellectual property rights are valuable, and any inability to adequately protect, or uncertainty regarding validity, enforceability or scope of them could undermine our competitive position and reduce the value of our products, services and brand, and litigation to protect our intellectual property rights may be costly.
We attempt to strengthen and differentiate our product portfolio by developing new and innovative products and product improvements. As a result, our patents, trademarks, trade secrets, copyrights and other intellectual property rights are important assets to us. Various events outside of our control pose a threat to our intellectual property rights as well as to our products and services. For example, effective intellectual property protection may not be available in countries in which our products are sold. Also, although we have registered our trademark in various jurisdictions, our efforts to protect our proprietary rights may not be sufficient or effective. Any significant impairment of our intellectual property rights could harm our business or our ability to compete and hurt our results of operation. Also, protecting our intellectual property rights is costly and time consuming. Policing unauthorized use of our proprietary technology can be difficult and expensive. Litigation might be necessary to protect our intellectual property rights and any such litigation may be costly and may divert our management’s attention from our core business. An adverse determination in any lawsuit involving our intellectual property is likely to jeopardize our business prospects and reputation. Although we are not aware of any of such litigation, we have no insurance coverage against litigation costs, so we would be forced to bear all litigation costs if we cannot recover them from other parties. All foregoing factors could harm our business, financial condition, and results of operations. Any unauthorized use of our intellectual property could make it more expensive for us to do business and harm our operating results.
We may be exposed to infringement or misappropriation claims by third parties, which, if determined against us, could adversely affect our business and subject us to significant liability to third parties.
Our success mainly depends on our ability to use and develop our technology and product designs without infringing upon the intellectual property rights of third parties. We may be subject to litigation involving claims of patent infringement or violations of other intellectual property rights of third parties. Holders of patents and other intellectual property rights potentially relevant to our product offerings may be unknown to us, which may make it difficult for us to acquire a license on commercially acceptable terms. There may also be technologies licensed to us and that we rely upon that are subject to infringement or other corresponding allegations or claims by third parties which may damage our ability to rely on such technologies. In addition, although we endeavor to ensure that companies that work with us possess appropriate intellectual property rights or licenses, we cannot fully avoid the risks of intellectual property rights infringement created by suppliers of components used in our products or by companies we work with in cooperative research and development activities. Our current or potential competitors may have obtained or may obtain patents that will prevent, limit or interfere with our ability to make, use or sell our products. The defense of intellectual property claims, including patent infringement suits, and related legal and administrative proceedings can be both costly and time consuming, and may significantly divert the efforts and resources of our technical personnel and management. These factors could effectively prevent us from pursuing some or all of our business operations and result in our customers or potential customers deferring, canceling or limiting their purchase or use of our products, which may have a material adverse effect on our business, financial condition and results of operations.
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Our commercial success will depend in part on our success in obtaining and maintaining issued patents and other intellectual property rights in the United States and elsewhere If we do not adequately protect our intellectual property, competitors may be able to use our processes and erode or negate any competitive advantage we may have, which could harm our business.
We cannot provide any assurances that any of our patents have, or that any of our pending patent applications that mature into issued patents will include, claims with a scope sufficient to protect our products, any additional features we develop or any new products. Patents, if issued, may be challenged, deemed unenforceable, invalidated or circumvented.
Furthermore, though an issued patent is presumed valid and enforceable, its issuance is not conclusive as to its validity or its enforceability and it may not provide us with adequate proprietary protection or competitive advantages against competitors with similar products. Competitors may also be able to design around our patents. Other parties may develop and obtain patent protection for more effective technologies, designs or methods. We may not be able to prevent the unauthorized disclosure or use of our knowledge or trade secrets by consultants, suppliers, vendors, former employees and current employees. The laws of some foreign countries do not protect our proprietary rights to the same extent as the laws of the United States, and we may encounter significant problems in protecting our proprietary rights in these countries. If any of these developments were to occur, they each could have a negative impact on our sales.
If we are unable to protect the confidentiality of our trade secrets, our business and competitive position could be harmed.
We rely upon copyright and trade secret protection, as well as non-disclosure agreements and invention assignment agreements with our employees, consultants and third parties, to protect our confidential and proprietary information. In addition to contractual measures, we try to protect the confidential nature of our proprietary information using physical and technological security measures. Such measures may not, for example, in the case of misappropriation of a trade secret by an employee or third party with authorized access, provide adequate protection for our proprietary information. Our security measures may not prevent an employee or consultant from misappropriating our trade secrets and providing them to a competitor, and recourse we take against such misconduct may not provide an adequate remedy to protect our interests fully. Enforcing a claim that a party illegally disclosed or misappropriated a trade secret can be difficult, expensive and time-consuming, and the outcome is unpredictable. In addition, trade secrets may be independently developed by others in a manner that could prevent legal recourse by us. If any of our confidential or proprietary information, such as our trade secrets, were to be disclosed or misappropriated, or if any such information was independently developed by a competitor, our competitive position could be harmed.
We may not be able to enforce our intellectual property rights throughout the world.
The laws of some foreign countries do not protect intellectual property rights to the same extent as the laws of the United States. Many companies have encountered significant problems in protecting and defending intellectual property rights in certain foreign jurisdictions. This could make it difficult for us to stop the infringement or the misappropriation of our intellectual property rights. For example, many foreign countries have compulsory licensing laws under which a patent owner must grant licenses to third parties. In addition, many countries limit the enforceability of patents against third parties, including government agencies or government contractors. In these countries, patents may provide limited or no benefit. Patent protection must ultimately be sought on a country-by-country basis, which is an expensive and time-consuming process with uncertain outcomes. Accordingly, we may choose not to seek patent protection in certain countries, and we will not have the benefit of patent protection in such countries.
Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial costs and divert our efforts and attention from other aspects of our business. Accordingly, our efforts to protect our intellectual property rights in such countries may be inadequate. In addition, changes in the law and legal decisions by courts in the United States and foreign countries may affect our ability to obtain adequate protection for our technology and the enforcement of intellectual property.
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Third parties may assert that our employees or consultants have wrongfully used or disclosed confidential information or misappropriated trade secrets.
Although we try to ensure that our employees and consultants do not use the proprietary information or know-how of others in their work for us, we may be subject to claims that we or our employees, consultants or independent contractors have inadvertently or otherwise used or disclosed intellectual property, including trade secrets or other proprietary information, of a former employer or other third parties. Litigation may be necessary to defend against these claims. If we fail in defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights or personnel. Even if we are successful in defending against such claims, litigation could result in substantial costs and be a distraction to management and other employees.
Risks Related to Regulatory Matters
Our products and operations are subject to government regulation and oversight both in the United States and abroad, and our failure to comply with applicable requirements could harm our business.
The FDA and other government agencies regulate, among other things, with respect to our products and operations:
| ● | design, development and manufacturing; | |
| ● | testing, labeling, content and language of instructions for use and storage; | |
| ● | product safety; | |
| ● | marketing, sales and distribution; | |
| ● | record keeping procedures; | |
| ● | advertising and promotion; | |
| ● | recalls and corrective actions; | |
| ● | product import and export. |
The regulations to which we are subject are complex and have tended to become more stringent over time. Regulatory changes could result in restrictions on our ability to carry on or expand our operations, higher than anticipated costs or lower than anticipated sales.
The failure to comply with applicable regulations could jeopardize our ability to sell our products and result in enforcement actions such as:
| ● | warning letters; | |
| ● | fines; | |
| ● | injunctions; |
| ● | civil penalties; | |
| ● | termination of distribution; | |
| ● | recalls or seizures of products; |
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| ● | delays in the introduction of products into the market; and | |
| ● | total or partial suspension of production. |
We may also be required to take corrective actions, such as installing additional equipment or taking other actions, each of which could require us to make substantial capital expenditures. We could also be required to indemnify our employees in connection with any expenses or liabilities that they may incur individually in connection with regulatory action against them. As a result, our future business prospects could deteriorate due to regulatory constraints, and our profitability could be impaired by our obligation to provide such indemnification to our employees.
Any of these sanctions could result in higher than anticipated costs or lower than anticipated sales and harm our reputation, business, financial condition and results of operations.
Product liability claims could divert management’s attention from our business, be expensive to defend and result in sizeable damage awards against us that may not be covered by insurance.
Risks Relating to Our Common Stock
If we fail to maintain an effective system of internal controls, we may not be able to accurately report our financial results or detect fraud. Consequently, investors could lose confidence in our financial reporting and this may decrease the trading price of our Common Stock.
We must maintain effective internal controls to provide reliable financial reports and detect fraud. We are in the process of evaluating changes to internal controls for our new public company status but have not yet implemented changes. Failure to implement changes to our internal controls or any other factors that we identify as necessary to maintain an effective system of internal controls could harm our operating results and cause investors to lose confidence in our business, operations or reported financial information. Any such inability to establish effective controls or loss of confidence would have an adverse effect on our company and could adversely affect the trading price of our Common Stock.
The price of our Common Stock may be volatile and may be influenced by numerous factors, some of which are beyond our control.
Factors that could cause volatility in the market price of our Common Stock include, but are not limited to:
| ● | actual or anticipated fluctuations in our financial condition and operating results; | |
| ● | actual or anticipated changes in our growth rate relative to our competitors; | |
| ● | commercial success and market acceptance of our products; | |
| ● | success of our competitors in commercializing products; | |
| ● | strategic transactions undertaken by us; | |
| ● | additions or departures of key personnel; | |
| ● | product liability claims; | |
| ● | prevailing economic conditions; | |
| ● | disputes concerning our intellectual property or other proprietary rights; | |
| ● | U.S. or foreign regulatory actions affecting us or our industry; | |
| ● | sales of our Common Stock by our officers, directors or significant stockholders; |
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| ● | future sales or issuances of equity or debt securities by us; | |
| ● | business disruptions caused by natural disasters; and | |
| ● | issuance of new or changed securities analysts’ reports or recommendations regarding us. |
In addition, the stock markets in general have experienced extreme volatility that have been often unrelated to the operating performance of the issuer. These broad market fluctuations may negatively impact the price or liquidity of our Common Stock. In the past, when the price of a stock has been volatile, holders of that stock have sometimes instituted securities class action litigation against the issuer. If any of our stockholders were to bring such a lawsuit against us, we could incur substantial costs defending the lawsuit and the attention of our management would be diverted from the operation of our business.
We are an “emerging growth company” and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies will make our Common Stock less attractive to investors.
We are an “emerging growth company,” as defined in the JOBS Act, and may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies,” including not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. We cannot predict if investors will find our Common Stock less attractive because we may rely on these exemptions. If some investors find our Common Stock less attractive as a result, there may be a less active trading market for our Common Stock and our stock price may be more volatile.
In addition, Section 102 of the JOBS Act also provides that an “emerging growth company” can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended, or the Securities Act, for complying with new or revised accounting standards. An “emerging growth company” can therefore delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have elected to take advantage of the benefits of this extended transition period. Our financial statements may therefore not be comparable to those of companies that comply with such new or revised accounting standards.
You may experience dilution of your ownership interests because of the future issuance of additional shares of our Common Stock or preferred stock or other securities that are convertible into or exercisable for our Common Stock or preferred stock.
If our existing stockholders convert our Series A Stock or exercise Warrants or sell, or indicate an intention to sell, substantial amounts of our Common Stock in the public market, the price of our Common Stock could decline. The perception in the market that these sales may occur could also cause the price of our Common Stock to decline.
In the future, we may issue authorized but previously unissued equity securities, resulting in the dilution of the ownership interests of the then current stockholders. We are authorized to issue an aggregate of 100,000,000 shares of common stock and 5,000,000 shares of “blank check” preferred stock. We may issue additional shares of our Common Stock or other securities that are convertible into or exercisable for our Common Stock in connection with hiring or retaining employees, future acquisitions, future sales of our securities for capital raising purposes, or for other business purposes. The future issuance of any such additional shares of our Common Stock may create downward pressure on the trading price of the common stock. We may need to raise additional capital in the near future to meet our working capital needs, and there can be no assurance that we will not be required to issue additional shares, warrants or other convertible securities in the future in conjunction with these capital raising efforts, including at a price (or exercise prices) below the price you paid for your stock.
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There is currently a limited market for our Common Stock. You may therefore be unable to re-sell shares of our Common Stock at times and prices that you believe are appropriate.
Our Common Stock has been quoted on the OTC pink sheets under the symbol “BSFC” as of February 18, 2020. Currently, there is a limited trading market for our Common Stock and a more active market for our Common Stock may never develop. Accordingly, our Common Stock is highly illiquid, and you may experience difficulty buying and selling shares at times and prices that you may desire. Trading in stocks quoted on the OTCQB Markets is often thin and characterized by wide fluctuations in trading prices. Moreover, the OTC pink sheets is not a stock exchange, and trading of securities is often more sporadic than the trading of securities listed on a quotation system like Nasdaq or a national stock exchange.
Our Common Stock may be deemed a “penny stock” which may reduce the value of an investment in the stock.
Rule 15g-9 under the Exchange Act establishes the definition of a “penny stock,” for the purposes relevant to us, as any equity security that has a market price of less than $5.00 per share or with an exercise price of less than $5.00 per share, subject to certain exceptions. For any transaction involving a penny stock, unless exempt, the rules require: (a) that a broker or dealer approve a person’s account for transactions in penny stocks; and (b) the broker or dealer receive from the investor a written agreement to the transaction, setting forth the identity and quantity of the penny stock to be purchased.
In order to approve a person’s account for transactions in penny stocks, the broker or dealer must: (a) obtain financial information and investment experience objectives of the person and (b) make a reasonable determination that the transactions in penny stocks are suitable for that person and the person has sufficient knowledge and experience in financial matters to be capable of evaluating the risks of transactions in penny stocks.
The broker or dealer must also deliver, prior to any transaction in a penny stock, a disclosure schedule prescribed by the SEC relating to the penny stock market, which, in highlight form: (a) sets forth the basis on which the broker or dealer made the suitability determination; and (b) confirms that the broker or dealer received a signed, written agreement from the investor prior to the transaction. Generally, brokers may be less willing to execute transactions in securities subject to the “penny stock” rules. If our Common Stock is or becomes subject to the “penny stock” rules, it may be more difficult for investors to dispose of our Common Stock and cause a decline in the market value of our Common Stock.
Disclosure also has to be made about the risks of investing in penny stocks in both public offerings and in secondary trading and about commissions payable to both the broker or dealer and the registered representative, current quotations for the securities and the rights and remedies available to an investor in cases of fraud in penny stock transactions. Finally, monthly statements have to be sent disclosing recent price information for the penny stock held in the account and information on the limited market in penny stocks
The sales practice requirements of the Financial Industry Regulatory Authority’s (“FINRA”) may limit a stockholder’s ability to buy and sell our Common Stock.
FINRA has adopted rules requiring 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 or 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 has indicated its belief that there is a high probability that speculative or low-priced securities will not be suitable for at least some customers. If these FINRA requirements are applicable to us or our securities, they may make it more difficult for broker-dealers to recommend that at least some of their customers buy our Common Stock, which may limit the ability of our stockholders to buy and sell our Common Stock and could have an adverse effect on the market for and price of our Common Stock.
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Our operating results for a particular period may fluctuate significantly or may fall below the expectations of investors or securities analysts, each of which may cause the price of our Common Stock to fluctuate or decline.
We expect our operating results to be subject to fluctuations. Our operating results will be affected by numerous factors, including:
| ● | variations in the level of expenses related to future development plans; | |
| ● | fluctuations in value of the underlying commodity; | |
| ● | inability to procure sufficient quantities to meet demand due to the scarcity of the product available from its suppliers; | |
| ● | level of underlying demand for our products and any other products we sell; | |
| ● | any intellectual property infringement lawsuit or opposition, interference or cancellation proceeding in which we may become involved; and | |
| ● | regulatory developments affecting us or our competitors. |
If our operating results for a particular period fall below the expectations of investors or securities analysts, the price of our Common Stock could decline substantially. Furthermore, any fluctuations in our operating results may, in turn, cause the price of our common stock to fluctuate substantially. We believe that comparisons of our financial results from various reporting periods are not necessarily meaningful and should not be relied upon as an indication of our future performance
Our principal stockholders and management own a significant percentage of our Common Stock and will be able to exercise significant influence over matters subject to stockholder approval.
As of the date of this filing, our executive officers, directors and principal stockholders, together with their respective affiliates, owned approximately 85.4% of our Common Stock, including shares subject to outstanding options that are exercisable within 60 days after such date. Accordingly, these stockholders will be able to exert a significant degree of influence over our management and affairs and over matters requiring stockholder approval, including the election of our board of directors and approval of significant corporate transactions. This concentration of ownership could have the effect of entrenching our management and/or the board of directors, delaying or preventing a change in our control or otherwise discouraging a potential acquirer from attempting to obtain control of us, which in turn could have a material and adverse effect on the fair market value of our Common Stock.
Because we became a reporting company under the Exchange Act by means other than a traditional underwritten initial public offering, we may not be able to attract the attention of research analysts at major brokerage firms.
Because we did not become a reporting company by conducting an underwritten initial public offering of our Common Stock, and because we will not be listed on a national securities exchange, securities analysts of brokerage firms may not provide coverage of our company. In addition, investment banks may be less likely to agree to underwrite secondary offerings on our behalf than they might if we became a public reporting company by means of an underwritten initial public offering, because they may be less familiar with our company as a result of more limited coverage by analysts and the media, and because we became public at an early stage in our development. The failure to receive research coverage or support in the market for our shares will have an adverse effect on our ability to develop a liquid market for our Common Stock.
Because the Merger was a reverse merger, certain SEC rules may be more restrictive.
Additional risks may exist as a result of our becoming a public reporting company through a “reverse merger.” Certain SEC rules are more restrictive when applied to reverse merger companies, such as the ability of stockholders to re-sell their shares of Common Stock pursuant to Rule 144.
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The resale of shares covered by the Company’s registration statement could adversely affect the market price of our Common Stock in the public market, should one develop, which result would in turn negatively affect our ability to raise additional equity capital.
The sale, or availability for sale, of our Common Stock in the public market may adversely affect the prevailing market price of our Common Stock and may impair our ability to raise additional capital by selling equity or equity-linked securities. We have registered with the SEC for resale an aggregate of 17,074,750 shares of Common Stock issued and/or issuable in connection with the Merger, the Offering, the Company Settlement and the shares retained by the pre-Merger shareholders. The Registration Statement permits the resale of these shares at any time. The resale of a substantial number of shares of our Common Stock in the public market could adversely affect the market price for our Common Stock and make it more difficult for you to sell shares of our Common Stock at times and prices that you feel are appropriate. Furthermore, because there are a large number of shares registered pursuant to the Registration Statement, selling stockholders will continue to offer shares covered by such Registration Statement for a significant period of time, the precise duration of which cannot be predicted. Accordingly, the adverse market and price pressures resulting from an offering pursuant to the Registration Statement may continue for an extended period of time and continued negative pressure on the market price of our Common Stock could have a material adverse effect on our ability to raise additional equity capital.
Issuance of stock to fund our operations may dilute your investment and reduce your equity interest.
We may need to raise capital in the future to fund the development of our seafood business. Any equity financing may have significant dilutive effect to stockholders and a material decrease in our stockholders’ equity interest in us. Equity financing, if obtained, could result in substantial dilution to our existing stockholders. At its sole discretion, our board of directors may issue additional securities without seeking stockholder approval, and we do not know when we will need additional capital or, if we do, whether it will be available to us.
Provisions of our charter documents or Delaware law could delay or prevent an acquisition of the Company, even if such an acquisition would be beneficial to our stockholders, which could make it more difficult for you to change management.
Provisions in our certificate of incorporation and our bylaws may discourage, delay or prevent a merger, acquisition or other change in control that stockholders may consider favorable, including transactions in which stockholders might otherwise receive a premium for their shares. In addition, these provisions may frustrate or prevent any attempt by our stockholders to replace or remove our current management by making it more difficult to replace or remove our board of directors. These provisions include:
| ● | no cumulative voting in the election of directors; | |
| ● | the exclusive right of our board of directors to elect a director to fill a vacancy created by the expansion of the board of directors or the resignation, death or removal of a director; | |
| ● | a requirement that special meetings of stockholders be called only by the board of directors; | |
| ● | a notice provision requirement for stockholders to nominate directors; | |
| ● | a requirement that our directors may be removed only by a supermajority (two-thirds) vote of the stockholders; and | |
| ● | the authority of our board of directors to issue preferred stock with such terms as our board of directors may determine. |
In addition, Delaware law prohibits a publicly held Delaware corporation from engaging in a business combination with an interested stockholder, generally a person who, together with its affiliates, owns, or within the last three years has owned, 15% or more of our voting stock, for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. Accordingly, Delaware law may discourage, delay or prevent a change in control of the company. Furthermore, our certificate of incorporation will specify that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for most legal actions involving actions brought against us by stockholders. We believe this provision benefits us by providing increased consistency in the application of Delaware law by chancellors particularly experienced in resolving corporate disputes, efficient administration of cases on a more expedited schedule relative to other forums and protection against the burdens of multi-forum litigation. However, the provision may have the effect of discouraging lawsuits against our directors and officers. The enforceability of similar choice of forum provisions in other companies’ certificates of incorporation has been challenged in legal proceedings, and it is possible that, in connection with any applicable action brought against us, a court could find the choice of forum provisions contained in our certificate of incorporation to be inapplicable or unenforceable in such action.
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We do not anticipate paying any cash dividends on our Common Stock in the foreseeable future; therefore, capital appreciation, if any, of our Common Stock will be your sole source of gain for the foreseeable future.
We have never declared or paid cash dividends on our Common Stock. We do not anticipate paying any cash dividends on our Common Stock in the foreseeable future. We currently intend to retain all available funds and any future earnings to fund the development and growth of our business. In addition, our current loan and security agreement with ACF contains, and our future loan arrangements, if any, may contain, terms prohibiting or limiting the amount of dividends that may be declared or paid on our Common Stock. As a result, capital appreciation, if any, of our Common Stock will be your sole source of gain for the foreseeable future.
Risks Related to COVID-19
We may experience disruptions of or restrictions on our operations as a result of the COVID-19 pandemic.
The current outbreak of COVID-19 could have a material and adverse effect on our business operations, including disruptions or restrictions on our ability to travel or to distribute our seafood products, as well as temporary closures of our facilities. Any such disruption or delay would likely impact our sales and operating results. In addition, COVID-19 has resulted in a widespread health crisis that could adversely affect the economies and financial markets of many other countries, resulting in an economic downturn that could affect demand for our products and significantly impact our operating results.
As the result of current restrictions put in place to address COVID-19, we have had limited access to our corporate offices and our corporate staff has been required to work remotely, disrupting interactions among our staff, with our customers and suppliers, and with our accountants, consultants and advisors. The extent to which our results may continue to be affected by COVID-19 will largely depend on future developments which cannot be accurately predicted, including the duration and scope of the pandemic, governmental and business responses to the pandemic and the impact on the global economy, our customers’ demand for our products, and our ability to provide our products and access our offices and facilities. While these factors are uncertain, the COVID-19 pandemic or the perception of its effects could continue to have a material adverse effect on our business, financial condition, results of operations, or cash flows.
ITEM 1B. UNRESOLVED STAFF COMMENTS
We are a smaller reporting company as defined by Rule 12b-2 of the Securities Exchange Act of 1934 and are not required to provide the information under this Item.
We lease approximately 16,800 square feet of office/warehouse space for our executive offices and distribution facility under a lease expiring in June 2021 for $16,916 per month from John Keeler Real Estate Holding, Inc. (“Keeler Real Estate”), a corporation owned by each trust for each of John Keeler III, Andrea Keeler and Sarah Keeler, each of whom is a child of our Executive Chairman, John Keeler. The Company is a guarantor of the mortgage on the distribution facility which had a balance of approximately $1,280,000 as of December 31, 2019. We believe our current facilities are adequate for our immediate and near-term needs. Coastal Pride leases 1,106 square feet of office space in Beaufort, South Carolina under a lease that expires is 2024.
There are no pending legal proceedings to which we are a party or in which any director, officer or affiliate of ours, any owner of record or beneficially of more than 5% of any class of our voting securities, or security holder is a party adverse to us or has a material interest adverse to us.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
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ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
Market Information
Our Common Stock has been quoted on the OTC pink sheets under the symbol “BSFC” since February 18, 2020. There has been limited trading in our Common Stock and there can be no assurances that an active trading market will ever develop.
On December 26, 2019, the Company entered into lock-up and resale restriction agreements (each a “Lock-Up Agreement”) with fifteen shareholders with respect to an aggregate of 16,074,939 shares of Common Stock. The Lock-Up Agreement provides, among other things, that the shareholder may not until June 26, 2020 (the “Lock-Up Period”), sell or transfer in any way, the shares of Common Stock held by such shareholder, except that each shareholder may sell 1,000 shares of Common Stock per month during the Lock-Up Period.
Holders
As of May 27, 2020, we have 17,557,575 shares of Common Stock outstanding held by 46 stockholders of record.
Dividends
We have never paid any cash dividends on our capital stock and do not anticipate paying any cash dividends on our Common Stock in the foreseeable future. We intend to retain future earnings to fund ongoing operations and future capital requirements. Our Loan and Security Agreement with ACF contains terms prohibiting or limiting the amount of dividends that may be declared or paid on our Common Stock. Any future determination to pay cash dividends will be at the discretion of our board of directors and will be dependent upon financial condition, results of operations, capital requirements and such other factors as the board of directors deems relevant.
Securities Authorized for Issuance under Equity Compensation Plans
The following table provides information regarding our equity compensation plans as of December 31, 2019:
Equity Compensation Plan Information
| Plan category | Number
of securities to be issued upon exercise of outstanding options, warrants and rights | Weighted- average exercise price of outstanding options, warrants and rights | Number
of securities remaining available for future issuance under equity compensation plans | |||||||||
| Equity compensation plans approved by security holders | 3,825,000 | (1) | 2.00 | 3,675,000 | ||||||||
| Equity compensation plans not approved by security holders | 0 | 0 | 0 | |||||||||
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| (1) | Represents (i) a 10-year option to purchase 3,120,000 shares of common stock at an exercise price of $2.00 per share granted to Christopher Constable, (ii) 10-year options to purchase an aggregate of 680,000 shares of common stock at an exercise price of $2.00 per share to certain employees, and (iii) 10-year options to purchase an aggregate of 25,000 shares of common stock at an exercise price of $2.00 per share to certain contractors under the 2018 Plan. |
Recent Sales of Unregistered Securities
There were no sales of equity securities during the period covered by this Report that were not registered under the Securities Act and were not previously reported in a Quarterly Report on Form 10-Q or a Current Report on Form 8-K filed by the Company.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
None.
ITEM 6. SELECTED FINANCIAL DATA
We are a smaller reporting company as defined by Rule 12b-2 of the Securities Exchange Act of 1934 and are not required to provide the information under this Item.
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Forward-Looking Statements
The following management’s discussion and analysis should be read in conjunction with our historical financial statements and the related notes thereto. The management’s discussion and analysis contains forward-looking statements, such as statements of our plans, objectives, expectations and intentions. Any statements that are not statements of historical fact are forward-looking statements. When used, the words “believe,” “plan,” “intend,” “anticipate,” “target,” “estimate,” “expect” and the like, and/or future tense or conditional constructions (“will,” “may,” “could,” “should,” etc.), or similar expressions, identify certain of these forward-looking statements. These forward-looking statements are subject to risks and uncertainties, including those under “Risk Factors,” above, that could cause actual results or events to differ materially from those expressed or implied by the forward-looking statements. Our actual results and the timing of events could differ materially from those anticipated in these forward-looking statements as a result of several factors. We do not undertake any obligation to update forward-looking statements to reflect events or circumstances occurring after the date of this Annual Report.
Recent Developments
We were incorporated on October 17, 2017 in the State of Delaware as a blank check company to be used as a vehicle to pursue a business combination with an unidentified target. Since inception, and prior to the Merger, we only engaged in organizational efforts.
On November 8, 2018, we consummated the Merger pursuant to the terms of the Merger Agreement by and among the Company, Acquisition Sub, Keeler & Co and the Blue Star Stockholder. As a result of the Merger, effective as of November 8, 2018, Acquisition Sub merged with and into Keeler & Co, and Keeler & Co became a wholly-owned subsidiary of the Company.
In connection with the Merger, the Company changed its name from “AG Acquisition Group II, Inc.” to “Blue Star Foods Corp.” and succeeded to the business of Keeler & Co.
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As a result of the Merger and the related change in our business and operations, a discussion of our past financial results is not pertinent, and under applicable accounting principles the historical financial results of Keeler & Co, the accounting acquirer, prior to the Merger are considered the historical financial results of the Company.
On November 26, 2019, Keeler & Co entered into the Coastal Pride Merger Agreement. As a result, Coastal Pride became our indirect operating subsidiary.
The current outbreak of COVID-19 could have a material and adverse effect on our business operations, including disruptions or restrictions on our ability to travel or to distribute our seafood products, as well as temporary closures of our facilities. Any such disruption or delay would likely impact our sales and operating results. In addition, COVID-19 has resulted in a widespread health crisis that could adversely affect the economies and financial markets of many other countries, resulting in an economic downturn that could affect demand for our products and significantly impact our operating results. As a result of COVID-19, in the current year to date, the Company has experienced a significant decrease in revenue as compared to the prior period in 2019. In an effort to contain costs, the Company has taken steps to reduce its overhead, including by a reduction of personnel and warehousing expenses.
As a result of the business interruption experienced to date, management has taken steps to reduce expenses across all areas of its operations, including payroll, marketing, sales and warehousing expenses The extent to which we are affected by COVID-19 will largely depend on future developments and restrictions which may disrupt interactions with customers, suppliers, staff and advisors which cannot be accurately predicted, including the duration and scope of the pandemic, governmental and business responses to the pandemic and the impact on the global economy, our customers’ demand for our products, and our ability to provide our products. While these factors are uncertain, the COVID-19 pandemic or the perception of its effects could continue to have a material adverse effect on our business, financial condition, results of operations, or cash flows.
The audited financial statements for our fiscal years ended December 31, 2019 include a summary of our significant accounting policies and should be read in conjunction with the discussion below. In the opinion of management, all material adjustments necessary to present fairly the results of operations for such periods have been included in these audited financial statements. All such adjustments are of a normal recurring nature.
Results of Operations
The following discussion and analysis of financial condition and results of operations of the Company is based upon, and should be read in conjunction with, the audited financial statements and related notes elsewhere in this Annual Report.
Year Ended December 31, 2019 Compared to the Year Ended December 31, 2018
Net Sales. Revenue for the twelve months ended December 31, 2019 decreased 25.9% to $23,829,463 as compared to $32,165,933 for the twelve months ended December 31, 2018. The revenue decrease reflects the Company’s exit from the private label business that accounted for 18% of poundage sold for the 12 months ending December 31, 2019 as compared to 37% for the same period in 2018. The company’s Blue Star and other brands poundage were consistent with the prior year. Also contributing to the reduction in revenue, was a reduction in the commodity value with the average price per pound decreasing by 8% for 2019 as compared to the average price per pound in 2018.
Cost of Goods Sold. Cost of goods sold for the twelve months ended December 31, 2019 decreased to $20,610,000 as compared to $27,227,664 for the twelve months ended December 31, 2018. The decrease is primarily attributable to the revenue decline.
Gross Profit. Gross profit for the twelve months ended December 31, 2019 decreased $1,718,806 to $3,219,463 from $4,938,269 for the twelve months ended December 31, 2018. This decrease is attributable to decreased revenues as well as a tightening of profit margin that occurs as the commodity begins a deflation cycle.
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Gross Profit Margin for the twelve months ended December 31, 2019 decreased by 1.9% as compared to 15.4% for the twelve months ended December 31, 2018. This reduction is attributable to a tightening of the margin as the commodity prices begin a period of contraction.
Commissions Expenses. Commissions expenses decreased from $133,240 for the twelve months ended December 31, 2018 to $106,671 for the twelve-month period ended December 31, 2019. The decrease is attributable to lower commissionable revenues.
Salaries & Wages Expense. Salaries and wages increased $1,302,864 to $3,897,541 for the twelve months ending December 31, 2019 as compared to $2,594,677 for the twelve months ended December 31, 2018. The increase can be directly attributed to stock-based compensation related to the completion of the amortization of options issued to an officer in the twelve months ended December 31, 2018, and the issuance of options to employees as well as stock grants to employees. The expense related to the stock-based compensation in the twelve months ended December 31, 2019 was $2,262,322 as compared to $808,338 for the twelve months ended December 31, 2018. Cash payment for salaries and wages decreased by $163,171 for the twelve months ending December 31, 2019.
Settlement & Warrant Expenses. For the twelve months ended December 31, 2019, there were no settlement and warrant expenses as compared to $769,353 for the twelve months ended December 31, 2018.
Other Operating Expense. Other operating expenses increased $459,149 from $2,709,009 for the twelve months ended December 31, 2018 to $3,168,158 for the twelve months ended December 31, 2019. The increase is primarily attributable to a settlement with a supplier of $388,199 that occurred in the twelve months ended December 31, 2018.,. However, expenses paid related to service providers increased from approximately $826,100 for the twelve months ended December 31, 2018 to approximately $1,116,400 for the twelve months ended December 31, 2019, primarily due to legal and investment banking fees for private placement and merger related activities. These costs include $397,000 and $530,000 paid in stock for the twelve months ended December 31, 2019 and December 31, 2018, respectively.
Interest Expense. Interest expense increased from $1,009,106 for the twelve months ended December 31, 2018 to $1,068,796 for the twelve months ending December 31, 2019. This increase is attributable to related party notes of $1,100,000 borrowed during the twelve months ended December 31, 2019 with total interest paid on such notes of $174,600. Additionally, interest paid to ACF decreased 15.3% from $817,500 during the twelve months ended December 31, 2018 to $692,400 for the twelve months ended December 31, 2019
Net Income/(Loss). The Company generated a net loss of $5,021,703 for the twelve months ended December 31, 2019 as compared to the net loss of $2,277,116 for the twelve months ended December 31, 2018. The increased loss can be primarily attributed to the decrease in revenue, and margin percentage, combined with the increased non-cash costs related to stock incentives, during the twelve months ending December 31, 2019.
Cash Provided by Operating Activities. Cash provided by operating activities during the twelve months ended December 31, 2019 was $1,577,164 as compared to cash provided of $3,641,738 for the twelve months ended December 31, 2018, representing a decrease of $2,064,574. The decrease is attributable to an increase in the net loss of $2,744,587 for the twelve months ended December 31, 2019. This is offset by a $1,078,012 increase in non-cash expenses for the twelve months ended December 31, 2019 as compared to twelve months ended December 31, 2018. Cash generated from Accounts Receivable for the twelve months ended December 31, 2019 increased $1,633,345 as compared to the twelve months ended December 31, 2018, while cash generated from inventory decreased $3,416,443 from $5,220,684 for the twelve months ended December 31, 2108 to $1,804,241 for the twelve months ended December 31, 2019. Cash used in Accounts Payable activities decreased from $1,001,820 for the twelve months ended December 31, 2018 to $457,576 for the twelve months ended December 31, 2109. The Company used $146,316 for the twelve months ended December 31, 2109 in advances from an affiliated supplier as compared to usage of $1,139,619 for the twelve months ended December 31, 2018.
Cash Used in Investing Activities. Cash used in investing activities for the twelve months ended December 31, 2019 was $269,705 as compared to $26,681 cash used for the twelve months ended December 31, 2018. The Company utilized $260,667 during the twelve months ending December 31, 2019 to complete the Coastal Pride acquisition.
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Cash Used in Financing Activities. Cash used in financing activities for the twelve months ended December 31, 2019 was $1,509,015 as compared to cash used in financing activities of $3,288,084 for the twelve months ended December 31, 2018. The primary use of cash was a reduction in the outstanding line of credit of $2,447,649 as of December 31, 2019, as compared to a decrease of $3,905,425 as of December 31, 2018. The Company also received $972,500 in net proceeds from Related Party Notes Payable for the twelve months ended December 31, 2019 as compared to $0 in the twelve months ended December 31, 2018.
Liquidity and Capital Resources
The Company had cash of $195,810 as of December 31, 2019, of which $41,906 was restricted cash. At December 31, 2019, the Company had a working capital deficit of $2,786,086 including $2,910,136 in stockholder loans that are subordinated to ACF as compared to a working capital deficit of $1,146,937 at December 31, 2018, also including $2,910,136 in stockholder loans. The Company’s primary sources of liquidity consisted of inventory of $7,984,492 and accounts receivable of $2,071,363 at December 31, 2019. The decrease in working capital was due primarily to a decrease of inventory of $142,142 and accounts receivable of $1,378,124, an the increase of Accounts Payable of $372,725 and Related Party notes payable of $972,500 as opposed to a decrease in the working capital line of credit of $1,285,757.
The Company has historically financed its operations through the cash flow generated from operations, loans from John Keeler and other related parties as well as a working capital line of credit and the sale of equity in private offerings.
The COVID-19 pandemic has caused significant disruptions to the global financial markets. The full impact of the COVID-19 outbreak continues to evolve, is highly uncertain and subject to change. The Company is not able to estimate the effects of the COVID-19 outbreak on its operations or financial condition in the next 12 months. However, while significant uncertainty remains, the Company believes that the COVID-19 outbreak may have a negative impact the ability to raise financing and access capital.
Working Capital Line of Credit
The Company entered into a $14,000,000 revolving line of credit with ACF Finco I, LP (“ACF”) on August 31, 2016, the proceeds of which were used to pay off the prior line of credit, pay new loan costs of approximately $309,000 and provide additional working capital to the Company. This facility was amended on November 18, 2016, June 19, 2017, October 16, 2017, September 19, 2018, November 8, 2018, July 29, 2019, and November 26, 2019 and is secured by all of the assets of Keeler & Co. The line of credit bears interest at a rate equal to the greater of (i) the 3-month LIBOR rate plus 9.25%, (ii) the prime rate plus 6.0%, and (iii) a fixed rate of 6.5%. As of December 31, 2019, the line of credit bears interest rate of 11.164%. During the year ended December 31, 2019, the Company failed to meet certain financial covenants.
John Keeler Promissory Notes
From January 2006 through May 2017, Keeler & Co issued 6% demand promissory notes in the aggregate principal amount of $2,910,000 to John Keeler, our Chief Executive Officer and Executive Chairman. As of December 31, 2019, approximately $2,910,000 of principal remains outstanding and approximately $174,600 of interest was paid under the notes. These notes have been subordinated to ACF and are subject to certain restrictions pursuant to a subordination agreement. After satisfaction of the terms of the subordination, the Company can prepay the notes at any time first against interest due thereunder. If an event of default occurs under the notes, interest will accrue at 18% per annum and if not paid within 10 days of payment becoming due, the holder of the note is entitled to a late fee of 5% of the amount of payment not timely made.
Kenar Note
On March 26, 2019, the Company issued a four-month promissory note in the principal amount of $1,000,000 (the “Kenar Note”) to Kenar Overseas Corp., a company registered in Panama (the “Lender”). The note bears interest at the rate of 18% per annum during the initial four months which rate will increase to 24% during any extension thereof. The note may be prepaid in whole or in part without penalty. John Keeler, the Company’s Chief Executive Officer and Executive Chairman pledged 5,000,000 shares of common stock to secure the Company’s obligations under the note. The Kenar Note matured on July 26, 2019 and was extended on a month-to-month basis and on November 19, 2019, the Kenar Note was extended to March 31, 2020 on the same terms and conditions.
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On May 21, 2020, the Kenar Note was amended to (i) set the maturity date at March 31, 2021 (unless extended to September 30, 2021 at the Lender’s sole option), (ii) provide that the Company use one-third of any capital raise from the sale of its equity to reduce the outstanding principal under the Kenar Note, (iii) set the interest rate at 18% per annum, payable monthly commencing October 1, 2020, and (iv) to reduce the number of pledged shares by Mr. Keeler to 4,000,000. As consideration therefor, the Company has agreed to issue 1,021,266 shares of its Common Stock to Kenar. The outstanding principal amount of the note at December 31, 2019 was $872,500.
Lobo Note
On April 2, 2019, the Company issued a four-month unsecured promissory note in the principal amount of $100,000 (the “Lobo Note”) to Lobo Holdings, LLC, a stockholder in the Company (“Lobo”). The Lobo Note bears interest at the rate of 18% per annum. The Lobo Note may be prepaid in whole or in part without penalty. John Keeler, the Company’s Executive Chairman and Chief Executive Officer, pledged 1,000,000 shares of common stock of the Company to secure the Company’s obligations under the Lobo Note. The Lobo Note matured on August 2, 2019 and was extended through December 2, 2019 on the same terms and conditions. On November 15, 2019, the Company paid off the Lobo Note with the issuance to Lobo of an unsecured promissory note in the principal amount of $100,000 which bears interest at the rate of 15%, may be prepaid in whole or in part without penalty, and matures on March 31, 2020On April 1, 2020 the Company paid off the November 15, 2019 Lobo Note with the issuance to Lobo of a six-month unsecured promissory note in the principal amount of $100,000, which accrues interest at the rate of 10% per annum and may be prepaid in whole or in part without penalty.
Paycheck Protection Program Loan
On April 17, 2020, the Company was granted a loan in the principal amount of $344,762 from U.S. Century Bank under the Paycheck Protection Program. The loan accrues interest at 1% and matures two years from the date of issuance. Monthly payments are $19,401.96 commencing seven months from the date of issuance. The loan may be prepaid under certain conditions.
Critical Accounting Policies and Estimates
Variable Interest Entity
Under Financial Accounting Standards Board (“FASB”) Accounting Standard Codification (“ASC”) 810, Consolidation, when a reporting entity is the primary beneficiary of an entity that is a variable interest entity (“VIE”), as defined in ASC 810, the VIE must be consolidated into the financial statements of the reporting entity. The determination of which owner is the primary beneficiary of a VIE requires management to make significant estimates and judgments about the rights, obligations, and economic interests of each interest holder in the VIE.
The Company evaluates its interests in VIE’s on an ongoing basis and consolidates any VIE in which it has a controlling financial interest and is deemed to be the primary beneficiary. A controlling financial interest has both of the following characteristics: (i) the power to direct the activities of the VIE that most significantly impact its economic performance; and (ii) the obligation to absorb losses of the VIE that could potentially be significant to it or the right to receive benefits from the VIE that could be significant to the VIE.
Effective April 1, 2014, the Company’s stockholder was transferred the controlling interest of Strike the Gold Foods, Ltd. (“Strike”), a related party entity which holds the Company’s inventory on consignment in United Kingdom (see Note 3). The Company evaluated its interest in Strike and determined that Strike is a VIE due to the Company’s implicit interest in Strike and the fact that Strike and the Company were under common control after the transfer of the controlling interest. Moreover, the Company determined that it is the primary beneficiary of Strike due to the fact that the Company had both the power to direct the activities that most significantly impact Strike and the obligation to absorb losses or the right to receive benefits from Strike. Therefore, the Company consolidated Strike in its financial statements.
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Strike’s activities are reflected in the Company’s financial statements starting on April 1, 2014, the effective date of the controlling interest transfer. Strike’s equity is classified as non-controlling interest in the Company’s financial statements since the Company is not a shareholder of Strike. Strike was not a VIE of the Company and the Company was not the primary beneficiary of Strike prior to the controlling interest transfer.
The Company also evaluated its interest in three related party entities that are under common control with the Company, Bacolod, Bicol Blue Star Export Co. (“Bicol”) and John Keeler Real Estate Holding (“JK Real Estate”), in light of ASC 810. The Company purchased inventory from Bacolod, an exporter of pasteurized crab meat out of the Philippines. The Company purchased inventory, via Bacolod, from Bicol. The Company leases its office and warehouse facility from JK Real Estate, a landlord that is a related party through common family beneficial ownership.
The Company determined that Bacolod and Bicol are not VIE’s as they do not meet the criteria to be considered a VIE per ASC 810. The Company does not directly or indirectly absorb any variability of Bacolod or Bicol. The relationship between the Company and Bacolod and Bicol is strictly a supplier/customer relationship. Moreover, Bacolod and Bicol have other customers besides the Company. Even if the Company is no longer Bacolod or Bicol’s customer, they would be able to sustain their operations from selling their inventory to their other customers. As the Company concluded that Bacolod and Bicol are not VIE’s and the Company is not deemed their primary beneficiary, Bacolod or Bicol is not consolidated with the Company’s financial statements.
The Company determined that JK Real Estate is a VIE due the fact that the Company guarantees the mortgage on the facility rented from JK Real Estate. Therefore, JK Real Estate’s equity at risk is not deemed sufficient to permit JK Real Estate to finance its activities without subordinated financial support. Moreover, the activities of JK Real Estate are substantially conducted on behalf of the Company’s stockholder. The Company concluded that it not the primary beneficiary of JK Real Estate since the Company does not have the power to direct the activities that most significantly impact JK Real Estate. Therefore, JK Real Estate is not consolidated with the Company’s financial statements.
Inventories
Substantially all of the Company’s inventory consists of packaged crab meat located at the Company’s warehouse facility as well as public cold storage facilities and merchandise in transit from suppliers. The cost of inventory is primarily determined using the specific identification method. Inventory is valued at the lower of cost or market, using the first-in, first-out method.
Merchandise is purchased cost and freight shipping point and becomes the Company’s asset and liability upon leaving the suppliers’ warehouse. The Company had in-transit inventory of approximately $1,958,600 and $4,203,400 as of December 31, 2019 and December 31, 2018, respectively.
The Company periodically reviews the value of items in inventory and records an allowance to reduce the carrying value of inventory to the lower of cost or market based on its assessment of market conditions, inventory turnover and current stock levels. Inventory write-downs are charged to cost of goods sold. The Company recorded an inventory allowance of approximately $40,784 for the year ended December 31, 2019 as compared to $39,300 for the year ended December 31, 2018.
Advances to Suppliers and Related Party
In the normal course of business, the Company may advance payments to its suppliers, including Bacolod, a related party. These advances are in the form of prepayments for products that will ship within a short window of time. In the event that it becomes necessary for the Company to return products or adjust for quality issues, the Company is issued a credit by the vendor in the normal course of business and these credits are also reflected against future shipments.
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As of December 31, 2019 and December 31, 2018, the balance due from Bacolod for future shipments was approximately $1,286,000 and $1,139,619, respectively. The 2019 balance represents approximately five to six months of purchases from the supplier.
Revenue Recognition
Effective with the January 1, 2018 adoption of ASU 2014-09, “Revenue from Contracts with Customers (Topic 606),” and the associated ASUs (collectively, “Topic 606”), the Company recognizes revenue when its customer obtains control of promised goods or services in an amount that reflects the consideration which the Company expects to receive in exchange for those goods or services. To determine revenue recognition for the arrangements that the Company determines are within the scope of Topic 606, the Company performs the following five steps: (1) identify the contract(s) with a customer, (2) identify the performance obligations in the contract, (3) determine the transaction price, (4) allocate the transaction price to the performance obligations in the contract and (5) recognize revenue when (or as) the entity satisfies a performance obligation.
The Company elected an accounting policy to treat shipping and handling activities as fulfillment activities. Consideration payable to a customer is recorded as a reduction of the arrangement’s transaction price, thereby reducing the amount of revenue recognized, unless the payment is for distinct goods or services received from the customer.
Recently Adopted Accounting Pronouncements
ASC 842 Leases
On January 1, 2019, we adopted Accounting Standards Codification 842 and all the related amendments using the modified retrospective method. We recognized the cumulative effect of initially applying the new lease standard as an adjustment to the opening balance of retained earnings. The comparative information has not been restated and continues to be reported under the lease accounting standard in effect for those periods.
The new lease standard requires all leases to be reported on the balance sheet as right-of-use assets and lease obligations. We elected the practical expedients permitted under the transition guidance of the new standard that retained the lease classification and initial direct costs for any leases that existed prior to adoption of the standard. We did not reassess whether any contracts entered into prior to adoption are leases or contain leases.
We categorize leases with contractual terms longer than twelve months as either operating or finance. Finance leases are generally those leases that would allow us to substantially utilize or pay for the entire asset over its estimated life. Assets acquired under finance leases are recorded in property and equipment, net. All other leases are categorized as operating leases. We did not have any finance leases as of December 31, 2019. Our leases generally have terms that range from three years for equipment and five to twenty years for property. We elected the accounting policy to include both the lease and non-lease components of our agreements as a single component and account for them as a lease.
Lease liabilities are recognized at the present value of the fixed lease payments using a discount rate based on similarly secured borrowings available to us. Lease assets are recognized based on the initial present value of the fixed lease payments, reduced by landlord incentives, plus any direct costs from executing the leases. Lease assets are tested for impairment in the same manner as long-lived assets used in operations. Leasehold improvements are capitalized at cost and amortized over the lesser of their expected useful life or the lease term.
When we have the option to extend the lease term, terminate the lease before the contractual expiration date, or purchase the leased asset, and it is reasonably certain that we will exercise the option, we consider these options in determining the classification and measurement of the lease. Costs associated with operating lease assets are recognized on a straight-line basis within operating expenses over the term of the lease.
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The table below presents the lease-related assets and liabilities recorded on the balance sheets.
| December
31, 2019 | ||||
| Assets | ||||
| Operating lease assets | $ | 1,206,931 | ||
| Liabilities | ||||
| Current | $ | 136,952 | ||
| Operating lease liabilities | ||||
| Noncurrent | ||||
| Operating lease liabilities | $ | 1,089,390 | ||
Supplemental cash flow information related to leases were as follows:
| Twelve
Months Ended December 31, 2019 |
||||
| Cash used in operating activities: | ||||
| Operating leases | $ | 130,450 | ||
| ROU assets recognized in exchange for lease obligations: | ||||
| Operating leases | $ | 1,257,751 | ||
The table below presents the remaining lease term and discount rates for operating leases.
| December 31, 2019 | ||||
| Weighted-average remaining lease term | ||||
| Operating leases | 6.35 years | |||
| Weighted-average discount rate | ||||
| Operating leases | 5.4 | % | ||
Maturities of lease liabilities as of December 31, 2019, were as follows:
| Operating Leases | ||||
| 2020 | 214,634 | |||
| 2021 | 225,735 | |||
| 2022 | 237,660 | |||
| 2023 | 240,157 | |||
| 2024 | 235,203 | |||
| Thereafter | 336,932 | |||
| Total lease payments | 1,490,321 | |||
| Less: amount of lease payments representing interest | (263,979 | ) | ||
| Present value of future minimum lease payments | $ | 1,226,342 | ||
| Less: current obligations under leases | $ | (136,952 | ) | |
| Non-current obligations | $ | 1,089,390 | ||
Recently Issued Accounting Pronouncements
In December 2019, the FASB issued ASU No. 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes (“ASU 2019-12”), which is intended to simplify various aspects related to accounting for income taxes. ASU 2019-12 removes certain exceptions to the general principles in Topic 740 and also clarifies and amends existing guidance to improve consistent application. This guidance is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2020, with early adoption permitted. The Company is currently evaluating the impact of this standard on its consolidated financial statements and related disclosure.
Off Balance Sheet Arrangements
We currently have no off-balance sheet arrangements.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are a smaller reporting company as defined by Rule 12b-2 of the Exchange Act and are not required to provide the information under this Item.
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ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and Board of Directors of
Blue Star Foods Corp
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Blue Star Foods Corp and its subsidiaries (collectively, the “Company”) as of December 31, 2019 and 2018, and the related consolidated statements of operations, stockholders’ deficit, and cash flows for the years then ended, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2019 and 2018, and the results of their operations and their cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.
Going Concern Matter
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 3 to the financial statements, the Company has suffered recurring losses from operations and has a net capital deficiency that raises substantial doubt about its ability to continue as a going concern. Management's plans in regard to these matters are also described in Note 3. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with 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 audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ MaloneBailey, LLP
www.malonebailey.com
We have served as the Company's auditor since 2014.
Houston, Texas
May 29, 2020
| 41 |
Blue Star Foods Corp
CONSOLIDATED BALANCE SHEETS
DECEMBER 31,
| 2019 | 2018 | |||||||
| ASSETS | ||||||||
| CURRENT ASSETS | ||||||||
| Cash (including VIE $8,725 and $5,561, respectively) | $ | 153,904 | $ | 13,143 | ||||
| Restricted Cash | 41,906 | 334,083 | ||||||
| Accounts receivable, net (including VIE $20,321 and $49,624, respectively) | 2,071,363 | 3,449,487 | ||||||
| Inventory, net (including VIE $95,441 and $117,816, respectively) | 7,984,492 | 8,126,634 | ||||||
| Advances to related party | 1,285,935 | 1,139,619 | ||||||
| Other current assets (including VIE $3,679 and $4,351 respectively) | 242,700 | 90,929 | ||||||
| Total current assets | 11,780,300 | 13,153,895 | ||||||
| FIXED ASSETS, net | 61,908 | 109,169 | ||||||
| RIGHT OF USE ASSET | 1,206,931 | - | ||||||
| INTANGIBLE ASSETS, net | ||||||||
| Trademarks | 845,278 | - | ||||||
| Customer Relationships | 1,241,667 | - | ||||||
| Non-Compete Agreements | 39,167 | - | ||||||
| Goodwill | 445,395 | - | ||||||
| Total Intangible Assets | 2,571,507 | - | ||||||
| OTHER ASSETS | 125,418 | 218,254 | ||||||
| TOTAL ASSETS | $ | 15,746,064 | $ | 13,481,318 | ||||
| LIABILITIES AND STOCKHOLDER’S DEFICIT | ||||||||
| CURRENT LIABILITIES | ||||||||
| Accounts payable and accruals (including VIE $30,649 and $95,720, respectively) | $ | 3,528,466 | $ | 3,155,741 | ||||
| Working capital line of credit | 6,917,968 | 8,203,725 | ||||||
| Current Maturities of long-term debt | - | 31,230 | ||||||
| Current Maturities of Lease Liabilities | 136,952 | - | ||||||
| Current Maturities of Related Party Long-term Note | 100,364 | - | ||||||
| Related Party Notes Payable | 972,500 | - | ||||||
| Stockholder notes payable - Subordinated | 2,910,136 | 2,910,136 | ||||||
| Total current liabilities | 14,566,386 | 14,300,832 | ||||||
| LONG -TERM LIABILITY | ||||||||
| Long-Term Lease Liability | 1,089,390 | |||||||
| Related Party Long-Term Note | 610,000 | |||||||
| TOTAL LIABILITIES | 16,265,776 | 14,300,832 | ||||||
| STOCKHOLDER’S DEFICIT | ||||||||
| Series A 8% cumulative convertible preferred stock, $0.0001 par value; 10,000 shares authorized, 1,413 shares issued and outstanding as of December 31, 2019 and December 31, 2018 | - | - | ||||||
| Common stock, $0.0001 par value, 100,000,000 shares authorized; 17,589,705 shares issued and outstanding (including 14,130 shares declared as stock dividend on September 30, 2019 and 14,130 shares declared as stock dividend on December 31, 2019) as of December 31, 2019 and 16,023,164 shares issued and outstanding (including 8,164 shares declared as stock dividend on December 31, 2018) as of December 31, 2018 | 1,761 | 1,603 | ||||||
| Additional paid-in capital | 8,789,021 | 3,404,774 | ||||||
| Accumulated deficit | (8,952,466 | ) | (3,853,139 | ) | ||||
| Total Blue Star Foods Corp. stockholder’s deficit | (161,684 | ) | (446,762 | ) | ||||
| Non-controlling interest | (476,250 | ) | (440,833 | ) | ||||
| Accumulated other comprehensive income (VIE) | 118,222 | 68,081 | ||||||
| Total VIE’s deficit | (358,028 | ) | (372,752 | ) | ||||
| TOTAL STOCKHOLDER’S DEFICIT | (519,712 | ) | (819,514 | ) | ||||
| TOTAL LIABILITIES AND STOCKHOLDER’S DEFICIT | $ | 15,746,064 | $ | 13,481,318 | ||||
The accompanying notes are an integral part of these consolidated financial statements
| 42 |
Blue Star Foods Corp.
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
TWELVE MONTHS ENDED DECEMBER 31,
| 2019 | 2018 | |||||||
| REVENUE, NET | $ | 23,829,463 | $ | 32,165,933 | ||||
| COST OF REVENUE (including approximately $5,599,700 and $11,086,500 respectively, purchased from related party) | 20,610,000 | 27,227,664 | ||||||
| GROSS PROFIT | 3,219,463 | 4,938,269 | ||||||
| COMMISSIONS | 106,671 | 133,240 | ||||||
| SALARIES & WAGES | 3,897,541 | 2,594,677 | ||||||
| SETTLEMENT & WARRANT EXPENSE | - | 769,353 | ||||||
| OTHER OPERATING EXPENSES | 3,168,158 | 2,709,009 | ||||||
| LOSS FROM OPERATIONS | (3,952,907 | ) | (1,268,010 | ) | ||||
| INTEREST EXPENSE | (1,068,796 | ) | (1,009,106 | ) | ||||
| NET LOSS | (5,021,703 | ) | (2,277,116 | ) | ||||
| LESS: NET LOSS ATTRIBUTABLE TO NON-CONTROLLING INTEREST | (35,417 | ) | (16,752 | ) | ||||
| NET LOSS ATTRIBUTABLE TO BLUE STAR FOODS CORP. | $ | (4,986,286 | ) | $ | (2,260,364 | ) | ||
| DIVIDEND ON PREFERRED STOCK | 113,041 | 16,328 | ||||||
| NET LOSS ATTRIBUABLE TO BLUE STAR FOODS CORP COMMON SHAREHOLDERS | $ | (5,099,327 | ) | $ | (2,276,692 | ) | ||
| COMPREHENSIVE LOSS: | ||||||||
| TRANSLATION ADJUSTMENT ATTRIBUTABLE TO NON-CONTROLLING INTEREST | 50,141 | (38,622 | ) | |||||
| COMPREHENSIVE INCOME (LOSS) ATTRIBUTABLE TO NON-CONTROLLING INTEREST | $ | 14,724 | $ | (55,374 | ) | |||
| COMPREHENSIVE LOSS ATTRIBUTABLE TO BLUE STAR FOODS CORP. | $ | (4,986,286 | ) | $ | (2,260,364 | ) | ||
| INCOME TAX EXPENSE (PRO-FORMA FOR 2018) | (4,413 | ) | (3,004 | ) | ||||
| NET LOSS ATTRIBUTABLE TO BLUE STAR FOODS CORP | $ | (4,990,699 | ) | $ | (2,263,368 | ) | ||
| COMPREHENSIVE LOSS ATTRIBUTABLE TO BLUE STAR FOODS CORP | $ | (4,990,699 | ) | $ | (2,260,364 | ) | ||
| Loss per basic and diluted common share: | ||||||||
| Basic net loss per common share | $ | (0.31 | ) | $ | (0.15 | ) | ||
| Basic weighted average common shares outstanding | 16,201,766 | 15,147,384 | ||||||
| Fully diluted net loss per common share | $ | (0.31 | ) | $ | (0.15 | ) | ||
| Fully diluted weighted average common shares outstanding | 16,201,766 | 15,147,384 | ||||||
The accompanying notes are an integral part of these consolidated financial statements
| 43 |
Blue Star Foods Corp.
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDER’S EQUITY (DEFICIT)
12 MONTHS ENDED DECEMBER 31, 2019
| Series A Pref Stock $.0001 par value | Common Stock $.0001 par value | Additional Paid-in | Retained Earnings (Accumulated | Total Blue Star Foods Corp. Stockholder’s | Non-Controlling | Total Stockholder’s Equity | ||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Capital | Deficit) | Deficit | Interest | (DEFICIT) | ||||||||||||||||||||||||||||
| December 31, 2017 | - | - | 15,000,000 | 1,500 | 558,257 | (1,494,927 | ) | (935,170 | ) | (317,378 | ) | (1,252,548 | ) | |||||||||||||||||||||||
| 606 Adjustment to January 1, 2018 | (81,520 | ) | (81,520 | ) | (81,520 | ) | ||||||||||||||||||||||||||||||
| Adjusted January 1, 2018 | - | - | 15,000,000 | 1,500 | 558,257 | (1,576,447 | ) | (1,016,690 | ) | (317,378 | ) | (1,334,068 | ) | |||||||||||||||||||||||
| Reverse Merger recapitalization | 750,000 | 75 | (2,475 | ) | (2,400 | ) | (2,400 | ) | ||||||||||||||||||||||||||||
| Common stock issue for service | 265,000 | 27 | 529,974 | 530,001 | 530,001 | |||||||||||||||||||||||||||||||
| Preferred Stock Issued for Cash | 725 | - | 725,000 | 725,000 | 725,000 | |||||||||||||||||||||||||||||||
| Preferred Stock Issued in Connection with SOR investors | 688 | - | 688,000 | 688,000 | 688,000 | |||||||||||||||||||||||||||||||
| Option Expense | 808,338 | 808,338 | 808,338 | |||||||||||||||||||||||||||||||||
| Warrant Expense | 81,353 | 81,353 | 81,353 | |||||||||||||||||||||||||||||||||
| Series A 8% Dividends issued in common stock | 8,164 | 1 | 16,327 | (16,328 | ) | - | - | |||||||||||||||||||||||||||||
| Net Loss | - | (2,260,364 | ) | (2,260,364 | ) | (16,752 | ) | (2,277,116 | ) | |||||||||||||||||||||||||||
| Comprehensive loss | - | - | - | - | - | (38,622 | ) | (38,622 | ) | |||||||||||||||||||||||||||
| December 31, 2018 | 1,413 | - | 16,023,164 | 1,603 | 3,404,774 | (3,853,139 | ) | (446,762 | ) | (372,752 | ) | (819,514 | ) | |||||||||||||||||||||||
| Common stock issued for Cash | 16,000 | 2 | 31,998 | 32,000 | 32,000 | |||||||||||||||||||||||||||||||
| Cancellation of Issued Shares for Cash | (5,000 | ) | (1 | ) | (9,999 | ) | (10,000 | ) | (10,000 | ) | ||||||||||||||||||||||||||
| Common stock issued for Service | 198,521 | 20 | 397,022 | 397,042 | 397,042 | |||||||||||||||||||||||||||||||
| Common Stock Incentive Issued to Employees | 5,500 | 1 | 10,999 | 11,000 | 11,000 | |||||||||||||||||||||||||||||||
| Common Stock Issued For Coastal Pride Acquisition | 1,295,000 | 130 | 2,589,870 | 2,590,000 | 2,590,000 | |||||||||||||||||||||||||||||||
| Stock Based Compensation | 2,251,322 | 2,251,322 | 2,251,322 | |||||||||||||||||||||||||||||||||
| Series 8A 8% Dividends issued in common stock | 56,520 | 6 | 113,035 | (113,041 | ) | - | - | |||||||||||||||||||||||||||||
| Net Loss | - | (4,986,286 | ) | (4,986,286 | ) | (35,417 | ) | (5,021,703 | ) | |||||||||||||||||||||||||||
| Comprehensive loss | - | - | - | - | - | 50,141 | 50,141 | |||||||||||||||||||||||||||||
| December 31, 2019 | 1,413 | - | 17,589,705 | 1,761 | 8,789,021 | (8,952,466 | ) | (161,684 | ) | (358,028 | ) | (519,712 | ) | |||||||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements
| 44 |
Blue Star Foods Corp.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE TWELVE MONTHS ENDED DECEMBER 31,
| 2019 | 2018 | |||||||
| CASH FLOWS FROM OPERATING ACTIVITIES: | ||||||||
| Net Income (Loss) | $ | (5,021,703 | ) | $ | (2,277,116 | ) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
| Stock based compensation & Settlement Expense | 2,262,322 | 2,107,692 | ||||||
| Common stock issued for Service | 397,042 | - | ||||||
| Depreciation of fixed assets | 66,012 | 64,008 | ||||||
| Amortization of Right of use asset | 149,861 | - | ||||||
| Amortization of intangible assets | 20,380 | 7,326 | ||||||
| Amortization of loan costs | 128,696 | 155,474 | ||||||
| Settlement of Accounts Payable | - | (388,199 | ) | |||||
| Changes in operating assets and liabilities: | ||||||||
| Receivables | 2,517,585 | 884,240 | ||||||
| Inventories | 1,804,241 | 5,220,684 | ||||||
| Advances to affiliated supplier | (146,316 | ) | (1,139,619 | ) | ||||
| Other current assets | (12,930 | ) | 9,068 | |||||
| Change in Right of use Liability | (130,450 | ) | - | |||||
| Accounts payable and accruals | (457,576 | ) | (1,001,820 | ) | ||||
| Net cash provided by (used) in operating activities | 1,577,164 | 3,641,738 | ||||||
| CASH FLOWS FROM INVESTING ACTIVITIES: | ||||||||
| Net Cash Paid for Acquisition | (260,667 | ) | - | |||||
| Purchases of fixed assets | (9,038 | ) | (26,681 | ) | ||||
| Net cash used in investing activities | (269,705 | ) | (26,681 | ) | ||||
| CASH FLOWS FROM FINANCING ACTIVITIES: | ||||||||
| Proceeds from Common Stock Offering | 22,000 | 725,000 | ||||||
| Proceeds from working capital lines of credit | 21,545,968 | 32,503,116 | ||||||
| Repayments of working capital lines of credit | (23,993,616 | ) | (36,408,541 | ) | ||||
| Proceeds from Related Party Notes Payable | 1,100,000 | - | ||||||
| Repayments of Releated Party Notes Payable | (127,500 | ) | - | |||||
| Principal payments of long-term debt | (30,866 | ) | (37,659 | ) | ||||
| Payments of Loan costs | (25,000 | ) | (70,000 | ) | ||||
| Net cash provided by (used) in financing activities | (1,509,014 | ) | (3,288,084 | ) | ||||
| Effect of exchange rate changes on cash | 50,141 | (38,622 | ) | |||||
| NET INCREASE (DECREASE) IN CASH, CASH EQUIVALENTS AND RESTRICTED CASH | (151,416 | ) | 288,351 | |||||
| CASH, CASH EQUIVALENTS AND RESTRICTED CASH BEGINNING OF PERIOD | 347,226 | 58,875 | ||||||
| CASH, CASH EQUIVALENTS AND RESTRICTED CASH - END OF PERIOD | $ | 195,810 | $ | 347,226 | ||||
| SUPPLEMENTAL DISCLOSURE OF NON-CASH ACTIVITY | ||||||||
| Series A 8% Dividend issued in Common Stock | 113,041 | 16,328 | ||||||
| Reverse Merger Recapitalization | - | 2,400 | ||||||
| Valuation of Right of Use asset/liability | 1,257,751 | - | ||||||
| Shares issued for acquisition | 2,590,000 | - | ||||||
| Related Party Notes recognized from Business Acquisition | 710,000 | - | ||||||
| Supplemental Disclosure of Cash Flow Information | ||||||||
| Cash paid for interest | $ | 1,068,796 | $ | 995,088 | ||||
The accompanying notes are an integral part of these consolidated financial statements
| 45 |
Blue Star Foods Corp.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS December 31, 2019 and 2018
Note 1. Company Overview
Located in Miami, Florida, Blue Star Foods Corp. (the “Company”) is a sustainable seafood company. The company’s main operating business, John Keeler & Co., Inc. has been in business for approximately twenty-five years. The Company was formed under the laws of the State of Delaware. The current source of revenue is importing blue and red swimming crab meat primarily from Indonesia, Philippines and China and distributing it in the United States, Canada and Europe under several brand names such as Blue Star, Oceanica, Pacifika, Crab & Go, First Choice, Good Stuff and Coastal Pride Fresh.
On November 8, 2018 the sole shareholder of John Keeler & Co., Inc. executed an Agreement and Plan of Merger and Reorganization with Blue Star Foods Corp. (Formerly A.G. Acquisition Group II, Inc.) and Blue Star Acquisition Corp. John R. Keeler exchanged his 500 shares with a par value of $1.00 in John Keeler & Co., Inc. for the 15,000,000 shares with a par value of $.0001 of the then outstanding 16,015,000 outstanding shares. As part of the merger, the net liabilities existing in the company as of the date of the merger totaling approximately $2,400 were converted to equity as part of this transaction. The prior owners of Blue Star Foods Corp. received 750,000 shares of common stock as part of this transaction, and various service providers received 265,000 shares as compensation for their work on the transaction resulting in and expense and additional paid in capital of $530,001. Additionally, there were 725 Series A Preferred shares and 181,250 warrants issued to private placement investors for total capital contribution of $725,000, 688 Series A Preferred shares and 172,000 warrants issued for settlement with prior investors which had a fair value of $688,000 and $81,353 respectively. Lastly, upon the close of the merger there were 3,120,000 options to purchase common stock issued to Christopher Constable. Additionally, Carlos Faria held options to purchase 104 shares of John Keeler & Co., Inc. prior to the merger. These options were immediately converted at closing to 3,120,000 options to purchase common stock in Blue Star Foods Corp.
The Merger was accounted for as a “reverse merger” and recapitalization since, immediately following the completion of the transaction, the holders of John Keeler & Co., Inc.’s stock will have effective control of Blue Star Foods Corp. In addition, John Keeler & Co., Inc. will have control of the combined entity through control of the Board by designating all four of the board seats. Additionally, all of John Keeler & Co., Inc.’s officers and senior executive positions continued as management of the combined entity after consummation of the Merger. For accounting purposes, John Keeler & Co., Inc. was deemed to be the accounting acquirer in the transaction and, consequently, the transaction has been treated as a recapitalization of Blue Star Foods Corp. Accordingly, John Keeler & Co., Inc.’s assets, liabilities and results of operations are the historical financial statements of the registrant, and the John Keeler & Co., Inc.’s assets, liabilities and results of operations have been consolidated with Blue Star Foods Corp effective as of the date of the closing of the Merger. No step-up in basis or intangible assets or goodwill was recorded in this transaction.
On November 26, 2019, John Keeler & Co., Inc., a Florida corporation (the “Purchaser”), and wholly-owned direct subsidiary of the Company, entered into an Agreement and Plan of Merger and Reorganization (the “Coastal Merger Agreement”) with Coastal Pride Company, Inc., a South Carolina corporation (“Coastal Pride”), Coastal Pride Seafood, LLC, a Florida limited liability company and newly-formed, wholly-owned subsidiary of the Purchaser (the “Acquisition Subsidiary” and, upon the effective date of the Merger, the “Surviving Company), and The Walter F. Lubkin, Jr. Irrevocable Trust dated 1/8/03 (the “Trust”), Walter F. Lubkin III (“Lubkin III”), Tracy Lubkin Greco (“Greco”) and John C. Lubkin (“Lubkin”), constituting all of the shareholders of Coastal Pride immediately prior to the Coastal Merger (collectively, the “Sellers”). Pursuant to the terms of the Coastal Merger Agreement, Coastal Pride merged with and into the Acquisition Subsidiary, with the Acquisition Subsidiary being the surviving company (the “Merger”).
| 46 |
Coastal Pride is a seafood company, based in Beaufort, South Carolina, that imports pasteurized and fresh crabmeat sourced primarily from Mexico and Latin America and sells premium branded label crabmeat throughout North America.
Note 2. Summary of Significant Accounting Policies
Basis of Presentation:
The accompanying financial statements of the Company were prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”).
Principles of Consolidation
The consolidated financial statements include the accounts of the Company, John Keeler & Co, Inc. a wholly owned subsidiary, Coastal Pride Seafood, LLC, a wholly owned subsidiary of John Keeler & Co., Inc. and its variable interest entity for which the John Keeler & Co., Inc. is the primary beneficiary. All intercompany balances and transactions have been eliminated in consolidation.
Variable Interest Entity
Under Financial Accounting Standards Board (“FASB”) Accounting Standard Codification (“ASC”) 810, Consolidation, when a reporting entity is the primary beneficiary of an entity that is a variable interest entity (“VIE”), as defined in ASC 810, the VIE must be consolidated into the financial statements of the reporting entity. The determination of which owner is the primary beneficiary of a VIE requires management to make significant estimates and judgments about the rights, obligations, and economic interests of each interest holder in the VIE.
The Company evaluates its interests in VIE’s on an ongoing basis and consolidates any VIE in which it has a controlling financial interest and is deemed to be the primary beneficiary. A controlling financial interest has both of the following characteristics: (i) the power to direct the activities of the VIE that most significantly impact its economic performance; and (ii) the obligation to absorb losses of the VIE that could potentially be significant to it or the right to receive benefits from the VIE that could be significant to the VIE.
Effective April 1, 2014, the Company’s stockholder was transferred the controlling interest of Strike the Gold Foods, Ltd. (“Strike”), a related party entity which holds the Company’s inventory on consignment in United Kingdom (see Note 3). The Company evaluated its interest in Strike and determined that Strike is a VIE due to the Company’s implicit interest in Strike and the fact that Strike and the Company were under common control after the transfer of the controlling interest. Moreover, the Company determined that it is the primary beneficiary of Strike due to the fact that the Company had both the power to direct the activities that most significantly impact Strike and the obligation to absorb losses or the right to receive benefits from Strike. Therefore, the Company consolidated Strike in its financial statements.
| 47 |
Strike’s activities are reflected in the Company’s financial statements starting on April 1, 2014, the effective date of the controlling interest transfer. Strike’s equity is classified as non-controlling interest in the Company’s financial statements since the Company is not a shareholder of Strike. Strike was not a VIE of the Company and the Company was not the primary beneficiary of Strike prior to the controlling interest transfer.
The Company also evaluated its interest in three related party entities that are under common control with the Company, Bacolod Blue Star Export Corp. (“Bacolod”), Bicol Blue Star Export Co. (“Bicol”) and John Keeler Real Estate Holding (“JK Real Estate”), in light of ASC 810. The Company purchases inventory from Bacolod, an exporter of pasteurized crab meat out of the Philippines. The Company purchased inventory, via Bacolod, from Bicol. The Company leases its office and warehouse facility from JK Real Estate, a landlord that is a related party through common family beneficial ownership (see Note 7).
The Company determined that Bacolod and Bicol are not VIE’s as they do not meet the criteria to be considered a VIE per ASC 810. The Company does not directly or indirectly absorb any variability of Bacolod or Bicol. The relationship between the Company and Bacolod and Bicol is strictly a supplier/customer relationship (see Advances to Suppliers and Related Party accounting policy). Moreover, Bacolod and Bicol have other customers besides the Company. Even if the Company is no longer Bacolod or Bicol’s customer, they would be able to sustain their operations from selling their inventory to their other customers. As the Company concluded that Bacolod and Bicol are not VIE’s and the Company is not deemed their primary beneficiary, Bacolod or Bicol is not consolidated with the Company’s financial statements.
The Company determined that JK Real Estate is a VIE due the fact that the Company guarantees the mortgage on the facility rented from JK Real Estate. Therefore, JK Real Estate’s equity at risk is not deemed sufficient to permit JK Real Estate to finance its activities without subordinated financial support. Moreover, the activities of JK Real Estate are substantially conducted on behalf of the Company’s majority stockholder. The Company concluded that it not the primary beneficiary of JK Real Estate since the Company does not have the power to direct the activities that most significantly impact JK Real Estate. Therefore, JK Real Estate is not consolidated with the Company’s financial statements.
Cash, Restricted Cash and Cash Equivalents
On January 1, 2018 the Company adopted the provisions of ASU 2016-18, “Statement of Cash Flows (Topic 230) Restricted Cash” (“ASU 2016-18”), which requires that the statement of cash flows explain the change during the period in the total of cash and cash equivalents and amounts generally described as restricted cash.
The Company maintains cash balances with financial institutions in excess of Federal Deposit Insurance Company (“FDIC”) insured limits. The Company has not experienced any losses on such accounts and believes it does not have a significant exposure.
The Company considers all highly liquid investments with an original maturity of three months or less to be cash equivalents.
| 48 |
The Company considers any cash balance in the lender designated cash collateral account as restricted cash. All cash proceeds must be deposited into cash collateral account, and will be cleared and applied to the line of credit. The Company has no access to this account, and the purpose of the funds is restricted to repayment of the line of credit. The following table provides a reconciliation of cash, cash equivalents and restricted cash reported within the consolidated balance sheets that sum to the total of the same such amounts in the consolidated statement of cash flows:
December 31, 2019 | December 31, 2018 | |||||||
| Cash and cash equivalents | $ | 153,904 | $ | 13,143 | ||||
| Restricted cash | 41,906 | 334,083 | ||||||
| Total cash, cash equivalents, and restricted cash shown in the cash flow statement | $ | 195,810 | $ | 347,226 | ||||
Accounts Receivable
Accounts receivable consist of unsecured obligations due from customers under normal trade terms, usually net 30 days. The Company grants credit to its customers based on the Company’s evaluation of a particular customer’s credit worthiness.
Allowances for doubtful accounts are maintained for potential credit losses based on the age of the accounts receivable and the results of the Company’s periodic credit evaluations of its customers’ financial condition. Receivables are written off as uncollectible and deducted from the allowance for doubtful accounts after collection efforts have been deemed to be unsuccessful. Subsequent recoveries are netted against the provision for doubtful accounts expense. The Company generally does not charge interest on receivables.
Receivables are net of estimated allowances for doubtful accounts and sales return and allowances. They are stated at estimated net realizable value. As of December 31, 2019 and 2018, the Company recorded sales return and allowances and refund liability of approximately $59,100 and $159,500, respectively. There was no allowance for bad debt recorded during the years ended December 31, 2019 and 2018.
Inventories
Substantially all of the Company’s inventory consists of packaged crab meat located at the Company’s warehouse facility as well as public cold storage facilities and merchandise in transit from suppliers. The cost of inventory is primarily determined using the specific identification method. Inventory is valued at the lower of cost or market, using the first-in, first-out method.
Merchandise is purchased cost and freight shipping point and becomes the Company’s asset and liability upon leaving the suppliers’ warehouse. The Company had in-transit inventory of approximately $1,958,553 and $4,203,400 as of December 31, 2019 and December 31, 2018, respectively.
The Company periodically reviews the value of items in inventory and records an allowance to reduce the carrying value of inventory to the lower of cost or market based on its assessment of market conditions, inventory turnover and current stock levels. Inventory write-downs are charged to cost of goods sold. The Company recorded an inventory allowance of approximately $40,800 and $39,300 for the years ended December 31, 2019 and December 31, 2018.
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Advances to Suppliers and Related Party
In the normal course of business, the Company may advance payments to its suppliers, inclusive of Bacolod, a related party. These advances are in the form of prepayments for products that will ship within a short window of time. In the event that it becomes necessary for the Company to return products or adjust for quality issues, the Company is issued a credit by the vendor in the normal course of business and these credits are also reflected against future shipments.
As of December 31, 2019 and 2018, the balance due from the related party for future shipments was approximately $1,285,900 and $1,139,600, respectively. The 2019 balances represent approximately five to six months of purchases from the supplier.
Fixed Assets
Fixed assets are stated at cost less accumulated depreciation and are being depreciated using the straight-line method over the estimated useful life of the asset as follows:
| Furniture and fixtures | 7 to 10 years | |
| Computer equipment | 5 years | |
| Warehouse and refrigeration equipment | 10 years | |
| Leasehold improvements | 7 years | |
| Automobile | 5 years | |
| Trade show booth | 7 years |
Leasehold improvements are amortized using the straight-line method over the shorter of the expected life of the improvement or the remaining lease term.
The Company capitalizes expenditures for major improvements and additions and expenses those items which do not improve or extend the useful life of the fixed assets.
The Company reviews fixed assets for recoverability if events or changes in circumstances indicate the assets may be impaired. At December 31, 2019 and 2018, the Company believes the carrying values of its long-lived assets are recoverable and as such, the Company did not record any impairment.
Other Comprehensive (loss) Income
The Company reports its comprehensive (loss) income in accordance with ASC 220, Comprehensive Income, which establishes standards for reporting and presenting comprehensive (loss) income and its components in a full set of financial statements. Other comprehensive (loss) income consists of net income (loss) and cumulative foreign currency translation adjustments.
Foreign Currency Translation
The Company’s functional and reporting currency is the U.S. Dollars. The assets and liabilities held by the Company’s VIE have a functional currency other than the U.S. Dollar. They are translated into U.S. Dollars at exchange rates in effect at the end of each reporting period. The VIE’s revenue and expenses are translated into U.S. Dollars at the average rates that prevailed during the period. The rates used in the financial statements as presented for December 31, 2019 and 2018 were 1.337 and 1.336 US dollar to UK pound sterling, respectively. The resulting net translation gains and losses are reported as foreign currency translation adjustments in stockholders’ equity as a component of comprehensive (loss) income. The Company recorded foreign currency translation adjustment of approximately $50,100 and ($38,600) for the years ended December 31, 2019 and December 31, 2018, respectively.
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Revenue Recognition
Effective with the January 1, 2018 adoption of ASU 2014-09, “Revenue from Contracts with Customers (Topic 606),” and the associated ASUs (collectively, “Topic 606”), the Company recognizes revenue when its customer obtains control of promised goods or services in an amount that reflects the consideration which the Company expects to receive in exchange for those goods or services. To determine revenue recognition for the arrangements that the Company determines are within the scope of Topic 606, the Company performs the following five steps: (1) identify the contract(s) with a customer, (2) identify the performance obligations in the contract, (3) determine the transaction price, (4) allocate the transaction price to the performance obligations in the contract and (5) recognize revenue when (or as) the entity satisfies a performance obligation.
The Company elected an accounting policy to treat shipping and handling activities as fulfillment activities. Consideration payable to a customer is recorded as a reduction of the arrangement’s transaction price, thereby reducing the amount of revenue recognized, unless the payment is for distinct goods or services received from the customer.
Advertising
The Company expenses the costs of advertising as incurred. Advertising expenses which are included in Other Operating Expenses were approximately $81,700 and $127,000, for the years ended December 31, 2019 and 2018, respectively.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States (“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 revenues and expenses during the reporting period. Actual results could differ from those estimates.
Customer Concentration
The Company had three customers which accounted for approximately 46% and 65%, of revenue during the years ended December 31, 2019 and 2018, respectively. Outstanding receivables from these customers accounted for approximately 24% and 65% of the total accounts receivable as of December 31, 2019 and 2018, respectively. The loss of any major customer could have a material adverse impact on the Company’s results of operations, cash flows and financial position.
Supplier Concentration
The Company had two suppliers which accounted for approximately 42% of the Company’s total purchases during the year ended December 31, 2019, and a one-time purchase from a United States based supplier that accounted for approximately 21% of purchases. The two suppliers are located in two countries, Indonesia, and the Philippines, which accounted for approximately 65% of the Company’s total purchases during the year ended December 31, 2019.
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The Company had three suppliers which accounted for approximately 87% of the Company’s total purchases during the year ended December 31, 2018. These three suppliers are located in two countries, Indonesia, and the Philippines, which accounted for approximately 93% of the Company’s total purchases during the year ended December 31, 2018.
These suppliers included Bacolod, a related party, which accounted for approximately 27% and 49% of the Company’s total purchases, during the years ended December 31, 2019 and 2018, respectively.
On September 20, 2018, the company entered into a settlement and mutual release agreement with a supplier that the company was engaged in a commercial dispute. The settlement resulted in a reduction of the outstanding accounts payable to that supplier of $388,199 to a balance due of $1,465,000. The balance due to this supplier as of December 31, 2019 was approximately $927,800.
The loss of any major supplier could have a material adverse impact on the Company’s results of operations, cash flows and financial position.
Fair Value of Financial Instruments
Our financial instruments include cash, accounts receivable, accounts payable, accrued expenses, and debt obligations. We believe the carrying values of our financial instruments approximate their fair values because they are short term in nature or payable on demand.
Earnings or Loss per Share:
The Company accounts for earnings per share pursuant to ASC 260, Earnings per Share, which requires disclosure on the financial statements of “basic” and “diluted” earnings (loss) per share. Basic earnings (loss) per share are computed by dividing net income (loss) by the weighted average number of common shares outstanding for the year. Diluted earnings (loss) per share is computed by dividing net income (loss) by the weighted average number of common shares outstanding plus common stock equivalents (if dilutive) related to stock options and warrants for each year. As further described in Footnote 6 - Series A Convertible Preferred Stock, as of December 31, 2019, 1,413 shares of Preferred Stock could be converted into 706,500 shares of common stock. As further described in Footnote 7 – Options & Warrants, as of December 31, 2019, 3,120,000 options may be exercised and 353,250 warrants exercisable.
As there was a net loss for the years ended December 31, 2019, basic and diluted losses per share are the same.
Employee Stock-Based Compensation:
The Company accounts for stock-based compensation in accordance with ASC 718, “Compensation-Stock Compensation”. ASC 718 requires companies to measure the cost of employee services received in exchange for an award of equity instruments, including stock options, based on the grant-date fair value of the award and to recognize it as compensation expense over the period the employee is required to provide service in exchange for the award, usually the vesting period. The Company has elected to adopt ASU 2016-09 and has a policy to account for forfeitures as they occur.
Non-Employee Stock-Based Compensation:
Effective January 1, 2019, the Company adopted ASU No. 2018-07, Compensation – Stock Based Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting (“ASU 2018-7”), which aligns accounting for share-based payments issued to nonemployees to that of employees under the existing guidance of Topic 718, with certain exceptions. This update supersedes previous guidance for equity-based payments to nonemployees under Subtopic 505-50, Equity – Equity-Based Payments to Non-Employees. The adoption of ASU 2018-07 did not have a material impact on the Company’s consolidated financial statements.
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The Company accounts for stock-based compensation awards to non-employees in accordance with ASU No. 2018-07, Compensation – Stock Based Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting (“ASU 2018-07”), which aligns accounting for share-based payments issued to nonemployees to that of employees under the existing guidance of Topic 718, with certain exceptions. This update supersedes previous guidance for equity-based payments to nonemployees under Subtopic 505-50, Equity – Equity-Based Payments to Non-Employees.
All issuances of stock options or other equity instruments to non-employees as consideration for goods or services received by the Company are accounted for based on the fair value of the equity instruments issued. Non-employee equity-based payments are recorded as an expense over the service period, as if the Company had paid cash for the services. At the end of each financial reporting period, prior to vesting or prior to the completion of the services, the fair value of the equity-based payments will be re-measured and the non-cash expense recognized during the period will be adjusted accordingly. Since the fair value of equity-based payments granted to non-employees is subject to change in the future, the amount of the future expense will include fair value re-measurements until the equity-based payments are fully vested or the service completed.
Related Parties:
The Company accounts for related party transactions in accordance with ASC 850 (“Related Party Disclosures”). A party is considered to be related to the Company if the party directly or indirectly or through one or more intermediaries, controls, is controlled by, or is under common control with the Company. Related parties also include principal owners of the Company, its management, members of the immediate families of principal owners of the Company and its management and other parties with which the Company may deal if one party controls or can significantly influence the management or operating policies of the other to an extent that one of the transacting parties might be prevented from fully pursuing its own separate interests. A party which can significantly influence the management or operating policies of the transacting parties or if it has an ownership interest in one of the transacting parties and can significantly influence the other to an extent that one or more of the transacting parties might be prevented from fully pursuing its own separate interests is also a related party.
As of December 31, 2019 and 2018, there was approximately $350,900 and $174,600 in interest paid to related parties notes payable. See Note 6 Debt and Note 4 Consolidation of Variable Interest Entity for further information.
Reclassifications
Certain amounts in prior year have been reclassified to conform to the current year presentation.
Income Taxes
Prior to November 8, 2018, the Company was taxed under the provisions of subchapter S of the Internal Revenue Code. Under these provisions, the Company did not pay corporate federal income taxes on its taxable income but was liable for Florida corporate income taxes and Texas Franchise Tax. The shareholder was liable for individual income taxes on the Company’s taxable income. Post-merger, the Company file consolidated federal and state income tax returns.
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Unaudited pro forma amounts for income tax expense have been presented assuming the Company’s pro forma effective tax rate of (2.56)% for the year ended December 31, 2018, as if it had been a C corporation during that period. The pro-forma provision for income taxes excludes information related to the Company’s VIE.
Income tax expense is the total of the current year income tax due and the change in deferred tax assets and liabilities. Deferred tax assets and liabilities are the expected future tax amounts for the temporary differences between carrying amounts and tax bases of assets and liabilities, computed using enacted tax rates. A valuation allowance, if needed, reduces deferred tax assets to the amount expected to be realized. As changes in tax laws or rates are enacted, deferred tax assets and liabilities are adjusted through the provision for income taxes.
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 is greater than 50% likely of being realized on examination. For tax positions not meeting the “more likely than not” test, no tax benefit is recorded.
The Company’s policy is to recognize interest and penalties on uncertain tax positions in “Income tax expense” in the Consolidated Statements of Operations. There were no amounts related to interest and penalties recognized for the years ended December 31, 2019 or 2018.
Recently Adopted Accounting Pronouncements
ASC 842 Leases.
On January 1, 2019, we adopted Accounting Standards Codification 842 and all the related amendments using the modified retrospective method. We recognized the cumulative effect of initially applying the new lease standard as an adjustment to the opening balance of retained earnings. The comparative information has not been restated and continues to be reported under the lease accounting standard in effect for those periods.
The new lease standard requires all leases to be reported on the balance sheet as right-of-use assets and lease obligations. We elected the practical expedients permitted under the transition guidance of the new standard that retained the lease classification and initial direct costs for any leases that existed prior to adoption of the standard. We did not reassess whether any contracts entered into prior to adoption are leases or contain leases.
We categorize leases with contractual terms longer than twelve months as either operating or finance. Finance leases are generally those leases that would allow us to substantially utilize or pay for the entire asset over its estimated life. Assets acquired under finance leases are recorded in property and equipment, net. All other leases are categorized as operating leases. We did not have any finance leases as of December 31, 2019. Our leases generally have terms that range from three years for equipment and five to twenty years for property. We elected the accounting policy to include both the lease and non-lease components of our agreements as a single component and account for them as a lease.
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Lease liabilities are recognized at the present value of the fixed lease payments using a discount rate based on similarly secured borrowings available to us. Lease assets are recognized based on the initial present value of the fixed lease payments, reduced by landlord incentives, plus any direct costs from executing the leases. Lease assets are tested for impairment in the same manner as long-lived assets used in operations. Leasehold improvements are capitalized at cost and amortized over the lesser of their expected useful life or the lease term.
When we have the option to extend the lease term, terminate the lease before the contractual expiration date, or purchase the leased asset, and it is reasonably certain that we will exercise the option, we consider these options in determining the classification and measurement of the lease. Costs associated with operating lease assets are recognized on a straight-line basis within operating expenses over the term of the lease.
The table below presents the lease-related assets and liabilities recorded on the balance sheets.
| December 31, 2019 | ||||
| Assets | ||||
| Operating lease assets | $ | 1,206,931 | ||
| Liabilities | ||||
| Current | $ | 136,952 | ||
| Operating lease liabilities | ||||
| Noncurrent | ||||
| Operating lease liabilities | $ | 1,089,390 | ||
Supplemental cash flow information related to leases were as follows:
Twelve
Months Ended | ||||
| Cash used in operating activities: | ||||
| Operating leases | $ | 130,450 | ||
| ROU assets recognized in exchange for lease obligations: | ||||
| Operating leases | $ | 1,257,751 | ||
The table below presents the remaining lease term and discount rates for operating leases.
| December 31, 2019 | ||||
| Weighted-average remaining lease term | ||||
| Operating leases | 6.35 years | |||
| Weighted-average discount rate | ||||
| Operating leases | 5.4 | % | ||
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Maturities of lease liabilities as of December 31, 2019, were as follows:
| Operating Leases | ||||
| 2020 | 214,634 | |||
| 2021 | 225,735 | |||
| 2022 | 237,660 | |||
| 2023 | 240,157 | |||
| 2024 | 235,203 | |||
| Thereafter | 336,932 | |||
| Total lease payments | 1,490,321 | |||
| Less: amount of lease payments representing interest | (263,979 | ) | ||
| Present value of future minimum lease payments | $ | 1,226,342 | ||
| Less: current obligations under leases | $ | (136,952 | ) | |
| Non-current obligations | $ | 1,089,390 | ||
Recently Issued Accounting Pronouncements
In December 2019, the FASB issued ASU No. 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes (“ASU 2019-12”), which is intended to simplify various aspects related to accounting for income taxes. ASU 2019-12 removes certain exceptions to the general principles in Topic 740 and also clarifies and amends existing guidance to improve consistent application. This guidance is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2020, with early adoption permitted. The Company is currently evaluating the impact of this standard on its consolidated financial statements and related disclosure.
Note 3. Going Concern
The accompanying consolidated financial statements and notes have been prepared assuming the Company will continue as a going concern. Although the company has positive cash flow from operations for the year ended December 31, 2019, the Company incurred a net loss of $5,021,703, has an accumulated deficit of $8,952,466 and working capital deficit of $2,786,086, inclusive of $2,910,136 in subordinated stockholder debt. These circumstances raise substantial doubt as to the Company’s ability to continue as a going concern. The Company’s ability to continue as a going concern is dependent upon the Company’s ability to increase revenues, execute on its business plan to acquire complimentary companies, raise capital, and to continue to sustain adequate working capital to finance its operations. The failure to achieve the necessary levels of profitability and cash flows would be detrimental to the Company. The consolidated financial statements do not include any adjustments that might be necessary if the Company is unable to continue as a going concern.
Note 4. Consolidation of Variable Interest Entities
Effective April 1, 2014, the Company’s stockholder was transferred the controlling interest of Strike (see Note 2). The Company concluded that Strike is a VIE and the Company is the primary beneficiary of Strike, in accordance with ASC 810, Consolidation. Therefore, the Company consolidated Strike in its financial statements. Strike’s activities are reflected in the Company’s financial statements starting on April 1, 2014, the effective date of the controlling interest transfer. Strike was not a VIE of the Company and the Company was not the primary beneficiary of Strike prior to the effective date of the controlling interest transfer of April 1, 2014. Strike’s equity is classified as non-controlling interest in the Company’s financial statements since the Company is not a shareholder of Strike.
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The information below represents the assets, liabilities and non-controlling interest related to Strike as of December 31, 2019 and December 31, 2018.
| December 31, 2019 | ||||
| Assets | $ | 128,166 | ||
| Liabilities | 30,649 | |||
| Non-controlling interest | (476,250 | ) | ||
| December 31, 2018 | ||||
| Assets | $ | 177,352 | ||
| Liabilities | 95,720 | |||
| Non-controlling interest | (440,883 | ) | ||
Note 5. Fixed Assets
Fixed assets comprised the following at December 31:
| 2019 | 2018 | |||||||
| Computer equipment | $ | 82,240 | $ | 27,320 | ||||
| Warehouse and refrigeration equipment | 157,839 | 157,839 | ||||||
| Leasehold improvements | 4,919 | 26,600 | ||||||
| Automobile | - | 174,620 | ||||||
| Total | 244,998 | 386,379 | ||||||
| Less: Accumulated depreciation and amortization | (183,090 | ) | (277,210 | ) | ||||
| Fixed assets, net | $ | 61,908 | $ | 109,169 | ||||
For the years ended December 31, 2019 and 2018, depreciation and amortization expense of fixed assets totaled approximately $66,000 and $64,000 respectively.
Note 6. Debt
Working Capital Line of Credit
The Company entered into a $14,000,000 revolving line of credit with ACF Finco I, LP (“ACF”) on August 31, 2016, the proceeds of which were used to pay off the prior line of credit, pay new loan costs of approximately $309,000, and provide additional working capital to the Company, this facility is secured by all assets of John Keeler & Co., Inc. This facility was amended on November 18, 2016, June 19, 2017, October 16, 2017, September 19, 2018, November 8, 2018, July 29, 2019, and November 26, 2019.
The line of credit bears an interest rate equal to the greater of 3 Month LIBOR rate plus 9.25%, the Prime rate plus 6.0% or a fixed rate of 6.5%.
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The ACF line of credit agreement is subject to the following terms:
| ● | Borrowing is based on up to 85% of eligible accounts receivable plus the net orderly liquidation value of eligible inventory at the same rate, subject to certain defined limitations. | |
| ● | The line is collateralized by substantially all the assets and property of the Company and is personally guaranteed by the stockholder of the Company. | |
| ● | The Company is restricted to specified distribution payments, use of funds, and is required to comply with certain other covenants including certain financial ratios. | |
| ● | All cash received by the Company is applied against the outstanding loan balance. | |
| ● | A subjective acceleration clause allows ACF to call the note upon a material adverse change. |
On November 26, 2019, Inc. the Company entered into the seventh amendment to the loan and security agreement with ACF. This amendment memorialized the acquisition of Coastal Pride Seafood, LLC, made Coastal Pride Seafood, LLC a co-borrower to the facility. Additionally, the seventh amendment waived and reset the covenant default that occurred during 2019, and extended the term of the facility to 5 years and is subject to early termination by the lender upon defined events of default. During the year ended December 31, 2019 the Company was in violation of its minimum EBITDA covenant as well as exceeding the covenant related to monies advanced to Bacolod Blue Star by approximately $85,000.
The Company analyzed the Line of Credit modification under ASC 470-50-40-21 and determined that the modification did not trigger any additional accounting due to the revolving line of credit remain unchanged
As of December 31, 2019, the line of credit bears interest rate of 11.164%.
As of December 31, 2019 and 2018, the line of credit had an outstanding balance of approximately $6,918,000 and $8,204,000, respectively.
The Company amortizes loan costs on a straight-line basis, which approximates the interest method, over the term of the credit facility. The Company added loan costs associated with the working capital lines of credit of approximately $25,000 and $70.000 for the twelve months ending December 31, 2019 and 2018, leaving balances in the asset of $5,470 and $109,200, net of approximately $513,171 and $384,500 of accumulated amortization as of December 31, 2019 and 2018, respectively. The Company recorded amortization expense of approximately $129,000 and $155,500 during the years ended December 31, 2019 and 2018, respectively.
John Keeler Promissory Notes - Subordinated
The Company had unsecured promissory notes outstanding to its stockholder of approximately $2,910,000 as of December 31, 2019 and 2018. These notes are payable on demand and bear an annual interest rate of 6%. These notes are subordinated to AFS Finco I LP (“Ares”) as a stipulation to the working capital line of credit. Principle payments are not allowed under this subordination agreement that was effective August 31, 2016. No Principal payments were made by the Company during 2019 or 2018.
Interest expense for the John Keeler Promissory notes totaled approximately $174,600 the years ending December 31, 2019 and 2018.
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Kenar Note
On March 26, 2019, the Company issued a four-month promissory note in the principal amount of $1,000,000 (the “Kenar Note”) to Kenar Overseas Corp., a company registered in Panama (the “Lender”) the term of which was previously extended to March 31, 2020 after which time, on May 21, 2020, the Kenar Note was amended to (i) set the maturity date at March 31, 2021 (unless extended to September 30, 2021 at the Lender’s sole option), (ii) provide that the Company use one-third of any capital raise from the sale of its equity to reduce the outstanding principal under the Kenar Note, (iii) set the interest rate at 18% per annum, payable monthly commencing October 1, 2020, and (iv) to reduce the number of pledged shares by Mr. Keeler to 4,000,000. As consideration therefor, the Company has agreed to issue 1,021,266 shares of its Common Stock to Kenar. The outstanding principal amount of the note at December 31, 2019 was $872,500.
Interest expense for the Kenar note totaled approximately $160,400 during the year ending December 31, 2019.
Lobo Note
On April 2, 2019, the Company issued a four-month unsecured promissory note in the principal amount of $100,000 (the “Lobo Note”) to Lobo Holdings, LLC, a stockholder in the Company (“Lobo”). The Lobo Note bears interest at the rate of 18% per annum. The Lobo Note may be prepaid in whole or in part without penalty. John Keeler, the Company’s Executive Chairman and Chief Executive Officer, pledged 1,000,000 shares of common stock of the Company to secure the Company’s obligations under the Lobo Note. The Lobo Note matured on August 2, 2019 and was extended through December 2, 2019 on the same terms and conditions. On November 15, 2019, the Company paid off the Lobo Note with the issuance to Lobo of an unsecured promissory note in the principal amount of $100,000 which bears interest at the rate of 15%, which may be prepaid in whole or in part without penalty, and matures on March 31, 2020. On April 1, 2020 the Company paid off the November 15 2019 Lobo Note with the issuance of a 6 month unsecured promissory note with a principal amount of $100,000, bearing an interest rate of 10%. This note may be prepaid in whole or in part without penalty.
Interest expense for the Lobo note totaled approximately $13,100 during the year ending December 31, 2019.
Walter Lubkin Jr. Note - Subordinated
On November 26, 2019, the Company issued a five year unsecured promissory note in the principal amount of $500,000 to Walter Lubkin Jr. as part of the purchase price for the acquisition of Coastal Pride Co. Inc. The note bears and interest rate of 4% per annum. The note is payable quarterly based on an amount equal to the lesser of (i) $25,000 or (ii) 25% of the EBITDA of Coastal Pride Seafood, LLC, as determined on the first day of each quarter. The first payment was scheduled for February 26, 2020, however, the EBITDA generated for Coastal during the 3 months did not warrant a principal payment. This note is subordinated to ACF as a stipulation to the working capital line of credit. Principal payments are allowed under this subordination agreement that was effective November 26, 2019 so long as the borrower is not in default of its lending agreement. No principal payments were made by the Company during 2019.
Interest expense for the Walter Lubkin Jr. note totaled approximately $2,000 during the year ending December 31, 2019.
Walter Lubkin III Convertible Note - Subordinated
On November 26, 2019, the Company issued a thirty-nine month unsecured promissory note in the principal amount of $87,842 to Walter Lubkin III as part the purchase price for the acquisition of Coastal Pride Co. Inc. The note bears and interest rate of 4% per annum. The note is payable in equal quarterly payments over six quarters beginning August 26, 2021. At the election of the holder, at any time after the first anniversary date and prior to the end of the 39 month term of this note and prior to payment in full of this note, the principal amount, together with accrued interest may be converted into the Company’s common stock at a rate of $2.00 of principal and/or interest per common share. This note is subordinated to ACF as a stipulation to the working capital line of credit. Principle payments are allowed under this subordination agreement that was effective November 26, 2019 so long as the borrower is not in default of its lending agreement. No Principal payments were made by the Company during 2019.
Interest expense for the Walter Lubkin III note totaled approximately $400 during the year ending December 31, 2019.
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Tracy Greco Convertible Note - Subordinated
On November 26, 2019, the Company issued a thirty-nine month unsecured promissory note in the principal amount of $71,372 to Tracy Greco as part of the purchase price for the acquisition of Coastal Pride Co. Inc. The note bears and interest rate of 4% per annum. The note is payable in equal quarterly payments over six quarters beginning August 26, 2021. At the election of the holder, at any time after the first anniversary date and prior to the end of the 39 month term of this note and prior to payment in full of this note, the principal amount, together with accrued interest may be converted into the Company’s common stock at a rate of $2.00 of principal and/or interest per common share. This note is subordinated to ACF as a stipulation to the working capital line of credit. Principle payments are allowed under this subordination agreement that was effective November 26, 2019 so long as the borrower is not in default of its lending agreement. No Principal payments were made by the Company during 2019.
Interest expense for the Tracy Greco note totaled approximately $300 during the year ending December 31, 2019.
John Lubkin Convertible Note – Subordinated
On November 26, 2019, the Company issued a thirty-nine month unsecured promissory note in the principal amount of $50,786 to John Lubkin. as part the purchase price of Coastal Pride Co. Inc. The note bears and interest rate of 4% per annum. The note is payable in equal quarterly payments over six quarters beginning August 26, 2021. At the election of the holder, at any time after the first anniversary date and prior to the end of the 39 month term of this note and prior to payment in full of this note, the principal amount, together with accrued interest may be converted into the Company’s common stock at a rate of $2.00 of principal and/or interest per common share. This note is subordinated to ACF as a stipulation to the working capital line of credit. Principle payments are allowed under this subordination agreement that was effective November 26, 2019 so long as the borrower is not in default of its lending agreement. No Principal payments were made by the Company during 2019.
Interest expense for the John Lubkin note totaled approximately $200 during the year ending December 31, 2019.
Note 7. Business Combination
Merger with Coastal Pride Seafood, LLC
On November 26, 2019, the Company completed its merger with Coastal Pride Company, Inc. Under the terms of the Agreement and Plan of Merger and Reorganization, the Company paid $3.7 million in consideration including approximately $394,600 in cash, the issuance of $2.59 million of its common stock, the issuance of $500,000 in 4% unsecured promissory note and $210,000 in 4% unsecured convertible promissory notes in exchange for all of the equity of Coastal Pride Company, Inc.. The 1,295,000 shares of the Company’s common stock issued are subject to leak out agreements whereby the shareholders are unable to sell or transfer the stock for a period of one year, and are permitted to transfer or sell up to 25% in each excessive 6 month period thereafter.
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The transaction costs associated with this merger were $175,400 in investment banking fees paid via 87,700 shares of the common stock and $110,176 in legal fees paid in $49,535 in cash, and 30,321 shares of the company’s common stock. The common stock for these transaction costs were issued subsequent to December 31, 2019.
Fair Value of Consideration Transferred and Recording of Assets Acquired
The following table summarizes the acquisition date fair value of the consideration paid, identifiable assets acquired, and liabilities assumed including an amount for goodwill:
| Consideration Paid: | ||||
| Cash and cash equivalents | $ | 394,622 | ||
| Common stock, 1,295,000 shares of BSFC common stock | 2,590,000 | |||
| 4% Unsecured promissory note | 500,000 | |||
| 4% Unsecured, Convertible promissory note payable to seller | 210,000 | |||
| Fair value of total consideration | $ | 3,694,622 | ||
| Recognized amount of identifiable assets acquired and liabilities assumed: | ||||
| Financial assets: | ||||
| Cash and cash equivalents | $ | 133,956 | ||
| Accounts receivables | 1,141,658 | |||
| Inventory | 1,562,973 | |||
| Inventory Step Up | 105,000 | |||
| Prepaid and other assets | 134,254 | |||
| Right of Use Assets | 100,640 | |||
| Property and equipment | 9,713 | |||
| Identifiable intangible assets: | ||||
| Trademarks | 850,000 | |||
| Customer Relationships | 1,250,000 | |||
| Non-Compete Agreements | 40,000 | |||
| Financial liabilities: | ||||
| Accounts payable and accrued liabilities | (816,435 | ) | ||
| Right of Use Liability | (100,640 | ) | ||
| Working Capital Line of Credit | (1,161,892 | ) | ||
| Total identifiable net assets | 3,249,227 | |||
| Goodwill | 445,395 | |||
| Total net value of assets assumed | $ | 3,694,622 | ||
In determining the fair value of the common stock issued, the Company considered the value of the stock as estimated by the company at the time of closing. Given that the stock was not trading at the time of closing, the Company utilized its most sale of common stock from November, 2018 to November, 2019 of approximately $1,000,000 in the aggregate with a valuation of $2.00 shares of common stock.
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Inventory was assessed at the time of closing as to its fair value, and it was determined that a step-up analysis was necessary in order to evaluate the fair value of the inventory at the time of closing. The step up represents the net profit that would be attained when the inventory is sold. The key assumptions used in this analysis is a gross margin of 11.6% and selling costs of 4.4%, The analysis resulted in a necessary step up of $105,000 at the time of closing.
Goodwill represents the future economic benefit arising from other assets acquired that could not be individually identified and separately recognized. The goodwill arising from the acquisition is attributable to the value of the potential expanded market opportunity with new customers. The goodwill is not expected to be deductible for tax purposes.
Pro Forma Information
The following is the unaudited pro forma information assuming all business acquisitions occurred on January 1, 2018. For all of the business acquisitions depreciation and amortization have been included in the calculation of the below pro forma information based upon the actual acquisition costs.
| For the Years Ended December 31 | ||||||||
| 2019 | 2018 | |||||||
| Revenue | $ | 33,057,338 | $ | 43,617,933 | ||||
| Net Loss | $ | (5,048,290 | ) | $ | (2,518,653 | ) | ||
| Basic and Diluted Loss per Share | $ | (0.31 | ) | $ | (0.17 | ) | ||
| Basic and Diluted Weighted Average Common Shares Outstanding | 16,201,766 | 15,147,384 | ||||||
The information included in the pro forma amounts is derived from historical information obtained from the sellers of the businesses. The pro forma amounts above for basic and diluted weighted average shares outstanding have been adjusted to include the stock issued in connection with the acquisition of Coastal.
Note 8. Goodwill and Intangible Assets, Net
The following table sets for the changes in the carrying amount of the Company’ Goodwill for the year ending December 31, 2019
| 2019 | ||||
| Balance, January 1 | $ | - | ||
| Acquisitions of Coastal Pride Company | 445,395 | |||
| Balance, December 31 | $ | 445,395 | ||
The following table sets for the components of the Company’s intangible assets at December 31, 2019:
| Amortization Period (Years) | Cost | Accumulated Amortization | Net Book Value | |||||||||||||
| Intangible Assets Subject to amortization | ||||||||||||||||
| Trademarks | 15 | $ | 850,000 | $ | (4,722 | ) | $ | 845,278 | ||||||||
| Customer Relationships | 13 | 1,250,000 | (8,333 | ) | 1,241,667 | |||||||||||
| Non-Compete Agreements | 4 | 40,000 | (833 | ) | 39,167 | |||||||||||
| Total | $ | 2,140,000 | $ | (13,888 | ) | $ | 2,126,112 | |||||||||
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The aggregate amortization remaining on the intangible assets as of December 31, 2019 is a follows:
| Intangible Amortization | ||||
| 2020 | $ | 162,821 | ||
| 2021 | $ | 162,821 | ||
| 2022 | $ | 162,821 | ||
| 2023 | $ | 161,987 | ||
| 2024 | $ | 152,821 | ||
| Thereafter | $ | 1,323,162 | ||
Note 9. Stockholders Equity
Preferred Stock
Our Board of Directors has designated 10,000 shares of preferred stock as “8% Series A Convertible Preferred Stock”.
The Series A Convertible Preferred Stock (“Series A Stock”) has no maturity and is not subject to any sinking fund or redemption and will remain outstanding indefinitely unless and until converted by the holder or the Company redeems or otherwise repurchases the Series A Stock.
Dividends. Cumulative dividends shall accrue on each share of Series A Stock at the rate of 8% (the “Dividend Rate”) of the purchase price of $1,000.00 per share, commencing on the date of issuance. Dividends are payable quarterly, when and if declared by the Board, beginning on September 30, 2018 (each a “Dividend Payment Date”) and are payable in shares of Common Stock (a “PIK Dividend”) with such shares being valued at the daily volume weighted average price (“VWAP”) of the Common Stock for the thirty trading days immediately prior to each Dividend Payment Date or if not traded or quoted as determined by an independent appraiser selected in good faith by the Company. Any fractional shares of a PIK Dividend will be rounded to the nearest one-hundredth of a share. All shares of Common Stock issued in payment of a PIK Dividend will be duly authorized, validly issued, fully paid and non-assessable. Dividends will accumulate whether or not the Company has earnings, there are funds legally available for the payment of those dividends and whether or not those dividends are declared by the Board.
Dividends of common stock were authorized to the shareholders in accordance with the terms of the Certificate of Designation for the Series A Stock on March 31, 2019, June 30, 2019, September 20, 2019 and December 31, 2019. The dividends resulted in total share issuances of 56,520 shares of stock with a value of $113,041.
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Conversion. Each share of Series A Stock is convertible at any time and in the sole discretion of the holder thereof, into shares of common stock at a conversion rate of 500 shares of Common Stock per each share of Series A Stock (the “Conversion Rate”) The Company analyzed the embedded conversion option for derivative accounting consideration under ASC 815-15 “Derivatives and Hedging” and determined that the conversion option should be classified as equity.
Common Stock
The Company is authorized to issue 100,000,000 shares of common stock at a par value of $.0001 and had 17,589,705 shares of common stock issued and outstanding as of December 31, 2019.
Common Stock issued in Private Placements
On January 29, 2019, the Company’s Board of directors approved a private placement memorandum offering up to $300,000 or 150,000 shares of common stock at $2.00 per share.
During the year ended December 31, 2019, the Company issued 11,000 common shares for a gross proceeds of $22,000.
Common Stock Issued for Bonus Shares for Employees
On May 16, 2019, the Company’s Board of directors approved the issuance of 5,500 shares valued at $2.00 per share for a total value of $11,000 issued to certain employees as an incentive bonus.
Common Stock Issued for the Acquisition of a Business
On November 26, 2019, the company issued 1,295,000 shares, valued at $2.00 per share for a total value of $2,590,000 in connection with the acquisition of Coastal Pride Company, Inc.
Common Stock Issued as Dividends on 8% series A Convertible Preferred Stock
Dividends of common stock were authorized to the shareholders per Certificate of Designation for the Series A Stock the preferred shares designation on March 31, 2019, June 30, 2019, September 20, 2019 and December 31, 2019. The dividends resulted in total share issuances of 56,520 shares of stock with a value of $113,041 during 2019.
Common Stock Issued for Consulting, Professional and other Services
During the twelve months ending December 31, 2019, the Company issued 22,500 shares of common stock valued at $45,000 for legal and consulting fees. Additionally, the company granted 176,021 shares with a value of $352,042 for legal and consulting fees that were issued subsequent to December 31, 2019.
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Note 10. Options
During the twelve months ended December 31, 2019 and December 31, 2018, approximately $2,251,300 and $808,300, respectively, in compensation expense was recognized on the following:
| 1. | In 2018 Options to purchase an aggregate of 104 shares of Blue Star’s common stock issued to Carlos Faria at an exercise price of $10,000 per share, which were outstanding immediately prior to the closing of the Merger, were converted into ten-year immediately exercisable options to purchase an aggregate of 3,120,000 shares of common stock at an exercise price of $0.333 under the Company’s 2018 Equity Incentive Plan (“2018 Plan”). These options were forfeited during the 12 months ending December 31, 2019 |
| 2. | Options to purchase 3,120,000 shares of common stock at an exercise price of $2.00 with a 10 year life, which vest one-year from the date of grant, were issued to Christopher Constable under the 2018 Plan during the twelve months ending December 31, 2018. |
| 3. | Options to purchase 430,000 shares of common stock at an exercise price of $2.00 with a 10 year life, which vest 25% each year from the date of grant, were issued to various long term employees under the 2018 Plan during the twelve months ending December 31, 2019. |
| 4. | Options to purchase 250,000 shares of common stock at an exercise price of $2.00 with a 10 year life, which vest 20% each year from the date of grant, were issued to Zoty Ponce under the 2018 Plan during the twelve months ending December 31, 2019. |
| 5. | Options to purchase 25,000 shares of common stock at an exercise price of $2.00 with a 10 year life, which vest 25% each year from the date of grant, were issued to various contractors during the twelve months ending December 31, 2019 |
The following table summarizes the assumptions used to estimate the fair value of the stock options granted during 2019 and 2018:
| 2019 | 2018 | ||||||||
| Expected Volatility | 39%-48 | % | 37%-39 | % | |||||
| Risk Free Interest Rate | 2.62%-2.71 | % | 2.84 | % | |||||
| Expected life of options | 6.25 – 10.0 | 5 – 5.5 | |||||||
Under the Black-Scholes option pricing model, the fair value of the 705,000 options granted during the twelve months ended December 31, 2019 is estimated at $613,586 on the date of grant. The unrecognized portion of the expense remaining outstanding is $467,232. During the twelve months ended December 31, 2019, an aggregate of 15,000 shares subject to options were forfeited, none of which shares were vested and resulted in a reversal of the expense of $2,263.
The following Table represents option activity for the period ending December 31, 2019 and 2018:
| Number of Options | Weighted Average Exercise Price | Weighted Average Remaining Contractual Life in Years | Aggregate Intrinsic Value | |||||||||||||
| Outstanding - December 31, 2017 | 0 | $ | - | |||||||||||||
| Granted | 6,240,000 | $ | 1.17 | |||||||||||||
| Vested | 3,120,000 | |||||||||||||||
| Outstanding - December 31, 2018 | 6,240,000 | $ | 1.17 | 9.86 | ||||||||||||
| Exercisable - December 31, 2018 | 3,120,000 | $ | 0.33 | 9.86 | $ | 5,210,400 | ||||||||||
| Granted | 705,000 | $ | 2.00 | |||||||||||||
| Forfeited | (3,135,000 | ) | $ | 0.00 | ||||||||||||
| Vested | 3,120,000 | |||||||||||||||
| Outstanding - December 31, 2019 | 3,810,000 | $ | 2.00 | 8.86 | ||||||||||||
| Exercisable - December 31, 2019 | 3,120,000 | $ | 2.00 | 8.86 | $ | - | ||||||||||
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Note 11. Warrants
During the twelve months ended December 31, 2019, the Company had no Warrant activity. For the 12 months ending December 31, 2018, approximately $81,400 in Settlement and Warrant Expense was recognized on the following:
On November 8, 2018, as part of the units purchased by the private placement participants and the SOR settlement shareholders, warrants to purchase 172,000 share of the Company’s common stock were granted. These warrants are immediately vested, are exercisable at an exercise price of $2.40 per share and expire on November 7, 2021.
The following table summarizes the assumptions used to estimate the fair value of the warrants to purchase 172,000 shares granted during 2018 as of re-measurement dates:
| 2018 | ||||
| Expected Volatility | 40 | % | ||
| Risk Free Interest Rate | 2.84 | % | ||
| Expected life of warrants | 3.0 | |||
The following table represents warrant activity for the period ending December 31, 2019 and 2018:
| Number of Warrants | Weighted Average Exercise Price | Weighted Average Remaining Contractual Life in Years | Aggregate Intrinsic Value | |||||||||||||
| Outstanding - December 31, 2017 | 0 | $ | - | |||||||||||||
| Granted | 353,250 | $ | 2.40 | |||||||||||||
| Outstanding - December 31, 2018 | 353,250 | $ | 2.40 | 3.00 | ||||||||||||
| Exercisable - December 31, 2018 | 353,250 | $ | 2.40 | 2.85 | $ | - | ||||||||||
| Granted | - | $ | - | |||||||||||||
| Forfeited or Expired | - | |||||||||||||||
| Outstanding - December 31, 2019 | 353,250 | $ | 2.40 | 2.00 | ||||||||||||
| Exercisable - December 31, 2019 | 353,250 | $ | 2.40 | 1.85 | $ | - | ||||||||||
Note 12 Income taxes
In connection with the Merger, as discussed in Note 1, the Company terminated its S-Corporation status and became a taxable entity (“C Corporation”) on November 8, 2018. The consolidated statements of income present unaudited pro forma statements of income for the year to date and for prior year period. The pro-forma provision for income taxes excludes information related to the Company’s VIE.
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Allocation of federal and state income taxes between current and deferred portions is as follows:
| Components of Tax Expense | December 31, 2019 | December 31, 2018 | December 31, 2018 (Pro Forma) | |||||||||
| Current - Federal | $ | - | - | $ | - | |||||||
| Current - State | 4,413 | 3,004 | 3,004 | |||||||||
| Deferred - Federal | - | - | ||||||||||
| Deferred - State | - | - | ||||||||||
| Income Tax Provision/(Benefit) | $ | 4,413 | $ | 3,004 | $ | 3,004 | ||||||
Federal income tax expense differs from the statutory federal rates of 21% for the years ended December 31, 2019 and 2018 due to the following:
| Rate Reconciliation | December 31, 2019 | December 31, 2018 | December
31, 2018 (Pro Forma) | |||||||||||||||||||||
| Provision/(Benefit) at Statutory Rate | $ | (1,054,558 | ) | 21.00 | % | $ | (407,291 | ) | 21.00 | % | $ | (474,676 | ) | 21.00 | % | |||||||||
| State Tax Provision/(Benefit) net of federal benefit | (179,449 | ) | 3.62 | % | (46,706 | ) | 4.03 | % | (57,336 | ) | 4.03 | % | ||||||||||||
| Permanent Book/Tax Differences | 14,603 | (0.29 | )% | 163,916 | (8.45 | )% | 175,909 | (7.78 | )% | |||||||||||||||
| Employee Retention Credit | - | 0.00 | % | - | 0.00 | % | (6,484 | ) | 0.29 | % | ||||||||||||||
| Change in valuation allowance | 1,222,042 | (24.34 | )% | 290,454 | (14.98 | )% | 423,761 | (18.75 | )% | |||||||||||||||
| Other | 1,775 | (0.04 | )% | 2,631 | (0.14 | )% | (58,170 | ) | 2.57 | % | ||||||||||||||
| Income Tax Provision/(Benefit) | $ | 4,413 | (0.04 | )% | $ | 3,004 | 1.47 | % | $ | 3,004 | 1.36 | % | ||||||||||||
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The components of the net deferred tax asset at December 31, 2019 and 2018, are as follows:
| December 31, 2019 | December 31, 2018 | |||||||
| Deferred Tax Assets | ||||||||
| 263A Unicap | $ | 90,539 | $ | 29,233 | ||||
| Fixed Assets | 27,754 | (4,408 | ) | |||||
| Charitable Contribution Carryforward | 121 | - | ||||||
| Business Interest Limitation | 417,904 | 36,969 | ||||||
| Stock based compensation | 661,359 | 106,015 | ||||||
| Federal Net Operating loss | 254,079 | 109,380 | ||||||
| State Net Operating Loss | 42,814 | 20,612 | ||||||
| Total Deferred Tax Assets | 1,494,570 | 297,801 | ||||||
| Deferred Tax Liabilities | ||||||||
| Intangibles | 18,287 | (7,347 | ) | |||||
| Inventory Reserve | (362 | ) | - | |||||
| Total Deferred Tax Liability | 17,925 | (7,347 | ) | |||||
| Net Deferred Tax Asset/(Liability) | 1,512,495 | 290,454 | ||||||
| Valuation Allowance | (1,512,495 | ) | (290,454 | ) | ||||
| Net Deferred Tax Asset/(Liability) | $ | - | $ | - | ||||
Tax periods for all fiscal years after 2015 remain open to examination by the federal and state taxing jurisdictions to which the Company is subject. As of December 31, 2019, the Company has federal net operating loss of $1,429,252 to carry forward indefinitely.
ASC 740, “Income Taxes” requires that a valuation allowance be established when it is “more likely than not” that all, or a portion of, deferred tax assets will not be recognized. A review of all available positive and negative evidence needs to be considered, including the scheduled reversal of deferred tax liabilities, projected future taxable income, and tax planning strategies. After consideration of all the information available, management believes that uncertainty exists with respect to future realization of its deferred tax assets and has, therefore, established a full valuation allowance as of December 31, 2019.
As of December 31, 2019, the Company has evaluated and concluded that there were no material uncertain tax positions requiring recognition in the Company’s financial statements. The Company’s policy is to classify assessments, if any, for tax related interest as income tax expenses. No interest or penalties were recorded during the years ended December 31, 2019.
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Note 13. Commitment and Contingencies
Office lease
The Company leases its Miami office and warehouse facility from JK Real Estate, a related party through common family beneficial ownership (see Note 2). The lease has a 20 year term, expiring in July 2021. The Company is a guarantor of the mortgage on the facility which had a balance of approximately $1,274,700 at December 31, 2019; the Company’s maximum exposure. The Company deems that rental income on this lease is sufficient to cover the loan payments under this mortgage. Therefore, the Company did not record any liability related to the mortgage in the consolidated financial statements as the Company does not believe it will be called upon to perform under this guarantee, in accordance with ASC 460, Guarantees.
The Company leases approximately 3,000 square feet in Beaufort South Carolina for the offices of Coastal Pride Seafood, LLC. This office space consists of two leases with related parties with approximately 6 years remaining on the leases.
See the disclosure under Recently Adopted Accounting Pronouncements under ASC 842 Leases regarding the disclosure of the future period amortizations of the Right of Use assets.
Rental and equipment lease expenses amounted to approximately $237,400 and $211,000 for the years ended December 31, 2019 and 2018, respectively.
Legal
The Company has reached a settlement agreement with a former employee. Although the agreement is not finalized the company has reserved for the entire amount of the settlement.
Note 14. COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared that the novel coronavirus (COVID-19) had become a pandemic, and on March 13, 2020, the U.S. President declared a National Emergency concerning the disease. Additionally, in March 2020, state governments in the Company’s geographic operating area began instituting preventative shut down measures in order to combat the novel coronavirus pandemic. The coronavirus and actions taken to mitigate the spread of it have had and are expected to continue to have an adverse impact on the economies and financial markets of the geographical area in which the Company operates. On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was enacted to amongst other provisions, provide emergency assistance for individuals, families and businesses affected by the novel coronavirus pandemic. The Company’s business not being deemed essential resulted in will result in decreased financial performance that may not be indicative of future financial results and there remains uncertainty and increased risks concerning its employees, customers, supply chain and government regulation. Going forward sales and supply may continue to be adversely affected due to COVID-19, via decreased demand and/or a decreased ability to source adequate product to meet demand.
Note 15. Employee Benefit Plan
The Company provides and sponsors a 401(k) plan for its employees. For the years ended December 31, 2019 and 2018, no contributions were made to the plan by the Company.
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Note 16. Subsequent Events
On April 17, 2020 the company entered into an unsecured note with US Century Bank for $344,762 related to the CARES act Payroll Protection Program. This note is fully guaranteed by the SBA and may be forgivable provided that certain criteria are met. The interest rate on the loan is 1%, and has a 2 year maturity. The Company is required to make payments on the remaining principal of the note net of any loan forgiveness beginning November 17, 2020.
On May 7, 2020 the Company entered into the eighth amendment to the Ares Loan and Security agreement. This amendment acknowledged the execution of the Payroll Protection Program loan as well provided a Reservation of Rights related to a default of the minimum EBITDA covenant. This amendment also established a default advance rate of an additional 3%.
On March 26, 2019, the Company issued a four-month promissory note in the principal amount of $1,000,000 (the “Kenar Note”) to Kenar Overseas Corp., a company registered in Panama (the “Lender”) the term of which was previously extended to March 31, 2020 after which time, on May 21, 2020, the Kenar Note was amended to (i) set the maturity date at March 31, 2021 (unless extended to September 30, 2021 at the Lender’s sole option), (ii) provide that the Company use one-third of any capital raise from the sale of its equity to reduce the outstanding principal under the Kenar Note, (iii) set the interest rate at 18% per annum, payable monthly commencing October 1, 2020, and (iv) to reduce the number of pledged shares by Mr. Keeler to 4,000,000. As consideration therefor, the Company has agreed to issue 1,021,266 shares of its Common Stock to Kenar.
On April 1, 2020, the Company issued a six-month promissory note in the principal amount of $100,000 to Lobo Holdings, LLC., a stockholder in the Company. The note bears interest at the rate of 10% per annum. The note may be prepaid in whole or in part without penalty. This note paid in full the $100,000 outstanding note dated August 2, 2019.
A Series A Preferred Stock dividend of common stock was authorized to the shareholders per the preferred shares designation on March 31, 2020. The dividend resulted in an issuance of 14,130 shares of stock with a value of $28,260.
On January 23, 2020 the Company issued 127,700 shares of stock for professional fees, and 30,321 shares of common stock for legal fees.
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ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, as of December 31, 2019, we conducted an evaluation of our disclosure controls and procedures, as such term is defined under Rule 13a-15(e) and Rule 15d-15(e) promulgated under the Securities Exchange Act of 1934, as amended. Based on this evaluation, our principal executive officer and principal financial officer have concluded that, based on the material weaknesses discussed below, our disclosure controls and procedures were not effective as of such date to ensure that information required to be disclosed by us in reports filed or submitted under the Securities Exchange Act were recorded, processed, summarized, and reported within the time periods specified in the SEC’s rules and forms and that our disclosure controls are not effectively designed to ensure that information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act is accumulated and communicated to management, including our principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is defined in Rule 13a-15(f) or 15d-15(f) promulgated under the Exchange Act as a process designed by, or under the supervision of, our principal executive and principal financial officers and effected by our board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes those policies and procedures that:
| ● | Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of our assets; | |
| ● | Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States of America and that our receipts and expenditures are being made only in accordance with authorizations of our management and board of directors; and |
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| ● | 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 financial statements. |
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. 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 of compliance with the policies or procedures may deteriorate. All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Because of the inherent limitations of internal control, there is a risk that material misstatements may not be prevented or detected on a timely basis by internal control over financial reporting. However, these inherent limitations are known features of the financial reporting process. Therefore, it is possible to design into the process safeguards to reduce, though not eliminate, this risk.
Our management assessed the effectiveness of our internal control over financial reporting, existing as of December 31, 2019, based on the criteria for effective internal control over financial reporting established in Internal Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) and SEC guidance on conducting such assessments. Based on that evaluation, we believe that, during the period covered by this report, such internal controls and procedures were not effective to detect the inappropriate application of GAAP rules as more fully described below. This was due to deficiencies that existed in the design or operation of our internal controls over financial reporting that adversely affected our internal controls and that may be considered to be material weaknesses.
As a result of the foregoing, the matters involving internal controls and procedures that our management considered to be material weaknesses under the standards of the Public Company Accounting Oversight Board were:
| ● | The Company’s lack of an audit committee with a financial expert and thus the Company lacks the board oversight role within the financial reporting process; | |
| ● | inadequate segregation of duties consistent with control objectives, including lack of personnel resources and technical accounting expertise within the accounting function of the Company. |
Management believes that the material weaknesses that were identified did not have an effect on our financial results. However, management believes that these weaknesses, if not properly remediated, could result in a material misstatement in our financial statements in future periods.
Management’s Remediation Initiatives
In an effort to remediate the identified material weaknesses and other deficiencies and enhance our internal controls, we plan to further initiate, the following measures, subject to the availability of required resources:
| ● | We plan to establish an audit committee, including an “audit committee financial expert” as defined by applicable SEC rules, that has the requisite financial sophistication as defined under the applicable Nasdaq rules and regulations; | |
| ● | We plan to create a position to segregate duties consistent with control objectives and hire personnel resources with technical accounting expertise within the accounting function; and
We plan to hire a chief financial officer as currently the Company’s chief executive officer fills the role of the Company’s principal executive officer and principal financial officer. Until such time, we have engaged an outside accounting consultant with significant experience in the preparation of the financial statements in conformity with GAAP to assist us in the preparation of our financial statements.
Going forward, we intend to evaluate our processes and procedures and, where practicable and resources permit, implement changes in order to have more effective controls over financial reporting. |
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This Annual Report does not include an attestation report of our registered public accounting firm regarding our internal control over financial reporting. Management’s report was not subject to attestation by our registered public accounting firm pursuant to rules of the SEC that exempt smaller reporting companies from this requirement.
Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting that occurred during our fourth quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
None
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Directors and Executive Officers
Below are the names of and certain information regarding the Company’s current executive officers and directors:
| Name | Age | Position | Date Appointed | |||||
| John Keeler | 49 | Executive Chairman and Chairman of the Board | November 8, 2018 | |||||
| Nubar Herian | 49 | Director | November 8, 2018 | |||||
Our directors hold office for three-year terms and until their successors have been elected and qualified. Our officers are elected by the board of directors and serve at the discretion of the board of directors.
A majority of the authorized number of directors constitutes a quorum of our board of directors for the transaction of business. The directors must be present at the meeting to constitute a quorum. However, any action required or permitted to be taken by the board of directors may be taken without a meeting if all members of the board of directors individually or collectively consent in writing to the action.
Our board of directors currently consists of two members. Executive officers are appointed by the board of directors and serve at its pleasure.
The principal occupation and business experience during the past five years for our executive officer and directors is as follows:
John Keeler has been Executive Chairman of the Board since the effectiveness of the Merger. Mr. Keeler founded John Keeler & Co., d/b/a Blue Star Foods in May 1995 and served as its Executive Chairman of the Board since inception during which time he grew the company to become one of the leading marketers of imported blue swimming crab meat in the United States. Mr. Keeler built sales over the past 20 years to $35+ million annually through 2017. Mr. Keeler oversees procurement as well as operating facilities in the Philippines and Indonesia. Mr. Keeler is an executive committee member of the National Fisheries Institute-Crab Council and a founding member of the Indonesia and Philippines crab meat processors associations. Mr. Keeler received his BS in Economics from Rutgers University in 1995 and attended Harvard Business School executive programs in supply chain management, negotiations and marketing in 2005. Mr. Keeler’s extensive experience in the industry led to the decision to appoint him to the board of directors.
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Nubar Herian has been a director since the effectiveness of the Merger. Since 2014, Mr. Herian has been the chief executive officer of Monaco Group Holdings, a privately-held company headquartered in Miami, Florida, which owns and operates Monaco Foods, Inc., an importer, exporter and distributor of premium gourmet foods from around the world. Since 1995, Mr. Herian has been the commercial director of Casa de Fruta Caracas, a privately-held company based in Caracas, Venezuela, that focuses on importing foods. Mr. Herian is also the president of Lunar Enterprises, a holding company for his family’s public and private equity investments and real estate holdings. Mr. Herian received his BS in Mechanical Engineering from Florida Atlantic University in 1994 and an Executive M.B.A. from the University of Miami in 2014. Mr. Herian’s experience in the food import industry led to the decision to appoint him to the board of directors. There are no family relationships among our directors and executive officers.
Family Relationship
There are no family relationships between our directors or executive officer.
Involvement in Certain Legal Proceedings
No executive officer or director of ours has been involved in the last ten years in any of the following:
| ● | Any bankruptcy petition filed by or against any business or property of such person, or of which such person was a general partner or executive officer either at the time of the bankruptcy or within two years prior to that time; | |
| ● | Any conviction in a criminal proceeding or being subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); |
| ● | Being subject to any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting his involvement in any type of business, securities or banking activities; | |
| ● | Being found by a court of competent jurisdiction (in a civil action), the SEC or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended, or vacated; | |
| ● | Being the subject of or a party to any judicial or administrative order, judgment, decree or finding, not subsequently reversed, suspended or vacated relating to an alleged violation of any federal or state securities or commodities law or regulation, or any law or regulation respecting financial institutions or insurance companies, including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order, or any law or regulation prohibiting mail, fraud, wire fraud or fraud in connection with any business entity; or | |
| ● | Being the subject of or a party to any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act, any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member. |
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires our executive officers and directors, and persons who beneficially own more than 10% percent of our equity securities (“Reporting Persons”) to file reports of ownership and changes in ownership with the SEC. Based solely on our review of copies of such reports and representations from the Reporting Persons, we believe that during the fiscal year ended December 31, 2019, the Reporting Persons timely filed all such reports, except that Nubar Herian, a director, failed to filed Form 4s reporting dividends paid on an aggregate of 18,000 shares of common stock issued as a common stock dividend on the Company’s 8% Series A Convertible Preferred Stock to a company controlled by Mr. Herian.
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Code of Ethics
We intend to adopt a code of ethics that applies to our officers, directors and employees, including our Chief Executive Officer and Chief Financial Officer, but have not done so to date due to our relatively small size.
Board Committees
The Company has no nominating, audit or compensation committees at this time. The entire board of directors participates in the nomination and audit oversight processes and considers executive and director compensation. The entire board of directors is involved in such decision-making processes. Thus, there is a potential conflict of interest in that our directors and officers have the authority to determine issues concerning management compensation, nominations, and audit issues that may affect management decisions. We are not aware of any other conflicts of interest with any of our executive officers or directors.
Role of Board in Risk Oversight Process
Risk assessment and oversight are an integral part of our governance and management processes. Our board of directors encourages management to promote a culture that incorporates risk management into our corporate strategy and day-to-day business operations. Management discusses strategic and operational risks at regular management meetings and conducts strategic planning and review sessions during the year that include a discussion and analysis of the risks facing us.
Board Diversity
Upon consummation of the Merger, the board of directors will review, on an annual basis, the appropriate characteristics, skills and experience required for the board of directors as a whole and its individual members. In evaluating the suitability of individual candidates (both new candidates and current members), the board of directors, in approving (and, in the case of vacancies, appointing) such candidates, will take into account many factors, including the following:
| ● | personal and professional integrity; | |
| ● | ethics and values; | |
| ● | experience in the industries in which we compete; | |
| ● | experience as a director or executive officer of another publicly held company; | |
| ● | diversity of expertise and experience in substantive matters pertaining to our business relative to other board members; | |
| ● | conflicts of interest; and | |
| ● | practical business judgment. |
Shareholder Communications
We have not yet established a process for shareholder communications.
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ITEM 11. EXECUTIVE COMPENSATION
EXECUTIVE COMPENSATION
The table below sets forth certain information about the compensation awarded to, by or paid to our Chief Executive Officer and all other executive officers who received annual remuneration in excess of $100,000 during 2019 (each a “Named Executive Officer”).
Summary Compensation Table
| Name and Principal Position | Fiscal Year | Salary ($) | Bonus ($) | Other Annual Compensation ($) | Total ($) | |||||||||||||||
| John Keeler | 2018 | 104,959 | 1,000 | 25,465 | (1) | 131,424 | ||||||||||||||
| Chief Executive Officer and Executive Chairman of the Board | 2019 | 104,595 | - | 48,266 | (1) | 152,861 | ||||||||||||||
| Carlos Faria (2) | 2018 | 150,000 | 1,000 | 3,398 | (1) | 154,398 | ||||||||||||||
| Former President and Chief Executive Officer | 2019 | 176,154 | - | 2,166 | (1) | 178,320 | ||||||||||||||
| Christopher Constable (3) | 2018 | 253,475 | 1,000 | 3,398 | (1) | 257,873 | ||||||||||||||
| Former Chief Financial Officer | 2019 | 248,111 | 1,000 | 3,713 | (1) | 252,824 | ||||||||||||||
(1) (2) (3) |
Represents health insurance premiums paid on behalf of the executive officer by the Company. Mr. Faria was terminated as Chief Executive Officer on August 1, 2019. Mr. Constable resigned as Chief Financial Officer on February 7, 2020. |
Our executive officers have basic health benefits that are generally available to all of our employees.
We offer a 401(k) plan to eligible employees, including our executive officers. In accordance with this plan, all eligible employees may contribute a percentage of compensation up to a maximum of the statutory limits per year. We intend for the 401(k) plan to qualify, depending on the employee’s election, under Section 401(a) of the Code, so that contributions by employees, and income earned on those contributions, are not taxable to employees until withdrawn from the 401(k) plan.
The table below reflects all outstanding equity awards made to any Named Executive Officer that were outstanding at December 31, 2019.
OUTSTANDING EQUITY AWARDS AT DECEMBER 31, 2019
| Option Awards | ||||||||||||||||||||
| Number of | Number of | |||||||||||||||||||
| Securities | Securities | |||||||||||||||||||
| Underlying | Underlying | |||||||||||||||||||
| Unexercised | Unexercised | Option | Option | |||||||||||||||||
| Options (#) | Options (#) | Exercise | Expiration | |||||||||||||||||
| Name | Grant Date | Exercisable | Unexercisable | Price ($) | Date | |||||||||||||||
| Christopher Constable (4) | 11/8/18 | 3,120,000 | (1)(2) | 2.00 | 11/8/28 | |||||||||||||||
| (1) | Such shares are subject to a lock-up agreement with the Company for the Lock-Up Period, pursuant to which such officer may not sell or dispose of more than 50% of the common stock held by him or at a price per share of less than $2.20, except for up to 10% of his shares to a charitable organization which agrees to be bound by such Lock-Up Period restrictions. After the Lock-Up Period, such officer may not sell more than one-third of the common stock held by him in any two-month period. |
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(2) |
Mr. Constable resigned as Chief Financial Officer on February 7, 2020 |
2018 Equity Incentive Plan
We have adopted the 2018 Plan that provides for the grant of up to 7,500,000 shares of common stock. Under the 2018 Plan, we are authorized to issue incentive stock options intended to qualify under Section 422 of the Code and non-qualified stock options. The 2018 Plan is administered by our board of directors. In connection with the Merger, we issued options to purchase an aggregate of 6,240,000 million shares of common stock to certain executive officers and directors (3,120,000 of which were subsequently forfeited unexercised).
Share Reserve. 7,500,000 shares of common stock are reserved for issuance under the 2018 Plan pursuant to a variety of stock-based compensation awards, including stock options, stock appreciation rights(“SARs”), restricted stock awards, restricted stock unit awards, deferred stock awards, dividend equivalent awards, stock payment awards, performance awards and other stock-based awards.
● to the extent that an award terminates, expires or lapses for any reason or an award is settled in cash without the delivery of shares, any shares subject to the award at such time will be available for future grants under the 2018 Plan;
● to the extent shares are tendered or withheld to satisfy the grant, exercise price or tax withholding obligation with respect to any award under the 2018 Plan, such tendered or withheld shares will be available for future grants under the 2018 Plan;
● to the extent that shares of common stock are repurchased by us prior to vesting so that shares are returned to us, such shares will be available for future grants under the 2018 Plan;
● the payment of dividend equivalents in cash in conjunction with any outstanding awards will not be counted against the shares available for issuance under the 2018 Plan; and
● to the extent permitted by applicable law or any exchange rule, shares issued in assumption of, or in substitution for, any outstanding awards of any entity acquired in any form of combination by us or any of our subsidiaries will not be counted against the shares available for issuance under the 2018 Plan.
Administration. The compensation committee is expected to administer the 2018 Plan unless our board of directors assumes authority for administration. The compensation committee must consist of at least three members of our board of directors, each of whom is intended to qualify as an “outside director,” within the meaning of Section 162(m) of the Code, a “non-employee director” for purposes of Rule 16b-3 under the Exchange Act and an “independent director” within the meaning of the NASDAQ rules. The 2018 Plan provides that the board of directors or compensation committee may delegate its authority to grant awards to employees other than executive officers to a committee consisting of one or more members of our board of directors or one or more of our officers, other than awards made to our non-employee directors, which must be approved by our full board of directors.
Subject to the terms and conditions of the 2018 Plan, the administrator has the authority to select the persons to whom awards are to be made, to determine the number of shares to be subject to awards and the terms and conditions of awards, and to make all other determinations and to take all other actions necessary or advisable for the administration of the 2018 Plan. The administrator is also authorized to adopt, amend or rescind rules relating to administration of the 2018 Plan. Our board of directors may at any time remove the compensation committee as the administrator and revest in itself the authority to administer the 2018 Plan. The full board of directors will administer the 2018 Plan with respect to awards to non-employee directors.
Eligibility. Options, SARs, restricted stock and all other stock-based and cash-based awards under the 2018 Plan may be granted to individuals who are then our officers, employees or consultants or are the officers, employees or consultants of subsidiaries. Such awards also may be granted to our directors. Only employees of the Company or certain subsidiaries may be granted ISOs.
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Awards. The 2018 Plan provides that the administrator may grant or issue stock options, SARs, restricted stock awards, restricted stock unit awards, deferred stock awards, deferred stock unit awards, dividend equivalent awards, performance awards, stock payment awards and other stock-based and cash-based awards, or any combination thereof. Each award will be set forth in a separate agreement with the person receiving the award and will indicate the type, terms and conditions of the award.
Nonstatutory Stock Options (“NSOs”) will provide for the right to purchase shares of common stock at a specified price that may not be less than the fair market value of a share of common stock on the date of grant, and usually will become exercisable (at the discretion of the administrator) in one or more installments after the grant date, subject to the participant’s continued employment or service with us and/or subject to the satisfaction of corporate performance targets and individual performance targets established by the administrator. NSOs may be granted for any term specified by the administrator that does not exceed 10 years.
Incentive Stock Options (“ISOs”) will be designed in a manner intended to comply with the provisions of Section 422 of the Code and will be subject to specified restrictions contained in the Code. Among such restrictions, ISOs must have an exercise price of not less than the fair market value of a share of our Common Stock on the date of grant, may only be granted to employees, and must not be exercisable after a period of 10 years measured from the date of grant. In the case of an ISO granted to an individual who owns (or is deemed to own) at least 10% of the total combined voting power of all classes of our capital stock, the 2018 Plan provides that the exercise price must be at least 110% of the fair market value of a share of our Common Stock on the date of grant and the ISO must not be exercisable after a period of five years measured from the date of grant.
Restricted Stock Awards may be granted to any eligible individual and made subject to such restrictions as may be determined by the administrator. Restricted stock, typically, may be forfeited for no consideration or repurchased by us at the original purchase price if the conditions or restrictions on vesting are not met. In general, restricted stock may not be sold or otherwise transferred until restrictions are removed or expire. Purchasers of restricted stock, unlike recipients of options, will have voting rights and will have the right to receive dividends, if any, prior to the time when the restrictions lapse; however, extraordinary dividends will generally be placed in escrow, and will not be released until restrictions are removed or expire.
Restricted Stock Unit Awards may be awarded to any eligible individual, typically without payment of consideration, but subject to vesting conditions based on continued employment or service or on performance criteria established by the administrator. Like restricted stock, restricted stock units may not be sold, or otherwise transferred or hypothecated, until vesting conditions are removed or expire. Unlike restricted stock, stock underlying restricted stock units will not be issued until the restricted stock units have vested, and recipients of restricted stock units generally will have no voting or dividend rights prior to the time when vesting conditions are satisfied.
Deferred Stock Awards represent the right to receive shares of common stock on a future date. Deferred stock may not be sold or otherwise hypothecated or transferred until issued. Deferred stock will not be issued until the deferred stock award has vested, and recipients of deferred stock generally will have no voting or dividend rights prior to the time when the vesting conditions are satisfied and the shares are issued. Deferred stock awards generally will be forfeited, and the underlying shares of deferred stock will not be issued, if the applicable vesting conditions and other restrictions are not met.
Deferred Stock Units are denominated in unit equivalent of shares of common stock and vest pursuant to a vesting schedule or performance criteria set by the administrator. The common stock underlying deferred stock units will not be issued until the deferred stock units have vested, and recipients of deferred stock units generally will have no voting rights prior to the time when vesting conditions are satisfied.
Stock Appreciation Rights (“SARS”), may be granted in connection with stock options or other awards, or separately. SARs granted in connection with stock options or other awards typically will provide for payments to the holder based upon increases in the price of our Common Stock over a set exercise price. The exercise price of any SAR granted under the 2018 Plan must be at least 100% of the fair market value of a share of our Common Stock on the date of grant. Except as required by Section 162(m) of the Code with respect to a SAR intended to qualify as performance-based compensation as described in Section 162(m) of the Code, there are no restrictions specified in the 2018 Plan on the exercise of SARs or the amount of gain realizable therefrom, although restrictions may be imposed by the administrator in the SAR agreements. SARs under the 2018 Plan will be settled in cash or shares of common stock, or in a combination of both, at the election of the administrator.
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Dividend Equivalent Awards represent the value of the dividends, if any, per share paid by us, calculated with reference to the number of shares covered by the award. Dividend equivalents may be settled in cash or shares and at such times as determined by our compensation committee or board of directors, as applicable.
Performance Awards may be granted by the administrator on an individual or group basis. Generally, these awards will be based upon specific performance targets and may be paid in cash or in common stock or in a combination of both. Performance awards may include “phantom” stock awards that provide for payments based upon the value of our Common Stock. Performance awards may also include bonuses that may be granted by the administrator on an individual or group basis and that may be payable in cash or in common stock or in a combination of both.
Stock Payment Awards may be authorized by the administrator in the form of common stock or an option or other right to purchase common stock as part of a deferred compensation or other arrangement in lieu of all or any part of compensation, including bonuses, that would otherwise be payable in cash to the employee, consultant or non-employee director.
Change in Control. In the event of a change in control where the acquirer does not assume or replace awards granted prior to the consummation of such transaction, awards issued under the 2018 Plan will be subject to accelerated vesting such that 100% of such awards will become vested and exercisable or payable, as applicable. Performance awards will vest in accordance with the terms and conditions of the applicable award agreement. In the event that, within the 12 month period immediately following a change in control, a participant’s services with us are terminated by us other than for cause (as defined in the 2018 Plan) or by such participant for good reason (as defined in the 2018 Plan), then the vesting and, if applicable, exercisability of 100% of the then-unvested shares subject to the outstanding equity awards held by such participant under the 2018 Plan will accelerate effective as of the date of such termination. The administrator may also make appropriate adjustments to awards under the 2018 Plan and is authorized to provide for the acceleration, cash-out, termination, assumption, substitution or conversion of such awards in the event of a change in control or certain other unusual or nonrecurring events or transactions. Under the 2018 Plan, a change in control is generally defined as:
● the transfer or exchange in a single transaction or series of related transactions by our stockholders of more than 50% of our voting stock to a person or group;
● a change in the composition of our board of directors over a two-year period such that the members of the board of directors who were approved by at least two-thirds of the directors who were directors at the beginning of the two-year period or whose election or nomination was so approved cease to constitute a majority of the board of directors;
● a merger, consolidation, reorganization or business combination in which we are involved, directly or indirectly, other than a merger, consolidation, reorganization or business combination that results in our outstanding voting securities immediately before the transaction continuing to represent a majority of the voting power of the acquiring company’s outstanding voting securities and after which no person or group beneficially owns 50% or more of the outstanding voting securities of the surviving entity immediately after the transaction; or
● stockholder approval of our liquidation or dissolution.
Adjustments of Awards. In the event of any stock dividend, stock split, spin-off, recapitalization, distribution of our assets to stockholders (other than normal cash dividends) or any other corporate event affecting the number of outstanding shares of our Common Stock or the share price of our Common Stock other than an “equity restructuring” (as defined below), the administrator may make appropriate, proportionate adjustments to reflect the event giving rise to the need for such adjustments, with respect to:
● the aggregate number and type of shares subject to the 2018 Plan;
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● the number and kind of shares subject to outstanding awards and terms and conditions of outstanding awards (including, without limitation, any applicable performance targets or criteria with respect to such awards); and
● the grant or exercise price per share of any outstanding awards under the 2018 Plan.
In the event of one of the adjustments described above or other corporate transactions, in order to prevent dilution or enlargement of the potential benefits intended to be made available under the 2018 Plan, the administrator has the discretion to make such equitable adjustments and may also:
● provide for the termination or replacement of an award in exchange for cash or other property;
● provide that any outstanding award cannot vest, be exercised or become payable after such event;
● provide that awards may be exercisable, payable or fully vested as to shares of common stock covered thereby; or
● provide that an award under the 2018 Plan cannot vest, be exercised or become payable after such event.
In the event of an equity restructuring, the administrator will make appropriate, proportionate adjustments to the number and type of securities subject to each outstanding award and the exercise price or grant price thereof, if applicable. In addition, the administrator will make equitable adjustments, as the administrator in its discretion may deem appropriate to reflect such equity restructuring, with respect to the aggregate number and type of shares subject to the 2018 Plan. The adjustments upon an equity restructuring are nondiscretionary and will be final and binding on the affected holders and the Company.
For purposes of the 2018 Plan, “equity restructuring” means a nonreciprocal transaction between us and our stockholders, such as a stock dividend, stock split, spin-off, rights offering or recapitalization through a large, nonrecurring cash dividend, that affects the number or kind of shares (or other securities) or the share price of our Common Stock (or other securities) and causes a change in the per share value of the common stock underlying outstanding stock-based awards granted under the 2018 Plan. In the event of a stock split in connection with an offering, the administrator will proportionately adjust (i) the number of shares subject to any outstanding award under the 2018 Plan, (ii) the exercise or grant price of any such awards, if applicable, and (iii) the aggregate number of shares subject to the 2018 Plan.
Amendment and Termination. Our board of directors or the compensation committee (with board approval) may terminate, amend or modify the 2018 Plan at any time and from time to time. However, we must generally obtain stockholder approval:
● to increase the number of shares available under the 2018 Plan (other than in connection with certain corporate events, as described above);
● reduce the price per share of any outstanding option or SAR granted under the 2018 Plan;
● cancel any option or SAR in exchange for cash or another award when the option or SAR price per share exceeds the fair market value of the underlying shares; or
● to the extent required by applicable law, rule or regulation (including any NASDAQ rule).
Termination. Our board of directors may terminate the 2018 Plan at any time. No ISOs may be granted pursuant to the 2018 Plan after the 10th anniversary of the effective date of the 2018 Plan, and no additional annual share increases to the 2018 Plan’s aggregate share limit will occur from and after such anniversary. Any award that is outstanding on the termination date of the 2018 Plan will remain in force according to the terms of the 2018 Plan and the applicable award agreement.
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Employment Agreements
We do not currently have employment agreements with our officers.
Compensation of Directors
As of December 31, 2019, none of the Company’s directors have been compensated for their services as directors of the Company.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth information relating to the beneficial ownership of our Common Stock at May 27, 2019, by:
| ● | each person, or group of affiliated persons, known by us to beneficially own more than 5% of our outstanding shares of Common Stock; |
| ● | each of our directors; |
| ● | each of our Named Executive Officers; and |
| ● | all current directors and executive officers as a group. |
The number of shares beneficially owned by each entity, person, director or executive officer is determined in accordance with the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under such rules, beneficial ownership includes any shares over which the individual has sole or shared voting power or investment power as well as any shares that the individual has the right to acquire within 60 days through the exercise of any stock option, warrants or other rights. Except as otherwise indicated, and subject to applicable community property laws, the persons named in the table have sole voting and investment power with respect to all shares of common stock held by such person.
The percentage of shares beneficially owned is computed on the basis of 17,557,575 shares of common stock outstanding as of May 29, 2020. Shares of common stock that a person has the right to acquire within 60 days are deemed outstanding for purposes of computing the percentage ownership of the person holding such rights but are not deemed outstanding for purposes of computing the percentage ownership of any other person, except with respect to the percentage ownership of all directors and executive officers as a group. Unless otherwise indicated below, the address for each beneficial owner listed in the table is c/o Blue Star Foods Corp., 3000 NW 109th Avenue, Miami, Florida 33172.
| Name and Address of Beneficial Owner | Number
of Shares Beneficially Owned |
Percentage of Beneficial Ownership |
||||||
| Named Executive Officers and Directors | ||||||||
| John Keeler | 15,000,000 | (1) | 85.4 | % | ||||
| Carlos Faria (2) | - | - | ||||||
| Christopher H. Constable (3) | 3,120,000 | (4) | 15.1 | % | ||||
| Nubar Herian | 471,467 | (5) | 2.6 | % | ||||
| All current directors and executive officers as a group (2 persons) | 18,591,467 | 89.7 | % | |||||
| (1) | Such shares are subject to a lock-up and resale restriction agreement, dated December 26, 2019, between the Company and Mr. Keeler, pursuant to which Mr. Keeler may not sell or transfer such shares (except as to 1,000 shares per month) until June 26, 2020. In addition, 4,000,000 of such shares are pledged to secure the Company’s obligations under the Kenar Note. |
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| (2) | Mr. Faria was terminated as Chief Executive Officer on August 1, 2019. | |
(3) |
Mr. Constable resigned as Chief Financial Officer on February 7, 2020. | |
| (4) | Represents a currently exercisable option to purchase shares of common stock at an exercise price of $2.00 per share. | |
| (5) | Represents (i) 300,000 Conversion Shares, (ii) 150,000 Warrant Shares and (iii) 21,467 shares held by Lunar Enterprise Corp. (“Lunar”), of which Mr. Herian has sole voting and dispositive power. |
Change-in-Control Agreements
The Company does not have any change-in-control agreements with any of its executive officers.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The following is a description of transactions since January 1, 2018 to which we have been a party, in which the amount involved exceeded or will exceed $120,000, and in which any of our directors, executive officers or holders of more than 5% of our pre-Merger capital stock, or an affiliate or immediate family member thereof, had or will have a direct or indirect material interest, other than compensation and other arrangements that are described in the section titled “Executive Compensation.” The following description is historical and has not been adjusted to give effect to the Merger or the share conversion ratio pursuant to the Merger Agreement.
From January 2006 through May 2017, Keeler & Co issued an aggregate of $2,910,000 6% demand promissory notes to John Keeler, our Chief Executive Officer, Executive Chairman and a director. We can prepay the notes at any time first against interest due thereunder. If an event of default occurs under the notes, interest will accrue at 18% per annum and if not paid within 10 days of payment becoming due, the holder of the note is entitled to a late fee of 5% of the amount of payment not timely received.
John Keeler, our Chief Executive Officer, Executive Chairman and director owns 95% of Bacolod, an exporter of pasteurized crab meat from the Philippines.
John Keeler, our Chief Executive Officer, Executive Chairman and director, owns 95% of Bicol, a Philippine company, and an indirect supplier of crab meat via Bacolod to the Company.
The approximate dollar value of the Company’s transactions with Bacolod was approximately $5,600,000 and $11,000,000 for the years ended December 31, 2019 and 2018, respectively. There were no transactions between the Company and Bicol for the years ended December 31, 2019 and 2018.
John Keeler, our Chief Executive Officer, Executive Chairman and director, and Christopher Constable, our former Chief Financial Officer and director, own 80% and 20%, respectively, of Strike the Gold Foods, Ltd., a UK company, which sells the Company’s packaged crab meat in the United Kingdom.
We lease approximately 16,800 square feet of office/warehouse space for our executive offices and distribution facility under a lease expiring in June 2021 for $16,916 per month from Keeler Real Estate, a corporation 33% owned by a trust for each of John Keeler III, Andrea Keeler and Sarah Keeler, each of whom are John Keeler, our Chief Executive Officer’s, children. The Company is a guarantor of the mortgage on the distribution facility which had a balance of approximately $1,278,000 as of December 31, 2019.
From time to time, we may prepay Bacolod for future shipments of product which may represent five to six months of purchases. There was $1,285,935 due as of December 31, 2019 for future shipments from Bacolod.
A company owned by the parents of John Keeler, our Executive Chairman, is a party to the Settlement Agreement and was issued 40 Units on November 8, 2018 in connection with the Company Settlement.
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John Keeler, our Executive Chairman, is a party to an Unconditional and Continuing Guaranty, dated August 31, 2016, with ACF, pursuant to which Mr. Keeler is guarantor of the Company’s obligations under our Loan and Security Agreement with ACF.
On March 31, 2018, we issued options to purchase 104 shares of common stock of Keeler & Co with an exercise price of $10,000 per share to Carlos Faria, our former President and Chief Executive Officer, for services provided to Keeler & Co. Upon the closing of the Merger, such options were converted into ten-year immediately exercisable options to purchase an aggregate of 3,120,000 shares of our common stock at an exercise price of $0.333 under the 2018 Plan. Mr. Faria’s options expired unexercised on October 31, 2019.
On November 8, 2018, we issued Christopher Constable, our former Chief Financial Officer, a ten-year option under the 2018 Plan to purchase 3,120,000 shares of common stock at an exercise price of $2.00 which vested one-year from the date of grant. In connection with Mr. Constable’s separation agreement with the Company, dated February 25, 2020, the term of the option will remain in effect until November 8, 2028.
On November 8, 2018, we issued 600 Units in the Offering to Nubar Herian, a director, for $600,000.
John Keeler, our Chief Executive Officer, Executive Chairman and director pledged 5,000,000 shares of common stock to secure the Company’s obligations under the $1,000,000 Kenar Note issued on March 26, 2019.On May 21, 2020, the Kenar Note was amended to, among other things, reduce the number of pledged shares by Mr. Keeler to 4,000,000.
On March 29, 2019, March 31, 2019, September 24, 2019 and January 20, 2020, we issued 92 shares, 160 shares, 160 shares and 160 shares, respectively, of common stock to a company owned by the parents of John Keeler, our Executive Chairman, as a quarterly dividend which accrues on the Series A Stock acquired by such company in connection with the Company Settlement.
On March 29, 2019, March 31, 2019, September 24, 2019 and January 23, 2019, we issued 3,467 shares, 6,000 shares, 6,000 shares and 6,000 shares of common stock to Lunar Enterprise Corp., a corporation owned by Nubar Herian, a director of our company, as a quarterly dividend which accrues on the Series A Stock acquired by Mr. Herian in the Offering.
During 2019, we issued an aggregate of 18,000 shares to Lunar as common stock dividends on our 8% Series A Convertible Preferred Stock. Nubar Herian, a director, is president and controls Lunar.
On February 25, 2020, Christopher Constable, the Company’s former Chief Financial Officer entered int a Separation and Mutual Release Agreement pursuant to which Mr. Constable resigned as Chief Financial Officer, Secretary, Treasurer and a director of the Company. The Agreement contained mutual general releases, a two-year confidentiality provision and provides for Mr. Constable’s outstanding stock options to remain in effect until November 8, 2028.
Director Independence
We are not currently subject to listing requirements of any national securities exchange or inter-dealer quotation system that has requirements that a majority of the board of directors be “independent.” Our board of directors currently has two members, John Keeler and Nubar Herian. Mr. Keeler serves as our Executive Chairman. Mr. Keeler, is not “independent” within the definition of independence provided in the Marketplace Rules of The Nasdaq Stock Market and the independence requirements contemplated by Rule 10A-3 under the Securities Exchange Act of 1934. We have not yet assessed whether Mr. Herian qualifies as independent.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
Audit Fees
The aggregate fees billed to us by our principal accountants, D. Brooks and Associates CPAs, P.A., for professional services rendered during the fiscal year ended October 31, 2018 are set forth in the table below:
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| Fee Category | Year ended October 31, 2018 | Year ended October 31, 2017 | ||||||
| Audit fees (1) | $ | 13,540 | $ | 2,500 | ||||
| Audit-related fees (2) | 0 | 0 | ||||||
| Tax fees (3) | 0 | 0 | ||||||
| All other fees (4) | 0 | 0 | ||||||
| Total fees | $ | 13,540 | $ | 2,500 | ||||
| (1) | Audit fees consist of fees incurred for professional services rendered for the audit of financial statements, for reviews of our interim consolidated financial statements included in our quarterly reports on Form 10-Q and for services that are normally provided in connection with statutory or regulatory filings or engagements. |
| (2) | Audit-related fees consist of fees billed for professional services that are reasonably related to the performance of the audit or review of our financial statements but are not reported under “Audit fees.” |
| (3) | Tax fees consist of fees billed for professional services relating to tax compliance, tax planning, and tax advice. |
| (4) | All other fees consist of fees billed for services not associated with audit or tax. |
The aggregate fees billed to us by our principal accountants, MaloneBailey, LLP, for professional services rendered for the period from December 4, 2018 through December 31, 2018 and the year ended December 31, 2019 are set forth in the table below:
| Fee Category | Year ended December 31, 2018 | Year Ended December 31, 2019 | ||||||
| Audit fees (1) | $ | 81,000 | $ | 91,000 | ||||
| Audit-related fees (2) | - | - | ||||||
| Tax fees (3) | - | - | ||||||
| All other fees (4) | 7,700 | 3,175 | ||||||
| Total fees | $ | 88,700 | $ | 94,175 | ||||
| (1) | Audit fees consist of fees incurred for professional services rendered for the audit of financial statements, for reviews of our interim consolidated financial statements included in our quarterly reports on Form 10-Q and for services that are normally provided in connection with statutory or regulatory filings or engagements. |
| (2) | Audit-related fees consist of fees billed for professional services that are reasonably related to the performance of the audit or review of our financial statements but are not reported under “Audit fees.” |
| (3) | Tax fees consist of fees billed for professional services relating to tax compliance, tax planning, and tax advice. |
| (4) | All other fees consist of fees billed for services not associated with audit or tax. |
Audit Committee’s Pre-Approval Practice
Prior to our engagement of our independent auditor, such engagement was approved by our board of directors. The services provided under this engagement may include audit services, audit-related services, tax services and other services. Pre-approval is generally provided for up to one year and any pre-approval is detailed as to the particular service or category of services and is generally subject to a specific budget. Pursuant our requirements, the independent auditors and management are required to report to our board of directors at least quarterly regarding the extent of services provided by the independent auditors in accordance with this pre-approval, and the fees for the services performed to date. Our board of directors may also pre-approve particular services on a case-by-case basis. All audit-related fees, tax fees and other fees incurred by us were approved by our board of directors.
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Pre-Approval of Audit and Permissible Non-Audit Services
We have not yet established an audit committee. Until then, there are no formal pre-approval policies and procedures. Nonetheless, the auditors engaged for these services are required to provide and uphold estimates for the cost of services to be rendered. The percentage of hours expended on Brooks and Malone Bailey’s respective engagement to audit our financial statements for the most recent fiscal year that were attributed to work performed by persons other than the principal accountant’s full-time, permanent employees was 0%.
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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Description | |
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| 3.1 |
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| 10.5 |
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| 10.6 |
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| 10.7 |
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| 10.8 |
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| 10.9 |
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| 10.10 |
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| 10.13 |
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| 10.14 |
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| 10.17 |
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| 10.18 |
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| 10.19 |
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| 10.20 |
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| 10.21 |
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| 10.22 |
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| 10.23 |
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| 10.24 |
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| 10.25 |
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| 10.26 | Form of Subscription Agreement for February 1, 2019 offering (incorporated by reference to Exhibit 10.26 to the Company’s Annual Report on Form 10-K, filed with the SEC on April 1, 2019) |
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| * | Filed herewith |
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Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this Annual Report to be signed on its behalf by the undersigned, thereunto duly authorized.
| BLUE STAR FOODS CORP. | ||
| Dated: May 29, 2020 | By: | /s/ John Keeler |
| Name: | John Keeler | |
| Title: | Chief Executive Officer and Executive Chairman (Principal Executive Officer) | |
| Dated: May 29, 2020 | By: | /s/ John Keeler |
| Name: | John Keeler | |
| Title: | Chief Financial Officer, Secretary, Treasurer | |
| (Principal Financial and Accounting Officer) | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this Annual Report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ John Keeler | Chief Executive Officer, Executive Chairman and Director | May 29, 2020 | ||
| John Keeler | ||||
| /s/ Nubar Herian | Director | May 29, 2020 | ||
| Nubar Herian |
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