As filed with the Securities and Exchange Commission on May 22, 2023.
Registration No. 333 -[____]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
Registration Statement under the Securities Act of 1933
(Exact name of registrant as specified in its charter)
| 2080 | ||||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
Kona Gold Beverage, Inc.
(Address, including zip code, and telephone number, including area code,
of registrant’s principal executive offices)
Robert Clark
Chairman of the Board, Chief Executive Officer, and President
746 North Drive, Suite A
Melbourne, Florida 32934
(844) 714-2224
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
With copy to:
Randolf W. Katz, Esq.
Clark Hill LLP
555 S. Flower Street, 24th Floor
Los Angeles, CA 90071
(213) 417-5310
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement is declared effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large Accelerated Filer | ☐ | Accelerated Filer | ☐ |
| ☒ | Smaller reporting company | ||
| Emerging growth company | |||
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT, WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
The information in this preliminary Prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary Prospectus is subject to completion, is not an offer to sell securities, and it is not soliciting an offer to buy these securities, in any state where offers or sales are not permitted.
| PRELIMINARY PROSPECTUS | SUBJECT TO COMPLETION | DATED MAY 22, 2023 |
KONA GOLD BEVERAGE, INC.
Selling Stockholders
Up to 702,280,139 Shares of Common Stock
This is a prospectus (this “Prospectus”) of Kona Gold Beverage, Inc., a Delaware corporation (“Kona Gold,” our “Company,” “we,” “our,” or “us”). It relates to the resale or other disposition by the selling stockholders identified in this Prospectus, and their transferees, of up to 702,280,139 shares of our common stock, par value $0.00001 per share (our “Common Stock”).
We are registering the resale of (i) up to 642,224,583 shares of Common Stock issuable under an equity line in the amount of $5,000,000 (the “Equity Line”) established by the Equity Purchase Agreement, dated March 30, 2023 (the “EPA”), between the Company and Mast Hill Fund, L.P. (“Mast Hill”); (ii) 56,000,000 shares of Common Stock issuable upon exercise of a common stock purchase warrant (the “EPA Warrant”) granted to Mast Hill; and (iii) up to 4,055,556 shares of Common Stock issued or issuable upon exercise of the common stock purchase warrants (the “Placement Warrants”) granted to J.H. Darbie & Co. (“Darbie”).
As used in this Prospectus, the term “Selling Stockholders” includes Mast Hill, Darbie, and each of them, and any donees, pledgees, transferees, or other successors-in-interest selling shares received after the date of this Prospectus from such Selling Stockholders as a gift, pledge, or other non-sale related transfer.
Pursuant to the EPA, the Company (i) agreed to sell to Mast Hill up to Five Million Dollars ($5,000,000.00) (the “Maximum Commitment Amount”) of shares of our Common Stock (the “Put Shares”) and (ii) granted to Mast Hill the EPA Warrant that is exercisable immediately for the purchase of up to an aggregate of 56,000,000 shares (the “EPA Warrant Shares”) of our Common Stock.
Upon the terms and conditions set forth in the EPA, the Company has the right, but not the obligation, to direct Mast Hill, by delivery to Mast Hill of a Put Notice from time to time, to purchase shares of our Common Stock (i) in a minimum amount not less than $25,000.00 and (ii) in a maximum amount up to the lesser of (a) $500,000.00 or (b) 150% of the Average Daily Trading Value of our Common Stock (as defined in the EPA). At any time and from time to time through and including March 30, 2025 (the “Commitment Period”), except as provided in the EPA, the Company may deliver a Put Notice to Mast Hill.
The actual amount of proceeds we receive pursuant to each Put Notice (each, the “Put Amount”) is determined by multiplying the Put Amount Requested by the applicable purchase price. The purchase price for each of the Put Shares equals 90% of the “Market Price,” less the Clearing Costs. Market Price is the average of the two lowest volume weighted average prices of the Company’s Common Stock on its principal market during the Valuation Period. The Valuation Period is the seven trading days immediately following the date on which the shares of Common Stock issued pursuant to the Put Notice were cleared by the Company’s transfer agent. Clearing Costs are the fees incurred by Mast Hill with respect to its brokerage firm, clearing firm, Company transfer agent fees, and attorney fees, with respect to the Put Shares.
The Commitment Period commenced on March 30, 2023, and ends on the earlier of (i) the date on which Mast Hill shall have purchased Put Shares pursuant to the EPA equal to the Maximum Commitment Amount, (ii) March 30, 2025, (iii) written notice of termination by the Company to Mast Hill (which shall not occur during any Valuation Period or at any time that Mast Hill holds any of the Put Shares), (iv) the Registration Statement for the Put Shares is no longer effective after its initial effective date, or (v) the date that, pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any person commences a proceeding against the Company, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company makes a general assignment for the benefit of its creditors.
We also granted to Mast Hill the EPA Warrant to purchase up to an aggregate of 56,000,000 EPA Warrant Shares. The EPA Warrant has a five-year term and is immediately exercisable at an exercise price of $0.0045 per share, subject to adjustment and is exercisable by the then-holder on a “cashless” basis. The EPA Warrant contains an adjustment provision that, subject to certain exceptions, reduces the exercise price if we issue shares of Common Stock or common stock equivalents at a price lower than the then-current exercise price of the EPA Warrant. Any stock splits, reverse stock splits, recapitalizations, mergers, combinations and asset sales, stock dividends, and similar events will result in an equitable adjustment of the exercise price of the EPA Warrant and, in certain circumstances, the number of EPA Warrant Shares. The EPA Warrant is subject to an “exercise blocker,” such that Mast Hill cannot exercise any portion of the EPA Warrant that would result in Mast Hill and its affiliates holding more than 4.99% of the then-issued and outstanding shares of Common Stock following such exercise (excluding, for purposes of such determination, shares of the Common Stock issuable upon exercise of the EPA Warrant or Put Notice that had not then been exercised, respectively).
In order to deliver a Put Notice, certain conditions set forth in the EPA must be met. In addition, we are prohibited from delivering a Put Notice if: (i) the sale of Put Shares pursuant to such Put Notice would cause us to issue and sell to Mast Hill, or Mast Hill to acquire or purchase, a number of shares of our Common Stock that, when aggregated with all shares of Common Stock purchased by Mast Hill pursuant to all prior Put Notices issued under the EPA, would exceed the Maximum Commitment Amount; or (ii) the issuance of the EPA Warrant Shares upon exercise of the EPA Warrant would cause us to issue and sell to Mast Hill, or Mast Hill to acquire or purchase, an aggregate number of shares of Common Stock that would result in Mast Hill beneficially owning more than 4.99% of the issued and outstanding shares of our common stock (the “Beneficial Ownership Limitation”). For a more complete discussion of the terms and conditions of the EPA, see the discussion under the heading “Recent Developments” in the Section entitled “Prospectus Summary.”
We are not selling any securities under this Prospectus and will not receive any of the proceeds from the sale of shares of Common Stock by the Selling Stockholders. We will, however, receive proceeds from our sale of our shares of Common Stock under the Equity Line and exercise of the EPA Warrant and the Placement Warrants (collectively, the “Warrants”) if they are exercised for cash. The resale of the 702,280,139 shares by the Selling Stockholders pursuant to this Prospectus is referred to as the “Offering.”
We may draw on the Equity Line from time to time, as and when we determine appropriate in accordance with the terms and conditions of the EPA. To date, we have not sold any shares pursuant to the EPA.
Each of the Selling Stockholders is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act of 1933, as amended (the “Securities Act”). The Selling Stockholders may sell the shares of Common Stock described in this Prospectus in a number of different ways and at varying prices. See “Plan of Distribution” for more information about how the Selling Stockholders may sell the shares of Common Stock being registered pursuant to this Prospectus.
We will pay the expenses incurred in registering the shares of Common Stock, including legal and accounting fees. See “Plan of Distribution.”
We also entered into a registration rights agreement (the “Registration Rights Agreement”) with Mast Hill, pursuant to which we agreed to file a Registration Statement to register the resale of the Put Shares and the resale of the EPA Warrant Shares. Pursuant to the Registration Rights Agreement, we agreed to (i) file the Registration Statement within 45 calendar days from the Closing Date, (ii) use reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, and (iii) use its reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until all of the Put Shares have been sold thereunder or pursuant to Rule 144.
Our Common Stock is quoted on the OTC Markets Group Inc.’s (the “OTCM”) Pink® Open Market (the “Pink Market”) under the symbol “KGKG.” On May 15, 2023, the last reported sales price for our Common Stock was $0.0027 per share.
We are an “emerging growth company” as defined by the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”) and, as such, we have elected to comply with certain reduced public company reporting requirements for this Prospectus and future filings. However, we have elected not to take advantage of the extended transition period allowed for emerging growth companies for complying with new or revised accounting guidance as allowed by Section 107 of the JOBS Act and Section 7(a)(2)(B) of the Securities Act.
Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 6.
Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this Prospectus. Any representation to the contrary is a criminal offense.
The date of this Prospectus is May [__], 2023
TABLE OF CONTENTS
You should only rely on the information contained in this Prospectus or that we have referred you to. We have not, and the Selling Stockholders have not, authorized anyone to provide you with different information. This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities other than the shares of our Common Stock offered by this Prospectus. This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy any shares of our Common Stock in any circumstances in which such offer or solicitation is unlawful. Neither the delivery of this Prospectus nor any sale made in connection with this Prospectus means that the information contained in this Prospectus is correct after the date of this Prospectus. The information in this Prospectus is accurate only as of the date on the front cover of this Prospectus. Our business, financial condition, results of operations, and prospects may have changed since that date.
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PROSPECTUS SUMMARY
This summary highlights certain information contained elsewhere in this Prospectus. This summary does not contain all of the information that may be important to you. You should read and carefully consider the following summary together with the entire Prospectus, especially the “Risk Factors” section of this Prospectus and our consolidated financial statements and the notes thereto appearing elsewhere in this Prospectus before deciding to invest in our securities. For more information on our business refer to the “Description of Business” section of this Prospectus. Some of the statements in this Prospectus constitute forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in such forward-looking statements as a result of certain factors, including those discussed in the “Risk Factors” and other sections of this Prospectus. See “Cautionary Note Regarding Forward-Looking Statements.”
Company Overview
We are a lifestyle company that specializes in developing premium beverage products in the functional and better-for-you markets. Focusing on better-for-you low-calorie and low-carb lemonade, low-calorie and high-in-vitamins energy drinks, and CBD-infused energy water markets, we believe that we have positioned our brands as premium leaders in their respective markets.
We currently sell Kona, HighDrate, and Ooh La Lemin through resellers, our websites, leading ecommerce platforms, and distribution partners in 18 states. Our products are available in a wide variety of retail locations, including convenience stores, grocery stores, and specialty stores. Gold Leaf distributes our own beverage brands, as well as products purchased for resale from several other beverage manufacturers. These premium beverages are available in more than 1,500 grocery stores, convenience stores, smoke shops, vape shops, and specialty stores.
Corporate Information
We were originally incorporated as Class-ique Talent Agency, Inc. (“CTA”), under the laws of the State of Nevada in March 1997. In October 2001, CTA entered into an Agreement and Plan of Reorganization (the “Reorganization Plan”) with PhaserTek, Inc., a Delaware corporation (“PhaserTek”), pursuant to which CTA acquired all of the outstanding shares of common stock of PhaserTek in exchange for shares of common stock of CTA, resulting in PhaserTek becoming a wholly-owned subsidiary of CTA. In accordance with the terms of the Reorganization Plan, CTA changed its name to PhaserTek Medical, Inc. (“PhaserTek Medical”) in 2002. In 2004, PhaserTek Medical changed its name to Union Equity, Inc. (“UE Nevada”). For purposes of changing UE Nevada’s state of incorporation, UE Nevada formed Union Equity, Inc. in the State of Delaware (“UE Delaware”) in 2004. Pursuant to Articles of Merger, in December 2004, UE Nevada merged with and into UE Delaware, the surviving company. In July 2015, we changed our name to Kona Gold Solutions, Inc. In October 2020, we changed our name to Kona Gold Beverage, Inc.
We have three wholly-owned subsidiaries: (i) Kona Gold, LLC (“Kona”), a Delaware limited liability company formed in August 2015; (ii) HighDrate, LLC (“HighDrate”), a Florida limited liability company formed in January 2018; and (iii) Gold Leaf Distribution LLC (“Gold Leaf”), a Florida limited liability company formed in January 2019.
| ● | Kona focuses on the development and marketing of functional and better-for-you beverages. |
| ○ | Its Ooh La Lemin Lemonades are better-for-you, low calorie beverages with non-sparkling and sparkling offerings. Ooh La Lemin Lemonades have no added sugar, are low in carbohydrates, and have only 15 calories for Ooh La Lemin, and only 10 calories for Ooh La Lemin Sparkling. Ooh La Lemin is available in four flavors: (i) Original Lemonade, (ii) Blue Raspberry Lemonade, (iii) Peach Lemonade, and (iv) Strawberry Lemonade. Ooh La Lemin Sparkling is available in six flavors: (i) Original, (ii) Cucumber Watermelon, (iii) Blue Raspberry, (iv) Pineapple Mango, (v) Citrus Splash, and (vi) Huckleberry. | |
| ○ | Its Kona Gold Energy Drinks are low-to-zero calorie functional beverages that are high in B vitamins, amino acids, and omegas. Organic hemp seed protein powder differentiates Kona Gold Energy Drinks from other brands. It is considered to be a complete protein and is compatible with a variety of diets, including vegan and Kosher. Kona Gold Energy Drinks are available in six flavors: (i) Classic, (ii) Candy Apple, (iii) Cherry Vanilla, (iv) Cotton Candy, (v) Platinum, and (vi) Pink Grapefruit. |
| ● | HighDrate focuses on the development and marketing of CBD-infused energy waters. HighDrate CBD-infused energy waters are functional beverages that contain zero calories and zero sugar. HighDrate CBD-infused energy waters are geared to the fitness and wellness markets. Our CBD-infused energy waters are powered by Alkame’s patented technology, which provides premium oxygenated alkaline water with natural antioxidants. HighDrate CBD-infused energy waters are available in six flavors: (i) Blue Island Punch, (ii) Georgia Peach, (iii) Kiwi Strawberry, (iv) Sour Apple, (v) Tropical Coconut, and (vi) Watermelon. | |
| ● | Gold Leaf focuses on the distribution of premium beverages, such as alkaline waters, beverages for kids, energy drinks, fruit-flavored sodas, low-carb lemonade, healthy aloe juice drinks, in key markets, all of which complement our current product offerings. These markets include over 1,500 accounts in grocery stores, convenience stores, smoke shops, vape shops, and specialty stores located in Florida and South Carolina. |
Our principal executive office is located at 746 North Drive, Suite A, Melbourne, Florida 32934. We also have a warehouse in Greer, South Carolina that serves as the main distribution center for Gold Leaf and Kona Gold, and a warehouse in Conway, South Carolina that serves as a secondary distribution center for Gold Leaf. Our telephone number is (844) 714-2224. We maintain the following website addresses: websites www.konagoldbeverage.com, www.konagoldhemp.com, www.highdrateme.com, www.drinklemin.com, and www.goldleafdist.com.
Our Common Stock is quoted on the Pink Market under the symbol “KGKG.”
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Implications of Being an Emerging Growth Company and a Smaller Reporting Company
We qualify as an “emerging growth company,” as defined in the JOBS Act, enacted in April 2012. For so long as we remain an emerging growth company, we are permitted and intend to rely on certain exemptions from various public company reporting requirements, including the option to present only two years of audited financial statements and only two years of related “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in this Prospectus, not being required to have our internal control over financial reporting audited by our independent registered public accounting firm pursuant to Section 404(b) of the Sarbanes-Oxley Act of 2002, as amended (the “SOX 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 any golden parachute payments not previously approved. In particular, in this Prospectus, we have provided only two years of audited financial statements and have not included all of the executive compensation related information that would be required if were not an emerging growth company. Accordingly, the information contained herein may be different than the information you receive from other public companies in which you hold stock.
We may take advantage of these provisions until the earliest to occur of (1) the last day of the fiscal year (a) following the fifth anniversary of the closing of this offering, (b) in which we have total annual gross revenues of at least $1.07 billion, or (c) in which we are deemed to be a “large accelerated filer,” under the rules of the SEC, which means the market value of our equity securities that is held by non-affiliates exceeds $700 million as of the prior June 30th, and (2) the date on which we have issued more than $1.0 billion in non-convertible debt during the prior three-year period.
In addition, the JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. This provision allows an emerging growth company to delay the adoption of some accounting standards until those standards would otherwise apply to private companies. We have irrevocably elected to “opt out” of this extended transition period. As a result, we will comply with new or revised accounting pronouncements as of public company effective dates.
We are also a “smaller reporting company,” meaning that the market value of our stock held by non-affiliates is less than $700 million and our annual revenue was less than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company if either (i) the market value of our stock held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million during the most recently completed fiscal year and the market value of our stock held by non-affiliates is less than $700 million. If we are a smaller reporting company at the time we cease to be an emerging growth company, we may continue to rely on exemptions from certain disclosure requirements that are available to smaller reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most recent fiscal years of audited financial statements in our Annual Reports on Form 10-K and, similar to emerging growth companies, smaller reporting companies have reduced disclosure obligations regarding executive compensation.
Intellectual Property
We have three trademarks that are registered with the U.S. Patent and Trademark Office (“USPTO”) for use in the Beverages Segment. One is for use of “Kona Gold Hemp Energy Drinks” in the Beverages Segment. The second trademark is for the use of “HighDrate” in the Beverages Segment. The third trademark is for the use of “OOH LA LEMIN” in the Beverages Segment. We have also applied for a trademark for “Storm” to use in the Beverages Segment. We do not have any patents.
Recent Developments
March 2023 Securities Purchase Agreement
Pursuant to a Securities Purchase Agreement dated as of March 13, 2023 (the “March SPA”), we, completed a private placement of a Senior Secured Promissory Note (the “March Senior Note”) with an initial principal amount of $475,000 and the grant of a Common Stock Purchase Warrant (the “March SPA Warrant”) that is exercisable for the purchase of up to an aggregate of 80,000,000 shares (the “March SPA Warrant Shares”) of our Common Stock with Mast Hill. In addition, to secure our obligations to Mast Hill under the March Senior Note, we also entered into a Security Agreement (the “March Security Agreement”) with and in favor of Mast Hill. Our subsidiaries are also parties to the March Security Agreement.
The transactions contemplated by the March SPA were consummated on March 15, 2023 (the “March SPA Issue Date”). Upon the funding, we sold and issued the March Senior Note and granted the March SPA Warrant. Pursuant to the March SPA, the purchase price for the March Senior Note was $475,000, less $43,500 in fees, which consisted of an 8% “original issue discount” of $38,000 and $5,500 for Mast Hill’s legal fees. In connection with this transaction, we paid Darbie a $30,500 fee.
The March Senior Note is due 12 months from its issuance date and is secured by all of our assets and the assets of each of our subsidiaries pursuant to the March Security Agreement. Initially, the March Senior Note is convertible into shares of our Common Stock (the “March Conversion Shares”) at a fixed conversion price of $0.0045 per share, subject to adjustment due to merger, consolidation, exchange of shares, recapitalization, reorganization, or similar event as set forth in the March Senior Note (the “March Conversion Price”). The March Senior Note contains an adjustment provision that, subject to certain exceptions, reduces the conversion price if we issue shares of our Common Stock or common stock equivalents at a price lower than the then-current March Conversion Price of the March Senior Note. Upon any stock splits, reverse stock splits, distributions, stock dividends, or other similar event, Mast Hill will be entitled to participate in such an event on an “as converted” basis. The March Senior Note is subject to a “conversion blocker” such that Mast Hill cannot convert any portion of the March Senior Note that would result in Mast Hill and its affiliates holding more than 4.99% of the then-issued and outstanding shares of our Common Stock following such conversion (excluding, for purposes of such determination, shares of the Common Stock issuable upon conversion of the March Senior Note or exercise of the March SPA Warrant that had not then been converted or exercised, respectively). Mast Hill does not have the right to convert the March Senior Note until six months after the March SPA Issue Date. The March Senior Note accrues interest at an annual rate equal to 10% and is due and payable on its maturity date (or sooner if Mast Hill converts the March Senior Note or otherwise accelerates the maturity date, as provided for in the March Senior Note). Interest is payable in cash on the maturity date or, in shares of the Common Stock at the then-current March Conversion Price if Mast Hill converts the March Senior Note or otherwise accelerates the maturity date, as provided for in the March Senior Note.
At our option, we have the right to redeem, in full, the outstanding principal and interest under the March Senior Note prior to its maturity date; provided, that, as of the date of the then-holder’s receipt of the redemption notice, there has not been an Event of Default. We must pay an amount equal to the principal amount being redeemed plus outstanding and accrued interest thereon, as well as a $750 administrative fee (the “March Redemption Amount”). We must provide seven Trading Days’ (as such term is defined in the March Senior Note) prior notice to the then-holder of the March Senior Note of our intent to make a redemption. If such notice of redemption is received six months after the March SPA Issue Date, the then-holder has the right to convert any or all of such to-be-prepaid amount into shares of our Common Stock in accordance with the conversion provisions of the March Senior Note prior to such redemption.
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Further, commencing on May 10, 2023, and continuing on the tenth day of each calendar month thereafter, we are required to redeem an amount equivalent to the sum of $2.00 for each 12-count case of our beverages that we sell in the ordinary course, calculated two months in arrears. Accordingly, the first redemption payment is due and payable on May 10, 2023 for the cases sold during the month of March, 2023. Mandatory redemption payments are based upon revenues recognized by us in accordance with US GAAP for each such month, rather than upon the receipt by us of funds received from sales during a relevant month. The above-referenced seven trading days’ prior notice and conversion provisions do not apply to any of the mandatory redemption payments.
We also granted the March SPA Warrant to purchase up to an aggregate of the 80,000,000 March SPA Warrant Shares. The March SPA Warrant has a five-year term and is immediately exercisable at an exercise price of $0.0045 per share, subject to adjustment and is exercisable by the then-holder on a “cashless” basis.
The March SPA Warrant contains an adjustment provision that, subject to certain exceptions, reduces the exercise price if we issue shares of our Common Stock or common stock equivalents at a price lower than the then-current exercise price of the March Warrant. Any stock splits, reverse stock splits, recapitalizations, mergers, combinations and asset sales, stock dividends, and similar events will result in an equitable adjustment of the exercise price of the March Warrant and, in certain circumstances, the number of March SPA Warrant Shares. The March SPA Warrant is subject to an “exercise blocker,” such that Mast Hill cannot exercise any portion of the March SPA Warrant that would result in Mast Hill and its affiliates holding more than 4.99% of the then-issued and outstanding shares of our Common Stock following such exercise (excluding, for purposes of such determination, shares of the Common Stock issuable upon exercise of the March SPA Warrant or conversion of the March Senior Note that had not then been exercised or converted, respectively).
April 2023 Securities Purchase Agreement
Pursuant to a Securities Purchase Agreement dated as of April 25, 2023 (the “April SPA”), we completed a private placement of a Senior Secured Promissory Note (the “April Senior Note”) with an initial principal amount of $230,000 and the grant of a Common Stock Purchase Warrant (the “April Warrant”) that is exercisable for the purchase of up to an aggregate of 43,600,000 shares (the “April Warrant Shares”) of our Common Stock with a third-party investor (the “Mast Hill”). In addition, to secure our obligations to Mast Hill under the April Senior Note, we also entered into a Security Agreement (the “April Security Agreement”) with and in favor of Mast Hill. Our subsidiaries are also parties to the April Security Agreement.
The transactions contemplated by the April SPA were consummated on April 28, 2023 (the “April Issue Date”). Upon the funding, we sold and issued the April Senior Note and granted the April Warrant. Pursuant to the April SPA, the purchase price for the April Senior Note was $230,000, less $21,900 in fees, which consisted of an 8% “original issue discount” of $18,400 and $3,500 for Mast Hill’s legal fees. In connection with this transaction, we paid Darbie a $6,400 fee.
The April Senior Note is due 12 months from its issuance date and is secured by all of our assets and the assets of each of our subsidiaries pursuant to the April Security Agreement. The security interest granted to Mast Hill under the April Security Agreement is subordinate to the March Security Agreement. Initially, the April Senior Note is convertible into shares of our Common Stock (the “April Conversion Shares”) at a fixed conversion price of $0.004 per share, subject to adjustment due to merger, consolidation, exchange of shares, recapitalization, reorganization, or similar event as set forth in the April Senior Note (the “April Conversion Price”). The April Senior Note contains an adjustment provision that, subject to certain exceptions, reduces the conversion price if we issue shares of our Common Stock or common stock equivalents at a price lower than the then-current April Conversion Price of the April Senior Note. Upon any stock splits, reverse stock splits, distributions, stock dividends, or other similar event, Mast Hill will be entitled to participate in such an event on an “as converted” basis. The April Senior Note is subject to a “conversion blocker” such that Mast Hill cannot convert any portion of the April Senior Note that would result in Mast Hill and its affiliates holding more than 4.99% of the then-issued and outstanding shares of our Common Stock following such conversion (excluding, for purposes of such determination, shares of the Common Stock issuable upon conversion of the April Senior Note or exercise of the April Warrant that had not then been converted or exercised, respectively). Mast Hill does not have the right to convert the April Senior Note until six months after the April Issue Date. The April Senior Note accrues interest at an annual rate equal to 10% and is due and payable on its maturity date (or sooner if Mast Hill converts the April Senior Note or otherwise accelerates the maturity date, as provided for in the April Senior Note). Interest is payable in cash on the maturity date or, in shares of the Common Stock at the then-current April Conversion Price if Mast Hill converts the April Senior Note or otherwise accelerates the maturity date, as provided for in the April Senior Note.
At our option, we have the right to redeem, in full, the outstanding principal and interest under the April Senior Note prior to its maturity date; provided, that, as of the date of the then-holder’s receipt of the redemption notice, there has not been an Event of Default. We must pay an amount equal to the principal amount being redeemed plus outstanding and accrued interest thereon, as well as a $750 administrative fee (the “April Redemption Amount”). We must provide seven Trading Days’ (as such term is defined in the April Senior Note) prior notice to the then-holder of the April Senior Note of our intent to make a redemption. If such notice of redemption is received six months after the April Issue Date, the then-holder has the right to convert any or all of such to-be-prepaid amount into shares of our common Stock in accordance with the conversion provisions of the April Senior Note prior to such redemption.
Further, commencing on May 10, 2023, and continuing on the tenth day of each calendar month thereafter, we are required to redeem an amount equivalent to the sum of $2.00 for each 12-count case of our beverages that we sell in the ordinary course, calculated two months in arrears. Accordingly, the first redemption payment is due and payable on May 10, 2023 for the cases sold during the month of March, 2023. Mandatory redemption payments are based upon revenues recognized by us in accordance with US GAAP for each such month, rather than upon the receipt by us of funds received from sales during a relevant month. The above-referenced seven trading days’ prior notice and conversion provisions do not apply to any of the mandatory redemption payments.
Notwithstanding the foregoing, if we have paid the mandatory case prepayment to Mast Hill during an applicable calendar month pursuant to the March Senior Note, then we do not have an obligation to make a mandatory case prepayment in that applicable calendar month with respect to the April Senior Note.
First Amendment to Secured Debenture
On March 23, 2023, the Company entered into a First Amendment to Secured Debenture (the “First Amendment”) to amend a Secured Debenture (the “Debenture”), dated as of March 25, 2022. The original note was in the principal amount of $250,000 and matured on March 24, 2023. The Debenture is amended and restated in its entirety with the following terms (i) note payable matures March 24, 2024; (ii) interest shall accrue on the outstanding principal at a rate equal to twelve percent (12%) per annum; (iii) monthly payments of principal and interest shall be made in the amount of $22,212 starting April 24, 2023 until the maturity date, which the entirety of the balance of principal plus interest is due.
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2023 Equity Purchase Agreement
Pursuant to an Equity Purchase Agreement dated as of March 30, 2023 (the “EPA”), we (i) agreed to sell to Mast Hill up to $5,000,000 (the “Maximum Commitment Amount”) of shares of our Common Stock (the “Put Shares”) and (ii) granted to Mast Hill a Common Stock Purchase Warrant (the “EPA Warrant”) that is exercisable for the purchase of up to an aggregate of 56,000,000 shares (the “EPA Warrant Shares”) of our Common Stock.
Upon the terms and conditions set forth in the EPA, we have the right, but not the obligation, to direct Mast Hill, by delivery to Mast Hill of a Put Notice from time to time, to purchase shares of our Common Stock (i) in a minimum amount not less than $25,000.00 and (ii) in a maximum amount up to the lesser of (a) $500,000.00 or (b) 150% of the Average Daily Trading Value of our Common Stock (as defined in the EPA). At any time and from time to time through and including March 30, 2025 (the “Commitment Period”), except as provided in the EPA, we may deliver a Put Notice to Mast Hill.
The Commitment Period commences on the Execution Date, and ends on the earlier of (i) the date on which Mast Hill has purchased Put Shares pursuant to the EPA equal to the Maximum Commitment Amount, (ii) March 30, 2025, (iii) written notice of termination by us to Mast Hill (which cannot occur during any Valuation Period or at any time that Mast Hill holds any of the Put Shares), (iv) this Registration Statement for the Put Shares is no longer effective after its initial effective date, or (v) the date that, pursuant to or within the meaning of any Bankruptcy Law, we commence a voluntary case or any person commences a proceeding against us, a Custodian is appointed for us or for all or substantially all of our property, or we make a general assignment for the benefit of our creditors.
We also granted the EPA Warrant to purchase up to an aggregate of 56,000,000 EPA Warrant Shares. The EPA Warrant has a five-year term and is immediately exercisable at an exercise price of $0.0045 per share, subject to adjustment and is exercisable by the then-holder on a “cashless” basis. The EPA Warrant contains an adjustment provision that, subject to certain exceptions, reduces the exercise price if we issue shares of Common Stock or common stock equivalents at a price lower than the then-current exercise price of the EPA Warrant. Any stock splits, reverse stock splits, recapitalizations, mergers, combinations and asset sales, stock dividends, and similar events will result in an equitable adjustment of the exercise price of the EPA Warrant and, in certain circumstances, the number of EPA Warrant Shares. The Warrant is subject to an “exercise blocker,” such that Mast Hill cannot exercise any portion of the EPA Warrant that would result in Mast Hill and its affiliates holding more than 4.99% of the then-issued and outstanding shares of Common Stock following such exercise (excluding, for purposes of such determination, shares of the Common Stock issuable upon exercise of the EPA Warrant or Put Notice that had not then been exercised, respectively).
Finder’s Fee Agreement
On May 26, 2022, we entered into a finder’s fee agreement with Darbie, whereby Darbie provided introduction services to qualified funders for the Company. In consideration for any closing introductions, Darbie would receive a finder’s fee in cash equal to 3% of the gross proceeds of an equity/convertible debt transaction or 3% of the gross proceeds of a non-convertible debt transaction, plus equity in the form of non-callable warrants to purchase common stock equal to 4% of the amount raised.
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SUMMARY OF THE OFFERING
| Issuer: | Kona Gold Beverage, Inc. | |
| Securities Being Offered by the Selling Stockholders: | Up to 702,280,139 shares of our Common Stock, including: (i) up to 642,224,583 Equity Line shares for Mast Hill, (ii) up to 56,000,000 EPA Warrant Shares for Mast Hill, and (iii) 4,055,556 Placement Warrant shares for Darbie.
Mast Hill will not hold more than 4.99% of the issued and outstanding shares of our Common Stock at any one time. | |
| Offering Price: | The Selling Stockholders may offer, sell, or distribute all or a portion of the shares registered hereby either through public or private transactions at prevailing market prices or at negotiated prices. See “Plan of Distribution.” | |
| Risk of Factors: | The Securities offered hereby involve a high degree of risk and should not be purchased by investors who cannot afford the loss of their entire investment. See “Risk Factors” for a discussion of the factors you should consider carefully before making an investment decision. | |
| Shares of our Common Stock Issued and Outstanding Prior to the Offering: | 2,226,940,557 shares (1) | |
| Use of Proceeds: | We will not receive any of the proceeds from the sale of the Common Stock registered hereunder.
We will receive proceeds from Mast Hill upon “Put Notices” presented to Mast Hill by the Company, and pursuant to the EPA. We will also receive proceeds upon the exercise of the EPA Warrant, assuming it is not exercised on a “cashless” basis. We intend to use such proceeds, if any, for general corporate purposes and working capital requirements. | |
| Trading Symbol: | Our Common Stock is currently quoted on the Pink Market under the symbol “KGKG.” | |
| Risk Factors: | See “Risk Factors” and the other information included in this Prospectus for a discussion of factors you should consider carefully before investing in our shares of Common Stock. |
| (1) | Unless we indicate otherwise, the number of shares of our Common Stock outstanding is based on 2,226,940,557 shares of our Common Stock outstanding on May 15, 2023, and excludes the following: (i) up to 50,000,000, 100,000,000, and 8,333,333 shares of our Common Stock issuable upon exercise of warrants granted to YA II PN, Ltd in February 2021, August 2021, and May 2022, respectively; (ii) 488,000 shares of our Common Stock issuable upon conversions of our Series B preferred stock (our “Series B Preferred Stock”); (iii) 1,000 shares of our Common Stock issuable upon conversions of our Series C preferred stock (our “Series C Preferred Stock”); (iv) 500,000,000 shares of our Common Stock issuable upon conversions of our Series D preferred stock (our “Series D Preferred Stock”); (v) 169,998,860 shares of our Common Stock that are issuable at some point in the future to Robert Clark, our Chief Executive Officer, which shares are related to certain accruals for compensation previously earned; (vi) 650,000 shares of our Common Stock that are issuable upon conversions of our Series B Preferred Stock that are issuable at some point in the future to Robert Clark, our Chief Executive Officer, which shares are related to certain accruals for compensation previously earned; (vii) 642,224,583 shares of our Common Stock (the Put Shares) offered for resale by Mast Hill, which shares are issuable by the Company pursuant to the EPA; (viii) 105,555,556 shares of our Common Stock issuable upon conversion of a convertible promissory note issued to Mast Hill in March 2023; (ix) 57,500,000 shares of our Common Stock issuable upon conversion of a convertible promissory note issued to Mast Hill; in April 2023; (e) an aggregate of 123,600,000 shares of our Common Stock issuable upon exercise of common stock purchase warrants that we granted to Mast Hill in connection with the two above-referenced convertible promissory notes; and (x) 56,000,000 shares of our Common Stock issuable upon exercise of the EPA Warrant. |
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RISK FACTORS
Investing in our securities involves a high degree of risk. You should carefully consider and evaluate all of the information contained in this Prospectus and in the documents that we incorporate by reference into this Prospectus before you decide to purchase our securities. In particular, you should carefully consider and evaluate the risks and uncertainties described under the heading “Risk Factors” in this Prospectus. Any of the risks and uncertainties set forth in this Prospectus, as updated by annual, quarterly, and other reports and documents that we file with the SEC and incorporate by reference into this Prospectus could materially and adversely affect our business, results of operations, and financial condition, which in turn could materially and adversely affect the value of our securities. As a result, you could lose all or part of your investment. This Prospectus also contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in the forward-looking statements as a result of a number of factors, including the risks described below. See “Cautionary Note Regarding Forward-Looking Statements.”
We have a limited operating history on which to judge our new business prospects and management.
We commenced operations in the beverage industry in 2015. Accordingly, we have only a limited operating history upon which to base an evaluation of our business and prospects. Operating results for future periods are subject to numerous uncertainties and we cannot assure you that we will achieve or sustain profitability. Our prospects must be considered in light of the risks encountered by companies in the early stage of development, particularly companies in new and rapidly evolving markets. We cannot assure you that we will successfully address any of these risks.
We have incurred losses in recent years and may never achieve or maintain profitability.
We have had losses for several years and had an accumulated deficit of $23,613,208 at December 31, 2022, which included our net loss of $7,313,035 for the year ended December 31, 2022, as compared to an accumulated deficit of $16,300,173, which included our net loss of $7,020,137 for the year ended December 31, 2021. As of March 31, 2023, our accumulated deficit had increased to $25,205,765, which increase included our net loss of $1,592,557 for three months ended March 31, 2023. We have implemented several initiatives intended to improve our revenues and reduce our operating costs with a goal of profitability. If we are unsuccessful in this regard, it will have a material adverse impact on our business, prospects, operating results, and financial condition. Our prior losses have had, and any future losses may continue to have, an adverse effect on our working capital. If we fail to generate revenue and become profitable, or if we are unable to fund our continuing losses, our stockholders could lose all or part of their investment.
Our recurring losses and significant accumulated deficit have raised substantial doubt regarding our ability to continue as a going concern.
We have experienced recurring operating losses over the last two years and have a significant accumulated deficit. We expect to continue to generate operating losses and consume significant cash resources for the foreseeable future. Without additional financing, these conditions raise substantial doubt about our ability to continue as a going concern, meaning that we may be unable to continue operations for the foreseeable future or realize assets and discharge liabilities in the ordinary course of operations. If we seek additional financing to fund our business activities in the future and there remains doubt about our ability to continue as a going concern, investors or other financing sources may be unwilling to provide additional funding on commercially reasonable terms or at all. If we are unable to obtain sufficient funding, our business, prospects, financial condition, and results of operations will be materially and adversely affected, and we may be unable to continue as a going concern. If we are unable to continue as a going concern, we may have to liquidate our assets and may receive less than the value at which those assets are carried on our financial statements, and it is likely that our stockholders will lose all or a part of their investment.
We do not have sufficient working capital to fund our planned operations, and, as a result, we may need to raise additional capital in the future, which may not be available when needed, on acceptable terms or at all.
We have limited capital resources. To date, we have financed our operations entirely through equity investments by our management and other investors, the incurrence of debt, salary deferments, and stock issuance deferments, and we expect to continue to do so in the foreseeable future. During the years ended December 31, 2022 and 2021, we relied on aggregate of approximately $6.3 million from incurrence of debt, salary deferments, and stock issuance deferments, to fund our operations.
We believe we will have enough cash to sustain operations through December 31, 2023, utilizing certain funds to be made available by the EPA. Subsequent to December 31, 2022, we received gross proceeds of $990,000 on the sale of notes, including the draw of $200,000 from the issuance of $200,000 line of credit on March 7, 2023, the draw of $85,000 from the issuance of $85,000 line of credit on March 9, 2023, the issuance of a $475,000 debenture on March 13, 2023, and the issuance of a $230,000 debenture on April 25, 2023, as well as the entry into the EPA of up to $5,000,000 on March 30, 2023 (that, as of the date of this Prospectus, we have not utilized). Taking into account our planned activities and sources of capital, we believe that we will not require additional funding of our financial obligations and operations for the next 12 months in excess of what we anticipate that we will generate from our operations and the potential use of the EPA. However, our estimates of our operating revenues and expenses and working capital requirements could be incorrect, and we may use our cash resources faster than we anticipate. Further, some or all of our ongoing or planned investments may not be successful and could further deplete our capital without immediate, or any, cash returns.
Until we can generate sufficient revenues to finance our cash requirements from our operations, which we may never do, we may need to increase our liquidity and capital resources by one or more measures, which may include, among others, reducing operating expenses, restructuring our balance sheet by negotiating with creditors and vendors, entering into strategic partnerships or alliances, or raising additional financing through the issuance of debt, equity, or convertible securities. Further, even if our near-term liquidity expectations prove correct, we may still seek to raise capital through one or more of these financing alternatives. However, we may not be able to obtain capital when needed or desired, on terms acceptable to us or at all.
Inadequate working capital would have a material adverse effect on our business and operations and could cause us to fail to execute our business plan, fail to take advantage of future opportunities, or fail to respond to competitive pressures or customer requirements. A lack of sufficient funding may also require us to significantly modify our business model and/or reduce or cease our operations. Furthermore, if we continue to issue equity or convertible debt securities to raise additional funds, our existing stockholders may experience significant dilution, and the new equity or debt securities may have rights, preferences, and privileges that are superior to those of our existing stockholders. We may incur substantial costs in pursuing any future capital-raising transactions, including investment banking, legal and accounting fees, printing and distribution expenses, and other similar costs, which would reduce the benefit of the capital received from the transaction.
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The COVID-19 pandemic could have a material adverse impact on our business, results of operations, and financial condition.
In January 2020, the WHO announced a global health emergency because of a new strain of coronavirus (known as COVID-19) that originated in Wuhan, China and generated significant risks to the international community as the virus spread globally beyond its point of origin. In March 2020, the WHO classified the COVID-19 outbreak as a pandemic based on the rapid increase in global exposure. The COVID-19 pandemic is disrupting businesses and affecting production and sales across a range of industries, as well as causing volatility in the financial markets. The extent of the impact of the COVID-19 pandemic on the Company’s consumer demand, sales, and financial performance will depend on certain developments, including, among other things, the duration and spread of the outbreak and the impact on the Company’s consumers and employees, all of which are uncertain and cannot be predicted. Management is actively monitoring this situation and potential impacts on our financial condition, liquidity, and results of operations.
We sell our products in highly competitive markets, which results in pressure on our profit margins and limits our ability to maintain or increase the market share of our products.
The beverage business is a highly competitive and risky business, and is subject to significant competition and pricing pressures. We compete with many national, regional, and local businesses, many of which have more resources than we do. We could experience increased competition from existing or new companies in the energy and beverage market, which could create increasing pressures to grow our business. Competitors could offer products with prices that may match or are lower than the prices we offer. While we believe that the products we offer are generally competitive with those offered by other companies, continued pricing pressure or improvements in research and shifts in consumer preferences away from hemp-based beverages could adversely impact our consumer base or pricing structure and could have a material and adverse effect on our business, financial condition, results of operations, and cash flow.
Our future growth is largely dependent upon our ability to expand successfully into new markets and new distribution channels, as well as to attract new consumers to our products.
Our business operates in markets that are characterized by rapidly changing products, evolving industry standards, and potential new entrants. Our future success depends upon a number of factors, including our ability to expand our product offerings into new territories and locations throughout the United States, including having our products offered in national retail stores such as Costco, Walmart, and Target. We cannot provide any assurance that our products will be offered in any such national chain. Failure to expand our distribution network to include distributors with reach into national retail stores will have an adverse effect on our growth, which, in turn, could adversely affect our business, financial condition, results of operations, and cash flow.
Changes in consumer preferences and perceptions may lessen the demand for our products, which would reduce sales and harm our business.
We believe we are highly dependent upon positive consumer perceptions of the safety and quality of our products, as well as similar products distributed by other companies. Consumer perception of CBD or hemp products in particular can be substantially influenced by scientific research findings, national media attention, and other publicity about product use. Adverse publicity from these sources regarding the safety, quality, or efficacy of our products could harm our reputation and results of operations. If consumer preferences and perceptions of our products change, the resulting demand for our products could decrease, which could adversely affect our business, financial condition, and results of operations.
Increases in our costs materially affect our operating results.
Our principal beverage products contain hemp, CBD, and ginseng. Increases in costs of these, or other ingredients in our products paid by our co-packers, with respect to our Company, or our suppliers, with respect to our Distribution Subsidiary, and the costs of which are passed on to us, could have a material adverse effect on our profit margins, as well as on our business, financial condition, and operating results. Further, other factors, such as inflation, increased food costs, increased labor and employee benefit costs, and increased energy costs may adversely affect our operating costs and we may not be able to pass along any such increased costs to our consumers. Increases in costs could adversely affect our profitability and operating results.
We do not have long-term contracts with any of our co-packers or our suppliers, and as a result they could seek to increase prices significantly or fail to deliver.
We do not rely on written contracts or long-term arrangements with our co-packers or our suppliers. Although we have not experienced significant problems with our co-packers or our suppliers, as applicable, our co-packers or suppliers may implement significant price increases or may not meet our requirements in a timely fashion, if at all. If any undesirable issues occur with our current co-packers or suppliers, we may be forced to find other co-packers and suppliers. We may encounter difficulties in finding substitute co-packers in a timely manner, if at all, given the strict licensing requirements in the CBD industry and the limited number of co-packers that currently hold such licenses that are necessary to comply with federal law. We may not be able to obtain terms as favorable as those received from our current co-packers and suppliers, which in turn would increase our costs. In addition, it is possible that the substitute co-packers and suppliers may not have the necessary materials to meet our demand.
We must monitor our inventory and product mix against forecasted demand on a continuous basis. If we underestimate demand, we risk having inadequate supplies. We also face the risk of having too much inventory on hand that may reach its expiration date and become unsalable, and we may be forced to rely on markdowns or promotional sales to dispose of excess or slow-moving inventory. If we are unable to manage our supply chain effectively, our operating costs could increase and our profit margins could decrease, which could have a material adverse effect on our financial condition, operating results, and cash flow.
Any prolonged disruption in the operations of any of our co-packing facilities could harm our business.
All of our distribution is managed domestically. Any prolonged disruption in the operations of any of these facilities, whether due to technical or labor difficulties, destruction or damage to the facility, real estate issues, or other reasons, could result in increased costs and reduced revenues and our profitability and prospects could be harmed.
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We may not be able to manage our co-packing capabilities effectively, which may adversely affect our results of operations.
We must accurately forecast demand for all of our products in order to ensure that we have enough products available to meet the needs of our consumers. Our forecasts are based on multiple assumptions that may cause our estimates to be inaccurate and affect our ability to ensure that we have sufficient co-packing capacity to meet the demand for our products, which could prevent us from meeting increased consumer demand and harm our brand and our business. If we do not accurately align our co-packing capabilities with demand, our business, financial condition, and results of operations may be materially adversely affected.
If the ingredients used in our products are contaminated, alleged to be contaminated, or are otherwise rumored to have adverse effects, our results of operations could be adversely affected.
We, through our co-packers, buy ingredients from a variety of third-party suppliers. If these materials are alleged or prove to include contaminants that affect the safety or quality of our products or are otherwise rumored to have adverse effects, for any reason, we may sustain the costs of, and possible litigation resulting from, a product recall and need to find alternative ingredients, to delay production, or to discard or otherwise dispose of products, which could materially adversely affect our business, financial condition, and results of operations. In addition, even if product liability claims against us are not successful or are not fully pursued, these claims could be costly and time-consuming and could require our management to spend their time defending claims, rather than operating our business.
Our business depends, in part, on the sufficiency and effectiveness of our marketing.
Due to the competitive nature of our industry, we must effectively and efficiently promote and market our products through advertisements to sustain and improve our competitive position in our market. Marketing investments may be costly. In addition, we may, from time to time, change our marketing strategies and spending. We may also change our marketing strategies and spending in response to actions by our consumers, competitors, and other companies that produce and/or distribute beverage products. The sufficiency and effectiveness of our marketing are important to our ability to retain and improve our market share and margins. If our marketing is not successful or if we fail to implement sufficient and effective marketing or adequately respond to changes in industry marketing strategies, our business, financial condition, and results of operations may be adversely affected.
Loss of key personnel or our inability to attract and retain new qualified personnel could hurt our business and inhibit our ability to operate and grow successfully.
We have benefited substantially from the leadership and performance of our senior management, as well as other key employees. Our ability to grow our brand successfully hinges on our ability to retain our current management and key employees, and to attract and retain qualified personnel in the future. We cannot provide any assurance that we will be able to retain our personnel or attract new, qualified personnel. In addition, we do not maintain any “key person” life insurance policies. The loss of the services of members of our senior management or key employees could prevent or delay the implementation and completion of our strategic objectives or divert management’s attention to seeking qualified replacements. If we are unable to attract or retain key personnel, our profitability and growth potential could be harmed.
We may not be able to protect our intellectual property adequately, which could harm the value of our brands and branded products and adversely affect our business.
We depend in large part on our brands and branded products and believe that they are very important to our business, as well as on our proprietary hemp-infused processes. We rely on a combination of trademarks, trade secrets, and similar intellectual property rights to protect our brands and branded products. The success of our business depends on our continued ability to use our existing trademarks in order to increase brand awareness and further develop our branded products in domestic markets. We own three trademarks that are registered with the USPTO and have another trademark registration pending in the United States. We may not be able to protect our trademarks adequately and our use of trademarks may result in liability for trademark infringement, trademark dilution, or unfair competition. We may from time to time be required to institute litigation to enforce our trademarks or other intellectual property rights, or to protect our trade secrets. Such litigation could result in substantial costs and diversion of resources and could negatively affect our sales, profitability, and prospects, regardless of whether we are able to successfully enforce our rights. Our failure to obtain or maintain adequate protection of our intellectual property rights for any reason could have a material adverse effect on our business, results of operations, and financial condition.
We may be subject to product liability claims or regulatory actions if our products are alleged to have caused significant loss or injury.
We may be subject to product liability claims, regulatory action, and litigation if our products are alleged to have caused loss or injury or failed to include adequate instructions for use or failed to include adequate warnings concerning possible side effects or interactions with other substances. Previously unknown adverse reactions resulting from consumption of CBD products alone or in combination with medications or other substances could also occur. In addition, the sale of any ingested product involves a risk of injury due to tampering by unauthorized third parties or product contamination. Our products may also be subject to product recalls, including voluntary recalls or withdrawals, if they are alleged to pose a risk of injury or illness, or if they are alleged to have been mislabeled, misbranded, or adulterated, or otherwise to be in violation of governmental regulations. A product liability claim or regulatory action against us could result in increased costs and could adversely affect our reputation and goodwill with our consumers generally. There can be no assurance that we will be able to obtain and maintain product liability insurance on acceptable terms or with adequate coverage against potential liabilities. Such insurance is expensive and may not be available in the future on acceptable terms, or at all. The inability to obtain sufficient insurance coverage on reasonable terms or otherwise to protect against potential product liability claims could result in us becoming subject to significant liabilities that are uninsured and also could adversely affect our commercial arrangements with third parties.
Our annual and quarterly financial results are subject to significant fluctuations due to a variety of factors, many of which are beyond our control, which makes our results difficult to predict and could cause our results to fall short of expectations.
Our operating results can vary significantly from quarter-to-quarter and year-to-year depending on various factors, many of which are beyond our control. As a result, comparing our operating results on a period-to-period basis may not be meaningful, and you should not rely on our past results as an indication of our future performance. Our operating results in future quarters may fall below expectations. Each of the following factors may affect our operating results:
| ● | the level of product and price competition; | |
| ● | variations in the timing and volume of our sales; | |
| ● | our ability to deliver products in a timely manner in sufficient volumes; |
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| ● | our ability to recognize product trends; | |
| ● | our success in expanding our business network and managing our growth; | |
| ● | our ability to develop and market product enhancements and new products; | |
| ● | the timing of product enhancements, activities of and acquisitions by competitors; | |
| ● | the ability to hire additional qualified employees; and | |
| ● | our ability to control costs. |
Consequently, our results of operations may decline quickly and significantly in response to changes in order patterns or rapid decreases in demand for our products. We anticipate that fluctuations in operating results will continue in the future; thus, our historical operating results may not be useful to you in predicting our future operating results.
We may require additional capital to finance our operations in the future, but that capital may not be available when it is needed and could be dilutive to existing stockholders.
We may require additional capital for future operations. We plan to finance anticipated ongoing expenses and capital requirements with funds generated from the following sources: (i) cash provided by operating activities; (ii) available cash and cash investments; and (iii) capital raised through debt and equity transactions. Current conditions in the capital markets are such that traditional sources of capital may not be available to us when needed or may be available only on unfavorable terms. Our ability to raise additional capital, if needed, will depend on conditions in the capital markets, economic conditions, and a number of other factors, many of which are outside of our control, and on our financial performance. Accordingly, we cannot assure you that we will be able to raise additional capital successfully at all or on terms that are acceptable to us. If we cannot raise additional capital when needed, it may have a material adverse effect on our liquidity, financial condition, results of operations, and prospects. Further, if we raise capital by issuing stock, the holdings of our existing stockholders will be diluted.
If we raise capital by issuing debt securities, such debt securities would rank senior to our shares of common stock, $0.00001 par value per share (our “Common Stock”), upon our bankruptcy or liquidation. In addition, we may raise capital by issuing equity securities that may be senior to our Common Stock for the purposes of dividend and liquidating distributions, which may adversely affect the market price of our Common Stock. Finally, upon bankruptcy or liquidation, holders of our debt securities and shares of our preferred stock and our lenders with respect to other borrowings will receive a distribution of our available assets prior to the holders of our Common Stock. Additional equity offerings may dilute the holdings of our existing stockholders or reduce the market price of our Common Stock, or both.
The success of our new and existing products Is uncertain.
We have committed, and expect to continue to commit, significant resources and capital to develop and market existing product enhancements and new products. These products are relatively untested, and we cannot assure you that we will achieve market acceptance for these products, or other new products that we may offer in the future. Moreover, these and other new products may be subject to significant competition with offerings by new and existing competitors. In addition, new products and enhancements may pose a variety of technical challenges and require us to attract additional qualified employees. The failure to develop and market these new products or enhancements successfully could seriously harm our business, financial condition, and results of operations.
Our business is dependent upon market acceptance by consumers.
We are substantially dependent on market acceptance of our products by consumers, our ability to change with consumer tastes, and to meet consumer needs with new products. If consumers do not accept our products, our sales and revenue will either fail to materialize or decline, resulting in a reduction in our operating income or possible increases in losses. Demand for CBD and hemp products is also influenced by the popularity of certain aesthetics, cultural and demographic trends, marketing and advertising expenditures, legality concerns, and general economic conditions. Because these factors can change rapidly, consumer demand also can shift quickly. The success of new product introductions depends on various factors, including product selection and quality, sales and marketing efforts, and timely production. We may not always be able to respond quickly and effectively to changes in consumer taste and demand due to the amount of time and financial resources that may be required to bring new products to market. The inability to respond quickly to market changes could have an impact on our expected growth potential and the growth potential of the market for CBD and hemp beverages. Even if this market develops, we may not succeed in our plan to become a category leader. Although we believe that our products in the United States are gaining better consumer acceptance, we cannot predict the future growth rate and size of this market.
If we are able to expand our operations, we may be unable to manage our future growth successfully.
If we are able to expand our operations in the United States, as planned, we may experience periods of rapid growth, which will require additional resources. Any such growth could place substantial strain on our management and our operational, financial, and other resources, and we will need to train, motivate, and manage current employees, as well as attract management, sales, finance and accounting, technical, and other professionals. In addition, we will need to expand the scope of our infrastructure and our physical resources. Any failure to expand these areas and implement appropriate procedures and controls in an efficient manner and at a pace consistent with our business objectives and such growth could have a material adverse effect on our business and results of operations.
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Any future litigation, or settlements resulting from legal proceedings relating to our business operations, could have a material adverse impact on our results of operations, and financial condition, and liquidity.
From time to time, we may be subject to allegations, and may be party to legal claims and regulatory proceedings, relating to our business operations. Such allegations, claims, and proceedings may be brought by third parties, including our consumers, employees, governmental or regulatory bodies, or competitors. Defending against such claims and proceedings, regardless of their merits or outcomes, is costly and time consuming and may divert management’s attention and personnel resources from our normal business operations, and the outcome of many of these claims and proceedings cannot be predicted. If any of these claims or proceedings were to be determined adversely to us, a judgment, a fine, or a settlement involving a payment of a material sum of money were to occur, or injunctive relief were issued against us, our business, financial condition, and results of operations could be materially adversely affected. Our reputation could also be affected and such adverse litigation results or publicity may also negatively impact our business, financial condition, and results of operations.
Premiums for our insurance coverage may not continue to be commercially justifiable, and our insurance coverage may have limitations and other exclusions and may not be sufficient to cover our potential liabilities.
We have insurance to protect our assets, operations, and employees. While we believe our insurance coverage addresses all material risks to which we are exposed and is adequate and customary in our current state of operations, such insurance is subject to coverage limits and exclusions and may not be available for the risks and hazards to which we are exposed. No assurance can be given that such insurance will be adequate to cover our liabilities or will be generally available in the future or, if available, that premiums will be commercially justifiable. In addition, insurance that is otherwise readily available, such as general liability, and directors’ and officers’ insurance, may become more difficult for us to find, and become more expensive, due to our CBD products. We cannot provide any assurance that we will be able to obtain such insurance in the future, or that the cost will be affordable to us. If we are unable to obtain such insurance, or if we were to incur substantial liability that was not covered by insurance or was in excess of policy limits, we may be prevented from entering into certain business sectors, our growth may be inhibited, and we may be exposed to additional risk and financial liabilities, which could have a material adverse effect on our business, results of operations, and financial condition.
Risks Related to the Regulation of Our Business and Products
We and our co-packers and suppliers are subject to extensive governmental regulation and may be subject to enforcement if we are not in compliance with applicable requirements.
We and our co-packers and suppliers are subject to a broad range of federal, state, and local laws and regulations that govern, among other issues, the testing, development, production, distribution, marketing, and post-market reporting of foods, including those that contain CBD. These include laws administered by the U.S. Food and Drug Administration (“FDA”), the U.S. Federal Trade Commission (“FTC”), the U.S. Department of Agriculture (“USDA”), and other federal, state, and local regulatory authorities. Because we market products that are regulated as food, we, and the companies that co-pack our products, are subject to the requirements of the Federal Food, Drug, and Cosmetic Act (“FDCA”) and regulations promulgated thereunder by the FDA. The statute and regulations govern, among other things, the production, composition, ingredients, packaging, labeling, and safety of beverages. The FDA requires that facilities that produce food products comply with a range of requirements, including hazard analysis and preventative controls regulations, current good manufacturing practices (“cGMPs”), and supplier verification requirements. Production facilities are subject to periodic inspection by federal, state, and local authorities. If we cannot successfully contract with co-packers for our products and if they cannot conform to our specifications and the strict regulatory requirements of the FDA and applicable state and local laws, they may be subject to adverse inspectional findings or enforcement actions, which could materially impact our ability to market our products, could result in their inability to continue to co-pack for us, or could result in a recall of our products that have already been distributed. If the FDA or other regulatory authority determines that we or they have not complied with the applicable regulatory requirements, our business, financial condition, and results of operations may be materially adversely impacted. If we do not comply with labeling requirements, including making unlawful claims about our products, we could be subject to public warning letters and possible further enforcement actions (which other companies distributing CBD products have faced).
Failure by us, our co-packers, or our suppliers to comply with applicable laws and regulations or to obtain and maintain necessary permits, licenses, and registrations relating to our operations could subject us to administrative and civil penalties, including fines, injunctions, recalls or seizures, warning letters, restrictions on the production or marketing of our products, or refusals to permit the import or export of products, as well as potential criminal sanctions, any or all of which could result in increased operating costs resulting in a material effect on our operating results and business.
The FDA has stated that it interprets the FDCA to prohibit the sale of food products that contain CBD. The FDA is currently evaluating a potential regulatory pathway for CBD products pursuant to its current authority; but, unless and until such changes are promulgated, the FDA and other federal and state regulatory authorities could take enforcement action to prevent us from marketing beverages with CBD, which could adversely impact our business, financial condition, and results of operations or cause us to halt product sales altogether.
Although hemp and CBD are no longer controlled substances subject to regulation by the U.S. Drug Enforcement Agency (the “DEA”), the FDA has stated publicly that it is nonetheless unlawful under the FDCA to introduce food containing CBD into interstate commerce. The FDCA prohibits the introduction or delivery for introduction into interstate commerce of any food that contains an approved drug or a drug for which substantial clinical investigations have been instituted and made public, unless a statutory exemption applies. The FDA has publicly stated its conclusion that none of the statutory exceptions has been met for CBD.
On May 31, 2019, the FDA held a public hearing to obtain scientific data and information about the safety, production, product quality, marketing, labeling, and sale of products containing cannabis or cannabis-derived compounds (such as CBD) to provide the FDA with information as it considers policy options related to the regulation of these products, particularly in light of the changes to the legal status of hemp enacted in the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”). The FDA has also formed an internal working group to evaluate the potential pathways to market for CBD products, which could include seeking statutory changes from Congress or promulgating new regulations. If legislative action is necessary, such legislative changes could take years to finalize and may not include provisions that would enable us to produce, market, and/or sell our CBD products, and the FDA could similarly take years to promulgate new regulations. Additionally, while the FDA’s enforcement focus to date has primarily been on CBD products that are associated with therapeutic claims, the agency has recently issued warning letters to companies that market CBD products without such claims. There is an unquantifiable risk that the FDA could take enforcement action against us, our co-packers, or our suppliers, or those marketing similar products to us, which could limit or prevent us from marketing our products and have a material adverse impact on our business, financial condition, and results of operations. While the FDA announced on March 5, 2020 that it is currently evaluating a risk-based enforcement policy for CBD to provide more clarity to the industry and the public while the agency takes potential steps to establish a clear regulatory pathway, it remains unclear whether or when the FDA will ultimately issue such an enforcement policy.
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Moreover, local, state, federal, and international CBD, hemp, and cannabis laws and regulations are rapidly changing and subject to evolving interpretations, which could require us to incur substantial costs associated with compliance requirements or alteration of certain aspects of our business plan in the event that our CBD products become subject to new restrictions. In addition, violations of these laws, or allegations of such violations, could disrupt our business and result in a material adverse effect on our operations. It is also possible that regulations may be enacted in the future that will be directly applicable to our products. We cannot predict the nature of any future laws, regulations, interpretations, or applications, nor can we determine what effect additional governmental regulations or administrative policies and procedures, when and if promulgated, could have on our activities in the hemp and CBD industry. The constant evolution of laws and regulations may require us to incur substantial costs associated with legal and compliance fees and ultimately require us to alter our business plan.
Our products contain CBD derived from hemp. The 2018 Farm Bill enacted a number of changes to the legal status of hemp and hemp products, including removal from the statutory list of controlled substances. However, implementation of the 2018 Farm Bill is ongoing, and there is still significant uncertainty regarding the legal status of hemp and hemp-based products under U.S. law.
Our products that contain CBD are subject to various state and federal laws regarding the production and sale of hemp-based products. Historically, the DEA had interpreted CBD to be subject to the Controlled Substances Act (the “CSA”) under the definition for “marijuana,” a Schedule I controlled substance. However, the 2018 Farm Bill removed “hemp,” from the definition of “marijuana.” “Hemp” is defined as the plant, Cannabis sativa L., and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (“THC”) concentration of not more than 0.3% on a dry weight basis. As a result of the enactment of the 2018 Farm Bill, and since we believe that the CBD contained in our products and the hemp from which it is derived meet the definition of “hemp,” we believe that our CBD products and the hemp from which they are derived are not Schedule I controlled substances under the CSA. However, there is a risk that we could be subject to enforcement action, including prosecution, if any of our products are determined not to meet the definition of “hemp” and to constitute “marijuana” under the CSA based on THC levels or other violations, which would have a negative impact on our business and operations.
In addition, the 2018 Farm Bill contained provisions that require the USDA, among other things, to promulgate a new regulatory framework that will govern the growth and cultivation of hemp, where hemp grown in compliance with the framework would be permitted in interstate commerce throughout the United States. On October 31, 2019, the USDA issued an interim final rule (“IFR”) establishing the regulations necessary for domestic hemp production, including provisions for the USDA to approve plans submitted by states and Native American tribes for the monitoring and regulation of hemp production at the state level. Effective March 22, 2021, The USDA issued the final rule, which creates the U.S. Domestic Hemp Production Program. The program provides requirements for maintaining records about the land where hemp is produced, testing the levels of total delta-9 tetrahydrocannabinol, disposing of non-compliant plants, licensing hemp producers, and ensuring compliance under the new program. The Agricultural Marketing Service (AMS) has been delegated authority to administer the U.S. Domestic Hemp Production Program. While the 2018 Farm Bill requires state and tribal plans to meet certain basic requirements as outlined in the IFR, nothing preempts or limits state or tribal laws that are more stringent than the 2018 Farm Bill, and the requirements for lawful hemp production will vary from state to state. We and our co-packers and suppliers must expend resources to monitor the evolving federal and state legal landscape for hemp production, and any violations of these laws, or alleged violations, could disrupt our business and result in a material adverse effect on our operations.
Within the United States, we and our co-packers and suppliers face a variety of state and local restrictions on the cultivation of hemp, and if state or local regulatory authorities take enforcement action to prevent us from selling our products, our business, financial condition, and results of operations could be materially adversely impacted.
The growth and cultivation of hemp is subject to a complex regulatory framework that is implemented and affected by multiple federal agencies, as well as state and local authorities. In 2014, four years prior to enacting the 2018 Farm Bill, Congress enacted the Agricultural Act of 2014 (the “2014 Farm Bill”) to allow for the limited growth and cultivation of industrial hemp under federal law. This statute allowed institutions of higher education and state departments of agriculture to grow and cultivate industrial hemp for agricultural or other academic research purposes, or for hemp to be grown under the auspices of a state agricultural pilot program, in states where such growth and cultivation is legal under state law. While the 2014 Farm Bill will be repealed after October 31, 2020, and although the 2018 Farm Bill created a pathway under which hemp and its derivatives, including CBD, would no longer be a Schedule I controlled substance under the CSA and would be protected from interference in interstate commerce, the USDA only recently issued the IFR that contains the regulatory framework that will govern the growth and cultivation of hemp, and, currently, several states continue to operate under the 2014 Farm Bill. Alongside the current federal regulatory developments, state and local authorities have enacted their own restrictions on the cultivation or sale of hemp or hemp-derived CBD, including laws that ban the cultivation or possession of hemp or any other plant of the cannabis genus and derivatives thereof, such as CBD. Currently several states ban the cultivation and possession of hemp or CBD, while others have taken enforcement action against human food products that contain CBD, and states may enact new laws or regulations that prohibit or limit the sale of such products at any time. In the event of a change in federal or state laws and regulations that are adverse to our CBD products, we may be restricted or limited with respect to sale or distribution of those products, which could adversely impact our intended business plan with respect to such products.
The USDA has only recently issued the IFR and started accepting state and tribal hemp production plans for review, and it remains to be seen which states will submit their own regulatory plans for the cultivation of hemp and which will become subject to the USDA framework. The timing and content of state regulatory plans may impact our ability to obtain sufficient quantities of CBD at an acceptable price and on a timely basis. If our current co-packers and suppliers were to face increased regulation or be unable to continue to supply our business, we may be unable to fulfill orders for our products or find a suitable replacement co-packers and suppliers in a timely fashion or with comparable pricing. If our current co-packers or suppliers or any future co-packers or suppliers fail to comply with the applicable regulatory requirements, our business may suffer.
Changes in existing laws or regulations, including how such existing laws or regulations are enforced by federal, state, and local authorities, or the adoption of new laws or regulations may increase our costs and otherwise adversely affect our business, financial condition, and results of operations.
In addition to the legal framework applicable to hemp and CBD, the production and marketing of food products is highly regulated, and we and our co-packers and suppliers are subject to a variety of federal and state laws and regulations applicable to food. These laws and regulations apply to many aspects of our business, including the co-packing, packaging, labeling, distribution, advertising, sale, quality, and safety of our products. We could incur costs, including fines, penalties, and third-party claims, in the event of any violations of, or liabilities under, such requirements, including any competitor or consumer challenges relating to compliance with such requirements. For example, in connection with the marketing and advertising of our products, we could be the target of claims relating to false or deceptive advertising, including under the auspices of the FTC and state consumer protection statutes.
The regulatory environment in which we operate could change significantly and adversely in the future. The laws and regulations that apply to our products and business may change in the future and we may incur (directly or indirectly through our co-packers or suppliers) material costs to comply with current or future laws and regulations or any required product recalls. Any change in production, labeling, or marketing requirements for our products may lead to an increase in costs or interruptions in our production or raw material supply, either or both of which could adversely affect our operations and financial condition. For example, recent federal and state attention to the sale of CBD-containing products, and specifically food products that contain CBD, could result in standards or requirements that mandate changes to our current product ingredients, labeling, or marketing. New or revised government laws and regulations could significantly limit our ability to operate our business as it is currently being conducted, result in additional compliance costs, and, in the event of noncompliance, could lead to administrative or civil remedies, including fines, injunctions, withdrawals, recalls, or seizures and confiscations, as well as potential criminal sanctions.
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Any such changes or actions by the FDA or other regulatory agencies could have a material adverse effect on our co-packers, our suppliers, and our business, financial condition, and results of operations.
Government scrutiny, warnings, and public perception could increase our costs of production and increase our legal and regulatory expenses, and if we are unable to comply with the applicable requirements for marketing beverages, we could face substantial civil and criminal penalties.
Producing, processing, labeling, packaging, storing, and distributing food products are activities that are subject to extensive federal, state, and local regulation. In the United States, these operations are regulated by the FDA and various state and local public health and agricultural agencies. The FDA Food Safety Modernization Act of 2011 provides direct recall authority to the FDA for food products and includes a number of other provisions that are designed to enhance food safety, including increased inspections by the FDA of domestic food facilities. Compliance with government regulation can be costly or may otherwise adversely affect our business. Moreover, failure to comply with applicable laws and regulations could subject us to civil remedies, including fines, injunctions, recalls, or seizures, as well as potential criminal sanctions, which could in turn have a material adverse effect on our business, financial condition, and results of operations.
We operate in a highly regulated environment with constantly evolving legal and regulatory frameworks. Consequently, we are subject to heightened risk of legal claims, government investigations, or regulatory enforcement actions. Although we have implemented policies and procedures designed to ensure compliance with existing laws and regulations, there can be no assurance that our employees, temporary workers, contractors, or agents might not violate our policies and procedures. Moreover, a failure to maintain effective regulatory compliance policies and procedures could lead to violations, unintentional or otherwise, of laws and regulations. Legal claims, government investigations, or regulatory enforcement actions arising out of our failure or alleged failure to comply with applicable laws and regulations could subject us to civil and criminal penalties that could materially and adversely affect our product sales, reputation, financial condition, and operating results. In addition, the costs and other effects of defending potential and pending litigation and administrative actions against us may be difficult to determine and could materially adversely affect our business, financial condition, and results of operations.
Because there has been limited study on the effects of CBD, future nonclinical and clinical research studies and analysis of such studies by third parties, including government agencies, may lead to conclusions that dispute or conflict with our understandings and beliefs regarding the benefits, viability, safety, dosing, and social acceptance of CBD.
Research in the United States and internationally regarding the benefits, viability, safety, and dosing of isolated cannabinoids (such as CBD or THC) remains in relatively early stages. There have been few clinical trials on the benefits of CBD conducted on humans or animals, including studies focused on the consumption of CBD in foods.
Future research and clinical trials may draw opposing conclusions to statements contained in current articles, reports, and studies regarding CBD or could reach different or negative conclusions regarding the medical benefits, viability, safety, dosing, or other facts and perceptions related to CBD, which could adversely affect acceptance of CBD in foods and the demand for such products. Future research may also cause regulatory authorities to change how they enforce regulatory restrictions applicable to hemp and CBD. We cannot predict any negative research and clinical trial findings in the future that may have a material adverse impact on our business, financial condition, and results of operation.
Negative publicity from being in the hemp and CBD space could have a material adverse effect on our business, financial condition, and results of operations.
Hemp and marijuana are both varieties of the plant, Cannabis sativa L., except that hemp, as defined by federal law for exemption from Schedule I of the CSA, has a delta-9 THC concentration of not more than 0.3% on a dry weight basis. The same plant with a higher THC content is considered to be marijuana, which is legal for medical and recreational use under certain state laws, but which is not legal under federal law. The similarities between these plants can cause confusion, and our activities with hemp may be incorrectly perceived that we are involved in federally illegal marijuana activities.
Further, despite growing support for the cannabis industry and the legalization of marijuana in certain U.S. states, many individuals and businesses remain opposed to the cultivation and sale of cannabis and cannabis-derived products. Any negative publicity resulting from an incorrect perception that we operate in the marijuana space could result in a loss of current or future business. It could also adversely affect the public’s perception of us or our Common Stock and could lead to reluctance by new parties to do business with or to invest in us. We cannot assure you that additional business partners, including, but not limited to, financial institutions and distributors and resellers, will not attempt to end or curtail their relationships with us. Any such negative press or impacts to our business relationships could have a material adverse effect on our business, financial condition, and results of operations.
Our ability to deduct certain business expenses for income tax purposes is subject to uncertainty.
Section 280E of the Internal Revenue Code of 1986, as amended (the “Code”), prohibits the deduction of certain otherwise ordinary business expenses from carrying on any trade or business that consists of “trafficking” Schedule I or II controlled substances, as defined by the CSA. Under existing Internal Revenue Service guidance, the bulk of operating costs and general administrative costs of trades or businesses that are subject to Section 280E of the Code are not permitted to be deducted. Although the 2018 Farm Bill created a pathway under which hemp and its derivatives, including CBD, would no longer be a Schedule I controlled substance under the CSA, until the USDA implements regulations pursuant to the 2018 Farm Bill, we believe our ability to deduct certain ordinary business expenses requires compliance with the 2014 Farm Bill. We do not believe that Section 280E of the Code currently forbids our deduction of otherwise ordinary business expenses because we believe that we are in compliance with the 2014 Farm Bill and/or the products we sell are from co-packers and suppliers that are compliant with the 2014 Farm Bill. However, until the USDA promulgates regulations under the 2018 Farm Bill, governmentally determined non-compliance with the 2014 Farm Bill by us, our co-packers, or their suppliers may have a material adverse tax effect on us.
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Risks Related to an Investment in Our Common Stock
There is currently a limited public market for our Common Stock; a trading market for our Common Stock may never develop; and our Common Stock prices may be volatile and could decline substantially.
Although from April 15, 2020 to March 14, 2022, our Common Stock was quoted on the OTCQB® Venture Market, an over-the-counter quotation system maintained by the OTC Markets Group Inc. (the “OTCM”), under the symbol “KGKG,” and, is currently quoted on the Pink® Open Market (the “Pink Market”), there has been no material public market for our Common Stock. In the over-the-counter market, our stockholders may find it more difficult to obtain accurate quotations as to the market value of their shares of our Common Stock and may find fewer buyers to purchase their stock and fewer market makers to support its price than if our Common Stock were listed on a national securities exchange, such as the New York Stock Exchange, the NYSE American, or the Nasdaq Stock Market. As a result of these and other factors, investors may be unable to resell shares of our Common Stock at or above the price at which they purchased them, at or near quoted bid prices, or at all. Further, an inactive market may also impair our ability to raise capital by selling additional equity in the future, and may impair our ability to enter into strategic partnerships or acquire companies or products by using shares of our Common Stock as currency.
We intend to list shares of our Common Stock on a national securities exchange in the future; but, we do not now, and may not in the future, meet the initial listing standards of any national securities exchange, which often provides a more widely-traded and liquid market. Some, but not all, of the factors that may delay or prevent the listing of shares of our Common Stock on a national securities exchange include the following: our stockholders’ equity may be insufficient; the market value of our outstanding Common Stock may be too low; our net income from operations may be too low or not sustained for the requisite period of time; our Common Stock may not be sufficiently widely held; we may not be able to secure market makers for our Common Stock; and we may fail to meet other rules and requirements mandated by the several exchanges and markets to have our Common Stock listed. Should we fail to satisfy the initial listing standards of the national securities exchanges, or if our Common Stock is otherwise rejected for listing, and remains quoted on the Pink Market or again is quoted on the OTCQB® Venture Market, the quoted price of our Common Stock could suffer and the trading market for our Common Stock may become less liquid and our Common Stock price may be subject to increased volatility.
Therefore, an active, liquid, and orderly trading market for our Common Stock may not initially develop or be sustained, which could significantly depress the public price of our Common Stock and/or result in significant volatility, which could affect your ability to sell your shares of our Common Stock. Even if an active trading market were to develop for our Common Stock, the market price of our Common Stock may be highly volatile and subject to wide fluctuations. Our financial performance, government regulatory action, tax laws, interest rates, and market conditions in general could have a significant impact on the future market price of our Common Stock.
We are not subject to the rules of a national securities exchange requiring the adoption of certain corporate governance measures and, as a result, our stockholders do not have the same protections.
Because our Common Stock was quoted on the OTCQB® Venture Market from April 15, 2020 to March 14, 2022, and currently, is quoted on the Pink Market, we are not subject to the rules of a national securities exchange, such as the New York Stock Exchange, the NYSE-American, or the Nasdaq Stock Market. National securities exchanges generally require more rigorous measures relating to corporate governance that are designed to enhance the integrity of corporate management. The requirements of the OTCQB® Venture Market and the Pink Market afford our stockholders fewer corporate governance protections than those of a national securities exchange. Until we comply with such greater corporate governance measures, even though such compliance is not required by the OTCM for quotations of shares of our Common Stock on the OTCQB® Venture Market or the Pink Market, our stockholders will have fewer protections, such as those related to director independence, stockholder approval rights, and governance measures that are designed to provide oversight of a corporation’s management by its board of directors.
Our Common Stock is currently subject to the “penny stock” rules; accordingly, it could adversely affect the market price of our Common Stock and increase your transaction costs to sell those shares.
The SEC has adopted Rule 3a51-1, which defines a “penny stock” 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. Because the price of our Common Stock is less than $5.00 (and we do not meet any of the alternative exemptive criteria), our Common Stock is deemed to be a penny stock. For any transaction involving a penny stock, unless exempt, Rule 15g-9 requires that a broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive (i) the purchaser’s written acknowledgment of the receipt of a risk disclosure statement; (ii) a written agreement to transactions involving penny stocks; and (iii) a signed and dated copy of a written suitability statement. Generally, brokers may be less willing to execute transactions in securities subject to the “penny stock” rules. This may make it more difficult for investors to dispose of our Common Stock and cause a decline in the market value of our Common Stock.
Our stock price has been extremely volatile, which could cause the value of an investment in our Common Stock to decline.
The market price of our Common Stock has been extremely volatile and could be subject to significant fluctuations due to changes in sentiment in the market regarding our operations or business prospects, among other factors. The public price of our Common Stock following the date of this Prospectus also could be subject to wide fluctuations in response to the risk factors described in this Prospectus and others beyond our control, including:
| ● | the number of shares of our Common Stock publicly owned and available for trading; | |
| ● | industry trends and the business success of our competitors; | |
| ● | actual or anticipated fluctuations in our quarterly financial and operating results and operating results that vary from the expectations of our management or of securities analysts and investors; | |
| ● | our failure to meet the expectations of the investment community and changes in investment community recommendations or estimates of our future operating results; | |
| ● | announcements of strategic developments, acquisitions, dispositions, financings, product developments, and other materials events by us or our competitors; | |
| ● | regulatory and legislative developments related to our industry; | |
| ● | litigation; | |
| ● | general market conditions; | |
| ● | other domestic macroeconomic factors unrelated to our performance; | |
| ● | additions or departure of key personnel, including any major change in our Board of Directors (our “Board”) or management; and | |
| ● | sales or expected sales of shares of our Common Stock by us, and our officers, directors, and significant stockholders. |
In addition, the stock market in general has experienced extreme price and volume fluctuations that often have been unrelated or disproportionate to the operating performance of those companies. Securities class action litigation has often been instituted against companies following periods of volatility in the overall market and in the market price of a company’s securities. Such litigation, if instituted against us, could result in very substantial costs, divert our management’s attention and resources and harm our business, operating results, and financial condition.
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Because we are a “smaller reporting company,” we will not be required to comply with certain disclosure requirements that are applicable to other public companies and we cannot be certain if the reduced disclosure requirements applicable to smaller reporting companies will make our Common Stock less attractive to investors.
We are a “smaller reporting company,” as defined in Item 10(f)(1) of Regulation S-K. As a smaller reporting company, we are eligible for exemptions from various reporting requirements applicable to other public companies that are not smaller reporting companies, including, but not limited to:
| ● | reduced disclosure obligations regarding executive compensation in our periodic reports, proxy statements, and registration statements; | |
| ● | not being required to comply with the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act of 2002; and | |
| ● | reduced disclosure obligations for our annual and quarterly reports, proxy statements, and registration statements. |
We will remain a smaller reporting company until the end of the fiscal year in which (1) we have a public common equity float of more than $250 million, or (2) we have annual revenues for the most recently completed fiscal year of more than $100 million plus we have any public common equity float or public float of more than $700 million. We also would not be eligible for status as smaller reporting company if we become an investment company, an asset-backed issuer, or a majority-owned subsidiary of a parent company that is not a smaller reporting company.
Sales by our stockholders of a substantial number of shares of our Common Stock in the public market could adversely affect the market price of our Common Stock.
A substantial portion of the total outstanding shares of our Common Stock may be sold into the market at any time. Some of these shares are owned by our executive officers and directors, and we believe that such holders have no current intention to sell a significant number of shares of our stock. If all of the major stockholders were to decide to sell large amounts of stock over a short period of time, such sales could cause the market price of our Common Stock to drop significantly, even if our business were doing well.
Requirements associated with being a reporting public company will require significant company resources and management attention.
From and after December 31, 2020, we became subject to the reporting requirements of the Exchange Act and the other rules and regulations of the SEC relating to public companies. We are working with independent legal, accounting, and financial advisors to identify those areas in which changes should be made to our financial and management control systems to manage our growth and our obligations as an SEC reporting company. These areas include corporate governance, internal control, internal audit, disclosure controls, and procedures and financial reporting and accounting systems. We have made, and will continue to make, changes in these and other areas, including our internal control over financial reporting. However, we cannot provide assurances that these and other measures we may take will be sufficient to allow us to satisfy our obligations as an SEC reporting company on a timely basis. Further, while we remain an emerging growth company, we will not be required to include an attestation report on internal control over financial reporting issued by our independent registered public accounting firm.
In addition, compliance with reporting and other requirements applicable to SEC reporting companies will create additional costs for us, will require the time and attention of management, and will require the hiring of additional personnel and legal, audit, and other professionals. We cannot predict or estimate the amount of the additional costs we may incur, the timing of such costs, or the impact that our management’s attention to these matters will have on our business and operations.
Our management constitutes some of our largest stockholders, which will allow them to exert significant control over our business and affairs and have actual or potential interests that may depart from those of investors.
As of March 31, 2023, members of our management team beneficially owned approximately 25.03% of our Common Stock. As a result, management has the virtual unfettered ability to control substantially all matters submitted to our stockholders for approval including (i) election of our Board; (ii) removal of any of our directors; (iii) amendment of our Amended and Restated Certificate of Incorporation (our “A&R Certificate of Incorporation”) or our Amended and Restated Bylaws (our “A&R Bylaws”); and (iii) adoption of measures that could delay or prevent a change in control or impede a merger, takeover, or other business combination involving us.
In addition, management’s stock ownership may discourage a potential acquirer from making a tender offer or otherwise attempting to obtain control of us, which in turn could reduce our stock price or prevent our stockholders from realizing a premium over our stock price.
Any investors will own a minority percentage of our Common Stock and will have minority voting rights.
Our preferred stock may have rights senior to those of our Common Stock, which could adversely affect holders of our Common Stock.
Our A&R Certificate of Incorporation gives our Board the authority to issue one or more additional series of our preferred stock without a vote or any action by our stockholders. Our Board also has the authority to determine the terms of those various series of our preferred stock, including price, preferences, and voting rights. The rights granted to holders of shares of our preferred stock in the future may adversely affect the rights of holders of shares of our Common Stock. Any such authorized series of preferred stock may have a liquidation preference – a pre-set distribution in the event of a liquidation of our Company – that would reduce the amount available for distribution to the holders of shares of our Common Stock or may have dividend rights superior to those provided to the holders of shares of our Common Stock, which could reduce the amount of available for distribution as dividends to holders of shares of our Common Stock. In addition, an authorized series of our preferred stock may have voting rights that are superior to the voting right of the holders of shares of our Common Stock.
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We do not expect to pay any cash dividends in the foreseeable future.
We intend to retain our future earnings, if any, in order to reinvest in the development and growth of our business and, therefore, do not intend to pay dividends on our Common Stock for the foreseeable future. Any future determination to pay dividends will be at the discretion of our Board and will depend on our financial condition, results of operations, capital requirements, and such other factors as our Board deems relevant. Accordingly, investors may need to sell their shares of our Common Stock to realize a return on their investment, and they may not be able to sell such shares at or above the price paid for them.
We can sell additional shares of our Common Stock without approval of our stockholders and without offering shares to existing stockholders, which would result in dilution of existing stockholders’ interests in us and could depress our stock price.
Our A&R Certificate of Incorporation authorizes 10,500,000,000 shares of our Common Stock, of which 2,226,940,557 are issued and outstanding as of March 31, 2023; 1,200,000 shares of our Series B Preferred Stock, of which 488,000 shares are issued and outstanding as of March 31, 2023; 2,000 shares of our Series C Preferred Stock, of which 1,000 shares are issued and outstanding as of March 31, 2023; and 500,000 shares of our Series D Preferred Stock, of which 500,000 shares are issued and outstanding as of March 31, 2023, for an aggregate of 989,000 issued and outstanding shares of our preferred stock as of March 31, 2023, which shares of issued and outstanding shares of our preferred stock are convertible into an aggregate of 500,488,000 shares of our Common Stock. Although our Board intends to utilize its reasonable business judgment to fulfill its fiduciary obligations to our then-existing stockholders in connection with any future issuance of our capital stock, the future issuance of additional shares of our Common Stock or preferred stock convertible into shares of our Common Stock would cause immediate, and potentially substantial, dilution to our existing stockholders, which could also have a material effect on the market value of the shares. In addition, the exercise price of any convertible debt securities or the conversion price of any convertible equity securities we may sell and issue in the future could be significantly lower than the market price of our Common Stock on the respective issuance, exercise, or conversion date. Alternatively, we could issue equity securities at a significant discount to the market price of our Common Stock on the issuance date, the occurrence of any of such events could have a material adverse effect on the market price of our Common Stock.
Further, shares of our Common Stock do not have preemptive rights, which means that we can sell shares of our Common Stock to other persons without offering the holders of shares of our Common Stock, or the purchasers in this offering, the right to purchase their proportionate share of such offered shares. Therefore, any additional sales of our capital stock by us could dilute an existing stockholder’s ownership interest in us.
We are an emerging growth company and a smaller reporting company, and we cannot be certain if the reduced reporting requirements applicable to emerging growth companies and smaller reporting companies will make our Common Stock less attractive to investors.
We are an emerging growth company, as defined in the JOBS Act, enacted in April 2012. For as long as we continue to be an emerging growth company, we may take advantage of 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 SOX Act, reduced disclosure obligations regarding executive compensation in this Prospectus and our periodic reports and proxy statements, and exemptions from the requirements of holding nonbinding advisory votes on executive compensation and stockholder approval of any golden parachute payments not previously approved. We could be an emerging growth company for up to five years following the year in which we complete this offering, although circumstances could cause us to lose that status earlier. We will remain an emerging growth company until the earlier of (1) the last day of the fiscal year (a) following the fifth anniversary of the closing of this offering, (b) in which we have total annual gross revenue of at least $1.07 billion, or (c) in which we are deemed to be a large accelerated filer, which requires the market value of our Common Stock that is held by non-affiliates to exceed $700 million as of the prior June 30th, and (2) the date on which we have issued more than $1 billion in non-convertible debt during the prior three-year period.
Under the JOBS Act, emerging growth companies can also delay adopting new or revised accounting standards until such time as those standards apply to private companies. We have irrevocably elected to “opt out” of this exemption and, therefore, we will adopt new or revised accounting standards at the time public companies adopt the new or revised accounting standards and, therefore, we will adopt new or revised accounting standards at the time private companies adopt the new or revised accounting standards.
Even after we no longer qualify as an emerging growth company, we may still qualify as a “smaller reporting company,” which would allow us to continue to take advantage of many of the same exemptions from disclosure requirements, including not being required to comply with the auditor attestation requirements of Section 404 of the SOX, and reduced disclosure obligations regarding executive compensation in this Prospectus and our periodic reports and proxy statements, to the extent we are required to make such filings. 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.
Provisions in our A&R Certificate of Incorporation and A&R Bylaws and Delaware law may discourage a takeover attempt even if a takeover might be beneficial to our stockholders.
Provisions contained in our A&R Certificate of Incorporation and A&R Bylaws could make it more difficult for a third party to acquire us. Provisions in our A&R Certificate of Incorporation and A&R Bylaws impose various procedural and other requirements, which could make it more difficult for stockholders to effect certain corporate actions. For example, our A&R Certificate of Incorporation authorizes our Board to determine the rights, preferences, privileges, and restrictions of unissued series of our preferred stock without any vote or action by our stockholders. Thus, our Board can authorize and issue shares of our preferred stock with voting or conversion rights that could dilute the voting power of holders of other series of our capital stock. These rights may have the effect of delaying or deterring a change of control of us. Additionally, our A&R Certificate of Incorporation and/or A&R Bylaws establish limitations on the removal of directors and on the ability of our stockholders to call special meetings and include advance notice requirements for nominations for election to our Board and for proposing matters that can be acted upon at stockholder meetings.
Moreover, because we are incorporated in Delaware, we are governed by the provisions of Section 203 of the General Corporation Law of the State of Delaware (the “DGCL”), which prohibits an “interested stockholder” owning in excess of 15% of our outstanding voting stock from merging or combining with us for a period of three years after the date of the transaction in which such stockholder acquired in excess of 15% of our outstanding voting stock, unless the merger or combination is approved in a prescribed manner.
See “Description of Securities – Anti-Takeover Effects of Provisions of Our A&R Certificate of Incorporation, Our A&R Bylaws and Delaware Law.” These provisions could limit the price that certain investors might be willing to pay in the future for shares of our Common Stock.
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Claims for indemnification by our directors and officers may reduce our available funds to satisfy successful third-party claims against us and may reduce the amount of money available to us.
Our A&R Certificate of Incorporation provides that we will indemnify our directors and officers, in each case to the fullest extent permitted by Delaware law. In addition, as permitted by Section 145 of the DGCL, our A&R Certificate of Incorporation provides that:
| ● | We will indemnify our directors and officers for serving us in those capacities or for serving other business enterprises at our request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. | |
| ● | We may, in our discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law. | |
| ● | We are required to advance expenses, as incurred, to our directors and officers in connection with defending a proceeding, except that such directors or officers shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification. | |
| ● | The rights conferred in our A&R Certificate of Incorporation are not exclusive, and we are authorized to enter into indemnification agreements with our directors, officers, employees, and agents and to obtain insurance to indemnify such persons. | |
| ● | We may not retroactively amend our A&R Certificate of Incorporation or indemnification agreement, if any, to reduce our indemnification obligations to directors, officers, employees, and agents. |
We previously effected a dividend distribution of common stock of Elev8 Hemp, as our wholly-owned subsidiary, and Branded Legacy, Inc., formerly known as Elev8 Brands, Inc. and, prior to that, known as PLAD, Inc. (“Branded Legacy”), which may have violated Section 5 of the Securities Act.
The shares of common stock of Branded Legacy that we distributed to our stockholders were not registered under the Securities Act, and we may not have fully complied with SEC Legal Bulletin No. 4, which requires a company to satisfy five conditions in connection with the spin-off. As a result, we may have violated Section 5 of the Securities Act in that we did not file a registration statement with the SEC and have the same declared effective by the SEC prior to distributing the shares of Branded Legacy common stock. In addition, it is possible that the SEC could commence an enforcement action against us. For additional information regarding the dividend distribution, see “Management’s Discussion and Analysis and Results of Operations – Liquidity and Capital Resources” for additional information.
Risks Related to Our Securities and this Offering
Our share price is likely to be volatile and the market price of our shares of Common Stock after this offering may drop below the price you pay.
You should consider an investment in our securities as risky and invest only if you can withstand a significant loss and wide fluctuations in the market value of your investment. You may be unable to sell your securities at or above the initial public offering price due to fluctuations in the market price of our shares of Common Stock arising from changes in our operating performance or prospects. Some of the factors that may cause the market price of our shares of Common Stock to fluctuate or decrease below the price paid in this offering include:
| ● | regulatory developments or enforcement in the United States with respect to our products; | |
| ● | competition from existing products or new products that may emerge; | |
| ● | changes in estimates or recommendations by securities analysts, if any cover our shares of Common Stock; | |
| ● | fluctuations in the valuation of companies perceived by investors to be comparable to us; | |
| ● | litigation; | |
| ● | future sales of our shares of Common Stock; | |
| ● | share price and volume fluctuations attributable to inconsistent trading volume levels of our shares; | |
| ● | additions or departures of key personnel; | |
| ● | economic and other external factors or other disasters or crises; | |
| ● | general market conditions and market conditions for beverage stocks; | |
| ● | overall fluctuations in U.S. equity markets; and | |
| ● | other factors that may be unanticipated or out of our control. |
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus includes forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical facts contained in this Prospectus, including statements regarding our future financial position, business strategy and plans, objectives of management for future operations, and statements related to the expected effects on our business on our business from the COVID-19 pandemic, and other similar matters, are forward-looking statements. The words “believe,” “may,” “estimate,” “continue,” “anticipate,” “intend,” “should,” “plan,” “expect,” and similar expressions, as they relate to us, are intended to identify forward-looking statements. We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy, and financial needs. These forward-looking statements are subject to a number of risks, uncertainties, and assumptions described in “Risk Factors” and elsewhere in this Prospectus.
Other sections of this Prospectus may include additional factors that could adversely affect our business and financial performance. Moreover, we operate in a highly regulated, very competitive, and rapidly changing environment. New risk factors emerge from time to time and it is not possible for our management to predict all risk factors, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.
We undertake no obligation to update publicly or revise any forward-looking statements. You should not rely upon forward-looking statements as predictions of future events or performance. We cannot assure you that the events and circumstances reflected in the forward-looking statements will be achieved or will occur. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance, or achievements. We have an ongoing obligation to continually disclose material future changes in our Company and its operations.
MARKET, INDUSTRY AND OTHER DATA
Unless otherwise indicated, information contained in this Prospectus concerning our industry and the market in which we operate, including our market position, market opportunity and market size, is based on information from various sources such as industry publications, on assumptions that we have made based on such data and other similar sources and on our knowledge of the markets for our products. These data involve a number of assumptions and limitations.
In addition, projections, assumptions, and estimates of our future performance and the future performance of the industry in which we operate is necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the section entitled “Risk Factors” and elsewhere in this Prospectus. These and other factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.
USE OF PROCEEDS
This Prospectus relates to shares of our Common Stock that may be offered and sold from time to time by the Selling Stockholders. We will receive no proceeds from the sale of shares of Common Stock by the Selling Stockholders in this Offering. The proceeds from the sales will belong to the Selling Stockholders. However, we will receive proceeds from the sale of the Put Shares to Mast Hill pursuant to the EPA and from the exercise of the Warrants held by the Selling Stockholders if they are exercised for cash and not on a “Cashless” basis.
We intend to use the proceeds that we may receive for general corporate purposes and working capital requirements. There can be no assurance that we will sell any of the Put Shares or that the Warrants will be exercised. We cannot provide any assurance that we will be able to draw down any or all of the Maximum Commitment Amount, such that the proceeds received would be a source of financing for us.
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THE SELLING STOCKHOLDERS
This Prospectus relates to the possible resale from time to time by the Selling Stockholders named in the table below of any or all of the Common Stock that has been or may be issued by us to the Selling Stockholders under the EPA. We are registering the Common Stock pursuant to the provisions of the Registration Rights Agreement entered into with Mast Hill in order to permit Mast Hill to offer its shares for resale from time to time.
The table below presents information regarding the Selling Stockholders and the Common Stock they may offer from time to time under this Prospectus. This table is prepared based on information supplied to us by the Selling Stockholders and reflects holdings as of May 15, 2023. As used in this Prospectus, the term “Selling Stockholders” includes each Selling Stockholder, and any donees, pledgees, transferees, or other successors-in-interest selling shares received after the date of this Prospectus from such Selling Stockholders as a gift, pledge, or other non-sale related transfer. The number of shares in the column “Maximum Number of Common Stock to be Offered Pursuant to this Prospectus” represents all of the Common Stock that each Selling Stockholder may offer under this Prospectus. Each Selling Stockholder may sell some, all or none of its shares offered by this Prospectus. We do not know how long any Selling Stockholder will hold its shares before selling them, and we currently have no agreements, arrangements, or understandings with the Selling Stockholders regarding the sale of any of the shares.
Beneficial ownership is determined in accordance with Rule 13d-3(d) promulgated by the SEC under the Exchange Act and includes Common Stock with respect to which the Selling Stockholders have voting and investment power. With respect to the Equity Line with Mast Hill, because the purchase price of the Common Stock issuable under the EPA is determined on each settlement date, the number of shares that may actually be sold by us under the EPA may be fewer than the number of shares being offered by this Prospectus. The fourth column assumes the sale of all of the shares offered by the Selling Stockholders pursuant to this Prospectus.
| Name of Selling Stockholders | Number of Shares Owned Prior to Offering | Maximum Number of Shares to be Offered for Resale Pursuant to this Prospectus | Number
of Shares Beneficially Owned After Offering(3) | Percent of the Class to be Owned After Offering | ||||||||||||
| Mast Hill Fund, L.P. | 1,047,780,139 | (1) | 698,224,583 | (2) | 349,555,556 | 10.88 | (3) | |||||||||
| J.H. Darbie & Co. | 4,055,556 | (4) | 4,055,556 | (5) | 0 | 0 | ||||||||||
| (1) | In addition to the 62,900,000 shares it already owns of record and beneficially, this number represents (a) 642,224,583 shares of our Common Stock (the Put Shares) offered for resale by Mast Hill, which shares are issuable by the Company pursuant to the EPA; (b) 105,555,556 shares of our Common Stock issuable upon conversion of a convertible promissory note issued to Mast Hill in March 2023; (c) 57,500,000 shares of our Common Stock issuable upon conversion of a convertible promissory note issued to Mast Hill; in April 2023; (d) an aggregate of 123,600,000 shares of our Common Stock issuable upon exercise of common stock purchase warrants that we granted to Mast Hill in connection with the two above-referenced convertible promissory notes; and (e) 56,000,000 shares of our Common Stock issuable upon exercise of the EPA Warrant. |
| (2) | 698,224,583 shares of our Common Stock constitute all of the shares being offered by Mast Hill pursuant to this Prospectus. |
| (3) | Notwithstanding the number of shares of Common Stock and the percentage ownership thereof disclosed in this table, each of the convertible promissory notes and the warrants held by Mast Hill is subject to an “exercise blocker,” such that Mast Hill cannot convert any portion of the promissory notes or exercise any portion of the warrants into the underlying shares of our Common Stock, if such action would result in Mast Hill and its affiliates holding more than 4.99% of the then-issued and outstanding shares of our Common Stock following such conversion or exercise, as applicable. |
| (4) | Represents the 4,055,556 shares of our Common Stock issuable upon exercise of the Placement Warrant by Darbie. |
| (5) | 4,055,556 shares of our Common Stock constitute all of the shares being offered by Darbie pursuant to this Prospectus. |
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EQUITY PURCHASE AGREEMENT
On March 30, 2023, we entered into an Equity Purchase Agreement (the “EPA”) with Mast Hill Fund, L.P. (“Mast Hill”). Although we are not required to sell shares under the EPA, the EPA gives us the option to present “Put Notices” to Mast Hill, up to $5,000,000 worth of our Common Stock over the period ending twenty-four months following the Execution Date of the EPA. The $5,000,000 was stated as the total amount of available funding in the EPA because this was the maximum amount that Mast Hill agreed to offer us in funding. There is no assurance that the market price of our Common Stock will increase in the future.
The purchase price of the Common Stock will be equal to 90% of the Market Price of the Company’s Common Stock on the Principal Market based on the average of the two (2) lowest volume weighted average prices of the Company’s Common Stock on the Principal Market during the seven (7) Trading Days immediately preceding the Put Date of the respective Put Notice for the duration of the Offering; there is an ownership limit for Mast Hill of 4.99%.
Upon the terms and conditions set forth in the EPA, the Company has the right, but not the obligation, to direct Mast Hill, by delivery to Mast Hill of a Put Notice from time to time, to purchase shares of our Common Stock (i) in a minimum amount not less than $25,000.00 and (ii) in a maximum amount up to the lesser of (a) $500,000.00 or (b) 150% of the Average Daily Trading Value of our Common Stock (as defined in the EPA). At any time and from time to time through and including March 30, 2025 (the “Commitment Period”), except as provided in the EPA, the Company may deliver a Put Notice to Mast Hill.
The Commitment Period commences on the Execution Date, and ends on the earlier of (i) the date on which Mast Hill shall have purchased Put Shares pursuant to the EPA equal to the Maximum Commitment Amount, (ii) March 30, 2025, (iii) written notice of termination by the Company to Mast Hill (which shall not occur during any Valuation Period or at any time that the Investor holds any of the Put Shares), (iv) the Registration Statement for the Put Shares is no longer effective after its initial effective date, or (v) the date that, pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any person commences a proceeding against the Company, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company makes a general assignment for the benefit of its creditors.
On March 30, 2023, we also granted a Common Stock Purchase Warrant (the “EPA Warrant”) to purchase up to an aggregate of 56,000,000 shares (the “EPA Warrant Shares”) of our Common Stock. The EPA Warrant has a five-year term and is immediately exercisable at an exercise price of $0.0045 per share, subject to adjustment and is exercisable by the then-holder on a “cashless” basis. The EPA Warrant contains an adjustment provision that, subject to certain exceptions, reduces the exercise price if we issue shares of Common Stock or common stock equivalents at a price lower than the then-current exercise price of the EPA Warrant. Any stock splits, reverse stock splits, recapitalizations, mergers, combinations and asset sales, stock dividends, and similar events will result in an equitable adjustment of the exercise price of the EPA Warrant and, in certain circumstances, the number of EPA Warrant Shares. The EPA Warrant is subject to an “exercise blocker,” such that the Investor cannot exercise any portion of the EPA Warrant that would result in the Investor and its affiliates holding more than 4.99% of the then-issued and outstanding shares of Common Stock following such exercise (excluding, for purposes of such determination, shares of the Common Stock issuable upon exercise of the EPA Warrant or Put Notice that had not then been exercised, respectively).
Mast Hill is not permitted to engage in short sales involving our Common Stock during the Commitment Period. In accordance with Regulation SHO however, sales of our Common Stock by Mast Hill after delivery of a Put Notice of such number of shares reasonably expected to be purchased by Mast Hill under a Put will not be deemed a short sale.
As we draw down on the Equity Line pursuant to the EPA, shares of our Common Stock will be sold into the market by Mast Hill. The sale of these shares could cause our stock price to decline. In turn, if our stock price declines and we issue more puts, more shares will come into the market, which could cause a further drop in our stock price. You should be aware that there is an inverse relationship between the market price of our Common Stock and the number of shares to be issued under the equity line of credit. We have no obligation to utilize the full amount available under the Equity Line.
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PLAN OF DISTRIBUTION
As of the date of this Prospectus, we have 2,226,940,557 shares of Common Stock issued and outstanding. We are registering the resale of 642,224,583 shares of Common Stock issuable under the Equity Line in the amount of $5,000,000 established by the EPA dated March 30, 2023, between the Company and Mast Hill.
We are also registering 56,000,000 shares of Common Stock that can be purchased pursuant to the EPA Warrant granted to Mast Hill on March 30, 2023, and that can be exercised immediately to purchase shares of Common Stock at $0.0045 per share. Once we are presented with an exercise notice, we are obligated to issue a corresponding number of shares pursuant to the exercise notice.
Additionally, we are registering 4,055,556 shares of Common Stock that can be purchased pursuant to the Warrant granted to Darbie on July 28, 2022, and that can be exercised immediately to purchase shares of Common Stock at $0.0054 per share. Once we are presented with an exercise notice, we are obligated to issue a corresponding number of shares pursuant to the exercise notice.
The Selling Stockholders of the shares of our Common Stock and any of their respective pledgees, assignees, and successors-in-interest may, from time to time, sell any or all of its respective shares of our Common Stock on the Pink Market or any other stock exchange, market, or trading facility on which the shares are traded or in private transactions. These sales may be at fixed or negotiated prices. The Selling Stockholders may use any one or more of the following methods when selling shares:
| ● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | |
| ● | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; | |
| ● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; | |
| ● | an exchange distribution in accordance with the rules of the applicable exchange; | |
| ● | privately negotiated transactions; | |
| ● | broker-dealers may agree with any Selling Stockholder to sell a specified number of such shares at a stipulated price per share; | |
| ● | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; | |
| ● | a combination of any such methods of sale; or | |
| ● | any other method permitted pursuant to applicable law. |
The Selling Stockholders may also sell shares under Rule 144 under the Securities Act, if available, rather than under this Prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 2121; and, in the case of a principal transaction, a markup or markdown in compliance with FINRA Rule 2121.
In connection with the sale of shares of our Common Stock or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of our Common Stock in the course of hedging the positions they assume. The Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities, which require the delivery to such broker-dealer or other financial institution of shares offered by this Prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this Prospectus (as supplemented or amended to reflect such transaction).
If we fail to maintain an effective system of internal control over financial reporting, we may not be able to accurately report our financial results or prevent fraud. As a result, stockholders could lose confidence in our financial and other public reporting, which would harm our business and the trading price of our shares of Common Stock.
The Selling Stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. The Selling Stockholders have informed us that they do not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute our Common Stock.
We are required to pay certain fees and expenses incurred by us incident to the registration of the shares. We have agreed to indemnify the Selling Stockholders against certain losses, claims, damages, and liabilities, including liabilities under the Securities Act.
Because the Selling Stockholders may be deemed to be an “underwriter” within the meaning of the Securities Act, it will be subject to the Prospectus delivery requirements of the Securities Act, including Rule 172 thereunder. In addition, any securities covered by this Prospectus that qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than under this Prospectus. There is no underwriter or coordinating broker acting in connection with the proposed sale of the shares registered by this Prospectus by the Selling Stockholders.
In order to comply with the applicable securities laws of certain states, the securities will be offered or sold in those states only if they have been registered or qualified for sale; an exemption from such registration, or if qualification requirement is available and with which we have complied. In addition, and without limiting the foregoing, we will be subject to applicable provisions, rules, and regulations under the Exchange Act with regard to security transactions during the period of time when their Registration Statement is effective.
We are subject to Regulation M of the Securities Exchange Act of 1934. Regulation M governs activities of underwriters, issuers, selling security holders and others in connection with offerings of securities. Regulation M prohibits distribution participants and their affiliated purchasers from bidding for, purchasing or attempting to induce any person to bid for or purchase the securities being distributed. In connection with the offer and sale of the shares being offered, our officers and directors will comply with Regulation M.
The Selling Stockholders will determine the price it may sell the Securities offered by this Prospectus, and such sales may be made at fixed prices, market prices prevailing at the time of sale, varying prices determined at the time of sale, or at negotiated prices. We will not receive any proceeds from the sale of the Securities by the Selling Stockholders.
| 20 |
MARKET PRICE AND DIVIDEND INFORMATION
Market Information
As of May 15, 2023, our Common Stock is quoted on the Pink Market under the symbol “KGKG.”
The table below sets forth the high and low closing prices of our Common Stock during the periods indicated, as reported by the OTCM. The market quotations reflect inter-dealer prices, without retail mark-up, markdown, or commissions and may not reflect actual transactions.
| 2023 | 2022 | 2021 | ||||||||||||||||||||||
| Price Range | Price Range | Price Range | ||||||||||||||||||||||
| High | Low | High | Low | High | Low | |||||||||||||||||||
| First Quarter | $ | 0.0082 | $ | 0.0036 | $ | 0.0100 | $ | 0.0033 | $ | 0.0523 | $ | 0.0260 | ||||||||||||
| Second Quarter (1) | $ | 0.0044 | $ | 0.0025 | $ | 0.0296 | $ | 0.0072 | $ | 0.0337 | $ | 0.0231 | ||||||||||||
| Third Quarter | $ | N/A | $ | N/A | $ | 0.0080 | $ | 0.0052 | $ | 0.0245 | $ | 0.0150 | ||||||||||||
| Fourth Quarter | $ | N/A | $ | N/A | $ | 0.0061 | $ | 0.0021 | $ | 0.0168 | $ | 0.0052 | ||||||||||||
| (1) | Second Quarter 2023 price range through May 15, 2023. |
The closing price of our Common Stock as reported on May 15, 2023, was $0.0027 per share.
Holders
On May 15, 2023, there were approximately 99 holders of record of our Common Stock. This does not include an indeterminate number of persons who hold our Common Stock in brokerage accounts and otherwise in “street name.” As of such date, 2,226,940,557 shares of our Common Stock were issued and outstanding.
Dividends
We currently intend to retain all available funds and any future earnings to support our operations and finance the growth and development of our business. We do not intend to pay cash dividends on our Common Stock for the foreseeable future. Any future determination related to dividend policy will be made at the discretion of our Board.
Rule 144 – Generally
In general, under Rule 144 of the Securities Act, as currently in effect, a person (or persons whose shares are required to be aggregated), who is not our affiliate at any time during the preceding three months, and who has beneficially owned the relevant shares of our Common Stock for at least six months, including the holding period of any prior owner other than one of our affiliates, would be entitled to sell an unlimited number of shares of our Common Stock into the public markets; provided, that current public information about us is available and, after owning such shares for at least one year, including the holding period of any prior owner other than one of our affiliates, would be entitled to sell an unlimited number of shares of our Common Stock into the public markets without restriction.
A person who may be deemed an “affiliate” of us or who was our affiliate at any time during the preceding three months, and who has beneficially owned restricted securities for at least six months, including the affiliates, is entitled to sell within any three-month period, a number of shares that does not exceed the greater of: (1) 1% of the then-outstanding shares of our Common Stock, which equals approximately 2,226,940,557 shares based on the number of shares of our Common Stock outstanding as of May 15, 2023, or (2) if and when our Common Stock is listed on a national securities exchange, the average weekly trading volume of our Common Stock during the four calendar weeks preceding the date on which notice of such sale was filed under Rule 144.
Sales of shares held by our affiliates that are not “restricted” are subject to such volume limitations, but are not subject to the holding period requirement. Sales under Rule 144 by our affiliates are also subject to certain requirements as to the manner of sale, notice, and availability of current public information about us. A person who is not deemed to have been our affiliate of our Company at any time during the 90 days preceding a sale by such person, and who has beneficially owned the restricted shares for at least one year, is entitled to sell such shares under Rule 144 without regard to any of the restrictions described above. We cannot estimate the number of shares of our Common Stock that our existing stockholders will elect to sell under Rule 144.
Rule 144 – Restrictions on the Use of Rule 144 by Shell Companies or Former Shell Companies
Because we may be deemed previously to have been a “shell company,” under such circumstances sales of our securities pursuant to Rule 144 under the Securities Act may not be made unless, among other things, at the time of a proposed sale, we are subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act and have filed all reports and other materials required to be filed by Section 13 or 15(d) of the Exchange Act, as applicable, during the preceding 12 months, other than Form 8-K reports. Because, as a possible former shell company, the reporting requirements of Rule 144(i) will apply regardless of holding period, restrictive legends on certificates for shares of our Common Stock cannot be removed except in connection with an actual sale that is subject to an effective registration statement under, or an applicable exemption from the registration requirements of, the Securities. Because under such circumstances our unregistered securities may not be sold pursuant to Rule 144 unless we continue to meet such requirements, any unregistered securities we issue will have limited liquidity unless we continue to comply with such requirements.
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DESCRIPTION OF BUSINESS
We were originally incorporated as Class-ique Talent Agency, Inc. (“CTA”), under the laws of the State of Nevada in March 1997. In October 2001, CTA entered into an Agreement and Plan of Reorganization (the “Reorganization Plan”) with PhaserTek, Inc., a Delaware corporation (“PhaserTek”), pursuant to which CTA acquired all of the outstanding shares of common stock of PhaserTek in exchange for shares of common stock of CTA, resulting in PhaserTek becoming a wholly-owned subsidiary of CTA. In accordance with the terms of the Reorganization Plan, CTA changed its name to PhaserTek Medical, Inc. (“PhaserTek Medical”) in 2002. In 2004, PhaserTek Medical changed its name to Union Equity, Inc. (“UE Nevada”). For purposes of changing UE Nevada’s state of incorporation, UE Nevada formed Union Equity, Inc. in the State of Delaware (“UE Delaware”) in 2004. Pursuant to Articles of Merger, in December 2004, UE Nevada merged with and into UE Delaware, the surviving company. In July 2015, we changed our name to Kona Gold Solutions, Inc. In October 2020, we changed our name to Kona Gold Beverage, Inc.
We have three wholly-owned subsidiaries: (i) Kona Gold, LLC (“Kona”), a Delaware limited liability company formed in August 2015; (ii) HighDrate, LLC (“HighDrate”), a Florida limited liability company formed in January 2018; and (iii) Gold Leaf Distribution LLC (“Gold Leaf”), a Florida limited liability company formed in January 2019.
| ● | Kona focuses on the development and marketing of functional and better-for-you beverages. |
| ○ | Its Ooh La Lemin Lemonades are better-for-you, low calorie beverages with non-sparkling and sparkling offerings. Ooh La Lemin Lemonades have no added sugar, are low in carbohydrates, and have only 15 calories for Ooh La Lemin, and only 10 calories for Ooh La Lemin Sparkling. Ooh La Lemin is available in four flavors: (i) Original Lemonade, (ii) Blue Raspberry Lemonade, (iii) Peach Lemonade, and (iv) Strawberry Lemonade. Ooh La Lemin Sparkling is available in six flavors: (i) Original, (ii) Cucumber Watermelon, (iii) Blue Raspberry, (iv) Pineapple Mango, (v) Citrus Splash, and (vi) Huckleberry. | |
| ○ | Its Kona Gold Energy Drinks are low-to-zero calorie functional beverages that are high in B vitamins, amino acids, and omegas. Organic hemp seed protein powder differentiates Kona Gold Energy Drinks from other brands. It is considered to be a complete protein and is compatible with a variety of diets, including vegan and Kosher. Kona Gold Energy Drinks are available in six flavors: (i) Classic, (ii) Candy Apple, (iii) Cherry Vanilla, (iv) Cotton Candy, (v) Platinum, and (vi) Pink Grapefruit. |
| ● | HighDrate focuses on the development and marketing of CBD-infused energy waters. HighDrate CBD-infused energy waters are functional beverages that contain zero calories and zero sugar. HighDrate CBD-infused energy waters are geared to the fitness and wellness markets. Our CBD-infused energy waters are powered by Alkame’s patented technology, which provides premium oxygenated alkaline water with natural antioxidants. HighDrate CBD-infused energy waters are available in six flavors: (i) Blue Island Punch, (ii) Georgia Peach, (iii) Kiwi Strawberry, (iv) Sour Apple, (v) Tropical Coconut, and (vi) Watermelon. | |
| ● | Gold Leaf focuses on the distribution of premium beverages, such as alkaline waters, beverages for kids, energy drinks, fruit-flavored sodas, low-carb lemonade, healthy aloe juice drinks, in key markets, all of which complement our current product offerings. These markets include over 1,500 accounts in grocery stores, convenience stores, smoke shops, vape shops, and specialty stores located in Florida and South Carolina. |
Business Overview
We are a lifestyle company that specializes in developing premium beverage products in the functional and better-for-you markets. Focusing on better-for-you low-calorie and low-carb lemonade, low-calorie and high-in-vitamins energy drinks, and CBD-infused energy water markets, we believe that we have positioned our brands as premium leaders in their respective markets.
We currently sell Kona, HighDrate, and Ooh La Lemin through resellers, our websites, leading ecommerce platforms, and distribution partners in 18 states. Our products are available in a wide variety of retail locations, including convenience stores, grocery stores, and specialty stores. Gold Leaf distributes our own beverage brands, as well as products purchased for resale from several other beverage manufacturers. These premium beverages are available in more than 1,500 grocery stores, convenience stores, smoke shops, vape shops, and specialty stores.
Product Lines
Within our Company, we market three distinct product lines: low-carb and low-calorie lemonades, energy drinks, and CBD-infused energy water, with our trademark logos.
Ooh La Lemin is a better-for-you lemonade that has no added sugar, is low in carbohydrates, and has only 15 calories and is available in four flavors: (i) Original Lemonade, (ii) Blue Raspberry Lemonade, (iii) Peach Lemonade, and (iv) Strawberry Lemonade. Ooh La Lemin Sparkling is a lemonade that has no added sugar, is low in carbohydrates, and has only 10 calories and is available in six flavors: (i) Original, (ii) Cucumber Watermelon, (iii) Blue Raspberry, (iv) Pineapple Mango, (v) Citrus Splash, and (vi) Huckleberry.
Kona Gold Energy Drinks are zero-to-low calorie beverages available with no added sugar or with pure sugar cane. These energy drinks are infused with organic hemp protein powder and contain essential vitamins and ingredients that give consumers a natural energy boost. Hemp protein contains no gluten and is compatible with a variety of diets, including vegan and Kosher. Our energy drinks are available in six flavors: (i) Classic, (ii) Candy Apple, (iii) Cherry Vanilla, (iv) Cotton Candy, (v) Platinum, and (vi) Pink Grapefruit.
HighDrate CBD-infused energy water is great tasting, zero calorie, no added sugar, and powered by Alkame’s patented technology, which uses its advanced water treatment to create a premium oxygenated alkaline water with natural antioxidants. Alkame believes, based on a double-blind placebo, peer-backed research project that it conducted, its technology can boost the immune system and physical performance. HighDrate CBD-infused energy water contains 80 mg of caffeine and 10 mg of CBD. We believe that CBD aids the body’s endocannabinoid system in neuroprotection, stress recovery, immune balance, and homeostatic regulation. HighDrate CBD-infused energy water is available in six flavors: (i) Blue Island Punch, (ii) Georgia Peach, (iii) Kiwi Strawberry, (iv) Sour Apple, (v) Tropical Coconut, and (vi) Watermelon.
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Distributors and Resellers
We sell our Ooh La Lemin Lemonades, Kona Gold Energy Drinks, and HighDrate CBD-infused energy waters primarily to beverage distributors and resellers, retail grocery, smoke shops and specialty stores, wholesalers, merchandisers, convenience stores, and beverage services. We focus on sales to consumers in the functional and better-for-you beverages sector that lead an active lifestyle and need a balance that will meet their needs of providing their minds and bodies with a focused boost and quick recovery. Our beverages support consumers who lead a healthy lifestyle based on choices made about daily habits by providing products that provide a healthy alternative in their beverage choices. A healthy lifestyle can result in consumers feeling fit and energetic and can reduce their risk for disease. We believe our products help consumers stay hydrated and revitalized, aid in stamina, and allow for faster recovery.
We also distribute premium beverages and snacks in key markets through our wholly-owned subsidiary, Gold Leaf. Gold Leaf’s markets include over 1,500 accounts in grocery stores, convenience stores, smoke shops, vape shops, and specialty stores located in Florida and South Carolina. In addition to distributing the Company’s own beverage products, the Gold Leaf also distributes other products, including alkaline waters, beverages for kids, energy drinks, fruit flavored sodas, low-carb lemonade, healthy aloe juice drinks, and CBD-infused products, all of which complement our current product offerings.
Industry Overview
Our distributors and resellers and consumers span several industries, including better-for-you lemonades, energy drinks, hemp or CBD drinks, and health and fitness.
Better-for-you Lemonades
The lemonade market was valued at $13 billion in 2021 and the total revenue is expected to grow at an annual, compounded rate of 6.9% from 2022 to 2029, reaching in excess of $22 billion. Lemonade is a natural source of vitamin C and other nutritional benefits in the diet. Lemonade has many health benefits for consumers, such as helping digestion, preventing kidney stones, supporting weight loss, and preventing cancer. For many years, manufacturers have focused on developing innovative products. In terms of new ingredients or new technologies, due to the tendency to appropriate health and welfare, market demand has increased.
The top five countries in the lemonade drinks market in terms of value and volume are the U.S., Brazil, U.K., Germany, and China. The market for lemonade drinks is expanding in North America as a result of rising customer demand for natural beverages that are considered healthy.
Energy Drinks
The energy drink industry continues grow every year with an estimated $14 billion in sales in the United States in 2021, and sales are expected to reach $53 billion globally. The energy drink by the name “Red Bull” dominated the industry in 2020, comprising approximately 25% of the energy drink market. In 2020, an energy drink by the name of “Monster,” market share was approximately 15%.
The introduction of “Red Bull” in 1997, and the many other energy drinks that followed in its footsteps, has helped turn the energy drink industry into a significant choice of consumers in the overall beverage industry. The rise of “Red Bull” and “Monster,” which accounted for 40 percent of the energy drink sales in the United States in 2020, has resulted in the energy drink industry rivaling the coffee industry. Energy drinks have an average of 200 mg of caffeine, which is equivalent to about two cups of coffee. The liquid and dry coffee industry accounted for approximately $102.5 billion in sales in 2019, which grew from $4.1 billion dollars in 2003. Starbucks Corporation was the sales leader of the coffee industry with approximately 40% of the market share in 2018, followed by Dunkin’ Brands Inc. with 40% of the market share in 2019.
Hemp or CBD Drinks
The Health Impact Assessments (HIA) reported that the 2018 Farm Bill poised to restore industrial hemp to nationwide legal production for the first time since World War II, offering vast opportunities for the industry and investment in a market expected to triple by 2022. With the removal of hemp from federal prohibition under the Controlled Substances Act (CSA), the total hemp industry is expected to grow 18.4% from 2018 through 2022. Hemp Business Journal estimates that the hemp-derived CBD market will grow to a $1.3 billion market by 2022. The U.S. hemp market, which includes CBD, textiles, and hemp seed, is expected to lead the global market in 2020, representing approximately 32% of the global market. This growth is fueled by the public’s growing demand for CBD products. The Farm Bill represents a sweeping change in the balance of power in global hemp markets. The United States has historically been an importer of hemp products from Canada, Europe, and China. Now, with the Farm Bill as its tailwind, the U.S. hemp market will expand to lead the global hemp industry by 2020, representing 32% of a 5.7 billion global market in 2020. As the U.S. hemp industry matures, it will transition from being a seed, textile, and industrial product importer to a global exporter. The Farm Bill aims the industry to accelerate and establish itself as a global hemp powerhouse led by hemp-derived CBD.
Health and Fitness
The health and fitness industry, which includes food and beverages, saw consumer awareness drive trends to health and wellness, plant-based, and clean-label products in 2022. We believe that conscious consumerism will continue to drive these trends and that consumers are making food and beverage choices based on their personal definition of health. Further, we believe that consumers are looking for healthy alternatives to obtain relief from pain and anxiety, and that CBD has become a viable option because it balances the mind and body. Women have traditionally been early adapters of health and wellness trends and CBD-infused products, food, and beverages have been recognized by women to have a connection between happiness and health.
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Competition
The beverage industry is highly competitive. The principal areas of competition are pricing, packaging, and developing new products and flavors, as well as highly intensive promoting and marketing strategies. Our products compete with a wide range of drinks produced by a relatively large number of companies, many of which have substantially greater financial, marketing, and distribution resources than we do. Important factors affecting our ability to compete successfully include brand and product image, taste and flavor of products, trade and consumer promotions, rapid and effective development of new and unique cutting-edge products, attractive and different packaging, brand exposure, and marketing, as well as pricing. We also rely on our beverage distributors to allocate more attention to our products than those of our competitors, provide stable and reliable distribution, and secure adequate shelf space in retail outlets. Competitive pressures in the “alternative,” energy, coffee, and “functional” beverage categories could cause our products to maintain or to lose market share or we could experience price erosion, which could have a material adverse effect on our business and results of operations.
Our energy products have entered an already crowded market, and we aware of both our strengths and shortcomings as we compete in the energy drink market. Our energy products are part of niche industry that includes CBD, hemp seed, organic, and lifestyle, which we believe separates our energy drinks from others in the market. Within the global CBD beverage market, sales are expected to grow at a faster rate than conventional energy drinks. In 2020, the CBD beverage market was valued at $3.4 billion, and is expected to reach $14.6 billion by 2026 with a compounded annual growth rate of 27.5%. Combined with the THC-infused beverage market, the CBD Beverage Market is expected to reach $1.4 billion in the United States alone by 2025. The Alkaline Water Company, Inc. (NASDAQ and TSXV: WTER), HEXO Corp. (NYSE and TSX: HEXO), Tilray, Inc. (NASDAQ: TLRY), and Canopy Growth Corporation (NYSE: CGC; TSX: WEED) are prominent players in the CBD beverage market.
We compete not only for consumer preference, but also for maximum marketing and sales efforts by multi-brand licensed bottlers, brokers, and distributors and resellers, many of which have a principal affiliation with competing companies and brands. Our products compete with all liquid refreshments and in many cases with products of much larger and, in many cases better financed competitors. Our energy drinks compete directly with Red Bull, Monster, and Rockstar. We also compete with smaller companies.
Co-Packing
We do not directly produce our hemp-infused energy drinks, HighDrate CBD-infused energy waters, or Ooh La Lemin, but instead outsource the production of our products with our specifications to third-party bottlers and co-packers. We use co-packers to produce our beverage products. The co-packers are responsible for the production and packaging of the finished products, including the procurement of all required ingredients and packaging materials. We have partnered with multiple co-packers in the United States to provide fulfillment of our products from quality, low-cost sources. These partners are integral to our success, providing, we believe, the ability to scale as needed. We store all of our products, except for Ooh La Lemin, in our warehouses located in Greer, South Carolina and Melbourne, Florida. Ooh La Lemin is stored in our co-packers’ warehouse.
Our ability to estimate demand for our products is imprecise, particularly with new products, and may be less precise during periods of rapid growth, particularly in new markets. If we materially underestimate demand for our products, are unable to secure sufficient ingredients or raw materials, including, but not limited to, aluminum cans, plastic bottles, caps, labels, flavors, juice concentrates, coffee, tea, dietary ingredients, other ingredients, and certain sweeteners, are unable to procure adequate packing arrangements, or are unable adequately or timely to ship our products, we might not be able to satisfy demand on a short-term basis. That short-term supply inability may also result in a longer-term reduction in orders for our products.
Raw Materials and Suppliers
The raw materials used in the production of our products are obtained by our co-packers and consist primarily of materials such as the flavors, caffeine, sugars or sucralose, taurine, vitamins, CBD, and hemp seed protein contained in our beverages, the bottles in which our beverages are packaged, and the labeling on the outside of our beverages. These principal raw materials are subject to price and availability fluctuations. We currently rely on a few key co-packers, which in turn rely on a few key suppliers. We continually endeavor to have back-up co-packers, which co-packers would in turn depend on their third-party suppliers to supply certain of the flavors and concentrates that are used in our beverages. We are also dependent on these co-packers to negotiate arrangements with their existing suppliers that would enable us to obtain access to certain of such concentrates or flavor formulas under certain extraordinary circumstances. Additionally, in a limited number of cases, our co-packers may have contractual restrictions with their suppliers or our co-packers may need to obtain regulatory approvals and licenses that may limit our co-packers’ ability to enter into agreements with alternative suppliers. Contractual restrictions in the agreements we have with certain distributors may also limit our ability to enter into agreements with alternative distributors. We believe that a satisfactory supply of co-packers will continue to be available at competitive prices, although there can be no assurance in this regard. With respect to Gold Leaf’s operations, we continually endeavor to contract with additional beverage vendors to ensure we have adequate inventory. We believe that a satisfactory supply of vendors will continue to be available at competitive prices, although there can be no assurance in this regard.
Quality Control
All quality control is handled by our co-packers. To date, we have not had any quality issues with our products. In the future, if any quality issues were to arise, we expect that we would resolve them with the specific co-packer involved or engage a new co-packer for our products.
Distribution
Distribution patterns in the energy drink and water industries are such that large buying groups dictate what products are used in their channels. Working with these large buying groups could open large distribution channels that could potentially supply our product offerings in several market segments. We have distribution agreements with each distributor with which we partner that distributes our products. Our distribution agreements are for a one-year term and typically automatically renews unless the distributor or we terminate the agreement. We ship product directly from our distribution center in South Carolina, our warehouse in Florida, or directly from our co-packers to our distribution partners in the United States. Our distributors consist of state-wide tier 1 distributors and regional small-to-medium size distributors.
Business Strategy
We have pursued specific and definable market segments with a multi-tiered, multi-channel approach. We have leveraged our products with direct sales and a distribution strategy using established beverage distributors. We are pursuing direct-ship opportunities, such as grocery stores and convenient stores, which would allow us to ship product to one location where the direct-ship store could then self-distribute our product to its multiple retail locations. We also continue to focus on our online presence by selling our products on popular e-commerce websites, such as Amazon.com, where we ship bulk product to its warehouse and Amazon handles all product fulfillment. Finally, we operate three e-commerce websites, where we sell directly to consumers in the United States. We continue to look to online retail markets and additional established distributors for revenue growth.
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Marketing Strategy
Our sales and marketing strategy for all of our beverage products is to focus on developing brand awareness through image enhancing programs and product samplings. We use our branded vehicles and other promotional vehicles at events, where we offer samples of our products to consumers. We utilize “push-pull” methods to enhance shelf and display space exposure in sales outlets (including racks, coolers, and barrel coolers), advertising, in-store promotions, and in-store placement of point-of-sale materials to encourage demand from consumers for our products. We collaborate with external marketing companies with diverse experience in product design, innovative thinking, transparency in decision-making, brand metrics, executive management, sales, and strategic marketing. We also support our brands with prize promotions, price promotions, competitions, endorsements from selected public and sports figures, sports personality endorsements, sampling and sponsorship of selected athletes, teams, series, bands, esports, causes, and events. In-store posters, outdoor posters, social media (directly and through our sponsorships and endorsements), and coupons may also be used to promote our brands.
We believe that one of the keys to success in the beverage industry is differentiation, making our brands and products visually appealing and distinctive from other beverages on the shelves of retailers. We review our products and packaging on an ongoing basis and, where practical, endeavor to make them different and unique. The labels and graphics for many of our products are redesigned and refreshed from time to time in order to maximize their visibility and identification, wherever they may be placed in stores, which we continue to reevaluate from time to time.
Promotion Strategy
Public relations and industry media have helped in our over-all market awareness plans. Our announcements of distribution partnerships have assisted in identifying new partners to distribute our products. We believe that announcing these partnerships in industry specific media help expand market awareness of our products. Feature articles and product reviews have also helped launch and support brand awareness. We include our products in industry specific buying guides, which has assisted in creating new relationship with distributors and retail outlets. Finally, we focus on creating products that we believe taste great and use attractive branding with our labels and other materials to catch consumers’ attention either in person at a retail store or online on a website.
Pricing Strategy
We strive to set the pricing of products at levels that are competitive with leaders in each respective market segment. We offer industry-standard discounts to distributors and retailers. We do not typically include quantity discounts but such discounts may be negotiated with major buying groups.
Sales Strategy
Our sales strategy is to exploit the low carb and low-calorie beverage market, along with the energy drink and water markets in 2023, with the groundwork that we laid out in 2021 and 2022. We believe that tradeshows will play a major role in creating market awareness of our brands. Currently, our lemonade and energy drinks are available for sale on Amazon.com, Inc.’s website, the largest internet-based retailer in the United States.
Our sales and marketing strategy for all our beverages is to focus our efforts on developing brand awareness through image enhancing programs and product sampling. We use our branded vehicles and other promotional vehicles at events where we offer samples of our products to consumers. We utilize “push-pull” methods to enhance shelf and display space exposure in sales outlets (including racks, coolers, and barrel coolers), advertising, in-store promotions, and in-store placement of point-of-sale materials to encourage demand from consumers for our products. We also support our brands with prize promotions, price promotions, competitions, endorsements from selected public and sports figures, sports personality endorsements, sampling and sponsorship of selected athletes, teams, series, bands, esports, causes, and events. In-store posters, outdoor posters, social media (directly and through our sponsorships and endorsements) and coupons may also be used to promote our brands.
We believe that one of the keys to success in the beverage industry is differentiation, making our brands and products visually appealing and distinctive from other beverages on the shelves of retailers. We review our products and packaging on an ongoing basis and, where practical, endeavor to make them different and unique. The labels and graphics for many of our products are redesigned and refreshed from time to time to maximize their visibility and identification, wherever they may be placed in stores, which we continue to reevaluate from time to time.
Intellectual Property
Our policy is to protect our intellectual property through, among other things, a combination of trade secrets, know-how, and trademarks. We have taken measures to protect our trade secrets and know-how, to the extent possible. We have three trademarks. One is for use of “Kona Gold Hemp Energy Drinks” registered in the Company’s name. The second trademark is for the use of “HighDrate” registered in the Company’s name. The third trademark is for the use of “OOH LA LEMIN” registered in the Company’s name. We do not have any patents.
Government Regulation and Compliance
The production, distribution, and sale in the United States of many of our products are subject to various U.S. federal and state regulations, including, but not limited to: the FDCA; the Occupational Safety and Health Act; various environmental statutes; the Safe Drinking Water and Toxic Enforcement Act of 1986 (“California Proposition 65”); and a number of other federal, state, and local statutes and regulations applicable to the production, transportation, sale, safety, advertising, marketing, labeling, and ingredients of such products.
Further, the regulation of food products in the United States, including products containing CBD, is complex, multi-faceted, and currently undergoing significant change. The FDA, the FTC, the USDA, and other regulatory authorities at the federal, state, and local levels extensively regulate, among other things, the research, development, testing, composition, production, import, export, labeling, storage, distribution, promotion, marketing, and post-market reporting of foods, including those that contain CBD. We, along with our third-party suppliers, co-packers, and third-party bottlers, are required to navigate a complex regulatory framework. The various federal, state, and local regulations regarding foods containing CBD are evolving, and we continue to monitor those developments. However, we cannot predict the timing, scope, or terms of any new or revised state, federal or local regulations relating to animal foods containing CBD.
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Regulation of Hemp and CBD
Historically, the DEA regulated CBD, pursuant to the CSA, which establishes a framework of controls over certain substances, depending on whether they are classified in one of five risk-based schedules. Schedule I substances are the most stringently controlled, as they have been determined to have a high potential for abuse, there are no currently accepted medical uses in the United States, and there is a lack of accepted safety for use of the substance under medical supervision. The CSA classifies “marijuana” as a Schedule I controlled substance and previously defined “marijuana” to include all parts of the cannabis plant, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound mixture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin (with a few exceptions, such as mature stalks of the plant and seeds incapable of germination). Pursuant to this definition, the DEA interpreted CBD to fall within the statutory definition of “marijuana” as a compound or derivative of the cannabis plant.
In February 2014, Congress enacted the 2014 Farm Bill to allow for the limited growth and cultivation of industrial hemp, which was defined as including all parts of the cannabis plant, whether growing or not, with a delta-9 THC concentration of not more than 0.3% on a dry weight basis. This statute also allowed, as permitted by state law, the growing and cultivating of industrial hemp under the auspices of a state agricultural pilot program and by institutions of higher education and state departments of agriculture.
In December 2018, Congress enacted the 2018 Farm Bill to allow more broadly for the production of hemp pursuant to state and tribal plans overseen by the USDA. The 2018 Farm Bill amended the statutory definition of “marijuana” under the CSA specifically to exclude “hemp”, which is defined as any part of the cannabis plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 THC concentration of not more than 0.3% on a dry weight basis. Under this definition, as long as CBD meets the statutory definition of “hemp,” then it is no longer a Schedule I controlled substance under the CSA. However, the 2018 Farm Bill did not modify the FDCA and specifically preserved the FDA’s authority to regulate products containing cannabis or cannabis-derived compounds, such as CBD, pursuant to the FDCA.
Under the 2018 Farm Bill framework, states and Native American tribes may submit to the USDA, through the relevant state department of agriculture, a plan under which the state or Native American tribe will monitor and regulate the production of industrial hemp. For those states that do not have an approved state plan, the production of hemp will be subject to a USDA established plan, although states retain the ability to prohibit hemp production within their borders. On October 31, 2019, the USDA issued the IFR to implement the 2018 Farm Bill, which established the required regulatory framework governing commercial hemp production in the United States. The USDA has begun reviewing hemp production plans submitted by state and tribal governments, although several states have informed the USDA that they will continue to operate under their 2014 Farm Bill pilot programs for the time being. Pursuant to the 2018 Farm Bill, the 2014 Farm Bill will remain effective until October 31, 2020 (one year after the date of publication of the IFR). In addition, no state or Native American tribe may prohibit the transportation or shipment of hemp or hemp products produced in accordance with the 2018 Farm Bill through the state or territory, as applicable. The USDA has interpreted this provision also to apply to interstate transportation of hemp that complies with the 2014 Farm Bill through October 31, 2020. Effective March 22, 2021, The USDA issued the final rule, which creates the U.S. Domestic Hemp Production Program. The program provides requirements for maintaining records about the land where hemp is produced, testing the levels of total delta-9 tetrahydrocannabinol, disposing of non-compliant plants, licensing hemp producers, and ensuring compliance under the new program. The Agricultural Marketing Service (AMS) has been delegated authority to administer the U.S. Domestic Hemp Production Program.
FDA Regulation of Foods
The FDA regulates foods under the FDCA and its implementing regulations. The FDCA defines “food” as articles used for food or drink for people or animals, which includes products that are intended primarily for nutritional use, taste, or aroma and the components of such products. The FDA also imposes certain requirements on foods relating to their composition, production, labeling, and marketing. Among other items, the facilities in which our products and ingredients are produced must register with the FDA, comply with cGMPs, and comply with a range of food safety requirements.
Although foods are not required to obtain premarket approval from the FDA, any substance that is added to or is expected to become a component of food must be used in accordance with a food additive regulation, unless it is generally recognized as safe (“GRAS”) under the conditions of its intended use. A food may be adulterated if it uses an ingredient that is neither GRAS nor an approved food additive, and that food may not be legally marketed in the United States. The FDA has confirmed that the use of cannabis or cannabis-derived compounds in food products is subject to these food additive requirements. At this time, there are no approved food additive petitions or regulations for any cannabis-derived food additive and, while the FDA has issued a “no questions” response to certain GRAS notifications for hemp seed products, these GRAS determinations do not encompass hemp and CBD products more generally.
Additionally, the FDCA prohibits the introduction or delivery for introduction into interstate commerce of any food that contains an approved drug for which substantial clinical investigations have been instituted and made public (unless certain exceptions apply). Under this prohibition, the FDA has stated that foods that contain CBD are adulterated because CBD is an active ingredient in an FDA-approved drug that was the subject of substantial clinical investigations before it was marketed as a food, and that none of the exceptions applies.
Although the FDA has stated that it interprets the FDCA to prohibit the introduction or delivery for introduction into interstate commerce of any food into which CBD has been added and has taken enforcement action against marketers of certain CBD products (some in collaboration with the FTC), the FDA is in the process of evaluating its regulatory approach to products containing cannabis and cannabis-derived compounds. The FDA has formed an internal working group to evaluate the issue and on May 31, 2019 held a public hearing to obtain scientific data and information about the safety, producing, product quality, marketing, labeling, and sale of products containing cannabis or cannabis-derived compounds. The hearing featured extensive discussion from a variety of stakeholders regarding the use of hemp and CBD in FDA-regulated products, including foods. At the hearing, FDA stated that, while it does not have a policy of enforcement discretion with respect to any CBD products, the agency’s biggest concern is the marketing of products that puts the health and safety of consumers at risk, such as those claiming to prevent, diagnose, mitigate, treat, or cure serious diseases in the absence of requisite drug approvals.
Further, on March 5, 2020, the FDA issued a report to Congress that was required under the 2018 Farm Bill in which the agency announced that it is currently evaluating a risk-based enforcement policy for CBD to provide more clarity to the industry and the public while the agency takes potential steps to establish a clear regulatory pathway. Although it is unclear whether or when the FDA will ultimately issue such an enforcement policy, the agency reemphasized that it will continue to take action against unlawful CBD products that pose a risk of harm to the public, including products with therapeutic claims; products that include contaminants such as heavy metals, THC, and other harmful substances; products associated with false statements, such as omitted ingredients and incorrect statements about the amount of CBD; and products marketed to vulnerable populations, such as infants and children.
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The labeling of foods is regulated by both the FDA and state regulatory authorities. FDA regulations require proper identification of the product, a net quantity statement, a statement of the name and place of business of the producer or distributor, and proper listing of all of the ingredients in order of predominance by weight. The FDA may classify some of our products differently than we do and may impose more stringent regulations, which could lead to possible enforcement action.
Under the FDCA, the FDA may require the recall of a food product if there is a reasonable probability that the product is adulterated or misbranded, and the use of or exposure to the product will cause serious adverse health consequences or death. In addition, food producers may voluntarily recall or withdraw their products from the market. If the FDA believes that our products are adulterated, misbranded, or otherwise marketed in violation of the FDCA, the agency may take further enforcement action, including:
| ● | restrictions on the production or marketing of a product; | |
| ● | required modification of promotional materials or issuance of corrective marketing information; | |
| ● | issuance of safety alerts, press releases, or other communications containing warnings or other safety information about a product; | |
| ● | warning or untitled letters; | |
| ● | product seizure or detention; | |
| ● | refusal to permit the import or export of products; | |
| ● | fines, injunctions, or consent decrees; and | |
| ● | imposition of civil or criminal penalties. |
Legislation may be introduced in the United States at the federal, state, and municipal level in respect of each of the subject areas. Public health officials and health advocates are increasingly focused on the public health consequences associated with obesity, especially as it affects children, and are seeking legislative change to reduce the consumption of sweetened beverages. There also has been an increased focus on caffeine content in beverages.
The FDA revised regulations with respect to serving size information and nutrition labeling on food and beverage products, including requirements to disclose the amount of added sugars in such products. In December 2018, the USDA promulgated regulations requiring that, by January 1, 2022, the labels of certain bioengineered foods must include a disclosure that the food is bioengineered. We may incur significant costs to alter our existing packaging materials to comply with these and other new regulations. Additionally, these new regulations may impact, reduce, or otherwise affect the purchase and consumption of our products by consumers.
Proposals to limit or restrict the sale and/or advertising of energy drinks to minors or persons below a specified age, to restrict the venues in which energy drinks can be sold, or to restrict the use of the Supplemental Nutrition Assistance Program (formerly food stamps) to purchase energy drinks have been raised or enacted in certain states, counties, and municipalities throughout the United States. Any such limitations or restrictions could adversely affect our business, financial condition, or results of operations.
We also may in the future be affected by other existing, proposed, and potential future regulations or regulatory actions, any of which could adversely affect our business, financial condition, and results of operations. Changes in government regulation, or failure to comply with existing regulations, could adversely affect our business, financial condition, and results of operations.
Environmental Compliance
Our facilities in the United States are subject to federal, state, and local environmental laws and regulations. Compliance with these provisions has not had, nor do we expect such compliance will have, any material adverse effect upon our capital expenditures, net income, or competitive position. We believe that we are not subject to any material costs for compliance with any environmental laws.
Insurance
Our products are subject to risks. While we have planned for these contingencies and have purchased insurance to address potential liabilities associated with product production, there can be no assurance that all potential liabilities will be covered by insurance or that the insurance coverage will be adequate.
Employees
We believe the people who work for us are critical to our continued success. As of May 15, 2023, we employed a total of 21 persons, all of whom were employed on a full-time basis. We strive to attract and retain qualified personnel; however, due to the size and scope of our business, we do not have any formal human capital strategies.
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of the results of operations and financial condition for the years ended December 31, 2022 and 2021 and for the three months ended March 31, 2023 and March 31 2022, should be read in conjunction with the financial statements and related notes and the other financial information that are included elsewhere in this Prospectus. This discussion includes forward-looking statements based upon current expectations that involve risks and uncertainties, such as our plans, objectives, expectations, and intentions. Forward-looking statements are statements not based on historical information and which relate to future operations, strategies, financial results, or other developments. Forward-looking statements are based upon estimates, forecasts, and assumptions that are inherently subject to significant business, economic, and competitive uncertainties and contingencies, many of which are beyond our control and many of which, with respect to future business decisions, are subject to change. These uncertainties and contingencies can affect actual results and could cause actual results to differ materially from those expressed in any forward-looking statements made by us, or on our behalf. We disclaim any obligation to update forward-looking statements. Actual results and the timing of events could differ materially from those anticipated in these forward-looking statements as a result of a number of factors, including those set forth under the “Risk Factors,” “Cautionary Note Regarding Forward-Looking Statements,” and “Description of Business” sections in this Prospectus. We use words such as “anticipate,” “estimate,” “plan,” “project,” “continuing,” “ongoing,” “expect,” “believe,” “intend,” “may,” “will,” “should,” “could,” and similar expressions to identify forward-looking statements. We and our representatives may from time to time make written or oral statements that are “forward-looking,” including statements contained in this Prospectus and other filings with the SEC, reports to our stockholders, and news releases. All statements that express expectations, estimates, forecasts, or projections are forward-looking statements. In addition, other written or oral statements which constitute forward-looking statements may be made by us or on our behalf. Words such as “expect,” “anticipate,” “intend,” “plan,” “believe,” “seek,” “estimate,” “project,” “forecast,” “may,” “should,” variations of such words and similar expressions are intended to identify such forward-looking statements. These statements are not guarantees of future performance and involve risks, uncertainties, and assumptions, which are difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in or suggested by such forward-looking statements.
We undertake no obligation to update or revise any of the forward-looking statements after the date of this Prospectus to confirm forward-looking statements to actual results. Important factors on which such statements are based are assumptions concerning uncertainties, including, but not limited to, uncertainties associated with the following:
| ● | Inadequate capital and barriers to raising the additional capital or to obtaining the financing needed to implement our business plans; | |
| ● | Our failure to earn revenues or profits; | |
| ● | Volatility or decline of our stock price; | |
| ● | Potential fluctuation in our financial results; | |
| ● | Rapid and significant changes in markets; | |
| ● | Litigation with or legal claims and allegations by outside parties; | |
| ● | Impacts from the COVID-19 pandemic; and | |
| ● | Insufficient revenues to cover operating costs. |
The following discussion should be read in conjunction with the financial statements and the notes thereto which are included in this Prospectus. This discussion contains forward-looking statements that involve risks, uncertainties, and assumptions. Our actual results may differ substantially from those anticipated in any forward-looking statements included in this discussion as a result of various factors.
Results of Operations
Our business has grown rapidly since inception in 2015, and we anticipate that our business will continue to grow significantly. For the year ended December 31, 2022, and the quarter ended March 31, 2023, the Company saw an increase in growth compared to the same periods of the prior periods. The Company continues to increase our product variety, commencement of new distribution contracts, and expand our footprint as a national brand.
We derive our revenue from sales of our products to online consumers, to resellers, and to distributors, Product sales to resellers include sales to convenience stores, grocery stores, and smoke and gift shops that complement our current product offering. Product sales to distributors include our Ooh La Lemin lemonade, our energy drinks, and our HighDrate CBD-infused energy waters. We also distribute our products and other companies’ products at retail.
We have experienced and expect to continue to experience substantial growth in our operations as we seek to expand through additional products and acquisitions that complement our current product offerings. We expect that revenue will increase in fiscal year 2023 compared to fiscal year 2022, as the Company anticipates signing more favorable agreements with larger, reputable tier 1 and mid-size distributors, big box stores, and grocery chains. The following is a more detailed discussion of our financial condition and results of operations for the periods presented.
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Impact of Inflation
Recent inflationary trends have led to a moderate increase in some of the costs to produce and ship our products. To date, we have not passed the increases in those costs to our consumers. Continued prolonged periods of inflationary pressure on some or all of those costs could have a material adverse effect on our profit margins from sales of those products or could require us to increase prices for those products, which could reduce consumer demand for those products.
Year ended December 31, 2022 compared to Year ended December 31, 2021
Overview
As reflected in the accompanying financial statements, during the year ended December 31, 2022, we incurred a net loss of approximately $7.3 million and used cash in operations of approximately $2.5 million, compared to a net loss of approximately $7.0 million and use of cash in operations of approximately $2.7 million for the year ended December 31, 2021. As of December 31, 2022, we had a stockholders’ deficit of approximately $3.8 million.
The following is a more detailed discussion of our financial condition and results of operations for the period presented, along with prior periods.
Revenue
The following table presents our net revenues, by revenue source, and the period-over-period percentage change, for the period presented:
| Year Ended December 31, | ||||||||||||
| 2022 | 2021 | |||||||||||
| Revenue Source | Revenue | Revenue | % Change | |||||||||
| Distributors | $ | 805,480 | $ | 895,850 | (10 | )% | ||||||
| Amazon | 128,756 | 154,240 | (17 | )% | ||||||||
| Online Sales | 22,647 | 68,073 | (67 | )% | ||||||||
| Retail | 3,609,419 | 1,420,747 | 154 | % | ||||||||
| Shipping | 11,484 | 17,305 | (34 | )% | ||||||||
| Sales Returns and Allowances | (134,750 | ) | (77,479 | ) | 74 | % | ||||||
| Net Revenues | $ | 4,443,036 | $ | 2,478,736 | 79 | % | ||||||
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The following table presents our net revenues by product lines for the period presented:
| Year Ended December 31, | ||||||||||||
| 2022 | 2021 | |||||||||||
| Product Line | Revenue | Revenue | % Change | |||||||||
| Hemp Energy Drinks | $ | 168,146 | $ | 362,096 | (54 | )% | ||||||
| CBD Energy Waters | 59,250 | 133,110 | (55 | )% | ||||||||
| Lemonade Drinks | 729,306 | 621,331 | 17 | % | ||||||||
| Apparel | 181 | 1,626 | (89 | )% | ||||||||
| Retail | 3,609,419 | 1,420,747 | 154 | % | ||||||||
| Shipping | 11,484 | 17,305 | (34 | )% | ||||||||
| Sales returns and allowance | (134,750 | ) | (77,479 | ) | 74 | % | ||||||
| Net Revenues | $ | 4,443,036 | $ | 2,478,736 | 79 | % | ||||||
During the year ended December 31, 2022, we reported net revenues of $4.4 million, which is an increase of $1.96 million, or 79%, compared to net revenues of $2.5 million for the year ended December 31, 2021. An increase of $2.2 million of our revenue is attributable to increased retail revenue, while our product sales decreased in net revenue by $224,371. We attribute the significant increase in retail revenue to attaining a larger percentage of the territories in which we distribute, including the addition of additional distribution to larger grocery and convenience store chains. We attribute the decrease in product sales to certain delays in the rollout of existing product lines in a national retailer, as well as to a change-over in our customer mix from the prior period due to a non-repetitive, regional, one-off customer relationship in the prior period and a different regional customer imposing slotting fees in the prior period, which we declined to pay in the current year. We anticipate that the rollout of our drink products with a national retailer that commenced late in fiscal year 2022 will continue in fiscal year 2023. Additionally, the Company experienced delays in the rebranding of our hemp product line and the subsequent production. We expect that our product revenue will increase in fiscal year 2023 compared to fiscal year 2022, and we do not anticipate further delays. Further, the Company hired additional sales personnel to lead sales efforts as the Company began to expand into new territories late in the fiscal year 2022, and the Company signed several new large distributors late in fiscal year 2022. The Company anticipates continuing signing more favorable agreements with larger, reputable tier 1 and mid-size distributors, big box stores, and grocery chains. In addition, we anticipate that our retail revenue will continue to increase as we broaden our customer base with increased distribution to additional grocery and convenience chains.
Cost of Revenues
Cost of revenues consists primarily of expenses associated with products sold to distributors and resellers, including product and shipping costs. Costs also include credit card fees, fees incurred for sales that occur on Amazon.com, and other transaction fees related to the processing of consumer transactions. Typically, we expect that the cost of revenues will increase as a direct correlation to increases in sales. Thus, our cost of revenues increases on an absolute basis versus on a percentage of sales basis. At the same time, when sales increase, thereby increasing our orders with our co-packers, our cost of products decreases because of the volume discounts we receive from our co-packers.
During the year ended December 31, 2022, we reported cost of revenues of approximately $3.5 million, which is an increase of approximately $1.3 million, or approximately 61%, compared to approximately $2.1 million for the year ended December 31, 2021. An increase of $1.6 million of our cost of revenues is attributable to an increase in our retail distribution in 2022, while our cost of revenues for product sales decreased $328,477, compared to the prior year period. The cost of revenues increase was smaller than the increase in revenues. This is primarily attributed to decreased costs in obtaining our ingredients for our products, for production of our products, and for shipping our products from the prior year period. We expect that we will continue to see an increased cost of revenues in fiscal year 2023, primarily due to an anticipated increase in revenues. In addition, as the cost of shipping our products continues to remain elevated, we also anticipate increased costs for obtaining our ingredients for our products, increased costs for production of our products, and increased costs of shipping our products. We continue to seek alternative methods to reduce costs for production and the cost of shipping our products in fiscal year 2023.
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Selling, General and Administrative Expenses
Selling, General and Administrative Expenses (“SG&A”) expenses consist primarily of professional fees, salaries and wages, advertising, rent, travel expenses, corporate-related expenses, and general office and administrative expenses related to maintaining our facilities.
Selling, General and Administrative Expenses (“SG&A”) expenses consist primarily of professional fees, salaries and wages, advertising, rent, travel expenses, corporate-related expenses, and general office and administrative expenses related to maintaining our facilities. Selling, general and administrative expenses increased in the year ended December 31, 2022, to $4.1 million from $3.4 million, an increase of $764,458 over the same period last year. The increase was driven by increased operating expenses associated with wages related to hiring additional sales personal, travel expenses, insurance expenses, and legal and accounting fees related to corporate expenses, partially offset by lower professional fees and regional customer imposing slotting fees in the prior period, which we declined to pay in the current year. We expect that as we expand our business operations, SG&A expenses will continue to increase.
We expect that as we expand our business operations and continue to incur additional corporate-related expenses associated with our status as a fully registered issuer with the SEC under the Securities Exchange Act of 1934, SG&A expenses will continue to increase.
Impairment of Goodwill
Impairment of goodwill for the year ended December 31, 2021 was $1.3 million. In December 2021, we determined that our goodwill asset was impaired and recorded an impairment charge accordingly. No similar activity occurred during the current year period.
Other Income and Expenses
Other expense for the year ended December 31, 2022 was $4.2 million, as compared to other expense of $2.6 million for the year ended December 31, 2021. The change in balance was due to the increase in interest expense of $58,273, the increase in the change in value of derivative liabilities of $2.1 million, the increase in loss on extinguishment of debt of $249,831, offset by the decrease in financing costs of $1.0 million, and decreased other expense of $22,262, as compared to the same period last year. In addition, for the year ended December 31, 2021, the company recorded a gain on forgiveness of PPP loans of $212,648, which did not occur in the same period of the current year.
Net Loss
We incurred a net loss of approximately $7.3 million for the year ended December 31, 2022, an increase of approximately $292,898 compared to the previous year ending December 31, 2021, in which we incurred a net loss of approximately $7.0 million. This net loss is primarily due to our increase in gross profit, offset by increased SG&A expenses and the increase in other expenses, as discussed above.
Three Months ended March 31, 2023 compared to Three Months ended March 31, 2022
Overview
As reflected in the accompanying financial statements, during the three months ended March 31, 2023, we incurred a net loss of approximately $1.6 million and used cash in operations of approximately $215,544, compared to a net loss of approximately $3.6 million and use of cash in operations of approximately $669,504 for the three months ended March 31, 2022. As of March 31, 2023, we had a stockholders’ deficit of approximately $4.5 million.
The following is a more detailed discussion of our financial condition and results of operations for the period presented, along with prior periods.
Revenue
The following table presents our net revenues, by revenue source, and the period-over-period percentage change, for the period presented:
| Three Months Ended 31, | ||||||||||||
| 2023 | 2022 | |||||||||||
| Revenue Source | Revenue | Revenue | % Change | |||||||||
| Distributors | $ | 221,746 | $ | 189,952 | 17 | % | ||||||
| Amazon | 13,063 | 35,524 | (63 | )% | ||||||||
| Online Sales | 5,236 | 10,971 | (52 | )% | ||||||||
| Retail | 1,070,283 | 791,402 | 35 | % | ||||||||
| Shipping | 969 | 2,382 | (59 | )% | ||||||||
| Sales Returns and Allowances | (36,400 | ) | (35,100 | ) | 4 | % | ||||||
| Net Revenues | $ | 1,274,897 | $ | 995,131 | 28 | % | ||||||
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The following table presents our net revenues by product lines for the period presented:
| Three Months Ended 31, | ||||||||||||
| 2023 | 2022 | |||||||||||
| Product Line | Revenue | Revenue | % Change | |||||||||
| Energy Drinks | $ | 9,624 | $ | 62,892 | (85 | )% | ||||||
| CBD Energy Waters | 1,867 | 14,472 | (87 | )% | ||||||||
| Lemonade Drinks | 228,554 | 159,018 | 44 | % | ||||||||
| Apparel | - | 65 | (100 | )% | ||||||||
| Retail | 1,070,283 | 791,402 | 35 | % | ||||||||
| Shipping | 969 | 2,382 | (59 | )% | ||||||||
| Sales returns and allowance | (36,400 | ) | (35,100 | ) | 4 | % | ||||||
| Net Revenues | $ | 1,274,897 | $ | 995,131 | 28 | % | ||||||
During the three months ended March 31, 2023, we reported net revenues of approximately $1.3 million, which is an increase of approximately $279,766, or approximately 28%, compared to net revenues of approximately $995,131 for the three months ended March 31, 2022. An increase of approximately $278,881 of our revenue is attributable to increased retail revenue, while our remaining net revenue decreased in net revenue by approximately $144,247. We attribute the significant increase in retail revenue to obtaining larger retail chains, and attaining a larger percentage of the territory in which the Company distributes. We attribute the slight decrease in remaining net revenue to delays in production of the Company’s rebranded product line. We expect that our remaining net revenue will increase in the remaining fiscal year 2023 compared to fiscal year 2022. Additionally, the Company anticipates signing more favorable agreements with larger, reputable tier 1 and mid-size distributors, big box stores, and grocery chains. In addition, we anticipate that our retail revenue will continue to increase as we broaden our customer base with increased distribution to additional grocery and convenience chains.
Cost of Revenues
Cost of revenues consists primarily of expenses associated with products sold to distributors and resellers, including product and shipping costs. Costs also include credit card fees, fees incurred for sales that occur on Amazon.com, and other transaction fees related to the processing of consumer transactions. Typically, we expect that the cost of revenues will increase as a direct correlation to increases in sales. Thus, our cost of revenues increases on an absolute basis versus on a percentage of sales basis. At the same time, when sales increase, thereby increasing our orders with our co-packers, our cost of products decreases because of the volume discounts we receive from our co-packers.
During the three months ended March 31, 2023, we reported cost of revenues of approximately $986,859, which is an increase of approximately $136,983, or approximately 16%, compared to approximately $849,876 for the three months ended March 31, 2022. This increase is attributed to an increase in sales in both our products and retail distribution in 2023, compared to the prior year period. The cost of revenues increase was smaller than the increase in revenues. This is primarily attributed to decreased costs in obtaining our ingredients for our products, for production of our products, and for shipping our products. We expect that we will continue to see an increased cost of revenues in the remaining fiscal year 2023, primarily due to an anticipated increase in revenues. In addition, as the cost of shipping our products continues to remain elevated, we also anticipate increased costs for obtaining our ingredients for our products, increased costs for production of our products, and increased costs of shipping our products. We continue to seek alternative methods to reduce costs for production and the cost of shipping our products in fiscal year 2023.
Selling, General and Administrative Expenses
Selling, General and Administrative Expenses (“SG&A”) expenses consist primarily of professional fees, salaries and wages, advertising, rent, travel expenses, sponsorships, and general office and administrative expenses related to maintaining our facilities. Selling, general and administrative expenses increased in the three months ended March 31, 2023, to approximately $1,273,961 from approximately $939,336, an increase of approximately $334,625 over the same period last year. The increase was driven by increased operating expenses associated with hiring additional sales employees, legal and accounting fees, professional fees, and expired product and partially offset by lower advertising and shipping expenses. We expect that, as we expand our business operations, SG&A expenses will continue to increase.
We expect that as we expand our business operations and continue to incur additional corporate-related expenses associated with our status as a fully registered issuer with the SEC under the Securities Exchange Act of 1934, SG&A expenses will continue to increase.
Other Income and Expenses
Other expense for the three months ended March 31, 2023 was approximately $606,634, as compared to other expense of approximately $2.8 million for the three months ended March 31, 2022. The change was attributable to the decrease in interest expense of approximately $137,304 related to decreased debt levels and debt amortization, the decrease in the change in the fair value of derivative liabilities of approximately $2.8 million, a decrease in the loss on debt extinguishment of approximately $396,636, and was offset with the recording of financing costs of approximately $163,000 in the current period, which did not occur in the prior period.
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Net Loss
We incurred a net loss of approximately $1.6 million for the three months ended March 31, 2023, a decrease of approximately $2.0 million compared to the prior year period in which we incurred a net loss of approximately $3.6 million. This net loss is primarily due a slight increase in SG&A expenses and offset by a significant decrease in other expenses, as discussed above.
Liquidity and Capital Resources
Going Concern
The accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the settlement of liabilities and commitments in the normal course of business. As reflected in the accompanying financial statements, during the three months ended March 31, 2023, the Company recorded a net loss of $1,592,557 and used cash in operations of $215,544 and had a stockholders’ deficit of $4,544,952 as of that date. These factors raise substantial doubt about the Company’s ability to continue as a going concern within one year after the date of the financial statements being issued. In addition, the Company’s independent registered public accounting firm, in its report on our December 31, 2022 financial statements, has raised substantial doubt about the Company’s ability to continue as a going concern. The Company’s financial statements do not include any adjustments that might be necessary if the Company is unable to continue as a going concern. The ability of the Company to continue as a going concern is dependent upon the Company’s ability to raise additional funds and implement its business plan. The financial statements do not include any adjustments that might be necessary if the Company is unable to continue as a going concern.
At March 31, 2023, the Company had cash on hand in the amount of $76,609. Subsequent to Mach 31, 2023, the Company received proceeds of $230,000 on the sale of a senior note. The Company believes it has enough cash to sustain operations through December 31, 2023. The continuation of the Company as a going concern is dependent upon its ability to obtain necessary debt or equity financing to continue operations until it begins generating positive cash flow. No assurance can be given that any future financing will be available or, if available, that it will be on terms that are satisfactory to the Company. Even if the Company is able to obtain additional financing, it may contain undue restrictions on our operations, in the case of debt financing or cause substantial dilution for our stockholders, in case or equity financing.
Notes Payable with Related Parties
Notes payable with related parties consists of the following at March 31, 2023 and December 31, 2022:
March 31, 2023 | December 31, 2022 | |||||||
| Note payable – related party (a) | $ | 1,352,651 | $ | 1,352,651 | ||||
| Note payable – related party (b) | 260,000 | 260,000 | ||||||
| Note payable – related party (c) | 125,500 | 125,500 | ||||||
| Note payable – related party (d) | 46,000 | 47,500 | ||||||
| Total notes payable – related parties | $ | 1,784,151 | $ | 1,785,651 | ||||
| (a) | On April 4, 2019, the Company entered into an unsecured Line of Credit Agreement with Robert Clark. Mr. Clark is the Company’s President, Chief Executive Officer, Secretary, and Chairman of the Board. The agreement established a revolving line of credit in the amount of up to $1,500,000. Advances under this line of credit bear interest at the rate of 3.75 percent per annum. The line of credit matures on April 4, 2024, at which time all outstanding principal amounts and accrued interest are due and payable. At March 31, 2023 and December 31, 2022, outstanding principal was $1,352,651 and $1,352,651, respectively. |
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| (b) | On May 6, 2022, the Company entered into an unsecured Line of Credit Agreement with Robert Clark. Mr. Clark is the Company’s President, Chief Executive Officer, Secretary, and Chairman of the Board. The agreement established a revolving line of credit in the amount of up to $300,000. Advances under this line of credit bear interest at the rate of 3.75 percent per annum. The line of credit matures on May 6, 2024, at which time all outstanding principal amounts and accrued interest are due and payable. At March 31, 2023 and December 31, 2022, outstanding principal was $260,000 and $260,000, respectively. | |
| (c) | On August 29, 2019, the Company entered into an unsecured Line of Credit Agreement with Robert Clark. Mr. Clark is the Company’s President, Chief Executive Officer, Secretary, and Chairman of the Board. The agreement established a revolving line of credit in the amount of up to $200,000. Advances under this line of credit bear interest at the rate of 3.75 percent per annum. The line of credit matures on August 29, 2023, at which time all outstanding principal amounts and accrued interest are due and payable. During the period ended March 31, 2023 Mr. Clark made additional advances of $80,000 that were repaid by the end of the period. At March 31, 2023 and December 31, 2022, outstanding principal was $125,500 and $125,500, respectively. | |
| (d) | On February 19, 2019, the Company issued an unsecured Standard Promissory Note in Favor of Robert Clark, as lender, in the original principal amount of $70,000. Mr. Clark is the Company’s President, Chief Executive Officer, Secretary, and Chairman of the Board. The note bears no interest. Principal payments of $500 per month commenced in March 2019, with final payment due in March 2021. On March 15, 2022, the Company issued an Amendment to the original issued Standard Promissory Note in Favor of Robert Clark for the remaining outstanding principal of $58,000. On April 3, 2023, the Company issued an Amendment to the original issued Standard Promissory Note in Favor of Robert Clark for the remaining outstanding principal of $46,000 Principal payment of $500 per month, with final payment due in March 2024. The outstanding principal balance of this note at December 31, 2022 was $47,500. During the three months ended March 31, 2023, the Company made principal payments of $1,500, leaving an outstanding principal balance of $46,000 at March 31, 2023. |
At December 31, 2022, accrued interest on notes payable to related parties was $153,959. During the three months ended March 31, 2023, the Company added $15,831 of additional accrued interest, leaving an accrued interest balance on the notes payable to related parties of $169,790 at December 31, 2022. Accrued interest is included in accounts payable and accrued expenses in the accompanying Condensed Consolidated Balance Sheets.
Notes Payable
Notes payable consists of the following at March 31, 2023 and December 31, 2022:
March 31, 2023 | December 31, 2022 | |||||||
| Note payable (a) | $ | 25,354 | $ | 26,994 | ||||
| Note payable (b) | 43,613 | 44,550 | ||||||
| Note payable (c) | 40,256 | 40,103 | ||||||
| Note payable (d) | 250,000 | 250,000 | ||||||
| Note payable (e) | 207,175 | 626,388 | ||||||
| Note payable (f) | 85,000 | - | ||||||
| Note payable (g) | 196,588 | - | ||||||
| Total notes payable | 847,986 | 988,035 | ||||||
| Less debt discount (e) | (57,234 | ) | (218,481 | ) | ||||
| Total notes payable, net | 790,752 | 769,554 | ||||||
| Notes payable, current portion | (732,753 | ) | (712,499 | ) | ||||
| Notes payable, net of current portion | $ | 57,999 | $ | 57,055 | ||||
| (a) | On August 21, 2021, the Company financed the purchase of a vehicle for $34,763, after making a down payment of $20,000. The loan term is for 60 months, annual interest rate of 5.44%, with monthly principal and interest payments of $665, and secured by the purchased vehicle. At December 31, 2022, the loan balance was $26,994. During the three months ended March 31, 2023, the Company made principal payments of $1,640, leaving a loan balance of $25,354 at March 31, 2023. |
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| (b) | On September 30, 2022, the Company financed the purchase of a vehicle for $46,576, after making a down payment. The loan term is for 60 months, annual interest rate of 9.44%, with monthly principal and interest payments of $980, and secured by the purchased vehicle. At December 31, 2022, the loan balance was $44,550. During the three months ended March 31, 2023, the Company made principal payments of $937, leaving a loan balance of $43,613 at March 31, 2023. | |
| (c) | In April 2021, the Company entered into a Line of Credit Agreement with Wells Fargo Bank. The Line of Credit is personally guaranteed by Robert Clark, the Company’s President, Chief Executive Officer, Secretary, and Chairman of the Board. The agreement established a revolving line of credit in the amount of up to $42,000. Advances under this line of credit bear interest at the rate of 11.50% per annum. The line of credit matures in 2023, at which time all outstanding principal amounts and accrued interest are due and payable. As of March 31, 2023 and December 31, 2022, the outstanding principal was $40,256 and $40,103, respectively, which was recorded as the current portion of loan payable on the accompanying Consolidated Balance Sheet. | |
| (d) | On March 25, 2022, the Company entered into a secured debenture with an otherwise unaffiliated individual in the principal amount of $250,000 that was due on March 23, 2023. On March 23, 2023, the Company entered into a First Amendment to Secured Debenture (the “First Amendment”) to amend a Secured Debenture (the “Debenture”), dated as of March 25, 2022. The Debenture is amended and restated in its entirety with the following terms (i) maturity date was extended to March 24, 2024; (ii) interest accrues on the outstanding principal at a rate equal to 12% per annum; (iii) monthly payments of principal and interest shall be made in the amount of $22,212, starting April 24, 2023 until the maturity date, at which date the entirety of the balance of principal plus interest is due. The secured debenture is secured by nine identified motor vehicles of the Company. As of March 31, 2023 and December 31, 2022, the outstanding balance of the secured debentures amounted to $250,000.
In connection with the issuance of the original debenture in 2022, the Company issued to the lender 25 million shares of the Company’s common stock at a price of $0.004 per share. The Company determined the fair value of the 25 million shares was $135,000, which was recorded as a debt discount against the secured debenture. At December 31, 2022, the unamortized debt discount was $31,531. During the three months ended March 31, 2023, the Company amortized debt discount of $31,531 to interest expense on the loan, leaving no remaining unamortized debt discount at March 31, 2023. | |
| (e) | On September 30, 2022, November 2, 2022, and December 15, 2022, the Company entered into secured non-interest-bearing advance agreements with unaffiliated third parties for the purchase of future receipts/revenues. Under the agreements, the Company received an aggregate lump sum payment of $561,957, and, in return, the purchaser received a secured right to collect a fix sum of future receipts/revenue of $798,456 to be collected by the Company. In accordance with the agreements, the Company agreed to sell, assign, and transfer to the purchaser of all the Company’s payments, receipts, settlements, and funds paid to or received by or for the account of the Company from time to time on and after the dates of the agreements in payment or settlement of the Company’s existing and future accounts, payment intangibles, credit, debit, and/or stored value card transactions, contract rights, and other entitlements arising from or relating to the payment of monies from the Company’s customers and/or other payors or obligors. Two of the agreements require aggregate weekly payments of $9,019 and the third requires daily payments of $1,291. The Company’s obligations under the agreements are secured by the assets described above, and guaranteed by Robert Clark, the Company’s Chief Executive Officer. As of December 31, 2022, the outstanding balance to be paid amounted to $626,388. During the three months ended March 31, 2023, the Company made payments of $419,213, leaving an aggregate outstanding amount to be paid of $207,175 at March 31, 2023.
Upon execution of the advance and receipt of funds, the Company recorded the difference of $236,499 between the cash collected and the face amount of the obligation as a “note discount” and will amortize the “note discount” as interest expense over the life of the advance. At December 31, 2022, the unamortized “note discount” was $186,950. During the three months ended March 31, 2023, the Company amortized “note discount” of $129,716 to interest expense on the obligation. As of March 31, 2023, the unamortized “note discount” was $57,234. |
| (f) | On March 9, 2023, the Company entered into a Line of Credit Agreement with American Express National Bank. The Line of Credit is personally guaranteed by Robert Clark, the Company’s President, Chief Executive Officer, Secretary, and Chairman of the Board. The agreement established a revolving line of credit in the amount of up to $85,000. Advances under this line of credit bear interest at the rate of 19.32% per annum. The line of credit matures on September 9, 2024, at which time all outstanding principal amounts and accrued interest are due and payable. The line of credit requires minimum monthly payments of $5,572. At March 31, 2023, the outstanding principal was $85,000. | |
| (g) | On March 7, 2023, the Company entered into a Line of Credit Agreement with Celtic Bank. The Line of Credit is personally guaranteed by Robert Clark, the Company’s President, Chief Executive Officer, Secretary, and Chairman of the Board. The agreement established a revolving line of credit in the amount of up to $200,000. Advances under this line of credit bear interest at the rate of 35.90 percent per annum. The line of credit matures on March 7, 2024, at which time all outstanding principal amounts and accrued interest are due and payable. At March 31, 2023, the outstanding principal was $196,588. |
At December 31, 2022 on item (d), accrued interest on the notes payable was $1,874. During the three months ended March 31, 2023, the Company added $5,630 of additional accrued interest on item (d), leaving $7,504 of accrued interest balance on the notes payable on item (d) at March 31, 2023. Accrued interest is included in accounts payable and accrued expenses in the accompanying Condensed Consolidated Balance Sheets.
As of December 31, 2022, the unamortized debt discount was $218,481. During the three months ended March 31, 2023, the Company amortized debt discount of $161,247 to interest expense on the loans. As of March 31, 2023, the unamortized debt discount was $57,234.
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Secured Convertible Debentures
Secured debentures that are payable to an otherwise unaffiliated third party consists of the following as of March 31, 2023 and December 31, 2022:
March 31, 2023 | December 31, 2022 | |||||||
| Mast Hill Note 1 | 472,648 | 595,000 | ||||||
| Mast Hill Note 2 | 475,000 | - | ||||||
| Less debt discount | (318,270 | ) | (183,940 | ) | ||||
| Secured debentures, net | $ | 629,378 | $ | 411,060 | ||||
Mast Hill
On July 28, 2022, the Company issued a senior secured debenture to an otherwise unaffiliated third-party investor (the “Investor”) in the aggregate of $595,000. The debenture bears interest at a rate of 10% per annum, matures on July 28, 2023, and is convertible into shares of our common stock at a conversion price of $0.0045 per share. If the Company issues subsequent equity instruments at an effective price per share that is lower than the conversion price of $0.0045 per shares, then the conversion price shall be reduced, at the option of the Holder, to a price equal to the Weighted Average Price (as defined), provided, further, that if the conversion price is equal to or less than $0.003, then the conversion price shall be reduced at the option of the Holder to a price equal to the lower price. The senior secured debenture is secured by all of the Company’s assets and the assets of each of its subsidiaries pursuant to the Security Agreement. The security interest granted to the Investor under the Security Agreement was subordinate to the continuing security interest that remains in effect pursuant to the previous grant of a security interest in connection with a then-outstanding debenture to an earlier investor all tangible and intangible assets. In connection with the issuances of the debenture, the Company granted to the Investor warrants to purchase up to 100 million shares of the Company’s common stock, which expire on July 28, 2027. The warrants are exercisable at $0.0045 per share. As a result of these issuances and grants, we incurred the following (a) relative fair value of the warrants granted of $223,000; and (b) original issue discounts of $92,325 of the debentures for a total of $315,325 which was allocated as debt discount. The debt discount is being amortized to interest expense over the term of the corresponding debentures. As of December 31, 2022, the unamortized debt discount was $183,940. During the three months ended March 31, 2023, the Company amortized debt discount of $78,831 to interest expense on the loan. As of March 31, 2023, the unamortized debt discount was $105,109.
As of December 31, 2022 the balance due under the obligation was $595,000. During the three months ended March 31, 2023, the Company converted $157,400 of principal and accrued interest into 72,000,000 shares of common stock with a fair value of $315,000 resulting in a loss on extinguishment of debt of $157,600. As of March 31, 2023, $472,648 was due under the note.
Mast Hill Debenture 2
On March 13, 2023, the Company issued an additional senior secured debenture to the Investor in the aggregate of $475,000. The debenture bears interest at a rate of 16% per annum, matures on March 13, 2024, and is convertible into shares of our common stock at a conversion price of $0.0045 per share.
At our option, we have the right to redeem, in full, the outstanding principal and interest under the debenture prior to its maturity date; provided, that, as of the date of the then-holder’s receipt of the redemption notice, there has not been an Event of Default. We must pay an amount equal to the principal amount being redeemed plus outstanding and accrued interest thereon, as well as a $750 administrative fee (the “Redemption Amount”). We must provide seven Trading Days’ (as such term is defined in the debenture) prior notice to the then-holder of the debenture of our intent to make a redemption. If such notice of redemption is received six months after the Issue Date, the then-holder has the right to convert any or all of such to-be-prepaid amount into shares of our Common Stock in accordance with the conversion provisions of the debenture prior to such redemption.
Further, commencing on May 10, 2023, and continuing on the tenth day of each calendar month thereafter, we are required to redeem an amount equivalent to the sum of $2.00 for each 12-count case of our beverages that we sell in the ordinary course, calculated two months in arrears. Accordingly, the first redemption payment is due and payable on May 10, 2023 for the cases sold during the month of March, 2023. Mandatory redemption payments are based upon revenues recognized by us in accordance with US GAAP for each such month, rather than upon the receipt by us of funds received from sales during a relevant month. The above-referenced seven trading days’ prior notice and conversion provisions do not apply to any of the mandatory redemption payments.
In connection with the issuance of the debenture, the Company granted to the Investor warrants to purchase up to 80 million shares of the Company’s common stock, which expire on March 13, 2028. The warrants are exercisable at $0.0045 per share. As a result of these issuances and grants, we incurred the following (a) relative fair value of the warrants granted of $150,000 and (b) original issue discounts and fees of $74,00 of the debentures for a total of $224,000, which was allocated as debt discount. The debt discount is being amortized to interest expense over the term of the corresponding debenture. During the three months ended March 31, 2023, the Company amortized debt discount of $10,839 to interest expense on the loan. As of March 31, 2023, the unamortized debt discount was $213,161.
As of March 31, 2023, no shares of common stock were potentially issuable under the conversion terms of the outstanding debentures.
At December 31, 2022, accrued interest on the convertible notes payable was $25,756. During the three months ended March 31, 2023, the Company added $19,214 of additional accrued interest, and converted $37,466 of accrued interest, leaving an accrued interest balance on the convertible notes payable of $7,504 at March 31, 2023. Accrued interest is included in accounts payable and accrued expenses in the accompanying Condensed Consolidated Balance Sheets.
As of December 31, 2022, the unamortized debt discount was $183,940. During the three months ended March 31, 2023, the Company added $224,000 related to the issuance of secured debentures, and amortized debt discount of $89,670 to interest expense on the loans. As of March 31, 2023, the unamortized debt discount was $318,270.
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Cash Flows
In summary, our use of cash has been as follows:
| For the Three Months Ended March 31, 2023 | ||||
| Net cash used in operating activities | $ | (215,544 | ) | |
| Net cash used in investing activities | $ | - | ||
| Net cash provided by financing activities | $ | 252,365 | ||
Operating Activities
Cash provided by or used in operating activities primarily consists of net income adjusted for certain non-cash items, including depreciation, amortization, changes in allowance for doubtful accounts, loss on extinguishment of debt, and the change in the fair value of our derivative liabilities, and the effect of changes in working capital and other activities. Cash used in operating activities for the three months ended March 31, 2023 was approximately $215,544 and consisted of a net loss of approximately $1.6 million, adjustments for non-cash items, depreciation, amortization, loss on extinguishment of debt, loss on the change in fair value of derivative liabilities, which in the aggregate total approximately $869,179, and approximately $507,834 used in working capital and other activities.
Investing Activities
Cash used in investing activities for three months ended March 31, 2023 was nil and for the three months ended was approximately $21,131 and was attributable to capital expenditures.
Financing Activities
Cash provided by financing activities for three months ended March 31, 2023 was approximately $252,365 and was comprised of proceeds from a notes payable of $284,595 and proceeds from convertible debentures payable of $401,000, offset by payments on our line of credit to related party of $1,500, payments of our acquisition obligations of $5,147, payment of our note payable of $424,644, and payment of finance lease obligations of $1,939.
Off-Balance Sheet Arrangements
None.
Critical Accounting Policies
Our discussion and analysis of results of operations and financial condition are based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of our consolidated financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues, and expenses, and related disclosure of contingent assets and liabilities. We evaluate our estimates on an ongoing basis, including those related to provisions for uncollectible accounts receivable, inventories, valuation of intangible assets, and contingencies and litigation. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.
The accounting policies that we follow are set forth in Note 2, Summary of Significant Accounting Policies, of our consolidated financial statements for the year ended December 31, 2022. These accounting policies conform to accounting principles generally accepted in the United States, and have been consistently applied in the preparation of the consolidated financial statements.
Leases
On January 1, 2019, we adopted the Financial Accounting Standards Board’s (“FASB”) Accounting Standards Update 2016-02, Leases (Topic 842) (“ASC Topic 842”), which requires an entity to recognize a liability and corresponding asset for leases that meet certain criteria. We applied ASC Topic 842 using the modified retrospective approach. Under this approach, we applied the new standards to all new leases, and leases which have remaining obligations for financial statements issued for fiscal years beginning after December 15, 2018. We elected the package of practical expedients permitted under the transition guidance, which allowed us to carryforward historical lease classification, and not reassess (i) whether a contract was or contained a lease, and (ii) initial direct costs for any leases that existed prior to January 1, 2019. Under this method, we did not restate comparative periods in our financial statements. We present right-of-use assets resulting from leases separately from other assets as noncurrent, and amortized accordingly. The corresponding lease liabilities are presented separately from other liabilities on the accompanying balance sheets.
We recognize a right-of-use asset and a lease liability at the lease commencement date. The right-of-use asset is initially measured at cost, which comprises the initial amount of the lease liability adjusted for any lease payments made at or before the commencement date, plus any initial direct costs incurred. The amortization period for the right-of-use asset is from the lease commencement date to the earlier of the end of the lease term or the end of the useful life of the asset.
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The lease liability is initially measured at the present value of the lease payments that are not paid at the commencement date, discounted using the interest rate implicit in the lease or, if that rate cannot be readily determined, the incremental borrowing rate or the risk-free rate with the election of the practical expedient. We have elected to use the risk-free rate.
Please refer to Note 11, Lease Liabilities, to our consolidated financial statements for the year ended December 31, 2022 for additional information related to our right-of-use assets and lease liabilities.
Revenue Recognition and Deferred Revenue
We sell our products, which includes our hemp-infused energy drinks, CBD-infused energy water, low carb and low-calorie lemonade, and apparel with our trademark logo, to online customers or through resellers and distributors. In evaluating the timing of the transfer of control of products to customers, we consider several indicators, including significant risks and rewards of products, our right to payment, and the legal title of the products. We recognize revenue from product sales to customers, distributors, and resellers when products that do not require further services by us are shipped, when there are no uncertainties surrounding customer acceptance, and when collectability is reasonably assured. Sales are made to customers under terms allowing certain limited rights of return. Amounts billed to customers in sales transactions related to shipping and handling, represent revenues earned for the goods provided and are included in net sales. Costs of shipping and handling are included in cost of products sold.
We also sell our products, and beverages purchased for resale from several other beverage manufacturers, to convenience stores, grocery stores, and smoke and gift shops. In evaluating the timing of the transfer of control of products to customers, we consider several indicators, including significant risks and rewards of products, our right to payment, and the legal title of the products. We recognize revenue from product sales to resellers when products that do not require further services by us are shipped or delivered, when there are no uncertainties surrounding customer acceptance and when collectability is reasonably assured. Cash received by us prior to shipment is recorded as deferred revenue. Sales are made to customers under terms allowing certain limited rights of return. Amounts billed to customers in sales transactions related to shipping and handling, represent revenues earned for the goods provided and are included in net sales. Costs of shipping and handling are included in cost of products sold.
On January 1, 2019, we adopted ASU No. 2014-09, Revenue from Contracts with Customers (Topic 606) (“ASC Topic 606”). The underlying principle of ASC Topic 606 is to recognize revenue to depict the transfer of goods or services to a customer at the amount expected to be collected. The implementation of Topic ASC 606 had no impact on the prior period financial statements and no cumulative effect adjustment was recognized.
To apply these principles, ASC Topic 606 outlines a five-step model that requires entities to exercise judgment when considering the terms of contract(s), which includes:
| 1. | Identifying the contract(s) or agreement(s) with a customer; | |
| 2. | Identifying the separate performance obligations in the contract or agreement; | |
| 3. | Determining the transaction price; | |
| 4. | Allocating the transaction price to the separate performance obligations in the contract or agreement; and | |
| 5. | Recognizing revenue as each performance obligation is satisfied. |
Pursuant to ASC Topic 606, we recognize revenue when performance obligations under the terms of a contract are satisfied, which occurs typically upon the transfer of control, including the risks and rewards of ownership. With respect to us, performance is deemed to occur upon shipment or delivery of products to our customers based on the written contract terms, which is also when control is transferred.
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The Company operates in one segment for the manufacture and distribution of its products and those of otherwise unrelated beverage products. In accordance with the “Segment Reporting” Topic of the ASC, the Company’s chief operating decision maker has been identified as the Chief Executive Officer and President, who reviews operating results to make decisions about allocating resources and assessing performance for the entire Company. Existing guidance, which is based on a management approach to segment reporting, establishes requirements to report selected segment information quarterly and to report annually entity-wide disclosures about products and services, major customers, and the countries in which the entity holds material assets and reports revenue. All material operating units qualify for aggregation under “Segment Reporting” due to their similar customer base and similarities in economic characteristics; nature of products and services; and procurement, manufacturing, and distribution processes. Since the Company operates in one segment, all financial information required by “Segment Reporting” can be found in the accompanying financial statements.
Our revenue earned is recognized when we satisfy a single performance obligation by transferring control of our products to a customer. We have determined that disaggregated revenue by net sales by revenue source would be meaningful and allow investors to understand our business activities, historical performance, or future prospects. Disaggregated sales by revenue source, which includes sales to distributors, online sales, sales through Amazon, and distribution sales. This is the same information used by our Chief Operating Decision Maker for evaluating the financial performance of our operations and making resource decisions. We also sell merchandise and apparel that comprises approximately 1% of our gross annual sales, and solely exists to promote our beverages. Merchandise and apparel sales are included with the gross sales for our one operating segment.
Accounts Receivable and Allowance for Doubtful Account Receivable
Accounts receivable are recorded at net realizable value. We determine provisions for uncollectible accounts, sales returns, and claims based upon factors including the credit risk and activity of specific distributors and resellers, historical trends, and other information. If we become aware of a specific distributor’s or reseller’s inability to meet its financial obligations, bad debt charges are recorded based on an overall assessment of past due accounts receivable outstanding. In the opinion of management, a provision was deemed necessary for uncollectible accounts.
Intangible assets represent both indefinite lived and definite lived assets. Trademarks are deemed to have definite useful lives of ten years, are amortized, and are tested annually for impairment. Intangible assets are reported on the balance sheet at cost less accumulated amortization. We have selected December 31 as the date to perform the annual impairment test. See Note 2, Summary of Significant Accounting Policies, Subsection Goodwill and Intangible Assets, of our consolidated financial statements for the year ended December 31, 2022, for an additional description of intangible assets that had a material effect on our consolidated financial statements.
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Emerging Growth Company Status
On April 5, 2012, the JOBS Act, was enacted. The JOBS Act provides that, among other things, an “emerging growth company” can take advantage of an extended transition period for complying with new or revised accounting standards. This provision allows an emerging growth company to delay the adoption of some accounting standards until those standards would otherwise apply to private companies. As an emerging growth company, we have irrevocably elected to take “opt out” of taking advantage of the extended transition period afforded by the JOBS Act for the implementation of new or revised accounting standards and, as a result, we will comply with new or revised accounting standards on the relevant dates on which adoption of such standards is required for non-emerging growth public companies on a case-by-case basis.
We intend to rely on certain of the other exemptions and reduced reporting requirements provided by the JOBS Act. As an emerging growth company, we are not required to, among other things, (i) provide an auditor’s attestation report on our system of internal controls over financial reporting pursuant to Section 404(b), and (ii) comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (auditor discussion and analysis).
We will remain an emerging growth company until the earlier to occur of (1) the last day of our fiscal year (a) following the fifth anniversary of the completion of this offering, (b) in which we have total annual gross revenues of at least $1.07 billion, or (c) in which we are deemed to be a “large accelerated filer” under the rules of the SEC, which means the market value of our common shares that is held by non-affiliates exceeds $700 million as of the last day of our second quarter, and (2) the date on which we have issued more than $1.0 billion in non-convertible debt during the prior three-year period.
We are also a “smaller reporting company” meaning that the market value of our stock held by non-affiliates plus the proposed aggregate amount of gross proceeds to us as a result of this offering is less than $700 million and our annual revenue was less than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company after this offering if either (i) the market value of our stock held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million during the most recently completed fiscal year and the market value of our stock held by non-affiliates is less than $700 million. If we are a smaller reporting company at the time we cease to be an emerging growth company, we may continue to rely on exemptions from certain disclosure requirements that are available to smaller reporting companies. Specifically, as a smaller reporting company we may choose to present only the two most recent fiscal years of audited financial statements in our Annual Report on Form 10-K and, similar to emerging growth companies, smaller reporting companies have reduced disclosure obligations regarding executive compensation.
Recently Issued Accounting Pronouncements
See Note 2, Summary of Significant Accounting Policies to our consolidated financial statements for the year ended December 31, 2022 for a discussion of recent accounting pronouncements.
DESCRIPTION OF PROPERTY
We currently lease approximately 4,500 square feet of corporate office and warehouse space located at 746 North Drive, Suite A, Melbourne, Florida 32934. The lease is for a five-year term, and expires on May 31, 2023. The initial monthly base rent was approximately $3,994, plus state taxes. The monthly base rent increases annually by three percent, beginning on June 1, 2019 and each June 1st thereafter.
Through our subsidiary, Gold Leaf, we also lease a 30,000 square foot warehouse and main distribution hub in Greer, South Carolina. The lease is for a 63-month term that commenced in May 2019. Beginning in April 2022, our monthly rent includes monthly base payments of $10,200, plus applicable monthly CAM fees (Common Area Maintenance). Gold Leaf leases an additional 10,000 square foot building in Conway, South Carolina. The lease is for a 62-month period that commenced in October 2021. Our monthly rent is approximately $7,261. Effective December 31, 2022, we consolidated our distribution facilities into our main distribution hub in Greer, SC. We believe our office space, warehouse space, and distribution facilities are sufficient to meet our current needs.
LEGAL PROCEEDINGS
We may be subject to legal proceedings and claims which arise in the ordinary course of our business. Although occasional adverse decisions or settlements may occur, we believe that the final disposition of such matters should not have a material adverse effect on our financial position, results of operations, or liquidity.
As of the date of this Prospectus, we were not a party to any legal proceedings that could have a material adverse effect on our business, financial condition, or operating results. Further, to our knowledge, no other proceedings have been initiated or threatened against us.
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MANAGEMENT
Directors and Executive Officers
All directors hold office for a one (1)-year period and have been duly elected and qualified. Directors are elected at the annual meetings to serve for one-year terms or until his or her successor has been elected and qualified, or until his or her death, resignation, or removal. Each of our executive officers is appointed by and serves at the discretion of the Board.
Our directors and executive officers, their ages, positions held, and duration of such are as follows:
| Name | Age | Position | Date
First Elected or Appointed | |||
| Robert Clark | 46 | Chief Executive Officer, President, Chairman of our Board, and Secretary | August 12, 2015 | |||
| Lori Radcliffe | 49 | Chief Financial Officer | October 7, 2019 | |||
| Christopher Selinger | 52 | Vice President of Sales | September 1, 2018 | |||
| Matthew Crystal | 51 | Independent Director | July 26, 2018 |
Business Experience
The following is a brief overview of the business experience of each of our directors and executive officers during at least the past five years, including their principal occupations or employment during the period, the name and principal business of the organization by which they were employed, and certain of their other directorships:
Robert Clark, Chief Executive Officer, President, Chairman of our Board, and Secretary
Robert Clark has served as our Chief Executive Officer, President, and the Secretary and the Chairman of the Board since August 2015. Since August 2015, Mr. Clark also serves as an Audit, Compensation, and Governance and Nominating Committee member. Prior to joining us, Mr. Clark was the President of Branded Legacy (formerly known as Elev8 Brands, Inc.) from 2012 through 2015. Mr. Clark obtained a Bachelor of Science degree from the School of Business at the University of Central Florida in 2003. We believe that Mr. Clark’s background in product development and design, along with more than 12 years of management experience, allows him to have a great understanding of all levels within a company and successfully bring new products to market qualifies him to serve on our Board.
Lori Radcliffe, Chief Financial Officer
Lori Radcliffe has served as our Chief Financial Officer since October 2019. Ms. Radcliffe has worked in the accounting field since 2007, most recently as a Senior Accountant at Berman Hopkins Wright & Laham, CPA’s and Associates from 2015 through 2019. Ms. Radcliffe obtained her Bachelor of Science in Business Administration in Accounting from the University of Central Florida in 2016 and her MS in Accounting from Liberty University in 2019.
Christopher Selinger, Vice President of Sales
Christopher Selinger has served as our Vice President of Sales since September 2018. Prior to joining us, Mr. Selinger served as the Southeast Operations Manager of Southeast Beverage Company from 2015 to 2017 and as the Southeast Regional Sales Manager at Calypso Brands (King Juice Company, Inc.) from 2009 to 2015. Mr. Selinger obtained his Associate of Science degree in 1991 from Midland Technical College. We believe that Mr. Selinger’s background in growing Calypso Brands into a national brand gives him a great understanding of all levels within a company such as ours and the methods successfully to bring new products to market.
Matthew Crystal, Independent Director
Matthew Crystal has served as one of our independent directors since July 26, 2018. Mr. Crystal is also a member of our Audit Committee, Compensation Committee, and Governance and Nominating Committee. He has over 20 years of experience in direct response marketing, copywriting, and web development and specializes in technical training, marketing, presenting, and architectural marketing. Mr. Crystal is the co-founder, and since 2014, has been the Vice President of Operations and is currently the Chief Operations Officer of Elite Marketing Pro, LLC, a global community of over 50,000 active small business entrepreneurs in more than 100 countries. Mr. Crystal graduated from Florida State University in 1994 with a Bachelor of Science degree. We believe that Mr. Crystal’s leadership and marketing experience qualifies him to serve as a director.
Director Qualifications
We believe that our directors should have the highest professional and personal ethics and values, consistent with our longstanding values and standards. They should be committed to enhancing stockholder value and should have sufficient time to carry out their duties and to provide insight and practical wisdom based on experience. Their service on other boards of public companies should be limited to a number that permits them, given their individual circumstances, to perform responsibly all director duties for us. Each director must represent the interests of all stockholders. When considering potential director candidates, our Board also considers the candidate’s character, judgement, diversity, age, and skills, including business literacy and experience in the context of our needs and the needs of our Board.
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Involvement in Certain Legal Proceedings
None of our director and executive officers has been involved in any of the following events during the past ten years:
| (a) | any petition under the federal bankruptcy laws or any state insolvency laws filed by or against, or an appointment of a receiver, fiscal agent, or similar officer by a court for the business or property of such person, or any partnership in which such person was a general partner at or within two years before the time of such filing, or any corporation or business association of which such person was an executive officer at or within two years before the time of such filing; | |
| (b) | any conviction in a criminal proceeding or being subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); | |
| (c) | being subject to any order, judgment, or decree, not subsequently reversed, suspended, or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining such person from, or otherwise limiting, the following activities: (i) acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association, or insurance company, or engaging in or continuing any conduct or practice in connection with such activity; engaging in any type of business practice; or (ii) engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of federal or state securities laws or federal commodities laws; | |
| (d) | being the subject of any order, judgment, or decree, not subsequently reversed, suspended, or vacated, of any federal or state authority barring, suspending, or otherwise limiting for more than 60 days the right of such person to engage in any activity described in paragraph (c)(i) above, or to be associated with persons engaged in any such activity; | |
| (e) | being found by a court of competent jurisdiction (in a civil action), the SEC to have violated a federal or state securities or commodities law, and the judgment in such civil action or finding by the SEC has not been reversed, suspended, or vacated; | |
| (f) | being found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended, or vacated; | |
| (g) | being the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended, or vacated, relating to an alleged violation of: (i) any federal or state securities or commodities law or regulation; or (ii) 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 (iii) any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or | |
| (h) | 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. |
Family Relationships and Other Arrangements
There are no family relationships among any of our directors or executive officers.
None of our directors or executive officers was selected to serve in their respective roles pursuant to any arrangement or understanding between such director or executive officer and any person.
Committees of our Board
We have an Audit Committee, a Compensation Committee, and a Governance and Nominating Committee. Currently, we have one independent director, Matthew Crystal, who meets the independent director requirements of The Nasdaq Stock Market LLC and the SEC. Mr. Crystal serves on the Audit Committee, Compensation Committee, and Governance and Nominating Committee. Robert Clark, our President, Chief Executive Officer, and Chairman of our Board, serves on the Audit, Compensation, and Governance and Nominating Committees. Each committee has the responsibilities described below. During our fiscal year ended December 31, 2022, our Board acted by unanimous written consent two times and we had four formal Board meetings.
Audit Committee
On July 8, 2020, our Board adopted an audit committee charter (the “Audit Committee Charter”) to govern the Audit Committee. Currently, Messrs. Crystal and Clark (Chairman) serve on the Audit Committee. As of the date of this Annual Report, none of the members qualifies as an “audit committee financial expert.” During our fiscal year ended December 31, 2020, our Audit Committee did not formally meet.
The Audit Committee Charter requires that each member of the Audit Committee meet the independence requirements of The Nasdaq Stock Market LLC and the SEC and requires that the Audit Committee have at least one member that qualifies as an “audit committee financial expert.” We intend to identify potential new directors that can serve as Audit Committee members and satisfy these requirements. In addition to the enumerated responsibilities of the Audit Committee in the Audit Committee Charter, the primary function of the Audit Committee is to assist our Board in its general oversight of our accounting and financial reporting processes, audits of our financial statements, and internal control and audit functions. The Audit Committee Charter can be found online at https://konagoldhemp.com/media/pubco/Kona-Gold-Solutions-Audit-Committee-Charter.pdf.
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Compensation Committee
On July 8, 2020, our Board approved and adopted a charter (the “Compensation Committee Charter”) to govern the Compensation Committee. Currently, Messrs. Crystal and Clark (Chairman) serve as members of the Compensation Committee. Mr. Crystal meets the independence requirements of The Nasdaq Stock Market LLC and the SEC, qualifies as a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act, and qualifies as an outside director within the meaning of Section 162(m) of the Code. In addition to the enumerated responsibilities of the Compensation Committee in the Compensation Committee Charter, the primary function of the Compensation Committee is to oversee the compensation of our executives, produce an annual report on executive compensation for inclusion in our proxy statement, if and when required by applicable laws or regulations, and advise our Board on the adoption of policies that govern our compensation programs. The Compensation Committee Charter may be found online at https://konagoldhemp.com/media/pubco/Kona-Gold-Compensation-Committee-Charter.pdf. During our fiscal year ended December 31, 2022, our Compensation Committee did not formally meet.
Governance and Nominating Committee
On July 8, 2020, our Board approved and adopted a charter (the “Nominating Committee Charter”) to govern the Governance and Nominating Committee (the “Nominating Committee”). Currently, Messrs. Crystal and Clark (Chairman) serve as members of the Nominating Committee. The Nominating Committee Charter requires that each member of the Nominating Committee meets the independence requirements of Nasdaq and the SEC; however, currently only Mr. Crystal qualifies as independent. In addition to the enumerated responsibilities of the Nominating Committee in the Nominating Committee Charter, the primary function of the Nominating Committee is to determine the slate of director nominees for election to the board of directors, to identify and recommend candidates to fill vacancies occurring between annual stockholder meetings, to review our policies and programs that relate to matters of corporate responsibility, including public issues of significance to us and our stockholders, and any other related matters required by federal securities laws. The charter of the Nominating Committee may be found online https://konagoldhemp.com/media/pubco/Kona-Gold-Solutions-Nominating-Committee-Charter.pdf. During our fiscal year ended December 31, 2022, our Governance and Nominating Committee did not formally meet.
Compensation Committee Interlocks and Insider Participation
None of our executive officers serves as a member of the board of directors or compensation committee (or other committee performing equivalent functions) of any entity that has one or more executive officers serving on our Board or Compensation Committee.
Code of Ethics
On July 8, 2020, our Board approved and adopted a Code of Ethics and Business Conduct for Directors, Senior Officers, and Employees (the “Code of Ethics”) that applies to all of our directors, officers, and employees, including our principal executive officer and principal financial officer. The Code of Ethics addresses such individuals’ conduct with respect to, among other things, conflicts of interests; compliance with applicable laws, rules, and regulations; full, fair, accurate, timely, and understandable disclosure by us; competition and fair dealing; corporate opportunities; confidentiality; protection and proper use of our assets; and reporting suspected illegal or unethical behavior. The Code of Ethics is available on our website at https://konagoldhemp.com/media/pubco/Kona-Gold-Solutions-Code-of-Ethics-and-Business-Conduct.pdf.
EXECUTIVE COMPENSATION
Summary Compensation Table
The following table provides certain summary information concerning compensation awarded to, earned by, or paid to the following “named executive officers,” for our 2022 and 2021 fiscal years:
| (a) | all individuals serving as our principal executive officer during our 2022 fiscal year; | |
| (b) | each of our two other most highly compensated executive officers who were serving as executive officers at the end of our 2022 fiscal year. |
We did not have any individuals for whom disclosure would have been required but for the fact that the individual was not serving as an executive officer as of the end of our 2022 fiscal year.
| Name and Principal Position | Fiscal Year | Salary ($) | Bonus ($) | Stock Awards ($) | Options Awards ($) | All Other Compensation ($) | Total ($) | |||||||||||||||||||||
| Robert Clark, CEO, President, | 2022 | $ | 350,000 | $ | - | $ | - | $ | - | $ | - | $ | 350,000 | |||||||||||||||
| Chairman, and Secretary (1) | 2021 | $ | 350,000 | $ | - | $ | - | $ | - | $ | - | $ | 350,000 | |||||||||||||||
| Lori Radcliffe, CFO | 2022 | $ | 160,000 | $ | - | $ | - | $ | - | $ | - | $ | 160,000 | |||||||||||||||
| 2021 | $ | 122,500 | $ | - | $ | - | $ | - | $ | - | $ | 122,500 | ||||||||||||||||
| Christopher Selinger, VP Sales | 2022 | $ | 96,000 | $ | 6,000 | $ | - | $ | - | $ | 4,316 | $ | 106,316 | |||||||||||||||
| 2021 | $ | 96,000 | $ | 1,437 | $ | - | $ | - | $ | - | $ | 97,437 | ||||||||||||||||
| (1) | Mr. Clark declined payment of $72,083 of his $350,000 base salary for the year ended December 31, 2021; thus, for that fiscal year, we paid him $277,917 in base salary and accrued $72,083 of his compensation. |
Outstanding Equity Awards at Fiscal Year-End
There are no outstanding equity awards at fiscal year-end.
Retirement or Similar Benefit Plans
There are no arrangements or plans in which we provide retirement or similar benefits for our directors or executive officers.
Resignation, Retirement, Other Termination, or Change in Control Arrangements
We have entered into an executive employment agreement with our Chief Executive Office, with our Chief Financial Officer, and with our Vice President of Sales. Other than these three agreements, each of which are discussed below, we have no contract, agreement, plan, or arrangement, whether written or unwritten, that provides for payments to our directors or executive officers at, following, or in connection with the resignation, retirement, or other termination of our directors or executive officers, or a change in control of our Company or a change in our directors’ or executive officers’ responsibilities following a change in control.
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Robert Clark
On August 12, 2015, we entered into an Employment Agreement (the “Clark Employment Agreement”) with Robert Clark as our Chief Executive Officer, President, and Secretary, and Chairman of our Board. On December 1, 2016, we entered into an Amendment to Employment Agreement (the “Clark Amendment”; and, together with the Clark Employment Agreement, the “Amended Clark Employment Agreement”). The term of the Amended Clark Employment Agreement expired on July 12, 2020 and automatically renews for subsequent six-month terms unless terminated with cause by us. Pursuant the Amended Clark Employment Agreement, Mr. Clark is entitled to receive compensation equal to $350,000 per year for services provided to us. In addition, pursuant to the terms of the Amended Clark Employment Agreement, we agreed to issue 2,700,000 shares of our Series A Preferred Stock (our “Series A Preferred Stock”), 650,000 shares of our Series B Preferred Stock, 500,000 shares of our Series D Preferred Stock, and 200,000,000 shares of our Common Stock. Immediately, Mr. Clark decided to defer receipt of 80,000,000 shares of our Common Stock; thus, leaving 120,000,000 shares of our Common Stock to be issued to him. The 120,000,000 shares of our Common Stock were issued to Mr. Clark as follows: (i) on October 28, 2015, we issued 30,000,000 of such shares; (ii) on March 2, 2016, we issued 40,000,000 of such shares; and (iii) on May 16, 2016, we issued 50,000,000 of such shares. Mr. Clark later sold an aggregate of 12,900,000 of those shares and returned to us an aggregate of 90,000,000 of those shares, which resulted in (i) Mr. Clark remaining the record and beneficial owner of 17,100,000 of those shares of our Common Stock and (ii) subject to the July 2020 issuance to Mr. Clark of 140 shares of our Series C Preferred Stock (see below), our accruing and owing Mr. Clark an aggregate of 170,000,000 of those shares to be reissued to him upon his request pursuant to the terms of our oral agreement with him. In connection with the Amended Clark Employment Agreement, we also issued Mr. Clark 650,000 shares of our Series B Preferred Stock on December 6, 2017. In April 2019, Mr. Clark returned the 650,000 shares of our Series B Preferred Stock. During the year ended December 31, 2021, the Company reclassified its accrued stock compensation, previously reflected as a liability, to common shares issuable, a component of stockholders’ equity. The reclassification was recorded after the Company concluded its accrued stock compensation had a fixed and determinable price with no cash payment provision.
Mr. Clark declined his base salary compensation for our 2015, 2016, 2017, and 2018 fiscal years and declined all but $30,000 of his compensation for our 2019 fiscal year, declined payment of $257,500 of his $350,000 base salary for the year ended December 31, 2020, and declined payment of $72,083 of his $350,000 base salary for the year ended December 31, 2021. As a result, $329,583 of his compensation has been accrued.
Lori Radcliffe
On October 7, 2019, we entered into an Employment Agreement (the “Radcliffe Employment Agreement”) with Lori Radcliffe, as our Chief Financial Officer. The term of the Radcliffe Employment Agreement is two years and automatically renews for subsequent one-year terms unless terminated with cause by us. Pursuant to the Radcliffe Employment Agreement, Ms. Radcliffe is entitled to receive annual compensation of $80,000 for the first year and $100,000 for the second year for services provided to us. In addition, on January 27, 2020, we issued to Ms. Radcliffe 5,000,000 restricted shares of our Common Stock pursuant to the terms of the Radcliffe Employment Agreement. On September 1, 2021, we amended the Radcliffe Employment Agreement with Lori Radcliffe, pursuant to which Ms. Radcliffe is entitled to receive annual compensation of $160,000 per year for services provided to us.
Christopher Selinger
On September 1, 2018, we entered into an Employment Agreement (the “Selinger Employment Agreement”) with Christopher Selinger, as our Vice President of Sales. The term of the Selinger Employment Agreement is two years and automatically renews for subsequent one-year terms unless terminated with cause by us. Pursuant to the Selinger Employment Agreement, Mr. Selinger is entitled to receive annual compensation of $65,000 with an increase to annual compensation of $72,000 after six months of employment. We also agreed to pay $1 commission per case of certain of our beverage drinks during the term of the Selinger Employment Agreement; however, effective January 1, 2019, we amended the Selinger Employment Agreement (the “Selinger Amendment”) to no longer pay this commission. In addition, on September 7, 2018, we issued to Mr. Selinger 10,000,000 shares of our Common Stock pursuant to the terms of the Selinger Employment Agreement. On June 1, 2020, we amended the Selinger Employment Agreement with Christopher Selinger, pursuant to which Mr. Selinger is entitled to receive annual compensation of $96,000 per year for services provided to us.
Director Summary Compensation Table
For the fiscal year ended December 31, 2022, we did not pay or accrue any fees to our two then-serving non-employee directors, nor did we grant to either of them any stock awards, option awards, non-equity incentive plan compensation, nonqualified deferred compensation, or any other compensation. Robert Clark, our Chairman, did not receive any compensation for his services as a director. The compensation received by Mr. Clark as an employee is disclosed in the Summary Compensation Table above.
Narrative Discussion on Director Compensation
We have no formal plan for compensating our directors for their services in their capacity as directors. Our directors are entitled to reimbursement for reasonable travel and other out-of-pocket expenses incurred in connection with attendance at meetings of our Board. Our Board may award special renumeration to any director understanding any special services on their behalf other than services ordinarily required of a director.
William Jeffrey Outlaw
On September 8, 2019, we entered into an offer letter with William Jeffrey Outlaw as one of our Independent Directors. In consideration for Mr. Outlaw’s services, we issued 10,000,000 restricted shares of our Common Stock to him. Mr. Outlaw served as a director until his resignation, effective December 31, 2022.
Equity Incentive Plan
Currently, we have not adopted any equity incentive plan.
Golden Parachute Compensation
For a description of the terms of any agreement or understanding, whether written or unwritten, between any officer or director and us concerning any type of compensation, whether present, deferred, or contingent, that will be based on or otherwise will relate to an acquisition, merger, consolidation, sale, or other type of disposition of all or substantially all assets of our Company, see the disclosures including in this “Executive and Director Compensation” section.
Risk Assessment in Compensation Programs
During our 2021 and 2020 fiscal years, we paid limited compensation to our employees, including executive and non-executive officers. Due to the size and scope of our business, and the amount of compensation, we did not have any employee compensation policies and programs to determine whether our policies and programs create risks that are reasonably likely to have a material adverse effect on us.
Resignation, Retirement, Other Termination, or Change in Control Arrangements
We have no contract, agreement, plan, or arrangement, whether written or unwritten, that provides for payments to our directors or executive officers at, following, or in connection with the resignation, retirement, or other termination of our directors or executive officers, or a change in control of our company or a change in our directors’ or executive officers’ responsibilities following a change in control.
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Related Party Transactions
We follow ASC 850, Related Party Disclosures, for the identification of related parties and disclosure of related party transactions. When and if we contemplate entering into a transaction in which any executive officer, director, nominee, or any family member of the foregoing would have a direct or indirect interest, regardless of the amount involved, the terms of such transaction are to be presented to our full Board (other than any interested director) for approval, and documented in the Board minutes.
Other than as disclosed below, we have had no related party transactions during the past two fiscal years.
Equity Issuances
During the 2022 fiscal year, the Company issued an aggregate of 1,000,000 shares of Common Stock to Peter Troy pursuant to that certain Employment Agreement by and between Mr. Troy and the Company. The per-share fair market value of the shares was $0.0085 based upon the closing price of the Common Stock as reported by the OTCM on the date of issuance, for a total value of $8,500.
During the 2022 fiscal year, the Company issued an aggregate of 500,000 shares of Common Stock to John Sargent pursuant to that certain Employment Agreement by and between Mr. Sargent and the Company. The per-share fair market value of the shares was $0.0460 based upon the closing price of the Common Stock as reported by the OTCM on the date of issuance, for a total value of $22,995.
During the 2021 fiscal year, the Company issued an aggregate of 8,000,000 shares of Common Stock to William J. Stineman pursuant to that certain Employment Agreement by and between Mr. Stineman and the Company. The per-share fair market value of the shares was $0.0265 based upon the closing price of the Common Stock as reported by the OTCM on the date of issuance, for a total value of $212,000.
During the 2021 fiscal year, the Company issued 100,000 shares of Common Stock to John Torrence pursuant to performance award granted by the Company and Mr. Torrence. At the date of issuance, the per-share fair market value of the shares was $0.018 based upon the closing price of the Common Stock as reported by the OTCM on the date of issuance, for a total value of $1,800.
On July 10, 2020, the Company issued an aggregate of 4,000,000 shares of Common Stock upon the conversion of an aggregate of 4,000,000 shares of our Series A Preferred Stock by Robert Clark and Joseph Thornburg. The shares of our Common Stock were converted pursuant to the in terms of the Certificate of Designation of the Series A Preferred Stock.
On January 27, 2020, the Company issued 5,000,000 shares of Common Stock to Lori Radcliffe pursuant to that certain Employment Agreement dated October 7, 2019, by and between Ms. Radcliffe and the Company. At the date of issuance, the per-share fair market value of the shares was $0.0637 based on the closing price of the Common Stock as reported by the OTCM on the date of issuance, for a total value of $318,500.
On April 3, 2020, the Company issued 5,000,000 shares of the Common Stock to Paul O’Renick pursuant to an Employment Agreement dated October 1, 2019 in exchange for compensation owed in the amount of $157,500 for services provided. At the date of issuance, the per-share fair market value was $0.0315 based on the closing price of the Common Stock as reported by the OTCM on the date of issuance.
Notes Payable – Related Parties
We had the following outstanding notes payable during the period specified above:
| Note (1) | Issuance Date | Original Borrowing Amount | Interest Rate | Maturity Date | Largest Outstanding Balance since January 1, 2018 | Outstanding Balance as of December 31, 2022 | ||||||||||||||
| Line of Credit – Kona Gold | April 4, 2019 | $ | 1,500,000 | 3.75 | % | April 4, 2024 | $ | 1,369,651 | $ | 1,352,651 | ||||||||||
| Line of Credit – Gold Leaf | August 29, 2019 | $ | 200,000 | 3.75 | % | August 29, 2023 | $ | 125,500 | $ | 125,500 | ||||||||||
| Long-term Loan – Gold Leaf | February 19, 2019 | $ | 70,000 | 0 | % | March 15, 2023 | $ | 70,000 | $ | 47,500 | ||||||||||
| Line of Credit – Kona Gold | May 6, 2022 | $ | 300,000 | 3.75 | % | May 6, 2024 | $ | 260,000 | $ | 260,000 | ||||||||||
| (1) | Each of the notes payable was issued by us in favor of Robert Clark, our President, Chief Executive Officer, Secretary, and Chairman of our Board. |
Director Independence
Our Board is currently composed of two members – Messrs. Clark and Crystal. Our Common Stock is not currently listed for trading on a national securities exchange and, as such, we are not subject to any director independence standards. However, we determined that one of our directors, Mr. Crystal qualifies as an independent director. We determined that Mr. Clark, our Chairman and an executive officer, is not independent. We evaluated independence in accordance with the rules of The Nasdaq Stock Market LLC and the SEC and considered all relevant facts and circumstances in making this determination (including any relationships set forth in this annual report under the heading “Related Person Transactions”). Messrs. Clark and Crystal, serve on our Audit Committee, our Compensation Committee, and Governance and Nominating Committee.
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PRINCIPAL STOCKHOLDERS
Common Stock
The following sets forth certain information, as of May 15, 2023, regarding the beneficial ownership of our Common Stock by (i) each of our directors, (ii) each of our named executive officers, (iii) our directors and executive officers as a group, and (iv) each person or entity who, to our knowledge, owns more than five percent of our Common Stock. The information reflects beneficial ownership, as determined in accordance with the SEC’s rules and generally includes voting or investment power with respect to our Common Stock, and is based on 2,226,940,557 shares of our Common Stock issued and outstanding as of May 15, 2023. Unless otherwise indicated in the footnotes to the following table, each person named in the table has sole voting and investment power and the address for each person is 746 North Drive, Suite A, Melbourne, Florida 32934.
| Name of Beneficial Owner | Amount and Nature of Beneficial Ownership Before Completion of the Offering (1) | Percent Owned Before Completion of the Offering | Amount and Nature of Beneficial Ownership After Completion of the Offering (1) | Percent Owned After Completion of the Offering | ||||||||||||
| Robert Clark, CEO | 687,750,000 | (2) | 23.74 | % | 687,750,000 | (2) | 19.10 | % | ||||||||
| Lori Radcliffe, CFO | 5,000,000 | * | 5,000,000 | * | ||||||||||||
| Christopher Selinger, VP of Sales | 10,000,000 | * | 10,000,000 | * | ||||||||||||
| Matthew Crystal, Independent Director | 500,000 | * | 500,000 | * | ||||||||||||
| All executive officers and directors as a group (4 persons) | 703,250,000 | (3) | 24.27 | % | 703,250,000 | (3) | 19.54 | % | ||||||||
| Beneficial owners of more than 5% | ||||||||||||||||
| YAII PN, Ltd. (4) | 158,333,333 | (5) | 6.64 | % | 158,333,333 | 5.13 | % | |||||||||
| Mast Hill Fund, L.P. (6) | 1,047,780,139 | (7) | 36.62 | %(7) | 349,555,556 | 10.88 | % | |||||||||
| * | Represents less than one percent. |
As of May 15, 2023, to our knowledge, except as noted above, no persons are beneficial owners of greater than five percent of our Common Stock.
| (1) | Securities convertible into shares of our Common Stock, currently or within 60 days, are deemed to be outstanding shares of our Common Stock for purposes of computing the percentage ownership of the person holding such convertible securities, but are not deemed outstanding for purposes of computing the percentage ownership of any other person. |
| (2) | Includes 17,100,140 shares of our Common Stock held. Also includes: (i) 650,000 shares of our Common Stock issuable upon conversion of 650,000 shares of our Series B Preferred Stock that are not currently issued to Mr. Clark, (ii) 1,000 shares of our Common Stock issuable upon conversion of 1,000 shares of Series C Preferred Stock, (iii) 500,000,000 shares of our Common Stock issuable upon conversion of 500,000 shares of Series D Preferred Stock; and (iii) 169,998,860 shares of our Common Stock that are owed to Mr. Clark as common shares issuable, a component of stockholders’ equity, to be reissued to him upon his request pursuant to the terms of the oral agreement with him, but which shares are not currently issued and outstanding. |
| Pursuant to the Amended Clark Employment Agreement, we agreed to issue 2,700,000 shares of our Series A Preferred Stock, 650,000 shares of our Series B Preferred Stock, 500,000 shares of our Series D Preferred Stock, and 200,000,000 shares of our Common Stock. Immediately, Mr. Clark decided to defer receipt of 80,000,000 shares of our Common Stock; thus, leaving 120,000,000 shares of our Common Stock to be issued to him. The 120,000,000 shares of our Common Stock were issued to Mr. Clark as follows: (i) on October 28, 2015, we issued 30,000,000 of such shares; (ii) on March 2, 2016, we issued 40,000,000 of such shares; and (iii) on May 16, 2016, we issued 50,000,000 of such shares. Mr. Clark later sold an aggregate of 12,900,000 of those shares and returned to us an aggregate of 90,000,000 of those shares, which resulted in (i) Mr. Clark remaining the record and beneficial owner of 17,100,000 of those shares of our Common Stock and (ii) subsequent to (a) our July 2020 issuance to Mr. Clark of 140 shares of our Series C Preferred Stock (all of which shares were automatically converted into an aggregate of 140 shares of Common Stock on the one-year anniversary of their issuance date) and (b) our March 2023 issuance to Mr. Clark of 1,000 shares of our Series C Preferred Stock, our owing to Mr. Clark an aggregate of 169,998,860 of those shares of Common Stock to be reissued to him upon his request pursuant to the terms of our oral agreement with him. | |
| In connection with the Amended Clark Employment Agreement, we also issued Mr. Clark 650,000 shares of our Series B Preferred Stock on December 6, 2017. In April 2019, Mr. Clark returned the 650,000 shares of our Series B Preferred Stock and these shares to be issued to Mr. Clark at a later date. | |
| There is no written agreement between Mr. Clark and us regarding the terms of the deferment of these securities. However, we orally agreed to issue these deferred securities at such time as Mr. Clark requests such securities to be issued. Thus, the shares of our Common Stock owed to Mr. Clark could be issued within 60 days of the date of the annual report. | |
| (3) | Includes all of the shares beneficially owned by our executive officers and directors. |
| (4) | YAII PN, Ltd. is a Cayman Island exempt company. YAII PN, Ltd. is managed by Yorkville Advisors Global, LP. Investment decisions for Yorkville Advisors Global, LP are made by Mark Angelo, its portfolio manager. The address of such holder is 1012 Springfield Avenue, Mountainside, NJ 07092. |
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| (5) | Includes (i) 50,000,000 shares of our Common Stock that are underlying the warrants that we granted in February 2021, (ii) 100,000,000 shares of our Common Stock that are underlying the warrants that we granted in August 2021, and (iii) 8,333,333 shares of our Common Stock that are underlying the warrants that we granted in May 2022 Warrant Shares. Notwithstanding the number of shares of Common Stock and the percentage ownership thereof disclosed in this table, each of the Warrants is subject to an “exercise blocker,” such that YAII PN, Ltd. cannot exercise any portion of the warrants into the underlying shares of our Common Stock, if such action would result in YAII PN, Ltd. and its affiliates holding more than 4.99% of the then-issued and outstanding shares of our Common Stock following such exercise. |
| (6) | Mast Hill Fund, L.P. is a Delaware limited partnership. Investment decisions for Mast Hill Fund, L.P. are made by Patrick Hassani. The address of such holder is 40 Wall Street, New York, New York 10005. |
| (7) | Includes (a) 62,900,000 shares Mast Hill owns of record and beneficially; (b) 642,224,583 shares of our Common Stock (the Put Shares) offered for resale by Mast Hill, which shares are issuable by the Company pursuant to the EPA; (c) 105,555,556 shares of our Common Stock issuable upon conversion of a convertible promissory note issued to Mast Hill in March 2023; (d) 57,500,000 shares of our Common Stock issuable upon conversion of a convertible promissory note issued to Mast Hill; in April 2023; (e) an aggregate of 123,600,000 shares of our Common Stock issuable upon exercise of common stock purchase warrants that we granted to Mast Hill in connection with the two above-referenced convertible promissory notes; and (f) 56,000,000 shares of our Common Stock issuable upon exercise of the EPA Warrant. Notwithstanding the number of shares of Common Stock and the percentage ownership thereof disclosed in this table, each of the convertible promissory notes and the warrants held by Mast Hill is subject to an “exercise blocker,” such that Mast Hill cannot convert any portion of the promissory notes or exercise any portion of the warrants into the underlying shares of our Common Stock, if such action would result in Mast Hill and its affiliates holding more than 4.99% of the then-issued and outstanding shares of our Common Stock following such conversion or exercise, as applicable. |
Series B Preferred Stock
The following sets forth certain information, as of May 15, 2023, regarding the beneficial ownership of our Series B Preferred Stock by (i) each of our directors, (ii) each of our named executive officers, (iii) our directors and executive officers as a group, and (iv) each person or entity who, to our knowledge, owns more than five percent of our Series B Preferred Stock. The information reflects beneficial ownership, as determined in accordance with the SEC’s rules and are based on 488,000 shares of our Series B Preferred Stock issued and outstanding as of May 15, 2023. Unless otherwise indicated in the footnotes to the following table, each person named in the table has sole voting and investment power and the address for each person is 746 North Drive, Suite A, Melbourne, Florida 32934.
| Name of Beneficial Owner | Amount and Nature of Beneficial Ownership | Percentage Beneficially Owned | ||||||
| Robert Clark, CEO | 650,000 | (1) | 57.1 | % | ||||
| Lori Radcliffe, CFO | - | - | ||||||
| Christopher Selinger, VP of Sales | - | - | ||||||
| Matthew Crystal, Independent Director | - | - | ||||||
| All executive officers and directors as a group (4 persons) | 650,000 | 57.1 | % | |||||
| Beneficial owner of more than 5% | ||||||||
| Steven Bauer (2) | 66,000 | 13.5 | % | |||||
| Blake Bolin (3) | 25,000 | 5.1 | % | |||||
| Roger A. Eagan Jr. (4) | 80,000 | 16.4 | % | |||||
| Terry L. Landers (5) | 150,000 | 30.7 | % | |||||
| Judith A. Wilt (6) | 150,000 | 30.7 | % | |||||
| (1) | These shares of Series B Preferred Stock were previously issued to Mr. Clark. However, Mr. Clark returned them to us with the understanding that the shares would be re-issued to him in the future; thus, the shares of Series B Preferred Stock may be issued to Mr. Clark within 60 days of the date of this annual report. See footnote (2) to the table above for our Common Stock for additional information. |
| (2) | Mr. Bauer’s address is 7837 Penswood Street, Charlotte, North Carolina 28277. |
| (3) | Mr. Bolin’s address is 1971 NE 7th Street, Ocala, Florida 34470. |
| (4) | Mr. Eagan’s address is 7837 Penswood Street, Charlotte, North Carolina 28277. |
| (5) | Mr. Landers’ address is 390 North Wickham Road, Suite F, Melbourne, Florida 32935. |
| (6) | Ms. Wilt’s address is 390 North Wickham Road, Suite F, Melbourne, Florida 32935. |
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Series C Preferred Stock
The following sets forth certain information, as of May 15, 2023, regarding the beneficial ownership of our Series C Preferred Stock by (i) each of our directors, (ii) each of our named executive officers, (iii) our directors and executive officers as a group, and (iv) each person or entity who, to our knowledge, owns more than five percent of our Series C Preferred Stock. The information reflects beneficial ownership, as determined in accordance with the SEC’s rules of our Series C Preferred Stock issued and outstanding as of May 15, 2023. Unless otherwise indicated in the footnotes to the following table, each person named in the table has sole voting and investment power and the address for each person is 746 North Drive, Suite A, Melbourne, Florida 32934.
| Name of Beneficial Owner | Amount and Nature of Beneficial Ownership | Percentage Beneficially Owned | ||||||
| Robert Clark, CEO | 1,000 | 100 | % | |||||
| Lori Radcliffe, CFO | - | - | ||||||
| Christopher Selinger, VP of Sales | - | - | ||||||
| Matthew Crystal, Independent Director | - | - | ||||||
| All executive officers and directors as a group (4 persons) | 1,000 | 100 | % | |||||
Series D Preferred Stock
The following sets forth certain information, as of May 15, 2023, regarding the beneficial ownership of our Series D Preferred Stock by (i) each of our directors, (ii) each of our named executive officers, (iii) our directors and executive officers as a group, and (iv) each person or entity who, to our knowledge, owns more than five percent of our Series D Preferred Stock. The information reflects beneficial ownership, as determined in accordance with the SEC’s rules and are based on 500,000 shares of our Series D Preferred Stock issued and outstanding as of May 15, 2023. Unless otherwise indicated in the footnotes to the following table, each person named in the table has sole voting and investment power and the address for each person is 746 North Drive, Suite A, Melbourne, Florida 32934.
| Name of Beneficial Owner | Amount and Nature of Beneficial Ownership | Percentage Beneficially Owned | ||||||
| Robert Clark, CEO | 500,000 | 100 | % | |||||
| Lori Radcliffe, CFO | - | - | ||||||
| Christopher Selinger, VP of Sales | - | - | ||||||
| Matthew Crystal, Independent Director | - | - | ||||||
| All executive officers and directors as a group (4 persons) | 500,000 | 100 | % | |||||
DESCRIPTION OF SECURITIES
General
The following summary includes a description of material provisions of our capital stock; however, the description does purport to be complete and is subject to, and is qualified by, our A&R Certificate of Incorporation, our Certificate of Designation of the Preferences, Rights, and Limitations of our Series B Convertible Preferred Stock, Certificate of Designation of the Preferences, Rights, and Limitations of our Series C Convertible Preferred Stock, our Certificate of Designation of the Preferences, Rights, and Limitations of our Series D Convertible Preferred Stock, and our A&R Bylaws, all of which are filed as exhibits to this Registration Statement of which this Prospectus is a part.
Authorized and Outstanding Securities
We have authorized 10,500,000,000 shares of our Common Stock, par value of $0.00001 per share, of which 2,226,940,557 shares were issued and outstanding as of May 15, 2023. We have authorized 10,000,000 shares of our preferred stock, par value of $0.00001, of which 989,000 shares were issued and outstanding as of May 15, 2023. The following table sets forth the authorized and issued and outstanding securities as of May 15, 2023:
| Security | Authorized Securities | Issued and Outstanding Securities | ||||||
| Common Stock | 10,500,000,000 | 2,226,940,557 | ] | |||||
| Series B Preferred Stock | 1,200,000 | 488,000 | ||||||
| Series C Preferred Stock | 2,000 | 1,000 | ||||||
| Series D Preferred Stock | 500,000 | 500,000 | ||||||
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Common Stock
The holders of shares of our Common Stock are entitled to one vote per share on all matters requiring a vote of the stockholders, including the election of directors. Holders of shares of our Common Stock do not have cumulative voting rights. Holders of shares of our Common Stock are entitled to share ratably in dividends, if any, as may be declared from time to time by our Board in its discretion from funds legally available therefor, subject to preferences that may be applicable to our preferred stock, if any, then outstanding. We have never declared any dividends and, at present, we have no plans to declare any dividends. In the event of a liquidation, dissolution, or winding up of the Company, the holders of shares of our Common Stock are entitled to share pro rata all assets remaining after payment in full of all liabilities, subject to prior distribution rights of our preferred stock, if any, then outstanding. Our Common Stock has no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to our Common Stock.
Preferred Stock
Our A&R Certificate of Incorporation authorizes our Board, subject to any limitations prescribed by law, without further stockholder approval, to establish and to issue from time to time one or more series of our preferred stock, par value $0.00001 per share, and to designate the rights, privileges, preferences, restrictions, and limitations of any given series of preferred stock. Accordingly, our Board, without stockholder approval, may issue shares of our preferred stock with dividend, liquidation, conversion, voting, or other rights that could adversely affect the voting power or other rights of the holders of our Common Stock. The issuance of our preferred stock could have the effect of restricting dividends payable to holders of our Common Stock, diluting the voting power of our Common Stock, impairing the liquidation rights of our Common Stock, or delaying or preventing a change in control of us, all without further action by our stockholders.
Series B Preferred Stock
The holders of shares of our Series B Preferred Stock do not have voting rights and are not entitled to share ratably in dividends, if any, as may be declared from time to time by our Board in its discretion from funds legally available therefor, subject to preferences that may be applicable to our preferred stock, if any, then issued and outstanding. In the event of a liquidation, dissolution, or winding up of our Company, the holders of shares of our Series B Preferred Stock are entitled to share pro rata $1.00 as a liquidation preference. Originally, each share of our Series B Preferred Stock had conversion rights, whereby each share of our Series B Preferred Stock was convertible into 1,000 shares of our Common Stock. On July 12, 2018, we amended the designation such that each share of our Series B Preferred Stock could then be converted into one share of our Common Stock.
Series C Preferred Stock
The Series Preferred C Stock are entitled to 2,000,000 votes for every share of our Series Preferred C Stock held. The holders of our Series Preferred C Stock are not entitled to receive dividends. Upon any liquidation, dissolution, or winding up of our Company, whether voluntary or involuntary, before any distribution or payment will be made to the holders of any stock ranking junior to our Series C Preferred Stock, the holders of our Series C Preferred Stock will be entitled to be paid out of our assets an amount equal to $1.00 in the aggregate for all issued and outstanding shares of our Series C Preferred Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations, and the like with respect to such shares) (the “Preference Value”). After the payment of the full applicable Preference Value of each share of our Series C Preferred Stock, our remaining assets legally available for distribution, if any, will be distributed ratably to the holders of our Common Stock. Our Series C Preferred Stock has conversion rights, whereby each share of our Series C Preferred Stock automatically converts into one share of our Common Stock on the one-year anniversary of the issuance date. Prior to July 8, 2020, the Certificate of Designation for our Series C Preferred Stock provided for conversion rights, whereby each share of our Series C Preferred Stock was convertible into 1,000 shares of our Common Stock.
Series D Preferred Stock
The holders of shares of our Series D Preferred Stock have full voting rights and powers equal to the voting rights and powers of the holders of shares of our Common Stock. The holders of shares of our Series D Preferred Stock, voting as a separate class, are entitled to elect a majority of our directors. The holders of shares of our Common Stock and other classes and series of our capital stock, voting together as a single class, are entitled to elect our remaining directors. The holders of shares of our Series D Preferred Stock do not have any preferential dividend rights and are entitled to receive dividends, if any, only if, when, and as declared by our Board. Upon any liquidation, dissolution, or winding up of the Company, whether voluntary or involuntary, before any distribution or payment shall be made to the holders of any stock ranking junior to our Series D Preferred Stock, the holders of our Series D Preferred Stock will be entitled to be paid out of our assets an amount equal to $1.00 in the aggregate for all issued and outstanding shares of Series D Preferred Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations, and the like with respect to such shares). After the payment of the full applicable Preference Value of each share of our Series D Preferred Stock, our remaining assets legally available for distribution, if any, will be distributed ratably to the holders of our Common Stock. Our Series D Preferred Stock has conversion rights, whereby each share of Series D Preferred Stock is convertible into 1,000 shares of our Common Stock.
Options
We currently do not have any options outstanding.
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Warrants
We currently have 158,333,333 warrants outstanding in favor of one of our otherwise unaffiliated third-party investors. Fifty million of the warrants (with an exercise price of $0.03 per share) will expire on February 10, 2024; 100,000,000 of the warrants (with an exercise price of $0.03 per share) will expire on August 20, 2024; and 8,333,333 of the warrants (with an exercise price of $0.03 per share) will expire on May 4, 2025.
We currently have 4,055,556 warrants outstanding in favor of Darbie. The warrants (with an exercise price of $0.054 per share) will expire on July 28, 2027.
We currently have (a) 80,000,000 warrants outstanding in favor of Mast Hill (with an exercise price of $0.0045 per share) that will expire on March 13, 2028, (b) 43,600,000 warrants outstanding in favor of Mast Hill (with an exercise price of $0.0045 per share) that will expire on April 25, 2028; and (c) 56,000,000 warrants outstanding in favor of Mast Hill (with an exercise price of $0.0045 per share) that will expire on March 30, 2028.
Penny Stock Considerations
Our Common Stock is deemed to be “penny stock,” as that term is generally defined in the Exchange Act to mean an equity security with a per-share price of less than $5.00. Our shares of Common Stock, thus, will be subject to rules that impose sales practice and disclosure requirements on broker-dealers who engage in certain transactions involving a penny stock.
Under the penny stock regulations, a broker-dealer selling a penny stock to anyone other than an established customer or accredited investor must make a special suitability determination regarding the purchaser and must receive the purchaser’s written consent to the transaction prior to the sale, unless the broker-dealer is otherwise exempt. Generally, an individual with a net worth in excess of $1,000,000 (excluding the value of the individual’s house) or an individual, who, in the two prior years had, and has a reasonable expectation that in the current year will have, an annual income exceeding $200,000 individually or $300,000 together with his or her spouse is considered to be an accredited investor. In addition, under the penny stock regulations, the broker-dealer is required to:
| ● | Deliver, prior to any transaction involving a penny stock, a disclosure schedule prepared by the SEC relating to the penny stock market, unless the broker-dealer or the transaction is otherwise exempt; | |
| ● | Disclose commissions payable to the broker-dealer and its registered representatives and current bid and offer quotations for the securities; | |
| ● | Send monthly statements disclosing recent price information pertaining to the penny stock held in a customer’s account, the account’s value, and information regarding the limited market in penny stocks; and | |
| ● | Make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s written agreement to the transaction, prior to conducting any penny stock transaction in the customer’s account. |
Because of these regulations, broker-dealers may encounter difficulties in their attempt to buy or sell shares of our Common Stock, which may affect the ability of the Selling Stockholders or other holders to sell their shares in the secondary market and have the effect of reducing the level of trading activity in the secondary market. These additional sales practice and disclosure requirements could impede the sale of our Common Stock. In addition, the liquidity for shares of our Common Stock may be decreased, with a corresponding decrease in the price of those shares. Our shares of Common Stock are likely to be subject to such penny stock rules for the foreseeable future.
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Anti-Takeover Effects of Provisions of Our A&R Certificate of Incorporation, Our A&R Bylaws, and Delaware Law
Some provisions of our A&R Certificate of Incorporation, our A&R Bylaws, and Delaware law could make the following transactions more difficult: an acquisition of us by means of a tender offer; an acquisition of us by means of a proxy contest or otherwise; or the removal of our incumbent officers and directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that our stockholders may otherwise consider to be in their best interest or in our best interests, including transactions that provide for payment of a premium over the market price for our shares of Common Stock.
These provisions, summarized below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our Board. We believe that the benefits of the increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.
Undesignated Preferred Stock
The ability of our Board, without action by our stockholders, to issue up to 9,011,000 shares of our undesignated preferred stock with voting or other rights or preferences solely as designated by our Board could impede the success of any attempt to change control of us. These and other provisions may have the effect of deferring hostile takeovers or delaying changes in control or management of our Company.
Stockholder Meetings
Our A&R Bylaws provide that a special meeting of stockholders may be called only by the Chair of our Board, our Chief Executive Officer, our president, or a majority of the members of our Board.
Requirements for Advance Notification of Stockholder Nominations and Proposals
Our A&R Bylaws establish advance notice procedures with respect to stockholder proposals to be brought before a stockholder meeting and the nomination of candidates for election as directors, other than nominations made by or at the direction of our Board or a committee of our Board. Additionally, vacancies and newly created directorships may be filled only by a vote of a majority of the directors then in office, even though less than a quorum, and not by the stockholders.
Removal of Directors
Our A&R Bylaws provide that a director may be removed from office by our stockholders with or without cause, upon the approval of the holders of at least a majority in voting power of the outstanding shares of stock entitled to vote in the election of directors.
Stockholders Not Entitled to Cumulative Voting
Our A&R Certificate of Incorporation does not permit stockholders to cumulate their votes in the election of directors.
Delaware Anti-Takeover Statute
We are subject to Section 203 of the DGCL, which prohibits persons deemed to be “interested stockholders” from engaging in a “business combination” with a publicly-held Delaware corporation for three years following the date these persons become interested stockholders unless the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an “interested stockholder” is a person who, together with affiliates and associates, owns, or, in certain cases, within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s voting stock. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. The existence of this provision may have an anti-takeover effect with respect to transactions not approved in advance by our Board.
Choice of Forum
Our A&R Bylaws provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will, to the fullest extent permitted by applicable law, be the sole and exclusive forum for: (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors or officers (or affiliate of any of the foregoing) to us or to our stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or of our A&R Certificate of Incorporation or our A&R Bylaws, or (iv) any other action asserting a claim arising under, in connection with, and governed by the internal affairs doctrine; provided, that the exclusive forum provisions will not apply to suits brought to enforce any liability or duty created by the Securities Act or the Exchange Act, or to any claim for which the federal courts have exclusive jurisdiction. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of, and consented to, the provisions of our A&R Bylaws described in the preceding sentence.
Amendment of the Provisions of our A&R Bylaws
Our A&R Bylaws provide that our Board has the power to make, amend, alter, or repeal our A&R Bylaws.
Amendment of Charter Provisions
Our A&R Certificate of Incorporation may be amended as provided for by Delaware law.
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The provisions of Delaware law, our A&R Certificate of Incorporation, and our A&R Bylaws could have the effect of discouraging others from attempting hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of our Common Stock that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing changes in the composition of our Board and management. It is possible that these provisions could make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interests.
Conflicts of Interest
Delaware law permits corporations to adopt provisions renouncing any interest or expectancy in certain opportunities that are presented to the corporation or its officers, directors, or stockholders. Our A&R Bylaws provide that no contract or other transaction between us and one or more of our directors or any other corporation, firm, association, or entity in which one or more of our directors are directors or officers or are financially interested, will be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of our Board or one of its committees that authorizes, approves, or ratifies such contract or transaction or because his, her, or their votes are counted for such purpose, if: (i) the fact of such relationship or interest is disclosed or known to our Board or committee thereof that authorizes, approves, or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors; (ii) the fact of such relationship or interest is disclosed or known to the stockholders entitled to vote and they authorize, approve, or ratify such contract or transaction by vote or written consent; or (iii) the contract or transaction is fair and reasonable to us at the time it is authorized by our Board, a committee thereof, or the stockholders. Conflicted or interested directors may be counted in determining the presence of a quorum at a meeting of our Board or a committee thereof that authorizes, approves, or ratifies such contract or transaction.
Limitation of Liability and Indemnification Matters
Our A&R Certificate of Incorporation limits the liability of our directors for monetary damages for breach of their fiduciary duty as directors, except to the extent such exemption or limitation thereof is not permitted under the DGCL and applicable law. Delaware law provides that such a provision may not limit the liability of directors:
| ● | for any breach of their duty of loyalty to us or to our stockholders; | |
| ● | for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; | |
| ● | for unlawful payment of a dividend or unlawful stock repurchase or redemption, as provided under Section 174 of the DGCL; or | |
| ● | for any transaction from which the director derived an improper personal benefit. |
Any amendment, repeal, or modification of these provisions will be prospective only and would not affect any limitation on liability of a director for acts or omissions that occurred prior to any such amendment, repeal, or modification.
Our A&R Certificate of Incorporation also requires us to pay any expenses incurred by any director or officer in defending against any such action, suit, or proceeding in advance of the final disposition of such matter to the fullest extent permitted by law, subject to the receipt of an undertaking by or on behalf of such person to repay all amounts so advanced if it shall ultimately be determined that such person is not entitled to be indemnified as authorized by our A&R Bylaws or otherwise. We have entered or will enter into indemnification agreements with each of our directors and executive officers. We believe that the limitation of liability provision in our A&R Bylaws facilitates our ability to continue to attract and retain qualified individuals to serve as directors and officers.
Transfer Agent
The transfer agent for our Common Stock is Securities Transfer Corporation at 2901 N. Dallas Parkway, Suite 380, Plano, TX 75093. The transfer agent’s telephone number is (469) 633-0101.
SHARES ELIGIBLE FOR FUTURE SALE
We cannot predict the effect, if any, that market sales of shares of our Common Stock or the availability of shares of our Common Stock for sale will have on the market price of our Common Stock prevailing from time to time. Future sales of our Common Stock in the public market, or the availability of such shares for sale in the public market, could adversely affect market prices prevailing from time to time. The availability for sale of a substantial number of shares of our Common Stock including Put Shares acquired upon exercise of our rights pursuant to the Equity Line and upon exercise of rights under the Warrants issued to Selling Stockholders and such other convertible notes, options, and warrants as may be outstanding from time to time, could materially adversely affect the market price of our Common Stock. In addition, sales of our Common Stock in the public market after the restrictions lapse as described below, or the perception that those sales may occur, could cause the prevailing market price to decrease or to be lower than it might be in the absence of those sales or perceptions.
Rule 144
In general, under Rule 144 of the Securities Act as currently in effect, beginning 90 days after the date of this prospectus, an “affiliate” who has beneficially owned our shares for a period of at least six months is entitled to sell within any three-month period a number of shares that does not exceed the greater of: (1) 1% of the then-outstanding shares of Common Stock, or (2) if and when the Common Stock is listed on a national securities exchange, the average weekly trading volume of the Common Stock during the four calendar weeks preceding the date on which a notice of such sale was filed under Rule 144. Such sales under Rule 144 of the Securities Act are also subject to prescribed requirements relating to the manner of sale, notice and availability of current public information about us.
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LEGAL MATTERS
The validity of our Common Stock and certain legal matters will be passed upon for us by Clark Hill LLP, Los Angeles, California.
EXPERTS
The consolidated financial statements of Kona Gold Beverage, Inc. and its subsidiaries as of December 31, 2022 and 2021, and for each of the two years in the period ended December 31, 2022, included in this Prospectus, which constitutes a part of this Registration Statement, have been so included in reliance upon the report of Weinberg & Company, P.A. (“Weinberg”), an independent registered public accounting firm, appearing elsewhere herein and in this Registration Statement, given on said firm’s authority as experts in auditing and accounting. Weinberg’s report regarding Kona Gold includes an explanatory paragraph related to our ability to continue as a going concern.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a Registration Statement on Form S-1 under the Securities Act regarding the shares of our Common Stock offered hereby. This Prospectus does not contain all of the information found in our Registration Statement, portions of which are omitted as permitted under the rules and regulations of the SEC. For further information regarding us and the securities offered by this Prospectus, please refer to our Registration Statement, including its exhibits and schedules. Statements made in this Prospectus concerning the contents of any contract, agreement, or other document filed as an exhibit to the registration statement are summaries of the terms of those documents. The Registration Statement, of which this Prospectus forms a part, including its exhibits and schedules, is available on the SEC’s website at www.sec.gov.
After this Registration Statement has been declared effective by the SEC, we will be required to file periodic reports, proxy statements, and other information with the SEC. These documents may be accessed through the SEC’s website at www.sec.gov.
You can obtain copies of any of the documents incorporated by reference in this Prospectus from us, or as described above, through the SEC’s website. Documents incorporated by reference are available from us, without charge, excluding all exhibits unless specifically incorporated by reference in the documents. You may obtain documents incorporated by reference in this Prospectus by writing to us at the following address: 746 North Drive, Suite A, Melbourne, Florida 32934, by emailing us at investorrelations@konagoldbeverage.com, or by calling us at 844-714-2224. We also maintain a website, www.konagoldbeverage.com, through which you can obtain copies of the documents that we have filed with the SEC. We use our website as a channel of distribution for material company information. Important information, including financial information, analyst presentations, financial news releases, and other material information about us is routinely posted on and accessible at our website. The information set forth on, or accessible from, our website is not part of this Prospectus.
DISCLOSURE OF COMMISSION’S POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by one of our directors, officers or controlling persons in the successful defense of any action, suit or proceeding) is asserted by that director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether that indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of that issue.
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KONA GOLD BEVERAGE, INC.
CONSOLIDATED FINANCIAL STATEMENTS
Index to Financial Statements
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
Kona Gold Beverage, Inc
Melbourne, Florida
Opinion on the Financial Statements
We have audited the accompanying balance sheets of Kona Gold Beverage, Inc. (the “Company”) as of December 31, 2022 and 2021, 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 “consolidated financial statements”). In our opinion, the financial statements present fairly, in all material respects, the consolidated financial position of the Company as of December 31, 2022 and 2021, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.
Going Concern
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the financial statements, the Company has experienced recurring operating losses and negative operating cash flows and has a stockholders’ deficit as of December 31, 2022. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 1 to the financial statements. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provided a reasonable basis for our opinion.
We have served as the Company’s auditor since 2022.
/s/ Weinberg & Company, P.A.
Los Angeles, California
March 31, 2023
| F-1 |
KONA
GOLD BEVERAGE, INC.
CONSOLIDATED
BALANCE SHEETS
| December 31, 2022 | December 31, 2021 | |||||||
| (Unaudited) | ||||||||
| ASSETS | ||||||||
| CURRENT ASSETS | ||||||||
| Cash | $ | $ | ||||||
| Accounts receivable, net of allowance for doubtful accounts of $ | ||||||||
| Inventory, net of reserve for obsolescence of $80,000 and $150,000, respectively | ||||||||
| Prepaids | ||||||||
| Other current assets | ||||||||
| Total current assets | ||||||||
| NON-CURRENT ASSETS | ||||||||
| Property, plant and equipment, net | ||||||||
| Right-of-use asset, net | ||||||||
| Intangible property, net | ||||||||
| Deposits | ||||||||
| Total assets | $ | $ | ||||||
| LIABILITIES AND STOCKHOLDERS’ DEFICIT | ||||||||
| CURRENT LIABILITIES | ||||||||
| Accounts payable and accrued expenses | $ | $ | ||||||
| Accrued compensation | ||||||||
| Notes payable, net of discount of $ | ||||||||
| Notes payable - related parties, current | ||||||||
| Acquisition obligations, current | ||||||||
| Lease liabilities, current | ||||||||
| Convertible debt, net of discount of $ | ||||||||
| Derivative liability | ||||||||
| Total current liabilities | ||||||||
| NON-CURRENT LIABILITIES | ||||||||
| Notes payable - related parties, net of current | ||||||||
| Notes payable, net of current | ||||||||
| Acquisition obligations, net of current | ||||||||
| Lease liabilities, net of current | ||||||||
| Total liabilities | ||||||||
| COMMITMENTS AND CONTINGENCIES | ||||||||
| STOCKHOLDERS’ DEFICIT | ||||||||
| Preferred Stock, $ par value, shares authorized, and issued and outstanding, respectively | ||||||||
| Common Stock, $ par value, authorized, and , issued and outstanding, respectively | ||||||||
| Common stock issuable ( shares) | ||||||||
| Additional paid-in capital | ||||||||
| Accumulated deficit | ( | ) | ( | ) | ||||
| Total stockholders’ deficit | ( | ) | ( | ) | ||||
| Total liabilities and stockholders’ deficit | $ | $ | ||||||
See notes to consolidated financial statements.
| F-2 |
KONA
GOLD BEVERAGE, INC.
CONSOLIDATED
STATEMENTS OF OPERATIONS
| Year Ended | ||||||||
| December 31, | ||||||||
| 2022 | 2021 | |||||||
| REVENUES, NET | $ | $ | ||||||
| COST OF REVENUES | ||||||||
| Gross profit | ||||||||
| OPERATING EXPENSES | ||||||||
| Selling, general and administrative expenses | ||||||||
| Impairment of goodwill | ||||||||
| Loss from operations | ( | ) | ( | ) | ||||
| Other income / (expense) | ||||||||
| Interest expense | ( | ) | ( | ) | ||||
| Financing costs | ( | ) | ( | ) | ||||
| Change in the fair value of derivative liability | ( | ) | ||||||
| Loss on extinguishment of debt | ( | ) | ( | ) | ||||
| Gain on forgiveness of SBA PPP loan | ||||||||
| Other income (expense) | ( | ) | ( | ) | ||||
| Net Loss | $ | ( | ) | $ | ( | ) | ||
| NET LOSS PER COMMON SHARE: | ||||||||
| Basic and diluted | $ | ( | ) | $ | ( | ) | ||
| WEIGHTED AVERAGE NUMBER OF COMMON SHARES: | ||||||||
| Basic and diluted | ||||||||
See notes to consolidated financial statements.
| F-3 |
KONA
GOLD BEVERAGE, INC.
STATEMENTS
OF STOCKHOLDERS’ DEFICIT
| Common Stock | Preferred Stock | Common Shares | Additional | Total | ||||||||||||||||||||||||||||||||
| $.00001 Par | $.00001 Par | Issuable | Paid | Accumulated | Stockholders’ | |||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | in Capital | Deficit | Deficit | ||||||||||||||||||||||||||||
| Balance December 31, 2020 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Common Stock Issued for Compensation | ||||||||||||||||||||||||||||||||||||
| Common Stock issued for acquisition | ||||||||||||||||||||||||||||||||||||
| Warrants related to convertible debenture | ||||||||||||||||||||||||||||||||||||
| Preferred Stock Conversion to Common Stock | ( | ) | ( | ) | ||||||||||||||||||||||||||||||||
| Common Stock Issued for Conversion of Convertible Debt and Accrued Interest | ||||||||||||||||||||||||||||||||||||
| Net loss | ( | ) | ( | ) | ||||||||||||||||||||||||||||||||
| Balance December 31, 2021 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Common stock issued for conversion of convertible debt and accrued interest | ||||||||||||||||||||||||||||||||||||
| Common stock issued with note payable recorded as debt discount | ||||||||||||||||||||||||||||||||||||
| Common stock issued for services | ||||||||||||||||||||||||||||||||||||
| Warrants related to convertible notes | ||||||||||||||||||||||||||||||||||||
| Net loss | ( | ) | ( | ) | ||||||||||||||||||||||||||||||||
| Balance December 31, 2022 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
See notes to consolidated financial statements.
| F-4 |
KONA
GOLD BEVERAGE, INC.
CONSOLIDATED
STATEMENTS OF CASH FLOWS
For the Year Ended December 31,
| 2022 | 2021 | |||||||
| CASH USED IN OPERATING ACTIVITIES: | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Adjustments to reconcile net loss to net cash provided by operations: | ||||||||
| Depreciation and amortization | ||||||||
| Change in allowance for doubtful accounts | ||||||||
| Change in inventory reserves | ( | ) | ||||||
| Right-of-use asset amortization | ||||||||
| Amortization of debt discount | ||||||||
| Amortization of intangible assets | ||||||||
| Impairment of goodwill | ||||||||
| Financing costs | ||||||||
| Loss on extinguishment of debt | ||||||||
| Gain on change in fair value of derivative liabilities | ( | ) | ||||||
| Common stock issued for services | ||||||||
| Gain on forgiveness of PPP loan | ( | ) | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Decrease (increase) in accounts receivable | ( | ) | ||||||
| Decrease (increase) in inventory | ( | ) | ||||||
| Decrease (increase) in prepaids | ( | ) | ||||||
| Decrease (increase) in other current assets | ( | ) | ( | ) | ||||
| Decrease (increase) in deposits | ( | ) | ||||||
| Increase (decrease) in accounts payable and accrued expenses | ||||||||
| Increase (decrease) in amounts due to customer | ( | ) | ||||||
| Increase (decrease) in accrued compensation | ( | ) | ||||||
| Increase (decrease) in lease liability | ( | ) | ( | ) | ||||
| Net cash used in operating activities | ( | ) | ( | ) | ||||
| CASH USED IN INVESTING ACTIVITIES: | ||||||||
| Purchase of purchase property, plant and equipment | ( | ) | ( | ) | ||||
| Changes in intellectual property | ( | ) | ||||||
| Net cash used in investing activities | ( | ) | ( | ) | ||||
| CASH PROVIDED BY FINANCING ACTIVITIES: | ||||||||
| Proceeds from note payable - related party | ||||||||
| Repayment of note payable - related party | ( | ) | ( | ) | ||||
| Changes in acquisition obligations | ( | ) | ( | ) | ||||
| Principal repayments of finance lease obligation | ( | ) | ( | ) | ||||
| Proceeds from notes payable, net of expenses | ||||||||
| Repayment of notes payable | ( | ) | ( | ) | ||||
| Proceeds from convertible debentures payable, net of expenses | ||||||||
| Proceeds from PPP notes payable | ||||||||
| Net cash provided by financing activities | ||||||||
| Net cash increase (decrease) for period | ( | ) | ||||||
| Cash at beginning of period | ||||||||
| Cash at end of period | $ | $ | ||||||
| SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: | ||||||||
| Cash paid for income taxes | $ | $ | ||||||
| Cash paid for interest | $ | $ | ||||||
| SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES: | ||||||||
| Common stock issued for acquisition of S&S | $ | $ | ||||||
| Recording of right of use asset and lease liability | $ | $ | ||||||
| Fair value of derivative liability created upon issuance of convertible debenture and warrants | $ | $ | ||||||
| Common shares issued on conversion of debentures and accrued interest | $ | $ | ||||||
| Issuance of loan payable for vehicle purchase | $ | $ | ||||||
| Fair value of common stock issues with a note payable received as a debt discount | $ | $ | ||||||
| Fair value of warrants issued upon issuance of convertible notes | $ | $ | ||||||
See notes to consolidated financial statements.
| F-5 |
KONA
GOLD BEVERAGE, INC.
NOTES
TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022 and 2021
NOTE 1 – OPERATIONS AND GOING CONCERN
The Company was formerly known as Kona Gold Solutions, Inc., and in October 2020, changed its name to Kona Gold Beverage, Inc., a Delaware corporation (“Kona Gold,” the “Company,” “we,” “us,” or “our”). The Company owns and operates a line of premier CBD lifestyle brand products. As of December 31, 2021, the Company has four wholly-owned subsidiaries: Kona Gold LLC, a Delaware limited liability company (“Kona”), HighDrate LLC, a Florida limited liability company (“HighDrate”), and Gold Leaf Distribution LLC, a Florida limited liability company (“Gold Leaf”). In February 2021, the Company acquired all of the capital stock of S and S Beverage, Inc. The Company is primarily focused on product development in the functional beverage sector. Kona Gold creates hemp-infused energy drinks, which includes hemp energy drinks, CBD energy water, and also sells Kona Gold merchandise and apparel, which promotes the Company’s beverages. HighDrate focuses on the development and marketing of CBD-infused energy waters geared to the fitness and wellness markets. Gold Leaf focuses on the distribution of premium beverages and snacks in key markets.
The Company currently sells its products through resellers, the Company’s websites, and distributors that span across nine states. The Company’s products are available in wide variety of stores, including convenience and grocery stores, smoke shops, and gift shops.
As used herein, the terms “Kona Gold,” the “Company,” “we,” “us,” or “our, refer to Kona Gold individually or, as the context requires, collectively with its subsidiaries on a consolidated basis.
Effects of COVID-19
In January 2020, the WHO announced a global health emergency because of a new strain of coronavirus (known as COVID-19) that originated in Wuhan, China and generated significant risks to the international community as the virus spread globally beyond its point of origin. In March 2020, the WHO classified the COVID-19 outbreak as a pandemic based on the rapid increase in global exposure. The COVID-19 pandemic is disrupting businesses and affecting production and sales across a range of industries, as well as causing volatility in the financial markets. The extent of the impact of the COVID-19 pandemic on the Company’s consumer demand, sales, and financial performance will depend on certain developments, including, among other things, the duration and spread of the outbreak and the impact on the Company’s consumers and employees, all of which are uncertain and cannot be predicted. Management is actively monitoring this situation and potential impacts on our financial condition, liquidity, and results of operations.
Going Concern
The
accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the settlement
of liabilities and commitments in the normal course of business. As reflected in the accompanying financial statements, during the year
ended December 31, 2022, the Company recorded a net loss of $
At
December 31, 2022, the Company had cash on hand in the amount of $
| F-6 |
NOTE 2 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The accompanying consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All intercompany transactions and balances have been eliminated in consolidation. These consolidated financial statements have been prepared on the accrual basis of accounting and in accordance with generally accepted accounting principles (“GAAP”) in the United States.
Use of Estimates
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosures 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. Those estimates and assumptions include estimates for reserves of uncollectible accounts receivable, assumptions used in valuing inventories at net realizable value, impairment testing of recorded long-term tangible and intangible assets, the valuation allowance for deferred tax assets, accruals for potential liabilities, assumptions made in valuing stock instruments issued for services, and assumptions used in valuing warrant liabilities, and assumptions used in the determination of the Company’s liquidity.
Accounts Receivable
Accounts receivable are generally recorded at the invoiced amounts net of an allowance for expected losses. The Company evaluates the collectability of its trade accounts receivable based on a number of factors. In circumstances where the Company becomes aware of a specific customer’s inability to meet its financial obligations to the Company, a specific reserve for bad debts is estimated and recorded, which reduces the recognized receivable to the estimated amount the Company believes will ultimately be collected. In addition to specific customer identification of potential bad debts, bad debt charges are recorded based on the Company’s historical losses and an overall assessment of past due trade accounts receivable outstanding.
The
allowance for accounts receivable is established through a provision reducing the carrying value of receivables. At December 31, 2022
and 2021, the allowance was $
Inventory
Inventory
is stated at the lower of cost or net realizable value, with cost determined on a first-in, first-out (“FIFO”) basis. The
Company’s inventories are valued at the lower cost or net realizable value. The Company’s inventory consists almost entirely
of finished and unfinished goods, and freight, which include CBD energy waters, CBD waters, hemp energy drinks, cans for production,
and merchandise and apparel. The Company periodically evaluates and adjusts inventories for obsolescence. As of December 31, 2022 and
2021, management has provided a reserve for slow moving and potentially obsolete inventory of $
| F-7 |
Property and Equipment
Property and equipment are stated at cost. Expenditures for major renewals and improvements that extend the useful lives of property and equipment or increase production capacity are capitalized, and expenditures for repairs and maintenance are charged to expense as incurred. Depreciation is calculated using accelerated and straight-line methods over the estimated useful lives of the assets as follows:
| Property and Equipment Type | Years of Depreciation | |
| Furniture and fixtures | ||
| Machinery and equipment | ||
| Vehicles | ||
| Computer equipment |
Management assesses the carrying value of property and equipment whenever events or changes in circumstances indicate that the carrying value may not be recoverable. If there is indication of impairment, management prepares an estimate of future cash flows expected to result from the use of the asset and its eventual disposition. If these cash flows are less than the carrying amount of the asset, an impairment loss is recognized to write down the asset to its estimated fair value. For the years ended December 31, 2022 and 2021, the Company determined there were no indicators of impairment of its property and equipment.
Goodwill and Intangible Assets
Acquisitions and Business Combinations
The Company allocates the fair value of purchase consideration to the tangible assets acquired, liabilities assumed, and separately identified intangible assets acquired based on their estimated fair values. The excess of the fair value of purchase consideration over the fair values of these identifiable assets and liabilities is recorded as goodwill. Such valuations require management to make significant estimates and assumptions, especially with respect to intangible assets. Significant estimates in valuing certain intangible assets include, but are not limited to, future expected cash flows from, acquired technology, trademarks and trade names, useful lives, and discount rates. Management’s estimates of fair value are based upon assumptions believed to be reasonable, but which are inherently uncertain and unpredictable and, as a result, actual results may differ from estimates. During the measurement period, which is the period needed to gather all information necessary to make the purchase price allocation, not to exceed one year from the acquisition date, we may record adjustments to the assets acquired and liabilities assumed, with the corresponding offset to goodwill. Upon the conclusion of the measurement period, any subsequent adjustments are recorded to earnings.
Goodwill
In
accordance with FASB ASC Topic No. 350, Intangibles-Goodwill and Other, the Company reviews the recoverability of the carrying value
of goodwill at least annually or whenever events or circumstances indicate a potential impairment. The Company’s impairment testing
is performed annually at December 31 (its fiscal year end). Recoverability of goodwill is determined by comparing the fair value of Company’s
reporting unit to the carrying value of the underlying net assets in the reporting units. If the fair value of a reporting unit is determined
to be less than the carrying value of its net assets, goodwill is deemed impaired and an impairment loss is recognized to the extent
that the carrying value of goodwill exceeds the difference between the fair value of the reporting unit and the fair value of its other
assets and liabilities. During the year ended December 31, 2021, management determined there were indications of impairment, and recorded
a charge of approximately $
Intangible Assets with Finite Useful Lives
We
have certain finite lived intangible assets that were initially recorded at their fair value at the time of acquisition. These intangible
assets consist of developed technology. Intangible assets with finite useful lives are amortized using the straight-line method over
their estimated useful life of
| F-8 |
Revenue Recognition
The Company recognizes revenue in accordance with Accounting Standards Codification (ASC) 606, Revenue from Contracts with Customers (“ASC 606”). The underlying principle of ASC 606 is to recognize revenue to depict the transfer of goods or services to customers at the amount expected to be collected. ASC 606 creates a five-step model that requires entities to exercise judgment when considering the terms of contract(s), which include (1) identifying the contract or agreement with a customer, (2) identifying our performance obligations in the contract or agreement, (3) determining the transaction price, (4) allocating the transaction price to the separate performance obligations, and (5) recognizing revenue as each performance obligation is satisfied.
Revenue and costs of sales are recognized when control of the products transfers to our customer, which generally occurs upon shipment from our facilities. The Company’s performance obligations are satisfied at that time. The Company does not have any significant contracts with customers requiring performance beyond delivery, and contracts with customers contain no incentives or discounts that could cause revenue to be allocated or adjusted over time. Shipping and handling activities are performed before the customer obtains control of the goods and therefore represent a fulfillment activity rather than a promised service to the customer.
All of the Company’s products are offered for sale as finished goods only, and there are no performance obligations required post-shipment for customers to derive the expected value from them.
The Company does not allow for returns, except for damaged products when the damage occurred pre-fulfillment. Damaged product returns have historically been insignificant. Because of this, the stand-alone nature of our products, and our assessment of performance obligations and transaction pricing for our sales contracts, we do not currently maintain a contract asset or liability balance for obligations. We assess our contracts and the reasonableness of our conclusions on a quarterly basis.
Sales
are made to customers under terms allowing certain limited rights of return. The Company records an allowance for returns for each quarter
for
The following table presents our net revenues, by revenue source, and the period-over-period percentage change, for the period presented:
| Year Ended December 31, | ||||||||||||
| 2022 | 2021 | |||||||||||
| Revenue Source | Revenue | Revenue | % Change | |||||||||
| Distributors | $ | $ | ( | )% | ||||||||
| Amazon | ( | )% | ||||||||||
| Online Sales | ( | )% | ||||||||||
| Retail | % | |||||||||||
| Shipping | ( | )% | ||||||||||
| Sales Returns and Allowances | ( | ) | ( | ) | % | |||||||
| Net Revenues | $ | $ | % | |||||||||
The following table presents our net revenues by product lines for the period presented:
| Year Ended December 31, | ||||||||||||
| 2022 | 2021 | |||||||||||
| Product Line | Revenue | Revenue | % Change | |||||||||
| Hemp Energy Drinks | $ | $ | ( | )% | ||||||||
| CBD Energy Waters | ( | )% | ||||||||||
| Lemonade Drinks | % | |||||||||||
| Apparel | ( | )% | ||||||||||
| Retail | % | |||||||||||
| Shipping | ( | )% | ||||||||||
| Sales returns and allowance | ( | ) | ( | ) | % | |||||||
| Net Revenues | $ | $ | % | |||||||||
| F-9 |
Cost of Sales
Cost of revenues consists primarily of expenses associated with products sold to distributors and resellers, including product and shipping costs. Costs also include credit card fees, fees incurred for sales that occur on Amazon.com, and other transaction fees related to the processing of consumer transactions. Typically, we expect that the cost of revenues will increase as a direct correlation to increases in sales. Thus, our cost of revenues increases on an absolute basis versus on a percentage of sales basis. At the same time, when sales increase, thereby increasing our orders with our co-packers, our cost of products decreases because of the volume discounts we receive from our co-packers.
Delivery and Handling Expense
Shipping and handling costs are comprised of purchasing and receiving, inspection, warehousing, transfer freight, and other costs associated with product distribution after manufacture and are included as part of operating expenses.
Advertising Costs
Advertising
costs are expensed as incurred and are included in selling and marketing expense. Advertising costs aggregated $
Stock Compensation Expense
The Company periodically issues stock options and restricted stock awards to employees and non-employees in non-capital raising transactions for services and for financing costs. The Company accounts for such grants issued and vesting based on ASC 718, Compensation-Stock Compensation whereby the value of the award is measured on the date of grant and recognized for employees as compensation expense on the straight-line basis over the vesting period. Recognition of compensation expense for non-employees is in the same period and manner as if the Company had paid cash for the services. The Company recognizes the fair value of stock-based compensation within its Statements of Operations with classification depending on the nature of the services rendered.
The fair value of the Company’s stock options is estimated using the Black-Scholes-Merton Option Pricing model, which uses certain assumptions related to risk-free interest rates, expected volatility, expected life of the stock options or restricted stock, and future dividends. Compensation expense is recorded based upon the value derived from the Black-Scholes-Merton Option Pricing model and based on actual experience. The assumptions used in the Black-Scholes-Merton Option Pricing model could materially affect compensation expense recorded in future periods.
Income Taxes
The Company uses an asset and liability approach for accounting and reporting for income taxes that allows recognition and measurement of deferred tax assets based upon the likelihood of realization of tax benefits in future years. Under the asset and liability approach, deferred taxes are provided for the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. A valuation allowance is provided for deferred tax assets if it is more likely than not these items will either expire before the Company is able to realize their benefits, or that future deductibility is uncertain. The Company’s policy is to recognize interest and/or penalties related to income tax matters in income tax expense.
Basic earnings (loss) per share is computed by dividing the net income (loss) applicable to common stockholders by the weighted average number of shares of common stock outstanding during the year. Diluted earnings (loss) per share is computed by dividing the net income applicable to common stockholders by the weighted average number of common shares outstanding plus the number of additional common shares that would have been outstanding if all dilutive potential common shares had been issued, using the treasury stock method. Potential common shares are excluded from the computation when their effect is antidilutive.
| F-10 |
| December 31, 2022 | December 31, 2021 | |||||||
| Warrants | ||||||||
| Common stock equivalent of Series B Convertible Preferred Stock | ||||||||
| Common stock equivalent of Series D Convertible Preferred Stock | ||||||||
| Common stock issuable | ||||||||
| Restricted common stock | ||||||||
| Common stock on convertible debentures and accrued interest | ||||||||
| Total | ||||||||
Fair Value of Financial Instruments
The Company uses various inputs in determining the fair value of its financial assets and liabilities and measures these assets on a recurring basis. Financial assets recorded at fair value are categorized by the level of subjectivity associated with the inputs used to measure their fair value. Accounting Standards Codification Section 820 defines the following levels of subjectivity associated with the inputs:
Level 1—Quoted prices in active markets for identical assets or liabilities.
Level 2—Inputs, other than the quoted prices in active markets, that are observable either directly or indirectly.
Level 3—Unobservable inputs based on the Company’s assumptions.
The carrying amounts of financial assets and liabilities, such as cash and cash equivalents, accounts receivable, short-term bank loans, accounts payable, notes payable and other payables, approximate their fair values because of the short maturity of these instruments. The carrying values of capital lease obligations and long-term financing obligations approximate their fair values because interest rates on these obligations are based on prevailing market interest rates. The Company’s derivative liabilities are considered Level 3 inputs.
Segments
During
the year, the Company consolidated and restructured its operations. The Company now operates in
Concentrations
The
Company’s cash balances on deposit with banks are guaranteed by the Federal Deposit Insurance Corporation (FDIC) up to $
| F-11 |
Gross
sales. During the year ended December 31, 2022, the Company reported no customers that accounted for
Accounts
receivable. As of December 31, 2022, the Company had accounts receivable from two customers
that comprised
Co-Packers. The raw materials used in the production of the Company’s products are obtained by the Company’s co-packers and consist primarily of materials such as the flavors, caffeine, sugars or sucralose, taurine, vitamins, CBD, and hemp seed protein contained in its beverages, the bottles in which its beverages are packaged, and the labeling on the outside of its beverages. These principal raw materials are subject to price and availability fluctuations. The Company currently relies on a few key co-packers, which in turn rely on a few key suppliers. The Company continually endeavors to have back-up co-packers, which co-packers would in turn depend on their third-party suppliers to supply certain of the flavors and concentrates that are used in the Company’s beverages. The Company is also dependent on these co-packers to negotiate arrangements with their existing suppliers that would enable the Company to obtain access to certain of such concentrates or flavor formulas under certain extraordinary circumstances. Additionally, in a limited number of cases, the Company’s co-packers may have contractual restrictions with their suppliers or the Company’s co-packers may need to obtain regulatory approvals and licenses that may limit the co-packers’ ability to enter into agreements with alternative suppliers. Contractual restrictions in the agreements the Company has with certain distributors may also limit the Company’s ability to enter into agreements with alternative distributors. The Company believes that a satisfactory supply of co-packers will continue to be available at competitive prices, although there can be no assurance in this regard. With respect to Gold Leaf’s operations, the Company continually endeavors to contract with additional beverage vendors to ensure the Company has adequate inventory. The Company believes that a satisfactory supply of vendors will continue to be available at competitive prices, although there can be no assurance in this regard.
Purchases
from vendors. During the year ended December 31, 2022, the Company’s largest one vendor accounted for approximately
Accounts
payable. As of December 31, 2022, two vendors accounted for more than
Recent Accounting Pronouncements
In June 2016, the FASB issued ASU 2016-13, Measurement of Credit Losses on Financial Instruments. ASU 2016-13 requires entities to use a forward-looking approach based on current expected credit losses (“CECL”) to estimate credit losses on certain types of financial instruments, including trade receivables. This may result in the earlier recognition of allowances for losses. ASU 2016-13 is effective for the Company beginning January 1, 2023, and early adoption is permitted. The Company does not believe the potential impact of the new guidance and related codification improvements will be material to its financial position, results of operations and cash flows.
Other recent accounting pronouncements issued by the FASB, its Emerging Issues Task Force, the American Institute of Certified Public Accountants, and the Securities and Exchange Commission did not or are not believed by management to have a material impact on the Company’s present or future financial statements.
| F-12 |
NOTE 3 – INVENTORY
Inventory is valued at the lower of cost (first-in, first-out) or net realizable value, and net of reserves is comprised of the following:
| December 31, 2022 | December 31, 2021 | |||||||
| Raw materials | $ | $ | ||||||
| Finished goods, net | ||||||||
| Total | $ | $ | ||||||
At
December 31, 2022 and 2021, inventory presented above is net of a reserve for slow moving and potentially obsolete inventory of $
NOTE 4 – PROPERTY, PLANT AND EQUIPMENT
Property and equipment are comprised of the following:
| December 31, 2022 | December 31, 2021 | |||||||
| Furniture and Fixtures | $ | $ | ||||||
| Computers and Software | ||||||||
| Machinery & Equipment | ||||||||
| Vehicles | ||||||||
| Total cost | ||||||||
| Accumulated depreciation | ( | ) | ( | ) | ||||
| Property, plant and equipment, net | $ | $ | ||||||
Depreciation
for the years ended December 31, 2022 and 2021, was $
During
the year ended December 31, 2022, the Company entered into a loan to purchase a vehicle for $
NOTE 5 – ACQUISITION OF S AND S BEVERAGE, INC.
On
January 21, 2021, the Company entered into an Agreement and Plan of Merger with S and S and its shareholders and acquired all of the
capital stock of S and S. In consideration thereof, the Company issued to them an aggregate of restricted shares of Kona
Gold Beverage, Inc.’s common stock (the “Acquisition Stock”) of a fair value of $
The Company utilized the acquisition method of accounting for the S and S acquisition in accordance with ASC 805, Business Combinations. The Company allocated the purchase price to acquired tangible assets, identifiable intangible assets, and assumed liabilities at their estimated fair values as of the date of acquisition. The fair value of the intangible assets was estimated using the income approach, pursuant to which after-tax cash flows are discounted to present value based on projections and other available financial data. The cash flows were based on estimates used to value the acquisition, and the discount rates applied were benchmarked with reference to the implied rate of return from the transaction model, as well as the weighted average cost of capital. The valuation assumptions took into consideration the Company’s estimates of customer attrition and revenue growth projections. The excess of the purchase price paid by the Company over the estimated fair value of identified tangible and intangible assets has been recorded as goodwill. The acquisition was intended to augment and diversify the Company’s business. Key factors that contributed to the recorded goodwill and intangible assets in the aggregate were the opportunity to generate future revenues and synergies within the business. The goodwill will not be amortized but will be tested annually for impairment.
| F-13 |
The following table summarizes the assets acquired, liabilities assumed and purchase price allocation:
| Fair Value | ||||
| Consideration paid: | ||||
| Acquired obligations | $ | |||
| Note payable – acquisition | ||||
| Common stock ( shares of common stock at $ per share) | ||||
| Total consideration paid | $ | |||
| Purchase price allocation | ||||
| Acquired assets | ||||
| Goodwill | ||||
| Total purchase price | $ | |||
During
the year ended December 31, 2021, management determined there were indications of impairment, and recorded a charge of $
Proforma information for the year ended December 31 2021 has been omitted as the operations of S and S prior to the acquisition were de minimis.
NOTE 6 – INTANGIBLE ASSETS
Intangible asset consisted of the following:
| December 31, 2022 | December 31, 2021 | |||||||
| Intangible Assets | ||||||||
| Trademarks | $ | $ | ||||||
| Website development | ||||||||
| Accumulated amortization | ( | ) | ( | ) | ||||
| Total Intangible Assets, net of amortization | $ | $ | ||||||
During
the year ended December 31, 2022 and 2021, the Company recorded amortization expense of $
| Year Ending | Amortization | |||
| 2023 | $ | |||
| 2024 | ||||
| 2025 | ||||
| 2026 | ||||
| 2027 | ||||
| Thereafter | ||||
| Total | $ | |||
| F-14 |
NOTE 7 – NOTES PAYABLE – RELATED PARTIES
Notes payable with related parties consists of the following at December 31, 2022 and 2021:
| December 31, 2022 | December 31, 2021 | |||||||
| Note payable – related party (a) | $ | $ | ||||||
| Note payable – related party (b) | ||||||||
| Note payable – related party (c) | ||||||||
| Note payable – related party (d) | ||||||||
| Total notes payable – related parties | ||||||||
| Notes payable – , current portion | ( | ) | ( | ) | ||||
| Notes payable – , net of current portion | $ | $ | ||||||
| (a) | ||
| (b) | ||
| (c) | ||
| (d) |
At
December 31, 2021, accrued interest on notes payable to related parties was $
| F-15 |
NOTE 8 – NOTES PAYABLE
Notes payable consists of the following at December 31, 2022 and 2021:
| December 31, 2022 | December 31, 2021 | |||||||
| Note payable (a) | $ | $ | ||||||
| Note payable (b) | ||||||||
| Note payable (c) | ||||||||
| Note payable (d) | ||||||||
| Note payable (e) | ||||||||
| Note payable (f) | ||||||||
| Note payable (g) | ||||||||
| Total notes payable | ||||||||
| Less debt discount (e) | ( | ) | ||||||
| Total notes payable, net | ||||||||
| Notes payable, current portion | ( | ) | ( | ) | ||||
| Notes payable, net of current portion | $ | $ | ||||||
| (a) | ||
| (b) | ||
| (c) | ||
| (d) | ||
| (e) |
| F-16 |
| (f) | ||
| (g) |
At
December 31, 2021, there was
During
the year ended December 31, 2022, the Company amortized debt discount of $
NOTE 9 – SECURED CONVERTIBLE DEBENTURES
Secured debentures that are payable to an otherwise unaffiliated third party consists of the following as of December 31, 2022 and 2021:
| December 31, 2022 | December 31, 2021 | |||||||
| YA II PN, Ltd. | $ | $ | ||||||
| Mast Hill | ||||||||
| Secured debentures | ||||||||
| Less debt discount | ( | ) | ( | ) | ||||
| Secured debentures, net | $ | $ | ||||||
| F-17 |
YA II PN, Ltd.
During
the year ended December 31, 2021, the Company issued secured debentures to an otherwise unaffiliated third-party investor (“YA II”) in the aggregate of $
During
the year ended December 31, 2021, YA II converted certain of the remaining balance of the 2020 Debentures and certain
of the debentures that were issued in with an aggregate principal of $
As
of December 31, 2021, outstanding balance of the debentures issued in 2021 amounted to $
On
May 5, 2022, the Company issued similar debentures to YA II in the aggregate amount of $
| F-18 |
During
the year ended December 31, 2022, the note holder converted its remaining principal of $
During
the year ended December 31, 2022, the Company amortized debt discount of $
Mast Hill
On
July 28, 2022, the Company issued senior secured debentures to an otherwise unaffiliated third-party investor (the “Investor”)
in the aggregate of $
As of December 31, 2022, no shares of common stock were potentially issuable under the conversion terms of the outstanding debentures.
At
December 31, 2021, accrued interest on the convertible notes payable was $
NOTE 10 – DERIVATIVE LIABILITY
The FASB has issued authoritative guidance whereby instruments which do not have fixed settlement provisions are deemed to be derivative instruments. During fiscal years 2021 and 2022, the Company issued convertible debentures, which if converted into common stock, can potentially exceed the current number of available authorized shares of the Company (see Note 12). Since the number of shares is not explicitly limited, the Company is unable to conclude that enough authorized and unissued shares are available to settle the conversion option. In accordance with the FASB authoritative guidance, the conversion features have been characterized as derivative liabilities to be re-measured at the end of every reporting period with the change in value reported in the statement of operations.
| F-19 |
As of December 31, 2022, and 2021, the derivative liabilities were valued using the Binomial pricing model and/or Black Scholes pricing model with the following assumptions:
| At December 31, 2022 | Issued During 2022 | At December 31, 2021 | ||||||||||
| Stock Price | $ | $ | $ | |||||||||
| Exercise Price | $ | $ | $ | |||||||||
| Expected Life (Years) | - | |||||||||||
| Volatility | % | % | % | |||||||||
| Dividend Yield | % | % | % | |||||||||
| Risk-Free Interest Rate | % | % | % | |||||||||
| Fair value: | ||||||||||||
| Conversion feature | $ | $ | $ | |||||||||
The risk-free interest rate was based on rates established by the Federal Reserve Bank. The Company uses the historical volatility of its common stock to estimate the future volatility for its common stock. The expected life of the conversion feature of the notes was based on the remaining term of the notes. The expected dividend yield was based on the fact that the Company has not customarily paid dividends in the past and does not expect to pay dividends in the future.
The
derivative liability balance was $
As
discussed in Note 9, during the year ended December 31, 2022, the Company recognized derivative liabilities of $
NOTE 11 – LEASE LIABILITIES
The Company determines whether a contract is, or contains, a lease at inception. Right-of-use assets represent the Company’s right to use an underlying asset during the lease term, and lease liabilities represent the Company’s obligation to make lease payments arising from the lease. Right-of-use assets and lease liabilities are recognized at lease commencement based upon the estimated present value of unpaid lease payments over the lease term. The Company leases its office and warehouse locations, and certain warehouse equipment. Leases with an initial term of 12 months or less are not included on the balance sheets.
Operating Leases
The
Company leases approximately
The
Company leases a
| F-20 |
The
Company leases a
Finance Leases
On
March 17, 2020, the Company entered into a lease agreement for equipment. The finance lease is for a 62-month term that commenced in
April 2020 and expires in March 2025. The agreement includes monthly payments of $
During
the years ended December 31, 2022 and 2021, lease costs totaled $
Our
ROU asset balance was $
As
of December 31, 2020, lease liabilities totaled $
As
of December 31, 2022, the weighted average remaining lease terms for operating lease and finance lease are
Future minimum lease payments under the leases are as follows:
| Years Ending December 31, | Amount | |||
| 2023 | $ | |||
| 2024 | ||||
| 2025 | ||||
| 2026 | ||||
| 2027 and thereafter | ||||
| Total payments | ||||
| Less: Amount representing interest | ( | ) | ||
| Present value of net minimum lease payments | ||||
| Less: Current portion | ( | ) | ||
| Non-current portion | $ | |||
NOTE 12 – STOCKHOLDERS’ EQUITY
Preferred Stock
The Company’s issued and outstanding preferred stock, par value $ per share, at December 31, 2022 and 2021 was and , respectively. The Board, without further stockholder approval, may issue preferred stock in one or more series from time to time and fix or alter the designations, relative rights, priorities, preferences, qualifications, limitations, and restrictions of the shares of each series.
| F-21 |
Series A Preferred Stock
The Company had authorized shares of Series A Preferred Stock, par value of $ per share (the “Series A Preferred Stock”), of which no shares were issued or outstanding at December 31, 2022 and December 31, 2021, respectively. Each share of Series A Preferred Stock, when outstanding, could have been converted into one share of Common Stock.
Series B Preferred Stock
The Company had authorized shares of Series B Preferred Stock, par value of $ per share (the “Series B Preferred Stock”), of which were issued and outstanding at December 31, 2022 and December 31, 2021, respectively. Each share of Series B Preferred Stock may be converted into one share of Common Stock.
Series C Preferred Stock
On
February 13, 2023, the Company increased the authorized number of Series C Preferred Stock from
to
shares, par value $
per share (the “Series C Preferred Stock”), by filing a Certificate of Designation of the Preferences, Rights, and
Limitations of the Series C Preferred Stock with the Secretary of State of the State of Delaware. On
July 8, 2020, the Company amended the terms of the Series C Preferred Stock and filed a Certificate of Designation of the
Preferences, Rights, and Limitations of the Series C Preferred Stock with the Secretary of State of the State of Delaware.
At December 31, 2022 and December 31, 2021, no shares of Series C Preferred Stock were issued and outstanding.
Series D Preferred Stock
The Company had authorized shares of Series D Preferred Stock, par value of $ per share (the “Series D Preferred Stock”), of which shares were issued and outstanding at December 31, 2022 and 2021, respectively. Each share of the Series D Preferred Stock may be converted into shares of Common Stock.
Common Stock
On February 13, 2023, the Company increased the authorized number of Common Stock from to shares, par value $ per share (the “Common Stock”), by filing a Certificate of Designation of the Preferences, Rights, and Limitations of the Common Stock with the Secretary of State of the State of Delaware. The Company has authorized shares of the Common Stock, respectively, of which shares were issued and outstanding at December 31, 2022, and were issued and outstanding at December 31, 2021.
Equity Transactions
During
the year ended December 31, 2022, the Company issued an aggregate of shares of Common Stock with a fair value of $
During
the year ended December 31, 2021, the Company issued an aggregate of shares of Common Stock with a fair value of $
| F-22 |
During
the year ended December 31, 2022, and in connection with the issuance of a debenture, the Company issued to the lender shares
of the Company’s common stock at a price of $ per share (see Note 8). The fair value of the shares issued was
$
During
the year ended December 31, 2021, the Company issued shares of its Common Stock with a fair value of $
Employee Shares
On
April 1, 2022, the Company granted shares of Common Stock to Peter Troy pursuant to that certain Employment Agreement dated
October 1, 2021, by and between Mr. Troy and the Company. At the date of grant, the fair market value of the shares was $ per share
based on the closing price of the Common Stock, for a total value of $
On
December 16, 2022, the Company granted shares of Common Stock to John Sargent pursuant to that certain Employment Agreement dated
February 1, 2021, by and between Mr. Sargent and the Company. At the date of grant, the fair market value of the shares was $ per
share based on the closing price of the Common Stock, for a total value of $
During
2021 the Company issued an aggregate of shares of Common Stock to William J Stineman pursuant to that certain Employment Agreement
by and between Mr. Stineman and the Company. The per-share fair market value of the shares was $ based on the closing price of
the Common Stock as reported by the OTCM on the date of issuance, for a total value of $
During
2021 the Company issued shares of Common Stock to John Torrence pursuant to performance award by and between Mr. Torrence and
the Company. At the date of issuance, the per-share fair market value of the shares was $ based on the closing price of the Common
Stock as reported by the OTCM on the date of issuance, for a total value of $
Common Stock Issuable
On
August 12, 2015, the Company entered into an Employment Agreement with Robert Clark (the “Clark Employment Agreement”). On
December 1, 2016, the Company entered into an Amendment to Employment Agreement (the “Clark Amendment”; and, together with
the Clark Employment Agreement, the “Amended Clark Employment Agreement”). Pursuant to the terms of the Amendment Clark Employment
Agreement, the Company agreed to issue, among other securities, shares of the Common Stock.
The
shares of the Common Stock were issued to Mr. Clark, as follows: (i) on October 28, 2015, the Company issued of
such shares; (ii) on March 2, 2016, the Company issued of such, and (iii) on Mary 16, 2016, the Company issued
of such shares. On April 19, 2018, (i) shares were cancelled and returned to the Company, and on July 31, 2019, (ii) an additional
shares were cancelled and returned to the Company. Accordingly, as of December 31, 2019, the Company owed to Mr. Clark an
aggregate of shares to be reissued to him upon his request pursuant to the terms of the oral agreement with him which were
valued at $
| F-23 |
Summary of Warrants
A summary of warrants for the years ended December 31, 2022 and 2021, is as follows:
| Weighted | ||||||||
| Number | Average | |||||||
| of | Exercise | |||||||
| Warrants | Price | |||||||
| Balance outstanding, December 31, 2020 | $ | |||||||
| Warrants granted | ||||||||
| Warrants exercised | ||||||||
| Warrants expired or forfeited | ||||||||
| Balance outstanding, December 31, 2021 | ||||||||
| Warrants granted | ||||||||
| Warrants exercised | ||||||||
| Warrants expired or forfeited | ||||||||
| Balance outstanding, December 31, 2022 | $ | |||||||
| Balance exercisable, December 31, 2022 | $ | |||||||
Information relating to outstanding warrants at December 31, 2022, summarized by exercise price, is as follows:
| Outstanding | Exercisable | |||||||||||||||||||||
| Exercise Price Per Share | Shares | Life (Years) | Weighted Average Exercise Price | Shares | Weighted Average Exercise Price | |||||||||||||||||
| $ | $ | $ | ||||||||||||||||||||
| $ | $ | $ | ||||||||||||||||||||
| $ | $ | $ | ||||||||||||||||||||
| $ | $ | |||||||||||||||||||||
Based on the fair market value of $ per share on December 31, 2022, there was no intrinsic value attributed to both the outstanding and exercisable warrants at December 31, 2022.
In
connection with the issuance of senior convertible secured debentures on July 28, 2022 (see Note 9), the Company granted warrants with
a relative fair value of $
In
connection with the issuance of convertible secured debentures on May 2, 2022 (see Note 9), the Company granted warrants with a relative
fair value of $
In
connection with the issuance of 2021 convertible secured debentures in 2021 (see Note 9), the Company granted warrants with a relative
fair value of $
| F-24 |
The fair value of each warrant on the date of grant was estimated using the Black-Scholes option pricing model with the following weighted average assumptions:
| 2022 | 2021 | |||||||
| Exercise Price | $ | $ | ||||||
| Stock Price | $ | $ | ||||||
| Risk-free interest rate | % | % | ||||||
| Expected volatility | % | % | ||||||
| Expected life (in years) | ||||||||
| Expected dividend yield | % | % | ||||||
NOTE 14 – INCOME TAXES
At
December 31, 2022, the Company had available Federal and state net operating loss carryforwards to reduce future taxable income. The
amounts available were approximately $
Effective January 1, 2007, the Company adopted FASB guidelines that address the determination of whether tax benefits claimed or expected to be claimed on a tax return should be recorded in the financial statements. Under this guidance, we may recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized in the financial statements from such a position should be measured based on the largest benefit that has a greater than fifty percent likelihood of being realized upon ultimate settlement. This guidance also provides guidance on de-recognition, classification, interest and penalties on income taxes, accounting in interim periods and requires increased disclosures. At the date of adoption, and as of December 31, 2022 and 2021, the Company did not have a liability for unrecognized tax benefits, and no adjustment was required at adoption.
The Company’s policy is to record interest and penalties on uncertain tax provisions as income tax expense. As of December 31, 2022, and 2021, the Company has not accrued interest or penalties related to uncertain tax positions. Additionally, tax years 2019 through 2022 remain open to examination by the major taxing jurisdictions to which the Company is subject.
Upon the attainment of taxable income by the Company, management will assess the likelihood of realizing the tax benefit associated with the use of the carryforwards and will recognize the appropriate deferred tax asset at that time.
The Company’s effective income tax rate differs from the amount computed by applying the federal statutory income tax rate to loss before income taxes as follows:
| December 31, 2022 | December 31, 2021 | |||||||
| Income tax benefit at federal statutory rate | ( | )% | ( | )% | ||||
| State income tax benefit, net of federal benefit | ( | )% | ( | )% | ||||
| Change in valuation allowance | % | % | ||||||
| Income taxes at effective tax rate | % | % | ||||||
The components of deferred taxes consist of the following at December 31, 2022 and 2021:
| December 31, 2022 | December 31, 2021 | |||||||
| Net operating loss carryforwards | $ | $ | ||||||
| Less: Valuation allowance | ( | ) | ( | ) | ||||
| Net deferred tax assets | $ | $ | ||||||
| F-25 |
NOTE 15 – SUBSEQUENT EVENTS
Cashless Exercise of Warrants
Subsequent
to December 31, 2022, the Company issued an aggregate of shares of Common Stock to Mast Hill upon the cashless exercise of
a warrants, at an average exercise price of $
Common Stock Issuable
On February 16, 2023, we issued shares of our Series C Preferred Stock to Robert Clark. As of that date, there were share of common stock that were issuable to Mr. Clark. For this issuance we utilized of issuable shares. We issued these shares of common stock pursuant to the exception from registration provided by Section 4a2 of the Securities Act.
Cashless Conversion of Secured Convertible Debentures
On
March 1, 2023, the Company issued an aggregate of
shares of Common Stock to Mast Hill upon the conversion of $
Lines of Credit
On
March 7, 2023, the Company entered into a Line of Credit Agreement with Celtic Bank. The Line of Credit is personally guaranteed by Robert
Clark, the Company’s President, Chief Executive Officer, Secretary, and Chairman of the Board. The agreement established a revolving
line of credit in the amount of up to $
On
March 9, 2023, the Company entered into a Line of Credit Agreement with American Express National Bank Celtic Bank. The Line of Credit
is personally guaranteed by Robert Clark, the Company’s President, Chief Executive Officer, Secretary, and Chairman of the Board.
The agreement established a revolving line of credit in the amount of up to $
Satisfaction of Note Payable
On
March 8, 2023, the Company satisfied a secured non-interest-bearing advance, less purchase discount of $
March 2023 Securities Purchase Agreement
Pursuant
to a Securities Purchase Agreement dated as of March 13, 2023 (the “March SPA”), the Company completed a private
placement of a Senior Secured Promissory Note (the “March Senior Note”) with an initial principal amount of $
The
transactions contemplated by the March SPA were consummated on March 15, 2023 (the “March SPA Issue Date”). Upon the
funding, we sold and issued the March Senior Note and granted the March Warrant. Pursuant to the March SPA, the purchase price for
the March Senior Note was $
| F-26 |
The
March Senior Note is due 12 months from its issuance date and is secured by all of our assets and the assets of each of our
subsidiaries pursuant to the March Security Agreement. The security interest granted to the Investor under the March Security
Agreement is subordinate to the continuing security interest that remains in effect pursuant to the previous grant of a security interest in
connection with a still-outstanding debenture to an earlier investor. Initially, the March Senior Note is convertible into shares of
our Common Stock (the “March Conversion Shares”) at a fixed conversion price of $
At
our option, we have the right to redeem, in full, the outstanding principal and interest under the March Senior Note prior to its
maturity date; provided, that, as of the date of the then-holder’s receipt of the redemption notice, there has
not been a March Event of Default. We must pay an amount equal to the principal amount being redeemed plus outstanding and accrued
interest thereon, as well as a $
Further, commencing on May 10, 2023, and continuing on the tenth day of each calendar month thereafter, we are required to redeem an amount equivalent to the sum of $ for each 12-count case of our beverages that we sell in the ordinary course, calculated two months in arrears. Accordingly, the first redemption payment is due and payable on May 10, 2023 for the cases sold during the month of March, 2023. Mandatory redemption payments are based upon revenues recognized by us in accordance with US GAAP for each such month, rather than upon the receipt by us of funds received from sales during a relevant month. The above-referenced seven trading days’ prior notice and conversion provisions do not apply to any of the mandatory redemption payments.
We
also granted the March Warrant to purchase up to an aggregate of the
The March Warrant contains an adjustment provision that, subject to certain exceptions, reduces the exercise price if we issue shares of our Common Stock or common stock equivalents at a price lower than the then-current exercise price of the March Warrant. Any stock splits, reverse stock splits, recapitalizations, mergers, combinations and asset sales, stock dividends, and similar events will result in an equitable adjustment of the exercise price of the March Warrant and, in certain circumstances, the number of March Warrant Shares. The March Warrant is subject to an “exercise blocker,” such that the Investor cannot exercise any portion of the March Warrant that would result in the Investor and its affiliates holding more than of the then-issued and outstanding shares of our Common Stock following such exercise (excluding, for purposes of such determination, shares of the Common Stock issuable upon exercise of the March Warrant or conversion of the March Senior Note that had not then been exercised or converted, respectively).
April 2023 Securities Purchase Agreement
Pursuant
to a Securities Purchase Agreement dated as of April 25, 2023 (the “April SPA”), we completed a private placement of a Senior
Secured Promissory Note (the “April Senior Note”) with an initial principal amount of $
The
transactions contemplated by the April SPA were consummated on April 28, 2023 (the “April SPA Issue Date”). Upon the funding,
we sold and issued the April Senior Note and granted the April Warrant. Pursuant to the April SPA, the purchase price for the April Senior
Note was $
| F-27 |
The
April Senior Note is due 12 months from its issuance date and is secured by all of our assets and the assets of each of our subsidiaries
pursuant to the April Security Agreement. The security interest granted to Mast Hill under the April Security Agreement is subordinate
to the March Security Agreement. Initially, the April Senior Note is convertible into shares of our Common Stock (the “April Conversion
Shares”) at a fixed conversion price of $
At
our option, we have the right to redeem, in full, the outstanding principal and interest under the April Senior Note prior to its maturity
date; provided, that, as of the date of the then-holder’s receipt of the redemption notice, there has not been an
Event of Default. We must pay an amount equal to the principal amount being redeemed plus outstanding and accrued interest thereon, as
well as a $
Further, commencing on May 10, 2023, and continuing on the tenth day of each calendar month thereafter, we are required to redeem an amount equivalent to the sum of $ for each 12-count case of our beverages that we sell in the ordinary course, calculated two months in arrears. Accordingly, the first redemption payment is due and payable on May 10, 2023 for the cases sold during the month of March, 2023. Mandatory redemption payments are based upon revenues recognized by us in accordance with US GAAP for each such month, rather than upon the receipt by us of funds received from sales during a relevant month. The above-referenced seven trading days’ prior notice and conversion provisions do not apply to any of the mandatory redemption payments.
Notwithstanding the foregoing, if we have paid the mandatory case prepayment to Mast Hill during an applicable calendar month pursuant to the March Senior Note, then we do not have an obligation to make a mandatory case prepayment in that applicable calendar month with respect to the April Senior Note.
First Amendment to Secured Debenture
On March 23, 2023, the Company
entered into a First Amendment to Secured Debenture (the “First Amendment”) to amend a Secured Debenture (the “Debenture”),
dated as of March 25, 2022. The original note was in the principal amount of $
2023 Equity Purchase Agreement
Pursuant
to an Equity Purchase Agreement (the “Purchase Agreement”) dated as of March 30, 2023 (the “EPA”), the Company
(i) agreed to sell to the same entity with whom we had entered into the Securities Purchase Agreement
dated as of March 13, 2023 up to Five Million Dollars ($
The Commitment Period commences on the Execution Date, and ends on the earlier of (i) the date on which the Investor shall have purchased Put Shares pursuant to the Purchase Agreement equal to
the Maximum Commitment Amount, (ii) March 30, 2025, (iii) written notice of termination by the Company to the Investor (which shall not occur during any Valuation Period or at any time that the Investor holds any of the Put Shares), (iv) the Registration Statement for the Put Shares is no longer effective after its initial effective date, or (v) the date that, pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any person commences a proceeding against the Company, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company makes a general assignment for the benefit of its creditors.
We also granted the Warrant
to purchase up to an aggregate of the
Amendments to Articles of Incorporation or Bylaws
On February 13, 2023, the Company filed with the Secretary of State of the State of Delaware a Certificate of Amendment to its amended and restated Certificate of Incorporation (the “Certificate of Amendment”) to increase the number of the Company’s authorized shares of common stock, par value $ per share (the “Common Stock”), from two billion five hundred million () shares to ten billion five hundred million () shares. A copy of the Certificate of Amendment is attached hereto as Exhibit 3.7 and incorporated herein by reference.
On February 13, 2023, the Company filed with the Secretary of State of the State of Delaware a Certificate of Amendment to its Certificate of Designation of the Preferences, Rights, and Limitations of the Series C Preferred Stock (the “Series C Certificate of Amendment”) to increase the number of designated shares of such series from two hundred fifty () shares, par value $ per share, to two thousand () shares, par value $ per share.
Departure of Director
On December 31, 2022, Mr. William J. Outlaw resigned from his position as Director of Kona Gold Beverages, Inc. (the “Company”), which resignation was effective on that date. Mr. Outlaw’s resignation was not the result of any disagreement between the Company and him on any matter relating to the Company’s operations, policies, or practices.
Expiration of YA II Warrants
The warrants granted by the Company to YA II on May 14, 2020, expired unexercised on May 14, 2023.
| F-28 |
PART I – FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
KONA
GOLD BEVERAGE, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
March 31, 2023 | December 31, 2022 | |||||||
| (Unaudited) | ||||||||
| ASSETS | ||||||||
| CURRENT ASSETS | ||||||||
| Cash | $ | $ | ||||||
| Accounts receivable, net of allowance for doubtful accounts of $ | ||||||||
| Inventory, net of reserve for obsolescence of $ | ||||||||
| Other current assets | ||||||||
| Total current assets | ||||||||
| NON-CURRENT ASSETS | ||||||||
| Property, plant and equipment, net | ||||||||
| Right-of-use asset, net | ||||||||
| Intangible property, net | ||||||||
| Deposits | ||||||||
| Total assets | $ | $ | ||||||
| LIABILITIES AND STOCKHOLDERS’ DEFICIT | ||||||||
| CURRENT LIABILITIES | ||||||||
| Accounts payable and accrued expenses | $ | $ | ||||||
| Accrued compensation | ||||||||
| Notes payable, net of discount of $ | ||||||||
| Notes payable - related parties, current | ||||||||
| Acquisition obligations, current | ||||||||
| Lease liabilities, current | ||||||||
| Convertible debt, net of discount of $ | ||||||||
| Total current liabilities | ||||||||
| NON-CURRENT LIABILITIES | ||||||||
| Notes payable, net of current | ||||||||
| Lease liabilities, net of current | ||||||||
| Total liabilities | ||||||||
| COMMITMENTS AND CONTINGENCIES | ||||||||
| STOCKHOLDERS’ DEFICIT | ||||||||
| Preferred Stock, $ par value, shares authorized, and issued and outstanding, respectively | ||||||||
| Common Stock, $ par value, authorized, and , issued and outstanding, respectively | ||||||||
| Common stock issuable ( shares) | ||||||||
| Additional paid-in capital | ||||||||
| Accumulated deficit | ( | ) | ( | ) | ||||
| Total stockholders’ deficit | ( | ) | ( | ) | ||||
| Total liabilities and stockholders’ deficit | $ | $ | ||||||
See notes to condensed consolidated financial statements.
| F-29 |
KONA
GOLD BEVERAGE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
| Three Months Ended | ||||||||
| March 31, | ||||||||
| 2023 | 2022 | |||||||
| (Unaudited) | (Unaudited) | |||||||
| REVENUES, NET | $ | $ | ||||||
| COST OF REVENUES | ||||||||
| Gross profit | ||||||||
| OPERATING EXPENSES | ||||||||
| Selling, general and administrative expenses | ||||||||
| Loss from operations | ( | ) | ( | ) | ||||
| Other income / (expense) | ||||||||
| Interest expense | ( | ) | ( | ) | ||||
| Financing costs | ( | ) | ||||||
| Change in the fair value of derivative liability | ( | ) | ||||||
| Loss on extinguishment of debt | ( | ) | ( | ) | ||||
| Other income (expense) | ||||||||
| Net Loss | $ | ( | ) | $ | ( | ) | ||
| NET LOSS PER COMMON SHARE: | ||||||||
| Basic and diluted | $ | ( | ) | $ | ( | ) | ||
| WEIGHTED AVERAGE NUMBER OF COMMON SHARES: | ||||||||
| Basic and diluted | ||||||||
See notes to condensed consolidated financial statements.
| F-30 |
KONA
GOLD BEVERAGE, INC.
STATEMENTS OF STOCKHOLDERS’ DEFICIT
(Unaudited)
| Common Stock | Preferred Stock | Common Shares | Additional | Total | ||||||||||||||||||||||||||||||||
| $.00001 Par | $.00001 Par | Issuable | Paid | Accumulated | Stockholders’ | |||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | in Capital | Deficit | Deficit | ||||||||||||||||||||||||||||
| Balance December 31, 2022 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Common stock issued for conversion of convertible debt and accrued interest | ||||||||||||||||||||||||||||||||||||
| Warrants related to convertible notes | ||||||||||||||||||||||||||||||||||||
| Warrants issued for financing costs (ELOC) | ||||||||||||||||||||||||||||||||||||
| Common stock issued upon cashless exercise of warrants | ( | ) | ||||||||||||||||||||||||||||||||||
| Preferred stock issued to a related party for common stock issuable | ( | ) | ( | ) | ||||||||||||||||||||||||||||||||
| Net loss | ( | ) | ( | ) | ||||||||||||||||||||||||||||||||
Balance March 31, 2023 (Unaudited) | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Common Stock | Preferred Stock | Common Shares | Additional | Total | ||||||||||||||||||||||||||||||||
| $.00001 Par | $.00001 Par | Issuable | Paid- | Accumulated | Stockholders’ | |||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | in Capital | Deficit | Deficit | ||||||||||||||||||||||||||||
| Balance December 31, 2021 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Common stock issued for conversion of convertible debt and accrued interest | ||||||||||||||||||||||||||||||||||||
| Common stock issued with note payable received as debt discount | ||||||||||||||||||||||||||||||||||||
| Net loss | ( | ) | ( | ) | ||||||||||||||||||||||||||||||||
| Balance March 31, 2022 (Unaudited) | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
See notes to condensed consolidated financial statements.
| F-31 |
KONA
GOLD BEVERAGE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Three Months Ended March 31, 2023 and 2022
(Unaudited)
| Three Months Ended March 31, 2023 | Three Months Ended March 31, 2022 | |||||||
| (Unaudited) | (Unaudited) | |||||||
| CASH USED IN OPERATING ACTIVITIES: | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Adjustments to reconcile net loss to net cash provided by operations: | ||||||||
| Depreciation and amortization | ||||||||
| Change in allowance for doubtful accounts | ( | ) | ( | ) | ||||
| Change in inventory reserves | ||||||||
| Right-of-use asset amortization | ||||||||
| Amortization of debt discount | ||||||||
| Amortization of intangible assets | ||||||||
| Preferred stock issued for common stock issuable | ||||||||
| Fair value of warrants issued for financing costs | ||||||||
| Loss on sale of property and equipment | ||||||||
| Loss on extinguishment of debt | ||||||||
| Gain on change in fair value of derivative liabilities | ||||||||
| Changes in operating assets and liabilities: | ||||||||
| Decrease (increase) in accounts receivable | ( | ) | ||||||
| Decrease (increase) in inventory | ( | ) | ||||||
| Decrease (increase) in prepaids | ||||||||
| Decrease (increase) in other current assets | ||||||||
| Decrease (increase) in deposits | ||||||||
| Increase (decrease) in accounts payable and accrued expenses | ||||||||
| Increase (decrease) in accrued compensation | ( | ) | ||||||
| Increase (decrease) in lease liability | ( | ) | ( | ) | ||||
| Net cash used in operating activities | ( | ) | ( | ) | ||||
| CASH USED IN INVESTING ACTIVITIES: | ||||||||
| Purchase of purchase property, plant and equipment | ( | ) | ||||||
| Net cash used in investing activities | ( | ) | ||||||
| CASH PROVIDED BY FINANCING ACTIVITIES: | ||||||||
| Proceeds from note payable - related party | ||||||||
| Repayment of note payable - related party | ( | ) | ( | ) | ||||
| Changes in acquisition obligations | ( | ) | ( | ) | ||||
| Principal repayments of finance lease obligation | ( | ) | ( | ) | ||||
| Proceeds from notes payable, net of expenses | ||||||||
| Repayment of notes payable | ( | ) | ( | ) | ||||
| Proceeds from convertible debentures payable, net of expenses | ||||||||
| Net cash provided by financing activities | ||||||||
| Net cash increase (decrease) for period | ( | ) | ||||||
| Cash at beginning of period | ||||||||
| Cash at end of period | $ | $ | ||||||
| SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: | ||||||||
| Cash paid for income taxes | $ | $ | ||||||
| Cash paid for interest | $ | $ | ||||||
| SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES: | ||||||||
| Recording of right of use asset and lease liability | $ | $ | ||||||
| Common shares issued on conversion of debentures and accrued interest | $ | $ | ||||||
| Fair value of warrants issued upon issuance of convertible notes | $ | $ | ||||||
See notes to condensed consolidated financial statements.
| F-32 |
KONA
GOLD BEVERAGE, INC.
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
For the Three Months Ended March 31, 2023 and 2022
NOTE 1 – OPERATIONS AND GOING CONCERN
The Company was formerly known as Kona Gold Solutions, Inc., and in October 2020, changed its name to Kona Gold Beverage, Inc., a Delaware corporation (“Kona Gold,” the “Company,” “we,” “us,” or “our”). As of March 31, 2023, the Company has three wholly-owned subsidiaries: Kona Gold LLC, a Delaware limited liability company (“Kona”), HighDrate LLC, a Florida limited liability company (“HighDrate”), and Gold Leaf Distribution LLC, a Florida limited liability company (“Gold Leaf”). Kona focuses on the development and marketing of functional and better-for-you beverages: Ooh La Lemin Lemonades that are available in a variety of sparkling and non-sparkling flavors and Kona Gold Energy Drinks that are low-to-zero calorie functional beverages that are high in B vitamins, amino acids, and omegas. HighDrate focuses on the development and marketing of CBD-infused energy waters geared to the fitness and wellness markets. Gold Leaf focuses on the distribution of premium beverages and snacks in key markets, all of which complement our current product offerings.
The Company currently sells its products through resellers, the Company’s websites, and distributors that span across 18 states. The Company’s products are available in wide variety of stores, including convenience and grocery stores, smoke shops, and gift shops.
As used herein, the terms “Kona Gold,” the “Company,” “we,” “us,” or “our”, refer to Kona Gold individually or, as the context requires, collectively with its subsidiaries on a consolidated basis.
Effects of COVID-19
In January 2020, the WHO announced a global health emergency because of a new strain of coronavirus (known as COVID-19) that originated in Wuhan, China and generated significant risks to the international community as the virus spread globally beyond its point of origin. In March 2020, the WHO classified the COVID-19 outbreak as a pandemic based on the rapid increase in global exposure. The COVID-19 pandemic is disrupting businesses and affecting production and sales across a range of industries, as well as causing volatility in the financial markets. The extent of the impact of the COVID-19 pandemic on the Company’s consumer demand, sales, and financial performance will depend on certain developments, including, among other things, the duration and spread of the outbreak and the impact on the Company’s consumers and employees, all of which are uncertain and cannot be predicted. Management is actively monitoring this situation and potential impacts on our financial condition, liquidity, and results of operations.
Going Concern
The
accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the
settlement of liabilities and commitments in the normal course of business. As reflected in the accompanying financial statements,
in the three months ended March 31, 2023, the Company recorded a net loss of $
At
March 31, 2023, the Company had cash on hand in the amount of $
| F-33 |
NOTE 2 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The accompanying consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All intercompany transactions and balances have been eliminated in consolidation. These consolidated financial statements have been prepared on the accrual basis of accounting and in accordance with generally accepted accounting principles (“GAAP”) in the United States.
Use of Estimates
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosures 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. Those estimates and assumptions include estimates for reserves of uncollectible accounts receivable, assumptions used in valuing inventories at net realizable value, impairment testing of recorded long-term tangible and intangible assets, the valuation allowance for deferred tax assets, accruals for potential liabilities, assumptions made in valuing stock instruments issued for services, and assumptions used in valuing warrant liabilities, and assumptions used in the determination of the Company’s liquidity.
Accounts Receivable
Accounts receivable are generally recorded at the invoiced amounts net of an allowance for expected losses. The Company evaluates the collectability of its trade accounts receivable based on a number of factors. In circumstances where the Company becomes aware of a specific customer’s inability to meet its financial obligations to the Company, a specific reserve for bad debts is estimated and recorded, which reduces the recognized receivable to the estimated amount the Company believes will ultimately be collected. In addition to specific customer identification of potential bad debts, bad debt charges are recorded based on the Company’s historical losses and an overall assessment of past due trade accounts receivable outstanding.
The
allowance for accounts receivable is established through a provision reducing the carrying value of receivables. At March 31, 2023 and
December 31, 2022, the allowance was $
Revenue Recognition
The Company recognizes revenue in accordance with Accounting Standards Codification (ASC) 606, Revenue from Contracts with Customers (“ASC 606”). The underlying principle of ASC 606 is to recognize revenue to depict the transfer of goods or services to customers at the amount expected to be collected. ASC 606 creates a five-step model that requires entities to exercise judgment when considering the terms of contract(s), which include (1) identifying the contract or agreement with a customer, (2) identifying our performance obligations in the contract or agreement, (3) determining the transaction price, (4) allocating the transaction price to the separate performance obligations, and (5) recognizing revenue as each performance obligation is satisfied.
Revenue and costs of sales are recognized when control of the products transfers to our customer, which generally occurs upon shipment from our facilities. The Company’s performance obligations are satisfied at that time. The Company does not have any significant contracts with customers requiring performance beyond delivery, and contracts with customers contain no incentives or discounts that could cause revenue to be allocated or adjusted over time. Shipping and handling activities are performed before the customer obtains control of the goods and therefore represent a fulfillment activity rather than a promised service to the customer.
| F-34 |
All of the Company’s products are offered for sale as finished goods only, and there are no performance obligations required post-shipment for customers to derive the expected value from them.
The Company does not allow for returns, except for damaged products when the damage occurred pre-fulfillment. Damaged product returns have historically been insignificant. Because of this, the stand-alone nature of our products, and our assessment of performance obligations and transaction pricing for our sales contracts, we do not currently maintain a contract asset or liability balance for obligations. We assess our contracts and the reasonableness of our conclusions on a quarterly basis.
Sales
are made to customers under terms allowing certain limited rights of return. The Company records an allowance for returns for each quarter
for
The following table presents our net revenues, by revenue source, and the period-over-period percentage change, for the period presented:
| Three Months Ended 31, | ||||||||||||
| 2023 | 2022 | |||||||||||
| Revenue Source | Revenue | Revenue | % Change | |||||||||
| Distributors | $ | $ | % | |||||||||
| Amazon | ( | )% | ||||||||||
| Online Sales | ( | )% | ||||||||||
| Retail | % | |||||||||||
| Shipping | ( | )% | ||||||||||
| Sales Returns and Allowances | ( | ) | ( | ) | % | |||||||
| Net Revenues | $ | $ | % | |||||||||
The following table presents our net revenues by product lines for the period presented:
| Three Months Ended 31, | ||||||||||||
| 2023 | 2022 | |||||||||||
| Product Line | Revenue | Revenue | % Change | |||||||||
| Energy Drinks | $ | $ | ( | )% | ||||||||
| CBD Energy Waters | ( | )% | ||||||||||
| Lemonade Drinks | % | |||||||||||
| Apparel | ( | )% | ||||||||||
| Retail | % | |||||||||||
| Shipping | ( | )% | ||||||||||
| Sales returns and allowance | ( | ) | ( | ) | % | |||||||
| Net Revenues | $ | $ | % | |||||||||
Advertising Costs
Advertising
costs are expensed as incurred and are included in selling and marketing expense. Advertising costs aggregated $
Stock Compensation Expense
The Company periodically issues stock options and restricted stock awards to employees and non-employees in non-capital raising transactions for services and for financing costs. The Company accounts for such grants issued and vesting based on ASC 718, Compensation-Stock Compensation whereby the value of the award is measured on the date of grant and recognized for employees as compensation expense on the straight-line basis over the vesting period. Recognition of compensation expense for non-employees is in the same period and manner as if the Company had paid cash for the services. The Company recognizes the fair value of stock-based compensation within its Statements of Operations with classification depending on the nature of the services rendered.
| F-35 |
The fair value of the Company’s stock options is estimated using the Black-Scholes-Merton Option Pricing model, which uses certain assumptions related to risk-free interest rates, expected volatility, expected life of the stock options or restricted stock, and future dividends. Compensation expense is recorded based upon the value derived from the Black-Scholes-Merton Option Pricing model and based on actual experience. The assumptions used in the Black-Scholes-Merton Option Pricing model could materially affect compensation expense recorded in future periods.
Basic earnings (loss) per share is computed by dividing the net income (loss) applicable to common stockholders by the weighted average number of shares of common stock outstanding during the year. Diluted earnings (loss) per share is computed by dividing the net income applicable to common stockholders by the weighted average number of common shares outstanding plus the number of additional common shares that would have been outstanding if all dilutive potential common shares had been issued, using the treasury stock method. Potential common shares are excluded from the computation when their effect is antidilutive.
March 31, 2023 | March 31, 2022 | |||||||
| Warrants | ||||||||
| Common stock equivalent of Series B Convertible Preferred Stock | ||||||||
| Common stock equivalent of Series C Convertible Preferred Stock | ||||||||
| Common stock equivalent of Series D Convertible Preferred Stock | ||||||||
| Common stock issuable | ||||||||
| Restricted common stock | ||||||||
| Common stock on convertible debentures and accrued interest | ||||||||
| Total | ||||||||
Fair Value of Financial Instruments
The Company uses various inputs in determining the fair value of its financial assets and liabilities and measures these assets on a recurring basis. Financial assets recorded at fair value are categorized by the level of subjectivity associated with the inputs used to measure their fair value. Accounting Standards Codification Section 820 defines the following levels of subjectivity associated with the inputs:
Level 1—Quoted prices in active markets for identical assets or liabilities.
Level 2—Inputs, other than the quoted prices in active markets, that are observable either directly or indirectly.
Level 3—Unobservable inputs based on the Company’s assumptions.
The carrying amounts of financial assets and liabilities, such as cash and cash equivalents, accounts receivable, short-term bank loans, accounts payable, notes payable and other payables, approximate their fair values because of the short maturity of these instruments. The carrying values of capital lease obligations and long-term financing obligations approximate their fair values because interest rates on these obligations are based on prevailing market interest rates.
| F-36 |
Segments
During
the 2022 fiscal year, the Company consolidated and restructured its operations. The Company now operates in
Concentrations
The
Company’s cash balances on deposit with banks are guaranteed by the Federal Deposit Insurance Corporation (FDIC) up to $
Gross
sales. During the three months ended March 31, 2023, the Company reported no customers that accounted for
Accounts
receivable. As of March 31, 2023, the Company had accounts receivable from five customers that comprised
Co-Packers. The raw materials used in the production of the Company’s products are obtained by the Company’s co-packers and consist primarily of materials such as the flavors, caffeine, sugars or sucralose, taurine, vitamins, CBD, and hemp seed protein contained in its beverages, the bottles in which its beverages are packaged, and the labeling on the outside of its beverages. These principal raw materials are subject to price and availability fluctuations. The Company currently relies on a few key co-packers, which in turn rely on a few key suppliers. The Company continually endeavors to have back-up co-packers, which co-packers would in turn depend on their third-party suppliers to supply certain of the flavors and concentrates that are used in the Company’s beverages. The Company is also dependent on these co-packers to negotiate arrangements with their existing suppliers that would enable the Company to obtain access to certain of such concentrates or flavor formulas under certain extraordinary circumstances. Additionally, in a limited number of cases, the Company’s co-packers may have contractual restrictions with their suppliers or the Company’s co-packers may need to obtain regulatory approvals and licenses that may limit the co-packers’ ability to enter into agreements with alternative suppliers. Contractual restrictions in the agreements the Company has with certain distributors may also limit the Company’s ability to enter into agreements with alternative distributors. The Company believes that a satisfactory supply of co-packers will continue to be available at competitive prices, although there can be no assurance in this regard. With respect to Gold Leaf’s operations, the Company continually endeavors to contract with additional beverage vendors to ensure the Company has adequate inventory. The Company believes that a satisfactory supply of vendors will continue to be available at competitive prices, although there can be no assurance in this regard.
Purchases
from vendors. During the three months ended March 31, 2023, the Company’s largest three vendors accounted for approximately
Accounts
payable. As of March 31, 2023, two vendors accounted for more than
| F-37 |
Recent Accounting Pronouncements
In June 2016, the FASB issued ASU 2016-13, Measurement of Credit Losses on Financial Instruments. ASU 2016-13 requires entities to use a forward-looking approach based on current expected credit losses (“CECL”) to estimate credit losses on certain types of financial instruments, including trade receivables. This may result in the earlier recognition of allowances for losses. ASU 2016-13 is effective for the Company beginning January 1, 2023, and early adoption is permitted. The Company does not believe the potential impact of the new guidance and related codification improvements will be material to its financial position, results of operations and cash flows.
Other recent accounting pronouncements issued by the FASB, its Emerging Issues Task Force, the American Institute of Certified Public Accountants, and the Securities and Exchange Commission did not or are not believed by management to have a material impact on the Company’s present or future financial statements.
NOTE 3 – INVENTORY
Inventory is valued at the lower of cost (first-in, first-out) or net realizable value, and net of reserves is comprised of the following:
March 31, 2023 | December 31, 2022 | |||||||
| Raw materials | $ | $ | ||||||
| Finished goods, net | ||||||||
| Total | $ | $ | ||||||
At
March 31, 2023 and December 31, 2022, inventory presented above is net of a reserve for slow moving and potentially obsolete inventory
of $
NOTE 4 – PROPERTY, PLANT AND EQUIPMENT
Property and equipment is comprised of the following:
March 31, 2023 | December 31, 2022 | |||||||
| Furniture and Fixtures | $ | $ | ||||||
| Computers and Software | ||||||||
| Machinery & Equipment | ||||||||
| Vehicles | ||||||||
| Total cost | ||||||||
| Accumulated depreciation | ( | ) | ( | ) | ||||
| Property, plant and equipment, net | $ | $ | ||||||
Depreciation
for the three months ended March 31, 2023 and 2022, was $
NOTE 5 – INTANGIBLE ASSETS
Intangible asset consisted of the following:
March 31, 2023 | December 31, 2022 | |||||||
| Intangible Assets | ||||||||
| Trademarks | $ | $ | ||||||
| Website development | ||||||||
| Accumulated amortization | ( | ) | ( | ) | ||||
| Total Intangible Assets, net of amortization | $ | $ | ||||||
| F-38 |
During
the three months ended March 31, 2023 and 2022, the Company recorded amortization expense of $
| Year Ending | Amortization | |||
| 2023 (remaining) | $ | |||
| 2024 | ||||
| 2025 | ||||
| 2026 | ||||
| 2027 | ||||
| Thereafter | ||||
| Total | $ | |||
NOTE 6 – NOTES PAYABLE – RELATED PARTIES
Notes payable with related parties consists of the following at March 31, 2023 and December 31, 2022:
March 31, 2023 | December 31, 2022 | |||||||
| Note payable – related party (a) | $ | $ | ||||||
| Note payable – related party (b) | ||||||||
| Note payable – related party (c) | ||||||||
| Note payable – related party (d) | ||||||||
| Total notes payable – related parties | $ | $ | ||||||
| (a) | ||
| (b) | ||
| (c) | ||
| (d) |
| F-39 |
At
December 31, 2022, accrued interest on notes payable to related parties was $
NOTE 7 – NOTES PAYABLE
Notes payable consists of the following at March 31, 2023 and December 31, 2022:
March 31, 2023 | December 31, 2022 | |||||||
| Note payable (a) | $ | $ | ||||||
| Note payable (b) | ||||||||
| Note payable (c) | ||||||||
| Note payable (d) | ||||||||
| Note payable (e) | ||||||||
| Note payable (f) | ||||||||
| Note payable (g) | ||||||||
| Total notes payable | ||||||||
| Less debt discount (e) | ( | ) | ( | ) | ||||
| Total notes payable, net | ||||||||
| Notes payable, current portion | ( | ) | ( | ) | ||||
| Notes payable, net of current portion | $ | $ | ||||||
| (a) | ||
| (b) | ||
| (c) | ||
| (d) |
|
| F-40 |
| In
connection with the issuance of the original debenture in 2022, the Company issued to the lender million shares of the Company’s
common stock at a price of $ per share. The Company determined the fair value of the million shares was $ | ||
| (e) |
Upon execution of the advance and receipt of funds, the Company recorded the difference of $ | |
| (f) | ||
| (g) |
| F-41 |
At December 31, 2022 on item (d), accrued interest on the notes payable was $
As
of December 31, 2022, the unamortized debt discount was $
NOTE 8 – SECURED CONVERTIBLE DEBENTURES
Secured debentures that are payable to an otherwise unaffiliated third party consists of the following as of March 31, 2023 and December 31, 2022:
March 31, 2023 | December 31, 2022 | |||||||
| Mast Hill Note 1 | ||||||||
| Mast Hill Note 2 | ||||||||
| Less debt discount | ( | ) | ( | ) | ||||
| Secured debentures, net | $ | $ | ||||||
Mast Hill
On
July 28, 2022, the Company issued senior secured debentures to an otherwise unaffiliated third-party investor (the
“Investor”) in the aggregate of $
As
of December 31, 2022 the balance due under the obligation was $
Mast Hill Debenture 2
On
March 13, 2023, the Company issued an additional senior secured debenture to the Investor in the aggregate of $
At our option, we have the
right to redeem, in full, the outstanding principal and interest under the debenture prior to its maturity date; provided, that,
as of the date of the then-holder’s receipt of the redemption notice, there has not been an Event of Default. We must pay an amount
equal to the principal amount being redeemed plus outstanding and accrued interest thereon, as well as a $
In connection with the issuances of the debentures, the Company granted to the Investor warrants
to purchase up to
| F-42 |
As of March 31, 2023, no shares of common stock were potentially issuable under the conversion terms of the outstanding debentures.
At
December 31, 2022, accrued interest on the convertible notes payable was $
As
of December 31, 2022, the unamortized debt discount was $
NOTE 9 – ACQUISITION OBLIGATION
On
January 21, 2021, the Company entered into an Agreement and Plan of Merger with S and S and its shareholders and acquired all of the
capital stock of S and S. In consideration thereof, the Company issued to them an aggregate of restricted shares of Kona
Gold Beverage, Inc.’s common stock (the “Acquisition Stock”) of a fair value of $
NOTE 10 – LEASE LIABILITIES
The Company determines whether a contract is, or contains, a lease at inception. Right-of-use assets represent the Company’s right to use an underlying asset during the lease term, and lease liabilities represent the Company’s obligation to make lease payments arising from the lease. Right-of-use assets and lease liabilities are recognized at lease commencement based upon the estimated present value of unpaid lease payments over the lease term. The Company leases its office and warehouse locations, and certain warehouse equipment. Leases with an initial term of 12 months or less are not included on the balance sheets.
Operating Leases
The
Company leases approximately
The
Company leases a
| F-43 |
The
Company leases a
Finance Leases
On
March 17, 2020, the Company entered into a lease agreement for equipment.
During
the three months ended March 31, 2023 and 2022, lease costs totaled $
Our
ROU asset balance was $
As
of December 31, 2022, lease liabilities totaled $
As
of March 31, 2023, the weighted average remaining lease terms for operating lease and finance lease are
Future minimum lease payments under the leases are as follows:
| Years Ending December 31, | Amount | |||
| 2023 (remaining) | $ | |||
| 2024 | ||||
| 2025 | ||||
| 2026 | ||||
| 2027 and thereafter | ||||
| Total payments | ||||
| Less: Amount representing interest | ( | ) | ||
| Present value of net minimum lease payments | ||||
| Less: Current portion | ( | ) | ||
| Non-current portion | $ | |||
NOTE 11 – STOCKHOLDERS’ EQUITY
Preferred Stock
The Company’s issued and outstanding preferred stock, par value $ per share, at March 31, 2023 and December 31, 2022 was and , respectively. The Board, without further stockholder approval, may issue preferred stock in one or more series from time to time and fix or alter the designations, relative rights, priorities, preferences, qualifications, limitations and restrictions of the shares of each series.
Series A Preferred Stock
The Company had authorized shares of Series A Preferred Stock, par value of $ per share (the “Series A Preferred Stock”), of which shares were issued or outstanding at March 31, 2023 and December 31, 2022, respectively. Each share of Series A Preferred Stock, when outstanding, could have been converted into one share of Common Stock.
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Series B Preferred Stock
The Company had authorized shares of Series B Preferred Stock, par value of $ per share (the “Series B Preferred Stock”), of which were issued and outstanding at March 31, 2023 and December 31, 2022, respectively. Each share of Series B Preferred Stock may be converted into one share of Common Stock.
Series C Preferred Stock
On
February 13, 2023, the Company increased the authorized number of Series C Preferred Stock from to shares, par value $
per share (the “Series C Preferred Stock”), by filing a Certificate of Designation of the Preferences, Rights, and Limitations
of the Series C Preferred Stock with the Secretary of State of the State of Delaware. On July 8, 2020, the Company amended the terms
of the Series C Preferred Stock filed a Certificate of Designation of the Preferences, Rights, and Limitations of the Series C Preferred
Stock with the Secretary of State of the State of Delaware.
At March 31, 2023, shares of Series C Preferred Stock were issued and outstanding, and at December 31, 2022, shares of Series C Preferred Stock were issued and outstanding.
Series D Preferred Stock
The Company had authorized shares of Series D Preferred Stock, par value of $ per share (the “Series D Preferred Stock”), of which shares were issued and outstanding at March 31, 2023 and December 31, 2022, respectively. Each share of the Series D Preferred Stock may be converted into shares of Common Stock.
Common Stock
On February 13, 2023, the Company increased the authorized number of shares of Common Stock from to shares, par value $ per share (the “Common Stock”), by filing a Certificate of Amendment to the amended and restated Certificate of Incorporation with the Secretary of State of the State of Delaware. The Company has authorized shares of the Common Stock, of which shares were issued and outstanding at March 31, 2023, and shares were issued and outstanding at December 31, 2022, respectively.
Equity Transactions
During
the three months ended March 31, 2023, the Company issued an aggregate of shares of Common Stock with a fair value of $
During
the three months ended March 31, 2023, the Company issued an aggregate of
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During
the three months ended March 31, 2022, the Company issued an aggregate of shares of Common Stock with a fair value of $
During
the three months ended March 31, 2022, and in connection with the issuance of a debenture, the Company issued to the lender
shares of the Company’s common stock at a price of $ per share (see Note 8). The fair value of the shares issued
was $
2023 Equity Purchase Agreement
Pursuant
to an Equity Purchase Agreement (the “Purchase Agreement”) dated as of March 30, 2023 (the “EPA”), the Company
(i) agreed to sell to the same entity with whom we had entered into the Securities Purchase Agreement dated as of March 13, 2023 up to $
The Commitment Period commences on the Execution Date, and ends on the earlier of (i) the date on which the Investor shall have purchased Put Shares pursuant to the Purchase Agreement equal to the Maximum Commitment Amount, (ii) March 30, 2025, (iii) written notice of termination by the Company to the Investor (which shall not occur during any Valuation Period or at any time that the Investor holds any of the Put Shares), (iv) the Registration Statement for the Put Shares is no longer effective after its initial effective date, or (v) the date that, pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any person commences a proceeding against the Company, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company makes a general assignment for the benefit of its creditors.
We
also granted the Warrant to purchase up to an aggregate of the
Common Stock Issuable
On
August 12, 2015, the Company entered into an Employment Agreement with Robert Clark (the “Clark Employment Agreement”). On
December 1, 2016, the Company entered into an Amendment to Employment Agreement (the “Clark Amendment”; and, together with
the Clark Employment Agreement, the “Amended Clark Employment Agreement”). Pursuant to the terms of the Amendment Clark Employment
Agreement, the Company agreed to issue, among other securities, shares of the Common Stock.
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The
shares of the Common Stock were issued to Mr.
Clark, as follows: (i) on October 28, 2015, the Company issued of such shares; (ii) on March 2, 2016, the Company issued of such, and (iii) on Mary 16, 2016, the Company
issued of such shares. On April 19, 2018, (i) shares were cancelled and returned to the Company, and on July 31, 2019, (ii) an additional shares were cancelled and returned
to the Company. Accordingly, as of December 31, 2019, the Company owed to Mr. Clark an aggregate of shares to be reissued
to him upon his request pursuant to the terms of the oral agreement with him which were valued at $
Issuance of Class C Preferred Stock to a related party
On
February 16, 2023, we issued shares of our Series C Preferred Stock to Robert Clark, CEO and major shareholder. The Company determined the fair value of the
shares was $
Summary of Warrants
A summary of warrants for the three months ended March 31, 2023 is as follows:
| Weighted | ||||||||
| Number | Average | |||||||
| of | Exercise | |||||||
| Warrants | Price | |||||||
| Balance outstanding, December 31, 2022 | ||||||||
| Warrants granted | ||||||||
| Warrants exercised | ( | ) | ||||||
| Warrants expired or forfeited | ||||||||
| Balance outstanding, March 31, 2023 | $ | |||||||
| Balance exercisable, March 31, 2023 | $ | |||||||
Information relating to outstanding warrants at March 31, 2023, summarized by exercise price, is as follows:
| Outstanding | Exercisable | |||||||||||||||||||||
| Exercise Price Per Share | Shares | Life (Years) | Weighted Average Exercise Price | Shares | Weighted Average Exercise Price | |||||||||||||||||
| $ | $ | $ | ||||||||||||||||||||
| $ | $ | $ | ||||||||||||||||||||
| $ | $ | $ | ||||||||||||||||||||
| $ | $ | |||||||||||||||||||||
Based on the fair market value of $ per share on March 31, 2023, there was no intrinsic value attributed to both the outstanding and exercisable warrants at March 31, 2023.
In
connection with the issuance of senior convertible secured debentures on March 13, 2023 (see Note 8), the Company granted warrants with
a relative fair value of $
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In
connection with the issuance of 2023 Equity Purchase Agreement on March 30, 2023 (see Note 11), the Company granted warrants to purchase
up to an aggregate of shares of the Common Stock. Each warrant has a five-year term from issuance and is immediately exercisable
at an exercise price of $ per share, subject to adjustment. The fair value of these warrants at grant date was $
NOTE 13 – SUBSEQUENT EVENTS
April 2023 Security Purchase Agreement
Pursuant
to a Securities Purchase Agreement dated as of April 25, 2023 (the “SPA”), the Company, completed a private placement of
a Senior Secured Promissory Note (the “Senior Note”) with an initial principal amount of $
The
transactions contemplated by the SPA were consummated on April 25, 2023 (the “Issue Date”). Upon the funding, we sold and
issued the Senior Note and granted the Warrant. Pursuant to the SPA, the purchase price for the Senior Note was $
The
Senior Note is due 12 months from its issuance date and is secured by all of our assets and the assets of each of our subsidiaries pursuant
to the Security Agreement. The security interest granted to the Investor under the Security Agreement is subordinate to the continuing
security interest that remains in effect pursuant to the previous grant of a security interest in connection with a still-outstanding
debenture to an earlier investor. Initially, the Senior Note is convertible into shares of our Common Stock (the “Conversion Shares”)
at a fixed conversion price of $
At
our option, we have the right to redeem, in full, the outstanding principal and interest under the Senior Note prior to its maturity
date; provided, that, as of the date of the then-holder’s receipt of the redemption notice, there has not been an
Event of Default. We must pay an amount equal to the principal amount being redeemed plus outstanding and accrued interest thereon, as
well as a $
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Further, commencing on May 10, 2023, and continuing on the tenth day of each calendar month thereafter, we are required to redeem an amount equivalent to the sum of $ for each 12-count case of our beverages that we sell in the ordinary course, calculated two months in arrears. Accordingly, the first redemption payment is due and payable on May 10, 2023 for the cases sold during the month of March, 2023. Mandatory redemption payments are based upon revenues recognized by us in accordance with US GAAP for each such month, rather than upon the receipt by us of funds received from sales during a relevant month. However, if we have made a per-case redemption payment to the holder pursuant to the terms of the “Mast Hill Debenture 2”, then, for such month, the mandatory payment under this Senior Note is waived. The above-referenced seven trading days’ prior notice and conversion provisions do not apply to any of the mandatory redemption payments.
We
also granted the Warrant to purchase up to an aggregate of the
The Warrant contains an adjustment provision that, subject to certain exceptions, reduces the exercise price if we issue shares of our Common Stock or common stock equivalents at a price lower than the then-current exercise price of the Warrant. Any stock splits, reverse stock splits, recapitalizations, mergers, combinations and asset sales, stock dividends, and similar events will result in an equitable adjustment of the exercise price of the Warrant and, in certain circumstances, the number of Warrant Shares. The Warrant is subject to an “exercise blocker,” such that the Investor cannot exercise any portion of the Warrant that would result in the Investor and its affiliates holding more than % of the then-issued and outstanding shares of our Common Stock following such exercise (excluding, for purposes of such determination, shares of the Common Stock issuable upon exercise of the Warrant or conversion of the Senior Note that had not then been exercised or converted, respectively).
Cashless Conversion of Secured Convertible Debentures
On
April 21, 2023, the Company issued an aggregate of shares of Common Stock to Mast Hill upon the conversion of $
Addendum of Advance Agreement
On
April 3, 2023, the Company entered into a First Addendum to Standard Merchant Cash Advance Agreement (the “First Addendum”)
to amend an Advance Agreement (the “Advance”), dated as of November 2, 2022. The original note was in the principal amount
of $
On
May 2, 2023, the Company entered into a First Addendum to Standard Merchant Cash Advance Agreement (the “First Addendum”)
to amend an Advance Agreement (the “Advance”), dated as of September 30, 2022. The original note was in the principal amount
of $
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702,280,139 shares of our Common Stock
PROSPECTUS
May [__], 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the offer and sale of our shares of Common Stock in this offering. All amounts listed below are estimates.
| Itemized expense | Amount | ||||
| SEC Registration Fee | $ | 221.27 | |||
| Legal Fees | $ | 15,000.00* | |||
| Accounting Fees and Expenses | $ | 10,000.00* | |||
| Transfer Agent Fee | $ | 500.00* | |||
| Miscellaneous fees and expenses | $ | 4,278.73* | |||
| TOTAL | $ | 30,000.00* | |||
* Estimated costs
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our A&R Certificate of Incorporation, as may be further amended and restated and in effect from time to time, provides that our directors shall not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director.
Under the DGCL, our directors have a fiduciary duty to us that is not eliminated by this provision of our A&R Certificate of Incorporation and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available. This provision also does not affect our directors’ responsibilities under any other laws, such as federal securities laws or state or federal environmental laws.
Section 145 of the DGCL empowers a corporation to indemnify its directors and officers against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit, or proceeding brought by third parties by reason of the fact that they were or are directors or officers of the corporation, if they acted in good faith, in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe that their conduct was unlawful. The DGCL provides further that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation’s bylaws, any agreement, a vote of stockholders or otherwise. Our A&R Certificate of Incorporation provides that, to the fullest extent permitted by Section 145 of the DGCL, we shall indemnify any person who is or was a director or officer of us, or is or was serving at our request as a director, officer, or trustee of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against the expenses, liabilities, or other matters referred to in or covered by Section 145 of the DGCL.
Our A&R Bylaws provide that we will indemnify any person who was or is a party or threatened to be made a party to any proceeding by reason of the fact that such person is or was a director or officer of us or is or was serving at our request as a director, officer, or trustee of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise to the fullest extent permitted by the DGCL. In addition, we have entered into agreements with each of our directors and officers under which, among other things, we have agreed to indemnify the director or officer against expenses incurred in any proceeding, including any action by us, in which the director or officer was, is or is threatened to be made a party or a participant by reason of his or her status as a present or former director, officer, employee, or agent of us or, at our request, any other corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. At present, there is no pending litigation or proceeding involving any director or officer as to which indemnification will be required or permitted, and we are not aware of any threatened litigation or proceeding that may result in a claim for such indemnification.
Section 145 of the DGCL also empowers a corporation to purchase insurance for its officers and directors for such liabilities. We maintain liability insurance for our officers and directors.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
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ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
For purposes of this Item 15, Recent Sales of Unregistered Securities, the conversion rights for our Series B Preferred Stock, our Series C Preferred Stock, and our Series D Preferred Stock are based on the terms of the applicable Certificate of Designation of the Preferences, Rights, and Limitations then in effective at the time of conversion. For additional information, please see the section entitled “Description of Securities.”
2020
We issued 5,000,000 shares of our Common Stock on January 27, 2020 to Lori Radcliffe pursuant to the Radcliffe Employment Agreement with us. At the date of issuance, the per-share fair market value of the shares was $0.0637 based on the closing price of our Common Stock as reported by the OTCM on the date of issuance or an aggregate fair market value of $318,500. We issued the shares of our Common Stock in reliance on the exemption from registration pursuant to Section 4(a)(2) of the Securities Act (in that the issuance of shares of our Common Stock did not involve any public offering).
We issued 5,000,000 shares of our Common Stock on April 3, 2020 to Paul O’Renick pursuant to an Employment Agreement dated October 1, 2019, representing $157,500 in compensation for services provided. At the date of issuance, the per-share fair market value was $0.0315 based on the closing price of our Common Stock as reported by the OTCM on the date of issuance. We issued the shares of our Common Stock in reliance on the exemption from registration pursuant to Section 4(a)(2) of the Securities Act (in that the issuance of shares of our Common Stock did not involve any public offering).
We issued 85,000 shares of our Common Stock on April 3, 2020 to Ryan Dodd pursuant to the Dodd Agreement. At the date of issuance, the per-share fair market value was $0.0315 based on the closing price of our Common Stock as reported by the OTCM on the date of issuance, or an aggregate fair market value of $2,578, as a sponsorship payment. We issued the shares of our Common Stock in reliance on the exemption from registration pursuant to Section 4(a)(2) of the Securities Act (in that the issuance of shares of our Common Stock did not involve any public offering).
On May 14, 2020, we executed a securities purchase agreement with an otherwise unaffiliated third-party investor (the “May 2020 SPA”). In connection therewith, we agreed to sell and issue three secured convertible debentures (the “May 2020 Debentures”) and granted one Warrant (the “May 2020 Warrant”). The date of the sale and issuance of the first debenture, in the initial principal amount of $250,000, was May 14, 2020. The date of the sale and issuance of the second debenture, in the initial principal amount of $250,000, was July 20, 2020. The date of the sale and issuance of the third debenture, in the initial principal amount of $500,000, was December 31, 2020. In connection with the transactions contemplated by the May 2020 SPA, we also granted the investor a three-year Warrant for the purchase up to 20,000,000 shares of our Common Stock (the “May 2020 Warrant Shares”). Concurrently with the execution of the May 2020 SPA, we also entered into the May 2020 Registration Rights Agreement with the investor for the registration of the shares underlying the debentures and the Warrant. That registration statement was declared effective on December 31, 2020. We issued the May 2020 Debentures and granted the May 2020 Warrant in reliance on the exemption from registration pursuant to Rule 506 promulgated under the Securities Act (in that the issuance of the debentures and grant of the Warrant, and the shares of our Common Stock issuable upon conversions or exercises of the debentures and the Warrant, respectively, did not involve any public offering). We used the proceeds from the debentures that we sold and issued under the May 2020 SPA for general corporate purposes.
We sold and issued an additional secured convertible debenture to the third-party investor in the original principal amount of $100,000 on November 30, 2020. We did not grant any registration rights in connection with our sale and issuance of the additional debenture. We issued the additional debenture in reliance on the exemption from registration pursuant to Section 4(a)(2) of the Securities Act (in that the issuance of the additional debenture, and shares of our Common Stock issuable upon conversion of the additional debenture, did not involve any public offering). We repaid the debenture in cash in December 2020. We used the proceeds from this debenture for general corporate purposes.
On July 10, 2020, we issued 4,000,000 shares of our Common Stock upon the conversion of 4,000,000 shares of our Series A Preferred Stock to Robert Clark and Joseph Thornburg. The shares of our Common Stock on the date of issuance had a per-share fair market value of $0.0346, which was based on the closing price of our Common Stock as reported by the OTCM on the date of issuance. We issued the shares in reliance on the exemption from registration pursuant to Section 4(a)(2) of the Securities Act (in that the shares of our Common Stock issuable upon conversion did not involve any public offering).
On July 14, 2020, we issued 140 shares of our Series C Preferred Stock to Robert Clark, our President and Chief Executive Officer. We owe Mr. Clark 170,000,000 shares of our Common Stock at any time that Mr. Clark requests that these shares be issued to him. The 140 shares of our Series C Preferred Stock are convertible into 140 shares of our Common Stock. Thus, following this issuance, we owe Mr. Clark 169,999,860 shares of our Common Stock. At the date of issuance, the per-share fair market value of the shares was $0.0312 based on the closing price of our Common Stock as reported by the OTCM on the date of issuance. We issued the shares of our Series C Preferred Stock in reliance on the exemption from registration pursuant to Section 4(a)(2) of the Securities Act (in that the issuance of shares of our Series C Preferred Stock, and shares of our Common Stock issuable upon conversion of our Series C Preferred Stock did not involve any public offering). The 140 shares of Series C Preferred Stock were, pursuant to its Certificate of Designation, automatically converted into 140 shares of our Common Stock on the one-year anniversary of their issuance.
2021
On February 18, 2021, we executed a securities purchase agreement with the investor (the “February 2021 SPA”). In connection therewith, we agreed to sell and issue the February 2021 Debentures and granted the February 2021 Warrant, exercisable for up to 50,000,000 February 2021 Warrant Shares at an initial exercise price of $0.03 per share. We sold and issued to the third-party investor a debenture in the original principal amount of $900,000 and granted the February 2021 Warrant promptly after entering into the February 2021 SPA. We sold and issued a “partial” Second February 2021 Debenture on May 6, 2021 in the original principal amount of $200,000. We sold and issued the balance of the Second February 2021 Debenture in the original principal amount of $400,000 on June 9, 2021 when this Registration Statement for the February 2021 SPA was declared effective by the SEC. We issued the February 2021 Debentures and granted the February 2021 Warrant in reliance on the exemption from registration pursuant to Rule 506 promulgated under the Securities Act (in that the issuance of the February 2021 Debentures and the February 2021 Warrant, and the shares of our Common Stock issuable upon conversion or exercise of the February 2021 Debentures and the February 2021 Warrant, respectively, did not involve any public offering). Concurrently with the execution of the February 2021 SPA, we also entered into the February 2021 Registration Rights Agreement with the investor for the registration of the shares underlying the February 2021 Debentures and the February 2021 Warrant. We used the proceeds from the debentures that we sold and issued under the February 2021 SPA for general corporate purposes.
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We issued 3,000,000 shares of our Common Stock to William J. Stineman on July 30, 2021, pursuant to his employment agreement with us. We issued a further 5,000,000 shares of our Common Stock to him effective December 23, 2021, also pursuant to his employment agreement. As of the date of his employment agreement (December 23, 2020), which contained our contractual commitment to issue to him the aggregate 8,000,000 shares, the per-share fair market value of the shares was $0.0265 based on the closing price of the Common Stock as reported by the OTCM on that date, for a total value of $212,000. We issued the shares of our Common Stock in reliance on the exemption from registration pursuant to Section 4(a)(2) of the Securities Act (in that the issuance of shares of our Common Stock did not involve any public offering).
We issued 100,000 shares of our Common Stock to John Torrence on July 30, 2021 as a performance award. At the date of issuance, the per-share fair market value of the shares was $0.018 based on the closing price of the Common Stock as reported by the OTCM on the date of issuance, for a total value of $1,800. We issued the shares of our Common Stock in reliance on the exemption from registration pursuant to Section 4(a)(2) of the Securities Act (in that the issuance of shares of our Common Stock did not involve any public offering).
On August 20, 2021, we executed a securities purchase agreement with the investor (the “August 2021 SPA”). In connection therewith, we agreed to sell and issue the August 2021 Debentures and granted the August 2021 Warrant, exercisable for up to 100,000,000 August 2021 Warrant Shares at an initial exercise price of $0.03 per share. We sold and issued to the third-party investor a debenture in the original principal amount of $1,500,000 and granted the August 2021 Warrant promptly after entering into the August 2021 SPA. We will sell and issue the Second August 2021 Debenture in the original principal amount of $1,500,000 promptly upon the later of (i) the SEC declaring effective this Registration Statement that we are obligated to file not later than September 21, 2021 or (ii) November 1, 2021. We issued the August 2021 Debentures and granted the August 2021 Warrant in reliance on the exemption from registration pursuant to Rule 506 promulgated under the Securities Act (in that the issuance of the August 2021 Debentures and the August 2021 Warrant, and the shares of our Common Stock issuable upon conversion or exercise of the August 2021 Debentures and the August 2021 Warrant, respectively, did not involve any public offering). Concurrently with the execution of the August 2021 SPA, we also entered into the August 2021 Registration Rights Agreement with the investor for the registration of the shares underlying the August 2021 Debentures and the August 2021 Warrant. We used the proceeds from the debentures that we sold and issued under the August 2021 SPA for general corporate purposes.
2022
We issued 1,000,000 shares of our Common Stock to Peter Troy on April 11, 2022, pursuant to his employment agreement with us, dated October 1, 2021. At the date of grant, the per-share fair market value of the shares was $0.0085 based on the closing price of the Common Stock as reported by the OTCM on the date of grant, for a total value of $8,500. We issued the shares of our Common Stock in reliance on the exemption from registration pursuant to Section 4(a)(2) of the Securities Act (in that the issuance of shares of our Common Stock did not involve any public offering).
On May 3, 2022, we executed a Securities Purchase Agreement with the investor. In connection therewith, we sold and issued a Secured Convertible Debenture in the initial principal amount of $500,000 and granted a Common Stock Purchase Warrant, exercisable for up to 8,333,333 shares of our Common Stock at an initial exercise price of $0.03 per share. We issued the Debenture and granted the Warrant in reliance on the exemption from registration pursuant to Rule 506 promulgated under the Securities Act (in that the issuance of the Debenture and the grant of the Warrant, and the shares of our Common Stock issuable upon conversion or exercise of the Debenture and the Warrant, respectively, did not involve any public offering). We used the proceeds from the Debenture for general corporate purposes.
On July 28, 2022, we executed a Securities Purchase Agreement with the investor. In connection therewith, we sold and issued a Senior Secured Promissory Note in the initial principal amount of $595,000 and granted a Common Stock Purchase Warrant, exercisable for up to 100,000,000 shares of our Common Stock at an initial exercise price of $0.0045 per share. We issued the Note and granted the Warrant in reliance on the exemption from registration pursuant to Rule 506 promulgated under the Securities Act (in that the issuance of the Note and the grant of the Warrant, and the shares of our Common Stock issuable upon conversion or exercise of the Note and the Warrant, respectively, did not involve any public offering). We used the proceeds from the Note for general corporate purposes.
On November 16, 2022, the Company issued 32,512,593 shares of Common Stock to YA II PN, Ltd. upon its conversion of $100,000 of principal, and $789 of accrued interest on a secured convertible debenture, at a per-share price of $0.0031. On November 29, 2022, the Company issued 40,256,440 shares of Common Stock to YA II PN, Ltd. upon its conversion of $100,000 of principal, and $641 of accrued interest on a secured convertible debenture, at a per-share price of $0.0025. On December 9, 2022, the Company issued 40,131,508 shares of Common Stock to YA II PN, Ltd. upon its conversion of $100,000 of principal, and $329 of accrued interest on a secured convertible debenture, at a per-share price of $0.0025. On December 16, 2022, the Company issued 45,506,850 shares of Common Stock to YA II PN, Ltd. upon its conversion of $100,000 of principal, and $115 of accrued interest on a secured convertible debenture, at a per-share price of $0.0022. We issued these shares of Common Stock pursuant to the exception from registration provided by Section 3(a)(9) of the Securities Act. We did not receive any funds resulting from the conversions, as we had received funds from YA II from the secured debentures that we sold to it in May 2022.
2023
On January 10, 2023, the Company issued an aggregate of 67,164,179 shares of Common Stock to Mast Hill Fund, L.P. (“Mast Hill”) upon its cashless exercise of 100,000,000 warrants, at a per-share price of $0.0022, for a net issuance of 67,164,179 shares of Common Stock. We issued these shares of Common Stock pursuant to the exception from registration provided by Section 3(a)(9) of the Securities Act. We did not receive any funds resulting from the exercise of the warrants, which were granted in connection with the Securities Purchase Agreement that the Company and Mast Hill entered in July 2022.
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On March 1, 2023, the Company issued 72,000,000 shares of Common Stock to Mast Hill upon its conversion of $122,352 of principal, and $35,048 of accrued interest on its Senior Secured Promissory Note, at a per-share price of $0.0022. We issued these shares of Common Stock pursuant to the exception from registration provided by Section 3(a)(9) of the Securities Act. We did not receive any funds resulting from the conversion, as we had received funds from Mast Hill from the secured debenture that we sold to it in July 2022.
On February 16, 2023, we issued 1,000 shares of our Series C Preferred Stock to Robert Clark. As of that date, there were 169,999,860 shares of Common Stock that were issuable to Mr. Clark. For this issuance, we utilized 1,000 of such issuable shares. We issued these shares of Series C Preferred Stock pursuant to the exception from registration provided by Section 4(a)(2) of the Securities Act in that this transaction did not constitute a public offering and there was no general solicitation in connection with such issuance. We did not receive any funds in connection with this issuance, as such shares had previously been expensed in connection with Mr. Clark’s employment agreement.
On March 13, 2023, pursuant to a Securities Purchase Agreement dated as of March 13, 2023 (the “SPA”), we completed a private placement of a Senior Secured Promissory Note (the “Senior Note”) with an initial principal amount of $475,000 and the grant of a common stock purchase Warrant (the “SPA Warrant”) that is exercisable for the purchase of up to an aggregate of 80,000,000 shares (the “Warrant Shares”) of our Common Stock with Mast Hill. In addition, to secure our obligations to Mast Hill under the Senior Note, we also entered into a Security Agreement (the “Security Agreement”) with and in favor of Mast Hill. Our subsidiaries are also parties to the Security Agreement.
The transactions contemplated by the SPA were consummated on March 15, 2023 (the “Issue Date”). Upon the funding, we sold and issued the Senior Note and granted the SPA Warrant. Pursuant to the SPA, the purchase price for the Senior Note was $475,000, less $43,500 in fees, which consisted of an 8% “original issue discount” of $38,000 and $5,500 for Mast Hill’s legal fees.
The Senior Note is due 12 months from its issuance date and is secured by all of our assets and the assets of each of our subsidiaries pursuant to the Security Agreement. The security interest granted to Mast Hill under the Security Agreement is subordinate to the continuing security interest that remains in effect pursuant to the previous grant of a security interest in connection with a still-outstanding debenture to an earlier investor. Initially, the Senior Note is convertible into shares of our Common Stock (the “Conversion Shares”) at a fixed conversion price of $0.0045 per share, subject to adjustment due to merger, consolidation, exchange of shares, recapitalization, reorganization, or similar event as set forth in the Senior Note (the “Conversion Price”). The Senior Note contains an adjustment provision that, subject to certain exceptions, reduces the conversion price if we issue shares of our Common Stock or common stock equivalents at a price lower than the then-current Conversion Price of the Senior Note. Upon any stock splits, reverse stock splits, distributions, stock dividends, or other similar event, Mast Hill will be entitled to participate in such an event on an “as converted” basis. The Senior Note is subject to a “conversion blocker” such that Mast Hill cannot convert any portion of the Senior Note that would result in Mast Hill and its affiliates holding more than 4.99% of the then-issued and outstanding shares of our Common Stock following such conversion (excluding, for purposes of such determination, shares of the Common Stock issuable upon conversion of the Senior Note or exercise of the Warrant that had not then been converted or exercised, respectively). Mast Hill does not have the right to convert the Senior Note until six months after the Issue Date. The Senior Note accrues interest at an annual rate equal to 10% and is due and payable on its maturity date (or sooner if Mast Hill converts the Senior Note or otherwise accelerates the maturity date, as provided for in the Senior Note). Interest is payable in cash on the maturity date or, in shares of the Common Stock at the then-current Conversion Price if Mast Hill converts the Senior Note or otherwise accelerates the maturity date, as provided for in the Senior Note.
At our option, we have the right to redeem, in full, the outstanding principal and interest under the Senior Note prior to its maturity date; provided, that, as of the date of the then-holder’s receipt of the redemption notice, there has not been an Event of Default. We must pay an amount equal to the principal amount being redeemed plus outstanding and accrued interest thereon, as well as a $750 administrative fee (the “Redemption Amount”). We must provide seven Trading Days’ (as such term is defined in the Senior Note) prior notice to the then-holder of the Senior Note of our intent to make a redemption. If such notice of redemption is received six months after the Issue Date, the then-holder has the right to convert any or all of such to-be-prepaid amount into shares of our common Stock in accordance with the conversion provisions of the Senior Note prior to such redemption.
Further, commencing on May 10, 2023, and continuing on the tenth day of each calendar month thereafter, we are required to redeem an amount equivalent to the sum of $2.00 for each 12-count case of our beverages that we sell in the ordinary course, calculated two months in arrears. Accordingly, the first redemption payment is due and payable on May 10, 2023 for the cases sold during the month of March, 2023. Mandatory redemption payments are based upon revenues recognized by us in accordance with US GAAP for each such month, rather than upon the receipt by us of funds received from sales during a relevant month. The above-referenced seven trading days’ prior notice and conversion provisions do not apply to any of the mandatory redemption payments.
We also granted the SPA Warrant to purchase up to an aggregate of the 80,000,000 SPA Warrant Shares. The SPA Warrant has a five-year term and is immediately exercisable at an exercise price of $0.0045 per share, subject to adjustment and is exercisable by the then-holder on a “cashless” basis.
The SPA Warrant contains an adjustment provision that, subject to certain exceptions, reduces the exercise price if we issue shares of our Common Stock or common stock equivalents at a price lower than the then-current exercise price of the SPA Warrant. Any stock splits, reverse stock splits, recapitalizations, mergers, combinations and asset sales, stock dividends, and similar events will result in an equitable adjustment of the exercise price of the SPA Warrant and, in certain circumstances, the number of SPA Warrant Shares. The Warrant is subject to an “exercise blocker,” such that Mast Hill cannot exercise any portion of the SPA Warrant that would result in Mast Hill and its affiliates holding more than 4.99% of the then-issued and outstanding shares of our Common Stock following such exercise (excluding, for purposes of such determination, shares of the Common Stock issuable upon exercise of the SPA Warrant or conversion of the Senior Note that had not then been exercised or converted, respectively).
ITEM 16. EXHIBITS
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| II-5 |
| II-6 |
| II-7 |
| 101.INS* | XBRL Instance Document |
| 101.SCH* | XBRL Taxonomy Extension Schema |
| 101.CAL* | XBRL Taxonomy Extension Calculation Linkbase |
| 101.DEF* | XBRL Taxonomy Extension Definition Linkbase |
| 101.LAB* | XBRL Taxonomy Extension Label Linkbase |
| 101.PRE* | XBRL Taxonomy Extension Presentation Linkbase |
| II-8 |
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or issuances are being made, a post-effective amendment to this registration statement:
(i) To include any Prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the Prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of Prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each Prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than Prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or Prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or Prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or Prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the issuer will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(c) The undersigned hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act the information omitted from the form of Prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of Prospectus filed pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act each post-effective amendment that contains a form of Prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized in the City of Melbourne, State of Florida, on May 22, 2023.
| KONA GOLD BEVERAGE, INC. | ||
| By: | /s/ Robert Clark | |
| Robert Clark | ||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints each of Robert Clark and Lori Radcliffe as his/her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement and to sign any related registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each action alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| /s/ Robert Clark | Dated: May 22, 2023 | |
Robert Clark President, Chief Executive Officer, Secretary and Chairman and Director |
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| /s/ Lori Radcliffe | Dated: May 22, 2023 | |
| Lori Radcliffe, Chief Financial Officer | ||
| /s/ Matthew Crystal | Dated: May 22, 2023 | |
| Matthew Crystal, Director |
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