As filed with the Securities and Exchange Commission on February 14, 2024
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)
| 6770 | ||||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
(Address, including zip code, and telephone number, including
area code, of Registrant’s principal executive offices)
Chief Executive Officer
TruGolf Holdings, Inc.
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies of all communications, including communications sent to the agent for service, to:
Arthur S. Marcus, Esq.
Sichenzia Ross Ference Carmel LLP
1185 Avenue of the Americas
New York, NY 10036
(212) 930-9700
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes 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, smaller reporting company, or an emerging growth company. See the 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, as amended, 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 prospectus is not complete and may be changed. The selling securityholders named in this prospectus may not sell these securities until the registration statement becomes effective. This prospectus is not an offer to sell these securities, and the selling securityholders named in this prospectus are not soliciting offers to buy these securities in any jurisdiction where the offer for sale is not permitted.
| PROSPECTUS | SUBJECT TO COMPLETION | DATED FEBRUARY 14, 2024 |
TRUGOLF HOLDINGS, INC.
4,246,702 Shares of Class A Common Stock
29,245,684 Shares of Class A Common Stock Underlying Series A Warrants and Series B Warrants
40,185,185 Shares of Class A Common Stock Underlying Notes
632,500 Shares of Class A Common Stock Underlying Representative Warrants
This prospectus relates to the offer and sale from time to time by the selling securityholders named in this prospectus (the “Selling Securityholders”) of an aggregate of: (a) up to 4,246,702 shares of our Class A common stock, par value $0.0001 per share (“Class A Common Stock”); (b) up to 40,185,185 shares of Class A Common Stock (the “Note Shares”) issuable upon the conversion of the convertible promissory note (the “Notes”); (c) up to 9,870,684 shares of Class A Common Stock (the “Series A Warrant Shares”) issuable upon the exercise of Series A Warrants to purchase Class A Common Stock (the “Series A Warrant”); (d) up to 19,375,000 shares of Class A Common Stock (the “Series B Warrant Shares”) issuable upon the exercise of Series B Warrants to purchase Class A Common Stock (the “Series B Warrant”); and (e) up to 632,500 shares of Class A Common Stock the “Representative Warrant Shares,” together with the Series A Warrant Shares and the Series B Warrant Shares as the “Warrant Shares”) issuable upon the exercise of Representative Warrants to purchase Class A Common Stock (the “Representative Warrant,” together with the Series A Warrant and the Series B Warrant as the “Warrant”).
The Common Stock being registered for resale was issued to, purchased by or will be purchased by the Selling Securityholders for the following consideration: (i) 3,162,500 shares of Class A Common Stock held by the founders of the Company, and which were issued to them prior to the Business Combination; (ii) 280,000 shares of Class A Common Stock issued to the directors and officers of the Company; (iii) 40,185,185 shares of Class A Common Stock issuable upon the conversion of the Notes, issued to the holders under a securities purchase agreement dated February 2, 2024 (the “Purchase Agreement”); (iv) 9,870,684 shares of Class A Common Stock issuable upon the exercise of the Series A Warrants, issued to the holders under the Purchase Agreement, pursuant which the Company shall issue the Series A Warrants Shares; (v) 19,375,000 shares of Class A Common Stock issuable upon the exercise of the Series B Warrants, issued to the holders under the Purchase Agreement, pursuant which the Company shall issue the Series B Warrants Shares, including; and (vi) 632,500 shares of Class A Common Stock issuable upon the exercise of the Representative Warrants, issued to I-Bankers (the “Representative”) in connection with the initial public offering of the Company; (v) up to 519,500 shares of Class A Common Stock issuable under the private placement units (the “Private Units”) with each unit comprising of one share of Class A Common Stock and one-tenth of one share of Class A Common Stock; (vi) up to 51,950 shares of Class A Common Stock issuable upon the conversion of rights issued under the Private Units; (vii) up to 20,000 shares of Class A Common Stock issued to Ellenoff Grossman & Schole LLP as fees for their services; and (viii) up to 212,752 shares of Class A Common Stock issued to the Representative as marketing fees in relation to the Business Combination. Please see the section entitled “Private Placement of Notes and Warrants” on page 75 and the “Selling Shareholders” of prospectus for more information.
On January 31, 2024, we completed the business combination and transactions contemplated thereby (the “Business Combination”) as set forth in that certain Amended and Restated Agreement and Plan of Merger (as amended), dated July 21, 2023, as amended (the “Merger Agreement”), by and among Deep Medicine Acquisition Corp. , a Delaware corporation (“DMA”), DMAC Merger Sub Inc., a Nevada corporation and wholly-owned subsidiary of Deep Medicine our predecessor company (“Merger Sub”), Bright Vision Sponsor LLC, a Delaware limited liability company, in the capacity as the representative for the stockholders of Deep Medicine in accordance with the terms and conditions of the Merger Agreement (the “Purchaser Representative”), Christopher Jones, an individual, in the capacity as the representative from and after the Effective Time for the TruGolf Stockholders as of immediately prior to the Effective Time in accordance with the terms and conditions of the Merger Agreement (the “Seller Representative”), and TruGolf, Inc., a Nevada corporation (“TruGolf Nevada”). As contemplated by the Merger Agreement, DMA changed its name to TruGolf Holdings, Inc. Prior to and in connection with the completion of the Business Combination and the extension of DMA’s existence, existing DMA stockholders elected to redeem approximately 379,687, or approximately 8.71% of the then-outstanding shares of 4,357,964.
We are registering the offer and sale of these securities to satisfy certain registration rights we have granted. The Selling Securityholders may offer, sell, or distribute all or a portion of the securities hereby registered publicly or through private transactions at prevailing market prices or at negotiated prices. We will not receive any of the proceeds from such sales of the shares of our Class A Common Stock, except with respect to amounts received by us upon the exercise of the Warrants for cash. We will bear all costs, expenses, and fees in connection with the registration of these securities, including with regard to compliance with state securities or “blue sky” laws. The Selling Securityholders will bear all commissions and discounts, if any, attributable to their sale of shares of our Class A Common Stock or Warrants. See the section entitled “Plan of Distribution” of this prospectus for additional information.
Our Class A Common Stock are listed on The Nasdaq Global Market, of The Nasdaq Stock Market LLC (“Nasdaq”) under the symbol “TRUG”. On February 13, 2024, the last quoted sale price for our Class A Common Stock as reported on Nasdaq was $1.75 per share. Any cash proceeds associated with the exercise of the Warrants are dependent on the stock price. Whether any holders of Warrants determine to exercise such Warrants, which would result in cash proceeds to the Company, will likely depend upon the market price of our Class A Common Stock at the time of any such holder’s determination.
Given the current market price of the Company’s Common Stock, certain of the Selling Securityholders who paid less for their shares than such current market price will receive a higher rate of return on any such sales than the public securityholders who purchased Common Stock in the SPAC IPO or any Selling Securityholder who paid more for their shares than the current market price.
We are an “emerging growth company,” as defined under the federal securities laws, and, as such, may elect to comply with certain reduced public company reporting requirements for future filings.
Investing in our securities involves a high degree of risk. Before buying any securities, you should carefully read the discussion of the risks of investing in our securities in the section entitled “Risk Factors” beginning on page 7 of this prospectus.
You should rely only on the information contained in this prospectus or any prospectus supplement or amendment hereto. We have not authorized anyone to provide you with different information.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is __________, 2024
TABLE OF CONTENTS
You should rely only on the information contained in this prospectus. No one has been authorized to provide you with information that is different from that contained in this prospectus. This prospectus is dated as of the date set forth on the cover hereof. You should not assume that the information contained in this prospectus is accurate as of any date other than that date.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-1 that we filed with the U.S. Securities Exchange Commission (the “SEC”), under which the Selling Securityholders may, from time to time, sell the securities offered by them described in this prospectus. We will not receive any proceeds from the sale by such Selling Securityholders of the securities offered by them described in this prospectus. This prospectus also relates to the issuance by us of shares of Class A Common Stock issuable upon the conversion of the Notes and the exercise of the Warrants. We will receive proceeds to the extent there are any cash exercises of the Warrants.
Neither we nor the Selling Securityholders have authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus, any applicable prospectus supplement, or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. Neither we nor the Selling Securityholders take responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. Neither we nor the Selling Securityholders will make an offer to sell these securities in any jurisdiction where such offer or sale is not permitted. No dealer, salesperson, or other person is authorized to give any information or to represent anything not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus. You should assume that the information appearing in this prospectus or any prospectus supplement is accurate as of the date on the front of those documents only, regardless of the time of delivery of this prospectus or any applicable prospectus supplement, or any sale of a security. Our business, financial condition, results of operations, and prospects may have changed since those dates.
The Selling Securityholders and their permitted transferees may use this registration statement to sell securities from time to time through any means described in the section entitled “Plan of Distribution.” More specific terms of any securities that the Selling Securityholders and their permitted transferees offer and sell may be provided in a prospectus supplement that describes, among other things, the specific amounts and prices of the securities being offered and the terms of the offering.
We may also provide a prospectus supplement or post-effective amendment to the registration statement to add information to, or update or change information contained in, this prospectus. Any statement contained in this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in such prospectus supplement or post-effective amendment modifies or supersedes such statement. Any statement so modified will be deemed to constitute a part of this prospectus only as so modified, and any statement so superseded will be deemed not to constitute a part of this prospectus. You should read both this prospectus and any applicable prospectus supplement or post-effective amendment to the registration statement together with the additional information to which we refer you in the section of this prospectus entitled “Where You Can Find More Information.”
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed, or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under “Where You Can Find More Information.”
Unless expressly indicated or the context otherwise requires, references in this prospectus to the “Company,” the “Registrant,” “we,” “us,” and “our” refer to the Company (and the business of TrueGolf Nevada which became the business of the Company after giving effect to the Business Combination).
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TRADEMARKS
This document contains references to trademarks and service marks belonging to other entities. Solely for convenience, trademarks and trade names referred to in this prospectus may appear without the ® or ™ symbols, but such references are not intended to indicate, in any way, that the applicable licensor will not assert, to the fullest extent under applicable law, its rights to these trademarks and trade names. We do not intend our use or display of other companies’ trade names, trademarks, or service marks to imply a relationship with, or endorsement or sponsorship of it by, any other companies.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated herein by reference contain forward-looking. Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on our current beliefs, expectations, and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy, and other future conditions. This includes, without limitation, statements regarding the financial position and the plans and objectives of management for our future operations. Such statements can be identified by the fact that they do not relate strictly to historical or current facts. When used in this prospectus, words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “strive,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements in this prospectus and in any document incorporated by reference in this prospectus may include, for example, statements about:
| ● | the occurrence of any event, change or other circumstances, including the outcome of any legal proceedings that may be instituted against us; | |
| ● | the ability to maintain the listing of our securities on Nasdaq, and the potential liquidity and trading of our securities; | |
| ● | the risk of disruption to our current plans and operations; | |
| ● | the ability to recognize the anticipated benefits of our business and the Business Combination, which may be affected by, among other things, competition and the ability to grow, manage growth profitably, and retain key employees; | |
| ● | costs related to our business; | |
| ● | changes in applicable laws or regulations; | |
| ● | our ability to meet its future capital requirements to fund our operations, which may involve debt and/or equity financing, and to obtain such debt and/or equity financing on favorable terms, and our sources and uses of cash; | |
| ● | our ability to execute on our plans to develop and commercialize our current clinical assets, as well as any future clinical assets that we license, and the timing of any such commercialization; | |
| ● | our ability to maintain existing license agreements; | |
| ● | our estimates regarding expenses, future revenue, capital requirements, and needs for additional financing; | |
| ● | our ability to achieve and maintain profitability in the future; | |
| ● | our financial performance; and | |
| ● | other factors disclosed under the section entitled “Risk Factors” in this prospectus. |
These forward-looking statements are based on information available as of the date of this prospectus and current expectations, forecasts, and assumptions, and involve a number of judgments, risks, and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing our views as of any subsequent date, and we do not undertake any obligation to update forward-looking statements to reflect events or circumstances after the date they were made, whether as a result of new information, future events, or otherwise, except as may be required under applicable securities laws.
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PROSPECTUS SUMMARY
This summary highlights selected information contained in other parts of this prospectus or incorporated by reference into this prospectus from our filings with the SEC listed in the section of the prospectus entitled “Incorporation of Certain Information by Reference.” Because it is only a summary, it does not contain all of the information that should be considered before purchasing our securities in this offering and it is qualified in its entirety by, and should be read in conjunction with, the more detailed information appearing elsewhere or incorporated by reference into this prospectus. You should read the entire prospectus, the registration statement of which this prospectus is a part, and the information incorporated by reference herein in their entirety, including the “Risk Factors” section and our financial statements and the related notes incorporated by reference into this prospectus, before purchasing any of our securities. Unless expressly indicated or the context requires otherwise, the terms the “Company,” the “Registrant,” “we,” “us” and “our” in this prospectus refer to the Company (and the business of TrueGolf Nevada, which became the business of the Company after giving effect to the Business Combination).
Corporate History
Trugolf Holdings, Inc. (the “Company” or “TruGolf”, “we”, “us”) was incorporated on July 8, 2020 as a Delaware corporation and formed for the purpose of effecting a business combination, with no material operation of its own. Our operations are conducted through our subsidiary TruGolf, Inc., a Nevada Corporation (“TruGolf Nevada”).TruGolf Nevada was formed as a Utah corporation on October 4, 1995, under the name “TruGolf, Incorporated”. TruGolf Nevada’s original business plan was the creation of golfing video games. On June 9, 1999, the TruGolf Nevada changed its name to “TruGolf, Inc.” Effective on April 26, 2016, TruGolf Nevada filed Articles of Merger with the State of Utah, Department of Commerce, and on April 28, 2016, TruGolf Nevada filed Articles of Merger with the Secretary of State of Nevada, pursuant to which TruGolf, Inc., a Utah corporation, merged with and into TruGolf Nevada, pursuant to a Plan of Merger. TruGolf Nevada was the surviving corporation in the merger. In connection with the Plan of Merger, TruGolf Nevada affected a four-for-one forward stock split of its outstanding common stock.
TruGolf Nevada has been creating indoor golf software for 40 years. We began as a subsidiary of Access Software, Inc., a video game developer based in Salt Lake City, Utah (“Access Software”), which was co-founded in November 1982, by Christopher Jones, TruGolf Nevada’s largest stockholder, Chief Executive Officer, President and Chairman. In April 1999, Access Software was purchased by Microsoft Corp., for its expertise in golf software development. Following the acquisition, the core programming and graphics team of Links™, which created Links LS 1999, one of the bestselling PC sports games of 1999, were spun out to TruGolf Nevada.
Since 1999, we have focused on establishing residential and commercial golf simulation as a viable industry, and since 2007, we have focused on fabricating custom golf simulators for luxury clients. Part of our initial strategy included partnering with hardware inventors to provide them world class software. Over time, we found that it was not viable to rely on these early hardware inventors alone, we also began building and selling our own hardware. In addition, we are working with a video game company to utilize their new dynamic graphics engine which will enable us to bring photorealistic golf courses to life through our E6 software (discussed below). In addition, we have developed multiple sources and 3rd party manufacturers for the raw materials or parts for our products, including but not limited to, steel or aluminum frames, fabric, turf, screens, projectors, PCs, cameras, lasers, infrared sensors, and supporting subsystems. The availability of the frames and fabric from our principal provider, Allied ES&A, has been increased as they have moved into a much larger facility directly located in a large employee base community and we have entered into negotiations with a second supplier in order to provide alternative sourcing if needed. A third supplier, Impact Signs, has also been used in the past and TruGolf Nevada believes that it could purchase turf, and screen supplies from them as well if needed. Both turf (Controlled Products), and screen suppliers (Allied), are so specialized that we have come to rely on one vendor for each, respectively. Turf particularly experienced some delivery delays in 2022 that have been rectified, additional inventory has been secured locally, and our highest volume portable simulators have been redesigned to use less raw materials from that vendor, while adding an improved hitting surface from a second vendor, Real Feel, to mitigate risk. Negotiations with a second supplier of screen materials is in progress. Projectors (TV Specialists), PCs, lasers, IR sensors and other systems come from multiple suppliers with no historical delay in supply. We have 2 primary suppliers of cameras, IDS and Basler, and have integrated products from both in the new Apogee unit to ensure the greatest availability possible.
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Market For Indoor Golf
We believe that it is important to understand the macro-economic trends of indoor golf as a sport, as a culture, and as a movement, to better understand the market for our indoor golfing simulators and software. According to the National Golf Foundation (the “NGF”), golf is the largest participation sport in America, with 41 million active golfers over six years old, and has had a growth rate of adding 3 million net new golfers in each of the 2021 and 2022. However, according to the NGF, in 2022, there were over 15.5 million golfers that participated exclusively in off-course golf activities, such as driving ranges, indoor golf simulators, or golf entertainment venues, and only 13 million people who played exclusively on a golf course. According to the NGF, a total of 17.8 million people who did not play golf in 2021 said they are “very interested” in playing golf on a golf course. According to a January 26, 2023 article from the NGF, the off-course golfers have increased more significantly, with a 13% year-over-year jump, compared with a 2% rise in on-course participation. As reported, the total off-course market in 2022 of approximately $27.9 million has for the first time eclipsed on-course play.
The total addressable market for golf products in 2022 was an estimated $1.4 USD Billion, and with a CAGR of 11.05% is forecast to reach $3.8 USD Billion by 2031. Econ Market Research estimates that North America represents 36%, Europe 28%, Asia Pacific 22%, and Middle East and Africa 7% of total Capital Market share in 2022. In this same report they have found that TruGolf Nevada currently maintains a 4.28% market share. They also noted that 69% of the total market is from Indoor Golf Simulators, while 31% is from Outdoor Golf Simulators in 2022 with a slight shift of 1% towards Outdoor Golf Simulators by 2031. In additional the report found that only 21% of sales were for Residential application, and 78% sold for Commercial applications, with a small increase in Residential to 22% by 2031. While it is not directly stated in the Econ Market Research study, we consider revenue from both SaaS software and Data Analytics to be included in the overall total addressable market for golf products. Our planned products are aligned directly with these findings as our Apogee launch monitor is an indoor only, and ceiling mounted device ideally for commercial facilities, yet equally beneficial to residential use. Our software, both E6 CONNECT, and APEX have power tools for commercial facilities to make playing, improving and enjoying golf easier than ever. While our software is available on 90% of hardware in the market this allows us to access customers for use indoor, outdoor, and residential, as well as commercial. In addition to these hardware and software solutions targeting directly the market segments we will be launching a franchise solution to capitalize on the powerful demand for commercial offerings.
We believe there are many reasons for the decline in outdoor rounds of golf being played and the simultaneous increase of indoor rounds of golf, including (i) the major costs of running a golf course (and consequently the costs of playing outdoor golf), including environmental factors making outdoor golf increasingly costly and requiring more and more water for vegetation, as temperatures across the United States increase, even as available water has generally decreased, (ii) the closing of over 100 golf courses every year (NGF) and (iii) the challenge in finding available daylight hours with so many golfers and so few golf courses , especially in light of the lengthy time period required to play a full outdoor course. We believe that all of these factors combine to create a significant opportunity to capitalize on a growing sport, a growing segment of that sport, and a convergence of demand and popularity seldom seen in virtual participation athletics — indoor golf.
Current Operations
We currently leverage a bifurcated branding strategy by both (1) selling indoor golf simulator hardware under our TruGolf Nevada brand, which hardware includes our E6 Connect software; and (2) selling our E6 Connect software separately for use on other companies’ hardware. In the future, we also intend to franchise indoor golf simulation facilities, create a “Virtual Golf Association” of online players, and leverage our access to swing data, each as discussed in greater detail below.
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Summary Risk Factors
Our business is subject to numerous risks and uncertainties, including those highlighted in the section entitled “Risk Factors,” which illuminate challenges that we face in connection with the successful implementation of our strategy and the growth of our business. The following considerations, among others, may offset our competitive strengths or have a negative effect on our business strategy, which could cause a decline in the price of shares of our securities and result in a loss of all or a portion of your investment:
| ● | The COVID-19 pandemic or similar outbreaks could have an adverse impact on our business and operations, and the markets and communities in which we, our partners and customers operate, and the impact of the pandemic is difficult to assess or predict. |
| ● | We may not be able to accurately predict our future capital needs, and we may not be able to obtain additional financing to fund our operations on the terms and in the manner previously obtained. |
| ● | If the Business Combination’s benefits do not meet the expectations of financial analysts, the market price of TruGolf Common Stock may decline. |
| ● | TruGolf may be required to take actions that could have a significant negative effect on TruGolf’s financial condition, results of operations and the price of TruGolf’s securities, which could cause you to lose some or all of your investment. |
| ● | Changes in laws or regulations, or a failure to comply with any laws and regulations, may adversely affect our business, including our ability to negotiate and complete our initial business combination and results of operations. |
| ● | The unaudited pro forma condensed combined financial information included in this prospectus is preliminary and the actual financial condition and results of operations after the Business Combination may differ materially. |
| ● | TruGolf Nevada has a limited operating history and has been growing rapidly over the last several years, which makes it difficult to forecast our future results of operations and increases the risk of your investment. |
| ● | We may be unable to successfully close potential acquisitions, or successfully integrate the operations of such target businesses, if acquired, which could have an adverse impact on our business. |
| ● | TruGolf Nevada relies heavily on the services of our senior management team, and if we are not successful in attracting or retaining senior management personnel, we may not be able to successfully implement our business strategy. |
| ● | Adverse or weakened general economic and market conditions may reduce spending on technology and information, which could harm our revenue, results of operations, and cash flows. |
| ● | TruGolf Nevada relies heavily on the services of our senior management team, and if we are not successful in attracting or retaining senior management personnel, we may not be able to successfully implement our business strategy. |
Corporate Information
On January 31, 2024, we completed the previously announced Business Combination pursuant to the terms of that Amended and Restated Agreement and Plan of Merger (as amended), dated July 21, 2023, as amended (the “Merger Agreement”) by and among DMA, TrueGolf Nevada, Purchaser Representative, Seller Representative and Merger Sub. Pursuant to the terms of the Merger Agreement (and upon all other conditions pursuant to the Merger Agreement being satisfied or waived), (i) Merger Sub merged with and into TrueGolf Nevada, with TrueGolf Nevada surviving the merger as a wholly-owned subsidiary of DMA, and (ii) DMA changed its name to Trugolf Holdings, Inc.
Our principal executive offices are located at 60 North 1400 West Centerville, Utah 84014, and our telephone number is (801) 298-1997. Our website address is https://TruGolf.com. The information contained on or otherwise accessible through our website is not part of this prospectus.
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The Offering
| Issuer – Issuance of Common Stock | Trugolf Holdings, Inc. | |
| Shares of Class A Common Stock to be Issued by Us | Up to (a) 4,246,702 shares of Class A Common Stock, (b) 29,245,684 shares of Class A Common Stock issuable upon exercise of the Warrants, consisting of (i) up to 9,870,684 Series A Warrant Shares, (ii) up to 19,375,000 Series B Warrant Shares, and (iii) up to 632,500 Representative Warrant Shares; and (b) up to 40,185,185 Note Shares. | |
| Shares of Class A Common Stock Outstanding as of the Date of this Prospectus | 11,538,252 shares. | |
| Shares of Class A Common Stock Outstanding after this Offering | 81,621,621 | |
| Exercise Price of Warrants | $13.00 per share for Series A Warrants, $10.00 for Series B Warrants, and $12.00 for Representative Warrants. Please see “Private Placement of Warrants and Notes” on page 75 for further details.
On February 13 2024, the last quoted sale price for our Class A Common Stock as reported on Nasdaq was $1.75 per share. | |
| Resale of Common Stock | ||
| Shares of Class A Common Stock Offered by the Selling Securityholders | An aggregate of: (a) up to 4,246,702 shares of Class A Common Stock; (b) up to 40,185,185 Note Shares; and (c)_up to 10,568,182 Warrant Shares. | |
| Terms of the Offering | The Selling Securityholders will determine when and how they will dispose of the shares of Class A Common Stock registered under this prospectus for resale. | |
| Use of Proceeds | We will not receive any proceeds from the sale of shares of Class A Common Stock by the Selling Securityholders. In the event any Warrants are exercised for cash, we would receive the proceeds from any such cash exercise, provided, however, we will not receive any proceeds from the sale of the shares of Class A Common Stock issuable upon such exercise. The exercise of the Warrants, and any proceeds we may receive from their exercise, are highly dependent on the price of our shares of our Class A Common Stock and the spread between the exercise price of such securities and the market price of our Class A Common Stock at the time of exercise. It is possible that we may never generate any cash proceeds from the exercise of such Warrants. | |
| Lock-up Restrictions | Certain of our stockholders, as well as an officer and a director, are subject to certain restrictions on transfer until the termination of applicable lock-up periods. See the section entitled “Securities Act Restrictions on Resale of our Securities — Lock-up Agreements.” | |
| Risk Factors | See the section entitled “Risk Factors” and other information included in this prospectus for a discussion of factors that you should consider carefully before deciding to invest in our securities. | |
| Nasdaq Symbols | Our Class A Common Stock is listed on The Nasdaq Global Market under the symbol “TRUG”. |
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RISK FACTORS
An investment in our securities involves a high degree of risk. You should carefully consider the risks described below before making an investment decision. Our business, prospects, financial condition, or operating results could be harmed by any of these risks, as well as other risks not currently known to us or that we currently consider immaterial. The trading price of our securities could decline due to any of these risks, and, as a result, you may lose all or part of your investment. Certain statements in “Risk Factors” are forward-looking statements. See “Cautionary Statement Regarding Forward-Looking Statements.”
Risks Related to TruGolf’s Business and Industry
Our growth initiatives require significant capital investments and there can be no assurance that we will realize a positive return on these investments.
Initiatives to upgrade our business processes and invest in technological improvements to our manufacturing facility, and our plans to expand into franchising, involve many risks which could result in, among other things, business interruptions and increased costs, any of which may result in our inability to realize returns on our capital investments. If we have insufficient sales or are unable to realize the full potential of our capital investments, we may not realize a positive return on our investment, which could impact our margins and have a significant adverse effect on our results of operations, financial condition and cash flows.
If we are not able to keep pace with technological and competitive developments or fail to integrate our products with a variety of technologies that are developed by others, our products may become less marketable, less competitive, or obsolete, and our results of operations may be adversely affected.
The success of our new product introductions depends on a number of factors including, but not limited to, timely and successful product development, market acceptance, our ability to manage the risks associated with new product releases, the effective management of development and other spending in connection with anticipated demand for new products, and the availability of newly developed products. We have in the past experienced bugs, errors, or other defects or deficiencies in new products and product updates and delays in releasing new products, deployment options, and product enhancements and may have similar experiences in the future. As a result, some of our customers may either defer purchasing our products until the next upgrade is released or switch to a competitor.
To keep pace with technological and competitive developments we have in the past invested, and may continue to invest, in technologies, services, products and other assets that expand the products that we can offer our customers. We may make these investments without being certain that they will result in products or enhancements that will be accepted by existing or prospective customers or that will achieve market acceptance. If we are unable to successfully enhance our existing products to meet evolving customer requirements, increase adoption and use cases of our products, develop new products, quickly resolve security vulnerabilities, or if our efforts to increase the use cases of our products are more expensive than we expect, then our business, results of operations and financial condition would be adversely affected.
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In addition, our success depends on our ability to integrate our products with a variety of third-party technologies. Our technology partnership ecosystem powers significant extensibility of our products and offers our customers the ability to use external tools of their choice with our products and to deploy our products in their preferred environments and successfully support new technologies as they arise. Changes in our relationship with any provider, the instability or vulnerability of any third-party technology, or the inability of our products to successfully integrate with third-party technology may adversely affect our business and results of operations. Any losses or shifts in the market position of these providers in general, in relation to one another or to new competitors or new technologies, could lead to losses in our relationships or customers, or to our need to identify and develop integrations with new third-party technologies. Such changes could consume substantial resources and may not be effective. Further, any expansion into new geographies may require us to integrate our products with new third-party technology and invest in developing new relationships with providers. If we are unable to respond to changes in a cost-effective manner, our products may become less marketable, less competitive, or obsolete and our results of operations may be negatively impacted.
Our indoor golf simulators and the software E6 Connect are at the core of our business and any decline in demand for our E6 Connect, our simulators due to malfunction, inferior performance, increased competition or otherwise, will impact our business, results of operations, and financial condition.
Our products are adapted to rely on our software E6 Connect, which is at the core of our business and all of our subscriptions and products, including our indoor golf simulators. Accordingly, market acceptance and performance of E6 Connect is critical to our success, as well as acceptance and sale of our indoor golf simulators. If demand for E6 Connect declines, the demand for our golf simulators may also decline. Demand for E6 Connect may be affected by a number of factors, many of which are beyond our control, such as continued market acceptance of E6 Connect and products by customers, the timing of development and release of new features, functionality, and lower cost alternatives introduced by our competitors, technological changes and developments within the markets we serve, and growth or contraction in our addressable markets. If we are unable to continue to meet customer demand, if our products fail to compete with the products of our competitors, if we fail to achieve more widespread market acceptance of E6 Connect and our golf simulators or if our products fail to meet statutory, regulatory, contractual, or other applicable requirements, then our business, results of operations, and financial condition would be harmed.
The market for our products is rapidly growing and we expect to face intense competition, and we may not be able to compete successfully against current and future competitors, some of whom have greater financial, technical, and other resources than we do.
The simulator industry is highly competitive and is also rapidly growing and changing. The industry continues to expand and evolve as an increasing number of competitors and potential competitors enter the market. Many of these competitors and potential competitors may have substantially greater financial, technological and managerial resources and experience than we have. In addition, our products compete with product offerings from large and well-established companies that have greater marketing and sales experience and capabilities than we or the parties with which we contract have. If we are unable to compete successfully, we may be unable to grow and sustain our revenue.
We believe that our ability to compete depends upon many factors both within and beyond our control, including:
| ● | our marketing efforts; |
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| ● | the flexibility and variety of our product offerings relative to our competitors, and our ability to timely launch new product initiatives; |
| ● | the quality and price of products offered by us and our competitors; |
| ● | our reputation and brand strength relative to our competitors; |
| ● | customer satisfaction; |
| ● | the size and composition of our customer base; |
| ● | our ability to comply with, and manage the costs of complying with, laws and regulations applicable to our business; and |
| ● | our ability to cost-effectively source and distribute the products we offer and to manage our operation. |
Many competitors also have longer operating histories, and have greater technical capabilities, greater financial, marketing, institutional and other resources and larger consumer bases than we do. These factors may also allow our competitors to derive greater revenue and profits from their existing consumer bases, acquire consumers at lower costs or respond more quickly than we will be able to, to new or emerging technologies and changes in product trends and consumer shopping behavior. These competitors may engage in more extensive research and development efforts, undertake more far-reaching marketing campaigns, and adopt more aggressive pricing policies, which may allow them to build larger consumer bases or generate revenue from their existing consumer bases more effectively than we will be able to. As a result, these competitors may be able to offer comparable or substitute products to consumers at similar or lower costs. This could put pressure on us to lower our prices, resulting in lower revenue and margins or cause us to lose market share even if we lower prices.
Furthermore, companies with greater resources or more well-known brand names may attempt to compete with us, and as a result, we may lose current or potential customers and may be unable to generate sufficient revenues to support our operations, any one of which could have a material adverse effect on our ability to grow and our results of operations.
We cannot be certain that we will successfully compete with larger competitors that have greater financial, sales, technical and other resources. Companies with greater resources may acquire our competitors or launch new products, and they may be able to use their resources and scale to respond to competitive pressures and changes in consumer preferences by reducing prices or increasing promotional activities, among other things.
We may be subject to product warranty claims that require the replacement or repair of products sold. Such warranty claims could adversely affect our results of operations and relationships with customers.
We offer 2-year limited warranties on all of our golf simulator products. From time to time, such products may contain manufacturing defects or design flaws that are not detected prior to sale, particularly in the case of new product introductions or upon design changes to existing products. The failure to identify and correct manufacturing defects and product design issues prior to the sale of those products could result in product warranty claims that result in costs to replace or repair any such defective products. There could be significant costs associated with such product warranty claims, including the potential for customer dissatisfaction that may adversely affect our reputation and relationships with customers, which may result in lost or reduced sales.
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Product quality issues and a higher-than-expected number of warranty claims or returns could harm our business and operating results.
The products that we sell could contain defects in design or manufacture. Defects could also occur in the products or components that are supplied to us. There can be no assurance we will be able to detect and remedy all defects in the hardware and software we sell, which could result in product recalls, product redesign efforts, loss of revenue, reputational damage and significant warranty and other remediation expenses. Similar to other electronics, our products have a risk of overheating and fire in the course of usage or upon malfunction. Any such defect could result in harm to property or in personal injury. If we determine that a product does not meet product quality standards or may contain a defect, the launch of such product could be delayed until we remedy the quality issue or defect. The costs associated with any protracted delay necessary to remedy a quality issue or defect in a new product could be substantial.
The occurrence of any material defects in our products could expose us to liability for warranty claims in excess of our current reserves, and we could incur significant costs to correct any defects, warranty claims or other problems. In addition, our failure to comply with past, present and future laws regulating extended warranties and accidental damage coverage could result in reduced sales of our products, reputational damage, penalties and other sanctions, which could harm our business and financial condition.
If we become subject to product liability claims, we may be required to pay damages that exceed our insurance coverage, if any.
Our products are subject to risks for product liability claims. A product liability claim in excess of, or excluded from, our insurance coverage would have to be paid out of cash reserves and could have a material adverse effect upon our business, financial condition and results of operations. Product liability insurance is expensive even with large self-insured retentions or deductibles, difficult to maintain, and current or increased coverage may not continue to be available on acceptable terms, if at all.
If we cannot successfully defend ourselves against a product liability claim, we may incur substantial liabilities. Regardless of merit or eventual outcome, liability claims may result in:
| ● | injury to our reputation; |
| ● | costs of defending the claim and/or related litigation; |
| ● | cost of any potential adverse verdict; |
| ● | substantial monetary awards to patients or other claimants. |
Damages awarded in a product liability action could be substantial and could have a negative impact on our financial condition. Whether or not we were ultimately successful in product liability litigation, such litigation would consume substantial amounts of our financial and managerial resources, and might result in adverse publicity, all of which would impair our business.
We may be unable to scale our operations fast enough to reduce our cost of sales and generate revenues sufficient to support our operations.
We believe that in general, the faster we are able to scale up our operations, the lower our cost of sales, as a percentage of revenue, will be, as we believe that certain economics of scale exist with our operations. If we are unable to grow our business fast enough to take advantage of these economies of scale, our operations may suffer, and we may not be profitable.
We plan to continue expanding our international operations, which could subject us to additional costs and risks, and our continued expansion internationally may not be successful.
We plan to further expand our operations internationally in the future. We have entered into or are in the process of entering into distribution agreements with parties outside of the United States. There are significant costs and risks inherent in conducting business in international markets, including:
| ● | establishing and maintaining effective controls at foreign locations and the associated increased costs; |
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| ● | adapting our technologies, products, and services to non-U.S. consumers’ preferences and customs; |
| ● | increased competition from local providers; |
| ● | compliance with foreign laws and regulations; |
| ● | adapting to doing business in other languages and/or cultures; |
| ● | compliance with the laws of numerous taxing jurisdictions where we conduct business, potential double taxation of our international earnings, and potentially adverse tax consequences due to U.S. and foreign tax laws as they relate to our international operations; |
| ● | compliance with anti-bribery laws, by us, our team members, our service providers, and our business partners; |
| ● | difficulties in staffing and managing global operations and the increased travel, infrastructure, and compliance costs associated with multiple international locations; |
| ● | complexity and other risks associated with current and future foreign legal requirements, including legal requirements related to data privacy frameworks, such as the E.U. GDPR; |
| ● | currency exchange rate fluctuations and related effects on our operating results; |
| ● | economic and political instability in some countries, including the potential effects of the current COVID-19 pandemic; |
| ● | the uncertainty of protection for intellectual property rights in some countries and practical difficulties of enforcing rights abroad; and |
| ● | other costs of doing business internationally. |
These factors and other factors could harm our international operations and, consequently, materially impact our business, operating results, and financial condition. Further, we may incur significant operating expenses as a result of our international expansion, and it may not be successful. We have limited experience with regulatory environments and market practices internationally, and we may not be able to penetrate or successfully operate in new markets. If we are unable to continue to expand internationally and manage the complexity of our global operations successfully, our financial condition and operating results could be adversely affected.
Our growth initiatives require significant capital investments and there can be no assurance that we will realize a positive return on these investments.
Initiatives to upgrade our business processes and invest in technological improvements to our manufacturing facility involve many risks which could result in, among other things, business interruptions and increased costs, any of which may result in our inability to realize returns on its capital investment. Expansion of business processes or facilities, requires significant capital investment. If we have insufficient sales or are unable to realize the full potential of our capital investments, we may not realize a positive return on investments, which could impact our margins and have a significant adverse effect on our results of operations, financial condition and cash flows.
We may need financing in the future, and any additional financing may result in restrictions on our operations or substantial dilution to our stockholders.
We may need to raise funds in the future, for example, to develop new technologies, expand our business, respond to competitive pressures, acquire complementary businesses or respond to unanticipated situations. We may try to raise additional funds through public or private financings, strategic relationships or other arrangements. Our ability to obtain debt or equity funding will depend on a number of factors, including market conditions, our operating performance and investor interest. Additional funding may not be available to us on acceptable terms or at all. If adequate funds are not available, we may be required to reduce expenditures, including curtailing our growth strategies, reducing our product-development efforts or foregoing acquisitions. If we succeed in raising additional funds through the issuance of equity or convertible securities, it could result in substantial dilution to existing stockholders. If we raise additional funds through the issuance of debt securities or preferred stock, these new securities would have rights, preferences, and privileges senior to those of the holders of our Class A Common Stock. The terms of these securities, as well as any borrowings under our current loan and security agreement, could impose restrictions on our operations.
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To remain competitive and stimulate customer demand, we must successfully manage frequent introductions and transitions of products and services.
Due to the highly volatile and competitive nature of the markets and industries in which we compete, we must continually introduce new products, services and technologies, enhance existing products and services, effectively stimulate customer demand for new and upgraded products and services, and successfully manage the transition to these new and upgraded products and services. The success of new product and service introductions depends on a number of factors, including timely and successful development, market acceptance, our ability to manage the risks associated with production ramp-up issues, the availability of application software for our products, the effective management of purchase commitments and inventory levels in line with anticipated product demand, the availability of products in appropriate quantities and at expected costs to meet anticipated demand, and the risk that new products and services may have quality or other defects or deficiencies. There can be no assurance we will successfully manage future introductions and transitions of products and services.
We have and may in the future discontinue support for older versions of our products and software, resulting in customer dissatisfaction that could negatively affect our business and operating results.
We have historically maintained, and we believe our customers may expect, extensive backward compatibility for our older products and the software that supports them and software, allowing older products to continue to benefit from new software updates. We expect that as we continue to improve and enhance our software platform, this backward compatibility will no longer be practical or cost-effective, and we may decrease or discontinue service for our older products. For example, certain of our legacy products continue to work but no longer receive software updates. To the extent we no longer provide extensive backward capability for our products, we may damage our relationship with our existing customers, as well as our reputation, brand loyalty and ability to attract new customers.
For these reasons, any decision to decrease or discontinue backward capability may decrease sales, generate legal claims and adversely affect our business, operating results and financial condition.
We may not be able to continue to shift our revenue towards subscriptions and away from annual software licensing.
Currently, our revenue is largely dependent on the sales of our indoor golf simulators and the annual software licenses. We plan to strategically introduce annual subscription plans for use of our software. This shift in revenue towards subscriptions may or may not result in an increase in revenues and our profits. Our strategic focus will be to grow subscriptions revenue more than the current annual licensing model to perpetuate this trend.
Notwithstanding, there can be no guarantee that our revenue will shift towards subscriptions, and away from annual licensing model. Our customers may demand more annual licenses from us, or demand for our subscriptions may grow slower than we anticipate. Should we fail to make expected revenues from subscriptions, our earnings may suffer and our stock price may decline.
We rely upon independent third-party transportation providers for substantially all of our product shipments and are subject to potential increased shipping costs as well as the potential inability of our third-party transportation providers to deliver on a timely basis.
We currently rely upon independent third-party transportation providers for substantially all of our product shipments, including shipments to and from customers. Our utilization of these delivery services for shipments is subject to risks which may impact a shipping company’s ability to provide delivery services that adequately meet our shipping needs, including risks related to employee strikes, labor and capacity constraints, port security considerations, trade policy changes or restrictions, military conflicts, acts of terrorism, accidents, natural disasters and inclement weather. Any interruption in service provided by these transportation companies could cause temporary disruptions in our business, a loss of sales and profits, and other material adverse effects. In addition, we are subject to increased shipping costs due to inflation, increases in fuel prices, as we use expedited means of transportation such as air freight and various other inputs. If we change the shipping company we use, we could face logistical difficulties that could adversely affect deliveries, and we would incur costs and expend resources in connection with such transition. Moreover, we may not be able to obtain terms as favorable as those received from our current independent third-party transportation provider which, in turn, would increase our costs.
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Our business depends on our brand, and any failure to maintain, protect or enhance our brand, including as a result of events outside our control, could materially adversely affect our business.
We believe our future success depends on our ability to maintain and grow the value of the “TruGolf” brand. Maintaining, promoting and positioning our brand and reputation will depend on, among other factors, the success of our marketing efforts and our ability to provide a consistent, high-quality customer experience. Any negative publicity, regardless of its accuracy, could materially adversely affect our business. Brand value is based in large part on perceptions of subjective qualities, and any incident that erodes the loyalty of our customers, including adverse publicity or a governmental investigation or litigation, could significantly reduce the value of our brand and significantly damage our business.
The value of our brand also depends on effective customer support to provide a high-quality customer experience, which requires significant personnel expense. If not managed properly, this expense could impact our profitability. Failure to manage or train our own or outsourced customer support representatives properly, or our inability to hire sufficient customer support representatives could result in lower-quality customer support and/or increased customer response times, compromising our ability to handle customer complaints effectively.
We may be subject to claims challenging the inventorship of our intellectual property.
We may be subject to claims that former employees, collaborators or other third parties have an interest in, or right to compensation, with respect to our current patent and patent applications, future patents or other intellectual property as an inventor or co-inventor. For example, we may have inventorship disputes arise from conflicting obligations of consultants or others who are involved in developing our inventions. Litigation may be necessary to defend against these and other claims challenging inventorship or claiming the right to compensation. If we fail in defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights, such as exclusive ownership of, or right to use, valuable intellectual property. Such an outcome could have a material adverse effect on our business. Even if we are successful in defending against such claims, litigation could result in substantial costs and be a distraction to management and other employees and/or reputational harm to us. Such litigation or proceedings could increase our operating losses and reduce the resources available for development activities or any future sales, marketing or distribution activities. Some of our competitors may be able to devote significantly more resources to intellectual property proceedings, and may have significantly broader intellectual property portfolios to assert against us if we assert our rights against them. Further, because of the substantial discovery required in connection with intellectual property litigation, there is a risk that some of our confidential information could be disclosed or otherwise compromised leading to others making, using, importing or selling products that are the same or substantially the same as ours, which could adversely affect our ability to compete in the market.
We could incur substantial costs as a result of any claim of infringement of another party’s intellectual property rights.
In recent years, there has been significant litigation involving patents and other intellectual property rights in the software industry. Companies providing software are increasingly bringing and becoming subject to suits alleging infringement of proprietary rights, particularly patent rights, and to the extent we gain greater market visibility, we face a higher risk of being the subject of intellectual property infringement claims. We do not have a significant patent portfolio, which could prevent us from deterring patent infringement claims through our own patent portfolio, and our competitors and others may now and in the future have significantly larger and more mature patent portfolios than we have. The risk of patent litigation has been amplified by the increase in the number of patent holders of a certain type, whose sole business is to assert such claims and against whom our own intellectual property portfolio may provide little deterrent value. We could incur substantial costs in prosecuting or defending any intellectual property litigation. If we sue to enforce our rights or are sued by a third party that claims that our solutions infringe its rights, the resulting litigation could be expensive and could divert our management resources.
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In addition, in most instances, we have agreed to indemnify our customers against claims that our solutions infringe the intellectual property rights of third parties. Our business could be adversely affected by any significant disputes between us and our customers as to the applicability or scope of our indemnification obligations to them. Any intellectual property litigation to which we might become a party, or for which we are required to provide indemnification, may require us to do one or more of the following:
| ● | cease selling or using solutions that incorporate the intellectual property that we allegedly infringe; |
| ● | make substantial payments for legal fees, settlement payments or other costs or damages; |
| ● | obtain a license, which may not be available on reasonable terms or at all, to sell or use the relevant technology; or |
| ● | redesign the allegedly infringing solutions to avoid infringement, which could be costly, time-consuming or impossible. |
If we are required to make substantial payments or undertake any of the other actions noted above as a result of any intellectual property infringement claims against us or any obligation to indemnify our customers for such claims, such payments or actions could materially harm our business.
We could incur substantial costs in protecting our intellectual property from infringement, and any failure to protect our intellectual property could impair our business.
We seek to protect the source code for our proprietary software and other proprietary technology and information under a combination of copyright, trade secrets and patent law, and we seek to protect our brand through trademark law. Our policy is to enter into confidentiality agreements, or agreements with confidentiality provisions, with our employees, consultants, vendors and customers and to control access to our software, documentation and other proprietary information. Despite these precautions, it may be possible for unauthorized parties to copy our software or other proprietary technology or information, or to develop similar software independently.
Despite our efforts to protect our proprietary rights, unauthorized parties may attempt to copy aspects of our solutions or to obtain and use information that we regard as proprietary. Policing unauthorized use of our solutions, especially the on-premise, installed version of our solutions, is difficult, and we are unable to determine the extent to which piracy of our software exists or will occur in the future. Litigation may be necessary in the future to enforce our intellectual property rights, protect our trade secrets, determine the validity and scope of the proprietary rights of others or defend against claims of infringement or invalidity. Such litigation could be costly, time-consuming and distracting to management, result in a diversion of resources, the narrowing or invalidation of portions of our intellectual property and have a material adverse effect on our business, operating results and financial condition. Furthermore, our efforts to enforce our intellectual property rights may be met with defenses, counterclaims and countersuits attacking the validity and enforceability of our intellectual property rights or alleging that we infringe the counterclaimant’s own intellectual property. These steps may be inadequate to protect our intellectual property. Third parties may challenge the validity or ownership of our intellectual property, and these challenges could cause us to lose our rights, in whole or in part, to such intellectual property or narrow its scope such that it no longer provides meaningful protection. We will not be able to protect our intellectual property if we are unable to enforce our rights or if we do not detect unauthorized use of our intellectual property. Despite our precautions, it may be possible for unauthorized third parties to copy our products and use information that we regard as proprietary to create products and services that compete with ours. Some license provisions protecting against unauthorized use, copying, transfer and disclosure of our solutions may be unenforceable under the laws of certain jurisdictions and foreign countries. Further, the laws of some countries do not protect proprietary rights to the same extent as the laws of the United States. To the extent we expand our international activities, our exposure to unauthorized copying, transfer and use of our solutions and proprietary technology or information may increase.
There can be no assurance that our means of protecting our proprietary rights will be adequate or that our competitors will not independently develop similar technology. If we fail to meaningfully protect our intellectual property, our business, brand, operating results and financial condition could be materially harmed.
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Failure to adequately enforce and protect our intellectual property rights could materially adversely affect our business, financial condition and results of operations.
We own certain patents, trademarks, copyrights, trade secrets, and other intellectual property and hold licenses to intellectual property owned by others, which in the aggregate are important to our business. We rely on a combination of patent, trademark, copyright and trade secret laws in our core geographic markets and other jurisdictions, to protect the innovations, brands, proprietary trade secrets and know how related to certain aspects of our business. Certain of our intellectual property rights, such as patents, are time limited, and the technology underlying our patents can be used by any third party, including competitors, once the applicable patent terms expire.
In order to protect our confidential proprietary information, in part, we seek to enter into confidentiality and invention assignment agreements with our employees, consultants, contractors, suppliers and others. While these agreements are designed to protect our proprietary information, we cannot be certain that such agreements have been entered into with all relevant parties, and we cannot be certain that our trade secrets and other confidential proprietary information will not be disclosed or that competitors will not otherwise gain access to our trade secrets or independently develop substantially equivalent information and techniques. We also seek to preserve the integrity and confidentiality of our proprietary information by maintaining physical security of our premises and physical and electronic security of our information technology systems, but it is possible that these security measures could be breached. If we are unable to prevent disclosure to third parties of our material proprietary and confidential know-how and trade secrets, our ability to establish or maintain a competitive advantage in our markets may be adversely affected.
We selectively and strategically pursue patent and trademark protection in our core geographic markets, but our strategy has been to not perfect certain patent and trademark rights in some countries. Accordingly, we may not be able to prevent others, including competitors, from practicing our patented inventions, including by manufacturing and selling competing products, in those countries where we have not obtained patent protection. Further, the laws of some foreign countries do not protect proprietary rights to the same extent or in the same manner as the laws of the United States. As a result, we may encounter significant problems in protecting, enforcing and defending our intellectual property outside of the United States. In some foreign countries, where intellectual property laws or law enforcement practices do not protect our intellectual property rights as fully as in the United States, third party manufacturers may be able to manufacture and sell imitation products and diminish the value of our brands as well as infringe our rights, despite our efforts to prevent such activity.
If we fail to obtain enforceable patents, trademarks and trade secrets, fail to maintain our existing patent, trademark and trade secret rights, or fail to prevent substantial unauthorized use of our patents, trademarks and trade secrets, we risk the loss of our intellectual property rights and competitive advantages we have developed, which may result in lost sales. Accordingly, we devote substantial resources to the establishment and protection of our trademarks, patents and trade secrets or know how, and we continuously evaluate the utility of our existing intellectual property rights and the new registration of additional trademarks and patents, as appropriate. However, we cannot guarantee that we will have adequate resources to continue to effectively establish, maintain and enforce our intellectual property rights. We also cannot guarantee that any of our pending applications will be approved by the applicable governmental authorities. Moreover, even if the applications will be registered during the registration process, third parties may seek to oppose, limit, or otherwise challenge these applications or registrations.
Patent policy and rule changes could increase the uncertainties and costs surrounding the prosecution of our patent applications and the enforcement or defense of any issued patents.
Changes in either the patent laws or interpretation of the patent laws in the United States and other countries may diminish the value of any patents that may issue from our patent applications or narrow the scope of our patent protection. The laws of foreign countries may not protect our rights to the same extent as the laws of the United States. Under the Leahy-Smith America Invents Act (the “Leahy-Smith Act”), enacted on September 16, 2011, the United States has moved to a first to file system. The Leahy-Smith Act also includes a number of significant changes that affect the way patent applications are prosecuted, redefine prior art and provide more efficient and cost-effective avenues for competitors to challenge the validity of the patents. In addition, the U.S. Supreme Court has ruled on several patent cases in recent years, either narrowing the scope of patent protection available in certain circumstances or weakening the rights of patent owners in certain situations. Depending on future actions by the U.S. Congress, the U.S. courts, the U.S. Patent and Trademark Office and the relevant law-making bodies in other countries, the laws and regulations governing patents could change in unpredictable ways that would weaken our ability to obtain new patents or to enforce our existing patents and patents that we might obtain in the future.
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If the Company’s information systems fail to perform adequately or if the Company experiences an interruption in operation, including a breach in cyber security, its business and results of operations could suffer.
All of the Company’s major operations, including manufacturing, distribution, sales and accounting, are dependent upon the Company’s complex information systems. The Company’s information systems are vulnerable to damage or interruption from:
| ● | Earthquake, fire, flood, hurricane and other natural disasters; |
| ● | Power loss, computer systems failure, Internet and telecommunications or data network failure; and |
| ● | Hackers, computer viruses, software bugs or glitches. |
Any damage or significant disruption in the operation of such systems, the failure of the Company’s or the Company’s IT vendors’ information systems to perform as expected or any security breach to the information systems (including financial or credit/payment frauds) would disrupt the Company’s business, which may result in decreased sales, increased overhead costs, excess inventory and product shortages and otherwise adversely affect the Company’s reputation, operations, financial performance and condition.
Cyber-attacks, unauthorized access to, or accidental disclosure of, consumer personally-identifiable information including payment card information, that the Company or the Company’s vendors collects through its websites or stores on its servers may result in significant expense and negatively impact the Company’s reputation and business.
There is heightened concern and awareness over the security of personal information transmitted over the Internet, consumer identity theft and user privacy. In the ordinary course of our business, we collect, store, use and disclose sensitive data. We also process and store, and use additional third parties to process and store, confidential and proprietary information such as intellectual property and other proprietary business information, including that of our customers, providers and contracting parties.
While the Company has implemented security measures, the Company’s computer systems and those of its third party vendors of IT and data security systems and services, may nevertheless be susceptible to electronic or physical computer break-ins, viruses, fraud, and other disruptions and security compromises involving the loss or unauthorized access of confidential information because technologies used to obtain unauthorized access to or sabotage systems are constantly evolving, change frequently, and generally are not recognized until they are launched against a target. Any perceived or actual unauthorized or inadvertent disclosure of personally-identifiable information, whether through a compromise of the Company’s or its third party vendors’ networks by an unauthorized party, employee theft, misuse or error or otherwise, could harm the Company’s reputation, impair the Company’s ability to attract website visitors, require us to notify payment brands if payment card information is accessed or compromised, compel us to comply with federal and/or state breach notification laws and foreign equivalents, subject the Company to costly mandatory corrective action, or subject the Company to claims or litigation arising from damages suffered by consumers, all of which could adversely affect the Company’s operations, financial performance and condition.
Additionally, any actual or suspected security breach or other compromise of the Company’s security measures or those of the Company’s third-party vendors, whether as a result of hacking efforts, denial-of-service attacks, viruses, malicious software, break-ins, phishing attacks, social engineering or otherwise, could harm the Company’s reputation and business, damage our brand and make it harder to retain existing customers or acquire new ones, require the Company to expend significant capital and other resources to address the breach, and result in a violation of applicable laws, regulations or other legal obligations. the Company’s insurance policies may not cover, or may not be adequate to reimburse us for, losses caused by any such security breach.
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The Company relies on email and other messaging services to connect with the Company’s existing and potential customers. the Company’s customers may be targeted by parties using fraudulent spoofing and phishing emails to misappropriate passwords, payment information or other personal information or to introduce viruses through Trojan horse programs or otherwise through such customers’ computers, smartphones, tablets or other devices, including due to the possibility that the ongoing conflict between Russia and Ukraine and the escalating tensions between China and Taiwan could result in increased cyber-attacks or cybersecurity incidents by state actors or others. Cyberattacks, including, but not limited to, ransomware events, computer viruses or other malware, phishing attacks, denial of service attacks, illegal hacking and credential stuffing, or other malicious attempts to compromise and/or interrupt the operation of information technology systems continue to increase in frequency, magnitude and sophistication. These increasing threats are being driven by a variety of sources, including nation-state sponsored espionage and hacking activities, industrial espionage, organized crime, sophisticated organizations and hacking by groups and individuals. These sources can also implement social engineering techniques to induce our third-party partners, users, employees or customers to disclose passwords or other sensitive information or take other actions to gain access to our or our third-party partners’ data or our users’ data. Techniques used to obtain unauthorized access to, or to sabotage, systems or networks are constantly evolving and may not be recognized until launched against a target. Therefore, we may be unable to anticipate these techniques, react in a timely manner, or implement adequate preventive measures, and we may face delays in our detection or remediation of, or other responses to, such cyberattacks, security breaches and other similar incidents. Geopolitical instability, such as the war between Russia and Ukraine, may increase the likelihood that we or our third-party partners and customers could experience direct or collateral consequences from cyber conflicts between nation-states or other politically motivated actors targeting critical technology infrastructure. As we increase our customer base and our brand becomes more widely known and recognized, and as our products are used in more heavily regulated industries where there may be a greater concentration of sensitive and protected data, we and our third-party partners may become more of a target for these malicious third parties. Despite the Company’s efforts to mitigate the effectiveness of such malicious email campaigns through product improvements, spoofing and phishing may damage the Company’s brand and increase our costs. Any of these events or circumstances could materially adversely affect the Company’s business, financial condition and operating results.
Our business could be disrupted by catastrophic events and man-made problems, such as power disruptions, data security breaches, and terrorism.
Our systems will be vulnerable to damage or interruption from the occurrence of any catastrophic event, including earthquake, fire, flood, or other weather event, power loss, telecommunications failure, software or hardware malfunction, cyber-attack, war, terrorist attack, or incident of mass violence, which could result in lengthy interruptions in access to our systems. In addition, acts of terrorism, including malicious internet-based activity, could cause disruptions to the internet or the economy as a whole. If our systems were to fail or be negatively impacted as a result of a natural disaster or other event, our ability to provide future products to customers would be impaired or we could lose critical data. We do not carry business interruption insurance sufficient to compensate us for the potentially significant losses, including the potential harm to our business, financial condition and results of operations that may result from interruptions in access to our platform as a result of system failures.
The Company relies on its IT systems and any material disruption to such IT systems could have a material and adverse effect on the Company.
The availability and effectiveness of TruGolf’s services depend on the continued operation of its information technology and communications systems. The Company relies on its IT systems, and such systems are vulnerable to damage or interruption from, among other adverse effects, fire, terrorist attacks, natural disasters, power loss, telecommunications failures, computer viruses, computer denial of service attacks or other attempts to harm its systems. TruGolf’s products and services are also highly technical and complex and may contain errors or vulnerabilities that could result in interruptions in its services or the failure of its systems or the systems on which it relies.
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Our business is subject to a variety of U.S. and foreign laws, many of which are unsettled and still developing and which could subject us to claims or otherwise harm our business.
We are subject to a variety of laws in the United States and abroad that are continuously evolving and developing and are costly to comply with, can require significant management time and effort and can subject us to claims or other remedies. These laws may conflict with each other and if we comply with the laws of one jurisdiction, we may find that we are violating the rules of another jurisdiction. Additionally, our ability to provide a specific target audience to advertisers is a significant competitive advantage. Any legislation reducing this ability would have a negative impact on our business and operating results.
If we are not able to comply with these laws or regulations or if we become liable under these laws or regulations, we could be directly harmed, and we may be forced to implement new measures to reduce our exposure to this liability. This may require us to expend substantial resources or to discontinue certain solutions, which could negatively affect our business, financial condition and results of operations. In addition, the increased attention focused upon liability issues as a result of lawsuits and legislative proposals could harm our reputation or otherwise impact the growth of our business. Any costs incurred as a result of this potential liability could harm our business and operating results.
Failure to comply with federal, state and foreign laws and regulations relating to privacy, data protection and consumer protection, or the expansion of current or the enactment of new laws or regulations relating to privacy, data protection and consumer protection, could adversely affect our business and our financial condition.
A variety of federal, state and foreign laws and regulations govern the collection, use, retention, sharing and security of consumer data. Laws and regulations relating to privacy, data protection and consumer protection are evolving and subject to potentially differing interpretations. These requirements may be interpreted and applied in a manner that is inconsistent from one jurisdiction to another or may conflict with other rules or our practices. As a result, our practices may not comply with all such laws, regulations, requirements and obligations. Any failure, or perceived failure, by us to comply with any federal, state or foreign privacy or consumer protection-related laws, regulations, industry self-regulatory principles, industry standards or codes of conduct, regulatory guidance, orders to which we may be subject or other legal obligations relating to privacy or consumer protection could adversely affect our reputation, brand and business, and may result in claims, investigations, proceedings or actions against us by governmental entities or others or other liabilities or require us to change our operations.
We will collect, store, process, and use personal information and other customer data, and will rely on third parties that are not directly under our control to manage certain of these operations and to collect, store, process and use payment information. Our customers’ personal information may include names, addresses, phone numbers, email addresses, payment card data, and payment account information, as well as other information. Due to the volume and sensitivity of the personal information and data we and these third parties will manage, the security features of our information systems are critical. If our security measures, some of which will be managed by third parties, are breached or fail, unauthorized persons may be able to access sensitive customer data, including payment card data. If we or our independent service providers or business partners experience a breach of systems that collect, store or process our members’ and customers’ sensitive data, our brand could be harmed, sales of our products could decrease, and we could be exposed to claims, losses, administrative fines, litigation or regulatory and governmental investigations and proceedings. Any such claim, investigation, proceeding or action could hurt our reputation, brand and business, force us to incur significant expenses in defense of such proceedings, distract our management, increase our costs of doing business, result in a loss of customers and suppliers and may result in the imposition of monetary penalties and administrative fines. Depending on the nature of the information compromised, we may also have obligations to notify users, law enforcement, or payment companies about the incident and may need to provide some form of remedy, such as refunds, for the individuals affected by the incident.
Privacy laws, rules, and regulations are constantly evolving in the United States and abroad and may be inconsistent from one jurisdiction to another. We expect that new industry standards, laws and regulations will continue to be proposed regarding privacy, data protection and information security in many jurisdictions, including the California Consumer Privacy Act of 2018, which went effective January 1, 2020, the California Consumer Privacy Rights Act, which went into effect on January 1, 2023, The states of Colorado, Connecticut, Utah and Virginia each enacted comprehensive privacy laws that will become effective at various times throughout 2023.
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We are also subject to non-U.S. privacy rules and regulations, such as the European Union’s (“E.U.”) General Data Protection Regulation (“GDPR”), the European e-Privacy Regulation and national laws supplementing GDPR, the Data Protection Act of 2018 (“DPA 18”) in the United Kingdom, and the E.U. Privacy and Electronic Communications Regulation. GDPR and DPA 18 require companies to meet stringent requirements regarding the processing of personal data of individuals located in the European Economic Area (“EEA”). GDPR and DPA 18 also include significant penalties for noncompliance, which may result in monetary penalties of up to the higher of €20.0 million or 4% of a group’s worldwide revenue for the preceding financial year for the most serious violations. The GDPR, DPA 18, and other similar regulations require companies to give specific types of notice and informed consent is required for certain actions, and the GDPR also imposes additional conditions in order to satisfy such consent, such as bundled consents.
We cannot yet determine the impact such future laws, regulations and standards may have on our business. Complying with these evolving obligations is costly. For instance, expanding definitions and interpretations of what constitutes “personal data” (or the equivalent) within the United States, the EEA and elsewhere may increase our compliance costs and other liability. Any failure to comply could give rise to unwanted media attention and other negative publicity, damage our customer and consumer relationships and reputation, and result in lost sales, claims, administrative fines, lawsuits or regulatory and governmental investigations and proceedings and may harm our business and results of operations.
Public scrutiny of Internet privacy issues may result in increased regulation and different industry standards, which could deter or prevent us from providing our current products and solutions to our members and customers, thereby harming our business.
The regulatory framework for privacy issues worldwide is currently in flux and is likely to remain so for the foreseeable future. Practices regarding the collection, use, storage, transmission and security of personal information by companies operating over the Internet have recently come under increased public scrutiny. The U.S. government, including the Federal Trade Commission and the Department of Commerce, has announced that it is reviewing the need for greater regulation for the collection of information concerning consumer behavior on the Internet, including regulation aimed at restricting certain targeted advertising practices. In addition, the European Union is in the process of proposing reforms to its existing data protection legal framework, which may result in a greater compliance burden for companies with users in Europe. Various government and consumer agencies have also called for new regulation and changes in industry practices.
Our business could be adversely affected if legislation or regulations are adopted, interpreted, or implemented in a manner that is inconsistent with our current business practices and that require changes to these practices, the design of our products, software, features or our privacy policy. Such changes may require us to modify our products and features, possibly in a material manner, and may limit our ability to develop new products and features that make use of our user data.
Evolving government regulations and enforcement activities may require increased costs or adversely affect our results of operations.
Our operations may be subject to direct and indirect adoption, expansion or reinterpretation of various laws and regulations. Compliance with these evolving laws, regulations and interpretations may require us to change our practices at an undeterminable and possibly significant initial and continued expense. These additional expenditures may increase future overhead, which could have a material adverse effect on our results of operations. There could also be laws and regulations applicable to our business that we have not identified or that, if changed, may be costly to us, and we cannot predict all the ways in which implementation of such laws and regulations may affect us.
Additionally, the introduction of new products may require us to comply with additional, yet undetermined, laws and regulations. The failure to adequately comply with these future laws and regulations may delay or possibly prevent our products from being offered to customers, which could have a material adverse effect on our business, financial condition, and results of operations.
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We may become party to litigation, mediation and/or arbitration from time to time.
We may become party to regulatory proceedings, litigation, mediation and/or arbitration from time to time in the ordinary course of business, which could adversely affect our business. Monitoring and defending against legal actions, whether or not meritorious, can be time-consuming, divert management’s attention and resources and cause us to incur significant expenses. In addition, legal fees and costs incurred in connection with such activities may be significant and we could, in the future, be subject to judgments or enter into settlements of claims for significant monetary damages. Substantial litigation costs or an adverse result in any litigation may adversely impact our business, operating results or financial condition.
A reduction in the number of rounds of golf played or in the number of golf participants could materially adversely affect our business, financial condition and results of operations.
We generate substantially all of our sales from the sale of golf-related products—namely, our in-home golfing simulators and related software. The demand for golf-related products in general, and golfing simulators in particular, is directly related to the number of golf participants and the number of rounds of golf being played by these participants. If golf participation or the number of rounds of golf played declines, sales of our products may be adversely impacted, which could materially adversely affect our business, financial condition and results of operations.
In addition, the demand for golf products and golfing simulators is directly related to the popularity of magazines, cable channels and other media dedicated to golf, television coverage of golf tournaments and attendance at golf events. The Company depends on the exposure of its products through advertising. Any significant reduction in television coverage of, or attendance at, golf tournaments and events (whether as a result of COVID-19-related restrictions or otherwise) or any significant reduction in the popularity of golf magazines or golf television channels, could reduce the demand for golf products and the Company’s sales.
Consumer spending habits and macroeconomic factors may affect the number of rounds of golf played and related spending on golf products.
Our products are recreational in nature, and are therefore discretionary purchases for consumers. Consumers are generally more willing to spend their time and money to play golf and make discretionary purchases of golf products when economic conditions are favorable and when consumers feel confident and prosperous. Discretionary spending on golf and the golf products we sell is affected by consumer spending habits as well as by many macroeconomic factors, including general business conditions, stock market prices and volatility, corporate spending, housing prices, interest rates, inflation, the availability of consumer credit, taxes and consumer confidence in future economic conditions. Consumers may reduce or postpone purchases of our products as a result of shifts in consumer spending habits as well as during periods when economic uncertainty increases, disposable income is lower, or during periods of actual or perceived unfavorable economic conditions. Consumers have started to, and may continue to, reduce or postpone purchases of our products as a result of shifts in consumer spending habits as well as during periods when economic uncertainty increases, disposable income is lower, or during periods of actual or perceived unfavorable economic conditions. Economic slowing and general fear of our economic future has already started to impact our sales including operating results for Q4 2022, and Q1 2023. A future significant or prolonged decline in general economic conditions or uncertainties regarding future economic prospects that adversely affects consumer discretionary spending, whether in the United States or in our international markets, could result in reduced sales of our products, which could materially adversely affect our business, financial condition and results of operations.
Demographic and socioeconomic factors may affect the number of golf participants and related spending on our products.
Golf is a recreational activity that requires time and money, and different generations and socioeconomic and ethnic groups use their leisure time and discretionary funds in different ways. Golf participation among younger generations and certain socioeconomic and ethnic groups may not prove to be as popular as it is among the “gen x” and “baby boomer” generations. If golf participation or the number of rounds of golf played declines due to factors such as demographic changes in the United States and our international markets or lack of interest in the sport among young people or certain socioeconomic and ethnic groups, sales of our products could be negatively impacted, which could materially adversely affect our business, financial condition and results of operations.
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We depend heavily on our senior management, including our Chief Executive Officer. The ability of certain key employees to devote adequate time to us are critical to the success of our business, and failure to do so may adversely affect our revenues and as a result could materially adversely affect our business, financial condition and results of operations.
We must retain the services of our key employees and strategically recruit and hire new talented employees. Our future business and results of operations depend in significant part upon the continued contributions of our senior management personnel, particularly our Chief Executive Officer and Chairman, Christopher Jones. If we lose Mr. Jones’ services or if Mr. Jones fails to perform in his current position, or if we are not able to attract and retain skilled personnel as needed, our business could suffer. Significant turnover in our senior management could significantly deplete our institutional knowledge held by our existing senior management team. We depend on the skills and abilities of these key personnel in managing our operations, product development, marketing and sales aspects of our business, any part of which could be harmed by turnover in the future. Additionally, moving forward, should the services of such personnel, and in particular Mr. Jones, be lost for any reason, the Company will incur costs associated with recruiting replacements and any potential delays in operations which this may cause. We do not maintain “key person” insurance policies on the lives of our senior management or the lives of any of our other employees. If we are unable to replace such individual with a suitably trained alternative individual(s), we may be forced to scale back or curtail our business plan.
We do not currently have any key person life insurance policies on our executive officers. If our executive officers do not devote sufficient time towards our business, we may never be able to effectuate our business plan. Potential competition from our existing executive officers, after they leave their employment with us, could negatively impact our profitability.
Other than Christopher Jones, TruGolf’s CEO, Mr. Brenner Adams, TruGolf’s Chief Growth Officer, and Mr. Nathan E. Larsen, TruGolf’s Chief Experience Officer, none of our other executive officers are currently party to employment agreements with us and as a result, none are contractually prohibited from competing with us after their employment with us ends. Accordingly, any of these individuals could be in a position to use industry experience gained while working with us to compete with us. Such competition could distract or confuse customers, reduce the value of our intellectual property and trade secrets, or reduce our future revenues, earnings or growth prospects.
If our estimates or judgments relating to our critical accounting estimates prove to be incorrect, our financial condition and results of operations could be adversely affected.
The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, in the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of TruGolf.” The results of these estimates form the basis for making judgments about the carrying values of assets, liabilities and equity, and the amount of revenue and expenses that are not readily apparent from other sources. Significant assumptions and estimates used in preparing our consolidated financial statements include those related to impairment of goodwill, pension and other post-retirement benefits, provisions for income taxes and valuation allowances for deferred tax assets. Our financial condition and results of operations may be adversely affected if our assumptions change or if actual circumstances differ from those in our assumptions, which could cause our results of operations to fall below the expectations of securities analysts and investors, resulting in a decline in the price of our stock.
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Economic downturns and adverse political and market conditions beyond the Company’s control could adversely negatively affect its business, financial condition and results of operations.
The Company’s financial performance is subject to global and U.S. economic conditions and their impact on levels of spending by consumers and customers, particularly discretionary spending for entertainment, gaming and leisure activities. Economic recessions have had, and may continue to have, far-reaching adverse consequences across industries, including the global entertainment and gaming industries, which may adversely affect the Company’s business and financial condition. As a result of the ongoing COVID-19 pandemic, there is substantial uncertainty about the strength of the global economies, which may currently or in the near term be in a recession and have experienced rapid increases in uncertainty about the pace of potential recovery. A continued economic downturn or recession, or slowing or stalled recovery therefrom, may have a material adverse effect on the Company’s business, financial condition, results of operations or prospects.
In addition, changes in general market, economic and political conditions in domestic and foreign economies or financial markets, including fluctuation in stock markets resulting from, among other things, trends in the economy and inflation, as are being currently experienced, may reduce customers’ disposable income. Any one of these changes could have a material adverse effect on the Company’s business, financial condition, results of operations or prospects.
Additionally, our business depends on the overall demand for golfing simulators and other technology offerings, as well as the economic health of customers that benefit from our products. Economic downturns or unstable market conditions may cause customers to cease spending money on our products which would adversely affect our business, financial condition and results of operations. Similarly, economic downturns could also decrease the amount of disposable income end-users have available for our products.
Our insurance policies may not provide adequate levels of coverage against all claims and we may incur losses that are not covered by our insurance.
We maintain insurance of the type and in amounts that we believe is commercially reasonable and that is available to businesses in our industry. We carry various types of insurance, including general liability, auto liability, workers’ compensation, cyber and excess umbrella, from highly rated insurance carriers on all of our properties. We believe that the policy specifications and insured limits are adequate for foreseeable losses with terms and conditions that are reasonable and customary for similar businesses and are within industry standards. Nevertheless, market forces beyond our control could limit the scope of the insurance coverage that we can obtain in the future or restrict our ability to buy insurance coverage at reasonable rates. We cannot predict the level of the premiums that we may be required to pay for subsequent insurance coverage, the level of any deductible and/or self-insurance retention applicable thereto, the level of aggregate coverage available or the availability of coverage for specific risks.
In the event of a substantial loss, the insurance coverage that we carry may not be sufficient to compensate us for the losses we incur or any costs for which we are responsible. In addition, there are types of losses we may incur that cannot be insured against or that we believe are not commercially reasonable to insure. For example, we maintain business interruption insurance, but there can be no assurance that the coverage for a severe or prolonged business interruption would be adequate and the deductibles for such insurance may be high. These losses, if they occur, could materially adversely affect our business, financial condition and results of operations.
A reduction in discretionary consumer spending, from an economic downturn or disruption of financial markets or other factors, could negatively impact our financial performance.
Gaming and other leisure activities that our customers experience, often represent discretionary expenditures and an individual’s participation in those activities may decline if discretionary consumer spending declines, including during economic downturns, when consumers generally earn less disposable income. Changes in discretionary consumer spending or consumer preferences are driven by factors beyond our control, such as:
| ● | perceived or actual general economic conditions; |
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| ● | fears of recession and changes in consumer confidence in the economy; |
| ● | high energy, fuel and other commodity costs; |
| ● | the potential for bank failures or other financial crises; |
| ● | a soft job market; |
| ● | an actual or perceived decrease in disposable consumer income and wealth; |
| ● | increases in taxes, including gaming taxes or fees; and |
| ● | terrorist attacks or other global events. |
During periods of economic contraction, our revenues may decrease while most of our costs remain fixed and some costs even increase, resulting in decreased earnings.
We are subject to environmental, health and safety laws and regulations, which could subject us to liabilities, increase our costs or restrict our operations in the future.
Our properties and operations are subject to a number of environmental, health and safety laws and regulations in each of the jurisdictions in which we operate. These laws and regulations govern, among other things, air emissions, water discharges, handling and disposal of solid and hazardous substances and wastes, soil and groundwater contamination, product safety, advertising and employee health and safety. Our failure to comply with such environmental, health and safety laws and regulations could result in substantial civil or criminal fines or penalties or enforcement actions, including regulatory or judicial orders enjoining or curtailing operations or requiring remedial or corrective measures, installation of pollution control equipment or other actions.
We may also be subject to liability for environmental investigations and cleanups, including at properties that we currently or previously owned or operated, even if such contamination was not caused by us, and we may face claims alleging harm to health or property or natural resource damages arising out of contamination or exposure to hazardous substances. We may also be subject to similar liabilities and claims in connection with locations at which hazardous substances or wastes we have generated have been stored, treated, otherwise managed, or disposed.
Environmental conditions at or related to our current or former properties or operations, and/or the costs of complying with current or future environmental, health and safety requirements (which have become more stringent and complex over time) could materially adversely affect our business, financial condition and results of operations.
Our failure to comply with certain environmental regulations could adversely affect our business, financial condition and results of operations.
The storage, distribution, transportation and disposal of some of the products that we sell are subject to a variety of federal and state environmental regulations. Our failure to comply with these regulations could have an adverse impact on our business, financial condition and results of operations.
International political instability and terrorist activities may decrease demand for the Company’s products and disrupt its business.
Terrorist activities and armed conflicts, including any escalation of hostility arising out of the conflict between Russia and the Ukraine, could have an adverse effect on the United States or worldwide economy and could cause decreased demand for the Company’s products as consumers’ attention and interests may be diverted from golf and become focused on issues relating to these events. If such events disrupt domestic or international air, ground or sea shipments, or the operation of the Company’s third party manufacturing facilities and suppliers, the Company’s ability to obtain the materials and components necessary to manufacture its products and to deliver customer orders would be harmed, which would have a significant adverse effect on the Company’s results of operations, financial condition and cash flows. In particular, escalating tensions between Russia and Ukraine and any military incursion by Russia into Ukraine could adversely impact macroeconomic conditions, give rise to regional instability and result in heightened economic sanctions from the U.S. and the international community in a manner that adversely affects our business.
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Our industry and the broader U.S. economy have experienced higher than expected inflationary pressures in 2022 related to continued supply chain disruptions, labor shortages and geopolitical instability, and if these conditions persist, our business, results of operations and cash flows could be materially and adversely affected.
The year 2022 saw significant increases in the costs of labor and certain materials and equipment, and longer lead times for such materials and equipment, as a result of availability constraints, supply chain disruption, increased demand, labor shortages associated with a fully employed U.S. labor force, high inflation and other factors. Supply and demand fundamentals have been further aggravated by disruptions in global energy supply caused by multiple geopolitical events, including the ongoing conflict between Russia and the Ukraine. Recent supply chain constraints and inflationary pressures may in the future adversely impact our operating costs, as a result, our business, financial condition, results of operations and cash flows could be materially and adversely affected.
We may be adversely affected during periods of high inflation, primarily because of higher shipping and product manufacturing costs. While we will attempt to pass on increases in our costs through increased sales prices to our customers, market forces may limit our ability to do so. If we are unable to raise sales prices enough to compensate for higher costs, our future revenues, our profit margin and revenues could be adversely affected.
Economic uncertainty may affect our access to capital and/or increase the costs of such capital.
Global economic conditions continue to be volatile and uncertain due to, among other things, consumer confidence in future economic conditions, fears of recession and trade wars, the price of energy, fluctuating interest rates, the availability and cost of consumer credit, the availability and timing of government stimulus programs, levels of unemployment, increased inflation, tax rates, and the war between Ukraine and Russia, which began in February 2022. These conditions remain unpredictable and create uncertainties about our ability to raise capital in the future. In the event required capital becomes unavailable in the future, or more costly, it could have a material adverse effect on
We may experience fluctuations in our tax obligations and effective tax rate, which could adversely affect our business, results of operations, and financial condition.
We are subject to taxes in every jurisdiction in which we operate. We record tax expense based on current tax liabilities and our estimates of future tax liabilities, which may include reserves for estimates of probable settlements of tax audits. At any given time, multiple tax years are subject to audit by various taxing jurisdictions. The results of these audits and negotiations with taxing authorities may affect the ultimate settlement of these issues. Further, our effective tax rate in a given financial statement period may be materially impacted by changes in tax laws, changes in the mix and level of earnings by taxing jurisdictions, or changes to existing accounting rules or regulations. Fluctuations in our tax obligations and effective tax rate could adversely affect our business, results of operations, and financial condition.
Changes in tax laws and unanticipated tax liabilities could adversely affect the Company’s effective income tax rate and profitability.
The Company is subject to income taxes in the United States and various foreign jurisdictions. The Company’s effective future income tax rates could be adversely affected by a number of factors, including: changes in the mix of earnings in countries with differing statutory tax rates, changes in the valuation of deferred tax assets and liabilities, changes in tax laws, the outcome of income tax audits in various jurisdictions around the world, and any repatriation of non-U.S. earnings for which the Company has not previously provided for U.S. taxes. The Company regularly assesses all of these matters to determine the adequacy of its tax provision.
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In addition, new income, sales, use or other tax laws, statutes, rules, regulations or ordinances could be enacted at any time, or interpreted, changed, modified or applied adversely to the Company, any of which could adversely affect the Company’s business operations and financial performance. In particular, the U.S. government may enact significant changes to the taxation of business entities including, among others, a permanent increase in the corporate income tax rate, an increase in the tax rate applicable to the global intangible low-taxed income and elimination of certain exemptions, and the imposition of minimum taxes or surtaxes on certain types of income. The Company is currently unable to predict whether such changes will occur and, if so, the ultimate impact on its business. To the extent that such changes have a negative impact on the Company, or its suppliers or customers, including as a result of related uncertainty, these changes may materially and adversely impact the Company’s business, financial condition, results of operations and cash flows.
We could be required to collect additional sales taxes or be subject to other tax liabilities that may increase the costs our clients would have to pay for our offering and adversely affect our operating results.
An increasing number of states have considered or adopted laws that attempt to impose tax collection obligations on out-of-state retailers. A successful assertion by one or more states requiring us to collect taxes where we presently do not do so, or to collect additional taxes in a jurisdiction in which we currently do collect taxes, could result in substantial tax liabilities, including taxes on past sales, as well as penalties and interest. The imposition by state governments of sales tax collection obligations on out-of-state retailers could also create additional administrative burdens for us, put us at a competitive disadvantage and decrease our future sales, which could have a material adverse impact on our business and operating results.
Our business, financial position, results of operations and cash flows have been, and could continue to be, negatively impacted by the COVID-19 pandemic.
The COVID-19 pandemic, and the various governmental, industry and consumer actions taken in response thereto, have impacted and could continue to impact our business. These impacts have included significant volatility in demand for our products; significant disruptions in or closures of our manufacturing operations or those of our suppliers; disruptions within our supply chain restricting our ability to import products or obtain the necessary raw materials or components to make products; limitations on our employees’ and consumers’ ability to work and travel; restrictions on public gatherings; potential financial difficulties of customers and suppliers; significant changes in economic or political conditions; and related volatility in financial and market conditions.
Given the uncertainty and evolving nature of the COVID-19 pandemic, we cannot predict the full extent of the impact of the pandemic and actions taken worldwide to address it on the economy, trade, our business and the businesses of our customers and suppliers. While it is impossible to quantify the impact of the COVID-19 pandemic, business disruptions as a result of the COVID-19 pandemic could continue to have a material impact on our business, results of operations, financial position and cash flows. The degree to which the COVID-19 pandemic and related actions ultimately impact our business, financial position, results of operations and cash flows will depend on factors beyond our control, including the spread, severity and duration of the pandemic; the actions taken to contain the spread of COVID-19, including any additional government ordered shutdowns; the pandemic’s impact on the global economy and demand for our products; and to what extent and how quickly normal economic and operating conditions resume, if at all. A prolonged decline in general economic conditions or uncertainties regarding future economic prospects as a result of the pandemic could adversely affect consumer confidence and discretionary spending, which in turn could result in further reduced sales of our products and could materially adversely affect our business, financial position, results of operations and cash flows.
Our business may be materially and adversely disrupted by epidemics or pandemics in the future, including COVID-19.
An epidemic, pandemic or similar serious public health issue, and the measures undertaken by governmental authorities to address it, could significantly disrupt or prevent us from operating our business in the ordinary course for an extended period, and thereby, and/or along with any associated economic and/or social instability or distress, have a material adverse impact on our financial statements.
On March 11, 2020, the World Health Organization characterized the outbreak of COVID-19 as a global pandemic and recommended containment and mitigation measures. On March 13, 2020, the United States declared a national emergency concerning the outbreak, and several states and municipalities have declared public health emergencies. Although COVID-19 has to date not had a material impact on our planned operations, should the COVID-19 public health effort re-intensify to such an extent that we cannot operate, if there are new government restrictions on our business and our customers, and/or an extended economic recession or significant inflation, we could be unable to produce revenues and cash flows sufficient to conduct our planned business. Such a circumstance could, among other things, exhaust our available liquidity (and ability to access liquidity sources) and/or trigger an acceleration to pay a significant portion or all of our then-outstanding debt obligations, which we may be unable to do.
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Taking advantage of the reduced disclosure requirements applicable to “emerging growth companies” may make our Class A Common Stock less attractive to investors.
We qualify as an “emerging growth company” as defined in the JOBS Act. An emerging growth company may take advantage of certain reduced reporting and other requirements that are otherwise applicable generally to public companies. Pursuant to these reduced disclosure requirements, emerging growth companies are not required to, among other things, comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, provide certain disclosures regarding executive compensation, holding stockholder advisory votes on executive compensation or obtain stockholder approval of any golden parachute payments not previously approved. In addition, emerging growth companies have longer phase-in periods for the adoption of new or revised financial accounting. We will cease to be an emerging growth company upon the earliest of (i) the last day of the fiscal year in which we have $1.235 billion or more in annual revenues; (ii) the date on which we become a “large accelerated filer” (the fiscal year-end on which the total market value of our common equity securities held by non-affiliates is $700 million or more as of June 30); (iii) the date on which we issue more than $1.0 billion of non-convertible debt securities over a three-year period; or (iv) the last day of the fiscal year following the fifth anniversary of this offering.
We intend to take advantage of all of the reduced reporting requirements and exemptions, including the longer phase-in periods for the adoption of new or revised financial accounting standards under Section 107 of the JOBS Act, until we are no longer an emerging growth company. If we were to subsequently elect instead to comply with these public company effective dates, such election would be irrevocable pursuant to Section 107 of the JOBS Act.
Our election to use the phase-in periods permitted by this election may make it difficult to compare our financial statements to those of non-emerging growth companies and other emerging growth companies that have opted out of the longer phase-in periods under Section 107 of the JOBS Act and who will comply with new or revised financial accounting standards. We cannot predict if investors will find our Class A Common Stock less attractive because we will rely on these exemptions. If some investors find our Class A Common Stock less attractive as a result, there may be a less active trading market for our Class A Common Stock and our Class A Common Stock price may be more volatile. Under the JOBS Act, emerging growth companies can delay adopting new or revised accounting standards until such time as those standards apply to private companies.
TruGolf has identified material weaknesses in its internal control over financial reporting. If TruGolf is unable to remediate these material weaknesses, or if TruGolf identifies additional material weaknesses in the future or otherwise fails to maintain an effective system of internal controls, TruGolf may not be able to accurately or timely report its financial condition or results of operations, which may adversely affect its business and stock price. In addition, because of our status as a smaller reporting company, you will not be able to depend on any attestation report from our independent registered public accounting firm as to our internal control over financial reporting for the foreseeable future.
Prior to the Closing of the Business Combination, TruGolf had been a private company with limited accounting personnel to adequately execute its accounting processes and limited supervisory resources with which to address its internal control over financial reporting. In connection with the audit of TruGolf’s financial statements as of and for the year ended December 31, 2022, TruGolf identified material weaknesses in its internal control over financial reporting. A material weakness is a deficiency or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of TruGolf’s annual or interim financial statements will not be prevented or detected on a timely basis.
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TruGolf did not design and has not maintained an effective control environment as required under the rules and regulations of the SEC. Specifically, (i) management does not have appropriate IT general control in place over change management, user access, cybersecurity, and reviews of service organizations, (ii) management does not have suitable COSO entity level controls in place, including reviews of the financial statements, and certain entity level controls were not performed by management, and (iii) pervasive transactional and account level reconciliations and analyses are not performed, or not performed with sufficient detail to prevent or detect a material weakness. These issues related to managements controls over the review of complex significant transactions, complex debt and equity issuance transactions, income and sales taxes, & revenue recognition.
TruGolf has taken certain steps, such as recruiting additional personnel, in addition to utilizing third-party consultants and specialists, to supplement its internal resources, to enhance its internal control environment and plans to take additional steps to remediate the material weaknesses. Although TruGolf plans to complete this remediation process as quickly as possible, it cannot at this time estimate how long it will take. TruGolf cannot assure you that the measures it has taken to date and may take in the future, will be sufficient to remediate the control deficiencies that led to its material weaknesses in internal control over financial reporting or that it will prevent or avoid potential future material weaknesses.
TruGolf cannot assure you that the measures it has taken to date, and are continuing to implement, will be sufficient to remediate the material weaknesses TruGolf has identified or avoid potential future material weaknesses. If the steps TruGolf takes do not correct the material weaknesses in a timely manner, TruGolf will be unable to conclude that it maintains effective internal control over financial reporting. Accordingly, there could continue to be a reasonable possibility that a material misstatement of TruGolf’s financial statements would not be prevented or detected on a timely basis.
Any failure to remediate existing material weaknesses, or to develop or maintain effective controls or any difficulties encountered in their implementation or improvement could harm TruGolf’s results of operations or cause it to fail to meet its reporting obligations and may result in a restatement of its financial statements for prior periods included in this registration statement. Any failure to implement and maintain effective internal control over financial reporting also could adversely affect the results of periodic management evaluations and annual independent registered public accounting firm attestation reports regarding the effectiveness of TruGolf’s internal control over financial reporting that it will eventually be required to include in its periodic reports that will be filed with the SEC. Ineffective disclosure controls and procedures and internal control over financial reporting could also cause investors to lose confidence in TruGolf’s reported financial and other information, which would likely have a negative effect on the trading price of TruGolf Class A Shares. In addition, if TruGolf is unable to continue to meet these requirements, it may not be able to remain listed on Nasdaq. TruGolf will not be required to comply with the SEC rules that implement Section 404 of the Sarbanes-Oxley Act and will therefore not be required to make a formal assessment of the effectiveness of control over financial reporting for that purpose. As a public company, TruGolf will be required to provide an annual management report on the effectiveness of its internal control over financial reporting. TruGolf’s independent registered public accounting firm will not be required to formally attest to the effectiveness of its internal control over financial reporting until the later of (1) the year following our first annual report required to be filed with the SEC or (2) the date we are no longer an “emerging growth company” as defined in the JOBS Act. Accordingly, you will not be able to depend on any attestation concerning our internal control over financial reporting from our independent registered public accounting firm for the foreseeable future. At such time, TruGolf’s independent registered public accounting firm may issue a report on our internal controls over financial reporting that is adverse in the event it is not satisfied with the level at which TruGolf’s internal control over financial reporting is documented, designed, or operating. Any failure to maintain effective disclosure controls and internal control over financial reporting could have an adverse effect on TruGolf’s business and results of operations, leads to a higher risk of financial statement restatements and could cause a decline in the price of TruGolf Class A Shares.
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Risks Related to TruGolf’s Dual Class Structure
The dual class structure of the TruGolf Common Stock will have the effect of concentrating voting power with TruGolf’s founders, which will limit an investor’s ability to influence the outcome of important transactions, including a change in control.
TruGolf Class B Shares have 25 votes per share, while TruGolf Class A Shares have one vote per share. The TruGolf Founders, Christopher Jones, Steven R. Johnson and David Ashby, hold all shares of TruGolf Class B Common Stock granting them each approximately 43.0%, 20.9% and 22.0%, respectively, of voting power and together approximately 85.9% of the voting power of TruGolf. As a result, if they act together, they will be able to control matters submitted to TruGolf’s shareholders for approval, including the election of directors, amendments of its organizational documents and any merger, consolidation, sale of all or substantially all of its assets or other major corporate transactions (although neither Founder will individually have a majority of the voting power). As long as the TruGolf Founders continue to hold greater than 5% of the TruGolf Class B Common Stock they may be able to control the outcome of matters submitted to stockholders for approval. TruGolf’s Founders may have interests that differ from yours and may vote in a way with which you disagree and which may be adverse to your interests. This concentrated control may have the effect of delaying, preventing or deterring a change in control of TruGolf, could deprive its stockholders of an opportunity to receive a premium for their shares as part of a sale of TruGolf, and might ultimately affect the market price of shares of TruGolf Class A Common Stock. The Proposed Charter provides that each share of Class B common stock may be converted, at any time, into one share of Class A common stock at the option of the holder of Class B common stock, which, if issued in the future, could result in dilution to holders of Class A Shares. For information about its dual class structure, see the section titled “Description of TruGolf’s Securities.”
TruGolf cannot predict the impact TruGolf’s dual class structure may have on the stock price of TruGolf Common Stock.
TruGolf cannot predict whether TruGolf’s dual class structure will result in a lower or more volatile market price of the TruGolf Common Stock or in adverse publicity or other adverse consequences. For example, certain index providers have announced restrictions on including companies with multiple-class share structures in certain of their indexes. In July 2017, FTSE Russell and S&P Dow Jones announced that they would cease to allow most newly public companies utilizing dual or multi-class capital structures to be included in their indices. Affected indices include the Russell 2000 and the S&P 500, S&P MidCap 400 and S&P SmallCap 600, which together make up the S&P Composite 1500. Beginning in 2017, MSCI, a leading stock index provider, opened public consultations on their treatment of no-vote and multi-class structures and temporarily barred new multi-class listings from certain of its indices; however, in October 2018, MSCI announced its decision to include equity securities “with unequal voting structures” in its indices and to launch a new index that specifically includes voting rights in its eligibility criteria. Under the announced policies, TruGolf’s dual class capital structure would make us ineligible for inclusion in certain indices, and as a result, mutual funds, exchange-traded funds and other investment vehicles that attempt to passively track those indices will not be investing in its shares. These policies are still fairly new and it is as of yet unclear what effect, if any, they will have on the valuations of publicly traded companies excluded from the indices, but it is possible that they may depress these valuations compared to those of other similar companies that are included. Because of TruGolf’s dual class structure, TruGolf will likely be excluded from certain of these indexes and TruGolf cannot assure you that other stock indexes will not take similar actions. Given the sustained flow of investment funds into passive strategies that seek to track certain indexes, exclusion from stock indexes would likely preclude investment by many of these funds and could make TruGolf Class A Common Stock less attractive to other investors. As a result, the market price of the TruGolf Class A common stock could be adversely affected.
TruGolf ise a “controlled company” within the meaning of the Nasdaq rules and, as a result, qualify for and rely on exemptions from certain corporate governance requirements. As a result, TruGolf stockholders do not have the same protections afforded to stockholders of companies that cannot rely on such exemptions and are subject to such requirements.
TruGolf’s Chief Executive Officer together with two other TruGolf Founders, beneficially own and control a majority of the combined voting power of TruGolf’s common stock. As a result, TruGolf is a “controlled company” within the meaning of the Nasdaq listing rules. Under these rules, a company of which more than 50% of the voting power is held by an individual, a group or another company is a “controlled company” and may elect not to comply with certain corporate governance requirements of Nasdaq, including, but not limited to, the requirement that:
| ● | a majority of the board of directors consist of directors who qualify as “independent” as defined under the Nasdaq listing rules; |
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| ● | its board of directors have a nominating and corporate governance committee composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities |
| ● | its board of directors have a compensation committee composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities; and |
| ● | its board of directors conduct an annual performance evaluation of its compensation committee and the nominating and corporate governance committee |
We intend to rely on some or all of these exemptions so long as we remain a “controlled company.” As a result, TruGolf may not have (i) a majority of independent directors, (ii) a nominating and governance committee composed entirely of independent directors, and (iii) a compensation committee composed entirely of independent directors. Accordingly, TruGolf stockholders may not have the same protections afforded to stockholders of companies subject to all of the corporate governance requirements of Nasdaq.
Risks Related to Ownership of TruGolf’s Securities
TruGolf’s stock may be volatile, and you may not be able to sell its securities at or above the price you paid..
The trading price of the TruGolf Common Stock is likely to be volatile. The stock market recently has experienced extreme volatility. This volatility often has been unrelated or disproportionate to the operating performance of particular companies. You may not be able to resell your shares at an attractive price due to a number of factors such as those listed in “— Risks Related to TruGolf’s Business” and the following:
| ● | results of operations that vary from the expectations of securities analysts and investors; |
| ● | results of operations that vary from those of TruGolf’s competitors; |
| ● | the impact of the COVID-19 pandemic and its effect on TruGolf’s business and financial conditions; |
| ● | changes in expectations as to TruGolf’s future financial performance, including financial estimates and investment recommendations by securities analysts and investors; |
| ● | declines in the market prices of stocks generally; |
| ● | strategic actions by TruGolf or its competitors; |
| ● | announcements by TruGolf or its competitors of significant contracts, acquisitions, joint ventures, other strategic relationships or capital commitments; |
| ● | any significant change in TruGolf’s management; |
| ● | changes in general economic or market conditions or trends in TruGolf’s industry or markets, such as recessions, interest rates, local and national elections, international currency fluctuations, corruption, political instability and acts of war or terrorism; |
| ● | changes in business or regulatory conditions, including new laws or regulations or new interpretations of existing laws or regulations applicable to TruGolf’s business; |
| ● | future sales of TruGolf Common Stock or other securities; |
| ● | investor perceptions or the investment opportunity associated with TruGolf Common Stock relative to other investment alternatives; |
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| ● | the public’s response to press releases or other public announcements by TruGolf or third parties, including TruGolf’s filings with the SEC; |
| ● | litigation involving TruGolf, TruGolf’s industry, or both, or investigations by regulators into TruGolf’s operations or those of TruGolf’s competitors; |
| ● | guidance, if any, that TruGolf provides to the public, any changes in this guidance or TruGolf’s failure to meet this guidance; |
| ● | the development and sustainability of an active trading market for TruGolf’s securities; |
| ● | actions by institutional or activist stockholders; |
| ● | changes in accounting standards, policies, guidelines, interpretations or principles; and |
| ● | other events or factors, including those resulting from natural disasters, war, acts of terrorism or responses to these events. |
These broad market and industry fluctuations may adversely affect the market price of TruGolf Class A Common Stock, regardless of TruGolf’s actual operating performance. In addition, price volatility may be greater if the public float and trading volume of TruGolf Class A Common Stock is low.
In the past, following periods of market volatility, stockholders have instituted securities class action litigation. If TruGolf was involved in securities litigation, it could have a substantial cost and divert resources and the attention of executive management from TruGolf’s business regardless of the outcome of such litigation.
Because there are no current plans to pay cash dividends on TruGolf Common Stock for the foreseeable future, you may not receive any return on investment unless you sell your TruGolf Common Stock for a price greater than that which you paid for it.
TruGolf intends to retain future earnings, if any, for future operations, expansion and debt repayment and there are no current plans to pay any cash dividends for the foreseeable future. The declaration, amount and payment of any future dividends on shares of TruGolf Common Stock will be at the sole discretion of the TruGolf Board. The TruGolf Board may take into account general and economic conditions, TruGolf’s financial condition and results of operations, TruGolf’s available cash and current and anticipated cash needs, capital requirements, contractual, legal, tax, and regulatory restrictions, implications on the payment of dividends by TruGolf to its stockholders or by its subsidiaries to it and such other factors as the TruGolf Board may deem relevant. In addition, TruGolf’s ability to pay dividends is limited by covenants of TruGolf’s existing and outstanding indebtedness and may be limited by covenants of any future indebtedness TruGolf incurs. As a result, you may not receive any return on an investment in TruGolf Common Stock unless you sell your TruGolf Common Stock for a price greater than that which you paid for it.
If securities analysts do not publish research or reports about TruGolf’s business or if they downgrade TruGolf’s securities or TruGolf’s sector, TruGolf’s stock price and trading volume could decline.
The trading market for TruGolf Common Stock will rely in part on the research and reports that industry or financial analysts publish about TruGolf or its business. TruGolf will not control these analysts. In addition, some financial analysts may have limited expertise with TruGolf’s model and operations. Furthermore, if one or more of the analysts who do cover TruGolf downgrade its stock or industry, or the stock of any of its competitors, or publish inaccurate or unfavorable research about its business, TruGolf’s stock price could decline. If one or more of these analysts ceases coverage of TruGolf or fails to publish reports on it regularly, TruGolf could lose visibility in the market, which in turn could cause its stock price or trading volume to decline.
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Anti-takeover provisions in TruGolf’s governing documents could delay or prevent a change of control.
Certain provisions of the Proposed Charter and the Proposed Bylaws may have an anti-takeover effect and may delay, defer or prevent a merger, acquisition, tender offer, takeover attempt or other change of control transaction that a stockholder might consider in its best interest, including those attempts that might result in a premium over the market price for the shares held by TruGolf’s stockholders.
These provisions provide for, among other things:
| ● | a dual class common stock structure, which provides the TruGolf Founders with the ability to control the outcome of matters requiring stockholder approver, even if they own significantly less than a majority of the share of TruGolf Common Stock; |
| ● | the ability of the TruGolf Board to issue one or more series of preferred stock; |
| ● | advance notice for nominations of directors by stockholders and for stockholders to include matters to be considered at TruGolf’s annual meetings; |
| ● | only the Chairman of the TruGolf Board, the Chief Executive Officer of TruGolf, or a majority of the TruGolf Board is authorized to call a special meeting of stockholders; and |
| ● | limiting the ability of stockholders to act by written consent; |
These anti-takeover provisions could make it more difficult for a third party to acquire TruGolf, even if the third party’s offer may be considered beneficial by many of TruGolf’s stockholders. As a result, TruGolf’s stockholders may be limited in their ability to obtain a premium for their shares. These provisions could also discourage proxy contests and make it more difficult for you and other stockholders to elect directors of your choosing and to cause TruGolf to take other corporate actions you desire. See “Description of our Securities.”
USE OF PROCEEDS
All of the securities offered by the Selling Securityholders pursuant to this prospectus will be sold by the Selling Securityholders for their respective accounts. We will not receive any of the proceeds from the sale of the securities registered hereunder.
In the event any Warrants are exercised for cash, we would receive the proceeds from any such cash exercise, provided, however, we will not receive any proceeds from the sale of the shares of Class A Common Stock issuable upon such exercise. The exercise of the Warrants, and any proceeds we may receive from their exercise, are highly dependent on the price of our shares of our Class A Common Stock and the spread between the exercise price of such securities and the market price of our Class A Common Stock at the time of exercise. The current exercise price of the Series A Warrants is $13.00 per share of Class A Common Stock, Series B Warrant exercise price is $10.00 per share of Class A Common Stock, and Representative Warrants exercise price is $12.00 per share of Class A Common Stock. The market price of our Class A Common Stock as of February 13, 2024 was $1.75 per share. If the market price of our Common Stock is less than the exercise price of a holder’s warrants, it is unlikely that holders will exercise their warrants. There can be no assurance that all of the Warrants will be in the money prior to their expiration.
We expect to use the net proceeds from the exercise of the Warrants, if any, for general corporate purposes. We will have broad discretion over the use of any proceeds from such exercise. There is no assurance that the holders of the Warrants will elect to exercise for cash any or all of such Warrants. To the extent that any Warrants are exercised on a “cashless basis,” the amount of cash we would receive from the exercise of the Warrants will decrease.
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The Selling Securityholders will pay any underwriting discounts and commissions and expenses incurred by the Selling Securityholders for brokerage, accounting, tax, legal services, or any other expenses incurred by the Selling Securityholders in disposing of the securities. We will bear the costs, fees, and expenses incurred in effecting the registration of the securities covered by this prospectus, including all registration and filing fees, Nasdaq listing fees, and fees and expenses of our counsel and our independent registered public accounting firm.
MARKET PRICE OF OUR CLASS A COMMON STOCK AND DIVIDEND INFORMATION
Market Price of Our Class A Common Stock
Our Class A Common Stock are currently listed on The Nasdaq Global Market, of The Nasdaq Stock Market LLC (“Nasdaq”) under the symbol “TRUG”. Prior to the completion of the Business Combination, the securities of DMA were listed on The Nasdaq Capital Market under the symbols “DMAQ,” and “DMAQR”, all of which are no longer listed on The Nasdaq Capital Market.
On February 13, 2024, the closing sale price of our Class A Common Stock was $1.75 per share.
As of February 13, 2024, there were approximately 26 holders of record of our Class A Common Stock. Such numbers do not include beneficial owners holding our securities through nominee names.
Dividend Policy
We have never declared or paid any cash dividends on our capital stock, and we do not currently intend to pay any cash dividends for the foreseeable future. We expect to retain future earnings, if any, to fund the development and growth of our business. Any future determination to pay dividends on our Class A Common Stock will be at the discretion of our board of directors and will depend upon, among other factors, our financial condition, operating results, current and anticipated cash needs, plans for expansion, and other factors that our board of directors may deem relevant.
BUSINESS
Corporate History
TruGolf Holdings, Inc. (the “Company” or “TruGolf”, “we”, “us”) was formed on July 8, 2020 as a Delaware corporation and formed for the purpose of effecting a business combination, with no material operation of its own. Our operations are conducted through our subsidiary TruGolf, Inc., a Nevada Corporation (“TruGolf Nevada”).TruGolf Nevada was formed as a Utah corporation on October 4, 1995, under the name “TruGolf, Incorporated”. TruGolf Nevada’s original business plan was the creation of golfing video games. On June 9, 1999, the TruGolf Nevada changed its name to “TruGolf, Inc.” Effective on April 26, 2016, TruGolf Nevada filed Articles of Merger with the State of Utah, Department of Commerce, and on April 28, 2016, TruGolf Nevada filed Articles of Merger with the Secretary of State of Nevada, pursuant to which TruGolf, Inc., a Utah corporation, merged with and into TruGolf Nevada, pursuant to a Plan of Merger. TruGolf Nevada was the surviving corporation in the merger. In connection with the Plan of Merger, TruGolf Nevada affected a four-for-one forward stock split of its outstanding common stock.
TruGolf Nevada has been creating indoor golf software for 40 years. We began as a subsidiary of Access Software, Inc., a video game developer based in Salt Lake City, Utah (“Access Software”), which was co-founded in November 1982, by Christopher Jones, TruGolf Nevada’s largest stockholder, Chief Executive Officer, President and Chairman. In April 1999, Access Software was purchased by Microsoft Corp., for its expertise in golf software development. Following the acquisition, the core programming and graphics team of Links™, which created Links LS 1999, one of the bestselling PC sports games of 1999, were spun out to TruGolf Nevada.
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Since 1999, we have focused on establishing residential and commercial golf simulation as a viable industry, and since 2007, we have focused on fabricating custom golf simulators for luxury clients. Part of our initial strategy included partnering with hardware inventors to provide them world class software. Over time, we found that it was not viable to rely on these early hardware inventors alone, we also began building and selling our own hardware. In addition, we are working with a video game company to utilize their new dynamic graphics engine which will enable us to bring photorealistic golf courses to life through our E6 software (discussed below). In addition we have developed multiple sources and 3rd party manufacturers for the raw materials or parts for our products, including but not limited to, steel or aluminum frames, fabric, turf, screens, projectors, PCs, cameras, lasers, infrared sensors, and supporting subsystems. The availability of the frames and fabric from our principle provider, Allied ES&A, has been increased as they have moved into a much larger facility directly located in a large employee base community and we have entered into negotiations with a second supplier in order to provide alternative sourcing if needed. A third supplier, Impact Signs, has also been used in the past and TruGolf Nevada believes that it could purchase turf, and screen supplies from them as well if needed. Both turf (Controlled Products), and screen suppliers (Allied), are so specialized that we have come to rely on one vendor for each, respectively. Turf particularly experienced some delivery delays in 2022 that have been rectified, additional inventory has been secured locally, and our highest volume portable simulators have been redesigned to use less raw materials from that vendor, while adding an improved hitting surface from a second vendor, Real Feel, to mitigate risk. Negotiations with a second supplier of screen materials is in progress. Projectors (TV Specialists), PCs, lasers, IR sensors and other systems come from multiple suppliers with no historical delay in supply. We have 2 primary suppliers of cameras, IDS and Basler, and have integrated products from both in the new Apogee unit to ensure the greatest availability possible.
Market For Indoor Golf
We believe that it is important to understand the macro-economic trends of indoor golf as a sport, as a culture, and as a movement, to better understand the market for our indoor golfing simulators and software. According to the National Golf Foundation (the “NGF”), golf is the largest participation sport in America, with 41 million active golfers over six years old, and has had a growth rate of adding 3 million net new golfers in each of the 2021 and 2022. However, according to the NGF, in 2022, there were over 15.5 million golfers that participated exclusively in off-course golf activities, such as driving ranges, indoor golf simulators, or golf entertainment venues, and only 13 million people who played exclusively on a golf course. According to the NGF, a total of 17.8 million people who did not play golf in 2021 said they are “very interested” in playing golf on a golf course. According to a January 26, 2023 article from the NGF, the off-course golfers have increased more significantly, with a 13% year-over-year jump, compared with a 2% rise in on-course participation. As reported, the total off-course market in 2022 of approximately $27.9 million has for the first time eclipsed on-course play.
The total addressable market for golf products in 2022 was an estimated $1.4 USD Billion, and with a CAGR of 11.05% is forecast to reach $3.8 USD Billion by 2031. Econ Market Research estimates that North America represents 36%, Europe 28%, Asia Pacific 22%, and Middle East and Africa 7% of total global market share in 2022. In this same report they have found that TruGolf Nevada currently maintains a 4.28% market share. They also noted that 69% of the total market is from Indoor Golf Simulators, while 31% is from Outdoor Golf Simulators in 2022 with a slight shift of 1% towards Outdoor Golf Simulators by 2031. In additional the report found that only 21% of sales were for Residential application, and 78% sold for Commercial applications, with a small increase in Residential to 22% by 2031. While it is not directly stated in the Econ Market Research study, we consider revenue from both SaaS software and Data Analytics to be included in the overall total addressable market for golf products. Our planned products are aligned directly with these findings as our Apogee launch monitor is an indoor only, and ceiling mounted device ideally for commercial facilities, yet equally beneficial to residential use. Our software, both E6 CONNECT, and APEX have power tools for commercial facilities to make playing, improving and enjoying golf easier than ever. While our software is available on 90% of hardware in the market this allows us to access customers for use indoor, outdoor, and residential, as well as commercial. In addition to these hardware and software solutions targeting directly the market segments we will be launching a franchise solution to capitalize on the powerful demand for commercial offerings.
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We believe there are many reasons for the decline in outdoor rounds of golf being played and the simultaneous increase of indoor rounds of golf, including (i) the major costs of running a golf course (and consequently the costs of playing outdoor golf), including environmental factors making outdoor golf increasingly costly and requiring more and more water for vegetation, as temperatures across the United States increase, even as available water has generally decreased, (ii) the closing of over 100 golf courses every year (NGF) and (iii) the challenge in finding available daylight hours with so many golfers and so few golf courses , especially in light of the lengthy time period required to play a full outdoor course. We believe that all of these factors combine to create a significant opportunity to capitalize on a growing sport, a growing segment of that sport, and a convergence of demand and popularity seldom seen in virtual participation athletics — indoor golf.
Current Operations
We currently leverage a bifurcated branding strategy by both (1) selling indoor golf simulator hardware under our TruGolf Nevada brand, which hardware includes our E6 Connect software; and (2) selling our E6 Connect software separately for use on other companies’ hardware. In the future, we also intend to franchise indoor golf simulation facilities, create a “Virtual Golf Association” of online players, and leverage our access to swing data, each as discussed in greater detail below.
Our Products
Hardware
Portable – Our Vista Series, which are portable indoor golf simulators, immerse players in realistic gameplay and are designed to be easily assembled and disassembled. These portable lightweight aluminum frame indoor golf simulators use a matte-box design that blocks ambient light and gives the Vista Series the same image quality as high-end golf simulation units, but for a much lower price. Our Vista Series currently includes a High-Definition, 720p projector (upgradable to a 1080p version), as well as the option for a touch screen and a turf surface. All of our Vista Series products come with a two-year limited warranty This product has been discounted throughout 2023 in efforts to sell down inventory as we plan on launching a new portable series with a code name of MAX. Our Vista 12 model is shown below.
Professional – Our Signature and Premium indoor golf simulators include complete, permanent enclosures, including three high-speed cameras to capture ball flight with high accuracy. Our professional golf simulators include high-end projectors with high visual quality (1080 p) providing better visuals, built-in computers and touchscreen, premium turf and audio. These simulators use our TruFlight 2 ceiling mounted Launch Monitor that captures club and ball data for both right-handed and left-handed golfers. Utilizing three cameras, the TruFlight 2 system captures club and ball data simultaneously, for considerable accuracy, allowing users to shape their shots akin to how they would outdoors. Below are images of our Signature (left) and Premium (right) indoor golf simulators.
Commercial – We offer commercial software and hardware solutions, working with our commercial customers to help design their facilities and find the right audio/video solutions for their customers. Hardware solutions can include multiple simulators of varying sizes, as well as arcade-style games. Software solutions include a Product Launcher that prevents a user from accessing the PC interface, while making game selection and launching easier, a Clubhouse solution that allows clients to host and manage tournaments, and even commercial administration tools to manage multiple simulators from one networked PC.
Custom – We also offer custom indoor golf simulation products which can be designed for everything from luxury-residential applications to high volume commercial usage facilities. The customized products, with installation, may cost anywhere between $10,000 and $100,000, depending on the size, design, nature and volume of usage. We consult with clients on a design we can build from spec and then work with the customers’ contractors, through an installation supervisor, to install, calibrate and train customers on the use of their custom simulators. Historically we have completed most installations ourselves but have recently outsourced 30% of such installations to 3rd party installers. Below is an example of a custom installation.
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Leading our hardware offering, is our new Apogee Launch Monitor (“Apogee”). Many competitors use mobile launch monitors that must be set on the floor behind, or to the side of a golfer, leaving them prone to being kicked or bumped, often requiring a re-calibration and creating a generally unstable and unpredictable solution. Our launch monitor was designed from its inception to provide not only a highly accurate swing analysis and realistic golfing experience, but also an easy solution to install, play, and maintain, for indoor golf. The accuracy of Apogee is created through features like our patent pending club path measurement, stereoscopic resolution optimized camera system, and instant impact ball launch (“Instant Impact”) to digital display response. This Instant Impact allows golfers to see their virtual ball flight in less than 300 milliseconds, nearly 10 times faster than our competition. An equally vital ingredient to an accurate golf experience comes from our “Instant Impact Replay,” an in-game scrubbable video replay allowing users of any skill level to see exactly what their club did, including positive aspects and flaws, in order to achieve the ball path and spin portrayed on screen creating the ability to give instructions to users.
Another component of our hardware which we believe provides us a competitive advantage is based on ease-of-use, which begins with auto-calibration, and includes everyday usability, along with general troubleshooting and maintenance. Our hardware’s installation is simple, beginning with a proprietary mounting bracket that a layperson can drill in their ceiling or on a standard projector mount, then the Apogee device, which weighs less than 30 pounds and can easily be inserted onto rails securely holding the device to the bracket is attached. Once the hardware is in place, the user places a piece of paper on the ground under the device and pushes a button to begin the auto-calibration. What historically took approximately 20 to 30 minutes on our TruFlight 2 system (which is still used in our portable systems), and up to three days on competitors’ systems, can now be accomplished in less than five minutes. This auto-calibration function continues throughout the play on the system, as every time a player places a golf ball in the impact zone, there is a rapid calibration verification, again ensuring easy and accurate maintenance.
In the game of golf there is a concept known as Pace of Play, or “POP”. A normal 18-hole outdoor game of golf usually takes approximately three hours; such POP can be reduced to one hour indoors. We help our users reduce this time even more by use of our proprietary “Laser Launchpad,” which has a faster setup, and not only indicates exactly where a user should place the ball to ensure successful swing capture but also turns off as soon as the ball is placed in the right place and the software is ready to go, preventing a player from taking their eye off the ball to look at the screen to verify preparedness. This increases POP, and also increases the authenticity of the player experience by avoiding doubts as to whether or not the system is ready, and instead allowing a player to focus on their swing. The second innovative element in our product affecting POP is our Instant Impact ball flight processing system (as discussed above). Additionally, our proprietary on-board Apogee Voice Accelerator reduces POP by enabling players to avoid using a mouse or touchscreen, and allowing them to simply use their voice to execute the most common functions including taking a Mulligan, making club changes, effecting lateral pin adjustments, observing swing analysis, and even making environmental adjustments, such as time of day and cloud cover.
By providing our own Apogee launch monitor, we expect to be able to unlock exclusive features in the forthcoming version of our E6 Connect software, including dynamic course visuals, robust club path, ball reaction analysis, and visual enhancements, leveraging augmented reality and artificial intelligence breakthroughs.
Multi-Sport – We also offer a separate hardware device which allows users to play multiple games known as “Multi-Sport”. This allows users to play soccer, football, hockey, frisbee and Frisbee golf, zombie dodgeball and light gun target games through our hardware. These games are arcade-style mini games with fun simple challenges designed for any age or ability level. This also allows users of our hardware to purchase this additional hardware that goes with our golf simulators and offer different games for their customers.
Software
We pair our hardware with our internally developed E6 software, which may also be purchased separately. We believe that E6 Connect is the highest-quality, most lifelike and customizable golf simulator software ever created. It can be used with launch monitors to teach or train users on the driving range, to compete in leagues and online events at a commercial facility, or to just play fun indoor golf games at home with friends and family.
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E6 Connect offers traditional modes of play like: Stroke, Scramble, Best Ball, Stableford, and Match Play. In addition, we offer exciting mini games like Closest to the Pin, Demolition Driving Range, Long Drive, Blackout, Horse, and 301. We also have a Clubhouse Module designed to help run leagues and indoor facilities. The remote web-application lets users create leagues or events– while checking on the usage statistics of that simulator. Another powerful solution provided by E6 Connect is a web-enabled second screen data analytics performance portal enabling individual players to make the most of their longitudinal data.
Additionally, we have recognized that since golf is not the only sport of interest, and we have leveraged the power of our hardware and software platform to create a collection of multi-sport games including football, soccer, soccer golf, frisbee golf, zombie dodgeball, cowboy target practice, and more. We have found that not only does this drive family friendly value for residential installs, but dramatically expands the target audiences for commercial facilities.
The next iteration of our E6 software, which we have given the code named “APEX”, with the use of a powerful new graphics engine, allows us to recreate photo-realistic, and accurate recreations of actual world-class golf courses. The dramatic elements that bring these courses to life include: animated wildlife, trees, flowers and bushes that move in the wind and change with the seasons, dynamic time of day changes, including sun position, procedural shadows, cloud interaction with 3-D panoramic landscapes, and the resulting array of stunning lighting effects on some of the most beautiful golf courses in the world. We strive to provide pixel accurate versions of the golf courses we offer, including accuracy of within 2 inches on the fairways, and 2 centimeters on the greens. We have found that this level of accuracy enables golfers to become familiar with every hole and hazard on the course, and also unlocks our true handicapping system that can bridge the gap between indoor and outdoor play. This is something that lower quality, lower price point, fantasy simulator software solutions do not provide. In the future, we plan to also introduce with APEX a virtual simultaneous multiplayer driving range, an insightful new virtual club fitting suite and virtual course builder capabilities.
Our proprietary physics and gaming engine, which combines 40 years of innovation and experimentation, with countless hours of golfer collaboration and observation, may be even more impressive than our virtual courses and visual effects. Our painstakingly accurate ball flight, bounce, roll and object collision can be modified by customizable external factors including elevation, humidity, and wind. All of these variables come to life in the context of every swing of the club, which becomes relevant with our swing analyzer. We not only provide users critical statistics, but we also provide new video on demand replay options, thanks to Apogee. This allows any golfer to see exactly how their club generated each outcome, and unlike any competitor, is available with any and every single swing throughout the entirety of E6 Connect.
In addition to building our E6 Connect software into each of our hardware offerings, we also sell our E6 Software directly to customers and provide our competitors with authorized resale options of our E6 Software. E6 Connect is available for PC and iOS Users. E6 Connect offers more than 100 world-class golf courses, four driving ranges, and numerous mini-games (as discussed above).
Plans for Future Operations
Expansion into Franchises
Moving forward, we plan to franchise the right to build and create indoor golf entertainment venues, including customized indoor golf hardware and software (i.e., golfing bays and golf range bays), and the option to purchase food and beverage. We currently plan to sell branded and non-branded merchandise at these future locations, and allow for large group events, coaching, data driven club sales, and “gamified” tournaments. We have also already built a proprietary bay booking and food and beverage ordering app for use from our future commercial and franchise operators.
We believe that one of the benefits of our indoor golf franchises will be the reduced space and infrastructure required to create such facilities, which we anticipate being as small as 5,000 square feet and as large as 32,000 square feet, and requiring fairly minimal infrastructure and buildouts other than our custom indoor golf hardware. This is as compared to stand-alone driving ranges or golf courses which cost significantly more to build and implement and require a substantial amount of infrastructure and land.
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We also anticipate that these future franchises will act as resellers with showrooms, where we will provide a commission to such resellers on all hardware and software sales that we hope will naturally develop as users are able to experience our hardware and software at such franchise. We believe that one of the elements of our planned franchise program that will have the most financial impact on the fitness of our franchises, is the concept of pre-sales, which require a facility to be profitable before even opening their doors. This program will require franchisees to sign up enough monthly recurring subscriber revenue to cover the monthly operating costs of the planned facilities for an agreed upon period of time. We believe that this program will allow a location to be profitable from its opening and help reduce failed franchises.
Virtual Golf Association
Our Virtual Golf Association, or VGA, is expected to leverage our many years of network power and online play in order to develop our plans to utilize the ‘metaverse’. Our VGA concept will enable people around the world to play golf with each other, against each other, and even against real pros’ historical scoring data on real golf courses. The VGA is intended to be the governing body for digital golf events hosted on the E6 Connect network. These events are planned to eventually include: VGA tour events, professional video game tournaments, intercollegiate simulator competitions, and American Junior Golf Association tournaments. We plan to use a model similar to the PGA Tour’s FedEx Cup for the VGA, with players accruing points for participation, as well as finishing “in the money” in each event. Top players would compete in a VGA tour championship at the end of each season. The basic structure to host VGA events is currently in place, with a variety of stroke play, long drive and closest-to-the-pin games available to the 350,000+ E6 Connect users. The next phase of development will be to implement the structure of a VGA “season” to track accrued points over multiple events and to add a comparative data dashboard for all users.
Data Analysis
Lastly, we hope to leverage our access to swing data, which we have been collecting through our E6 software since 2017, relating to personal baseline, improvement, and even longitudinal analysis. We believe that this wealth of information provides tremendous value for users, equipment manufacturers, and other industries by uncovering patterns, purchase intent and geographical insights, for some of the wealthiest most active populations around the world. We are currently in preliminary discussions with a third party to monetize this data; however no definitive agreements have been entered into to date.
Sales Overview
Our sales team operates out of our corporate headquarters in Centerville, Utah. Our internal team manages both individual clients, along with consulting with commercial facility endeavors through predefined territories. These territories divide the United States into segments, enabling each sales representative to develop a center of influence in each state in their territory. In addition, each sales representative has 1 or 2 national channel partners that they work with to cultivate relationships in order to drive their own leads and augment those leads coming from the marketing team. These partnerships represent key industries and markets that align cohesively with our product offerings. We hope to leverage these relationships to eventually help us achieve our future growth goals from international sales. These markets include: home construction, golf courses (pro shops and private courses), audio/video integrators, commercial real estate (offices and malls), government, schools and municipalities, major accounts (chain and warehouse stores) and national fun centers.
Additionally, we have a historical network of resellers spanning several regions including Europe, Australia, and Africa. We have recently signed a joint venture in Asia. We also have an established domestic network of resellers in both the United States and Canada, as well as a limited presence in Latin America. Our global network of resellers has been built over the past decade, and we consistently work to strengthen that network. We plan to use a portion of the funding received in the Business Combination to open a TruGolf Nevada office in Europe to service Europe, the Middle East, and Africa as we transition from simple resellers to exclusive distributor partners.
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Growth Strategy
TruGolf Nevada expects to use the transaction proceeds to fund the development and production of its software and hardware businesses, with sales expected to increase as its new generation software and hardware are launched. TruGolf Nevada also plans to use a portion of the proceeds to expand its manufacturing capabilities in Salt Lake City, Utah. Currently we focus approximately 80% of our marketing and sales efforts to generating leads through online Search Engine Optimization, Pay per Click advertising, Social media organic posts and paid ads, and Public Relations with earned media and celebrity endorsements. The funding will be utilized to augment all of these activities to increase our social media presence. This plan will be customized to each product and service within our product portfolio as business/team resources and growth continues.
Our primary objective is to drive engagement, advocacy, and sales of our product portfolio, with an initial focus on expanding our Apogee hardware rollout and reinforcing E6 Connect’s market penetration, while also launching our planned franchise offering, the VGA and working to monetize our swing and other data.
Our secondary marketing objective will be to increase overall awareness and reputation of our collective products and brand in each vertical to drive consumer preference and adoption.
Our primary market is males over age 34, with females, young adults and new golfers also representing growing segments of our target market.
We plan to use blogs and social media to bolster our brand image, create more domain authority, and drive more organic traffic through our websites. We also hope that blogs and social media posts will funnel new users into our digital retargeting campaigns and will be used as a source to supply new newsletter subscriptions.
We may also offer promotional giveaways to drive subscribers to our blog and social media offerings, grow and replenish email lists, increase website traffic, and drive brand awareness.
Plan of Operations
Our immediate plan consists of heavily promoting the launch of our new hardware device, Apogee, and aligning marketing, sales, manufacturing, installation and service to be ready to address customer demand and issues typical with a new product adoption and demand, especially during the holiday season. We also plan on optimizing our service and installation teams with some re-alignment and additional resources to manage the seasonal spike in workload. Additionally, we are also planning some heavy new marketing initiatives, including an all new website, introduction of new paid social media, and advance existing PR projects, and engaging new ambassadors, including Ezekiel Elliot and Brice Butler, both former Dallas Cowboys football players. We also plan to commence the rollout of a new Professional Employment Organization, Insperity, to help improve all of our HR and Benefits programs company-wide, including the critical role of recruiting, hiring and onboarding. Finally, we are preparing for a move to a larger building as we are aggressively looking for more space.
In addition, the capital raised from the Business Combination will kick off a transition to NetSuite, and some enhancements to SalesForce, Jira and Zoho to ensure operational efficiency and transparency for our new quarterly reporting process. While we continue to push the roll out of Apogee with expanded marketing budgets and sales channels, including internationally, we will also debut our newest software offering code named Apex. Initially this would include the opening of our EMEA offices, and the formalizing two more international distributors, and also opening our joint venture office in Asia. We plan to kick off a few new VGA online tournaments along with some new partners, onboarding of whom is in progress. We also plan to launch E6 Apex as another revolution in software, and announce the launch dates of the next version of Apogee, the Mini Trainer, and portable frames to support Apogee, as we sunset other older launch monitors, such as TruTrack and TruFlight.
Historically, the last quarter of the year is our biggest quarter of the year with holiday sales, and winter preparation for golfers winding down their outdoor season. As such, our marketing and sales efforts kick into high gear, as do our infrastructure costs in manufacturing, logistics, installation and customer service. Generally, the first quarter of each year continues to be a critical part of our busy season, as we continue to ramp up installations to meet previously sold demand and wrap up training of our distributors to enable more sales and collections.
TruGolf Nevada plans to leverage seasonality and take advantage of its busy seasons to commence planning and executing for future growth, including ramping up hiring efforts in product development or R&D. Our target is to hire additional new employees in marketing, project management, development, engineering and customer experience.
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The capital raised in the Business Combination will provide critical growth funding that should span at very least 18 months, given that we are currently profitable and plan to continue to reinvest. We do not anticipate needing to raise any more funds during these 18 months. However, if our growth exceeds our forecasts, we may need more capital to support Apogee, Apex, and possibly even a new mobile launch monitor already on our road map.
Competition
We have many competitors, including those that sell competitive hardware, and also in many cases resell, our E6 software. These include Trackman, FullSwing, Foresight, GolfZon, Uneekor, Garmin, FlightScope, SkyTrack, and Voice Caddie. These competitors are split into two categories; the first is indoor or fixed launch monitors, including Uneekor, FullSwing, FlightScope and Foresight, which are typically sold by resellers with turf, frames, screens and technology that are required for the launch monitor to even function. These complete solutions range from $10,000 to $50,000. The second category consists of indoor/outdoor or portable launch monitors that can be placed on the ground behind, or to the side of the golfer whether they are indoors or out on the driving range or course and are provided Trackman, FullSwing, FlightScope, Foresight, Garmin, and Voice Caddie. These devices on their own range from $600 to $20,000.
Of these competitors, Trackman, GolfZon, Uneekor and FullSwing have started to sell their own software as well. All of these providers charge an additional fee for various levels of software from $300 to $5,000 and most are annually recurring. There are also software-only competitors, such as GSPro, The Golf Club, and World Golf Tour that tend to sell subscriptions to software on an annual basis from $200 to $1,000.
Our Competitive Strengths
Compared with its competitors, TruGolf Nevada believes it has superior advantages in its technology. Its executive team has extensive experience in the software industry, including Microsoft and Access Software. E6 Connect has become the de facto golf simulator operating system and can be purchased to run on or with nearly every other launch monitor in the industry. As we have been creating and selling golf simulation software for nearly 40 years, this has been, and continues to be our greatest competitive advantage. This adaptability of E6 also means that our VGA has a significantly more powerful reach that any of our hardware competition. As we have been designing, building and selling our own hardware for over 20 years, we have developed an advantage in this space as well, especially when bundled with our software. The upgrade of our manufacturing facilities and new corporate offices will strengthen and optimize TruGolf Nevada’s production capacity of its golf simulator products. In addition, TruGolf Nevada has established strong relationships with top institutions and suppliers from all over the world.
Seasonality
Our operations are subject to some inherent seasonality, as our products enable golfers to golf indoors, when they can’t go outdoors due to inclement or unfavorable weather (e.g., in the winter in mid-west, northeast and northwest of the United States). As a result, we have historically seen higher usage and resulting increases in sales in the first quarter and fourth quarter of each year. Consequently, we have historically increased our marketing, sales and service in the third and fourth quarter, while increasing our production, logistics and installations in the first quarter. We expect these seasonal trends to continue going forward despite any previous internal delays due to the release of Apogee, or non-seasonal economic factors that may change from time to time. The reason we believe Q4 and Q1 seasonality to continue moving forward is due to the consistent cold or wet weather conditions that apply across North America, most of Europe, and Asia.
Government Regulation
We are subject to various U.S. federal and state and foreign laws and regulations. Many of these laws and regulations are still evolving and being tested in courts, and could be interpreted in manners that could harm our business. These regulations may involve user privacy, data protection and personal information, the privacy of consumer information and other laws regarding unfair and deceptive trade practices.
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U.S. federal and state laws and regulations, which in some cases can be enforced by private parties in addition to government entities, are constantly evolving and can be subject to significant change. As a result, the application, interpretation, and enforcement of these laws and regulations are often uncertain, particularly in the new and rapidly evolving industry in which we operate, and may be interpreted and applied inconsistently from country to country and inconsistently with our current policies and practices.
Our sales of golfing simulators are subject to regulation, including by the Federal Trade Commission and the Consumer Products Safety Commission (CPSC), as well as various other federal, state, local and foreign regulatory authorities. These laws and regulations principally relate to the proper labeling, advertising, marketing, manufacture, safety, shipment and disposal of our products. Because we import certain of the components that make up our products from abroad, we are also subject to import regulations and regulations relating to trade.
We, as are many other companies, are also subject to environmental laws, employment regulations, privacy and cybersecurity laws, environmental, health and human safety laws and regulations, laws and regulations related to licensing operations, the Foreign Corrupt Practices Act and other similar anti-bribery and anti-kickback laws. New laws and regulations or new interpretations of existing laws and regulations may also impact the business.
Historically, the costs of compliance with the rules and regulations described above have not had a material adverse effect on our operations and we believe that we are is in substantial compliance with all applicable laws. Due to the nature of our operations and the frequently changing nature of compliance regulation, we cannot predict with certainty that future material capital or operating expenditures will not be required in order to comply with applicable government regulations.
Intellectual Property
We regard our trademarks, service marks, copyrights, patents, domain names, trade dress, trade secrets, proprietary technologies, and similar intellectual property as critical to our success, and we rely on trademark, copyright, and patent law, trade-secret protection, and confidentiality and/or license agreements with our employees, customers, partners, and others to protect our proprietary rights. We have registered, or applied for the registration of, a number of U.S. domain names, trademarks, service marks, and copyrights. Additionally, we have filed U.S. patent applications covering certain of our proprietary technology.
Effective trademark, service mark, copyright, patent and trade secret protection may not be available in every country in which our products are made available. We have licensed in the past, and expect that we may license in the future, certain of our proprietary rights, such as trademarks or copyrighted material, to third parties. While we attempt to ensure that the quality of our brand is maintained by such licensees, there can be no assurance that such licensees will not take actions that might materially adversely affect the value of our proprietary rights or reputation, which could have a material adverse effect on our business, prospects, financial condition and results of operations. There can be no assurance that the steps taken by us to protect our proprietary rights will be adequate or that third parties will not infringe or misappropriate our copyrights, trademarks, patents, trade dress and similar proprietary rights. In addition, there can be no assurance that other parties will not assert infringement claims against us. We have been subject to claims and expect to be subject to legal proceedings and claims from time to time in the ordinary course of our business, including claims of alleged infringement of the trademarks and other intellectual property rights of third parties by us and our licensees. Such claims, even if not meritorious, could result in the expenditure of significant financial and managerial resources.
Human Resources
We currently employ approximately 78 employees of which 72 are full-time and six are part-time, many of which started working remotely due to COVID-19 and continue to work remotely. In addition to the marketing and sales outlined above, we complete all product development of both hardware and software in house, including some light manufacturing and assembly, simulator installations, customer service, and logistics.
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Facilities
We currently lease two buildings, one with offices for over half of our staff, and room for research & development, manufacturing, assembly, returns and repairs. We assemble all of our proprietary hardware in this facility in Centerville, Utah, and combine other parts from local and domestic suppliers that provide the frames and fabric for our bays, turf and foam, and other technology. The other has offices for the rest of our staff and the majority of our finished good inventory and logistics.
We lease 19,831 square feet of space from Boulder Properties LLC. Pursuant to a lease entered into in December 2022. The lease is for a period of one year with the ability to extend for an additional two years. The first year rent is $20,343 per month increasing to $24,615 per month in year three. We are also obligated to pay a proportionate share of the operating costs of the building, which approximate $3,000 per month. This lease also reflects add-on finish work. We have offices along with research and development and manufacturing and assembly in this facility.
In June 2023, we entered into a five-year, triple net lease for approximately 13,000 square feet. The facility is located in North Salt Lake, Utah. This location has offices for our customer support team and storage for our assembled simulators. The first-year lease payments are $10,457 per month with a three percent annual escalation in subsequent years.
Legal Proceedings
From time to time, we may become involved in legal proceedings or be subject to claims arising in the ordinary course of our business. We are not presently a party to any legal proceedings that in the opinion of our management, if determined adversely to us, would individually or taken together have a material adverse effect on our business, operating results, financial condition or cash flows.
Insurance
We have an insurance policy in effect that includes customary coverage and protection for professional liability, general liability, employee benefits and protection against claims including technology products, services and against cyber security. Our insurance policy also covers exposure to product liability claims, including both technology product claims related to customer data breaches, copyright infringement and/or misrepresentation and fraud and any claims made in connection with any physical products and services sold through our website.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion and analysis of our financial condition and results of operations with our audited financial statements for the year ended December 31, 2022, together with related notes thereto, and unaudited financial statements for the nine months ended September 30, 2023, together with related notes thereto, included in this prospectus. The discussion and the analysis should also be read together with the section entitled “Business” and the unaudited pro forma combined financial information as of and for the nine months ended September 30, 2023, and for the year ended December 31, 2022 included elsewhere in this prospectus. The following discussion contains forward-looking statements based upon current expectations that involve risks, uncertainties and assumptions. Our actual results may differ materially from those anticipated in these forward-looking statements as a result of various factors, including those set forth under the section titled “Risk factors” or in other parts of this document and our other filings with the SEC. Our historical results are not necessarily indicative of the results that may be expected for any period in the future. In this section, unless otherwise specified, the terms “we”, “our”, “us”, the “Company” and “TruGolf” refer to TrueGolf Nevada. All dollar amounts are expressed in thousands of United States dollars (“$”), unless otherwise indicated.
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Company Overview
Since 1983, TruGolf Nevada has been passionate about driving the golf industry with innovative, indoor golf solutions. We build products that capture the spirit of golf. Our mission is to help grow the game by making it more available, more approachable and more affordable, through technology – because we believe golf is for everyone.
Our team has built award-winning video games (including Links, a popular sports game for PC), , innovative hardware solutions, and an all-new e-sports platform to connect golfers around the world with TruGolf E6 Connect Software, our premier software engine. Since TruGolf Nevada’s beginning, we have continued to define and redefine what is possible with golf technology.
In addition to offering a variety of custom, professional, and portable golf simulators, TruGolf Nevada’s latest launch monitor, Apogee, was created to improve accuracy and to make using the launch monitor easier. Features of Apogee include: a unique Apogee Voice Assistant, a voice command system that allows users to navigate their TruGolf E6 Connect Software gameplay within rounds and practice sessions; Laser Launchpad, a laser indicator that shows users where to place the ball and when the system is ready to record a swing and Point-of-Impact (POI) slow-motion replay video.
Our suite of hardware offerings in the golf technology space is expansive, offering something for virtually everyone from gamers to beginners to professionals, and all consumers in between. Hardware offerings are sold through a global network of authorized resellers, retail outlets and direct-to-consumer through a dedicated TruGolf Nevada sales team. Our suite of hardware offerings range from entry level pricing at just under $400, to well over $100,000 for custom projects, creating a wide range of pricing options for nearly all consumers, and providing TruGolf Nevada with a competitive advantage in creating a wide consumer base as compared to its competitors (who often only focus in a narrow consumer price range).
TruGolf Nevada creates top golf technology software in the marketplace through its TruGolf E6 Connect Software. Importantly, TruGolf E6 Connect Software is designed not only for use with our suite of hardware offerings in the golf technology space, but also integrates with more than twenty-four third party golf technology hardware manufacturers, translating to a staggering market integration coverage equal to roughly 90% of golf technology hardware in the global market space, which allows peer-to-peer play across these golf technology hardware manufacturers, allowing for a unification of the golf technology space. TruGolf E6 Connect Software records, on average, over 725,000 indoor golf shots per day. TruGolf E6 Connect Software is both PC and iOS compatible and can be used both indoors and outdoors.
TruGolf Nevada has leveraged its unique position as one of the industry leaders in both hardware and software golf technology solutions to organize and found the Virtual Golf Association (VGA). The VGA is a gamified virtual economy that takes place inside the TruGolf E6 Connect Software. Users have a chance to earn points through play, practice, and more – providing a worldwide leaderboard of connected indoor golfers. Each shot users take rewards them with points. These points can be used to purchase in-game enhancements, or to enter virtual golf tournaments with real world prizes. The VGA is broken into three models:
| ● | Game Analysis – rewards TruGolf E6 Connect Software users who track and measure their game. Users can set specific goals (e.g., shots hit per month, speed and distance gains, dispersion reduction) and earn points for hitting milestones. At the end of each month, users can see how they compared against all other users utilizing the Game Analysis features. |
| ● | Connected Golf – rewards users for joining with their friends and playing golf online. Earn points for playing a new course or linking up to play nine holes with another player utilizing TruGolf E6 Connect Software. |
| ● | Virtual Golf Association Events – events are worldwide leaderboard format, flighted by handicap, where users play and compete to shoot the lowest score. These contests include stroke play, closest to the pin, match play, stableford, and more. Users earn points based on how they finish in their division. |
In totality, TruGolf Nevada’s business model is designed to be positioned as the hub of golf technology, with groundbreaking hardware technologies that we believe can become the industry standard and unifying the industry as a whole by serving as the leader of golf technology software solutions through its TruGolf E6 Connect Software.
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Recent Developments
Merger Agreement
In March 2023, we entered into the Initial Merger Agreement and on July 21, 2023, we entered into the Amended and Restated Merger Agreement. Under the Merger Agreement, a merger occurred on January 31, 2024 in which TruGolf Nevada became the surviving entity and became a public company to further advance its software business and increase manufacturing and sales of its golf simulator hardware technology in the United States and internationally. The Business Combination reflects an implied enterprise value for TruGolf Nevada shareholders as of March 31, 2023, of $80 million. Upon Closing, Deep Medicine was renamed “Trugolf Holdings, Inc.” and was listed on Nasdaq and its shares of Class A common stock trade under the trading symbol “TRUG”. TruGolf Nevada’s existing management team leads the merged company and holds approximately 85.9% of the voting power through the Class B shares that were issued upon the Closing and also control a majority of the board seats. The Business Combination was accounted as a reverse capitalization in accordance with U.S. GAAP.
Convertible Note Extension
In May 2022, we entered into two separate but identical $300,000 (total $600,000), 10.00% annual interest rate convertible notes payable with two individual consultants, Greentree and Ronin Equity Partners, Inc. (later assigned to High Creek Ventures, LLC) to cover services expenses including an initial public offering preparation and listing to NASDAQ or other national exchange, preparing a code of conduct and employment agreements, franchise development, and valuation increase through growth among other services. The terms of each note include a 15% original issue discount, 292 warrants, no prepayment penalty and a maturity date of February 25, 2023. In May 2023, we extended each note’s maturity to July 31, 2023 and increased each note’s borrowing limit to $375,000.
In July 2023, the notes were modified whereby the maturity date was extended by up to an additional eight months (February 29, 2024), to be in two extensions of four months each. Five days prior to the extension deadline the Company will issue 9,000 shares (total 18,000 shares if the Company elects the two extensions) of the Company’s stock. As of September 30, 2023, the balance outstanding was $668,235 and $81,765 was available to be borrowed.
In July 2023, the Company and Convertible Note Holders (refer to Note 10 – Convertible Notes in the annual audited financial statements found elsewhere in this proxy statement/prospectus) entered into Warrant Cancellation Agreements, whereby the warrants will be cancelled if the merger with DMAC takes place. If the merger is not closed, the warrants will remain outstanding. Also in July 2023, the convertible notes were modified whereby the maturity date was extended by up to an additional eight months (February 29, 2024), to be in two extensions of four months each. Five days prior to the extension deadline the Company will issue 9,000 shares (total 18,000 shares if the Company elects the two extensions) of the Company’s stock.
PIPE Financing
On November 2, 2023 and December 7, 2023, Deep Medicine Acquisition Corp. executed loan agreements with certain accredited investors (together, the “Prior Loan Agreements”) pursuant to which such investors agreed to loan Deep Medicine up to an aggregate $11,000,000 in exchange for the issuance of convertible notes and warrants. On February 2, 2024, the Company executed a securities purchase agreement (the “Purchase Agreement”) with each of the investors that executed the Prior Loan Agreements, which replaced, in their entirety, the Prior Loan Agreements, and with additional investors (together, the “PIPE Investors”). Pursuant to the terms and conditions of the Purchase Agreement, the PIPE Investors agreed to purchase from the Company (i) senior convertible notes in the aggregate principal amount of up to $15,500,000 (the “PIPE Convertible Notes”), (ii) Series A warrants to initially purchase 1,409,091 shares of the Company’s Class A common stock (the “Series A Warrants”); and (iii) Series B warrants to initially purchase 1,550,000 shares of the Company’s Class A common stock (the “Series B Warrants,” and collectively with the Series A Warrants, the “PIPE Warrants”) (the “PIPE Financing”).
The Purchase Agreement contemplates funding of the investment (the “Investment”) across multiple tranches. At the first closing (the “Initial Closing”) an aggregate principal amount of $4,650,000 of PIPE Convertible Notes will be issued upon the satisfaction of certain customary closing conditions in exchange for aggregate gross proceeds of $4,185,000, representing an original issue discount of 10%. On such date (the “Initial Closing Date”), the Company will also issue the PIPE Investors the Series A Warrants and the Series B Warrants.
Subject to satisfying the conditions discussed below, the Company has the right under the Purchase Agreement, but not the obligation, to require that the PIPE Investors purchase additional Notes at up to two additional closings. Upon notice at any time after the 2nd trading day following the Initial Closing Date, the Company may require that the PIPE Investors purchase an additional aggregate principal amount of $4,650,000 of PIPE Convertible Notes, in exchange for aggregate gross proceeds of $4,185,000, if (i) the Registration Statement (as described below) has been filed; and (ii) certain customary closing conditions are satisfied (the “First Mandatory Additional Closing”). Upon notice at any time after the 2nd trading day following the date that the First Mandatory Additional Closing is consummated, the Company may require that the PIPE Investors purchase an additional aggregate principal amount of $6,200,000 of PIPE Convertible Notes, in exchange for aggregate gross proceeds of $5,580,000, if (i) the shareholder approval is obtained (as described below); (ii) the Registration Statement has been declared effective by the SEC; and (iii) certain customary closing conditions are satisfied (the “Second Mandatory Additional Closing”).
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In addition, pursuant to the Purchase Agreement, each PIPE Investor has the right, but not the obligation, to require that, upon notice, the Company sell to such PIPE Investor at one or more additional closings such PIPE Investor’s pro rata share of up to a maximum aggregate principal amount of $10,850,000 in additional PIPE Convertible Notes (each such additional closing, an “Additional Optional Closing”); provided that, the principal amount of the additional PIPE Convertible Notes issued at each Additional Optional Closing must equal at least $250,000. If a PIPE Investor has not elected to effect an Additional Optional Closing on or prior to August 2, 2024, such PIPE Investor shall have no further right to effect an Additional Optional Closing under the Purchase Agreement.
Industry Update
In 2022, the industry experienced high inflationary pressures, which led to increased cost for most raw materials procured by TruGolf Nevada. TruGolf Nevada has slowly adjusted pricing on its current products, and priced future products, such as Apogee, with sufficient margin to remain competitively priced, while leaving room for up to 15% further increase in costs.
Ethos Asset Management INC Financing
In January 2023, TruGolf Nevada entered into a financing agreement with Ethos Asset Management INC (the “Ethos Asset Management loan”) in the principal amount of up to $10 million. Pursuant to the terms of the Ethos Asset Management loan, TruGolf Nevada may draw down financing proceeds equal to $833,333 each month beginning in April 2023, up to the $10 million amount. Interest associated with the Ethos Asset Management loan is fixed at 4% per annum and has a three-year grace period for principal and interest payments. Annual principal and interest payments will commence in 2026 and continue through 2034. As a condition to funding, we have provided Ethos Management with a $1,875,000 as collateral for the note.
Principal External Factors Affecting Our Operating Results
We believe that our performance and future success depend on many factors that present significant opportunities for us but also pose risks and challenges, including those discussed below and in the section entitled “Risk Factors”.
| ● | Market acceptance. The growth of our business depends on our ability to gain broader acceptance of our current products by continuing to make users aware of the significant benefits of our products to generate increased demand and frequency of use, and thus increase our sales. Our ability to grow our business will also depend on our ability to expand our customer base in existing or new target markets, including international markets. Although we have increased the number of users of TruGolf Nevada hardware and software product offerings and continue to grow our channels globally through established relationships and focused sales efforts, we cannot provide assurance that our efforts will continue to increase the use of our products. |
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| ● | Approval and timing of Business Combination. We must successfully obtain timely approvals (both regulatory as well as from stockholders of TruGolf Nevada and Deep Medicine) for the Business Combination currently being contemplated. For our sales to grow, particularly in 2023, we will also need to obtain such approvals and close the Business Combination on a timely basis in order to have cash on hand in order to execute our business model as presently underwritten. |
| ● | Sales force size and effectiveness. The rate at which we grow our sales force and expansion channels and the speed at which newly hired salespeople and sales channels become effective can impact our revenue growth and our costs incurred in anticipation of such growth. We intend to continue to make significant investments in our sales and marketing organization and channels by increasing the number of sales representatives and expanding our international programs to help facilitate further adoption of our products as well as broaden awareness of our products to new customers. We are slowly expanding into EMEA through a quickly growing network of distributors that will each slowly develop their respective territories, sales from EMEA are still below 5% of total sales. We have also signed a Joint Venture agreement with a partner in China to manage all distribution needs across Asia. We are not required to invest in any of these markets, and as such take a lower margin on products sold there, therefore we expect slowly growing impacts on top line revenue from these globalization efforts. |
| ● | Product and geographic mix; timing. Our financial results, including our gross margins, may fluctuate from period to period based on the timing of orders, fluctuations in foreign currency exchange rates and the number of available selling days in a particular period, which can be impacted by a number of factors, such as holidays or days of severe inclement weather in a particular geography, the mix of products sold and the geographic mix of where products are sold. |
| ● | Material adverse COVID-19 and Supply Chain Disruptions: The impacts to our business from COVID-19 have long since ceased to be a concern. Initial supply chain disruptions around our sourcing of various products from high speed cameras to turf slowed down our ability to deliver our simulators, and travel restrictions and risks associated with our team installing these simulators had some impact in 2020 and 2021, however not a single issue with any of our vendors or installers, including 3rd party installers has any current affect on our Operating Results. This includes chips and cameras used by automotive industry which have all been mitigated. These mitigation strategies created a reduction in speed to market of Apogee units, but this has been resolved and no further impact is anticipated from any of our suppliers, or their raw goods suppliers. |
Principal Components of Revenues, Costs and Expenses
Revenues
Our revenues come from the sale of TruGolf Nevada software and hardware, which products are sold through a global network of authorized resellers, retail outlets and direct-to-consumer through a dedicated TruGolf Nevada sales team.
Cost of Revenues
Cost of revenues consists primarily of costs that are directly related to the delivery of our TruGolf Nevada hardware and software products, excluding depreciation but including direct material, labor, manufacturing overhead, reserves for estimated warranty costs and charges to write-down the inventory carrying value when it exceeds the estimated net realizable value.
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Operating Expenses
Royalties
We have agreements with certain software golf hardware vendors who bundle our tracking and golf course software with their hardware. We pay them a royalty based on the number of units or subscriptions they sell. The royalty percentages typically range between 20% to 30%. The royalty agreements are for one year, with automatic renewal unless each party gives a thirty-day written notice of the intent to cancel the contract prior to the renewal date.
Salaries, Wages and Benefits
Salaries, wages and benefits are expenses earned by our employees in the executive, information technology, finance and accounting, human resources, administrative functions and outside contractors. Also included in salaries, wages and benefits are employer payroll taxes, health, dental and life insurance expenses.
Selling, General and Administrative
Sales and marketing expenses consist primarily of advertising, training events, brand building, product marketing activities and installation and shipping costs. We expect sales and marketing costs will continue to increase as we expand our international selling and marketing activities, hire additional personnel, and build brand awareness through advertising and training.
General and administrative expenses consist primarily of professional fees paid for legal, accounting, auditing, and consulting services, bad debt, licenses and association dues, facilities (including rent and utilities) bank and credit card processing fees and other expenses related to general and administrative activities.
We anticipate that our general and administrative expenses will continue to increase as we continue hiring to support our growth. We also anticipate that we will incur increased accounting, audit, legal, regulatory, compliance, and investor and public relations expenses associated with operating as a public registrant.
Other Expense
Interest Expense
Interest expense consists of interest expenses associated with issuing notes and balances outstanding under our debt obligations and the gross sales royalty payable, the amortization of debt issuance costs and original issue discounts associated with such borrowings.
Loss on Investment
During the year ended December 31, 2022, we wrote off our $100,000 equity investment in a small entity that was intended to help develop and sell our products.
Gain on Loan Extinguishment
In May 2020, we received a $735,000 loan under the Coronavirus Aid, Relief, and Economic Security Act Paycheck Protection Program. During the year ended December 31, 2021, the loan was forgiven.
Principal Cash Flows
We generate cash primarily from our operating activities and, historically, we have used cash flows from operating activities and available borrowings under certain notes payable as the primary sources of funds to purchase inventory and to fund working capital and capital expenditures, growth and expansion opportunities (see also “Liquidity and Capital Resources” below). The management of our working capital is closely tied to operating cash flows, as working capital can be impacted by, among other things, our accounts receivable activities, the level of inventories, which may increase or decrease in response to current and expected demand, and the size and timing of our trade accounts payable payment cycles.
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Critical Accounting Estimates
We prepare our financial statements in accordance with accounting principles generally accepted in the United States of America. The application of many accounting principles requires us to make assumptions, estimates and/or judgments that affect the reported amounts of assets, liabilities, revenues and expenses in our financial statements. We base our estimates and judgments on historical experience and other assumptions that we believe are reasonable under the circumstances. These assumptions, estimates and/or judgments, however, are often subjective and they and our actual results may change based on changing circumstances or changes in our analyses. If actual amounts are ultimately different from our estimates, the revisions are included in our results of operations for the period in which the actual amounts first become known. We believe the following critical accounting estimates could potentially produce materially different results if we were to change underlying assumptions, estimates and/or judgments. See also Note 2 to our audited annual financial statements included elsewhere in this prospectus for a summary of our significant accounting policies.
Accounts Receivable, net
We manage credit risk associated with our accounts receivables at the customer level.
We believe the concentration of credit risk, with respect to our receivables, is limited because our customer base is comprised of a number of geographically diverse customers. We manage credit risk through credit approvals and other monitoring procedures.
Our allowance is estimated using a loss rate model based on delinquency. The estimated loss rate is based on our historical experience with specific customers, our understanding of our current economic circumstances, reasonable and supportable forecasts, and our own judgment as to the likelihood of ultimate payment based upon available data. The actual rate of future credit losses, however, may not be similar to past experience. Our estimate of doubtful accounts could change based on changing circumstances, including changes in the economy or in the particular circumstances of individual customers. Accordingly, we may be required to increase or decrease our allowance for doubtful accounts.
Warrants
The fair value of the warrants is estimated on the date of issuance using the Black-Scholes option pricing model, which requires the input of subjective assumptions, including the expected term of the warrants, expected stock price volatility, and expected dividends. The actual estimates used can be found in Note 10 - Convertible Notes Payable in the annual audited financial statements found elsewhere in this prospectus. These estimates involve inherent uncertainties and the application of management’s judgment. Expected volatilities used in the valuation model are based on the average volatility of the comparable companies publicly traded on recognized stock exchanges. The risk-free rate for the expected term of the option is based on the United States Treasury yield curve in effect at the time of grant.
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Results of Operations
Comparisons of the Years ended December 31, 2022 and 2021
The following table sets forth certain condensed statement of operations data for the periods indicated in dollars. In addition, we note that the period-to-period may not be indicative of future performance.
| Year Ended December, 31 | Variation | |||||||||||||||
| 2022 | 2021 | $ | % | |||||||||||||
| Revenues, net | $ | 20,227,331 | $ | 21,245,846 | $ | (1,018,515 | ) | (4.79 | )% | |||||||
| Cost of revenues | 7,018,378 | 5,261,548 | 1,765,830 | 33.39 | % | |||||||||||
| Gross profit | 13,208,953 | 15,984,298 | (2,775,345 | ) | (17.36 | )% | ||||||||||
| Operating expenses | 12,476,571 | 9,674,910 | 2,801,661 | 28.96 | % | |||||||||||
| Income from operations | 732,382 | 6,309,388 | (5,577,006 | ) | (88.39 | )% | ||||||||||
| Net (loss) income | (956,841 | ) | 6,190,554 | (7,147,395 | ) | (115.46 | )% | |||||||||
| Net (loss) income per common share | $ | (84.62 | ) | $ | 547.45 | $ | (632.07 | ) | (115.46 | )% | ||||||
Revenues
Our revenues were $20,227,331 for the year ended December 31, 2022, compared to $21,245,846 for the year ended December 31, 2021, a decrease of $1,018,515 or 4.79%. The decrease in revenues was due primarily to a delay in launching the new Apogee device, and was further compounded by fears of a slowing economy, resulting in fewer and delayed simulator purchases primarily in the fourth quarter of 2022. Historically, Q4 has been the quarter with the highest volume of sales with Q1 following in terms of volume.
Cost of Revenues
Cost of revenues for the year ended December 31, 2022, increased $1,756,830 or 33.39% to $7,018,378 from $5,261,548 for the year ended December 31, 2021. The increase was due primarily to a $1,185,553 write down in inventory and increase in the cost of the part and labor to manufacture our simulators. In January 2022, we announced and previewed our Apogee launch monitor hardware prototype at the Professional Golf Association’s national convention. As we continued to develop the Apogee launch monitor during 2022, sales of our legacy simulators declined because customers were waiting for the new simulators. We discounted our prices for the legacy products. Accordingly, we wrote down our excess legacy inventory to net realizable value (approximately $450,000), wrote off obsolete inventory (approximately $250,000) and adjusted for shrinkage based on the annual inventory observation (approximately $250,000)
Operating Expenses
Our operating expenses were $12,476,571 for the year ended December 31, 2022, compared to $9,674,910 for the year ended December 31, 2021, an increase of $2,801,661 or 28.96%. The increase for the year ended December 31, 2022, compared to December 31, 2021, was due primarily to:
| i. | An increase of $32,798 in royalties expenses was due to the addition of new distributors. |
| ii. | A $1,628,472 increase in salaries, wages and benefits expenses. During 2022, we hired additional employees to support the development, manufacturing and sales of the new products we anticipated releasing in the fourth quarter of 2022. |
| iii. | A $1,140,390 increase in selling, general and administrative expenses. Professional fees increased $733,036 due to hiring third-party professional services, including accounting, audit, tax, consulting and legal services to execute and support our public company readiness initiative. New product development costs increased $257,860 as result of costs associated with developing the new simulators. Sales and marketing expenses increased $149,494 due to general business development activities. |
Interest Expense
Our interest expense was $1,589,223 for the year ended December 31, 2022, compared to $854,534 for the year ended December 31, 2021, an increase of $734,689 or 85,98%. The increase for the year ended December 31, 2022, compared to December 31, 2021, was due primarily to the issuance of convertible notes payable in May 2022. For the convertible notes payable for year ended December 31, 2022, we recorded $240,020 of original issue discount amortization, $445,032 for the warrants’ excess fair value over the pro-rata allocation of loan proceeds and $192,857 in interest expenses based on an estimated 70% discounted conversion price to fair value of the common stock. Interest expense for all other debt, including the gross sales royalty payable, decreased $143,220 as a result of reductions in loan balances outstanding and lower trailing 12 month revenues for the gross sales royalty payable.
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Loss on Investment
During the year ended December 31, 2022, we wrote off our $100,000 equity investment in a small entity that was intended to help develop and sell our products.
Gain on Loan Extinguishment
In May 2020, we received a $735,000 loan under the Coronavirus Aid, Relief, and Economic Security Act Paycheck Protection Program. During the year ended December 31, 2021, the loan was forgiven.
Comparisons of the Nine Months ended September 30, 2023 and 2022
The following table sets forth certain condensed statement of operations data for the periods indicated in dollars. In addition, we note that the period-to-period may not be indicative of future performance.
Nine Months Ended September 30, | Variation | |||||||||||||||
| 2023 | 2022 | $ | % | |||||||||||||
| Revenues, net | $ | 13,788,700 | $ | 13,661,776 | $ | 126,924 | 0.93 | % | ||||||||
| Cost of revenues | 4,531,429 | 4,308,779 | (222,650 | ) | 5.17 | % | ||||||||||
| Gross profit | 9,257,271 | 9,352,997 | (95,726 | ) | (1.02 | )% | ||||||||||
| Operating expenses | 16,074,927 | 8,699,998 | 7,374,929 | 84.77 | % | |||||||||||
| (Loss) income from operations | (6,817,656 | ) | 652,999 | (7,470,655 | ) | (1,144.05 | )% | |||||||||
| Net (loss) income | (8,011,889 | ) | 113,901 | (8,125,790 | ) | (7,134.08 | )% | |||||||||
| Net (loss) income per common share | $ | (660.56 | ) | $ | 10.07 | $ | (670.63 | ) | (6,657.95 | )% | ||||||
| Comprehensive (loss) income | $ | (8,076,010 | ) | $ | 113,901 | $ | (8,189,911 | ) | (7,190.38 | )% | ||||||
Revenues
Our revenues were $13,788,700 for the nine months ended September 30, 2023, compared to $13,661,776 for the nine months ended September 30, 2022, an increase of $126,924 or 0.93%. The increase in revenues was due primarily to a $209,339 increase in simulator sales, a $229,629 decrease in subscription software sales and a $147,210 decrease in sales discounts.
For the nine months ended September 30, 2023, our simulator sales increased by $209,339 compared to the nine months ended September 30, 2022, due primarily to our shipping the new Apogee launch monitors. For the three months ended March 31, 2023, our simulator sales were $524,000 below our simulator sales for the three months ended March 31, 2022. This was due to the delay in launching the new Apogee launch monitors. However, for the six months ended September 30, 2023, simulator sales increased $734,000 compared to the same period six-month period in 2022; a result of marketing and shipping the Apogee launch monitor.
As discussed elsewhere in the prospectus, E6 CONNECT software is sold with or by our hardware partners. (See Partner Service Software Revenues in the Certain Unaudited Projected Financial Information section of this prospectus). Our hardware partners bundle the E6 Connect software license with their golf simulator hardware sales. For the first six months ended June 30, 2023, our software subscription sales were $4.1 million compared to $4.1 million for the six months ended June 30, 2022. However, during the three months ended September 30, 2023, some of our hardware partners experienced a decline in their hardware sales which resulted in the Company experiencing $230,000 less in software subscription sales compared to the three months ended September 30, 2022. Historically, the fourth quarter is our strongest subscription sales months. Subsequent to September 2023, we have experienced an increase in our software subscription sales due to the Black Friday sales and the beginning of the holiday sales.
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We note that the simulator/screen golf market is growing according to the National Golf Foundation (www.ngf.org/simulator-golf-sees-real-surge), “An estimated 6.2 million Americans hit golf balls with a club in a golf simulator within the past year, a total that surged 73% compared to pre-pandemic levels. Golf’s continued evolution includes many new forms of the game and simulated golf is a part of it.” Based on the growing golf simulator industry trend, we continue to believe there is a strong demand for our new hardware and software products. Based on the growing industry golf simulator trend noted above, we continue to believe there is a strong demand for our new hardware and software products.
Cost of Revenues
Cost of revenues for the nine months ended September 30, 2023, increased $222,650 or 5.17% to $4,531,429 from $4,308,779 for the nine months ended September 30, 2022. The increase was primarily to the increases in in hardware component costs and shipping costs associated with the increased simulator sales.
Operating Expenses
Our operating expenses were $16,074,927 for nine months ended September 30, 2023, compared to $8,699,998 for nine months ended September 30, 2022, an increase of $7,374,929 or 84.77%. The increase for the nine months ended September 30, 2023, compared to nine months ended June 30, 2022, was due primarily to:
| i. | A $187,029 increase in royalties expense. The royalty expense increase was a result of increasing the royalty percentages paid and adding a new hardware vendor who sells our software on their simulators. |
| ii. | A $1,111,666 increase in salaries, wages and benefits expenses. Salaries and wages increased $951,921 due to the hiring of additional employees to support the development, manufacturing and sales of the new products we anticipated releasing in early 2022. Contract labor increased $159,745 due to contracting with outside developers to work on coding for the new products. |
| iii. | A $6,076,234 increase in selling, general and administrative expenses. In January 2023, the Board of Directors authorized the issuance of 821 shares of Class A Common Stock, valued at $4,493,333, to the consultants for services performed as outlined in the services agreement. See Note 10 – Convertible Notes Payable in the annual audited financial statements found elsewhere in this prospectus. The common shares were issued at fair value and expensed as compensation for services performed. |
Sales and marketing expenses increased $486,766 due to costs associated with business development and customer service efforts. Bad debt expenses increased $665,920 as a result our regular review, in line with our policy, to estimate the loss rate based on our historical experience with specific customers, our understanding of our current economic circumstances, reasonable and supportable forecasts, and our own judgment. Professional fees increased $141,245 due to hiring third-party professional services, including software development, accounting, audit, tax, and legal services to execute and support our public company readiness initiative. All other selling, general and administrative expenses (i.e., bank service fees, insurance, sales tax, facilities among others) increased $288,970 in the normal course of operating the business.
Interest Income
Our interest income was $71,542 for the nine months ended September 30, 2023. There was no interest income for the nine months ended September 30, 2022. The interest income is from the short-term investments with Morgan Stanley.
Interest Expense
Our interest expense was $1,265,775 for the nine months ended September 30, 2023, compared to $539,038 for the none months ended September 30, 2022, an increase of $726,677 or 134.79%. The interest expense (including the amortization of the original issue discount) for the convertible notes was $222,985, interest for the Ethos Management loan was $43,258 while the interest for the for the line of credit margin loan account was $70,396. These are all new loans in 2023. Interest related to the other notes payable and the gross sales royalty payable increased $390,038 due primarily to the interest on the dividend notes payable commencing January 1, 2023.
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Liquidity and Capital Resources
We primarily obtain cash to fund our operations through the reinvestment of free cash flows generated from our business operations, issuance of common stock to private friend and family investors, issuance of term loans, issuance of notes payable and convertible debt instruments, and royalty structures.
As of December 31, 2022, we had $9,656,266 in cash and cash equivalents and current working capital of $6,278,408 compared to $10,708,677 cash and cash equivalents and current working capital of $9,117,263 as of December 31, 2021.
Cash Flow from Operating Activities
For the year ended December 31, 2022, the net cash provided by our operating activities was $791,879. Our reported net loss when adjusted for non-cash income and expense items, such as depreciation and amortization expenses for property and equipment, right -of-use asset, and original issue discount and fair value of warrants in excess of fair value of debt and loss on equity investment, provided positive cash flows of $54,441. These cash flows from operating activities were positively impacted primarily by a $210,335 decrease in prepaid expenses, a $786,084 increase in accounts payable and a $419,239 increase in accrued and other liabilities. Partially offsetting these positive cash flows were a $244,355 increase in accounts receivable, a $265,615 increase in inventories and a $168,110 decrease in lease liability.
The increase in accounts receivable is due primarily to overall decline in 2022 sales and the timing of collections related to the holiday sales. The inventory increase is primarily due to increase of hardware related to the Apogee launch monitors. Prepaid expenses decreased due to the timing of required deposits for the 2023 trade show and deposits to suppliers for purchase orders. Accrued and other liabilities increased, due to an increase in deposits from customers for orders. Customer deposits represent a 50% deposit collected from customers prior to manufacturing their simulator. The deposit is applied to the customer’s final invoice. In addition, accrued and other liabilities increased primarily due to higher accrued payroll, benefits and credit card balances. Lease liability decreased due to the lease payments made.
Cash Flows from Investing Activities
For the year ended December 31, 2022, the cash used by our investing activities was $41,430 for the purchase of property and equipment. We purchased computers, desk, etc. for new employees.
Cash Flows from Financing Activities
For the year ended December 31, 2022, the cash used by our financing activities was $1,802,8660. Dividends paid were $1,965,706. Proceeds from the issuance of the convertible notes were $575,357 and the repayments of loan notes payable and related party notes payable were $412,511.
The Company has incurred net losses and negative operating cash flows for the year ended December 31, 2022. As the Company continues to incur losses, successful transition to profitability is dependent on achieving a level of revenues adequate to support the Company’s cost structure. Unless and until this occurs, the Company may need to raise capital or issue debt to support ongoing operations.
As of September 30, 2023, we had $5,474,341 in cash and cash equivalents and current working capital of $2,984,131, compared to $9,656,266 cash and cash equivalents and current working capital of $6,278,408 as of December 31, 2022.
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Cash Flow from Operating Activities
For the nine months ended September 30, 2023, the net cash used by our operating activities was $6,121,139. Our reported net loss when adjusted for non-cash income and expense items, such as depreciation and amortization expenses for property and equipment, right-of-use asset, and original issue discount and bad debt expense, provided negative cash flows of $2,406,158. These cash flows from operating activities were negatively impacted primarily by a $1,057,286 increase in accounts receivable, a $1,289,741 increase in inventory, a $2,026,082 increase in other assets, a $70,508 decrease in customer deposits, a $290,484 decrease in accrued and other liabilities and a $194,953 decrease in lease liability. Partially offsetting these negative cash flows were a $76,690 decrease in prepaid expenses and other assets, a $837,049 increase in accounts payable, and a $397,517 increase in accrued interest.
The increase in accounts receivable is due in large part to customers holding off their final payments of simulators with our new Apogee launch monitor as we continue to remotely optimize the firmware of the device, these are still within the normal net 45 – 60 day repayment terms. The inventory increased is a result of ramping up purchasing parts and assemblies for the new Apogee product that needed to be purchased in advance as part of our plan to mitigate supply chain issues. Other assets increased due to a security deposit for the Ethos management loan and the security deposit on the lease in North Salt Lake, Utah. Customer deposits represent a 50 percent deposit collected from customers prior to manufacturing their simulator. The deposit is applied to the customer’s final invoice. The decrease in accrued and other liabilities is a result of lower accrued payroll, benefits and credit card balances. Lease liability decreased due to the lease payments made.
Cash Flows from Investing Activities
For the nine months ended September 30, 2023, the cash used by our investing activities was $2,508,749. During the nine months ended September 30, 2023, we purchased $89,024 in property and equipment and $2,149,725 in short-term investments. We purchased office furniture and computers for new hires. We purchased corporate bonds and government treasuries through our Morgan Stanley brokerage account.
Cash Flows from Financing Activities
For the nine months ended September 30, 2023, the cash provided by our financing activities was $4,447,963. The proceeds from the line of credit margin account were $1,945,397, proceeds from the convertible notes were $185,500 and the proceeds from the Ethos Management loan payable were $2,499,999. Repayments of the dividend notes payable and related party notes payable were $107,837.
During the nine months ended September 30, 2023, we borrowed $1,1,945,397 on our Morgan Stanely margin loan account. Proceeds of 1,911,110 were used to fund a deposit on the Ethos Management loan and $34,287 was for accrued interest. We drew $2,499,999 (or the first three of ten available tranches) on the Ethos Management loan. Principal and interest payments are deferred until April 2026. We also borrowed an additional $185,500 on the convertible notes. The proceeds from the Ethos Management loan and convertible note borrowings were used to support our ongoing operations.
The Company has incurred net losses and negative operating cash flows for the year ended December 31, 2022. As the Company continues to incur losses, successful transition to profitability is dependent on achieving a level of revenues adequate to support the Company’s cost structure. Unless and until this occurs, the Company may need to raise capital or issue debt to support ongoing operations. As of September 30, 2023, the Company had $16,895,379 in total debt and gross sales royalty payable and $2,984,131 in positive working capital.
In July 2023, we extended each convertible note’s (See Note 10 – Convertible Notes Payable in the annual audited financial statements found elsewhere in this prospectus) maturity to February 29, 2024 and increased each note’s borrowing limit to $375,000. As of September 30, 2023, the total balance outstanding on the convertible notes was $668,235 and $81,765 was available to be borrowed.
Pursuant to a term sheet issued by TruGolf Nevada in final form on June 13, 2023, a financing of up to $11 million will be made available (the “Financing Term Sheet”). The term sheet was subsequently issued by Deep Medicine rather than TruGolf Nevada. On November 2, 2023 and December 7, 2023, Deep Medicine executed loan agreements for an aggregate of $11.0 million (with Greentree, Finuvia, L&H, Inc., JAK Opportunities VI, LLC and Li Holding, Inc.).
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In January 2023, TruGolf Nevada entered into the Ethos Asset Management INC Financing (“Ethos” or “Ethos Management loan”) in the principal amount of $10 million. Pursuant to the terms of the Ethos Management loan, TruGolf Nevada may draw down financing proceeds equal to $833,333 each month beginning in April 2023, up to the US $10 million amount. Interest associated with the Ethos Management loan is fixed at 4% per annum and has a three-year grace period for principal and interest payments. Annual principal and interest payments will commence in 2026 and continue through 2034. As a condition to funding, we placed a $1,850,000 security deposit as collateral for the note. As of June 30, 2023, the balance outstanding was $1,666,666 and $8,333,334 was available to be borrowed.
We are seeking to complete the Business Combination with Deep Medicine. In the event we do not complete the Business Combination, we may seek additional funding through private equity financings, debt financings or other capital sources, including collaborations with other companies or other strategic transactions. We may not be able to obtain financing on acceptable terms, or at all. The terms of any financing may adversely affect the holdings or the rights of our shareholders. Although management continues to pursue these plans subject to compliance with its obligations regarding seeking alternative transactions in the Business Combination, there is no assurance that we will be successful in obtaining funding on terms acceptable to the Company to fund continuing operations, if at all.
The Company’s financial statements are prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of obligations in the normal course of business. Continuation as a going concern is dependent upon continued operations of the Company, which in turn is dependent upon the Company’s ability to, meets its financial requirements, raise additional capital, and the success of its future operations.
Under the rules of ASC Subtopic 205-40 “Presentation of Financial Statements-Going Concern” (“ASC 205-40”), the Company is required to evaluate whether conditions and/or events raise substantial doubt about its ability to meet its future financial obligations as they become due within one year after the date that these interim financial statements are issued or available to be issued. This evaluation takes into account a Company’s current available cash and projected cash needs over the one-year evaluation period but may not consider things beyond its control.
In 2022 and prior years, the Company has reported operating income and positive operating cash flows. However, for the first nine months of 2023, the Company has experienced operating losses due primarily to expensing consulting fees and issuing common stock associated with the services provided by third-party consultants related to the propose DMAC merger (See Note 9 – Stockholders Equity), used cash from operations, and relied on the capital raised from related parties and institutional financing to continue ongoing operations. We may or may not be able to close the DMAQ merger, raise additional capital or obtain additional institutional financing due to future economic conditions. In particular, the lending criteria are currently tightening in the United States and we have experienced a decline in demand for our products, which are in the category of “lifestyle purchases”. These factors, when considered in the aggregate, raise substantial doubt about the Company’s ability to continue as a going concern within one year of the date these interim financial statements are issued. In response to these conditions, the Company’s management has prepared the following financing plan, which we believe mitigates the going concern uncertainty:
We project that we will be able to meet our debt service and other cash obligations for at least the next 12 months. Our significant projected cash commitments relate primarily to debt service and operating expenses. We anticipate the cash required to service our debt to be between $900,000 to $2,300,000. The $2,300,000 assumes (1) the convertible notes (See Note 10 – Convertible Notes Payable in the annual audited financial statements found elsewhere in this prospectus) are retired by cash payment (approximately $750,000) rather than conversion into our stock at maturity and (2) the note payable – ARJ Trust (See Note 8 – Related Party Notes Payable in the annual audited financial statements found elsewhere in this prospectus) are retired at maturity. These notes are controlled by the Company’s Chief Executive Officer and have historically been extended (13 times) in one-year increments. The Morgan Stanley margin loan is 100 percent secured with the short-term investments held in the brokerage account. The Morgan Stanley margin loan would be retired through liquidation of the investments. At September 30, 2023, the Company had an additional $311,000 in availability on the Morgan Stanely margin loan.
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Our significant projected cash requirements related primarily to operating expenses for the next 12 months include $7,000,000 to $8,000,000 for employees’ salaries, wages and benefits, $950,000 to $1,200,000 for installation and customers service, and $1,000,000 to $1,200,000 for development of software and hardware. For the first nine months ending September 30, 2023, we spent an average of six percent of total sales on our marketing and business development efforts. For the next twelve months (through June 2024), we anticipate spending seven to nine percent of total projected sales, or $2,600,000 to $7,750,000 on marketing and business development. Upon closing the merger, we anticipate our marketing and business development spend to be closer to fifteen percent and as high as twenty percent. Due to the timing of our sales and cash receipts, we project to generate sufficient recurring cash flow to cover our selling, general and administrative expenses each period. No assurances can be given that the results anticipated by our projections will occur. With respect to long-term liquidity requirements, approximately $10,500,000 to $11,500,000 of our debt matures in years 2025 to 2033.
In the event the projected results do not occur, we may have to significantly delay, scale back or discontinue the development and commercialization of one or more product offerings and other strategic initiatives. Additionally, we would reduce the number of new hires planned in 2024, and implement cost reduction measures such as a reduction in headcount, reducing the planned sales and marketing expense among other cost reduction measures. We may also issue common stock to potential investors to increase our liquidity.
Management believes the plan outlined above provides an opportunity for the Company to continue as a going concern.
In the event the projected results do not occur, we may have to significantly delay, scale back or discontinue the development and commercialization of one or more product offerings and other strategic initiatives. Additionally, we would reduce the number of new hires planned in 2024, and implement cost reduction measures such as a reduction in headcount, reducing the planned sales and marketing expense among other cost reduction measures.
Business Updates
Update to Agreement for Expansion of Franchise Model
Pursuant to an agreement entered into between TruGolf Nevada and Ronin Equity Partners, Inc (“Ronin”) in April 2022, TruGolf Nevada selected Ronin to work with on an exclusive basis to underwrite expansion into TruGolf Nevada franchise locations (“TruGolf Franchises”) beginning in North America.
In June 2023, we have formalized an initial offering for TruGolf Franchises, and have made substantial progress on identifying two sites to serve as inaugural locations for TruGolf Franchises, with the intention of opening these TruGolf franchises by end of first quarter in 2024.
Formalizing an initial offering for TruGolf Franchises, combined with underwriting to the opening of the first two locations, represents a significant milestone in development of a business line we believe to be highly lucrative and accretive to organic growth.
Letter of Intent– Joint Venture for Asian Expansion
In March 2023, we entered into a letter of intent (the “Asian JV LOI”) with China based Guangzhou Boli Business Management Ltd to establish a joint venture entity designed to market and sell TruGolf Nevada products and services into the Asian territories of China, Korea, Japan, Taiwan, Cambodia, Thailand, and Laos. Pursuant to the terms of the Asian JV LOI, TruGolf Nevada will own a 29% equity stake in the joint venture entity. Pursuant to the terms of the Asian JV LOI, Guangzhou Boli Business Management Ltd will invest (along with two other related entities) $710,000 to capitalize the joint venture entity, establish a showroom in Asia, and purchase TruGolf Nevada simulators. Pursuant to the terms of the Asian JV LOI, once the joint venture is established, and unless waived in writing, TruGolf Nevada will be required to market and sell its products and services in the aforementioned territories exclusively through the joint venture.
We believe entering into the Asian JV LOI is a milestone in the development of international business operations, particularly in Asia, which we regard as potentially an incredibly strong market for expansion. Further, the structure contemplated by the Asian JV LOI brings additional credence and capability to the ability to execute expansion of our business model in Asia by virtue of Guangzhou Boli Business Management LTD, who has the backing of significant players in Asia.
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Sky Trak Agreement
In April 2023, we entered into a letter of intent with GOLFTEC Intellectual Property, LLC (the “GOLFTEC LOI”) pursuant to which GOLFTEC will purchase licenses of TruGolf E6 Connect Software from TruGolf Nevada. The GOLFTEC LOI calls for the final drafting and execution of a definitive agreement that will call for GOLFTEC Intellectual Property, LLC, to purchase approximately $1,150,000 of TruGolf E6 Connect Software from TruGolf Nevada over a two-year period and make TruGolf E6 Connect Software available to millions of customers held globally by GOLFTEC Intellectual Property, LLC.
Amendment to Agreement with Full Swing Golf Inc.
In November 2022, we entered into an amendment with Full Swing Golf Inc. that modifies previous arrangements between TruGolf Nevada and Full Swing Golf Inc. related to sales of TruGolf E6 Connect Software to Full Swing Golf Inc. (the “Full Swing Golf Inc Amendment”). The Full Swing Golf Inc Amendment provides that Full Swing Golf Inc. will purchase a minimum of $500,000 worth of TruGolf E6 Connect Software in 2022, a minimum of $300,000 worth of TruGolf E6 Connect Software in 2023, and a minimum of $300,000 worth of TruGolf E6 Connect Software in 2024. Additionally, as part of the Full Swing Golf Inc Amendment, TruGolf E6 Connect Software will be offered to all new and existing customers of Full Swing Golf, Inc, potentially representing thousands of customers globally.
Software Development Updates
TruGolf Nevada is currently finalizing the release of new software tools designed for the TruGolf E6 Connect Software, which we intend on being available in the third quarter of 2023. We believe that these new software tools will substantially improve the user experience and functionality of the software suite, making a best-in-class offering that much better.
Hardware Development Updates
In the fourth quarter of 2022, and the first half of 2023, we had encountered significant delays in achieving an industry leading full 9-Axis ball measurement with an unmarked ball within our Apogee product. The combination of cameras that had been limited by supply chain issues, and their relative shutter speeds and image resolution fidelity had created additional complexities for which we didn’t originally account. We had been evaluating our new product against the competition and have been satisfied with the comparisons, and now feel that we are ready to fully market this product with confidence that it is up to our ordinary course of business levels of quality assuredness. These delays in Apogee ball measurement, and camera supply chain issues have now been addressed. We have been pleased with the continued progress and market feedback in our limited release candidates from the features that truly deliver on our vision of making golf easier for everyone, and especially encouraged by the interest in our voice command, laser indicator, and auto calibration options.
Material Cash Requirements for Known Contractual and Other Obligations
We have entered into operating leases for our corporate headquarters and a warehouse in Centerville, Utah. The leases have varying terms expiring between 2023 and 2025. In June 2023, we entered into a new sixty-month, triple net lease for additional warehouse space in North Salt Lake, Utah. The lease payments range between $10,457 and $11,770. See Notes 15 and 17, Commitments and Contingencies and Subsequent Events, to our financial statements included elsewhere in this prospectus for additional details related to our operating leases.
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On November 2, 2023 and December 7, 2023, Deep Medicine Acquisition Corp. executed loan agreements with certain accredited investors (together, the “Prior Loan Agreements”) pursuant to which such investors agreed to loan Deep Medicine up to an aggregate $11,000,000 in exchange for the issuance of convertible notes and warrants. On February 2, 2024, the Company executed a securities purchase agreement (the “Purchase Agreement”) with each of the investors that executed the Prior Loan Agreements, which replaced, in their entirety, the Prior Loan Agreements, and with additional investors (together, the “PIPE Investors”). Pursuant to the terms and conditions of the Purchase Agreement, the PIPE Investors agreed to purchase from the Company (i) senior convertible notes in the aggregate principal amount of up to $15,500,000 (the “PIPE Convertible Notes”), (ii) Series A warrants to initially purchase 1,409,091 shares of the Company’s Class A common stock (the “Series A Warrants”); and (iii) Series B warrants to initially purchase 1,550,000 shares of the Company’s Class A common stock (the “Series B Warrants,” and collectively with the Series A Warrants, the “PIPE Warrants”) (the “PIPE Financing”).
We enter into agreements in the normal course of business with various vendors, which are generally cancellable upon notice. Payments due upon cancellation consist only of payments for services provided or expenses incurred, including non-cancellable obligations of service providers, up to the date of cancellation.
Recent Accounting Pronouncements
Management has evaluated all recent accounting pronouncements issued by the Financial Accounting Standards Board and determined that none of the pronouncements will have a material impact on our financial statements. We will continue to monitor the issuance of any new accounting pronouncements and assess their potential impact on the financial statements in future periods.
Emerging Growth Company
We are an emerging growth company, as defined in the JOBS Act. Under the JOBS Act, emerging growth companies can delay adopting new or revised accounting standards until such time as those standards apply to private companies. We have elected to use this extended transition period for complying with new or revised accounting standards that have different effective dates for public and private companies until the earlier of the date that (i) we are no longer an emerging growth company or (ii) we affirmatively and irrevocably opt out of the extended transition period provided in the JOBS Act. As a result, these financial statements may not be comparable to companies that comply with new or revised accounting pronouncements as of public company effective dates. We may choose to early adopt any new or revised accounting standards whenever such early adoption is permitted for private companies.
Quantitative and Qualitative Disclosures About Market Risk
Interest Rate Risk
We had cash and cash equivalents totaling $5,474,341 as of September 30, Cash equivalents were invested primarily in low interest checking or savings accounts. Our investment policy is focused on the preservation of capital and supporting our liquidity needs. Under our investment policy, we will only invest in highly rated securities, issued by the U.S. government or liquid money market funds. We do not invest in financial instruments for trading or speculative purposes, nor do we use leveraged financial instruments. We may utilize external investment managers who adhere to the guidelines of our investment policy. A hypothetical 10% change in interest rates would not have a material impact on the value of our cash, cash equivalents, net loss or cash flows.
We do not have significant exposure to interest rate risk as only our lines of credit are variable rate. As of September 30, 2023, the variable rate lines of credit had a balance outstanding of $2,491,022 compared to the total fixed rate debt outstanding of $13,404,357. Thus, management believes a hypothetical 10% change in interest rates would not have a material impact on annualized interest expenses.
We maintain our cash in bank deposit accounts which, at times, may exceed any applicable Federal Deposit Insurance Corporation (“FDIC”) insurance limits. As of September 30, 2023, the amount in excess of federally insured limits was $4,272,734.
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Cybersecurity Risk
We have completed an assessment of our a suite of controls including technology hardware and software solutions, regular testing of the resiliency of our systems including penetration and disaster recovery testing as well as regular training sessions on cybersecurity risks and mitigation strategies, and have engaged a 3rd party to bring us up to industry best practices. We have established an incident response plan and team to take steps it determines are appropriate to contain, mitigate and remediate a cybersecurity incident and to respond to the associated business, legal and reputational risks. There is no assurance that these efforts will fully mitigate cybersecurity risk and mitigation efforts are not an assurance that no cybersecurity incidents will occur, and have had no such breaches of security.
Internal Control Over Financial Reporting
TruGolf had been a private company with limited accounting personnel to adequately execute its accounting processes and limited supervisory resources with which to address its internal control over financial reporting. In connection with the audit of TruGolf’s financial statements as of and for the year ended December 31, 2022, TruGolf identified material weaknesses in its internal control over financial reporting. A material weakness is a deficiency or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of TruGolf’s annual or interim financial statements will not be prevented or detected on a timely basis.
TruGolf did not design and has not maintained an effective control environment as required under the rules and regulations of the SEC. Specifically, (i) management does not have appropriate IT general control in place over change management, user access, cybersecurity, and reviews of service organizations, (ii) management does not have suitable COSO entity level controls in place, including reviews of the financial statements, and certain entity level controls were not performed by management, and (iii) pervasive transactional and account level reconciliations and analyses are not performed, or not performed with sufficient detail to prevent or detect a material weakness. These issues related to managements controls over the review of complex significant transactions, complex debt and equity issuance transactions, income and sales taxes, & revenue recognition.
TruGolf has taken certain steps, such as recruiting additional personnel, implementing a new enterprise resource planning system, in addition to utilizing third-party consultants and specialists, to supplement its internal resources, to enhance its internal control environment and plans to take additional steps to remediate the material weaknesses. Although TruGolf plans to complete this remediation process as quickly as possible, it cannot at this time estimate how long it will take. TruGolf cannot assure you that the measures it has taken to date and may take in the future, will be sufficient to remediate the control deficiencies that led to its material weaknesses in internal control over financial reporting or that it will prevent or avoid potential future material weaknesses.
Our current planned remediation efforts include hiring a full-time Chief Financial Officer, corporate controller, and two additional staff accountants. The projected annual cost is between $350,000 and $450,000. We are currently in the process of converting our current accounting system to NetSuite, which will allow for improved segregation of duties. The conversion cost is anticipated to be approximately $125,000 to $150,000.
In accordance with the provisions of the JOBS Act and the Sarbanes-Oxley Act, we and our independent registered public accounting firm were not required to, and did not, perform an evaluation of our internal control over financial reporting as of December 31, 2022, and 2021 nor any subsequent period. Material weaknesses may still exist when we report on the effectiveness of our internal control over financial reporting as required under Section 404(a) of the Sarbanes-Oxley Act after the completion of the Business Combination.
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MANAGEMENT
The following sets forth certain information concerning the persons who serve as directors and executive officers of TruGolf.
| Name | Age | Position | ||
| Executive Officers | ||||
| Christopher (Chris) Jones | 67 | Chief Executive Officer, President and Chairman, Director | ||
| Lindsay Jones (no relation to Christopher Jones) | 61 | Chief Financial Officer | ||
| Brenner Adams | 52 | Chief Growth Officer | ||
| Nathan E. Larsen | 50 | Chief Experience Officer | ||
| Shaun B. Limbers | 44 | Executive Vice President, Director | ||
| Steven R. Johnson | 70 | Chief Hardware Officer | ||
| Non-Employee Directors | ||||
| Humphrey P. Polanen | 74 | Director | ||
| Riley Russell | 52 | Independent Director | ||
| AJ Redmer | 62 | Independent Director |
Executive Officers
Christopher (Chris) Jones is the Chief Executive Officer and Director at TruGolf . He founded Access Software, one of the earliest leaders in gaming and software in 1982. As a founder of Access Software, Mr. Jones helped pioneer 3D simulation. In addition to creating the LINKSTM golf franchise–a highly awarded PC sports title–Access Software gained critical acclaim for the Tex Murphy adventure game series, and its early use of 3D engines and high-quality full motion video. After Access Software was acquired by Microsoft Corp. in 1999, Mr. Jones served as Project Manager for several XBOX titles through July 2004. In 2007, Mr. Jones became Chief Executive Officer of TruGolf, and has presided over TruGolf’s growth as a leader in the virtual golf industry ever since. Mr. Jones obtained a Bachelor’s Degree in Marketing and Finance from the University of Utah in Salt Lake City, Utah. The Deep Medicine Board believes that Mr. Jones is well qualified to serve on the TruGolf Board due to his background in video game development, his numerous years of management experience and the fact that he has been the driving force behind the Company’s operations since the Company’s formation.
Lindsay Jones (no relation to Christopher Jones) is the Chief Financial Officer at TruGolf . He is a Certified Public Accountant with extensive experience developing and driving robust financial strategies, functions, and operations in diverse and rapidly evolving environments. Prior to joining the TruGolf Board, he has served as the Chief Financial Officer and Executive Vice President of Xevant, Inc. from July 2020 until August 2022. He was also a consultant and outsourced Chief Financial Officer for NOWCFO from March 2019 until July 2021 and was the founder and Chief Financial Officer of Cascata Packaging from April 2014 until October 2018. He founded and scaled two startup companies (a bank $500 million in total assets and a food grade manufacturer serving national companies such as NuSkin, PepsiCo and Tree Top), owned his own business, created business models and presented to investors, bankers, and regulators; and closed over $500 million in public and private equity, public debt and institutional debt. He serves on the board of directors for two startup companies in Utah. Mr. Jones received a Bachelor of Science and a Master of Accounting degrees from Brigham Young University.
Brenner Adams is the Chief Growth Officer at TruGolf . He is has served as the Chief Growth Officer of TruGolf since January 2022. Mr. Adams also provides consulting services from time to time through Octant Consulting of which he is the principal owner. From August 2021 to January 2022, Mr. Adams served as the Chief Information Officer of The Food Truck League. From April 2019 to August 2021, Mr. Adams served as Chief Innovation Officer for Med USA, a medical billing company. From January 2015 to December 2020, Mr. Adams served as an Adjunct Professor at the University of Utah. From February 2012 to April 2019, Mr. Adams served as Chief Executive Officer of The LINK Group, a point-of-sale software company. Mr. Adam’s prior work experience also includes serving as Global Brand Director for Burton Snowboards (2006-2008) and Director of Business Development for Xbox / Take Two (2001 to 2006). Mr. Adams serves on the Board of Directors of a number of private companies. Mr. Adams received a Bachelor of Science degree in Economics and a Master of Business Administration from the University of Utah.
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Nathan E. Larsen is the Chief Experience Officer at TruGolf . He has served as the Chief Experience Officer of TruGolf since October 2021. From January 2019 to October 2021, Mr. Larsen provided freelance brand and marketing consultation services to various companies in the medical, forestry and construction industries. From 2006 to 2019, Mr. Larsen served as President and Chief Operating Officer of Equity Building Solutions Inc., a resident development and construction company. From 2004 to 2006, Mr. Larsen served as Creative Director and Director of Business Development for Take Two Interactive / Indie Built Studio, a software development company which developed games for Xbox and the PlayStation 2. From 1999 to 2004, Mr. Larsen served as Creative Director for Microsoft Corp., in its Xbox Games development division. From 1991 to 1999, Mr. Larsen served as an artist, animator and art director for Access Software. Prior to that, he served as an artist and animator on five PC games published by Sierra On Line. Mr. Larsen is a member of the Salt Lake Home Builders Association, Utah Valley Home Builders Association and the Park City Area Home Builders Association.
Shaun B. Limbers is the Executive Vice President and Director at TruGolf . He has served as Clinical Assistant Professor of Entrepreneurship and Director of the Institute for Family Business at Baylor University in Waco, Texas. Since May 2019, Mr. Limbers has served as an Adjunct Faculty Member at Baylor University and Associate Director for Baylor University’s entrepreneurship center. Since March 2010, Mr. Limbers has served as the Chief Executive Officer and founder of McIntyre Investment, LLC (“McIntyre”), an investment banking firm specializing in middle market transactions including primary and secondary investments, merger and acquisition advisory services and real estate. Mr. Limbers is a registered representative with McIntyre’s SEC registered broker-dealer entity, McIntyre Capital Partners, LLC, which is a member of the Financial Industry Regulatory Authority (FINRA) and the Securities Investor Protection Corporation (SIPC). He holds a Series 7 license as well as a Series 63 license with FINRA. Prior to forming McIntyre, Mr. Limbers served as Vice President of Christina Development corporation, a real estate investment company, from 2003 to 2010. Mr. Limbers obtained a Bachelor of Science Degree in Business Administration from Pepperdine University and an MBA from the University of Notre Dame. The Deep Medicine Board believes that Mr. Limbers is well qualified to serve on the TruGolf Board due to his significant experience with private investments, transaction structuring, joint ventures, investment banking and fund raising.
Steven Johnson is the Chief Hardware Officer of TruGolf . Mr. Johnson has been an employee in a variety of positions with TruGolf since May 1999. He began as a Product Development Manager and became the Executive Vice President in 2007. Prior to joining TruGolf, Mr. Johnson was a Sales Manager of Cassette Productions, LLC, an audio, video and software company. Mr. Johnson attended the University of Utah.
Non-Employee Directors
Humphrey P. Polanen serves as an independent director at TruGolf . He is the Chief Executive Officer and managing member of NeoVista Ventures LLC, a healthcare focused holding company. Mr. Polanen was the director of Heritage Commerce Corp (Nasdaq: HTBK), a bank holding company offering a wide array of business and personal banking services, from 1994 to April 2016. Since 1999, Mr. Polanen has been actively involved as an investor and director in various venture capital backed companies in the technology industry, and has served as a director of various private equity funds. He was the Managing Director of Internet Venture Partners BV, an investment firm, from 2000 to 2004. Prior to joining Internet Ventures, he served in various executive positions with Sun Microsystems and Tandem Computers. Mr. Polanen was a director (and former Chairman of the Board) of St. Bernard Software, a publicly traded Internet security company. Mr. Polanen has been a director of TechFlow Inc., an information technology service company, since June 2016. Mr. Polanen practiced corporate law for over ten years at the beginning of his career. He has a Bachelor of Arts degree from Hamilton College and a Juris Doctor degree from Harvard University. The Deep Medicine Board believes that Mr. Polanen is well qualified to serve on the TruGolf Board due to his experience as an executive, investor, director and business manager with advanced technology companies and private equity firms.
AJ Redmer serves as an independent director at TruGolf . He is the Chief Executive Officer and Managing Director of Redmer Productions LLC. Mr. Redmer founded Redmersoft in 1986 which operated within Lucasfilm Ltd.’s Skywalker Ranch. He helped evolve Redmersoft into Maxis Software Corporation before taking on senior management responsibilities at Lucasfilm Ltd. AJ subsequently went on to senior leadership positions at Spectrum Holobyte, Nintendo and Microsoft where he played a key role in the development of the original Xbox and the Xbox 360. He has also served as the chief executive officer of WeMade Entertainment USA, Inc. He has over 25 years of experience building video game franchises in the entertainment industry. Mr. Redmer has designed and/or overseen the development of some of the most well-known franchises in the gaming industry including; SimCity, Star Wars, Indiana Jones, Tetris, Ridge Racer, Pokémon, Flight Simulator, Age of Empires, Project Gotham Racing and Forza Motorsport. The Deep Medicine Board believes that Mr. Redmer is well qualified to serve on the TruGolf Board due to his executive experience in the franchising side of the gaming and entertainment industries.
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Riley Russell serves as an independent director at TruGolf . Mr. Russell has over 30 years-experience working in the games and interactive entertainment industry. He is currently the Executive Vice President and Studio head at Kojima Productions US. Prior to joining Kojima, Mr. Russell has served as an Executive Vice President with Penumbra, Inc. and as the Chief Legal Officer at Sony Interactive Entertainment LLC until 2021. At Sony, Mr. Russell was responsible for Sony’s interactive division that produces the Sony PlayStation. He has global experience in the video games, entertainment and technology sector. Mr. Russell is also an active board member of the Video Game Bar Association and the XR Association. The Deep Medicine Board believes that Mr. Russell is well qualified to serve on the TruGolf Board due to his experience as an executive in the video game and entertainment and technology sector.
Family Relationships
There are no family relationships among any of TruGolf’s directors or executive officers.
Arrangements for Election of Directors and Members of Management
There are no arrangements or understandings with major shareholders or others pursuant to which any of our executive officers or directors are selected.
Controlled Company
Christopher Jones, together with Steven R. Johnson and David Ashby, hold approximately 85.9% of the voting power of TruGolf’s voting securities for the election of directors. As a result, TruGolf expects to be a controlled company within the meaning of the Nasdaq rules, and, as a result, may qualify for exemptions from certain corporate governance requirements.
Under Nasdaq rules, a controlled company is exempt from certain corporate governance requirements, including:
| ● | the requirement that a majority of the board of directors consist of independent directors; |
| ● | the requirement that a listed company have a nominating and governance committee that is composed of independent directors with a written charter addressing the committee’s purpose and responsibilities; |
| ● | the requirement that a listed company have a compensation committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities; and |
| ● | the requirement for an annual performance evaluation of the nominating and governance committee and compensation committee. |
Controlled companies must comply with the exchange’s other corporate governance standards. These include having and audit committee and the special meetings of independent or non-management directors.
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Agreements with management of TruGolf
TruGolf currently maintains an employment agreement with its Chief Executive Officer.
Agreement with Chief Executive Officer
Employment Arrangement Documentation Currently in Place with Mr. Christopher Jones
We hold employment arrangement documentation with Mr. Christopher Jones dated effective as of January 1, 2022, pursuant to which we employ Mr. Christopher Jones as our Chief Executive Officer on an at-will basis. Pursuant to his employee arrangement documentation, Mr. Christopher Jones is eligible to receive an annual base salary of $160,000 and performance based annual bonus, along with equity incentive plans.
Mr. Christopher Jones is also eligible for certain compensation based on future changes of control (50% or greater) as well as compensation based upon termination of his employment or resignation.
Memorandums of understanding with Brenner Adams
A memorandum of understanding entered into with Brenner Adams dated June 1, 2022, effective December 13, 2022, pursuant to which we employ Mr. Adams as chief growth officer, with an initial term of 12 months from the effective date. Pursuant to such memorandum of understanding, Mr. Adams is eligible to receive a monthly salary of $12,000 and a $1,500 a month as quarterly bonus for achieving quarterly targets. Pursuant to the memorandum of understanding, Mr. Adams is eligible to receive 1% of fully diluted stock (which was formally granted and issued by the Board of Directors on October 1, 2023), and rights to participate in future employee stock option programs commensurate with the title.
Corporate Governance
Director Independence
TruGolf will adhere to the rules of Nasdaq in determining whether a director is independent. The board of directors of TruGolf has consulted, and will consult, with its counsel to ensure that the board’s determinations are consistent with those rules and all relevant securities and other laws and regulations regarding the independence of directors. The Nasdaq listing standards define an “independent director” as a person, other than an executive officer of a company or any other individual having a relationship which, in the opinion of the issuer’s board of directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director.
Committees of the Board of Directors
The TruGolf Board has established an audit committee, a compensation committee and a nominating and corporate governance committee. The composition and responsibilities of each of the committees of the board of directors are described below. Members serve on these committees until their resignation or until otherwise determined by the TruGolf Board. The TruGolf Board may establish other committees as it deems necessary or appropriate from time to time.
Audit Committee
TruGolf has established an audit committee. The audit committee consists of Humphrey Polanen, AJ Redmer and Riley Russell. Mr. Polanen, who is independent under the applicable Nasdaq listing standards, is the chairman of the audit committee. The audit committee has a written charter. The purpose of the audit committee is, among other things, to appoint, retain, set compensation of, and supervise TruGolf’s independent accountants, review the results and scope of the audit and other accounting related services and review TruGolf’s accounting practices and systems of internal accounting and disclosure controls.
Financial Experts on Audit Committee
The audit committee is composed exclusively of “independent directors,” as defined for audit committee members under the Nasdaq listing standards and the rules and regulations of the SEC, who are “financially literate,” as defined under Nasdaq’s listing standards. Nasdaq’s listing standards define “financially literate” as being able to read and understand fundamental financial statements, including a company’s balance sheet, income statement and cash flow statement. In addition, TruGolf has certified to Nasdaq that the committee has, and will continue to have, at least one member who has past employment experience in finance or accounting, requisite professional certification in accounting, or other comparable experience or background that results in the individual’s financial sophistication.
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Mr. Polanen serves as a financial expert on the audit committee.
Compensation Committee
The board of directors of TruGolf has established a compensation committee. The compensation committee consists of Humphrey Polanen, AJ Redmer and Riley Russell. Mr. Redmer serves as the chair of the compensation committee. The compensation committee has a written charter. The purpose of the compensation committee is to review and approve compensation paid to TruGolf’s officers and directors and to administer TruGolf’s incentive compensation plans, including authority to make and modify awards under such plans.
The compensation committee assists the Board in determining its responsibilities in relation to remuneration, including, amongst other matters, making recommendations to the Board on the Combined Company’s policy on executive compensation, determining the individual remuneration and benefits package of each of the executive directors and recommending and monitoring the remuneration of senior management below Board level.
Nominating and Corporate Governance Committee
TruGolf’s nominating committee consists of Humphrey Polanen, AJ Redmer and Riley Russell. Mr. Russell serves as chair of the nominating and corporate governance committee. The nominating and governance committee is responsible, among other things, for:
| ● | selecting the director slate (or recommend the slate to the full board of directors); |
| ● | overseeing board governance; |
| ● | developing board meeting procedures; and |
| ● | evaluating the effectiveness of the board. |
Board and Committee oversight of cybersecurity risks
TruGolf will propose to mitigate and prevent the various risks, including cybersecurity risks and those other risks described under the section titled “Risk Factors.” The TruGolf Board will play an active role in monitoring. prevention, timely detection, and mitigation of cybersecurity risks and the effects of any such incidents on its operations. TruGolf intends to implement policies requiring each of its board committees to provide regular reports, and for the management to provide reports on material cybersecurity risks and the degree of TruGolf’s exposure to those risks to the TruGolf Board, including from its chief technology officer. While the TruGolf Board will oversee the cybersecurity risk management, the management will be responsible for day-to-day risk management processes. The intent is for the TruGolf management to work with third party service providers to maintain appropriate controls, which the TruGolf leadership believes would be the most effective approach for addressing the cybersecurity risks.
Code of Ethics
TruGolf has a code of ethics that applies to all of its executive officers, directors and employees, including its principal executive officer, principal financial officer, principal accounting officer or controller or persons performing similar functions. The code of ethics is available on TruGolf’s website, https://ir.trugolf.com. In addition, TruGolf posts on its website all disclosures that are required by law or the listing standards of Nasdaq concerning any amendments to, or waivers from, any provision of the code. The reference to the TruGolf website address does not constitute incorporation by reference of the information contained at or available through TruGolf’s website, and you should not consider it to be a part of this prospectus.
Compensation Committee Interlocks and Insider Participation
None of the members of TruGolf’s compensation committee has ever been an executive officer or employee of TruGolf. None of TruGolf’s executive officers currently serve, or has served during the last completed fiscal year, on the compensation committee or board of directors of any other entity that has one or more executive officers that serves as a member of the TruGolf Board or compensation committee.
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Non-Employee Director Compensation
TruGolf Board intends to adopt a non-employee director compensation policy designed to align compensation with TruGolf’s business objectives and the creation of shareholder value, while enabling TruGolf to attract and retain directors to contribute to TruGolf’s long-term success.
Cash Compensation
The Compensation Committee of TruGolf may develop an executive compensation program that is designed to align compensation with TruGolf’s business objectives and the creation of stockholder value, while enabling TruGolf to attract, retain, incentivize and reward individuals who contribute to the long-term success of the company, including through cash compensation.
Equity Compensation
The Compensation Committee of TruGolf may develop an executive compensation program that is designed to align compensation with TruGolf’s business objectives and the creation of stockholder value, while enabling TruGolf to attract, retain, incentivize and reward individuals who contribute to the long-term success of the company, including through equity compensation.
Limitation on Liability and Indemnification of Directors and Officers
TruGolf has purchased directors’ and officers’ liability insurance and has enter into indemnification agreements with each of its directors and executive officers. The indemnification agreements and TruGolf’s amended and restated certificate of incorporation and amended and restated bylaws will require it to indemnify the directors and officers to the fullest extent permitted by Delaware law.
EXECUTIVE AND DIRECTOR COMPENSATION
Summary Compensation Table
The following table sets forth information regarding the total compensation awarded to and earned by TruGolf’s named executive officers for services rendered in all capacities for the years ended December 31, 2022 and 2023.
| Name and Principal Position | Year | Salary ($) | Bonus ($) | Stock Awards ($) | Option Awards ($) | Nonequity incentive plan compensation ($) | Nonqualified deferred compensation earnings ($) | All other compensation ($) | Total ($) | |||||||||||||||||||||||||||
| Christopher Jones | 2022 | 160,000 | 160,000 | |||||||||||||||||||||||||||||||||
| Chief Executive Officer | 2023 | 150,000 | 153,000 | |||||||||||||||||||||||||||||||||
| Brenner Adams | 2022 | 160,000 | 160,000 | |||||||||||||||||||||||||||||||||
| Chief Growth Officer | 2023 | 168,000 | 690,000 | 858,000 | ||||||||||||||||||||||||||||||||
| Nathan Larson | 2022 | 160,000 | 160,000 | |||||||||||||||||||||||||||||||||
| Chief Experience Officer | 2023 | 163,000 | 690,000 | 853,000 | ||||||||||||||||||||||||||||||||
| Lindsay Jones | 2022 | - | - | |||||||||||||||||||||||||||||||||
Chief Financial Officer | 2023 | 24,000 | 24,000 | |||||||||||||||||||||||||||||||||
Employment Agreements
TruGolf currently maintains an employment agreement with its Chief Executive Officer.
Agreement with Chief Executive Officer
Employment Arrangement Documentation Currently in Place with Mr. Christopher Jones
We hold employment arrangement documentation with Mr. Jones dated effective as of January 1, 2022, pursuant to which we employ Mr. Jones as our Chief Executive Officer on an at-will basis. Pursuant to his employee arrangement documentation, Mr. Jones is eligible to receive an annual base salary of $160,000 and performance based annual bonus, along with equity incentive plans.
Mr. Jones is also eligible for certain compensation based on future changes of control (50% or greater) as well as compensation based upon termination of his employment or resignation.
Memorandums of understanding with Brenner Adams
A memorandum of understanding entered into with Brenner Adams dated June 1, 2022, effective December 13, 2022, pursuant to which we employ Mr. Adams as chief growth officer, with an initial term of 12 months from the effective date. Pursuant to such memorandum of understanding, Mr. Adams is eligible to receive a monthly salary of $12,000 and a $1,500 a month as quarterly bonus for achieving quarterly targets. Pursuant to the memorandum of understanding, Mr. Adams is eligible to receive 1% of fully diluted stock (which was formally granted and issued by the Board of Directors on October 1, 2023), and rights to participate in future employee stock option programs commensurate with the title.
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Outstanding Equity Awards at Fiscal Year-End
TruGolf has no outstanding options to its named executive officers as of December 31, 2023.
2024 Equity Incentive Plan
TruGolf Board adopted the 2024 Equity Incentive Plan on January 31, 2024 in order to facilitate the grant of equity awards to attract, retain and incentivize employees (including the named executive officers), independent contractors and directors of the Combined Company and its affiliates, which is essential to the Combined Company’s long term success.
Director Compensation
Other than the names executive officers that received compensation for services rendered in all capacities for the years ended December 31, 2022 and 2023, no other directors on the TruGolf Board were paid any compensation.
BENEFICIAL OWNERSHIP OF SECURITIES
The following table sets forth beneficial ownership of the Company’s Common Stock as of February 13, 2024 by:
| ● | each person known to be the beneficial owner of more than 5% of the outstanding Common Stock of the Company; | |
| ● | each of the Company’s executive officers and directors; and | |
| ● | all of the Company’s current executive officers and directors as a group. |
Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security. Under those rules, beneficial ownership includes securities that the individual or entity has the right to acquire, such as through the exercise of warrants or stock options or the vesting of restricted stock units, within 60 days of February 13, 2024. Shares subject to warrants or options that are currently exercisable or exercisable within 60 days of February 13, 2024 or subject to restricted stock units that vest within 60 days of February 13, 2024 are considered outstanding and beneficially owned by the person holding such warrants, options, or restricted stock units for the purpose of computing the percentage ownership of that person but are not treated as outstanding for the purpose of computing the percentage ownership of any other person.
Except as noted by footnote, and subject to community property laws where applicable, based on the information provided to the Company, the persons and entities named in the table below have sole voting and investment power with respect to all shares shown as beneficially owned by them. Unless otherwise indicated, the business address of each beneficial owner listed in the table below is c/o Trugolf Holdings, Inc., 60 North 1400 West Centerville, Utah 84014.
The beneficial ownership of our Class A Common Stock is based on 11,538,252 shares of Class A Common Stock issued and outstanding as of February 13, 2024, which number excludes the shares of Class A Common Stock issuable upon exercise of the Warrants. Unless otherwise indicated, we believe that all persons named in the table have sole voting and investment power with respect to all of the shares shown to be beneficially owned by them.
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| Name and Address of Beneficial Owner | Number of shares of Common Stock | % of Common Stock* | % of Total Voting Power* | |||||||||
| Directors and executive officers | ||||||||||||
| Christopher Jones (2) | 2,792,065 | 21.1 | % | 43.0 | % | |||||||
| Lindsay Jones | 15,000 | * | * | |||||||||
| Brenner Adams | 141,832 | 1.1 | % | * | ||||||||
| Nathan E. Larson | 206,832 | 1.6 | % | * | ||||||||
| B. Shaun Limbers | 293,443 | 2.2 | % | * | ||||||||
| Steven R. Johnson | 1,353,134 | 10.2 | % | 20.9 | % | |||||||
| Humphrey P. Polanen | 125,000 | 1.0 | % | * | ||||||||
| Riley Russell | 0 | * | * | |||||||||
| AJ Redmer | 0 | * | * | |||||||||
| All directors and executive officers as a group (8 individuals) | 4,802,306 | 36.2 | % | 65.1 | % | |||||||
| Other 5% beneficial owners | ||||||||||||
| David Ashby (2) | 1,428,205 | 10.8 | % | 22.0 | % | |||||||
| Steven R. Johnson (3) | 1,353,134 | 10.2 | % | 20.9 | % | |||||||
| Christopher Jones (4) | 2,792,065 | 21.1 | % | 43.0 | % | |||||||
| Bright Vision Sponsor LLC (1) | 2,492,566 | 18.8 | % | 4.6 | % | |||||||
| * | Indicates beneficial ownership of less than 1%. |
| (1) | Mr. Ke Li served as the managing member of the sponsor. Mr. Li disclaims beneficial ownership of these securities. Accounts for the transfer of a maximum aggregate of 185,179 Deep Medicine Class A Shares pursuant to the Non-Redemption Agreements. |
| (2) | Includes 439,952 shares of Class B Common Stock, which are entitled to 25 votes per share and are convertible into shares of Class A Common Stock on a one-for-one basis. |
| (3) | Includes 416,826 shares of Class B Common Stock, which are entitled to 25 votes per share and are convertible into shares of Class A Common Stock on a one-for-one basis. |
| (4) | Includes 860,082 shares of Class B Common Stock, which are entitled to 25 votes per share and are convertible into shares of Class A Common Stock on a one-for-one basis. |
SELLING SECURITYHOLDERS
This prospectus relates to:
| ● | the resale of up to 4,246,702 shares of Class A Common Stock, consisting of: (i) 3,162,500 shares of Class A Common Stock held by the founders; (ii) 280,000 shares of Class A Common Stock issued to the directors and officers of the Company; (iii) 519,500 shares of Class A common Stock issued under the Private Units; (iv) 20,000 shares of Class A Common Stock issued to Ellenoff Grossman & Schole LLP; (v) 212,752 shares of Class A common Stock issued to the Representative; and (v) 51,950 shares of Class A Common Stock issuable upon the conversion of the rights under the Private Units; and | |
| ● | the issuance and resale of up to 51,385,867 shares of Class A Common Stock, consisting of: (i) up to 40,185,185 Note Shares; (ii) up to 2,818,182 Series A Warrant Shares; (iii) up to 7,750,000 Series B Warrant Shares; and (iv) up to 632,500 Representative Warrant Shares. |
The Selling Securityholders may from time to time offer and sell any or all of the shares of Class A Common Stock set forth below pursuant to this prospectus and any accompanying prospectus supplement. When we refer to the “Selling Securityholders” in this prospectus, we mean the persons listed in the table below, the holders of shares of Class A Common Stock reserved for issuance upon the exercise of warrants covered by this prospectus, and the pledgees, donees, transferees, assignees, successors, designees, and others who later come to hold any Selling Securityholder’s interest in the Common Stock, other than through a public sale.
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Given the current market price of the Company’s Common Stock, certain of the Selling Securityholders who paid less for their shares than such current market price will receive a higher rate of return on any such sales than the public securityholders who purchased Common Stock in the SPAC IPO or any Selling Securityholder who paid more for their shares than the current market price.
The table below lists the Selling Securityholders and other information regarding the beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the shares of Class A Common Stock held by each of the Selling Securityholders. The second column lists the number of shares of Class A Common Stock beneficially owned by the Selling Securityholders, based on their respective ownership of shares of Class A Common Stock, notes and warrants, as of February 13, 2024, assuming conversion of the notes and exercise of the warrants held by each such Selling Securityholders on that date but taking account of any limitations on conversion and exercise set forth therein.
The third column lists the shares of Class A Common Stock being offered by this prospectus by the Selling Securityholders and does not take in account any limitations on (i) conversion of the notes set forth therein or (ii) exercise of the warrants set forth therein.
In accordance with the terms of a registration rights agreement with the holders of the notes and the warrants, this prospectus generally covers the resale of 200% of the sum of (i) the maximum number of shares of Class A Common Stock issued or issuable pursuant to the Notes, including payment of interest on the notes through the fifth anniversary of the date of issuance thereof, and (ii) the maximum number of shares of Class A Common Stock issued or issuable upon exercise of the Warrants, in each case, determined as if the outstanding Notes and Additional Notes issuable pursuant to the Purchase Agreement (including interest on the notes through the fifth anniversary of the date of issuance thereof) and Warrants were converted or exercised (as the case may be) in full (without regard to any limitations on conversion or exercise contained therein solely for the purpose of such calculation, but including any adjustment for the deemed issuance of additional notes) at an alternate conversion price or exercise price (as the case may be) calculated as of the trading day immediately preceding the date this registration statement was initially filed with the SEC. Because the conversion price and alternate conversion price of the Notes and the exercise price of the Warrants may be adjusted, the number of shares that will actually be issued may be more or less 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 Securityholders pursuant to this prospectus.
Under the terms of the notes and the warrants, a Selling Securityholder may not convert the Notes or exercise the Warrants to the extent (but only to the extent) such selling stockholder or any of its affiliates would beneficially own a number of shares of our Class A Common Stock which would exceed 4.99% (the “Maximum Percentage”) of the outstanding shares of the Company. The number of shares in the second column reflects these limitations. The Selling Securityholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
| Name of Selling Securityholder | Shares Beneficially Owned Prior to Offering(1) | Maximum Number of Shares to be Sold(2) | Shares Beneficially Owned After Offering(3) | |||||||||
| Number | Number | |||||||||||
| SandTrap Opportunities LLC(4) | 606,000(5) | 31,355,876 | 0 | |||||||||
| Greentree Financial Group, Inc. (6) | 606,000 | 24,636,759 | 216,067 | |||||||||
| Finuvia, LLC (7) | 606,000 | 2,239,706 | 0 | |||||||||
| L&H Inc.(8) | 606,000 | 6,719,117 | 0 | |||||||||
| Li Holdings Inc.(9) | 606,000 | 4,479,411 | 0 | |||||||||
| I-Bankers | 438,252 | 337,052 | 101,200 | |||||||||
| Bright Vision Sponsor LLC | 2,897,744 | 2,897,744 | 0 | |||||||||
| Dechomai Asset Trust | 150,000 | 150,000 | 0 | |||||||||
| Join surplus International Limited | 251,363 | 251,363 | 0 | |||||||||
| Polanen and Nicodimos Family Trust | 150,000 | 150,000 | 0 | |||||||||
| R-opus Management Inc. (7) | 117,771 | 117,771 | 0 | |||||||||
| XL Golden Stone Investment LLC | 117,771 | 117,771 | 0 | |||||||||
| Weixuan Luo | 45,000 | 45,000 | 0 | |||||||||
| Ronald M. Razmi, MD | 80,000 | 80,000 | 0 | |||||||||
| Tina Spires | 20,000 | 20,000 | 0 | |||||||||
| HongLiang Ren | 20,000 | 20,000 | 0 | |||||||||
| Wanlei Miao | 20,000 | 20,000 | 0 | |||||||||
| John Chiang | 20,000 | 20,000 | 0 | |||||||||
| Ellenoff Grossman & Schole LLP(10) | 20,000 | 0 | ||||||||||
| * | Indicates beneficial ownership of less than 1%. |
| (1) | Applicable percentage ownership is based on 11,538,252 shares of our Class A Common Stock outstanding as of February 13, 2024, and based on 81,621,621 shares of our Class A Common Stock outstanding after the offering. |
| (2) | For the purposes of the calculations of our Class A Common Stock to be sold pursuant to the prospectus we are assuming (i) an event of default under the Notes has not occurred, and that the Notes are converted in full with interest accrued thereon being paid in shares of our Class A Common Stock at the alternate conversion price of $1.35 per share without regard to any limitations set forth therein, and (ii) the Warrants are exercised in full without regard to any limitations set forth therein. |
| (3) | Assumes the sale of all securities being offered pursuant to this prospectus and no other shares of Class A Common Stock are acquired by the Selling Securityholders. However, the Selling Securityholders are not obligated to sell all or any portion of the shares of our stock offered pursuant to this prospectus. |
| (4) | SandTrap Opportunities LLC (“SandTrap”) is a wholly owned special purpose vehicle of ATW Opportunities Master Fund II, L.P. (the “Fund”). ATW Partners Opportunities Management, LLC serves as the investment manager to the Fund (the “Adviser”). The Fund and the Adviser may be deemed to have shared voting and dispositive power with respect to the shares of Common Stock held by SandTrap and may be deemed to be the beneficial owner of these shares. Antonio Ruiz-Gimenez and Kerry Propper serve as the managing members of the Adviser (the “Managing Members”). The Managing Members, in their capacity as Managing Members of the Adviser, may also be deemed to have investment discretion and voting power over the shares of Common Stock held by SandTrap. The Fund, the Adviser and the Managing Members each disclaim any beneficial ownership of such shares of Class A Common Stock. The address of this Selling Securityholder is c/o ATW Partners Opportunities Management LLC, 17 State Street, Suite 2130, New York, New York 10004. |
| (5) | This column lists the number of shares of our Class A Common Stock beneficially owned by this Selling Securityholder as of February 13, 2024 after giving effect to the Maximum Percentage (as defined in the paragraph above). Without regard to the Maximum Percentage, as of February 13, 2024, this Selling Securityholder would beneficially own an aggregate of 31,355,876 shares of our Class A Common Stock, consisting of (i) up to 18,148,148 shares of Class A common stock underlying the Notes, convertible at the alternate conversion price of $1.35 per share, all of which shares are being registered for resale under this prospectus, (ii) up to 4,457,728 shares underlying the Series A Warrant held by this Selling Securityholder, currently exercisable at an exercise price of $13.00, all of which are being registered for resale under this prospectus, and (iii) up to 8,750,000 shares underlying the Series B Warrant held by this Selling Securityholder, currently exercisable at an exercise price of $10.00, all of which are being registered for resale under this prospectus. |
| (6) | Greentree Financial Group Inc. beneficially owns 216,067 shares of our Class A Common Stock which were issued for services rendered prior to the Business Combination. For the purposes of calculating the Maximum Percentage, shares of Common Stock presently held by Greentree Financial Group Inc. shall be taken into consideration. Robert Christopher Cottone is the beneficial owner of Greentree Financial Group Inc. |
| (7) | Weiheng Cai is the manager and president of Finuvia, LLC and R-Opus Management, Inc., respectively. As such, Mr. Cai may be deemed to have investment discretion and voting power over the shares of Common Stock held by each entity and is the beneficial owner of each. For the purposes of calculating the Maximum Percentage, shares of Common Stock held by R-Opus Management Inc. shall be taken into consideration. Finuvia, LLC beneficially owns 117,771 of our Class A Common Stock through its ownership of such shares held R-Opus Management Inc. |
| (8) | Linwen Huang is the beneficial owner of L&H, Inc. |
| (9) | Ke Li is the beneficial owner of Li Holdings. Mr. Li is also the managing member of Bright Vision Sponsor LLC. Mr. Li owns a maximum aggregate of 185,179 shares of our Class A Common Stock through his role with Bright Vision Sponsor LLC. |
| (10) | Barry Grossman is the beneficial owner of Ellenoff Grossman & Schole LLP. |
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
In March 2021, we issued an aggregate of 2,875,000 founder shares to our initial stockholders for an aggregate purchase price of $50,000 in cash, or approximately $0.017 per share, resulting in our initial stockholders holding an aggregate of 2,875,000 founder shares (up to 375,000 shares of which were subject to forfeiture depending on the extent to which the underwriters’ over-allotment option was exercised). The number of founder shares issued was determined based on the expectation that such founder shares would represent 20% of our outstanding shares upon completion of the IPO (not including the shares of Class A common stock underlying the private placement units or the representative shares). In October 2021, we effected a 0.1 for 1 stock dividend for each share of Class B common stock outstanding, resulting in Purchaser Representative holding an aggregate of 3,162,500 founder shares. The founder shares (including the Class A common stock that is issuable upon exercise thereof) may not, subject to certain limited exceptions, be transferred, assigned or sold by the holder.
On December 23, 2022, we held the 2022 Special Meeting at which our stockholders approved, among other things, an amendment to our amended and restated certificate of incorporation to provide for the right of a holder of Class B common stock to convert into Class A common stock on a one-for-one basis prior to the closing of an initial business combination.
Also on December 23, 2022, stockholders holding all of the issued and outstanding Class B common stock elected to convert their Class B common stock into Class A common stock on a one-for-one basis. As a result, 3,162,500 shares of Class B common stock were cancelled, and 3,162,500 shares of Class A common stock were issued to such holders of the converting Class B common stock.
Our Insiders have purchased an aggregate of 406,500 units at a price of $10.00 per unit, for an aggregate purchase price of $4,065,000 and I-Bankers purchased an aggregate of 113,000 units at a price of $10.00 per unit, for an aggregate purchase price of $1,130,000. The private placement units are identical to the units sold in the IPO, so long as they are held by Purchaser Representative or the underwriters or their permitted transferees, and (i) may not, subject to certain limited exceptions, be transferred, assigned or sold by the holders until 30 days after the completion of our initial business combination, and (ii) will be entitled to registration rights. The private placement units (including the private placement shares, the private placement rights, and the shares of Class A common stock issuable upon conversion thereof) may not, subject to certain limited exceptions, be transferred, assigned or sold by the holder.
If any of our officers or directors becomes aware of an initial business combination opportunity that falls within the line of business of any entity to which he or she has then-current fiduciary or contractual obligations, he or she will honor his or her fiduciary or contractual obligations to present such business combination opportunity to such other entity. Our officers and directors currently have certain relevant fiduciary duties or contractual obligations that may take priority over their duties to us.
We paid Weixuan Luo, our former chief financial officer, monthly fees of $5,000 for her services commencing on August 1, 2020. Upon completion of our initial business combination or our liquidation, we ceased paying these monthly fees. We also issued to our officers and directors an aggregate of 300,000 post business combination shares.
Other than the foregoing, no compensation of any kind, including any finder’s fee, reimbursement, consulting fee or monies in respect of any payment of a loan, has been or will be paid by us to Purchaser Representative, officers and directors, or any affiliate of Purchaser Representative or officers, prior to, or in connection with any services rendered in order to effectuate, the consummation of an initial business combination (regardless of the type of transaction that it is). However, these individuals are reimbursed for any out-of-pocket expenses incurred in connection with activities on our behalf such as identifying potential target businesses and performing due diligence on suitable business combinations. Our audit committee reviews on a quarterly basis all payments that were made to Purchaser Representative, officers, directors or our or their affiliates and determines which expenses and the amount of expenses that are reimbursed. There is no cap or ceiling on the reimbursement of out-of-pocket expenses incurred by such persons in connection with activities on our behalf.
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As of June 30, 2023 and March 31, 2023, we had loans payable to Purchaser Representative and its affiliates in the amount of $2,065,000 and $1,865,000 (the “Sponsor Note”), respectively, as discussed below:
Prior to the consummation of the IPO, Purchaser Representative agreed to loan us $500,000 to be used for a portion of the expenses of the IPO. Purchaser Representative Note is non-interest bearing, unsecured and due upon completion of our initial business combination. Under no circumstances shall any individual, including but not limited to any officer, director, employee or stockholder, be obligated personally for any obligations or liabilities of Purchaser Representative Note. On February 6, 2024, the Purchaser Representative Note was amended. Two affiliates of the Purchaser Representative (Greentree and R-Opus (Issuer’s determination on whether disclosure is required)) became the payees under the Purchaser Representative Note in exchange for the termination of notes made by the affiliates to the Purchaser Representative in the same amount. The Purchaser Representative Note was further amended to be repayable in full upon the earlier of (a) March 31, 2024, or (b) the First Additional Mandatory Closing Date, as defined in the Purchase Agreement.
On October 15, 2022, we issued the First Sponsor Affiliate Notes to two affiliates of Purchaser Representative in connection with the First Extension, from October 29, 2022 to January 29, 2023. The First Sponsor Affiliate Notes bear no interest and are repayable in full upon the earlier of (a) the date of the consummation of the initial business combination, or (b) the date of our liquidation.
On October 19, 2022, an aggregate of $1,265,000 from the First Sponsor Affiliate Notes was deposited into the trust account, which amount will be included in the pro rata amount distributed to (i) holders of public shares upon our liquidation or (ii) holders of public shares who elect to have their shares redeemed in connection with the consummation of the initial business combination. On February 6, 2024, the First Sponsor Affiliate Notes were amended. $500,000 of the became due and repayable on the consummation of the initial business combination. The remaining balance of $765,000 is repayable in full upon the earlier of (a) March 31, 2024, or (b) the First Additional Mandatory Closing Date, as defined in the Purchase Agreement.
On February 9, 2023, we issued the Second Sponsor Affiliate Note to an affiliate of Purchaser Representative, in connection with the Second Extension, from January 29, 2023 to July 29, 2023, pursuant to which a monthly payment of $50,000 is to be deposited into the trust account after January 29, 2023. The Second Sponsor Affiliate Note bears no interest and is repayable in full upon the earlier of (a) the date of the consummation of the initial business combination, or (b) the date of our liquidation. Accordingly, an aggregate of $300,000 had been deposited into the trust account as of June 30, 2023. On February 6, 2024, the Second Sponsor Affiliate Note was amended. The Second Sponsor Affiliate Note is repayable in full upon the earlier of (a) March 31, 2024, or (b) the First Additional Mandatory Closing Date, as defined in the Purchase Agreement.
On July 11, 2023, DMA and Purchaser Representative entered into certain non-redemption agreements (“Non-Redemption Agreement”) with certain unaffiliated third parties in exchange for such third parties agreeing not to redeem (or shall use commercially reasonable efforts to request that the Company’s transfer agent reverse any previously submitted redemption demand) certain DMA Class A Shares (the “Non-Redeemed Shares”) in connection with the Third Extension Meeting. In exchange for the foregoing commitments not to redeem such Non-Redeemed Shares, Purchaser Representative agreed to transfer to such third-parties certain DMA Class A Shares (the “Founder Shares”) held by Purchaser Representative immediately following consummation of an initial business combination if they continue to hold such Non-Redeemed Shares through the Third Extension Meeting. Such Founder Shares had been issued to Purchaser Representative upon conversion of the DMA Class B Shares held by Purchaser Representative. In addition, DMA agreed that, to mitigate the current uncertainty surrounding the implementation of the Inflation Reduction Act of 2022, funds held in the Trust Account, including any interest thereon, will not be used to pay for any excise tax liabilities with respect to any future redemptions prior to or in connection with the extension voted upon at the Third Extension Meeting, an initial business combination, or liquidation of DMA. Until the earlier of (a) the consummation of DMA’s initial business combination; and (b) the liquidation of the Trust Account, DMA will maintain the investment of funds held in the Trust Account in interest-bearing United States government securities within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, having a maturity of 185 days or less, or in money market funds meeting the conditions of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended, which invest only in direct U.S. government treasury obligations, or maintain such funds in cash in an interest-bearing demand deposit account at a bank.
DMA and Purchaser Representative entered into such Non-Redemption Agreements with six unaffiliated third parties in total, with respect to a maximum aggregate of 514,773 DMA Class A Shares, and Purchaser Representative has agreed to transfer a maximum aggregate of 185,179 DMA Class A Shares pursuant to the Non-Redemption Agreements upon the consummation of DMA’s initial business combination.
Under no circumstances shall any individual, including but not limited to any officer, director, employee or stockholder, be obligated personally for any obligations or liabilities of the loans payable to Purchaser Representative and its affiliates.
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In addition, in order to finance transaction costs in connection with an intended initial business combination, Purchaser Representative or an affiliate of Purchaser Representative or certain of our officers and directors may, but are not obligated to, loan us Working Capital Loans as may be required. If we complete an initial business combination, we would repay such Working Capital Loans. In the event that the initial business combination does not close, we may use a portion of the working capital held outside the trust account to repay any such Working Capital Loans but no proceeds from our trust account would be used for such repayment. Up to $1,500,000 of such Working Capital Loans may be convertible into private placement-equivalent units at a price of $10.00 per unit (which, for example, would result in the holders being issued 165,000 shares of Class A common stock if $1,500,000 of notes were so converted since the 150,000 rights included in such units would result in the issuance of 15,000 shares upon the closing of our business combination), at the option of the lender. Such units would be identical to the private placement units. The terms of such Working Capital Loans by Purchaser Representative or its affiliates, or our officers and directors, if any, have not been determined and no written agreements exist with respect to such loans. We do not expect to seek loans from parties other than Purchaser Representative or an affiliate of Purchaser Representative as we do not believe third parties will be willing to loan such funds and provide a waiver against any and all rights to seek access to funds in our trust account. At the time of the closing of the business combination, the Company agreed to repay the working capital loans with the proceeds from the second tranche fundings from the PIPE loans.
After our initial business combination, members of our management team who remain with us may be paid consulting, management or other fees from the combined company with any and all amounts being fully disclosed to our stockholders, to the extent then known, in the tender offer or proxy solicitation materials, as applicable, furnished to our stockholders, such as the TruGolf prospectus. It is unlikely the amount of such compensation will be known at the time of distribution of such tender offer materials or at the time of a stockholder meeting held to consider our initial business combination, as applicable, as it will be up to the directors of the post-combination business to determine executive and director compensation.
Our initial stockholders, officers and directors and I-Bankers have entered into a letter agreement with us, pursuant to which they have waived their rights to liquidating distributions from the trust account with respect to any founder shares, private placement shares or representative shares held by them if we fail to complete our initial business combination within the Combination Period. However, if our initial stockholders, officers or directors acquire public shares in or after the IPO, they will be entitled to liquidating distributions from the trust account with respect to such public shares if we fail to complete our initial business combination within the Combination Period
We have entered into a registration rights agreement with respect to the private placement units, the private placement shares, the private placement rights, the representative shares, the representative warrants, the securities issuable upon conversion of Working Capital Loans (if any), the post business combination shares, and the shares of Class A common stock issuable upon exercise or conversion or exercise of the foregoing and upon conversion of the founder shares. These shares are included herein.
Other than the foregoing, no compensation of any kind, including any finder’s fee, reimbursement, consulting fee or monies in respect of any payment of a loan, will be paid by us to Purchaser Representative, officers and directors, or any affiliate of Purchaser Representative or officers, prior to, or in connection with any services rendered in order to effectuate, the consummation of an initial business combination (regardless of the type of transaction that it is). However, these individuals will be reimbursed for any out-of-pocket expenses incurred in connection with activities on our behalf such as identifying potential target businesses and performing due diligence on suitable business combinations. Our audit committee will review on a quarterly basis all payments that were made to Purchaser Representative, officers, directors or our or their affiliates and will determine which expenses and the amount of expenses that will be reimbursed. There is no cap or ceiling on the reimbursement of out-of-pocket expenses incurred by such persons in connection with activities on our behalf.
Prior to the closing of the IPO, Purchaser Representative agreed to loan us up to $500,000 to be used for a portion of the expenses of the IPO. These loans were non-interest bearing, unsecured and were repaid upon closing of our initial business combination. The value of Purchaser Representative’s interest in this transaction corresponds to the principal amount outstanding under any such loan. The loans were paid off from with proceeds of the first tranche funding from the PIPE loans.
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In addition, in order to finance transaction costs in connection with an intended initial business combination, Purchaser Representative or an affiliate of Purchaser Representative or certain of our officers and directors may, but are not obligated to, loan us funds as may be required. If we complete an initial business combination, we would repay such loaned amounts. In the event that the initial business combination does not close, we may use a portion of the working capital held outside the trust account to repay such loaned amounts but no proceeds from our trust account would be used for such repayment. Up to $1,500,000 of such working capital loans may be convertible into private placement-equivalent units at a price of $10.00 per unit (which, for example, would result in the holders being issued 165,000 shares of Class A common stock if $1,500,000 of notes were so converted since the 150,000 rights included in such units would result in the issuance of 15,000 shares upon the closing of our business combination), at the option of the lender. Such units would be identical to the private placement units . The terms of such working capital loans by Purchaser Representative or its affiliates, or our officers and directors, if any, have not been determined and no written agreements exist with respect to such loans. We do not expect to seek loans from parties other than Purchaser Representative or an affiliate of Purchaser Representative as we do not believe third parties will be willing to loan such funds and provide a waiver against any and all rights to seek access to funds in our trust account.
After our initial business combination, members of our management team who remain with us may be paid consulting, management or other fees from the combined company with any and all amounts being fully disclosed to our stockholders, to the extent then known, in the tender offer or proxy solicitation materials, as applicable, furnished to our stockholders. It is unlikely the amount of such compensation will be known at the time of distribution of such tender offer materials or at the time of a stockholder meeting held to consider our initial business combination, as applicable, as it will be up to the directors of the post-combination business to determine executive and director compensation.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires TruGolf’s directors, officers and persons owning more than 10% of our Class A Common Stock to file reports of ownership and changes of ownership with the SEC. Based on our review of the copies of such reports furnished to us, or representations from certain reporting persons that no other reports were required, we believe that all applicable filing requirements were complied with to date.
DESCRIPTION OF OUR SECURITIES
The following is a description of our securities of as set forth in certain provisions of our Second Amended and Restated Certificate of Incorporation (the “Charter”) and our Second Amended and Restated Bylaws (the “Bylaws”), and applicable forms of warrant, each previously filed with the SEC and incorporated by reference as an exhibit to this registration statement to which this prospectus forms a part. This summary does not purport to be complete and is qualified in its entirety by the full text of the Charter, Bylaws, applicable forms of warrant, and the applicable provisions of the Delaware General Corporation Law (the “DGCL”). We encourage you to read our Charter, Bylaws, applicable forms of warrant, and the applicable portions of the DGCL carefully.
Authorized Capitalization
We are authorized to issue 110,000,000 shares, of which 90,000,000 shares are shares of TruGolf Class A common stock, par value $0.0001 per share, 10,000,000 shares are shares of TruGolf Class B common stock, par value $0.0001 per share, and 10,000,000 shares are shares of preferred stock, par value $0.0001 per share.
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TruGolf Common Stock Following the Business Combination
Class A Common Stock
Voting Power
Holders of TruGolf Class A common stock are entitled to cast one vote per share of TruGolf Class A common stock. Generally, holders of all classes of TruGolf common stock will vote together as a single class, and an action will be approved by TruGolf stockholders if the number of votes cast in favor of the action exceeds the number of votes cast in opposition to the action, while directors are elected by a plurality of the votes cast. Holders of TruGolf Class A common stock will not be entitled to cumulate their votes in the election of directors.
Dividends
Subject to applicable law, the rights, if any, of the holders of any outstanding series of preferred stock or any class or series of stock having a preference over TruGolf Class A commons stock, the holders of shares of TruGolf Class A commons stock are entitled to receive such dividends and other distributions (payable in cash, property or capital stock of TruGolf) when, as and if declared thereon by the TruGolf Board from time to time out of any assets or funds of TruGolf legally available therefor and will share equally on a per share basis in such dividends and distributions.
Liquidation, Dissolution and Winding Up
Subject to applicable law, the rights, if any, of the holders of any outstanding series of the preferred stock or any class or series of stock having a preference over TruGolf Class A commons stock, in the event of any voluntary or involuntary liquidation, dissolution or winding up of TruGolf, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of shares of TruGolf Common Stock shall be entitled to receive all the remaining assets of TruGolf available for distribution to its stockholders, ratably in proportion to the number of shares of TruGolf A common stock (on an as converted basis with respect to the TruGolf B common stock) held by them.
Preemptive or Other Rights
No shares of TruGolf Class A common stock are subject to redemption or have preemptive rights to purchase additional shares of TruGolf Class A common stock. Holders of shares of TruGolf Class A common stock will not have subscription, redemption or conversion rights. All the outstanding shares of TruGolf Class A common stock will be validly issued, fully paid and non-assessable.
Class B Common Stock
Issuance of TruGolf Class B Common Stock
Shares of TruGolf Class B common stock may be issued only to, and registered in the name of, Christopher Jones, Steven R. Johnson, and David Ashby (the “TruGolf Founders”) and any entities wholly owned by a TruGolf Founder (including all subsequent successors, assigns and permitted transferees), which we collectively refer to as “Permitted Class B Owners”.
Voting Rights
Holders of TruGolf Class B common stock are entitled to cast 25 votes per share of TruGolf Class B common stock. Generally, holders of all classes of TruGolf common stock will vote together as a single class, and an action will be approved by TruGolf stockholders if the number of votes cast in favor of the action exceeds the number of votes cast in opposition to the action, while directors are elected by a plurality of the votes cast. Holders of TruGolf Class B common stock will not be entitled to cumulate their votes in the election of directors.
Dividend Rights
Subject to applicable law, the rights, if any, of the holders of any outstanding series of preferred stock or any class or series of stock having a preference over TruGolf Class B commons stock, the holders of shares of TruGolf Class B commons stock are entitled to receive such dividends and other distributions (payable in cash, property or capital stock of TruGolf) when, as and if declared thereon by the TruGolf Board from time to time out of any assets or funds of TruGolf legally available therefor and will share equally on a per share basis in such dividends and distributions.
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Liquidation Rights
Subject to applicable law, the rights, if any, of the holders of any outstanding series of the preferred stock or any class or series of stock having a preference over TruGolf Class B common stock, in the event of any voluntary or involuntary liquidation, dissolution or winding up of TruGolf, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of shares of TruGolf Class B common stock shall be entitled to receive all the remaining assets of TruGolf available for distribution to its stockholders, ratably in proportion to the number of shares of TruGolf B common stock on an as converted basis held by them.
Voluntary Conversion of Class B Common Stock.
Each share of TruGolf Class B common stock shall be convertible into one fully paid and nonassessable share of TruGolf Class A common stock at the option of the holder thereof at any time upon written notice to TruGolf. In order to effectuate a conversion of shares of TruGolf Class B common stock, a holder shall (a) submit a written election to TruGolf that such holder elects to convert shares of TruGolf Class B common stock, the number of such shares elected to be converted and (b) (if such shares are certificated), along with such written election, surrender to TruGolf the certificate or certificates representing the shares being converted, duly assigned or endorsed for transfer to TruGolf (or accompanied by duly executed stock powers relating thereto) or, in the event the certificate or certificates are lost, stolen or missing, accompanied by an affidavit of loss executed by the holder. The conversion of such shares hereunder shall be deemed effective as of the date of surrender of such TruGolf Class B common stock certificate or certificates, delivery of such affidavit of loss or the written election to convert for uncertificated shares. Upon the receipt by TruGolf of a written election and, if applicable, the surrender of such certificate(s) and accompanying materials, TruGolf shall as promptly as practicable (but in any event within 10 days thereafter) either (a) deliver to the relevant holder (i) a certificate in such holder’s name (or the name of such holder’s designee as stated in the written election) for the number of shares of TruGolf Class A common stock to which such holder shall be entitled upon conversion of the applicable shares as calculated pursuant to this Section 4.2 and, if applicable (ii) a certificate in such holder’s (or the name of such holder’s designee as stated in the written election) for the number of shares of TruGolf Class B common stock (including any fractional share) represented by the certificate or certificates delivered to TruGolf for conversion but otherwise not elected to be converted pursuant to the written election or (b) note the conversion of the shares on the stock ledger of TruGolf. All shares of capital stock issued hereunder by TruGolf shall be duly and validly issued, fully paid and nonassessable, free and clear of all taxes, liens, charges and encumbrances with respect to the issuance thereof. Each converted share of Class B Common Stock will be retired by the Corporation and shall not be available for reissuance.
Automatic Conversion of Class B Common Stock
Each share of TruGolf Class B common stock will automatically convert into one (1) share of TruGolf Class A common stock any sale, pledge or other transfer, whether or not for value, by the initial registered holder thereof, upon any transfer, other than in each case any transfer to a Permitted Class B Owner. Notwithstanding anything to the contrary set forth herein, any holder of TruGolf Class B common stock may pledge his, her or its shares of TruGolf Class B common stock to a pledgee pursuant to a bona fide pledge of the shares as collateral security for indebtedness due to the pledgee so long as the shares are not transferred to or registered in the name of the pledgee. In the event of any pledge meeting these requirements, the pledged shares will not be converted automatically into shares of TruGolf Class A common stock. If the pledged shares of TruGolf Class B common stock become subject to any foreclosure, realization or other similar action by the pledgee, they will be converted automatically into shares of TruGolf Class A common stock upon the occurrence of that action.
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Other Matters
No shares of TruGolf Class B common stock are subject to redemption or have preemptive rights to purchase additional shares of TruGolf Class B common stock. All outstanding shares of TruGolf Class B common stock are validly issued, fully paid and non-assessable.
Preferred Stock
TruGolf Board has the authority, without action by the stockholders, to designate and issue shares of preferred stock in one or more classes or series, and the number of shares constituting any such class or series, and to fix the voting powers, designations, preferences, limitations, restrictions and relative rights of each class or series of preferred stock, including, without limitation, dividend rights, dividend rates, conversion rights, exchange rights, voting rights, rights and terms of redemption, dissolution preferences, and treatment in the case of a merger, business combination transaction, or sale of TruGolf’ assets, which rights may be greater than the rights of the holders of the TruGolf common stock.
It is expected that, immediately after the Business Combination, including the mergers, no shares of TruGolf preferred stock are outstanding.
The purpose of authorizing the TruGolf Board to issue TruGolf preferred stock and determine the rights and preferences of any classes or series of preferred stock is to eliminate delays associated with a TruGolf stockholder vote on specific issuances. The simplified issuance of TruGolf preferred stock, while providing flexibility in connection with possible acquisitions, future financings and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or could discourage a third party from seeking to acquire, a majority of the outstanding voting stock of TruGolf. Additionally, the issuance of TruGolf preferred stock may adversely affect the holders of TruGolf Class A common stock, including by restricting dividends on the TruGolf Class A common stock, diluting the voting power of the TruGolf Class A common stock or subordinating the dividend or liquidation rights of the TruGolf Class A common stock. As a result of these or other factors, the issuance of TruGolf preferred stock could have an adverse impact on the market price of TruGolf Class A common stock.
Rights
Each holder of a right will receive one-tenth (1/10) of one share of Class A common stock upon consummation of our initial business combination, even if the holder of such right redeemed all shares of common stock held by it in connection with the initial business combination. No additional consideration will be required to be paid by a holder of rights in order to receive its additional shares upon consummation of an initial business combination, as the consideration related thereto has been included in the unit purchase price paid for by investors in this offering.
If we enter into a definitive agreement for a business combination in which we will not be the surviving entity, the definitive agreement will provide for the holders of rights to receive the same per share consideration the holders of the common stock will receive in the transaction on an as-converted into common stock basis, and each holder of a public right will automatically receive the 1/10 share of common stock underlying such public right (without paying any additional consideration); and each holder of a private placement right or working capital right will be required to affirmatively convert its rights in order to receive the 1/10 share underlying each right (without paying any additional consideration) upon consummation of the business combination. More specifically, the holder of a private placement right or working capital right will be required to indicate its election to convert the rights into underlying shares as well as to return the original rights certificates to us.
If we are unable to complete an initial business combination within the required time period and we liquidate the funds held in the trust account, holders of rights will not receive any such funds with respect to their rights, nor will they receive any distribution from our assets held outside of the trust account with respect to such rights, and the rights will expire worthless.
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Upon the consummation of our initial business combination, we issued to each registered holder of the public rights the number of full shares of Class A common stock to which he, she or it was entitled, registered in such name or names as may be directed by him, her or it and issue to such registered holder(s) a certificate or book-entry position for the such shares.
With respect to the private placement rights or working capital rights, as soon as practicable upon the consummation of our initial business combination, we directed registered holders of those rights to return their rights to our rights agent.
Upon receipt of the private placement rights or working capital rights, the rights agent will issue to the registered holder of such rights the number of full shares of common stock to which it is entitled. We will notify registered holders of the rights to deliver their rights to the rights agent promptly upon consummation of such business combination and have been informed by the rights agent that the process of exchanging their rights for shares of common stock should take no more than a matter of days. The foregoing exchange of private placement rights or working capital rights is solely ministerial in nature and is not intended to provide us with any means of avoiding our obligation to issue the shares underlying the private placement rights or working capital rights upon consummation of our initial business combination. Other than confirming that the private placement rights or working capital rights delivered by a registered holder are valid, we will have no ability to avoid delivery of the shares underlying the private placement rights or working capital rights. Nevertheless, there are no contractual penalties for failure to deliver securities to the holders of the private placement rights or working capital rights upon consummation of an initial business combination.
Additionally, in no event will we be required to net cash settle the rights. Accordingly, you might not receive the shares of Class A common stock underlying the rights.
The shares issuable upon conversion of the rights are freely tradable (except to the extent held by affiliates of ours). We will not issue fractional shares upon conversion of the rights. If, upon conversion of the rights, a holder would be entitled to receive a fractional interest in a share, we will, upon conversion, comply with Section 155 of the Delaware General Corporation Law (which provides that Delaware companies shall either (1) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined or (3) issue scrip or rights in registered form (either represented by a certificate or uncertificated) or in bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip or rights aggregating a full share).
Representative’s Warrants
The Representative’s Warrants are exercisable at $12.00 per share. The warrant may be exercised for cash or on a cashless basis, at the holder’s option, at any time during the period commencing on the later of the first anniversary of the effective date of DMA’s IPO Prospectus and the closing, and terminate on the fifth anniversary of the commencement date of sales in DMA’s IPO. The Representative’s Warrants grant to holders demand and “piggy back” rights for periods of five and seven years, respectively, from the commencement date of sales in DMA’s IPO with respect to the registration under the Securities Act of the shares of Class A common stock issuable upon exercise of the Representative’s Warrants. TruGolf will bear all fees and expenses attendant to registering the securities, other than underwriting commissions, which will be paid for by the holders themselves. The exercise price and number of shares issuable upon exercise of the warrants may be adjusted in certain circumstances including in the event of a share dividend, or our recapitalization, reorganization, merger or consolidation. However, the Representative’s Warrants will not be adjusted for issuances of common stock at a price below its exercise price. There will be no obligation to net cash settle the exercise of the Representative’s Warrants. The holder of the Representative’s Warrants will not be entitled to exercise the warrants for cash unless a registration statement covering the securities underlying the warrants is effective or an exemption from registration is available.
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Private Placement of Notes and Warrants
On November 2, 2023 and December 7, 2023, Deep Medicine Acquisition Corp. executed loan agreements with certain accredited investors (together, the “Prior Loan Agreements”) pursuant to which such investors agreed to loan Deep Medicine up to an aggregate $11,000,000 in exchange for the issuance of convertible notes and warrants. On February 2, 2024, the Company executed a securities purchase agreement (the “Purchase Agreement”) with each of the investors that executed the Prior Loan Agreements, which replaced, in their entirety, the Prior Loan Agreements, and with additional investors (together, the “PIPE Investors”). Pursuant to the terms and conditions of the Purchase Agreement, the PIPE Investors agreed to purchase from the Company (i) senior convertible notes in the aggregate principal amount of up to $15,500,000 (the “Notes”), (ii) Series A warrants to initially purchase 1,409,091 shares of the Company’s Class A common stock (the “Series A Warrants”); and (iii) Series B warrants to initially purchase 1,550,000 shares of the Company’s Class A common stock (the “Series B Warrants,” and collectively with the Series A Warrants, the “PIPE Warrants”) (the “PIPE Financing”).
The Purchase Agreement contemplates funding of the investment (the “Investment”) across multiple tranches. At the first closing (the “Initial Closing”) an aggregate principal amount of $4,650,000 of Notes will be issued upon the satisfaction of certain customary closing conditions in exchange for aggregate gross proceeds of $4,185,000, representing an original issue discount of 10%. On such date (the “Initial Closing Date”), the Company will also issue the PIPE Investors the Series A Warrants and the Series B Warrants.
Subject to satisfying the conditions discussed below, the Company has the right under the Purchase Agreement, but not the obligation, to require that the PIPE Investors purchase additional Notes at up to two additional closings. Upon notice at any time after the 2nd trading day following the Initial Closing Date, the Company may require that the PIPE Investors purchase an additional aggregate principal amount of $4,650,000 of Notes, in exchange for aggregate gross proceeds of $4,185,000, if (i) the Registration Statement (as described below) has been filed; and (ii) certain customary closing conditions are satisfied (the “First Mandatory Additional Closing”). Upon notice at any time after the 2nd trading day following the date that the First Mandatory Additional Closing is consummated, the Company may require that the PIPE Investors purchase an additional aggregate principal amount of $6,200,000 of Notes, in exchange for aggregate gross proceeds of $5,580,000, if (i) the shareholder approval is obtained (as described below); (ii) the Registration Statement has been declared effective by the SEC; and (iii) certain customary closing conditions are satisfied (the “Second Mandatory Additional Closing”).
In addition, pursuant to the Purchase Agreement, each PIPE Investor has the right, but not the obligation, to require that, upon notice, the Company sell to such PIPE Investor at one or more additional closings such PIPE Investor’s pro rata share of up to a maximum aggregate principal amount of $10,850,000 in additional Notes (each such additional closing, an “Additional Optional Closing”); provided that, the principal amount of the additional Notes issued at each Additional Optional Closing must equal at least $250,000. If a PIPE Investor has not elected to effect an Additional Optional Closing on or prior to August 2, 2024, such PIPE Investor shall have no further right to effect an Additional Optional Closing under the Purchase Agreement.
Notes
General. The Notes will mature on the date that is five years from each respective issuance date (the “Maturity Date”), unless earlier converted (only upon the satisfaction of certain conditions). The Maturity Date may be extended at the sole option of the holders, under certain circumstances specified therein. The Notes will have an original issue discount of 10%.
Ranking. The Notes will be our senior unsecured obligations and not the financial obligations of our subsidiaries. Until such date no Notes remain outstanding, all payments due under the Notes will be senior to all of our subordinated indebtedness and subordinated indebtedness of any of our subsidiaries and equal in right of payment with all of our other indebtedness and other indebtedness of any of our subsidiaries.
Interest. The Notes bear interest at the rate of 10.0% per annum that (a) shall commence accruing on the date of issuance, (b) shall be computed on the basis of a 360-day year and twelve 30-day months, and (c) shall be payable in shares of our Class A common stock so long as certain conditions are met, provided that the Company may at its option pay such interest in cash or a combination of cash and shares of our Class A common stock; provided further that if such interest is being paid in shares of our Class A common stock it shall bear interest at the rate of 15.0% per annum. If a holder elects to convert or redeem all or any portion of a Note prior to the Maturity Date, all accrued and unpaid interest, any make-whole amount, and any late charges on the amount being converted or redeemed will also be payable.
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The interest rate of the Notes will automatically increase to 15% per annum (the “Default Rate”) upon the occurrence and continuance of an event of default (See “— Events of Default” below).
Conversion Rights.
Conversion at Option of Holder. Each holder of Notes may convert all, or any part, of the outstanding Notes, at any time at such holder’s option, into shares of our Class A common stock at an initial “Conversion Price” of $10.00 per share, which is subject to proportional adjustment upon the occurrence of any stock split, stock dividend, stock combination and/or similar transactions. Upon the voluntary conversion by the holders of the Notes, in addition to the issuance of the Class A common stock issuable upon conversion of the principal amount of Notes, the Company shall issue to the holders in Class A common stock the sum of (A) all accrued interest on the Notes to date plus (B) all interest that would otherwise accrued on such principal amount of the Notes if such converted principal would be held to the Maturity Date at the Conversion Price.
With limited exceptions, if the Company at any time while a PIPE Convertible Note is outstanding, issues any Class A common stock or securities entitling any person or entity to acquire shares of Class A common stock (upon conversion, exercise or otherwise), at an effective price per share less than the Conversion Price then the Conversion Price shall be reduced to the same price as the new investment.
Limitations on Conversion. A holder shall not have the right to convert any portion of a Note to the extent that, after giving effect to such conversion, the holder (together with certain related parties) would beneficially own in excess of 4.99%, or the “Maximum Percentage”, of shares of our common stock outstanding immediately after giving effect to such conversion. The Maximum Percentage may be raised or lowered to any other percentage not in excess of 9.99%, at the option of the holder, except that any increase will only be effective upon 61 days’ prior notice to us.
Voluntary Adjustment Right. Subject to the rules and regulations of the Nasdaq, we have the right, at any time, with the written consent of the Required Holders, to lower the fixed conversion price to any amount and for any period of time deemed appropriate by our board of directors.
Alternate Conversion Upon Event of Default. Following the occurrence and during the continuance of a Event of Default (as defined below), each holder may alternatively elect to convert all or any portion of such holder’s Notes at the “Alternate Conversion Price” equal to the lesser of (i) the Conversion Price, and (ii) 90% of the lowest VWAP of the Class A common stock during the five (5) consecutive trading days immediately prior to such conversion.
Other Adjustments. The initial conversion price (the “Conversion Price”) of the Notes is $10.00 per share; provided that the Conversion Price will be automatically reduced to the applicable Adjustment Price (as defined below) if on (i) the 45th calendar day after the initial issuance date, and/or (ii) the date the Registration Statement (as described below) is declared effective by the SEC (each, an “Adjustment Measuring Date”), the greater of (A) $2.00 with respect to $5.0 million in principal amount of Notes and $2.50 with respect to the remainder of the Notes (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events), and (B) the lowest volume weighted average price (“VWAP”) on any trading day during the five trading day period ended, and including, the trading day immediately prior to such applicable Adjustment Measuring Date (each, an “Adjustment Price”), is less than the Conversion Price then in effect.
Redemption Rights.
Holder Event of Default Redemption. Upon an Event of Default, each holder may elect to redeem all or any portion such holder’s Notes in cash at a redemption premium of 25% to the greater of (i) the amount then outstanding under such notes, and (ii) the equity value of our Class A common stock underlying the Notes. The equity value of our Class A common stock underlying the Notes is calculated using the greatest closing sale price of our Class A common stock on any trading day immediately preceding such event of default and the date we make the entire payment required.
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Holder Bankruptcy Event of Default Mandatory Redemption. Upon any bankruptcy Event of Default, we shall immediately redeem in cash all amounts due under the Notes at a 25% premium unless the holder waives such right to receive such payment.
Holder Change of Control Redemption. Upon a change of control of the Company, each holder may require us to redeem in cash all, or any portion, of the Notes at a 5% redemption premium to the greater of the amount then outstanding under the Notes to be redeemed, and the equity value of our Class A common stock underlying the Notes. The equity value of our Class A common stock underlying the Notes is calculated using the greatest closing sale price of our Class A common stock on any trading day immediately preceding the earlier of (i) the public announcement of such change of control and (ii) the consummation of such change of control, and ending on the date we make the entire payment required.
Company Optional Redemption. At any time the Company shall have the right to redeem in cash all, but not less than all, of the Notes at price equal to the greater of (i) the amount outstanding under such PIPE Convertible Note, and (ii) the equity value of our Class A common stock underlying the Notes. The equity value of our Class A common stock underlying the Notes is calculated using the greatest closing sale price of our Class A common stock on any trading day immediately preceding the date that we deliver notice of such redemption and the date we make the entire payment required.
Events of Default. The Notes contain standard and customary events of defaults (each, an “Event of Default”), including but not limited: (i) the suspension from trading or the failure to list our Class A common stock within certain time periods; (ii) failure to pay to the holder any amount of principal, Make-Whole Amount, interest, late charges or other amounts when due; (iii) the failure to timely file or make effective a registration statement on Form S-3 pursuant to the Registration Rights Agreement, (iv) our failure to cure a conversion failure or failure to deliver shares of our Class A common stock under the PIPE Warrants, or notice of our intention not to comply with a request for conversion of any PIPE Convertible Note or a request for exercise of any PIPE Warrants, and (iv) bankruptcy or insolvency of the Company.
Purchase Rights. If at any time the Company grants, issues or sells any options, convertible securities, or rights to purchase stock, warrants, securities or other property pro rata to all or substantially all of the record holders of any class of our Class A common stock (the “Purchase Rights”), then each holder of Notes will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such holder could have acquired if such holder had held the number of shares of Class A common stock acquirable upon complete conversion of all the Notes held by such holder immediately prior to the date as of which the record holders of shares of Class A common stock are to be determined for the grant, issue or sale of such Purchase Rights; subject to certain limitations on beneficial ownership.
Fundamental Transaction. The Notes prohibit us from entering specified fundamental transactions (including, without limitation, mergers, business combinations and similar transactions) unless we (or our successor) assumes in writing all of our obligations under the Notes and the other transaction documents in the PIPE Financing.
Warrants
As additional consideration for the purchase of the Notes, the Company will issue to the PIPE Investors, the Series A Warrants and the Series B Warrants.
Series A Warrants.
Exercise Period. The Series A Warrants shall expire five years after issuance and shall initially be exercisable for an aggregate of 1,409,091 shares of Class A common stock, which number of shares shall be increased each time the holder exercises any Series B Warrants in an amount equal to 91% of the shares of Class A common stock issued pursuant to such Series B Warrant exercise.
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Exercise Price. The initial exercise price of the Series A Warrants shall be $13.00 per share; provided that if on (A) the 45th calendar day after issuance, and/or (B) the date the Registration Statement (as described below) is declared effective by the SEC (each, a “Warrant Adjustment Measuring Date”), the exercise price then in effect is greater than the greater of (i) $4.00 (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events), and (ii) the lowest VWAP on any trading day during the five trading day period ended, and including, the trading day immediately prior to such applicable Warrant Adjustment Measuring Date, the exercise price shall automatically lower to such price.
Cashless Exercise. If at the time of exercise of the Series A Warrants, there is no effective registration statement registering the shares of our Class A common stock underlying such warrants, such warrants may be exercised on a cashless basis pursuant to their terms.
Series B Warrants
Exercise Period. The Series B Warrants shall expire 30 months after issuance and shall initially be exercisable for an aggregate of 1,550,000 shares of Class A common stock.
Exercise Price. The initial exercise price of the Series B Warrants shall be $10.00 per share.
Adjustments. If at any time the sum of (i) the product of (x) the shares underlying the Series B Warrants then remaining and (y) the greater of (A) $4.00 (as adjusted for stock split, stock dividends, stock combinations, recapitalizations and similar events) and (B) the exercise price then in effect and (ii) the sum of the amounts in aggregate exercise price received from prior exercises is less than $15.5 million (the amount of such difference, if any, each a “Deficiency Amount”), the shares underlying the Series B Warrants shall be increased by the quotient of (I) such applicable Deficiency Amount, divided by (II) the exercise price then in effect; provided that the number of shares underlying the Series B Warrants shall not be increased an amount greater than 250% of the original number of shares underlying the Series B Warrants.
Participation Rights. If we issue options, convertible securities, warrants, shares, or similar securities to holders of our shares of our Class A Common Stock, each Series B Warrant holder has the right to acquire the same as if the holder had exercised its warrant.
Dilutive Issuances. With limited exceptions, if the Company at any time while the PIPE Warrants are outstanding, issues any Class A common stock or securities entitling any person or entity to acquire shares of Class A common stock (upon conversion, exercise or otherwise), at an effective price per share less than the exercise price of the PIPE Warrants (a “Dilutive Issuance”), then the exercise price of the PIPE Warrants shall be reduced to the same price as the new investment. The adjustment to the Notes described above on the Adjustment Measuring Date shall be deemed a Dilutive Issuance to the extent the date the Registration Statement (as described below) is declared effective by the SEC after the 45th day after the issuance of the PIPE Warrants.
Fundamental Transactions. The PIPE Warrants prohibit us from entering into specified fundamental transactions unless the successor entity assumes all of our obligations under the PIPE Warrants under a written agreement before the transaction is completed. Upon specified corporate events, a PIPE Warrant holder will thereafter have the right to receive upon an exercise such shares, securities, cash, assets or any other property whatsoever which the holder would have been entitled to receive upon the happening of the applicable corporate event had the PIPE Warrant been exercised immediately prior to the applicable corporate event.
Certain Anti-Takeover Provisions of Delaware Law
So long as the outstanding shares of TruGolf Class B common stock represent a majority of the combined voting power of TruGolf Common Stock, the TruGolf Founders will effectively control all matters submitted to TruGolf stockholders for a vote, as well as the overall management and direction of TruGolf, which will have the effect of delaying, deferring or discouraging another person from acquiring control of TruGolf .
After such time as the shares of TruGolf Class B common stock no longer represent a majority of the combined voting power of TruGolf Common Stock, the provisions of Delaware law, charter and bylaws may have the effect of delaying, deferring or discouraging another person from acquiring control of TruGolf.
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Section 203 of the Delaware General Corporation Law
TruGolf will be subject to Section 203 of the Delaware General Corporation Law, which prohibits a person deemed an “interested stockholder” from engaging in a “business combination” with a publicly held Delaware corporation for three years following the date such person becomes an interested stockholder 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 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 the TruGolf Board, such as discouraging takeover attempts that might result in a premium over the price of TruGolf Common Stock.
Dual Class Stock
TruGolf charter provides for a dual class common stock structure, which provides the TruGolf founders, with the ability to control the outcome of matters requiring stockholder approval, even if they own significantly less than a majority of the shares of TruGolf Common stock, including the election of directors and significant corporate transactions, such as a merger or other sale of TruGolf or its assets.
Special Meetings of Stockholders
The charter and the bylaws provide that a special meeting of stockholders may be called only by the Chairman of the TruGolf Board, the Chief Executive Officer of the TruGolf, or a majority of the TruGolf Board then in office.
Advance Notice Requirements for Stockholder Proposals and Director Nominations
The charter and the bylaws establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of the TruGolf Board or a committee of the TruGolf Board.
Transfer Agent
The transfer agent and registrar for the Common Stock is Equiniti Trust Company, LLC.
SECURITIES ACT RESTRICTIONS ON RESALE OF OUR SECURITIES
Pursuant to Rule 144 under the Securities Act (“Rule 144”), a person who has beneficially owned restricted our Class A Common Stock or our Warrants for at least six months would be entitled to sell their securities provided that (i) such person is not deemed to have been our affiliate at the time of, or at any time during the three months preceding, a sale and (ii) we are subject to the Exchange Act periodic reporting requirements for at least three months before the sale and have filed all required reports under Section 13 or 15(d) of the Exchange Act during the 12 months (or such shorter period as the Company was required to file reports) preceding the sale.
Persons who have beneficially owned restricted Common Stock shares or our Warrants for at least six months but who are our affiliates at the time of, or at any time during the three months preceding, a sale, would be subject to additional restrictions, by which such person would be entitled to sell within any three-month period only a number of securities that does not exceed the greater of:
| ● | 1% of the total number of our Class A Common Stock then outstanding; or |
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| ● | the average weekly reported trading volume of our Class A Common Stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale. |
Sales by our affiliates under Rule 144 are also limited by manner of sale provisions and notice requirements and to the availability of current public information about us.
Restrictions on the Use of Rule 144 by Shell Companies or Former Shell Companies
Rule 144 is not available for the resale of securities initially issued by shell companies (other than business combination related shell companies) or issuers that have been at any time previously a shell company. However, Rule 144 also includes an important exception to this prohibition if the following conditions are met:
| ● | the issuer of the securities that was formerly a shell company has ceased to be a shell company; | |
| ● | the issuer of the securities is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act; | |
| ● | the issuer of the securities has filed all Exchange Act reports and material required to be filed, as applicable, during the preceding 12 months (or such shorter period that the issuer was required to file such reports and materials), other than Current Reports on Form 8-K; and | |
| ● | at least one year has elapsed from the time that the issuer filed current Form 10 type information with the SEC reflecting its status as an entity that is not a shell company. |
As a result, Purchaser Representative will be able to sell their founder shares and private placement warrants, as applicable, pursuant to Rule 144 without registration one year after the Business Combination.
Following the recent completion of the Business Combination, the Company is no longer a shell company, and, once the conditions set forth in the exceptions listed above are satisfied, Rule 144 will become available for the resale of the above noted restricted securities.
Lock-up Agreements
Pursuant to certain lock-up restrictions agreed to into in connection with the Merger Agreement, subject to certain exceptions, certain of the Company’s key stockholders are contractually restricted from selling or transferring any of their shares of our Class A Common Stock. Such restrictions commencing from the closing (A) with respect to fifty percent (50%) of the restricted securities, ending on the earliest of (x) the six (6) month anniversary of the closing of the business combination, (y) the date on which the closing sale price of the DMA’s common stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any twenty (20) trading days within any thirty (30) trading day period commencing after the closing of the business combination, and (z) the date after the closing of the business combination on which the DMA consummates a liquidation, merger, share exchange or other similar transaction with an unaffiliated third party that results in all of the DMA’s stockholders having the right to exchange their shares of DMA common stock for cash, securities or other property (a “Subsequent Transaction”) and (B) with respect to the remaining fifty percent (50%) of the restricted securities, ending on the earlier of (x) the six (6) month anniversary of the closing of the business combination, and (y) a Subsequent Transaction: (i) lend, offer, pledge, hypothecate, encumber, donate, assign, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any restricted securities, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the restricted securities, or (iii) publicly disclose the intention to do any of the foregoing.
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PLAN OF DISTRIBUTION
We are registering the shares of Class A Common Stock including the shares issuable upon conversion of the Notes and exercise of the Warrants to permit the resale of these shares of Class A Common Stock by the holders of the notes and warrants from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the shares of Class A Common Stock, although we will receive the exercise price of any Warrants not exercised by the selling stockholders on a cashless exercise basis. We will bear all fees and expenses incident to our obligation to register the shares of Class A Common Stock .
The selling stockholders may sell all or a portion of the shares of Class A Common Stock held by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of Class A Common Stock are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of Class A Common Stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions, pursuant to one or more of the following methods:
| ● | on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; | |
| ● | in the over-the-counter market; | |
| ● | in transactions otherwise than on these exchanges or systems or in the over-the-counter market; | |
| ● | through the writing or settlement of options, whether such options are listed on an options exchange or otherwise; | |
| ● | 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; | |
| ● | short sales made after the date the Registration Statement is declared effective by the SEC; | |
| ● | broker-dealers may agree with a selling security holder to sell a specified number of such shares at a stipulated price per share; | |
| ● | a combination of any such methods of sale; and | |
| ● | any other method permitted pursuant to applicable law. |
The selling stockholders may also sell shares of Class A Common Stock under Rule 144 promulgated under the Securities Act of 1933, as amended, if available, rather than under this prospectus. In addition, the selling stockholders may transfer the shares of Class A Common Stock by other means not described in this prospectus. If the selling stockholders effect such transactions by selling shares of Class A Common Stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of Class A Common Stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the shares of Class A Common Stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of Class A Common Stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of Class A Common Stock short and deliver shares of Class A Common Stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or pledge shares of Class A Common Stock to broker-dealers that in turn may sell such shares.
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The selling stockholders may pledge or grant a security interest in some or all of the notes, warrants or shares of Class A Common Stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of Class A Common Stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of Class A Common Stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
To the extent required by the Securities Act and the rules and regulations thereunder, the selling stockholders and any broker-dealer participating in the distribution of the shares of Class A Common Stock may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of Class A Common Stock is made, a prospectus supplement, if required, will be distributed, which will set forth the aggregate amount of shares of Class A Common Stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.
Under the securities laws of some states, the shares of Class A Common Stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of Class A Common Stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that any selling stockholder will sell any or all of the shares of Class A Common Stock registered pursuant to the registration statement, of which this prospectus forms a part.
The selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of Class A Common Stock by the selling stockholders and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the shares of Class A Common Stock to engage in market-making activities with respect to the shares of Class A Common Stock. All of the foregoing may affect the marketability of the shares of Class A Common Stock and the ability of any person or entity to engage in market-making activities with respect to the shares of Class A Common Stock .
We will pay all expenses of the registration of the shares of Class A Common Stock pursuant to the registration rights agreement, estimated to be $83,500 in total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, a selling stockholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling stockholders against liabilities, including some liabilities under the Securities Act in accordance with the registration rights agreements or the selling stockholders will be entitled to contribution. We may be indemnified by the selling stockholders against civil liabilities, including liabilities under the Securities Act that may arise from any written information furnished to us by the selling stockholder specifically for use in this prospectus, in accordance with the related registration rights agreements or we may be entitled to contribution.
Once sold under the registration statement, of which this prospectus forms a part, the shares of Class A Common Stock will be freely tradable in the hands of persons other than our affiliates.
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LEGAL MATTERS
Sichenzia Ross Ference Carmel LLP, New York, New York has passed upon the validity of the securities of Trugolf Holdings, Inc. offered by this prospectus and certain other legal matters related to this prospectus.
EXPERTS
The financial statements of DMA as of March 31, 2023 and 2022, and for years ended March 31, 2023 and 2022 included in this prospectus have been audited by MaloneBailey, LLP, independent registered public accounting firm, as set forth in their report thereon (which contains an explanatory paragraph relating to substantial doubt about the ability of DMA to continue as a going concern), appearing herein, and are included in reliance on such report given on the authority of such firm as experts in auditing and accounting.
CohnReznick LLP, independent registered public accounting firm, has audited the financial statements of TruGolf as of December 31, 2022, and for the year ended December 31, 2022, as set forth in their report included herein. The 2022 financial statements of TruGolf are included in this registration statement in reliance on CohnReznick LLP’s report, given on their authority as experts in accounting and auditing.
Daszkal Bolton LLP, independent registered public accounting firm, has audited the financial statements of TruGolf as of December 31, 2021, and for the year ended December 31, 2021, as set forth in their report included herein. The 2021 financial statements of TruGolf are included in this registration statement in reliance on Daszkal Bolton LLP’s report, given on their authority as experts in accounting and auditing.
CohnReznick LLP (“CohnReznick”) served as TruGolf, Inc.’s (“TruGolf” or “Company”) independent registered public accounting firm for the fiscal year ended December 31, 2022. Daszkal Bolton, LLP (“Daszkal”) served as TruGolf’s independent registered public accounting firm for the fiscal year ended December 31, 2021.
On April 5, 2023, the Company was advised by Daszkal, the Company’s independent registered public accounting firm, that Daszkal completed a combination with CohnReznick. On April 5, 2023, TruGolf engaged CohnReznick to serve as its independent registered public accounting firm for the fiscal year ended December 31, 2022.
On February 2, 2024, TruGolf Holding dismissed CohnReznick. The Company began its search for a new independent registered public accounting firm for the first quarter of 2024 and going forward.
CohnReznick’s report of independent registered public accounting firm, dated July 31, 2023, on TruGolf’s balance sheet as of December 31, 2022 and the related consolidated statements of operations, changes in stockholders’ deficit, and cash flows for the years then ended did not contain any adverse opinion or disclaimer of opinion, nor was it qualified or modified as to uncertainty, audit scope or accounting principles.
CohnReznick served as the TruGolf’s independent registered public accounting firm for the fiscal year ended December 31, 2022.
During the fiscal year ended December 31, 2022, and the subsequent interim period through February 2, 2024, there were:
| (i) | no disagreements (as described in Item 304(a)(1)(iv) of Regulation S-K and the related instructions) between the Company and CohnReznick on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to CohnReznick’s satisfaction, would have caused CohnReznick to make reference to the subject matter of disagreement in connection with its reports on the Company’s consolidated financial statements for such years; and | |
| (ii) | no “reportable events” within the meaning of Item 304(a)(1)(v) of Regulation S-K. | |
| (iii) | identified material weaknesses in its internal control over financial reporting. A material weakness is a deficiency or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of TruGolf’s annual or interim financial statements will not be prevented or detected on a timely basis |
Daszkal served as the TruGolf’s independent registered public accounting firm for the fiscal year ended December 31, 2021.
During the fiscal year ended December 31, 2021, and the subsequent interim period, there were:
| (i) | no disagreements (as described in Item 304(a)(1)(iv) of Regulation S-K and the related instructions) between the Company and Daszkal on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to Daszkal’s satisfaction, would have caused Daszkal to make reference to the subject matter of disagreement in connection with its reports on the Company’s consolidated financial statements for such years; and | |
| (ii) | no “reportable events” within the meaning of Item 304(a)(1)(v) of Regulation S-K. | |
| (iii) | identified material weaknesses in its internal control over financial reporting. A material weakness is a deficiency or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of TruGolf’s annual or interim financial statements will not be prevented or detected on a timely basis |
The Company provided CohnReznick with a copy of the disclosures it is making in this this Registration Statement on Form S-1 and requested that CohnReznick furnish a letter addressed to the SEC stating whether CohnReznick agrees with the statements made herein. A copy of CohnReznick’s letter dated February 9, 2024, is filed as Exhibit 99.1 to this Registration Statement on Form S-1.
The Company provided Daszkal with a copy of the disclosures it is making in this this Registration Statement on Form S-1 and requested that Daszkal furnish a letter addressed to the SEC stating whether CohnReznick agrees with the statements made herein. A copy of Daszkal’s letter dated February 9, 2024, is filed as Exhibit 99.2 to this Registration Statement on Form S-1.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements and other information with the SEC. We have also filed a registration statement on Form S-1, including exhibits, under the Securities Act with respect to the securities offered by this prospectus. This prospectus is part of the registration statement, but does not contain all of the information included in the registration statement or the exhibits. Our SEC filings are available to the public on the Internet at a website maintained by the SEC located at http://www.sec.gov.
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INDEX TO FINANCIAL STATEMENTS
| Page | |
| Audited Financial Statements | |
| Report of Independent Registered Public Accounting Firm (PCAOB ID Number 206) | F-17 |
| Financial Statements: | |
| Balance Sheets as of March 31, 2023 and 2022 | F-18 |
| Statements of Operations for the Years Ended March 31, 2023 and 2022 | F-19 |
| Statements of Changes in Stockholders’ Deficit for the Years Ended March 31, 2023 and 2022 | F-20 |
| Statements of Cash Flows for the Years Ended March 31, 2023 and 2022 | F-21 |
| Notes to Financial Statements for the Years Ended March 31, 2023 and 2022 | F-22 to F-33 |
| UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION | |
| Unaudited Pro Forma Condensed Combined Financial Information of the Company as of and for the Six Months Ended June 30, 2023 and the Year Ended December 31, 2022 | F-68 |
| F-1 |
Deep Medicine Acquisition Corp.
Balance Sheets
(Unaudited)
| September 30, 2023 | March 31, 2023 | |||||||
| Assets | ||||||||
| Current assets | ||||||||
| Cash | $ | $ | ||||||
| Prepaid expenses | ||||||||
| Cash and marketable securities held in Trust Account | ||||||||
| Total current assets | ||||||||
| Total assets | $ | $ | ||||||
| Liabilities and Stockholders’ (Deficit) | ||||||||
| Current liabilities | ||||||||
| Accrued expenses - related party | $ | $ | ||||||
| Accrued expenses | ||||||||
| Taxes payable | ||||||||
| Loan payable | ||||||||
| Loan payable - related party | ||||||||
| Total current liabilities | ||||||||
| Non-current liabilities | ||||||||
| Deferred underwriting commissions | ||||||||
| Total non-current liabilities | ||||||||
| Total liabilities | ||||||||
| Commitments | ||||||||
| Common stock subject to possible redemption, shares at $ per share and shares at $ per share as of September 30, 2023 and March 31, 2023, respectively | ||||||||
| Stockholders’ (Deficit) | ||||||||
| Preferred stock, $ par value, shares authorized, -- shares issued and outstanding as of September 30, 2023 and March 31, 2023 | ||||||||
| Class A Common stock, $ par value, shares authorized, shares issued and outstanding as of September 30, 2023 and March 31, 2023 (excluding shares subject to possible redemption) | ||||||||
| Class B Common stock, $ par value, shares authorized, -- shares issued and outstanding as of September 30, 2023 and March 31, 2023 | ||||||||
| Additional paid-in capital | ||||||||
| Accumulated deficits | ( | ) | ( | ) | ||||
| Total Stockholders’ (Deficit) | ( | ) | ( | ) | ||||
| Total Liabilities and Stockholders’ (Deficit) | $ | $ | ||||||
The accompanying notes are an integral part of unaudited financial statement
| F-2 |
DEEP MEDICINE ACQUISITION CORP.
Statements of Operations
(Unaudited)
| For the Three Months Ended September 30, 2023 | For the Three Months Ended September 30, 2022 | For the Six Months Ended September 30, 2023 | For the Six Months Ended September 30, 2022 | |||||||||||||
| Operating expense | ||||||||||||||||
| Officers compensation | $ | $ | $ | $ | ||||||||||||
| Franchise taxes | ||||||||||||||||
| General and administrative expenses | ||||||||||||||||
| Total operating expense | ||||||||||||||||
| Other income | ||||||||||||||||
| Investment income (loss) on investments held in Trust Account | ||||||||||||||||
| Total other income | ||||||||||||||||
| Net (loss) before income tax | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||
| Income tax | ||||||||||||||||
| Net income (loss) | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||
| Net (loss) per share | ||||||||||||||||
| Basic and diluted - Class A | $ | ) | $ | ) | $ | ) | $ | ) | ||||||||
| Basic and diluted - Class B | $ | ) | $ | ) | ||||||||||||
| Weighted average number of shares | ||||||||||||||||
| Basic and diluted - Class A | ||||||||||||||||
| Basic and diluted - Class B | ||||||||||||||||
The accompanying notes are an integral part of unaudited financial statement
| F-3 |
Deep Medicine Acquisition Corp.
Statement of Changes in Stockholders’ (Deficit)
(Unaudited)
| Preferred Stock | Class A Common Stock | Class B Common Stock | Additional Paid-in | Accumulated | ||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | Capital | Deficits | Total | ||||||||||||||||||||||||||||
| Balance, March 31, 2022 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Net (loss) | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Balance, June 30, 2022 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Accretion for Class A common stock to redemption amount | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Net (loss) | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Balance, September 30, 2022 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Balance, March 31, 2023 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Accretion for Class A common stock to redemption amount | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Net (loss) | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Balance, June 30, 2023 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Accretion for Class A common stock to redemption amount | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Net (loss) | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Balance, September 30, 2023 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
The accompanying notes are an integral part of unaudited financial statement
| F-4 |
Deep Medicine Acquisition Corp.
Statements of Cash Flows
(Unaudited)
| For
the Six Months Ended September 30, 2023 | For
the Six Months Ended September 30, 2022 | |||||||
| Cash flows from operating activities: | ||||||||
| Net (loss) | $ | ( | ) | $ | ( | ) | ||
| Adjustments to reconcile net income to net cash provided by (used in) operating activities: | ||||||||
| Investment income earned on investments held in Trust Account | ( | ) | ( | ) | ||||
| Changes in operating assets and liabilities: | ||||||||
| Prepaid expenses | ||||||||
| Accrued expenses | ||||||||
| Accrued expenses - related parties | ( | ) | ||||||
| Net cash (used in) operating activities | ( | ) | ( | ) | ||||
| Cash flows from investing activities: | ||||||||
| Cash released from trust account | ||||||||
| Investment of cash in Trust Account | ( | ) | ||||||
| Net cash provided by (used in) investing activities | ||||||||
| Cash flows from financing activities: | ||||||||
| Cash used for common stock redemption | ( | ) | ||||||
| Proceeds from loans payable | ||||||||
| Proceeds from extension loan - related parties | ||||||||
| Net cash provided by (used in) financing activities | ( | ) | ||||||
| Net increase/(decrease) in cash and cash equivalents | ( | ) | ( | ) | ||||
| Cash and cash equivalents at the beginning of the period | ||||||||
| Cash and cash equivalents at the end of the period | $ | $ | ||||||
| SUPPLEMENTAL CASH FLOW INFORMATION: | ||||||||
| Cash paid for interest | $ | $ | ||||||
| Cash paid for income taxes | $ | $ | ||||||
| NON-CASH INVESTING AND FINANCING ACTIVITIES: | ||||||||
| Remeasurement for Class A common stock subject to possible redemption | $ | $ | ||||||
The accompanying notes are an integral part of unaudited financial statement
| F-5 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Note 1 - Basis of Presentation
The accompanying unaudited financial statements of Deep Medicine Acquisition Corp. (the “Company”) have been prepared in accordance with the generally accepted accounting principles in the United States of America (“GAAP”) for interim financial information and in accordance with the instructions to Form 10-Q and Article 10 of Regulation S-X. Certain information or footnote disclosures normally included in financial statements prepared in accordance with GAAP have been condensed or omitted, pursuant to the applicable rules and regulations for interim financial reporting. Accordingly, they do not include all the information and footnotes necessary for a comprehensive presentation of financial position, results of operations, or cash flows. In the opinion of management, the accompanying unaudited financial statements include all adjustments, consisting of a normal recurring nature, which are necessary for a fair presentation of the financial position, operating results and cash flows for the periods presented.
The accompanying unaudited financial statements should be read in conjunction with the Annual Report on Form 10-K for the year ended March 31, 2023. The interim results for the three and six months ended September 30, 2023 are not necessarily indicative of the results to be expected for the year ending March 31, 2024 or for any future interim periods.
Note 2 - Organization and Description of Business Operations
The Company is a blank check company incorporated on July 8, 2020, under the laws of the State of Delaware for the purpose of entering into a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or other similar business combination with one or more businesses or entities (a “Business Combination”). While the Company may, subject to certain limitations, pursue a Business Combination target with operations or prospects in the digital healthcare and AI in medicine sector in the global market.
As of September 30, 2023, the Company had not commenced any operations. All activity for the period from July 8, 2020 (inception) through September 30, 2023, relates to the Company’s formation and its initial public offering (“IPO”), which is described below, and subsequent to IPO, identifying a target company for a Business Combination. The Company will not generate any operating revenues until after the completion of a Business Combination, at the earliest. The Company will generate non-operating income in the form of interest income from the cash and marketable securities held in the Trust Account (as defined below). The Company has selected March 31 as its fiscal year end.
On
October 29, 2021, the Company consummated its IPO of units (the “Units” and, with respect to the shares of Class
A common stock included in the Units, the “Public Shares”) at $ per unit, which included Units issued pursuant
to the full exercise by the Underwriters (as defined below) of their over-allotment option, and the private sale of an aggregate of
Units (the “Private Placement Units” and with respect to the shares of Class A common stock included in the Units, the “Private
Placement Shares”) to its sponsor, Bright Vision Sponsor LLC (the “Sponsor”) and I-Bankers Securities, Inc. (“I-Bankers”)
at a purchase price of $ per Private Placement Unit, generating gross proceeds of $
Transaction
costs amounted to $
Upon
the closing of the IPO on October 29, 2021, the Company deposited $
| F-6 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Following
the closing of the IPO on October 29, 2021, cash of $
On March 31, 2023, the Company entered into an Agreement and Plan of Merger (the “Original Merger Agreement”) with DMAC Merger Sub Inc., a Nevada corporation and wholly-owned subsidiary of the Company (“Merger Sub”), TruGolf, Inc., a Nevada corporation (“TruGolf”), Bright Vision Sponsor LLC, a Delaware limited liability company, solely in the capacity as the representative for certain stockholders of the Company (the “Purchaser Representative”), and Christopher Jones, an individual, solely in the capacity as the representative for stockholders of TruGolf (the “Seller Representative”). Pursuant to the Original Merger Agreement, and subject to the terms and conditions set forth therein, upon the consummation of the transactions contemplated thereby (the “Closing”), Merger Sub will merge with and into TruGolf, with TruGolf surviving as a wholly-owned subsidiary of the Company, and with TruGolf’s equity holders receiving shares of the Company’s common stock.
On July 21, 2023, the Company, Merger Sub, the Purchaser Representative and the Seller Representative, entered into an Amended and Restated Agreement and Plan of Merger (as may be amended and/or restated from time to time, the “Restated Merger Agreement”) pursuant to which the Original Merger Agreement was amended and restated to provide, among other things, that (i) contingent earnout shares will be issued after the Closing, if and when earned, upon the Company meeting the milestones specified in the Restated Merger Agreement, rather than being issued at the closing of the merger and being placed into escrow subject to potential forfeiture; and (ii) the per share price of the Company’s common stock used in the calculation of the number of shares to be issued to the Sellers as merger consideration shall be $, as opposed to the price at which the Company redeems the shares of common stock held by its public stockholders in connection with the closing of this business combination. The Restated Merger Agreement supersedes the Original Merger Agreement. For additional information on the Restated Merger Agreement, refer to the Company’s Current Report on Form 8-K as filed with the SEC on July 24, 2023.
The
Company must complete a Business Combination with one or more operating businesses or assets that together have an aggregate fair market
value equal to at least % of the net assets held in the Trust Account (net of amounts disbursed to management for working capital purposes,
if permitted, and excluding the amount of any deferred underwriting commissions) at the time of the Company’s signing a definitive
agreement in connection with its initial Business Combination. The Company will only complete a Business Combination if the post-transaction
company owns or acquires
The Company will provide its stockholders with the opportunity to redeem all or a portion of their Public Shares upon the completion of a Business Combination either (i) in connection with a stockholder meeting called to approve the Business Combination or (ii) by means of a tender offer. The decision as to whether the Company will seek stockholder approval of a Business Combination or conduct a tender offer will be made by the Company. The stockholders will be entitled to redeem their shares for a pro rata portion of the amount held in the Trust Account (initially $ per share), calculated as of two business days prior to the completion of a Business Combination, including any pro rata interest earned on the funds held in the Trust Account and not previously released to the Company to pay its tax obligations. The shares of Class A common stock are recorded at redemption value and classified as temporary equity upon the completion of the IPO, in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 480 “Distinguishing Liabilities from Equity.”
According
to the Company’s second amended and restated certificate of incorporation, as amended (the “Charter”), the Company
will proceed with a Business Combination only if the Company has net tangible assets of at least $
| F-7 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
If the Company seeks stockholder approval in connection with a Business Combination, the Sponsor has agreed to (i) waive its redemption rights with respect to any shares of Class A common stock held by them in connection with the completion of the Business Combination, (ii) waive its redemption rights with respect to any shares of Class A common stock held by them in connection with a stockholder vote to approve an amendment to the Charter (a) to modify the substance or timing of the Company’s obligation to redeem % of the Public Shares if the Company does not complete the Business Combination within the Combination Period (as defined below) or (b) with respect to any other provision relating to stockholders’ rights or pre-initial Business Combination activity and (iii) waive its rights to liquidating distributions from the Trust Account with respect to the shares of Class B common stock they initially purchased in March 2021 (including the shares of the Company’s Class A common stock issued upon the conversion thereof, the “Founder Shares”) or Private Placement Shares if the Company fails to complete the Business Combination within the Combination Period (as defined below). In addition, the Sponsor has agreed to vote any share it held in favor of the Business Combination.
Additionally, each public stockholder may elect to redeem its Public Shares, without voting, and if they do vote, irrespective of whether they vote for or against a proposed Business Combination.
Notwithstanding the foregoing, if the Company seeks stockholder approval of a Business Combination and it does not conduct redemptions pursuant to the tender offer rules, the Company’s Charter provides that a public stockholder, together with any affiliate of such stockholder or any other person with whom such stockholder is acting in concert or as a “group” (as defined under Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), will be restricted from redeeming its shares with respect to more than an aggregate of 15% of the Public Shares without the Company’s prior written consent.
The
Company initially had until October 29, 2022 (the “Initial Combination Period”) to complete a Business Combination. On October
19, 2022, an aggregate of $
The Sponsor has agreed to waive its liquidation rights with respect to the Founder Shares and Private Placement Shares if the Company fails to complete a Business Combination within the Combination Period (as defined below). However, if the Sponsor acquires Public Shares in or after the IPO, such Public Shares will be entitled to liquidating distributions from the Trust Account if the Company fails to complete a Business Combination within the Combination Period (as defined below). The underwriters have agreed to waive their rights to their business combination marketing fees (see Note 9) held in the Trust Account in the event the Company does not complete a Business Combination within the Combination Period (as defined below) and, in such event, such amounts will be included with the funds held in the Trust Account that will be available to fund the redemption of the Public Shares. In the event of such distribution, it is possible that the per share value of the assets remaining available for distribution will be less than the IPO price per Unit ($).
The Sponsor has agreed that it will be liable to the Company, if and to the extent any claims by a third party for services rendered or products sold to the Company, or by a prospective target business with which the Company has discussed entering into a transaction agreement, reduce the amount of funds in the Trust Account to below (1) $ per Public Share or (2) such lesser amount per Public Share held in the Trust Account as of the date of the liquidation of the Trust Account due to reductions in the value of trust assets, in each case net of the amount of interest which may be withdrawn to pay taxes. This liability will not apply with respect to any claims by a third party who executed a waiver of any and all rights to seek access to the Trust Account nor will it apply to any claims under the Company’s indemnity of the underwriters of the IPO against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”). Moreover, in the event that an executed waiver is deemed to be unenforceable against a third party, the Sponsor will not be responsible to the extent of any liability for such third-party claims. The Company will seek to reduce the possibility that the Sponsor will have to indemnify the Trust Account due to claims of creditors by endeavoring to have all vendors, service providers (other than the Company’s independent auditors), prospective target businesses or other entities with which the Company does business, execute agreements with the Company waiving any right, title, interest or claim of any kind in or to monies held in the Trust Account.
| F-8 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
On
December 23, 2022, the Company held a special meeting of stockholders in lieu of an annual meeting of stockholders (the “2022 Special
Meeting”). At the 2022 Special Meeting, the Company’s stockholders approved amendments to the Charter to (i) extend the date
by which the Company must consummate its initial Business Combination from January 29, 2023 to July 29, 2023, or such earlier date as
determined by the Company’s board of directors (the “Second Extension”) and (ii) provide for the right of a holder
of Class B common stock of the Company to convert into Class A common stock of the Company on a one-for-one basis prior to the closing
of an initial Business Combination. The Charter amendments approved on the 2022 Special Meeting were filed with the Secretary of State
of the State of Delaware on December 27, 2022. Subsequently, the stockholders holding all of the issued and outstanding Class B common
stock of the Company elected to convert their Class B common stock into Class A common stock of the Company on a one-for-one basis. Accordingly,
shares of Class B common stock of the Company were cancelled, and shares of Class A Common Stock were issued to such
converting Class B stockholders. The shares of Class A common stock issued pursuant to the conversion are subject to the same
restrictions applicable to the Class B common stock before the conversion, including, among other things, certain transfer restrictions,
waiver of redemption rights and the obligation to vote in favor of an initial Business Combination as described in the prospectus for
our IPO. Additionally, on the 2022 Special Meeting, stockholders holding shares of the Public Shares exercised their right
to redeem such shares for a pro rata portion of the funds in the Company’s Trust Account. As a result, $
On
July 13, 2023, the Company held a special meeting of stockholders (the “2023 Special Meeting”), at which the Company’s
stockholders approved a charter amendment to extend the date by which the Company must consummate its initial Business Combination from
July 29, 2023 to January 29, 2024, or such earlier date as determined by the Company’s board of directors (the “Third Extension”)
(the 27-month period, from the closing of the IPO to January 29, 2024 (or such earlier date as determined by the board), as extended
by the Third Extension, unless further extended pursuant to the Company’s Charter, that the Company has to consummate an initial
Business Combination, the “Combination Period”). The Charter amendment approved on the 2023 Special Meeting was filed with
the Secretary of State of the State of Delaware on July 13, 2023. On the 2023 Special Meeting, the Company’s stockholders holding
Public Shares exercised their right to redeem such shares for a pro rata portion of the funds in the Company’s Trust Account.
As a result, approximately $
Underwriting Agreement and Business Combination Marketing Agreement
The
Company engaged I-Bankers as the representative of the underwriters (the “Underwriters”) in the IPO of the Company’s
Class A common stock for $
Upon
the closing of the IPO, the Company issued to I-Bankers a warrant to purchase
| F-9 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Liquidity and Capital Resources
The Company has principally financed its operations from inception using proceeds from the sale of its equity securities to its stockholders prior to the IPO, proceeds from related party loan and such amount of proceeds from the IPO that were placed in an account outside of the Trust Account for working capital purposes. Until the consummation of a Business Combination, the Company will be using the funds not held in the Trust Account for identifying and evaluating prospective acquisition candidates, performing due diligence on prospective target businesses, paying for travel expenditures, selecting the target business to acquire, and structuring, negotiating and consummating the Business Combination.
As
of September 30, 2023 and March 31, 2023, the Company had loans payable to the Sponsor and its affiliates in amount of $
On
October 15, 2022, the Company issued two promissory notes in an aggregate principal amount of $
On
February 9, 2023, the Company issued a promissory note in an aggregate principal amount of $
On
September 30, 2023, the Company issued a promissory note in principal amount of $
The Company may need to raise additional capital through loans or additional investments from its Sponsor, stockholders, officers, directors, or third parties. The Company’s officers, directors and Sponsor may, but are not obligated to (other than as described above), loan the Company funds, from time to time or at any time, in whatever amount they deem reasonable in their sole discretion, to meet the Company’s working capital needs. Accordingly, the Company may not be able to obtain additional financing. If the Company is unable to raise additional capital, it may be required to take additional measures to conserve liquidity, which could include, but not necessarily be limited to, curtailing operations, suspending the pursuit of a potential transaction, and reducing overhead expenses. The Company cannot provide any assurance that new financing will be available to it on commercially acceptable terms, if at all.
Risks and Uncertainties
Management continues to evaluate the impact of the COVID-19 pandemic on the industry and has concluded that while it is reasonably possible that the virus could have a negative effect on the Company’s financial position, results of its operations, and/or search for a target company, the specific impact is not readily determinable as of the date of this financial statement. The financial statement does not include any adjustments that might result from the outcome of this uncertainty.
| F-10 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Going Concern and Management’s Plan
The Company expects to incur significant costs in pursuit of its acquisition plans and will not generate any operating revenues until after the completion of its initial Business Combination. In addition, the Company expects to have negative cash flows from operations as it pursues an initial Business Combination target. In connection with the Company’s assessment of going concern considerations in accordance with FASB Accounting Standards Update (“ASU”) Topic 2014-15, “Disclosures of Uncertainties about an Entity’s Ability to Continue as a Going Concern” the Company does not currently have adequate liquidity to sustain operations, which consist solely of pursuing a Business Combination.
The Company may raise additional capital through loans or additional investments from the Sponsor or its stockholders, officers, directors, or third parties. The Company’s officers and directors and the Sponsor may, but are not obligated to (except as described above), loan the Company funds, from time to time, in whatever amount they deem reasonable in their sole discretion, to meet the Company’s working capital needs. Based on the foregoing, the Company believes it will have sufficient cash to meet its needs through the earlier of consummation of a Business Combination or the deadline to complete a Business Combination pursuant to the Company’s Charter (unless otherwise amended by stockholders).
While the Company expects to have sufficient access to additional sources of capital if necessary, there is no current commitment on the part of any financing source to provide additional capital and no assurances can be provided that such additional capital will ultimately be available. These conditions raise substantial doubt about the Company’s ability to continue as a going concern until the consummation of a Business Combination or for a period of time within one year after the date that these unaudited financial statements are issued. There is no assurance that the Company’s plans to raise additional capital (to the extent ultimately necessary) or to consummate a Business Combination will be successful or successful within the Combination Period. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
As is customary for a special purpose acquisition company, if the Company is not able to consummate a Business Combination during the Combination Period, it will cease all operations and redeem the Public Shares. Management plans to continue its efforts to consummate a Business Combination during the Combination Period.
Note 3 - Recent Accounting Pronouncements
Management of the Company does not believe that any recently issued, but not effective, accounting standards, if currently adopted, would have a material effect on the Company’s financial statements.
Note 4 - Cash and Cash Equivalents
The
Company considers all highly liquid investments with an original maturity of three months or less to be cash equivalents. Cash equivalents
are carried at cost, which approximates fair value. The Company had cash of $
| F-11 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Note 5 - Marketable Securities Held in Trust Account
At
September 30, 2023, substantially all of the assets held in the Trust Account were held in money market funds, which are invested primarily
in U.S. Treasury securities. The Company’s investments held in the Trust Account are classified as trading securities. Trading
securities are presented on the balance sheet at fair value at the end of each reporting period. Gains and losses resulting from the
change in fair value of investments held in Trust Account are included in interest earned on marketable securities held in Trust Account
in the accompanying statements of operations. The estimated fair values of investments held in Trust Account are determined using available
market information. As of September 30, 2023 and March 31, 2023, the marketable securities held in the Trust Account were $
Note 6 -Common Stock Subject to Possible Redemption
The Company accounts for its common stock subject to possible redemption in accordance with the guidance in FASB ASC Topic 480 “Distinguishing Liabilities from Equity.” Common stock subject to mandatory redemption are classified as a liability instrument and are measured at fair value. Conditionally redeemable common stock (including common stock that feature redemption rights that are either within the control of the holder or subject to redemption upon the occurrence of uncertain events not solely within the Company’s control) are classified as temporary equity. At all other times, common stock is classified as stockholders’ equity. The Company’s common stock feature certain redemption rights that are considered to be outside of the Company’s control and subject to occurrence of uncertain future events. Accordingly, common stock subject to possible redemption are presented at redemption value as temporary equity, outside of the stockholders’ equity section of the Company’s balance sheet.
The Company recognizes changes in redemption value immediately as they occur and adjusts the carrying value of redeemable common stock to equal the redemption value at the end of each reporting period. Immediately upon the closing of the IPO, the Company recognized the remeasurement from initial book value to redemption value. The change in the carrying value of redeemable common stock resulted in charges against additional paid-in capital and accumulated deficit.
At September 30, 2023, the common stock subject to redemption reflected in the balance sheet are reconciled in the following table:
| Gross proceeds | $ | |||
| Less: | ||||
| Common stock issuance costs | ( |
) | ||
| Plus: | ||||
| Remeasurement of carrying value to redemption value | ||||
| Common stock subject to possible redemption, March 31, 2022 | $ | |||
| Less: | ||||
| Distribution for redemption | ( |
) | ||
| Plus: | ||||
| Remeasurement of carrying value to redemption value | ||||
| Common stock subject to possible redemption, March 31, 2023 | $ | |||
| Less: | ||||
| Distribution for redemption | ( |
) | ||
| Plus: | ||||
| Additional deposit for extension | ||||
| Remeasurement of carrying value to redemption value | ||||
| Common stock subject to possible redemption, September 30, 2023 | $ |
The Company complies with accounting and disclosure requirements FASB ASC Topic 260, “Earnings per Share.” Net loss per share of common stock is computed by dividing net loss by the weighted average number of shares of common stock issued and outstanding for the period. During the three and six months ended September 30, 2023 and 2022, the Company did not have any dilutive securities and other contracts that could, potentially, be exercised or converted into shares of common stock and then share in the earnings (loss) of the Company. As a result, diluted loss per share of common stock is the same as basic loss per share of common stock for the period.
| F-12 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
For
the September 30, 2023 | For
the September 30, 2022 | |||||||
| Numerator: | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Denominator: | ||||||||
| Basic and diluted loss per share – Class A | $ | ) | ) | |||||
| Basic and diluted loss per share – Class B | $ | $ | ) | |||||
| Denominator for basic and diluted earnings per share – Weighted-average shares of Class A common stock issued and outstanding during the period | ||||||||
| Denominator for basic and diluted earnings per share – Weighted-average shares of Class B common stock issued and outstanding during the period | ||||||||
For
the September 30, 2023 | For
the September 30, 2022 | |||||||
| Numerator: | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Denominator: | ||||||||
| Basic and diluted loss per share – Class A | $ | ) | ) | |||||
| Basic and diluted loss per share – Class B | $ | $ | ) | |||||
| Denominator for basic and diluted earnings per share – Weighted-average shares of Class A common stock issued and outstanding during the period | ||||||||
| Denominator for basic and diluted earnings per share – Weighted-average shares of Class B common stock issued and outstanding during the period | ||||||||
Note 8 – Loan payable
On
September 30, 2023, the Company issued a promissory note in principal amount of $
Note 9 - Related Party Transactions
Accrued Expenses - Related Parties
As
of September 30, 2023 and March 31, 2023, the Company had accrued expenses – related parties in amount of $
Loan Payable – Related Party
As
of September 30, 2023 and March 31, 2023, the Company had a loan payable to the Sponsor in amount of $
On
October 15, 2022, the Company issued the Sponsor Affiliate Notes in an aggregate principal amount of $
On
February 9, 2023, the Company issued a promissory note in an aggregate principal amount of $
| F-13 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Working Capital Loans
In
addition, in order to finance transaction costs in connection with a Business Combination, the Sponsor, an affiliate of the Sponsor,
or certain of the Company’s officers and directors or their affiliates may, but are not obligated to, loan the Company funds as
may be required (“Working Capital Loans”). If the Company completes a Business Combination, the Company would repay the Working
Capital Loans out of the proceeds of the Trust Account released to the Company. Otherwise, the Working Capital Loans would be repaid
only out of funds held outside the Trust Account. In the event that a Business Combination does not close, the Company may use a portion
of proceeds held outside the Trust Account to repay the Working Capital Loans but no proceeds held in the Trust Account would be used
to repay the Working Capital Loans. The Working Capital Loans would either be repaid upon consummation of a Business Combination, without
interest, or, at the lender’s discretion, up to $
Note 10 - Commitments and Contingency
Registration Rights
The holders of the Founder Shares, Private Placement Units (and their underlying securities), the Representative Shares, the Representative Warrants (and their underlying securities), the shares of Class A common stock issuable to the Company’s directors and officers within 10 days following the Business Combination and any Units that may be issued upon conversion of the Working Capital Loans (and their underlying securities) will be entitled to registration rights pursuant to a registration rights agreement to be signed prior to or on the effective date of the IPO requiring the Company to register such securities for resale (in the case of the Founder Shares, only after conversion to Class A common stock). The holders of these securities are entitled to make up to three demands, excluding short form demands, that the Company register such securities. In addition, the holders have certain “piggy-back” registration rights with respect to registration statements filed subsequent to the completion of a Business Combination and rights to require the Company to register for resale such securities pursuant to Rule 415 under the Securities Act. The registration rights agreement does not contain liquidated damages or other cash settlement provisions resulting from delays in registering the Company’s securities. The Company will bear the expenses incurred in connection with the filing of any such registration statements.
Underwriting Agreement
The Company had granted the Underwriters a 30-day option from the date of IPO to purchase up to additional Units to cover over-allotments, if any, at the IPO price less the underwriting discounts and commissions.
Simultaneously upon the closing
of the IPO, the Underwriters exercised the over-allotment option in full. As such, the Underwriters were paid an underwriting discount
and commission of $ per Unit, or $
Note 11 - Stockholders’ Equity
The
Company is authorized to issue a total of
| F-14 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
Preferred Stock
As of September 30, 2023 and March 31, 2023, shares of Preferred Stock were issued or outstanding. The designations, voting and other rights and preferences of the Preferred Stock may be determined from time to time by the Company’s board of directors.
Common Stock
As of September 30, 2023 and March 31, 2023, there were and shares of Class A common stock issued and outstanding, respectively, including and public shares, which were subject to possible redemption and presented as temporary equity.
As of September 30, 2023 and March 31, 2023, there were shares of Class B common stock issued and outstanding.
In July 2023, the Company and the Sponsor entered into certain non-redemption agreements (“Non-Redemption Agreements”) with each of six unaffiliated third parties, with respect to a maximum aggregate of shares of the Company’s Class A common stock, in exchange for such third parties agreeing not to redeem (or shall use commercially reasonable efforts to request that the Company’s transfer agent reverse any previously submitted redemption demand) such shares in connection with the 2023 Special Meeting, and the Sponsor has agreed to transfer a maximum aggregate of Founder Shares pursuant to the Non-Redemption Agreements upon the consummation of the Company’s initial Business Combination.
On
July 13, 2023, the Company held the 2023 Special Meeting, at which the Company’s stockholders approved the Third Extension. On
the 2023 Special Meeting, the Company’s stockholders holding public shares exercised their right to redeem such shares
for a pro rata portion of the funds in the Company’s Trust Account. As a result, approximately $
Rights
Each holder of a right will receive one-tenth (1/10) of one share of Class A common stock upon consummation of a Business Combination. In the event the Company will not be the surviving entity upon completion of the Company’s initial Business Combination, each holder of a public right will automatically receive the 1/10 share of Class A common stock underlying such public right (without paying any additional consideration); and each holder of a Private Placement Right or right underlying Units to be issued upon conversion of the Working Capital Loans will be required to affirmatively convert its rights in order to receive the 1/10 share of Class A common stock underlying each right (without paying any additional consideration). If the Company is unable to complete an initial Business Combination within the required time period and public stockholders redeem the public shares for the funds held in the Trust Account, holders of rights will not receive any such funds in exchange for their rights and the rights will expire worthless. The Company will not issue fractional shares upon conversion of the rights. If, upon conversion of the rights, a holder would be entitled to receive a fractional interest in a share, the Company will, upon exchange, comply with Section 155 of the Delaware General Corporation Law. The Company will make the determination of how to treat fractional shares at the time of its initial Business Combination and will include such determination in the proxy materials that it will send to stockholders for their consideration of such initial Business Combination.
If the Company is unable to complete a Business Combination within the Combination Period and the Company liquidates the funds held in the Trust Account, holders of rights will not receive any of such funds with respect to their rights, nor will they receive any distribution from the Company’s assets held outside of the Trust Account with respect to such rights, and the rights will expire worthless. Further, there are no contractual penalties for failure to deliver securities to the holders of the rights upon consummation of a Business Combination.
Additionally, in no event will the Company be required to net cash settle the rights, and the rights may expire worthless.
Representative Warrants and Representative Shares
Upon
the closing of the IPO, the Company issued to the Underwriters Representative Warrants, the exercise price of which will be $
The
Representative Warrants shall be exercisable, in whole or in part, commencing the later of October 26, 2022 and the closing of the Company’s
initial Business Combination and terminating on October 29, 2026. The Company accounted for the
| F-15 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
The Representative Warrants grants to holders demand and “piggy back” rights for periods of five and seven years from October 29, 2021. The Company will bear all fees and expenses attendant to registering the securities, other than underwriting commissions which will be paid for by the holders themselves. The exercise price and number of shares issuable upon exercise of the Representative Warrants may be adjusted in certain circumstances including in the event of a stock dividend, or the Company’s recapitalization, reorganization, merger or consolidation. However, the Representative Warrants will not be adjusted for issuances of Class A common stock at a price below its exercise price.
The Underwriters agreed not to transfer, assign or sell any of the Representative Shares without the Company’s prior written consent until the completion of the Business Combination. The Underwriters agreed (i) to waive its redemption rights with respect to such shares in connection with the completion of the initial Business Combination and (ii) to waive its rights to liquidating distributions from the Trust Account with respect to the Representative Shares if the Company fails to complete its initial Business Combination within the Combination Period. The shares have been deemed compensation by FINRA and are therefore subject to a lock-up for a period of 180 days immediately following October 29, 2021 pursuant to FINRA Rule 5110(e)(1).
Note 12 - Fair Value Measurements
The following table presents information about the Company’s assets that are measured at fair value on a recurring basis at September 30, 2023 and March 31, 2023 and indicates the fair value hierarchy of the valuation inputs the Company utilized to determine such fair value:
| Description | Level | September 30, 2023 | March 31, 2023 | |||||||||
| Assets: | ||||||||||||
| Marketable securities held in Trust Account | 1 | $ | $ | |||||||||
Note 13 - Subsequent Events
The Company evaluated subsequent events and transactions that occurred after the balance sheet date through the date these financial statements were issued. Based upon this review, the Company did not identify any subsequent events that would have required adjustment or disclosure in the financial statements other than the followings:
On October 25, 2023, the Company instructed the trustee to liquidate the investments held in the Trust Account and instead hold the funds in the Trust Account in an interest bearing demand deposit account until the earlier of the consummation of our Business Combination or liquidation.
On
November 2, 2023 and December 7, 2023, the Company executed Loan Agreements (together, the “Loan Agreements”)
with each of Greentree Financial Group, Inc., Finuvia, LLC, L&H, Inc., JAK Opportunities VI, LLC and Li Holding, Inc.
(together, the “PIPE Investors”). Pursuant to the terms and conditions of the Loan Agreements, the Company shall issue
the PIPE Investors up to $
On November 17, 2023, the Company and I-Bankers executed an amendment to the BCMA (the “BCMA Amendment”), pursuant to which I-Bankers’ fee due at the Closing was amended to provide that I-Bankers will receive: (i) $2,000,000 in cash and (ii) 212,752 Deep Medicine Class A Common Shares, which will be payable to I-Bankers in shares of New TruGolf.
On December 7, 2023, the Company amended the Restated Merger Agreement to (i) revise the definitions of the Company’s Class B Common Stock and New TruGolf’s Class B Common Stock therein to reflect that the voting rights of the Company’s Class B Common Stock and New TruGolf’s Class B Common Stock shall each be increased from ten (10) votes per share to twenty five (25) votes per share and (ii) decrease the size of the Post-Closing New TruGolf’s Board from seven members to five members, with the number of board members designated by the Company decreased from three members to one member.
| F-16 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and Board of Directors of
Deep Medicine Acquisition Corp.
Opinion on the Financial Statements
We have audited the accompanying balance sheets of Deep Medicine Acquisition Corp. (the “Company”) as of March 31, 2023 and 2022, and the related statements of operations, stockholders’ equity (deficit), and cash flows for the years then ended, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of March 31, 2023 and 2022, 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 Matter
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As more fully described in Note 1 to the financial statements, the Company’s business plan is dependent on the completion of a business combination within a prescribed period of time and if not completed will cease all operations except for the purpose of liquidating. The date for mandatory liquidation and subsequent dissolution 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. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ MaloneBailey, LLP
www.malonebailey.com
We have served as the Company’s auditor since 2021.
Houston, Texas
May 30, 2023, except for Note 7 which is dated July 31, 2023
| F-17 |
DEEP MEDICINE ACQUISITION CORP.
BALANCE SHEETS
| March 31, 2023 | March 31, 2022 | |||||||
| Assets | ||||||||
| Current assets | ||||||||
| Cash | $ | $ | ||||||
| Prepaid expenses | ||||||||
| Cash and marketable securities held in Trust Account | ||||||||
| Total current assets | ||||||||
| Total assets | $ | $ | ||||||
| Liabilities and Stockholders’ (Deficit) | ||||||||
| Current liabilities | ||||||||
| Accrued expenses - related party | $ | $ | ||||||
| Accrued expenses | ||||||||
| Taxes payable | ||||||||
| Loan payable - related party | ||||||||
| Total current liabilities | ||||||||
| Non-current liabilities | ||||||||
| Deferred underwriting commissions | ||||||||
| Total non-current liabilities | ||||||||
| Total liabilities | ||||||||
| Commitments | ||||||||
| Common stock subject to possible redemption, shares at $ per share and shares at $ per share as of March 31, 2023 and March 31, 2022, respectively | ||||||||
| Stockholders’ (Deficit) | ||||||||
| Preferred stock, $ par value, shares authorized, -- shares issued and outstanding as of March 31, 2023 and March 31, 2022 | ||||||||
| Class A Common stock, $ par value, shares authorized, and shares issued and outstanding as of March 31, 2023 and March 31, 2022, respectively (excluding shares and shares, respectively, subject to possible redemption) | ||||||||
| Class B Common stock, $ par value, shares authorized, -- shares and shares issued and outstanding as of March 31, 2023 and March 31, 2022, respectively | ||||||||
| Additional paid-in capital | ||||||||
| Accumulated deficits | ( | ) | ( | ) | ||||
| Total Stockholders’ (Deficit) | ( | ) | ( | ) | ||||
| Total Liabilities and Stockholders’ (Deficit) | $ | $ | ||||||
The accompanying notes are an integral part of the financial statements.
| F-18 |
DEEP MEDICINE ACQUISITION CORP.
STATEMENTS OF OPERATIONS
| For the Year Ended March 31, 2023 | For the Year Ended March 31, 2022 | |||||||
| Operating expense | ||||||||
| Officers compensation | $ | $ | ||||||
| Franchise taxes | ||||||||
| General and administrative expenses | ||||||||
| Total operating expense | ||||||||
| Other income | ||||||||
| Investment income (loss) on investments held in Trust Account | ( | ) | ||||||
| Total other income | ( | ) | ||||||
| Net loss before income tax | ( | ) | ( | ) | ||||
| Income tax | ||||||||
| Net loss | ( | ) | ( | ) | ||||
| Net loss per share | ||||||||
| Basic and diluted - Class A | $ | ) | $ | ) | ||||
| Basic and diluted - Class B | $ | ) | $ | ) | ||||
| Weighted average number of shares | ||||||||
| Basic and diluted - Class A | ||||||||
| Basic and diluted - Class B | ||||||||
The accompanying notes are an integral part of the financial statements.
| F-19 |
DEEP MEDICINE ACQUISITION CORP.
STATEMENTS OF CHANGES IN STOCKHOLDERS’ DEFICIT
FOR THE YEARS ENDED MARCH 31, 2023 AND 2022
| Preferred Stock | Class A Common Stock | Class B Common Stock | Additional Paid-in | Accumulated | ||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | Capital | Deficits | Total | ||||||||||||||||||||||||||||
| Balance, March 31, 2021 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Class A common stock issued in IPO | - | - | ||||||||||||||||||||||||||||||||||
| Offering cost | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Deferred underwriting commission | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Class A common stock issued for services | - | - | ( | ) | ||||||||||||||||||||||||||||||||
| Sale of private units | - | - | ||||||||||||||||||||||||||||||||||
| Class A common stock subject to possible redemption | - | ( | ) | ( | ) | - | ( | ) | ( | ) | ||||||||||||||||||||||||||
| Reclassification from negative additional paid-in capital to accumulated deficit | - | - | - | ( | ) | |||||||||||||||||||||||||||||||
| Net loss | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Balance, March 31, 2022 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
| Conversion from Class B to Class A | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||||
| Accretion for Class A common stock to redemption amount | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Net loss | - | - | - | ( | ) | ( | ) | |||||||||||||||||||||||||||||
| Balance, March 31, 2023 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||
The accompanying notes are an integral part of the financial statements.
| F-20 |
DEEP MEDICINE ACQUISITION CORP.
STATEMENTS OF CASH FLOWS
| For the Year Ended March 31, 2023 | For the Year Ended March 31, 2022 | |||||||
| Cash flows from operating activities: | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Adjustments to reconcile net income to net cash provided by (used in) operating activities: | ||||||||
| Investment income earned on investments held in Trust Account | ( | ) | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Prepaid expenses | ( | ) | ||||||
| Accrued expenses | ||||||||
| Accrued expenses - related parties | ( | ) | ( | ) | ||||
| Taxes payable | ||||||||
| Net cash (used in) operating activities | ( | ) | ( | ) | ||||
| Cash flows from investing activities: | ||||||||
| Distribution for taxes payments | ||||||||
| Cash released from trust account | ||||||||
| Investment of cash in Trust Account | ( | ) | ( | ) | ||||
| Net cash provided by (used in) investing activities | ( | ) | ||||||
| Cash flows from financing activities: | ||||||||
| Proceeds from extension loan – related parties | ||||||||
| Cash used for common stock redemption | ( | ) | ||||||
| Proceeds from sale of Units, net of underwriting discounts paid | ||||||||
| Proceeds from sale of Private Placement Units | ||||||||
| Payment of offering costs | ( | ) | ||||||
| Due to related party | ( | ) | ||||||
| Net cash provided by (used in) financing activities | ( | ) | ||||||
| Net increase/(decrease) in cash and cash equivalents | ( | ) | ||||||
| Cash and cash equivalents at the beginning of the period | ||||||||
| Cash and cash equivalents at the end of the period | $ | $ | ||||||
| SUPPLEMENTAL CASH FLOW INFORMATION: | ||||||||
| Cash paid for interest | $ | $ | ||||||
| Cash paid for income taxes | $ | $ | ||||||
| NON-CASH INVESTING AND FINANCING ACTIVITIES: | ||||||||
| Initial classification of common stock subject to possible redemption | $ | $ | ||||||
| Deferred underwriting fee payable | $ | $ | ||||||
| Additional shares issued to sponsor due to upsize of IPO | $ | $ | ||||||
| Reclassification of Class A common stock | $ | $ | ||||||
| Remeasurement for Class A common stock subject to possible redemption | $ | $ | ||||||
The accompanying notes are an integral part of the financial statements.
| F-21 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
Note 1 - Organization and Description of Business Operations
The Company is a blank check company incorporated on July 8, 2020, under the laws of the State of Delaware for the purpose of entering into a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or other similar business combination with one or more businesses or entities (a “Business Combination”). While the Company may, subject to certain limitations, pursue a Business Combination target with operations or prospects in the digital healthcare and AI in medicine sector in the global market.
As of March 31, 2023, the Company had not commenced any operations. All activity for the period from July 8, 2020 (inception) through March 31, 2023, relates to the Company’s formation and its initial public offering (“IPO”), which is described below, and subsequent to IPO, identifying a target company for a Business Combination. The Company will not generate any operating revenues until after the completion of a Business Combination, at the earliest. The Company will generate non-operating income in the form of interest income from the cash and marketable securities held in the Trust Account (as defined below). The Company has selected March 31 as its fiscal year end.
On
October 29, 2021, the Company consummated its IPO of units (the “Units” and, with respect to the shares of Class
A common stock included in the Units, the “Public Shares”) at $ per unit, which included Units issued pursuant
to the full exercise by the Underwriters (as defined below) of their over-allotment option, and the private sale of an aggregate of
Units (the “Private Placement Units” and with respect to the shares of Class A common stock included in the Units, the “Private
Placement Shares”) to its sponsor, Bright Vision Sponsor LLC (the “Sponsor”) and I-Bankers Securities, Inc. (“I-Bankers”)
at a purchase price of $ per Private Placement Unit, generating gross proceeds of $
Transaction
costs amounted to $
Upon
the closing of the IPO on October 29, 2021, the Company deposited $
Following
the closing of the IPO, cash of $
On
July 12, 2022, the Company entered into a definitive Business Combination Agreement (“Chijet Business Combination Agreement”)
with Chijet Inc. (together with its subsidiaries, “Chijet”), each of the referenced holders of Chijet’s outstanding
shares (collectively, the “Sellers”), Chijet Motor Company, Inc., a wholly-owned subsidiary of Chijet (“Pubco”),
and Chijet Motor (USA) Company, Inc., a wholly-owned subsidiary of Pubco. Chijet indirectly holds an over 85% interest in Shandong Baoya
New Energy Vehicle Co., Ltd., a Chinese company (“Baoya”), which is a producer and manufacturer of electric vehicles. In
addition, Chijet indirectly holds an over
| F-22 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
On March 31, 2023, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”) with DMAC Merger Sub Inc., a Nevada corporation and wholly-owned subsidiary of the Company (“Merger Sub”), TruGolf, Inc., a Nevada corporation (“TruGolf”), Bright Vision Sponsor LLC, a Delaware limited liability company, in the capacity as the representative for certain stockholders of the Company, and Christopher Jones, an individual, in the capacity as the representative for stockholders of TruGolf. Pursuant to the Merger Agreement, and subject to the terms and conditions set forth therein, upon the consummation of the transactions contemplated thereby (the “Closing”), Merger Sub will merge with and into TruGolf, with TruGolf surviving as a wholly-owned subsidiary of the Company, and with TruGolf’s equity holders receiving shares of the Company’s common stock.
The
Company must complete a Business Combination with one or more operating businesses or assets that together have an aggregate fair market
value equal to at least % of the net assets held in the Trust Account (net of amounts disbursed to management for working capital purposes,
if permitted, and excluding the amount of any deferred underwriting commissions) at the time of the Company’s signing a definitive
agreement in connection with its initial Business Combination. The Company will only complete a Business Combination if the post-transaction
company owns or acquires
The Company will provide its stockholders with the opportunity to redeem all or a portion of their Public Shares upon the completion of a Business Combination either (i) in connection with a stockholder meeting called to approve the Business Combination or (ii) by means of a tender offer. The decision as to whether the Company will seek stockholder approval of a Business Combination or conduct a tender offer will be made by the Company. The stockholders will be entitled to redeem their shares for a pro rata portion of the amount held in the Trust Account (initially $ per share), calculated as of two business days prior to the completion of a Business Combination, including any pro rata interest earned on the funds held in the Trust Account and not previously released to the Company to pay its tax obligations. The shares of Class A common stock are recorded at redemption value and classified as temporary equity upon the completion of the IPO, in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 480 “Distinguishing Liabilities from Equity.”
The
Company will proceed with a Business Combination only if the Company has net tangible assets of at least $
If the Company seeks stockholder approval in connection with a Business Combination, the Sponsor has agreed to (i) waive its redemption rights with respect to any shares of Class A common stock held by them in connection with the completion of the Business Combination, (ii) waive its redemption rights with respect to any shares of Class A common stock held by them in connection with a stockholder vote to approve an amendment to the Company’s second amended and restated certificate of incorporation (a) to modify the substance or timing of the Company’s obligation to redeem % of the Public Shares if the Company does not complete the Business Combination within the Combination Period (as defined below) or (b) with respect to any other provision relating to stockholders’ rights or pre-initial Business Combination activity and (iii) waive its rights to liquidating distributions from the Trust Account with respect to the shares of Class B common stock they purchased in March 2021 (the “Founder Shares”) or Private Placement Shares if the Company fails to complete the Business Combination within the Combination Period (as defined below). In addition, the Sponsor has agreed to vote any share it held in favor of the Business Combination.
Additionally, each public stockholder may elect to redeem its Public Shares, without voting, and if they do vote, irrespective of whether they vote for or against a proposed Business Combination.
Notwithstanding the foregoing, if the Company seeks stockholder approval of a Business Combination and it does not conduct redemptions pursuant to the tender offer rules, the Company’s second amended and restated certificate of incorporation provides that a public stockholder, together with any affiliate of such stockholder or any other person with whom such stockholder is acting in concert or as a “group” (as defined under Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), will be restricted from redeeming its shares with respect to more than an aggregate of 15% of the Public Shares without the Company’s prior written consent.
| F-23 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
The
Company initially had until October 29, 2022 (or April 29, 2023 if the Company may extend the period of time to consummate a Business
Combination) (the “Initial Combination Period”) to complete a Business Combination. On October 19, 2022, an aggregate of
$
The Sponsor has agreed to waive its liquidation rights with respect to the Founder Shares and Private Placement Shares if the Company fails to complete a Business Combination within the Combination Period (as defined below). However, if the Sponsor acquires Public Shares in or after the IPO, such Public Shares will be entitled to liquidating distributions from the Trust Account if the Company fails to complete a Business Combination within the Combination Period (as defined below). The underwriters have agreed to waive their rights to their business combination marketing fees (see Note 9) held in the Trust Account in the event the Company does not complete a Business Combination within the Initial Combination Period and, in such event, such amounts will be included with the funds held in the Trust Account that will be available to fund the redemption of the Public Shares. In the event of such distribution, it is possible that the per share value of the assets remaining available for distribution will be less than the IPO price per Unit ($).
The Sponsor has agreed that it will be liable to the Company, if and to the extent any claims by a third party for services rendered or products sold to the Company, or by a prospective target business with which the Company has discussed entering into a transaction agreement, reduce the amount of funds in the Trust Account to below (1) $ per Public Share or (2) such lesser amount per Public Share held in the Trust Account as of the date of the liquidation of the Trust Account due to reductions in the value of trust assets, in each case net of the amount of interest which may be withdrawn to pay taxes. This liability will not apply with respect to any claims by a third party who executed a waiver of any and all rights to seek access to the Trust Account nor will it apply to any claims under the Company’s indemnity of the underwriters of the IPO against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”). Moreover, in the event that an executed waiver is deemed to be unenforceable against a third party, the Sponsor will not be responsible to the extent of any liability for such third-party claims. The Company will seek to reduce the possibility that the Sponsor will have to indemnify the Trust Account due to claims of creditors by endeavoring to have all vendors, service providers (other than the Company’s independent auditors), prospective target businesses or other entities with which the Company does business, execute agreements with the Company waiving any right, title, interest or claim of any kind in or to monies held in the Trust Account.
On
December 23, 2022, the Company held a special meeting of stockholders in lieu of an annual meeting of stockholders (the “Meeting”).
At the Meeting, the Company’s stockholders approved an amendment to the Company’s Second Amended and Restated Certificate
of Incorporation (the “Charter Amendment”) to (i) extend the date by which the Company must consummate its initial Business
Combination from January 29, 2023 to July 29, 2023 (the “Combination Period”), or such earlier date as determined by the
Company’s board of directors and (ii) provide for the right of a holder of Class B common stock of the Company to convert into
Class A common stock of the Company on a one-for-one basis prior to the closing of an initial Business Combination. Subsequently, the
Charter Amendment was filed with the Secretary of State of the State of Delaware and stockholders holding all of the issued and outstanding
Class B common stock of the Company elected to convert their Class B common stock into Class A common stock of the Company on a one-for-one
basis. The Combination Period is extended to July 29, 2023, provided that an additional amount of $
Accordingly,
an aggregate of $
| F-24 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
Underwriting Agreement and Business Combination Marketing Agreement
The
Company engaged I-Bankers as the representative of the underwriters (the “Underwriters”) in the IPO of the Company’s
Class A common stock for $
Upon
the closing of the IPO, the Company issued to I-Bankers a warrant to purchase
Liquidity and Capital Resources
The Company has principally financed its operations from inception using proceeds from the sale of its equity securities to its stockholders prior to the IPO, proceeds from related party loan and such amount of proceeds from the IPO that were placed in an account outside of the Trust Account for working capital purposes. Until the consummation of a Business Combination, the Company will be using the funds not held in the Trust Account for identifying and evaluating prospective acquisition candidates, performing due diligence on prospective target businesses, paying for travel expenditures, selecting the target business to acquire, and structuring, negotiating and consummating the Business Combination.
As
of March 31, 2023 and March 31, 2022, the Company had loans payable to the Sponsor and its affiliates in amount of $
On
October 15, 2022, the Company issued two promissory notes in an aggregate principal amount of $
On
October 19, 2022, an aggregate of $
| F-25 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
On
February 9, 2023, the Company issued a promissory note in an aggregate principal amount of $
The Company may need to raise additional capital through loans or additional investments from its Sponsor, stockholders, officers, directors, or third parties. The Company’s officers, directors and Sponsor may, but are not obligated to (other than as described above), loan the Company funds, from time to time or at any time, in whatever amount they deem reasonable in their sole discretion, to meet the Company’s working capital needs. Accordingly, the Company may not be able to obtain additional financing. If the Company is unable to raise additional capital, it may be required to take additional measures to conserve liquidity, which could include, but not necessarily be limited to, curtailing operations, suspending the pursuit of a potential transaction, and reducing overhead expenses. The Company cannot provide any assurance that new financing will be available to it on commercially acceptable terms, if at all.
Risks and Uncertainties
Management continues to evaluate the impact of the COVID-19 pandemic on the industry and has concluded that while it is reasonably possible that the virus could have a negative effect on the Company’s financial position, results of its operations, and/or search for a target company, the specific impact is not readily determinable as of the date of this financial statement. The financial statement does not include any adjustments that might result from the outcome of this uncertainty.
Going Concern and Management’s Plan
The Company expects to incur significant costs in pursuit of its acquisition plans and will not generate any operating revenues until after the completion of its initial Business Combination. In addition, the Company expects to have negative cash flows from operations as it pursues an initial Business Combination target. In connection with the Company’s assessment of going concern considerations in accordance with FASB Accounting Standards Update (“ASU”) Topic 2014-15, “Disclosures of Uncertainties about an Entity’s Ability to Continue as a Going Concern” the Company does not currently have adequate liquidity to sustain operations, which consist solely of pursuing a Business Combination.
The Company may raise additional capital through loans or additional investments from the Sponsor or its stockholders, officers, directors, or third parties. The Company’s officers and directors and the Sponsor may, but are not obligated to (except as described above), loan the Company funds, from time to time, in whatever amount they deem reasonable in their sole discretion, to meet the Company’s working capital needs. Based on the foregoing, the Company believes it will have sufficient cash to meet its needs through the earlier of consummation of a Business Combination or the deadline to complete a Business Combination pursuant to the Company’s Amended and Restated Certificate of Incorporation (unless otherwise amended by stockholders).
While the Company expects to have sufficient access to additional sources of capital if necessary, there is no current commitment on the part of any financing source to provide additional capital and no assurances can be provided that such additional capital will ultimately be available. These conditions raise substantial doubt about the Company’s ability to continue as a going concern until the consummation of a Business Combination or for a period of time within one year after the date that these financial statements are issued. There is no assurance that the Company’s plans to raise additional capital (to the extent ultimately necessary) or to consummate a Business Combination will be successful or successful within the Combination Period. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
As is customary for a special purpose acquisition company, if the Company is not able to consummate a Business Combination during the Combination Period, it will cease all operations and redeem the Public Shares. Management plans to continue its efforts to consummate a Business Combination during the Combination Period.
| F-26 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
Note 2 - Significant Accounting Policies
Basis of Presentation
The accompanying financial statements are presented in conformity with accounting principles generally accepted in the United States of America (“GAAP”) and pursuant to the rules and regulations of US Securities and Exchange Commission (“SEC”).
Emerging Growth Company Status
The Company is an “emerging growth company,” as defined in Section 2(a) of the Securities Act and modified by the Jumpstart our Business Startups Act of 2012 (the “JOBS Act”), and it may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in its periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved.
Further, Section 102(b)(1) of the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered under the Exchange Act) are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period and comply with the requirements that apply to non-emerging growth companies but any such election to opt out is irrevocable. The Company has elected not to opt out of such extended transition period which means that when a standard is issued or revised and it has different application dates for public or private companies, the Company, as an emerging growth company, can adopt the new or revised standard at the time private companies adopt the new or revised standard. This may make comparison of the Company’s financial statements with another public company which is neither an emerging growth company nor an emerging growth company which has opted out of using the extended transition period difficult or impossible because of the potential differences in accounting standards used.
Use of Estimates
The preparation of financial statements in conformity with GAAP requires the Company’s management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statement and the reported amounts of expenses during the reporting period. Making estimates requires management to exercise significant judgment. It is at least reasonably possible that the estimate of the effect of a condition, situation or set of circumstances that existed at the date of the financial statement, which management considered in formulating its estimate, could change in the near term due to one or more future confirming events. Actual results could differ from those estimates.
Cash and Cash Equivalents
The
Company considers all highly liquid investments with an original maturity of three months or less to be cash equivalents. Cash equivalents
are carried at cost, which approximates fair value. The Company had cash of $
Marketable Securities Held in Trust Account
At
March 31, 2023, substantially all of the assets held in the Trust Account were held in money market funds, which are invested primarily
in U.S. Treasury securities. The Company’s investments held in the Trust Account are classified as trading securities. Trading
securities are presented on the balance sheet at fair value at the end of each reporting period. Gains and losses resulting from the
change in fair value of investments held in Trust Account are included in interest earned on marketable securities held in Trust Account
in the accompanying statements of operations. The estimated fair values of investments held in Trust Account are determined using available
market information. As of March 31, 2023 and March 31, 2022, the marketable securities held in the Trust Account were $
Common Stock Subject to Possible Redemption
The Company accounts for its common stock subject to possible redemption in accordance with the guidance in ASC Topic 480 “Distinguishing Liabilities from Equity.” Common stock subject to mandatory redemption are classified as a liability instrument and are measured at fair value. Conditionally redeemable common stock (including common stock that feature redemption rights that are either within the control of the holder or subject to redemption upon the occurrence of uncertain events not solely within the Company’s control) are classified as temporary equity. At all other times, common stock is classified as stockholders’ equity. The Company’s common stock feature certain redemption rights that are considered to be outside of the Company’s control and subject to occurrence of uncertain future events. Accordingly, common stock subject to possible redemption are presented at redemption value as temporary equity, outside of the stockholders’ equity section of the Company’s balance sheet.
| F-27 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
The Company recognizes changes in redemption value immediately as they occur and adjusts the carrying value of redeemable common stock to equal the redemption value at the end of each reporting period. Immediately upon the closing of the IPO, the Company recognized the remeasurement from initial book value to redemption value. The change in the carrying value of redeemable common stock resulted in charges against additional paid-in capital and accumulated deficit.
At March 31, 2023, the common stock subject to redemption reflected in the balance sheet are reconciled in the following table:
| Gross proceeds | $ | |||
| Less: | ||||
| Common stock issuance costs | ( | ) | ||
| Plus: | ||||
| Remeasurement of carrying value to redemption value | ||||
| Common stock subject to possible redemption, March 31, 2022 | $ | |||
| Less: | ||||
| Distribution for redemption | ( | ) | ||
| Plus: | ||||
| Remeasurement of carrying value to redemption value | ||||
| Common stock subject to possible redemption, March 31, 2023 | $ |
Fair Value of Financial Instruments
The fair value of the Company’s assets and liabilities, which qualify as financial instruments under ASC Topic 820, “Fair Value Measurements and Disclosures,” approximates the carrying amounts represented in the accompanying balance sheet, primarily due to their short-term nature.
Fair Value Measurements
The Company follows the guidance in ASC Topic 820 for its financial assets and liabilities that are re-measured and reported at fair value at each reporting period, and non-financial assets and liabilities that are re-measured and reported at fair value at least annually.
The fair value of the Company’s financial assets and liabilities reflects management’s estimate of amounts that the Company would have received in connection with the sale of the assets or paid in connection with the transfer of the liabilities in an orderly transaction between market participants at the measurement date. In connection with measuring the fair value of its assets and liabilities, the Company seeks to maximize the use of observable inputs (market data obtained from independent sources) and to minimize the use of unobservable inputs (internal assumptions about how market participants would price assets and liabilities). The following fair value hierarchy is used to classify assets and liabilities based on the observable inputs and unobservable inputs used in order to value the assets and liabilities:
| Level 1: | Quoted prices in active markets for identical assets or liabilities. An active market for an asset or liability is a market in which transactions for the asset or liability occur with sufficient frequency and volume to provide pricing information on an ongoing basis. |
| Level 2: | Observable inputs other than Level 1 inputs. Examples of Level 2 inputs include quoted prices in active markets for similar assets or liabilities and quoted prices for identical assets or liabilities in markets that are not active. |
| Level 3: | Unobservable inputs based on our assessment of the assumptions that market participants would use in pricing the asset or liability. |
| F-28 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
Warrants
ASC Topic 480 requires a reporting entity to classify certain freestanding financial instruments as liabilities (or in some cases as assets). ASC 480-10-S99 addresses concerns raised by the SEC regarding the financial statement classification and measurement of securities subject to mandatory redemption requirements or whose redemption is outside the control of the issuer. If the stock subject to mandatory redemption provisions represents the only shares in the reporting entity, it must report instruments in the liabilities section of its statement of financial position. The stock subject must then describe them as shares subject to mandatory redemption, so as to distinguish the instruments from other financial statement liabilities. The Company concludes that the warrants to I-Bankers do not exhibit any of the above characteristics and, therefore, are outside the scope of ASC 480. The warrants were issued in accordance with the guidance contained in ASC 815-40, Derivatives and Hedging — Contracts in Entity’s Own Equity.
The Company recognizes compensation costs to employees under FASB Accounting Standards Codification 718 “Compensation - Stock Compensation” (“ASC 718”). Under ASC 718, companies are required to measure the compensation costs of share-based compensation arrangements based on the grant-date fair value and recognize the costs in the financial statements over the period during which employees are required to provide services. Share based compensation arrangements include stock options and warrants. As such, compensation cost is measured on the date of grant at their fair value. Such compensation amounts, if any, are amortized over the respective vesting periods of the option grant.
On July 8, 2020, the inception date, the Company adopted ASU No. 2018-07 “Compensation - Stock Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting.” These amendments expand the scope of Topic 718, Compensation - Stock Compensation (which currently only includes share-based payments to employees) to include share-based payments issued to nonemployees for goods or services. Consequently, the accounting for share-based payments to nonemployees and employees will be substantially aligned.
Income Taxes
The Company accounts for income taxes under FASB ASC 740, “Income Taxes” (“ASC 740”). ASC 740 requires the recognition of deferred tax assets and liabilities for both the expected impact of differences between the financial statement and tax basis of assets and liabilities and for the expected future tax benefit to be derived from tax loss and tax credit carry forwards. ASC 740 additionally requires a valuation allowance to be established when it is more likely than not that all or a portion of deferred tax assets will not be realized.
ASC 740 also clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements and prescribes a recognition threshold and measurement process for financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more-likely-than-not to be sustained upon examination by taxing authorities. ASC 740 also provides guidance on derecognition, classification, interest and penalties, accounting in interim period, disclosure and transition.
The Company is subject to income tax examinations by major taxing authorities since inception. These examinations may include questioning the timing and amount of deductions, the nexus of income among various tax jurisdictions and compliance with federal and state tax laws. The Company’s management does not expect that the total amount of unrecognized tax benefits will materially change over the next twelve months.
During
the year ended March 31, 2023, the Company generated taxable income of $
The realization of deferred tax assets, including net operating loss carryforwards, is dependent on the generation of future taxable income sufficient to realize the tax deductions, carryforwards, and credits. Valuation allowances on deferred tax assets are recognized if it is determined that it is more likely than not that the asset will not be realized.
| F-29 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
The Company complies with accounting and disclosure requirements ASC Topic 260, “Earnings per Share.” Net loss per share of common stock is computed by dividing net loss by the weighted average number of shares of common stock issued and outstanding for the period, excluding shares of common stock subject to forfeiture. At March 31, 2023 and March 31, 2022, the Company did not have any dilutive securities and other contracts that could, potentially, be exercised or converted into shares of common stock and then share in the earnings (loss) of the Company. As a result, diluted loss per share of common stock is the same as basic loss per share of common stock for the period.
| For the Year Ended March 31, 2023 | For the Year Ended March 31, 2022 | |||||||
| Numerator: | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Denominator: | ||||||||
| Basic and diluted loss per share – Class A | $ | ( | ) | ( | ) | |||
| Basic and diluted loss per share – Class B | $ | ( | ) | $ | ( | ) | ||
| Denominator for basic and diluted earnings per share - Weighted-average shares of Class A common stock issued and outstanding during the period | ||||||||
| Denominator for basic and diluted earnings per share - Weighted-average shares of Class B common stock issued and outstanding during the period | ||||||||
Concentration of Credit Risk
Financial
instruments that potentially subject the Company to concentrations of credit risk consist of cash accounts in a financial institution,
which, at times may exceed the Federal Depository Insurance Coverage of $
Recent Accounting Pronouncements
In August 2020, the FASB issued FASB ASU Topic 2020-06, Debt — Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging — Contracts in Entity’s Own Equity (Subtopic 815-40) (“ASU 2020-06”) to simplify accounting for certain financial instruments. ASU 2020-06 eliminates the current models that require separation of beneficial conversion and cash conversion features from convertible instruments and simplifies the derivative scope exception guidance pertaining to equity classification of contracts in an entity’s own equity. The new standard also introduces additional disclosures for convertible debt and freestanding instruments that are indexed to and settled in an entity’s own equity. ASU 2020-06 amends the diluted earnings per share guidance, including the requirement to use the if-converted method for all convertible instruments. ASU 2020-06 is effective January 1, 2022 and should be applied on a full or modified retrospective basis, with early adoption permitted beginning on January 1, 2021. The adoption of ASU 2020-06 did not have an impact on the Company’s financial statements.
Management does not believe that any other recently issued, but not effective, accounting standards, if currently adopted, would have a material effect on the Company’s financial statements.
Note 3 - Related Party Transactions
Accrued Expenses - Related Parties
As
of March 31, 2023 and March 31, 2022, the Company had accrued expenses – related parties in amount of $
| F-30 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
Loan Payable – Related Party
As
of March 31, 2023 and March 31, 2022, the Company had loans payable to the Sponsor and its affiliates in amount of $
On
October 15, 2022, the Company issued the Sponsor Affiliate Notes in an aggregate principal amount of $
On
February 9, 2023, the Company issued a promissory note in an aggregate principal amount of $
Working Capital Loans
In
addition, in order to finance transaction costs in connection with a Business Combination, the Sponsor, an affiliate of the Sponsor,
or certain of the Company’s officers and directors or their affiliates may, but are not obligated to, loan the Company funds
as may be required (“Working Capital Loans”). If the Company completes a Business Combination, the Company would repay
the Working Capital Loans out of the proceeds of the Trust Account released to the Company. Otherwise, the Working Capital Loans
would be repaid only out of funds held outside the Trust Account. In the event that a Business Combination does not close, the
Company may use a portion of proceeds held outside the Trust Account to repay the Working Capital Loans but no proceeds held in the
Trust Account would be used to repay the Working Capital Loans. The Working Capital Loans would either be repaid upon consummation
of a Business Combination, without interest, or, at the lender’s discretion, up to $
Note 4 - Commitments and Contingency
Registration Rights
The holders of the Founder Shares, Private Placement Units (and their underlying securities), the Representative Shares, the Representative Warrants (and their underlying securities), the shares of Class A common stock issuable to the Company’s directors and officers within 10 days following the Business Combination and any Units that may be issued upon conversion of the Working Capital Loans (and their underlying securities) will be entitled to registration rights pursuant to a registration rights agreement to be signed prior to or on the effective date of the IPO requiring the Company to register such securities for resale (in the case of the Founder Shares, only after conversion to Class A common stock). The holders of these securities are entitled to make up to three demands, excluding short form demands, that the Company register such securities. In addition, the holders have certain “piggy-back” registration rights with respect to registration statements filed subsequent to the completion of a Business Combination and rights to require the Company to register for resale such securities pursuant to Rule 415 under the Securities Act. The registration rights agreement does not contain liquidated damages or other cash settlement provisions resulting from delays in registering the Company’s securities. The Company will bear the expenses incurred in connection with the filing of any such registration statements.
| F-31 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
Underwriting Agreement
The Company had granted the Underwriters a 30-day option from the date of IPO to purchase up to additional Units to cover over-allotments, if any, at the IPO price less the underwriting discounts and commissions.
Simultaneously
upon the closing of the IPO, the Underwriters exercised the over-allotment option in full. As such, the Underwriters were paid an underwriting
discount and commission of $ per Unit, or $
Note 5 - Stockholders’ Equity
The
Company is authorized to issue a total of
As of March 31, 2023 and March 31, 2022, shares of Preferred Stock were issued or outstanding. The designations, voting and other rights and preferences of the Preferred Stock may be determined from time to time by the Company’s board of directors.
As of March 31, 2023 and March 31, 2022, there were shares and shares of Class A common stock issued and outstanding, respectively, excluding shares and shares of Class A common stock, respectively, which are subject to possible redemption and presented as temporary equity.
As of March 31, 2023 and March 31, 2022, there were shares and shares of Class B common stock issued and outstanding, respectively.
Subsequent
to the Company’s special meeting of stockholders held on December 23, 2022, stockholders holding all of the issued and outstanding
Class B common stock of the Company elected to convert their Class B common stock into Class A common stock of the Company on a one-for-one
basis. The Combination Period is extended to July 29, 2023, provided that an additional amount of $
Rights
Each holder of a right will receive one-tenth (1/10) of one share of Class A common stock upon consummation of a Business Combination. In the event the Company will not be the surviving entity upon completion of the Company’s initial Business Combination, each holder of a public right will automatically receive the 1/10 share of Class A common stock underlying such public right (without paying any additional consideration); and each holder of a Private Placement Right or right underlying Units to be issued upon conversion of the Working Capital Loans will be required to affirmatively convert its rights in order to receive the 1/10 share of Class A common stock underlying each right (without paying any additional consideration). If the Company is unable to complete an initial Business Combination within the required time period and public stockholders redeem the public shares for the funds held in the Trust Account, holders of rights will not receive any such funds in exchange for their rights and the rights will expire worthless. The Company will not issue fractional shares upon conversion of the rights. If, upon conversion of the rights, a holder would be entitled to receive a fractional interest in a share, the Company will, upon exchange, comply with Section 155 of the Delaware General Corporation Law. The Company will make the determination of how to treat fractional shares at the time of its initial Business Combination and will include such determination in the proxy materials that it will send to stockholders for their consideration of such initial Business Combination.
| F-32 |
DEEP MEDICINE ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2023
If the Company is unable to complete a Business Combination within the Combination Period and the Company liquidates the funds held in the Trust Account, holders of rights will not receive any of such funds with respect to their rights, nor will they receive any distribution from the Company’s assets held outside of the Trust Account with respect to such rights, and the rights will expire worthless. Further, there are no contractual penalties for failure to deliver securities to the holders of the rights upon consummation of a Business Combination.
Additionally, in no event will the Company be required to net cash settle the rights, and the rights may expire worthless.
Representative Warrants and Representative Shares
Upon
the closing of the IPO, the Company issued to the Underwriters Representative Warrants, the exercise price of which will be $ per
Share, and
The
Representative Warrants shall be exercisable, in whole or in part, commencing the later of October 26, 2022 and the closing of the Company’s
initial Business Combination and terminating on October 29, 2026. The Company accounted for the
The Representative Warrants grants to holders demand and “piggy back” rights for periods of five and seven years from October 29, 2021. The Company will bear all fees and expenses attendant to registering the securities, other than underwriting commissions which will be paid for by the holders themselves. The exercise price and number of shares issuable upon exercise of the Representative Warrants may be adjusted in certain circumstances including in the event of a stock dividend, or the Company’s recapitalization, reorganization, merger or consolidation. However, the Representative Warrants will not be adjusted for issuances of Class A common stock at a price below its exercise price.
The Underwriters agreed not to transfer, assign or sell any of the Representative Shares without the Company’s prior written consent until the completion of the Business Combination. The Underwriters agreed (i) to waive its redemption rights with respect to such shares in connection with the completion of the initial Business Combination and (ii) to waive its rights to liquidating distributions from the Trust Account with respect to the Representative Shares if the Company fails to complete its initial Business Combination within Initial Combination Period. The shares have been deemed compensation by FINRA and are therefore subject to a lock-up for a period of 180 days immediately following October 29, 2021 pursuant to FINRA Rule 5110(e)(1).
Note 6 - Fair Value Measurements
The following table presents information about the Company’s assets that are measured at fair value on a recurring basis at March 31, 2023 and March 31, 2022 and indicates the fair value hierarchy of the valuation inputs the Company utilized to determine such fair value:
| Description | Level | March 31, 2023 | March 31, 2022 | |||||||||
| Assets: | ||||||||||||
| Marketable securities held in Trust Account | 1 | $ | $ | |||||||||
Note 7 – Subsequent Events
The Company evaluated subsequent events and transactions that occurred after the balance sheet date through the date these financial statements were issued. Based upon this review, the Company did not identify any subsequent events that would have required adjustment or disclosure in the financial statements other than the followings:
On July 13, 2023, the Company held a special meeting of the Company’s stockholders, at the Company’s stockholders approved a charter amendment to extend the date by which the Company must consummate its initial business combination from July 29, 2023 to January 29, 2024, or such earlier date as determined by the Company’s board of directors. The Company’s stockholders holding public shares exercised their right to redeem such shares for a pro rata portion of the funds in the Company’s trust account. As a result, approximately $ (approximately $ per share) was removed from the Company’s trust account to pay such holders. Following redemptions, the Company had Class A Shares issued and outstanding, including public shares.
| F-33 |
TRUGOLF, INC
FINANCIAL STATEMENTS
DECEMBER 31, 2022 and 2021
| F-34 |
TABLE OF CONTENTS
| Report of Independent Registered Public Accounting Firm (PCAOB ID Number: 229) | F-36 |
Report of Independent Registered Public Accounting Firm (PCAOB ID Number: 596) |
F-37 |
| Financial Statements | |
| Balance Sheets | F-38 |
| Statements of Operations | F-39 |
| Statements of Changes in Stockholders’ Deficit | F-40 |
| Statements of Cash Flows | F-41 |
| Notes to Financial Statements | F-42 |
| F-35 |
Report of Independent Registered Public Accounting Firm
To the Board of Directors of
TruGolf, Inc.
Centerville, Utah
Opinion on the Financial Statements
We have audited the accompanying balance sheet of TruGolf, Inc. (the “Company”) at December 31, 2022, and the related statements of operations, changes in stockholders’ deficit, and cash flows for the year ended December 31, 2022, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2022, and the results of its operations and its cash flows for the year ended December 31, 2022, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audit. 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 audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our 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 audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit 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 audit provides a reasonable basis for our opinion.
/s/ CohnReznick LLP
CohnReznick LLP
We have served as the Company’s auditor since 2022 (such date takes into account the acquisition of certain people and assets of Daszkal Bolton LLP by CohnReznick LLP effective March 1, 2023)
Boca Raton, Florida
July 31, 2023
| F-36 |
Report of Independent Registered Public Accounting Firm
To the Board of Directors of
TruGolf, Inc.
Centerville, Utah
Opinion on the Financial Statements
We have audited the accompanying balance sheet of TruGolf, Inc. (the “Company”) at December 31, 2021, and the related statements of income, changes in stockholders’ equity, and cash flows for the year ended December 31, 2021, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2021, and the results of its operations and its cash flows for the year ended December 31, 2021, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audit. 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 audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our 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 audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit 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 audit provides a reasonable basis for our opinion.
/s/ Daszkal Bolton LLP
We have served as the Company’s auditor since 2022.
Boca Raton, Florida
December 6, 2022
| F-37 |
TRUGOLF, INC.
BALANCE SHEETS
AS OF DECEMBER 31, 2022 and 2021
| 2022 | 2021 | |||||||
| ASSETS | ||||||||
| Current assets: | ||||||||
| Cash and cash equivalents | $ | 9,656,266 | $ | 10,708,677 | ||||
| Accounts receivable, net | 1,744,637 | 1,500,282 | ||||||
| Inventory, net | 2,121,480 | 1,855,865 | ||||||
| Prepaid expenses | 147,748 | 358,083 | ||||||
| Other current assets | 17,840 | 117,700 | ||||||
| Total current assets | 13,687,971 | 14,540,607 | ||||||
| Property and equipment, net | 165,536 | 184,773 | ||||||
| Right-of-use assets | 732,877 | 162,256 | ||||||
| Total assets | $ | 14,586,384 | $ | 14,887,636 | ||||
| LIABILITIES AND STOCKHOLDERS’ DEFICIT | ||||||||
| Current liabilities: | ||||||||
| Accounts payable | $ | 1,463,337 | $ | 677,253 | ||||
| Customer deposits | 2,712,520 | 2,594,348 | ||||||
| Notes payable, current portion | 105,213 | 125,571 | ||||||
| Notes payable to related parties, current portion | 937,000 | 787,000 | ||||||
| Line of credit | 545,625 | 545,625 | ||||||
| Convertible notes payable | 578,481 | - | ||||||
| Accrued interest | 92,552 | - | ||||||
| Accrued and other current liabilities | 750,676 | 542,161 | ||||||
| Lease liability, current portion | 224,159 | 151,386 | ||||||
| Total current liabilities | 7,409,563 | 5,423,344 | ||||||
| Non-current liabilities: | ||||||||
| Notes payable, net of current portion | 288,618 | 393,771 | ||||||
| Note payables to related parties, net of current portion | 1,148,000 | 1,585,000 | ||||||
| Dividend notes payable | 7,660,784 | 9,626,490 | ||||||
| Gross sales royalty payable | 1,000,000 | 1,000,000 | ||||||
| Lease liability, net of current portion | 510,178 | 14,905 | ||||||
| Total liabilities | 18,017,143 | 18,043,510 | ||||||
| Stockholders’ deficit: | ||||||||
| Preferred
stock, $0.01 par value, 10 million shares authorized; no shares issued and outstanding as of March 31, 2023 and December 31, 2022, respectively | - | - | ||||||
| Common stock, $0.01 par value, 190 million shares authorized; 11,308 shares issued and outstanding as of December 31, 2022 and December 31, 2021, respectively. | 100 | 100 | ||||||
| Additional paid-in capital | 681,956 | - | ||||||
| Treasury stock at cost,
4,692 shares of common held at December 31, 2022 and 2021, respectively | (2,037,000 | ) | (2,037,000 | ) | ||||
| Accumulated losses | (2,075,815 | ) | (1,118,974 | ) | ||||
| Total stockholders’ deficit | (3,430,759 | ) | (3,155,874 | ) | ||||
| Total liabilities and stockholders’ deficit | $ | 14,586,384 | $ | 14,887,636 | ||||
The accompanying notes are an integral part of these financial statements.
| F-38 |
TRUGOLF, INC.
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 2022 and 2021
| 2022 | 2021 | |||||||
| Revenues, net | $ | 20,227,331 | $ | 21,245,846 | ||||
| Cost of revenues | (7,018,378 | ) | (5,261,548 | ) | ||||
| Gross profit | 13,208,953 | 15,984,298 | ||||||
| Operating expenses: | ||||||||
| Royalties | 550,963 | 518,165 | ||||||
| Salaries, wages and benefits | 6,973,227 | 5,344,755 | ||||||
| Selling, general and administrative | 4,952,381 | 3,811,990 | ||||||
| Total operating expenses | 12,476,571 | 9,674,910 | ||||||
| Income from operations | 732,382 | 6,309,388 | ||||||
| Other (expenses) income: | ||||||||
| Interest expense | (1,589,223 | ) | (854,534 | ) | ||||
| Loss on investment | (100,000 | ) | - | |||||
| Gain on loan extinguishment | - | 735,700 | ||||||
| Total other (expense) income | (1,689,223 | ) | (118,834 | ) | ||||
| (Loss) income from operations before income taxes | (956,841 | ) | 6,190,554 | |||||
| Provision for income taxes | - | - | ||||||
| Net (loss) income | (956,841 | ) | 6,190,554 | |||||
| Basic and diluted net (loss) income per share attributable | ||||||||
| to common stockholders | $ | (84.62 | ) | $ | 547.45 | |||
| Basic and diluted weighted average common shares | 11,308 | 11,308 | ||||||
The accompanying notes are an integral part of these financial statements.
| F-39 |
TRUGOLF, INC.
STATEMENTS OF STOCKHOLDERS’ DEFICIT
FOR THE YEARS ENDED DECEMBER 31, 2022 AND 2021
| Preferred Stock | Common Stock | Treasury Stock | Additional Paid-in | Accumulated | Total Stockholders’ | |||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | Capital | Losses | Deficit | ||||||||||||||||||||||||||||
| Balance, December 31, 2020 | - | $ | - | 11,308 | $ | 100 | (2,346 | ) | $ | (1,750,000 | ) | $ | 1,586,227 | $ | (1,500,061 | ) | $ | (1,663,734 | ) | |||||||||||||||||
| Repurchase of common shares | (2,346 | ) | (287,000 | ) | - | (287,000 | ) | |||||||||||||||||||||||||||||
| Cash dividends declared | - | - | - | - | - | (1,586,227 | ) | (5,809,467 | ) | (7,395,694 | ) | |||||||||||||||||||||||||
| Net income | - | - | - | - | - | - | - | 6,190,554 | 6,190,554 | |||||||||||||||||||||||||||
| Balance, December 31, 2021 | - | $ | - | 11,308 | $ | 100 | (4,692 | ) | (2,037,000 | ) | $ | - | $ | (1,118,974 | ) | $ | (3,155,874 | ) | ||||||||||||||||||
| Fair value of warrants granted | 681,956 | 681,956 | ||||||||||||||||||||||||||||||||||
| Net loss | - | - | - | - | - | - | - | (956,841 | ) | (956,841 | ) | |||||||||||||||||||||||||
| Balance, December 31, 2022 | - | $ | - | 11,308 | $ | 100 | (4,692 | ) | (2,037,000 | ) | $ | 681,956 | $ | (2,075,815 | ) | $ | (3,430,759 | ) | ||||||||||||||||||
The accompanying notes are an integral part of these financial statements.
| F-40 |
TRUGOLF, INC.
STATEMENTS OF CASHFLOWS
FOR THE YEARS ENDED DECEMBER 31, 2022 and 2021
| 2022 | 2021 | |||||||
| Cash flows from operating activities: | ||||||||
| Net (loss) income | $ | (956,841 | ) | $ | 6,190,554 | |||
| Adjustments to reconcile net (loss) income to net cash provided by operating activities: | ||||||||
| Depreciation and amortization expense | 60,667 | 70,005 | ||||||
| Amortization of convertible notes original issue discount | 240,048 | - | ||||||
| Amortization of right-of-use asset | 165,535 | 117,439 | ||||||
| Fair value of warrants in excess of fair value of debt | 445,032 | - | ||||||
| Bad debt expense | - | 568,662 | ||||||
| Gain on loan extinguishment | - | (735,700 | ) | |||||
| Loss on equity investment | 100,000 | - | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable, net | (244,355 | ) | (1,480,498 | ) | ||||
| Inventory, net | (265,615 | ) | (1,255,015 | ) | ||||
| Prepaid expenses | 210,335 | (82,340 | ) | |||||
| Other current assets | (140 | ) | (4,402 | ) | ||||
| Accounts payable | 786,084 | 103,009 | ||||||
| Customer deposits | 118,172 | 1,012,660 | ||||||
| Accrued interest | 92,552 | |||||||
| Accrued and other current liabilities | 208,515 | 138,595 | ||||||
| Lease liability | (168,110 | ) | (124,663 | ) | ||||
| Net cash provided by operating activities | 791,879 | 4,518,306 | ||||||
| Cash flows from investing activities: | ||||||||
| Purchase of property and equipment | (41,430 | ) | (22,995 | ) | ||||
| Net cash used in investing activities | (41,430 | ) | (22,995 | ) | ||||
| Cash flows from financing activities: | ||||||||
| Proceeds from notes payable | - | 500,000 | ||||||
| Repayments of notes payable | (125,511 | ) | (82,470 | ) | ||||
| Repayments of notes payable - related party | (287,000 | ) | (250,000 | ) | ||||
| Proceeds from issuance of convertible notes | 575,357 | - | ||||||
| Repayments of line of credit | - | (500,000 | ) | |||||
| Repurchases of common shares | - | (65,000 | ) | |||||
| Dividends paid | (1,965,706 | ) | (412,977 | ) | ||||
| Net cash used in financing activities | (1,802,860 | ) | (810,447 | ) | ||||
| Net change in cash and cash equivalents | (1,052,411 | ) | 3,684,864 | |||||
| Cash and cash equivalents, beginning of year | 10,708,677 | 7,023,813 | ||||||
| Cash and cash equivalents, end of year | $ | 9,656,266 | $ | 10,708,677 | ||||
| SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: | ||||||||
| Cash paid for interest | $ | 602,255 | $ | 656,149 | ||||
| SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES: | ||||||||
| Acquisition of treasury stock | $ | - | $ | 222,000 | ||||
| Declaration of dividend | $ | - | $ | 6,982,717 | ||||
The accompanying notes are an integral part of these financial statements.
| F-41 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
| 1. | ORGANIZATION AND NATURE OF OPERATIONS |
TruGolf , Incorporated (or “the Company”, “we”, “us”, or “our”) was formed as a Utah corporation in October 1983. In June 1999, the Company changed its name to TruGolf, Inc. The Company’s original business plan was the creation of golfing video games. Effective in April 2016, the Company filed Articles of Merger with the State of Utah, Department of Commerce and the Secretary of State of Nevada, pursuant to which TruGolf, Inc., a Utah corporation, merged with and into TruGolf, Inc., a newly formed Nevada corporation, pursuant to a Plan of Merger. TruGolf, Inc. Nevada was the surviving corporation in the merger.
For over 40 years, the Company has been creating indoor golf software and hardware and are focused on both the residential and commercial golf simulation industries. We design, develop, manufacture and sell golf simulators for residential and commercial applications. We offer portable, professional, commercial and custom simulators. In addition, to bundling our software with our simulators, we offer our E6 Connect software and gaming software on a standalone basis. We have leveraged the power of our hardware and software platform to create a collection of multi-sport games including football, soccer, soccer golf, frisbee golf, zombie dodgeball, and cowboy target practice.
| 2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
Basis of Presentation
We prepare our financial statements in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”).
Use of Estimates
We prepare our financial statements in accordance with U.S. GAAP, which requires management to use its judgment to make estimates and assumptions that affect the reported amounts of assets and liabilities and related disclosures at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. These assumptions and estimates could have a material effect on our financial statements. Actual results may differ materially from those estimates. We review our estimates on an ongoing basis based on information currently available, and changes in facts and circumstances may cause us to revise these estimates. Estimates and assumptions included useful lives of property and equipment and collectability of our accounts receivable.
Reclassifications
Certain reclassifications have been made to prior year’s amounts in the balance sheet and statement of operations to conform to the current period presentation. $9,572 was reclassified from notes payable to notes payable related party. We reclassified $303,741 of customer paid shipping fees from selling, general and administrative expenses to revenues. These reclassifications did not have a material impact on previously reported amounts.
Revenue Recognition
We recognize revenue in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) standards - Topic 606 “Revenue from Contracts with Customers” (“Topic 606”). When entering into contracts with our customers, we review the following five steps of Topic 606:
| i. | Identify the contract with the customer. | |
| ii. | Identify the performance obligation. | |
| iii. | Determine the transaction price. | |
| iv. | Allocate the transaction price to the performance obligation. | |
| v. | Evaluate the satisfaction of the performance obligation. |
We account for contracts, with our customers, when we have approval and commitment from both parties, the rights of the parties are identified, payment terms are established, the contract has commercial substance and collectability of consideration is probable.
| F-42 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
Under Topic 606, we recognize revenue only when we satisfy a performance obligation by transferring a promised good or service to our customer. A good or service is considered transferred when the customer obtains control. The standard defines control as an entity’s ability to direct the use of, and obtain substantially all of the remaining benefits from, an asset. We recognize revenue once control has passed to the customer. The following indicators are evaluated in determining when control has passed to the customer:
| i. | We have a right to a payment for the product or service. | |
| ii. | The customer has legal title to the product. | |
| iii. | We have transferred physical possession of the product to the customer. | |
| iv. | The customer has the risk and rewards of ownership of the product. | |
| v. | The customer has accepted the product. |
Revenue Recognition for Golf Simulators. Revenues from the sale of golf simulators are recognized with the selling price to the customer recorded as revenues and the acquisition cost of the product recorded as cost of revenues. We recognize revenue from these transactions when control has passed to the customer. Control is considered to have passed to the customer when the simulators has been delivered, installed and accepted by the customer. Golf simulators are bundled and are comprised of both hardware and a software license (for the software to operate the simulator). The Company allocates the revenue between simulator hardware and software license based on the total sale less the hardware sale (cost plus a normal margin). Our simulator contracts with customers generally do not include multiple performance obligations.
Revenue Recognition for Content Software Subscriptions. The Company offers content software subscriptions for one and twelve months. We recognize revenue from these transactions when control has passed to the customer. Control is considered to have passed to the customer when the software license has been delivered and accepted by the customer. The content software subscription revenue is recognized over the term of the contract.
Fair Value of Financial Instruments
Fair value is defined as the amount that would be received for selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. The Financial Accounting Standards Board (“FASB”) fair value measurement guidance established a fair value hierarchy that prioritizes the inputs used to measure fair value. The three broad levels of the fair value hierarchy are as follows:
| Level 1 – | Quoted prices (unadjusted) in active markets for identical assets or liabilities, | |
| Level 2 – | Quoted prices for similar assets and liabilities in active markets or inputs that are observable for the asset or liability, either directly or indirectly, | |
| Level 3 – | Unobservable inputs for which little or no market data exists, therefore requiring a company to develop its own assumptions. |
Assets and liabilities are classified based on the lowest level of input that is significant to the fair value measurements. We review the fair value hierarchy classification on a quarterly basis. Changes in the observable inputs may result in a reclassification of assets and liabilities within the three levels of the hierarchy outlined above.
The carrying amounts of certain financial instruments, such as cash and cash equivalents, accounts receivable, accounts payable, and derivative liability approximate fair value due to their relatively short maturities.
| December 31, 2022 | ||||||||
| Carrying Amount | Fair Value | |||||||
| Convertible notes payable | 578,481 | 578,481 | ||||||
For our Level 3 unobservable inputs, we calculate a discount rate based on the U.S. prime rate of 7.75% and 3.25% as of December 31, 2022, and 2021, respectively. There were no assets and liabilities adjusted to fair value in 2021.
Cash and Cash Equivalents
Cash primarily consists of cash, demand and savings deposits which are highly liquid. The Company considers highly liquid investments that are readily convertible to known amounts of cash and with original maturities from the date of purchase of three months or less to be cash equivalents. All cash is unrestricted as to withdrawal and use. The Company maintains its cash in bank deposit accounts which, at times, may exceed federally insured limits. As of December 31, 2022, and 2021, the amount in excess of federally insured limits was $9,198,618 and $10,268,421, respectively.
| F-43 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
Accounts Receivable, net
We manage credit risk associated with our accounts receivables at the customer level. Because the same customers typically generate the revenues that are accounted for under both Accounting Standards Codification Topic 606, Revenue from Contracts with Customers (Topic 606) and Accounting Standards Codification Topic 326, Credit Losses (Topic 326)., the discussions below on credit risk and our allowances for doubtful accounts address our total revenues from Topic 606 and Topic 326.
We believe the concentration of credit risk, with respect to our receivables, is limited because our customer base is comprised of a number of geographically diverse customers. We manage credit risk through credit approvals and other monitoring procedures.
Pursuant to Topic 326 for our accounts receivables, we maintain an allowance for doubtful accounts that reflects our estimate of our expected credit losses. Our allowance is estimated using a loss rate model based on delinquency. The estimated loss rate is based on our historical experience with specific customers, our understanding of our current economic circumstances, reasonable and supportable forecasts, and our own judgment as to the likelihood of ultimate payment based upon available data. We believe our credit risk is somewhat mitigated by our geographically diverse customer base and our credit evaluation procedures. The actual rate of future credit losses, however, may not be similar to past experience. Our estimate of doubtful accounts could change based on changing circumstances, including changes in the economy or in the particular circumstances of individual customers. Accordingly, we may be required to increase or decrease our allowance for doubtful accounts. Based on management’s evaluation, there is a balance in the allowance for doubtful accounts of $527,136 and $881,087 as of December 31, 2022, and 2021, respectively.
Inventory, net
All of our inventory consists of raw materials and are valued at the lower of historic cost or net realizable value; where net realizable value is considered to be the estimated selling price in the ordinary course of business, less reasonably predictable cost of completion, disposal and transportation. Historic inventory costs are calculated on a first-in-first-out basis or specific cost. The Company records inventory write-downs for excess or obsolete inventories based upon assumptions on current and future demand forecasts. As of December 31, 2022, and 2021, the Company had $304,050 and $54,050, respectively, reserved for obsolete inventory.
Property and Equipment, net
Our property and equipment are recorded at cost and depreciated using the straight-line over the estimated useful lives. Ordinary repair and maintenance costs are included in sales, general and administrative (“SG&A”) expenses on our statements of operations. However, expenditures for additions or improvements that significantly extend the useful life of the asset are capitalized in the period incurred. At the time assets are sold or disposed of, the cost and accumulated depreciation are removed from their respective accounts and the related gains or losses are reflected in the statements of operations in gains from sales of property and equipment, net.
We periodically evaluate the appropriateness of remaining depreciable lives assigned to property and equipment. Depreciation expense for the years ended December 31, 2022, and 2021 were $60,667 and $70,005, respectively. Generally, we assign the following estimated useful lives to these categories:
| Category | Estimated Useful Life | |
| Software and computer equipment | 3 to 10 years | |
| Furniture and fixtures | 3 to 15 years | |
| Vehicles | 5 years | |
| Equipment | 5 to 10 years |
| F-44 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
Impairment of Long-lived Assets
Our long-lived assets principally consist of property and equipment and right-of-use assets. We review, on a regular basis, our long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. In reviewing for impairment, the carrying value of such assets is compared to the estimated undiscounted future cash flows expected from the use of the assets and their eventual disposition. If such cash flows are not sufficient to support the asset’s recorded value, an impairment charge is recognized to reduce the carrying value of the asset to its estimated fair value. The determination of future cash flows as well as the estimated fair value of long-lived and intangible assets involves significant estimates and judgment on the part of management. Our estimates and assumptions may prove to be inaccurate due to factors such as changes in economic conditions, changes in our business prospects or other changing circumstances. Based on our most recently completed reviews, there were no indications of impairment associated with our long-lived assets.
Leases
Our lease portfolio is substantially comprised of operating leases related to leases for our corporate headquarters and warehouse.
We determine whether an arrangement is a lease at the inception of the arrangement based on the terms and conditions in the contract. A contract contains a lease if there is an identified asset, and we have the right to control the asset for a period of time in exchange for consideration. Lease arrangements can take several forms. Some arrangements are clearly within the scope of lease accounting, such as a real estate contract that provides an explicit contractual right to use a building for a specified period of time in exchange for consideration. However, the right to use an asset can also be conveyed through arrangements that are not leases in form, such as leases embedded within service and supply contracts. We analyze all arrangements with potential embedded leases to determine if an identified asset is present, if substantive substitution rights are present, and if the arrangement provides the customer control of the asset.
Operating lease right-of-use (“ROU”) assets represent our right to use an individual asset for the lease term and lease liabilities represent our obligation to make lease payments arising from the lease. Operating lease ROU assets and liabilities are recognized at the commencement date based on the present value of lease payments over the lease term. As most of our leases do not provide the lessor’s implicit rate, we use our incremental borrowing rate (“IBR”) at the commencement date in determining the present value of lease payments by utilizing a fully collateralized rate for a fully amortizing loan with the same term as the lease.
Lease terms include options to extend the lease when it is reasonably certain those options will be exercised. For leases with terms greater than 12 months, we record the related asset and obligation at the present value of lease payments over the term. Our leases can include rental escalation clauses, renewal options and/or termination options that are factored into our determination of lease payments when such renewal options and/or termination options are reasonably certain of exercise.
A ROU asset is subject to the same impairment guidance as assets categorized as property and equipment. As such, any impairment loss on ROU assets is presented in the same manner as an impairment loss recognized on other long-lived assets.
A lease modification is a change to the terms and conditions of a contract that changes the scope or consideration of a lease. For example, a change to the terms and conditions to the contract that adds or terminates the right to use one or more underlying assets, or extends or shortens the contractual lease term, is a modification. Depending on facts and circumstances, a lease modification may be accounted for as either: (1) the original lease plus the lease of a separate asset(s) or (2) a modified lease. A lease will be remeasured if there are changes to the lease contract that do not give rise to a separate lease.
Cost of Revenues
Cost of revenue includes direct materials, labor, manufacturing overhead costs and reserves for estimated warranty cost (excluding depreciation). Cost of revenue also includes charges to write down the carrying value of the inventory when it exceeds its estimated net realizable value and to provide for on-hand inventories that are either obsolete or in excess of forecasted demand. During 2022, the Company announced upgrades to the current simulators along with the next generation of launch monitors to be available in 2023. Accordingly, management reviewed the inventory and recorded a $991,429 write down and an additional $250,000 allowance for obsolescence. The inventory write down in 2021 was $55,876.
Royalties
We have royalty agreements with certain software suppliers to pay royalties based on the number of units and subscriptions sold. The royalty percentages range between 20% and 30%. During 2022 and 2021, we paid $550,964 and $518,165, respectively, to software suppliers.
| F-45 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
Salaries, Wages, and Benefits
Salaries, wages and benefits are expenses earned by employees and outside contractors of the Company and are expensed as incurred. Included in salaries, wages and benefits are employer payroll taxes, health, dental and life insurance costs of $685,144 and $546,492 for the years ended December 31, 2022, and 2021, respectively. Contract labor was $895,868 and $417,227 for the years ended December 31, 2022, and 2021, respectively. As of December 31, 2022 and 2021, we had $278,565 and $9,124, respectively, in accrued salaries, wages and benefits.
Selling, General and Administrative
Sales and marketing costs consist primarily of installation and customer service costs, advertising through social media platforms, the creation of promotional videos for current and new products, membership industry associations, exhibiting at trade shows and other business development activities. Sales and marketing costs are expensed as incurred. For the years ended December 31, 2022, and 2021 total sales and marketing expenses were $1,727,293 and $1,577,406, respectively.
General and administrative expenses are expensed as incurred and consist primarily of the following:
| For the years ended December 31, | ||||||||
| 2022 | 2021 | |||||||
| Professional fees | $ | 932,122 | $ | 199,086 | ||||
| Bad debt | - | 568,662 | ||||||
| License and association dues | 516,477 | 229,183 | ||||||
| Facilities including rent and utilities | 439,717 | 372,123 | ||||||
| Bank and credit card processing fees | 357,533 | 398,996 | ||||||
| Other general corporate related expenses | 2,706,532 | 2,043,940 | ||||||
| $ | 4,952,381 | $ | 3,811,990 | |||||
Income Taxes
The Company, with stockholders’ consent, has elected to be taxed as an “S Corporation” under the provisions of the Internal Revenue Code and comparable state income tax law. As an S Corporation, we are generally not subject to corporate income taxes and our net income or loss is reported on the individual tax return of the stockholder of the Company. Therefore, no provision or liability for income taxes is reflected in the financial statements. Management has evaluated its tax positions and has concluded that the Company had taken no uncertain tax positions that could require adjustment or disclosure in the financial statements to comply with provisions set forth in ASC 740, “Income Taxes”.
Income (Loss) Per Share
Net income (loss) per share is provided in accordance with FASB ASC 260-10, “Earnings per Share”. Basic net income (loss) per common share (“EPS”) is computed by dividing income available to common stockholders by the weighted-average number of common shares outstanding for the period. Diluted earnings per share is computed by dividing net income by the weighted average shares outstanding, assuming all dilutive potential common shares were issued, unless doing so is anti-dilutive. The weighted-average number of common shares outstanding for computing basic EPS for both the years ended December 31, 2022, and December 31, 2021, was 11,308. Diluted net loss per share of common stock is the same as basic net loss per share of common stock because the effects of potentially dilutive securities are antidilutive.
Potentially dilutive securities as of December 31, 2022, included warrants to purchase 292 shares of commons stock and 127 common shares for the convertible debt. There were no potentially dilutive shares as of December 31, 2021.
Recent Accounting Pronouncements Not Yet Adopted
Management has evaluated all recent accounting pronouncements issued by the Financial Accounting Standards Board (“FASB”) and determined that none of the pronouncements will have a material impact on our financial statements. We will continue to monitor the issuance of any new accounting pronouncements and assess their potential impact on the financial statements in future periods.
| F-46 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
Concentration of Credit and Supplier Risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist primarily of cash deposits and trade accounts receivable. Credit risk can be negatively impacted by adverse changes in the economy or by disruptions in the credit markets.
We maintain our cash deposits with established commercial banks. At times, balances may exceed federally insured limits. We have not experienced any losses in such accounts and do not believe that we are exposed to any significant credit risk associated with our cash deposits.
We believe that credit risk with respect to trade accounts receivable is somewhat mitigated by our large number of geographically diverse customers and our credit evaluation procedures. We record trade accounts receivables at sales value and establish specific reserves for certain customer accounts identified as known collection problems due to insolvency, disputes or other collection issues. The amounts of the specific reserves estimated by management are determined by a loss rate model based on delinquency. We maintain reserves for potential losses. For the years ended December 31, 2022, and 2021 no one customer accounted for more than 10% of our revenues.
We purchase a significant amount of parts we consume in manufacturing our simulators from nationally known original equipment manufacturers, many of whom we have had over a 10 to 15 year relationship. While we do not have long-term contracts, we do issue purchase orders based on quoted prices terms. During the year ended December 31, 2022, we purchased approximately 50.0% of our assembly parts from three manufacturers. During the year ended December 31, 2021, we purchased approximately 32.5% of our assembly parts from eight manufacturers. We believe that while there are alternative sources of supply for the equipment we purchase in each of the principal product categories, termination of one or more of our relationships with any of our major suppliers of equipment could have a material adverse effect on our business.
Warrants
The fair value of the warrants is estimated on the date of issuance using the Black-Scholes option pricing model, which requires the input of subjective assumptions, including the expected term of the warrants, expected stock price volatility, and expected dividends. These estimates involve inherent uncertainties and the application of management’s judgment. Expected volatilities used in the valuation model are based on the average volatility of the comparable companies publicly traded on recognized stock exchanges. The risk-free rate for the expected term of the option is based on the United States Treasury yield curve in effect at the time of grant.
Gain on Loan Extinguishment
In May 2020, we received a $735,000 loan under the Coronavirus Aid, Relief, and Economic Security Act Paycheck Protection Program. During 2021, the loan was forgiven.
Date of Management’s Review
We evaluate events and transactions occurring subsequent to the date of the financial statements for matters requiring recognition or disclosure in the financial statements. The accompanying financial statements consider events through July 31, 2023, the date at which the financial statements were issued.
| 3. | ACCOUNTS RECEIVABLE, NET |
Accounts receivable and allowance for doubtful accounts consisted of the following as of December 31:
| 2022 | 2021 | |||||||
| Trade accounts receivable | $ | 2,140,853 | $ | 2,256,874 | ||||
| Other | 130,920 | 124,495 | ||||||
| 2,271,773 | 2,381,369 | |||||||
| Less allowance for doubtful accounts | (527,136 | ) | (881,087 | ) | ||||
| Total accounts receivable, net | $ | 1,744,637 | $ | 1,500,282 | ||||
| F-47 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
Accounts receivable as of December 31, 2022, and 2021 are primarily made up of trade receivables due from customers in the ordinary course of business. Five customers accounted for more than 57% of the balance of accounts receivable as of December 31, 2022, and four customers accounted for 47% of the accounts receivable balance as of December 31, 2021.
| 4. | INVENTORY, NET |
The following summarizes inventory as of December 31:
| 2022 | 2021 | |||||||
| Inventory – raw materials | $ | 2,425,530 | $ | 1,909,915 | ||||
| Less reserve allowance for obsolescence | (304,050 | ) | (54,050 | ) | ||||
| Inventory, net | $ | 2,121,480 | $ | 1,855,865 | ||||
| 5. | PROPERTY AND EQUIPMENT, NET |
The following summarizes property and equipment as of December 31:
| 2022 | 2021 | |||||||
| Software and computer equipment | $ | 694,560 | $ | 653,131 | ||||
| Furniture and fixtures | 217,943 | 217,943 | ||||||
| Vehicles | 59,545 | 59,545 | ||||||
| Equipment | 15,873 | 15,873 | ||||||
| 987,921 | 946,492 | |||||||
| Less accumulated depreciation | (822,385 | ) | (761,719 | ) | ||||
| Property and equipment, net | $ | 165,536 | $ | 184,773 | ||||
Depreciation expense for the years ended December 31, 2022, and 2021, was $60,667 and $70,005, respectively.
| 6. | CUSTOMER DEPOSITS |
Customer deposits are advance payments from customers prior to manufacturing and shipping a simulator. The prepayment amounts and timing vary depending on the product to be manufactured and delivery location. Customer deposits are included in current liabilities until the balance is applied to an order at the time of invoicing. As of December 31, 2022, and 2021, customer deposits were $2,712,520 and $2,594,348, respectively.
| 7. | NOTES PAYABLE |
Notes payable consisted of the following as of December 31:
| 2022 | 2021 | |||||||
| Note payable - JPMorgan Chase | $ | 349,830 | $ | 445,542 | ||||
| Note payable – Mercedes-Benz | 38,017 | 46,399 | ||||||
| Note payable – Zions Bank | 5,984 | 24,410 | ||||||
| Note payable - Other | - | 2,991 | ||||||
| 393,831 | 519,342 | |||||||
| Less current portion | (105,213 | ) | (125,571 | ) | ||||
| Long-term portion | $ | 288,618 | $ | 393,771 | ||||
| F-48 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
Future maturities of notes payable are as follows for the years ending December 31:
| 2023 | $ | 105,213 | ||
| 2024 | 110,851 | |||
| 2025 | 114,574 | |||
| 2026 | 63,193 | |||
| Total | $ | 393,831 |
Note Payable – JP Morgan Chase
In June 2021, we entered into a $500,000, 3.00% annual interest rate note payable with JPMorgan Chase Bank, N.A. The note matures on June 8, 2026. We make a monthly principal and interest payment in the amount of $8,994. There is no prepayment penalty if the loan is paid prior to the maturity date.
Note Payable – Mercedes-Benz
In November 2020, we entered into a $59,545, 5.90% annual interest rate note payable with Mercedes-Benz for a delivery van. The note matures on November 20, 2026, and is secured by the van. We make a monthly payment of $908.
Note Payable – Zions Bank
In April 2018, we entered into a $77,067, 6.75% annual interest rate note payable with Zion Bank, N.A. The note matures on April 16, 2023, and is guaranteed by the Company’s chief executive officer. We make a monthly payment of $1,517.
| 8. | RELATED PARTY NOTES PAYABLE |
Related party notes payable consisted of the following as of December 31:
| 2022 | 2021 | |||||||
| Notes payable - ARJ Trust | $ | 650,000 | $ | 650,000 | ||||
| Note payable - McKettrick | 1,250,000 | 1,500,000 | ||||||
| Note payable - Carver | 185,000 | 222,000 | ||||||
| 2,085,000 | 2,372,000 | |||||||
| Less current portion | (937,000 | ) | (787,000 | ) | ||||
| Long-term portion | $ | 1,148,000 | $ | 1,585,000 | ||||
Future maturities of related party notes payable are as follows for the years ending December 31:
| 2023 | $ | 937,000 | ||
| 2024 | 287,000 | |||
| 2025 | 287,000 | |||
| 2026 | 287,000 | |||
| 2027 | 287,000 | |||
| Total | $ | 2,085,000 |
Note Payable – ARJ Trust
In December 2008, we entered into a $500,000, 8.50% annual interest rate note payable with a trust (“ARJ Trust”) indirectly controlled by the chief executive officer. We make monthly interest-only payments of $3,541. As of December 31, 2022, and 2021, the principal balance outstanding was $500,000 and accrued interest was $2,911. The note was to mature on March 31, 2023. During 2023, the note’s maturity was extended one-year to March 31, 2024.
| F-49 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
In June 2010, we entered into a second $150,000, 8.50% annual interest rate note payable with the ARJ Trust. We make monthly interest-only payments of $1,063. As of December 31, 2022, and 2021, the principal balance outstanding was $150,000 and accrued interest was $873. The note was to mature on March 31, 2023. During 2023, the note’s maturity was extended one-year to March 31, 2024.
Note Payable – McKettrick
In May 2019, we entered into a $1,750,000, zero interest rate note payable with a former shareholder to repurchase all shares in the Company. The note is payable in annual installments of $250,000 due on December 21 of each year. The note matures on December 1, 2027. There is a late fee of 5%, if not paid within 10 days of the due date.
Note Payable – Carver
In January 2021, we entered into a $222,000, zero interest rate note payable with a former shareholder to repurchase all shares in the Company. The note is payable in semi- annual installments of $18,500 due on March 31 and September 30 each year and matures on October 1, 2027.
| 9. | LINE OF CREDIT |
In September 2020, we entered into a $2,000,000, 2.627% per annum at origination annual interest rate line of credit with JPMorgan Chase Bank, N.A. We did not make any payments, nor did we draw on the line of credit during 2022. The balance of the line of credit was $545,625 as of December 31, 2022, and 2021, respectively. The interest rate as of December 31, 2022, and 2021, was 6.75% and 2.73%, respectively. The line of credit is guaranteed by the Company’s chief executive officer. In March 2023, the line of credit maturity was extended to September 2, 2023.
| 10. | CONVERTIBLE NOTES PAYABLE |
In May 2022, we entered into two separate but identical $300,000 (total $600,000), 10.00% annual interest rate convertible notes payable (“Convertible Notes”) with two individual consultants (“Note Holder”) to assist with services including an initial public offering preparation and listing to NASDAQ or other national exchange, assist the Company and its counsel in preparing a code of conduct and employment agreements, franchise development, and valuation increase through growth among other services. The terms of each note include a 15% original issue discount (“OID”), 292 warrants, no prepayment penalty and a maturity of February 25, 2023.
The warrants are exercisable at $4,800 per share for five years and a cashless option and a mandatory exercise over $9,600 with no prepayment penalty. The warrants are non-exercisable for one year from issuance. The valuation assumptions used to determine the fair value of each warrant awarded in 2022: expected stock price volatility ranged from 40.06% to 80.17%; expected term in years 5.00 with a discount for the one-year lockout period; and risk-free interest rate 2.95%.
During 2022, we recorded $304,388 in gross OID based on the borrowings on the Convertible Notes. During 2022, we recorded OID amortization of $240,020 in interest expense. As of December 31, 2022, total remaining OID was $64,368.
The Note Holder has the right, at any time on or after the issuance date and prior to the maturity date, to convert all or any portion of the then outstanding and unpaid principal plus any accrued interest thereon into shares of the Company’s common stock. The per share conversion price will be convertible into shares of common stock equal to 70% multiplied by the lower of (i) the volume weighted average of the closing sales price of the common stock on the date that the Company’s listing on the NASDAQ Global Market or other national exchange (“Uplisting”) is successfully consummated or (ii) the lowest closing price for the five trading days following the date of Uplisting, not including the Uplisting day.
In the event the Company (i) makes a public announcement that it intends to be acquired by, consolidate or merge with any other corporation or entity (other than a merger in which the Company is the surviving or continuing corporation and its capital stock is unchanged) or sell or transfer all or substantially all of the assets of the Company; or (ii) any person, group or entity (including the Company) publicly announces a tender offer to purchase 50% or more of the common stock, then the conversion price will be equal to the lower of the conversion price and a 25% discount to the announced acquisition provided, that, the conversion will never be less than a price that is the lower of (iii) the closing price (as reflected on Nasdaq.com) immediately preceding the signing of these notes; or (iv) the average closing price of the Company’s common stock (as reflected on Nasdaq.com) for the five trading days immediately preceding the signing of these notes.
| F-50 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
The Company elected to follow the relative fair value method to allocate the proceeds to the warrants, OID, and convertible notes (collectively the “Financial Instruments”). Total estimated fair value of the Financial Instruments was $1,387,060. The pro-rata allocation of the $450,000 total proceeds was $282,109 to the warrants, $21,899 to the OID and $145,992 to the convertible notes. The fair value of the warrants exceeded the pro-rata allocation of proceeds to the warrants and the convertible notes by $445,032, which the Company recorded as interest expense at the time of issuance.
Based on an estimated 70% discounted conversion price, the Company recorded $192,857 in interest expense and a corresponding increase in the notes payable. The Company has elected to account for the convertible notes at fair market value. The fair market value will be adjusted at each reporting period. The total outstanding balance for each convertible note as of December 31, 2022, was $225,000 (total $450,000) and accrued interest was $16,480. In March 2023, we extended each note’s maturity to July 31, 2023 and increased each note’s borrowing limit to $375,000.
| 11. | DIVIDEND NOTES PAYABLE |
We file our tax returns as an S Corporation. Historically, all income tax liabilities and benefits of the Company are passed through to the shareholders annually through distributions. No dividends were declared during 2022. During 2021, the Board of Directors declared $7,395,694 in dividends to the shareholders, payable in cash as the Company’s liquidity allows. During 2022, the Company paid the shareholders $1,965,706.
In November 2022, each shareholder agreed to defer the accrued dividends payable by entering into 6.00% interest rate dividend notes payable. All outstanding and accrued interest is due and payable when the dividend notes payable mature on December 31, 2025. Interest commenced accruing on January 1, 2023.
Dividends declared, distributed, and accrued are as follow as of December 31:
| 2022 | 2021 | |||||||
| Declared | $ | - | $ | 7,395,694 | ||||
| Distributions payments for tax liabilities | 1,965,706 | 412,977 | ||||||
| Dividends payable | 7,660,784 | 9,626,490 | ||||||
| 12. | GROSS SALES ROYALTY PAYABLE |
In June 2015, we entered into a Royalty Purchase Agreement (the “Agreement”) with a purchaser (“Purchaser”) for a gross sales royalty. The Purchaser agreed to purchase a sales royalty for the sum of $1,000,000 plus applicable taxes. Upon mutual agreement the Purchaser may purchase one or more additional royalties in an aggregate amount of up to $1,000,000. For the period June 2015 through May 2017, the Company paid a monthly payment of $20,833. Effective June 1, 2017 and all subsequent months, the monthly royalty payment has been equal to the greater of $20,833 plus the amount determined in accordance with the following and of June 1, 2017:
| i. | If the trailing twelve-month revenue of the Company is equal to or less than $6,110,000, 3.60% of our monthly revenues, in perpetuity (unless terminated in accordance with the Purchase Agreement); | |
| ii. | If trailing twelve-month revenue of the Company is equal to or greater than $17,200,000, 1.30% of our monthly revenues, in perpetuity (unless terminated in accordance with the Purchase Agreement); or | |
| iii. | If trailing twelve-month revenue of the Company is greater than $6,110,000 but less than $17,200,000, such percentage of monthly revenue determined by dividing $220,060 by the amount of trailing twelve-month revenue and multiplying the result by 100, in perpetuity (unless terminated in accordance with the Purchase Agreement). |
The royalty percentage was fixed at 3.6% based on the trailing twelve-month revenue at the time of executing the Agreement (June 15, 2015). On June 1, 2017, the royalty percentage was changed to 2.4% based on the trailing 12-month revenues at that time as outlined in the table above.
The Agreement contains an option for a one-time buy down of the royalty rate. At any time following the date on which the Purchaser has received royalty payments that are, in the aggregate, equal to two times the then applicable Aggregate Installment Amount ($1,000,000), we may purchase and extinguish 75% (but no more nor less) of all amounts owing or to become owing to the Purchaser hereunder. In the event we want to exercise the buy down option, we would pay the Purchaser $750,000 (75% of the $1,000,000 outstanding amount). The adjusted royalty rate going forward would then be 0.6% (75% of the 2.4%).
The Agreement also contains an option for a buyout upon the change of control. If pursuant to a proposed change of control the acquirer under such transaction requires, as a condition to the completion of such transaction, that the Company purchase and extinguish all amounts owing or to become owing to the Purchaser hereunder, the Company will pay the greater of:
| F-51 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
| i. | An amount equal to two times the aggregate installment amount as at the date of the change of control buyout notice; and |
| ii. | An amount equal to A multiplied by B multiplied by C, where: |
| a. | A is equal to the aggregate installment amount as at the date of the change of control divided by $22,500,000; |
| b. | B is equal to 0.8; and |
| c. | C is equal to the net equity value of the Company; or in the case of a proposed asset sale, the proposed net purchase price of all or substantially all of the Company’s assets. |
In the event the Company were required to buyout the Agreement as a condition of closing the proposed DMAC acquisition (which currently is not a condition) (See Note 17 – Subsequent Events), the Company would pay Purchaser $2,844,444.
The Agreement has neither a stated maturity nor an interest rate. While the royalty percentage can be reduced via a buydown, as previously explained, the only avenue for terminating the Agreement is a buyout required by an acquirer in a change of control transaction. Absent the change of control, the Agreement will survive in perpetuity at a royalty rate of 2.4% or 0.6% depending on whether or not the royalty rate buydown option has been exercised.
Because the gross sales royalty payable has no stated fixed interest nor maturity, it is considered variable interest perpetual debt. The periodic variable payments to the Purchaser are recorded in interest expense. As of December 31, 2022, and 2021, the amount outstanding was $1,000,000. During 2022 and 2021, we paid $517,191 and $648,336, respectively, in interest expense to the Purchaser.
| 13. | ACCRUED AND OTHER CURRENT LIABILITIES |
Accrued and other current liabilities consisted of the following as of December 31:
| 2022 | 2021 | |||||||
| Accrued payroll | $ | 278,565 | $ | 9,124 | ||||
| Credit cards | 191,244 | 380,897 | ||||||
| Warranty reserve | 140,000 | 90,000 | ||||||
| Sales tax payable | 40,545 | 62,140 | ||||||
| Other | 100,322 | - | ||||||
| Accrued and other current liabilities | $ | 750,676 | $ | 542,161 | ||||
| 14. | INCOME TAXES |
The Company is an S Corporation for federal and state income tax purposes with all income tax liabilities and/or benefits of the Company being passed through to the stockholders. As such, no recognition of federal or state income taxes for the Company has been provided for in the accompanying financial statements. Any uncertain tax position taken by the stockholders on their individual returns is not an uncertain position of the Company.
We have adopted the provisions of ASC 740-10-25, which provide recognition criteria and a related measurement model for uncertain tax positions taken or expected to be taken in income tax returns. ASC 740-10-25 requires that a position taken or expected to be taken in a tax return be recognized in the financial statements when it is more likely than not that the position would be sustained upon examination by tax authorities.
Tax positions that meet the more likely than not threshold are then measured using a probability weighted approach recognizing the largest amount of tax benefit that is greater than 50% likely of being realized upon ultimate settlement. The Company had no tax positions relating to open income tax returns that were considered to be uncertain as of December 31, 2022.
| F-52 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
| 15. | COMMITMENTS AND CONTINGENCIES |
Operating Leases
As of December 31, 2022, we had two operating leases as follows:
| ● | In December 2022, we entered into a new three-year lease on the corporate headquarters in Centerville, Utah. The base monthly lease payment through November 2023 is $20,343, $20,378 through November 2023 and $24,616 through November 2025. As of December 31, 2022, we had 35 months remaining on the lease. | |
| ● | Office and warehouse space in Centerville, Utah, with monthly payments of $5,017. As of December 31, 2022, we had 3 months remaining on the lease. |
We utilize our incremental borrowing rate in determining the present value of lease payments unless the implicit rate is readily determinable. For 2022 and 2021, we used an estimated incremental borrowing rate of 5.90% to determine the present value of the lease liability.
Other information related to our operating leases is as follows:
Right of use asset:
| As of December 31, 2020 | $ | 279,695 | ||
| Amortization | (189,818 | ) | ||
| Addition for warehouse lease | 72,379 | |||
| As of December 31, 2021 | 162,256 | |||
| Amortization | (165,535 | ) | ||
| Addition for headquarter lease | 736,156 | |||
| As of December 31, 2022 | $ | 732,877 |
Lease liability:
| As of December 31, 2020 | $ | 290,954 | ||
| Payments | (197,042 | ) | ||
| Addition for warehouse lease | 72,379 | |||
| As of December 31, 2021 | 166,291 | |||
| Payments | (168,110 | ) | ||
| Addition for headquarter lease | 736,156 | |||
| Lease liability – December 31, 2022 | $ | 734,337 |
The table below reconciles the fixed component of the undiscounted cash flows for each of three years to the lease liabilities recorded on the Balance Sheet as of December 31, 2022:
| Year | Minimum Lease Payments | |||
| 2023 | $ | 261,207 | ||
| 2024 | 270,772 | |||
| 2025 | 270,772 | |||
| Total | 802,751 | |||
| Less interest | (68,414 | ) | ||
| Present value of future minimum lease payments | 734,337 | |||
| Less current portion | (224,159 | ) | ||
| Long term lease liability | $ | 510,178 | ||
| F-53 |
TRUGOLF
NOTES TO FINANCIAL STATEMENTS
Stockholders’ Equity
In April 2022, we secured the services of two consultants (also the Note Holders as described in Note 10 – Convertible Notes Payable) to assist with services including assisting the Company’s and its counsel in an initial public offering preparation and listing to NASDAQ or other national exchange, assist the Company and its counsel in preparing a code of conduct and employment agreements, franchise development, and valuation increase through growth among other services. Once services are performed, the first consultant will be provided a 3% stock grant; while the second consultant will be provided up to 7% of stock based on performance deliverables including: 1.75% on consummation of an initial bridge loan agreement, 1.75% on engaging an investment banker, 1.75% upon filing an S-1 including financial statements and footnotes, and 1.75% upon the closing of an initial public offering. The second consultant will be provided warrants at a 20% discount to the then current price per share, for up to 2% for achieving a $250 million valuation and 3% more for a $500 million valuation, as well as another 2% for opening the first franchise location, and 3% more once 100 franchise locations have been sold.
| 16. | RELATED PARTY |
As described in Note 11, the following were outstanding on the dividends notes payable to our officers and shareholders as of December 31, 2022, and 2021:
| 2022 | 2021 | |||||||
| Chief executive officer, Director and Shareholder | $ | 3,278,479 | $ | 4,206,479 | ||||
| Chief hardware officer, Director and Shareholder | 1,576,952 | 1,956,952 | ||||||
| Executive vice president, Director and Shareholder | 1,591,952 | 1,956,952 | ||||||
| Interim chief financial officer, Director and Shareholder | 397,038 | 397,038 | ||||||
The Company’s chief executive officer guaranties certain debt of the company as discussed in Note 7 and Note 11.
| 17. | SUBSEQUENT EVENTS |
We evaluate events and transactions occurring subsequent to the date of the financial statements for matters requiring recognition or disclosure in the financial statements. The accompanying financial statements consider events through July 31, 2023, the date at which the financial statements were available to be issued.
In January 2023, we entered into a $10,000,000, 4.00% per annum interest rate, twelve years note payable with an asset management company. As a condition to funding, we have placed $1,875,000 as a deposit with the asset management company, which is pledged as collateral for the note. Proceeds from the loan will be funded in twelve consecutive installments of $833,333 commencing thirty banking days following the lender receiving the pledged margin account. The note has a three-year grace period for principal and interest payments. Annual principal and interest payments will commence in 2026 and continue through 2034.
In March 2023, we entered into an Agreement and Plan of Merger (“APM”) whereby the Company will merge with Deep Medicine Acquisition Corp., a Delaware Corporation (“DMAC”). As consideration for the merger (“Merger Consideration”), the Company Stockholders are entitled to receive from DMAC a total number of shares of DMAC’s common stock with an aggregate implied value equal to $80 million, plus the amount, if any, by which the Company’s net working capital exceeds the target net working capital ($1,000,000) minus the amount, if any, by which the target net working capital exceeds the net working capital (but not less than zero), minus the amount of closing net debt (defined as the aggregate amount of all indebtedness of the Company less the balance of the Company’s cash at closing), minus (e) the amount of any unpaid Company transaction expenses (the “Merger Consideration”).
Each Company Stockholder shall receive for each share of the Company’s common stock held a number of shares of DMAC’s common stock equal to (i) the Merger Consideration, divided by (ii) the redemption price defined as an amount equal to the price at which each DMAC share is redeemed or converted pursuant to a public offering.
In March 2023, we extended each convertible note’s (See Note 10 – Convertible Notes) maturity to July 31, 2023, and increased each note’s borrowing limit to $375,000.
In June 2023, we entered into a sixty-month, triple net lease for additional warehouse space in North Salt Lake, Utah. The lease payments range between $10,457 and $11,770.
In July 2023, the Company and Convertible Note Holders (refer to Note 10 – Convertible Notes) entered into Warrant Cancellation Agreements, whereby the 292 warrants will be cancelled if the merger with DMAC takes place. If the merger is not closed, the warrants will remain outstanding.
Pursuant to a term sheet issued by TruGolf in final form on June 13, 2023, a financing of up to $11 million will be made available (the “ Financing Term Sheet”). The terms of the financing have not yet been finalized. It is expected that the Financing will consist of a note and warrants.
| F-54 |
TRUGOLF, INC
Interim Financial Statements
(Unaudited)
As of and for the nine months ending September 30, 2023 and 2022
| F-55 |
TABLE OF CONTENTS
| Unaudited Interim Financial Statements | |
| Balance Sheets | F-57 |
| Statements of Operations | F-58 |
| Statements of Comprehensive (Loss) Income | F-59 |
| Statements of Changes in Stockholders’ Deficit | F-60 |
| Statements of Cash Flows | F-61 |
| Notes to Financial Statements | F-62 |
| F-56 |
TRUGOLF, INC.
CONDENSED BALANCE SHEETS
| Balances at | ||||||||
| September 30, 2023 | December 31, 2022 | |||||||
| (unaudited) | ||||||||
| ASSETS | ||||||||
| Current assets: | ||||||||
| Cash and cash equivalents | $ | 5,474,341 | $ | 9,656,266 | ||||
| Accounts receivable, net | 2,136,003 | 1,744,637 | ||||||
| Inventory, net | 3,411,221 | 2,121,480 | ||||||
| Prepaid expenses | 224,438 | 147,748 | ||||||
| Short-term investments | 2,355,604 | - | ||||||
| Other current assets | - | 17,840 | ||||||
| Total current assets | 13,601,607 | 13,687,971 | ||||||
| Property and equipment, net | 208,878 | 165,536 | ||||||
| Right-of-use assets | 1,053,770 | 732,877 | ||||||
| Other long-term assets | 2,026,082 | - | ||||||
| Total assets | $ | 16,890,337 | $ | 14,586,384 | ||||
| LIABILITIES AND STOCKHOLDERS’ DEFICIT | ||||||||
| Current liabilities: | ||||||||
| Accounts payable | $ | 2,300,386 | $ | 1,463,337 | ||||
| Customer deposits | 2,642,012 | 2,712,520 | ||||||
| Notes payable, current portion | 9,285 | 105,213 | ||||||
| Notes payable to related parties, current portion | 955,500 | 937,000 | ||||||
| Line of credit | 545,625 | 545,625 | ||||||
| Line of credit margin account | 1,945,397 | - | ||||||
| Convertible notes payable | 947,676 | 578,481 | ||||||
| Accrued interest | 490,069 | 92,552 | ||||||
| Accrued and other current liabilities | 460,192 | 750,676 | ||||||
| Lease liability, current portion | 321,334 | 224,159 | ||||||
| Total current liabilities | 10,617,476 | 7,409,563 | ||||||
| Non-current liabilities: | ||||||||
| Notes payable, net of current portion | 2,795,208 | 288,618 | ||||||
| Note payables to related parties, net of current portion | 1,111,000 | 1,148,000 | ||||||
| Dividend notes payable | 7,585,688 | 7,660,784 | ||||||
| Gross sales royalty payable | 1,000,000 | 1,000,000 | ||||||
| Lease liability, net of current portion | 756,044 | 510,178 | ||||||
| Other liabilities | 38,357 | - | ||||||
| Total liabilities | 23,903,773 | 18,017,143 | ||||||
| Stockholders’ deficit: | ||||||||
| Preferred stock, $0.01 par value, 10 million shares authorized; zero shares issued and outstanding as of September 30, 2023 and December 31, 2022, respectively | - | - | ||||||
| Common stock, $0.01 par value, 190 million shares authorized; 12,129 and 11,308 shares issued and outstanding as of September 30, 2023 and December 31, 2022, respectively. | 109 | 100 | ||||||
| Treasury stock at cost, 4,692 shares of common stock held at September 30, 2023 and December 31, 2022, respectively | (2,037,000 | ) | (2,037,000 | ) | ||||
| Additional paid-in capital | 5,175,280 | 681,956 | ||||||
| Accumulated other comprehensive loss | (64,121 | ) | - | |||||
| Accumulated losses | (10,087,704 | ) | (2,075,815 | ) | ||||
| Total stockholders’ deficit | (7,013,436 | ) | (3,430,759 | ) | ||||
| Total liabilities and stockholders’ deficit | $ | 16,890,337 | $ | 14,586,384 | ||||
The accompanying notes are an integral part of these condensed financial statements.
| F-57 |
TRUGOLF, INC.
CONDENSED STATEMENTS OF OPERATIONS
(Unaudited)
Nine Months Ended September 30, | ||||||||
| 2023 | 2022 | |||||||
| Revenues, net | $ | 13,788,700 | $ | 13,661,776 | ||||
| Cost of revenues | (4,531,429 | ) | (4,308,779 | ) | ||||
| Gross profit | 9,257,271 | 9,352,997 | ||||||
| Operating expenses: | ||||||||
| Royalties | 447,366 | 260,337 | ||||||
| Salaries, wages and benefits | 6,171,878 | 5,060,212 | ||||||
| Selling, general and administrative | 9,455,683 | 3,379,449 | ||||||
| Total operating expenses | 16,074,927 | 8,699,998 | ||||||
| (Loss) income from operations | (6,817,656 | ) | 652,999 | |||||
| Other (expenses) income: | ||||||||
| Interest income | 71,542 | - | ||||||
| Interest expense | (1,265,775 | ) | (539,098 | ) | ||||
| Total other expense | (1,194,233 | ) | (539,098 | ) | ||||
| (Loss) income from operations before income taxes | (8,011,889 | ) | 113,901 | |||||
| Provision for income taxes | - | - | ||||||
| Net (loss) income | (8,011,889 | ) | 113,901 | |||||
| Basic and diluted net (loss) income per share attributable to common stockholders | $ | (660.56 | ) | $ | 10.07 | |||
| Basic and diluted weighted average common shares | 12,129 | 11,308 | ||||||
The accompanying notes are an integral part of these condensed financial statements.
| F-58 |
TRUGOLF, INC.
CONDENSED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME
(Unaudited)
Nine Months Ended September 30, | ||||||||
| 2023 | 2022 | |||||||
| Net (loss) income | $ | (8,011,889 | ) | $ | 113,901 | |||
| Other comprehensive loss: | ||||||||
| Unrealized loss in fair value of short-term investments | (64,121 | ) | - | |||||
| Comprehensive (loss) income | $ | (8,076,010 | ) | $ | 113,901 | |||
The accompanying notes are an integral part of these condensed financial statements.
| F-59 |
TRUGOLF, INC.
CONDENSED STATEMENTS OF STOCKHOLDERS’ DEFICIT
(Unaudited)
| Preferred Stock | Common Stock | Treasury Stock | Additional Paid-in | Accumulated Other Comprehensive | Retained Earnings (Accumulated | Total Stockholders’ | ||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | Capital |
Income (Loss) |
Losses) | Deficit | |||||||||||||||||||||||||||||||
| Balance, December 31, 2021 | - | $ | - | 11,308 | $ | 100 | (4,692 | ) | $ | (2,037,000 | ) | $ | - | $ | - | $ | (1,118,974 | ) | $ | (3,155,874 | ) | |||||||||||||||||||
| Net income | - | - | - | - | - | - | - | - | 113,901 | 113,901 | ||||||||||||||||||||||||||||||
| Balance, September 30, 2022 | - | $ | - | 11,308 | $ | 100 | (4,692 | ) | $ | (2,037,000 | ) | $ | - | $ | - | $ | (1,005,073 | ) | $ | (3,041,973 | ) | |||||||||||||||||||
| Balance, December 31, 2022 | - | $ | - | 11,308 | $ | 100 | $ | (4,692 | ) | $ | (2,037,000 | ) | $ | 681,956 | $ | - | $ | (2,075,815 | ) | $ | (3,430,759 | ) | ||||||||||||||||||
| Issuance of common stock | - | - | 821 | 9 | - | - | 4,493,324 | - | - | 4,493,333 | ||||||||||||||||||||||||||||||
| Unrealized loss in fair value of short-term investments | - | - | - | - | - | - | - | (64,121 | ) | - | (64,121 | ) | ||||||||||||||||||||||||||||
| Net loss | - | - | - | - | - | - | (8,011,889 | ) | (8,011,889 | ) | ||||||||||||||||||||||||||||||
| Balance, September 30, 2023 | - | $ | - | 12,129 | $ | 109 | (4,692 | ) | $ | (2,037,000 | ) | $ | 5,175,280 | $ | (64,121 | ) | $ | (10,087,704 | ) | $ | (7,013,436 | ) | ||||||||||||||||||
The accompanying notes are an integral part of these condensed financial statements.
| F-60 |
TRUGOLF, INC.
CONDENSED STATEMENTS OF CASHFLOWS
(Unaudited)
Nine Months Ended September 30, | ||||||||
| 2023 | 2022 | |||||||
| Cash flows from operating activities: | ||||||||
| Net (loss) income | $ | (8,011,889 | ) | $ | 113,901 | |||
| Adjustments to reconcile net (loss) income to net cash provided by (used in) operating activities: | ||||||||
| Depreciation and amortization expense | 45,682 | 7,978 | ||||||
| Amortization of convertible notes original issue discount | 183,695 | - | ||||||
| Amortization of right-of-use asset | 217,101 | - | ||||||
| Bad debt expense | 665,920 | - | ||||||
| Stock issued for services | 4,493,333 | - | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable, net | (1,057,286 | ) | 1,431,524 | |||||
| Inventory, net | (1,289,741 | ) | (861,200 | ) | ||||
| Prepaid expenses | (76,690 | ) | 180 | |||||
| Other current assets | 17,840 | 32,208 | ||||||
| Other assets | (2,026,082 | ) | - | |||||
| Accounts payable | 837,049 | 683,890 | ||||||
| Customer deposits | (70,508 | ) | (297,523 | ) | ||||
| Accrued interest | 397,517 | - | ||||||
| Accrued and other current liabilities | (290,484 | ) | (3,002 | ) | ||||
| Other liabilities | 38,357 | |||||||
| Lease liability | (194,953 | ) | - | |||||
| Net cash (used in) provided by operating activities | (6,121,139 | ) | 1,107,956 | |||||
| Cash flows from investing activities: | ||||||||
| Purchase of property and equipment | (89,024 | ) | (4,407 | ) | ||||
| Purchase of short-term investments | (2,419,725 | ) | - | |||||
| Net cash used in investing activities | (2,508,749 | ) | (4,407 | ) | ||||
| Cash flows from financing activities: | ||||||||
| Proceeds from line of credit | 1,945,397 | - | ||||||
| Proceeds from notes payable | 2,499,999 | - | ||||||
| Repayments of notes payable | (89,337 | ) | (107,758 | ) | ||||
| Repayments of notes payable - related party | (18,500 | ) | (33,995 | ) | ||||
| Proceeds from convertible notes | 185,500 | 235,000 | ||||||
| Repayments of dividend notes payable | (75,096 | ) | (348,656 | ) | ||||
| Net cash provided by (used in) financing activities | 4,447,963 | (255,409 | ) | |||||
| Net change in cash and cash equivalents | (4,181,925 | ) | 848,140 | |||||
| Cash and cash equivalents, beginning of period | 9,656,266 | 10,708,677 | ||||||
| Cash and cash equivalents, end of period | $ | 5,474,341 | $ | 11,556,817 | ||||
| SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: | ||||||||
| Cash paid for interest | $ | 868,264 | $ | 539,098 | ||||
The accompanying notes are an integral part of these condensed financial statements.
| F-61 |
TRUGOLF
NOTES TO CONDENSED FINANCAL STATEMENTS
| 1. | ORGANIZATION AND NATURE OF OPERATIONS |
For over 40 years, the Company has been creating indoor golf software and hardware and are focused on both the residential and commercial golf simulation industries. We design, develop, manufacture and sell golf simulators for residential and commercial applications. We offer portable, professional, commercial and custom simulators. In addition, to bundling our software with our simulators, we offer our E6 Connect software and gaming software on a standalone basis. We have leveraged the power of our hardware and software platform to create a collection of multi-sport games including football, soccer, soccer golf, frisbee golf, zombie dodgeball, and cowboy target practice.
| 2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
Basis of Presentation
The accompanying unaudited interim condensed financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America for interim financial information and Article 8 of Regulation S-X. Accordingly, certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted pursuant to such regulations. In the opinion of management, all adjustments (consisting of all normal and recurring adjustments) considered necessary for a fair presentation have been included. Operating results for the nine months ended September 30,2023, are not necessarily indicative of the results that may be expected for next year, and therefore, the results and trends in these interim condensed financial statements may not be the same for the entire year. These interim condensed financial statements should be read in conjunction with the annual audited financial statements and related notes included elsewhere in this prospectus, for the year ended December 31, 2022, from which the balance sheet amounts as of December 31, 2022 were derived.
We describe our significant accounting policies in Note 2 of the notes to the annual audited financial statements included elsewhere in this prospectus for the year ended December 31, 2022. During nine-month period ended September 30, 2023, there were no significant changes to those accounting policies.
The Company’s financial statements are prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of obligations in the normal course of business. Continuation as a going concern is dependent upon continued operations of the Company, which in turn is dependent upon the Company’s ability to, meets its financial requirements, raise additional capital, and the success of its future operations.
Under the rules of ASC Subtopic 205-40 “Presentation of Financial Statements-Going Concern” (“ASC 205-40”), the Company is required to evaluate whether conditions and/or events raise substantial doubt about its ability to meet its future financial obligations as they become due within one year after the date that these interim financial statements are issued or available to be issued. This evaluation takes into account a Company’s current available cash and projected cash needs over the one-year evaluation period but may not consider things beyond its control.
In 2022 and prior years, the Company has reported operating income and positive operating cash flows. However, for the first nine months of 2023, the Company has experienced operating losses due primarily to expensing consulting fees and issuing common stock associated with the services provided by third-party consultants related to the propose DMAC merger (See Note 9 – Stockholders Equity), used cash from operations, and relied on the capital raised from related parties and institutional financing to continue ongoing operations. We may or may not be able to close the DMAQ merger, raise additional capital or obtain additional institutional financing due to future economic conditions. In particular, the lending criteria are currently tightening in the United States and we have experienced a decline in demand for our products, which are in the category of “lifestyle purchases”. These factors, when considered in the aggregate, raise substantial doubt about the Company’s ability to continue as a going concern within one year of the date these interim financial statements are issued. In response to these conditions, the Company’s management has prepared the following financing plan, which we believe mitigates the going concern uncertainty:
We project that we will be able to meet our debt service and other cash obligations for at least the next 12 months. Our significant projected cash commitments relate primarily to debt service and operating expenses. We anticipate the cash required to service our debt to be between $900,000 to $2,300,000. The $2,300,000 assumes (1) the convertible notes (See Note 10 – Convertible Notes Payable in the annual audited financial statements found elsewhere in this prospectus) are retired by cash payment (approximately $750,000) rather than conversion into our stock at maturity and (2) the note payable – ARJ Trust (See Note 8 – Related Party Notes Payable in the annual audited financial statements found elsewhere in this prospectus) are retired at maturity. These notes are controlled by the Company’s Chief Executive Officer and have historically been extended (13 times) in one-year increments. The Morgan Stanley margin loan is 100 percent secured with the short-term investments held in the brokerage account. The Morgan Stanley margin loan would be retired through liquidation of the investments. At September 30, 2023, the Company had an additional $311,000 in availability on the Morgan Stanely margin loan.
Our significant projected cash requirements related primarily to operating expenses for the next 12 months include $7,000,000 to $8,000,000 for employees’ salaries, wages and benefits, $950,000 to $1,200,000 for installation and customers service, and $1,000,000 to $1,200,000 for development of software and hardware. For the first nine months ending September 30, 2023, we spent an average of six percent of total sales on our marketing and business development efforts. For the next twelve months (through September 2024), we anticipate spending seven to nine percent of total projected sales, or $2,600,000 to $7,750,000 on marketing and business development. Upon closing the merger, we anticipate our marketing and business development spend to be closer to fifteen percent and as high as twenty percent. Due to the timing of our sales and cash receipts, we project to generate sufficient recurring cash flow to cover our selling, general and administrative expenses each period. No assurances can be given that the results anticipated by our projections will occur. With respect to long-term liquidity requirements, approximately $10,500,000 to $11,500,000 of our debt matures in years 2025 to 2033.
In the event the projected results do not occur, we may have to significantly delay, scale back or discontinue the development and commercialization of one or more product offerings and other strategic initiatives. Additionally, we would reduce the number of new hires planned in 2024, and implement cost reduction measures such as a reduction in headcount, reducing the planned sales and marketing expense among other cost reduction measures. We may also issue common stock to potential investors to increase our liquidity.
Management believes the plan outlined above provides an opportunity for the Company to continue as a going concern.
Use of Estimates
We prepare our financial statements in accordance with accounting principles generally accepted in the United States of America. The application of many accounting principles requires us to make assumptions, estimates and/or judgments that affect the reported amounts of assets, liabilities, revenues and expenses in our financial statements. We base our estimates and judgments on historical experience and other assumptions that we believe are reasonable under the circumstances. These assumptions, estimates and/or judgments, however, are often subjective and they and our actual results may change based on changing circumstances or changes in our analyses. If actual amounts are ultimately different from our estimates, the revisions are included in our results of operations for the period in which the actual amounts first become known. See also Note 2 to our audited annual financial statements included elsewhere in this prospectus for a summary of our significant accounting policies.
Revenue Recognition
We recognize revenue in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) standards - Topic 606 “Revenue from Contracts with Customers” (“Topic 606”).
| F-62 |
TRUGOLF
NOTES TO CONDENSED FINANCAL STATEMENTS
Revenue Recognition for Golf Simulators. Revenues from the sale of golf simulators are recognized with the selling price to the customer recorded as revenues and the acquisition cost of the product recorded as cost of revenues. We recognize revenue from these transactions when control has passed to the customer. Control is considered to have passed to the customer when the simulators has been delivered, installed and accepted by the customer. Our simulator contracts with customers generally do not include multiple performance obligations.
Revenue Recognition for Content Software Subscriptions. The Company offers content software subscriptions for one and twelve months. We recognize revenue from these transactions when control has passed to the customer. Control is considered to have passed to the customer when the software license has been delivered and accepted by the customer. The content software subscription revenue is recognized over the term of the contract.
Fair Value of Financial Instruments
Fair value is defined as the amount that would be received for selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. The Financial Accounting Standards Board (“FASB”) fair value measurement guidance established a fair value hierarchy that prioritizes the inputs used to measure fair value. The three broad levels of the fair value hierarchy are as follows:
Level 1 – Quoted prices (unadjusted) in active markets for identical assets or liabilities,
Level 2 – Quoted prices for similar assets and liabilities in active markets or inputs that are observable for the asset or liability, either directly or indirectly,
Level 3 – Unobservable inputs for which little or no market data exists, therefore requiring a company to develop its own assumptions.
Assets and liabilities are classified based on the lowest level of input that is significant to the fair value measurements. We review the fair value hierarchy classification on a quarterly basis. Changes in the observable inputs may result in a reclassification of assets and liabilities within the three levels of the hierarchy outlined above.
The carrying amounts of certain financial instruments, such as cash and cash equivalents, accounts receivable, accounts payable, and derivative liability approximate fair value due to their relatively short maturities.
| September 30, 2023 | ||||||||
| Carrying Amount | Fair Value | |||||||
| Short-term investments (Level 1): | ||||||||
| Corporate fixed income securities | 450,966 | 450,966 | ||||||
| Government securities | 1,904,638 | 1,904,638 | ||||||
| Total short-term investments | $ | 2,355,604 | $ | 2,355,604 | ||||
| Convertible notes payable (Level 3) | 947,675 | 947,675 | ||||||
| December 31, 2022 | ||||||||
| Carrying Amount | Fair Value | |||||||
| Convertible notes payable (Level 3) | 578,481 | 578,481 | ||||||
For our Level 3 unobservable inputs, we calculate a discount rate based on the U.S. prime rate of 10.00% and 7.75% as of September 30, 2023 and December 31, 2022, respectively.
Cash and Cash Equivalents
Cash primarily consists of cash, demand and savings deposits which are highly liquid. The Company considers highly liquid investments that are readily convertible to known amounts of cash and with original maturities from the date of purchase of three months or less to be cash equivalents. All cash is unrestricted as to withdrawal and use. The Company maintains its cash in bank deposit accounts which, at times, may exceed federally insured limits. As of September 30, 2023 and December 31, 2022, the amount in excess of federally insured limits was $4,272,734 and $9,198,618, respectively.
| F-63 |
TRUGOLF
NOTES TO CONDENSED FINANCAL STATEMENTS
Accounts Receivable, net
We manage credit risk associated with our accounts receivables at the customer level. Because the same customers typically generate the revenues that are accounted for under both Accounting Standards Codification Topic 606, Revenue from Contracts with Customers (Topic 606) and Accounting Standards Codification Topic 326, Credit Losses (Topic 326).
We believe the concentration of credit risk, with respect to our receivables, is limited because our customer base is comprised of a number of geographically diverse customers. We manage credit risk through credit approvals and other monitoring procedures.
Pursuant to Topic 326 for our accounts receivables, we maintain an allowance for doubtful accounts that reflects our estimate of our expected credit losses. Our allowance is estimated using a loss rate model based on delinquency. The estimated loss rate is based on our historical experience with specific customers, our understanding of our current economic circumstances, reasonable and supportable forecasts, and our own judgment as to the likelihood of ultimate payment based upon available data. We believe our credit risk is somewhat mitigated by our geographically diverse customer base and our credit evaluation procedures. The actual rate of future credit losses, however, may not be similar to past experience. Our estimate of doubtful accounts could change based on changing circumstances, including changes in the economy or in the particular circumstances of individual customers. Accordingly, we may be required to increase or decrease our allowance for doubtful accounts.
During the nine months ended September 30, 2023, the Company released an upgrade to the simulator launch monitor and software. As this is a new product, the Company expects some simulators to be returned. Based on our historical experience, after previous product releases, the Company recorded $140,000 in sales allowance for the nine months ended September 30, 2023. There was no reserve as of December 31, 2022.
Recent Accounting Pronouncements Not Yet Adopted
Management has evaluated all recent accounting pronouncements issued by the Financial Accounting Standards Board (“FASB”) and determined that none of the pronouncements will have a material impact on our financial statements. We will continue to monitor the issuance of any new accounting pronouncements and assess their potential impact on the financial statements in future periods.
Warrants
The fair value of the warrants is estimated on the date of issuance using the Black-Scholes option pricing model, which requires the input of subjective assumptions, including the expected term of the warrants, expected stock price volatility, and expected dividends. The actual estimates used can be found in Note 10 -Convertible Notes Payable in the annual audited financial statements found elsewhere in this prospectus. These estimates involve inherent uncertainties and the application of management’s judgment. Expected volatilities used in the valuation model are based on the average volatility of the comparable companies publicly traded on recognized stock exchanges. The risk-free rate for the expected term of the option is based on the United States Treasury yield curve in effect at the time of grant.
| F-64 |
TRUGOLF
NOTES TO CONDENSED FINANCAL STATEMENTS
| 3. | ACCOUNTS RECEIVABLE |
Accounts receivable and allowance for doubtful accounts consisted of the following as of:
| September 30, 2023 | December 31, 2022 | |||||||
| Trade accounts receivable | $ | 3,338,139 | $ | 2,140,853 | ||||
| Other | 25,000 | 130,920 | ||||||
| 3,363,139 | 2,271,773 | |||||||
| Less: allowance for doubtful accounts | (1,087,136 | ) | (527,136 | ) | ||||
| sales allowance | (140,000 | ) | - | |||||
| Total accounts receivable, net | $ | 2,136,003 | $ | 1,744,637 | ||||
| 4. | INVENTORY |
The following summarizes inventory as of:
| September 30, 2023 | December 31, 2022 | |||||||
| Inventory – raw materials | $ | 3,715,271 | $ | 2,425,530 | ||||
| Less reserve allowance for obsolescence | (304,050 | ) | (304,050 | ) | ||||
| Inventory, net | $ | 3,411,221 | $ | 2,121,480 | ||||
| 5. | SHORT-TERM INVESTMENTS |
In February 2023, we entered into a brokerage agreement and deposited $2,500,000. In February 2023, we purchased $450,751 in corporate fixed income securities (corporate bonds) and $1,981,061 in government securities (Treasury securities). As of September 30, 2023, the marketable securities consisted of the following:
| Corporate fixed income securities, weighted average yield and maturity of 5.39% and 2.63 years, respectively | 450,966 | |||
| Government securities, weighted average yield and maturity of 4.90% and 3.67 years, respectively | 1,904,638 | |||
| Total short-term investments | $ | 2,355,604 |
We classify our short-term investments as available-for-sale securities as we may sell these securities at any time for use in operations or for other purposes. We record such securities at fair value in our balance sheet, with unrealized gains or losses reported as a component of accumulated comprehensive loss. The amount of unrealized gains or losses reclassified into earnings is based on specific identification when the securities are sold. We periodically evaluate if any security has experienced credit-related declines in fair value, which are recorded against an allowance for credit losses with an offsetting entry to interest and other expense, net on the statement of operations.
| 6. | OTHER LONG-TERM ASSETS |
The following summarizes other long-term assets as of September 30, 2023 (there were long-term assets as of December 31, 2022):
| September 30, 2023 | ||||
| Security deposit – Ethos Management loan | $ | 1,875,000 | ||
| Deferred loan fees – Ethos Management loan | 120,099 | |||
| Security deposits – leased facilities | 30,983 | |||
| Inventory, net | $ | 2,026,082 | ||
As discussed in Note 11 – Commitments and Contingencies, as a condition of funding on the Ethos Management loan, we placed a $1,875,000 security deposit as collateral for the note. The deferred loan fees are being amortized over the term of the Ethos Management loan. Deposits related to the facility leases are generally the last month’s payments.
| F-65 |
TRUGOLF
NOTES TO CONDENSED FINANCAL STATEMENTS
| 7. | LINES OF CREDIT |
During February 2023, the Company entered into a variable rate line of credit with Morgan Stanley which is secured by the marketable securities held in our brokerage account. As of September 30, 2023, the balance outstanding was $1,945,397, at a rate of 7.18%. As of September 30, 2023, there was approximately $292,000 in available borrowings.
In September 2023, the JP Morgan line of credit matured. We are currently in process of evaluating options with JP Morgan to extend the maturity of the credit facility.
| 8. | CONVERTIBLE NOTES EXTENSION |
In May 2022, we entered into two separate but identical $300,000 (total $600,000), 10.00% annual interest rate convertible notes payable with two individual consultants. The terms of each note include a 15% original issue discount, 292 warrants, no prepayment penalty and a maturity date of February 25, 2023. In March 2023, we extended each note’s maturity to July 31, 2023 and increased each note’s borrowing limit to $375,000.
In July 2023, the notes were modified whereby the maturity date was extended by up to an additional eight months (February 29,2024), to be in two extensions of four months each. Five days prior to the extension deadline the Company will issue 9,000 shares (total 18,000 shares if the Company elects the two extensions) of the Company’s stock. As of September 30, 2023, the balance outstanding was $668,235 and $81,765 was available to be borrowed.
In July 2023, the Company and Convertible Note Holders (refer to Note 10 – Convertible Notes in the annual audited financial statements found elsewhere in this proxy statement/prospectus) entered into Warrant Cancellation Agreements, whereby the warrants will be cancelled if the merger with DMAC takes place. If the merger is not closed, the warrants will remain outstanding. Also in July 2023, the convertible notes were modified whereby the maturity date was extended by up to an additional eight months (February 29,2024), to be in two extensions of four months each. Five days prior to the extension deadline the Company will issue 9,000 shares (total 18,000 shares if the Company elects the two extensions) of the Company’s stock.
| 9. | STOCKHOLDERS’ EQUITY |
In April 2022, we secured the services of two consultants (also the Note Holders as described in Note 10 – Convertible Notes Payable of the annual audited financial statements elsewhere in this proxy statement/prospectus) to assist with services including assisting the Company’s and its counsel in an initial public offering preparation and listing to NASDAQ or other national exchange, assist the Company and its counsel in preparing a code of conduct and employment agreements, franchise development, and valuation increase through growth among other services. For the initial public offering preparation, the first consultant will be provided a 3% stock grant; while the second consultant will be provided up to 7% of stock based on performance deliverables including: 1.75% on consummation of an initial bridge loan agreement, 1.75% on engaging an investment banker, 1.75% upon filing an S-1 including financial statements and footnotes, and 1.75% upon the closing of an initial public offering. The second consultant will be provided warrants at a 20% discount to the then current price per share, for up to 2% for achieving a $250 million valuation and 3% more for a $500 million valuation, as well as another 2% for opening the first franchise location, and 3% more once 100 franchise locations have been sold.
In January 2023, the Board of Directors authorized the issuance of 821 shares of common stock to the consultants for the services performed related as outlined in the services agreement. See Note 10 – Convertible Notes Payable in the annual audited financial statements found elsewhere in this proxy statement/prospectus. The common shares were issued at fair value.
| 10. | RELATED PARTY |
The following were outstanding on the dividends notes payable to our officers and shareholders as of September 30, 2023, and 2022 (refer to Note 11 – Convertible Notes in the annual audited financial statements found elsewhere in this proxy statement/prospectus) as of:
| September 30, 2023 | December 31, 2022 | |||||||
| Chief executive officer, Director and Shareholder | $ | 3,219,979 | $ | 3,278,479 | ||||
| Chief hardware officer, Director and Shareholder | 1,547,702 | 1,576,952 | ||||||
| Executive vice president, Director and Shareholder | 1,604,605 | 1,591,952 | ||||||
| Interim chief financial officer, Director and Shareholder | 397,038 | 397,038 | ||||||
The Company’s chief executive officer guaranties certain debt of the company as discussed in Note 7 and Note 11 in the annual audited financial statements found elsewhere in this proxy statement/prospectus.
| 11. | COMMITMENTS and CONTINGENCIES |
In January 2023, TruGolf entered into the Ethos Asset Management INC Financing in the principal amount of $10 million. Pursuant to the terms of the Ethos Management financing, TruGolf may draw down financing proceeds up to $833,333 each 45-day period beginning in April 2023, up to $10 million. Interest associated with the Ethos Management loan is fixed at 4% per annum and has a three-year grace period for principal and interest payments. Annual principal and interest payments will commence in 2026 and continue through 2034. As a condition to funding, we placed a $1,850,000 security deposit as collateral for the note. As of September 30, 2023 the balance outstanding was $2,499,999. Ethos Management has informed the Company in August 2023 that unrelated to TruGolf, Ethos Management is currently undergoing a routine audit of its loan portfolio, and pending the close of the audit, borrowers may experience delays in drawing on funds when requested.
In March 2023, we entered into the Business Combination Agreement (the “BCA”) with Deep Medicine Acquisition Corp (NASDAQ: DMAQ) (“DMAC”), a publicly traded special purpose acquisition company. Under the BCA, a merger will occur in which TruGolf will be the surviving entity and become a public company to further advance its software business and increase manufacturing and sales of its golf simulator hardware technology in the United States and internationally. The BCA reflects an implied enterprise value for TruGolf shareholders as of March 31, 2023, of $80 million. Upon closing of the BCA, DMAC will be renamed “TruGolf, Inc.” and will be listed on the Nasdaq Stock Market (“Nasdaq”) and its shares of common stock will trade under the trading symbol “TRUG”). TruGolf’s existing management team will lead the merged company and hold 86.6% of the voting power through high-voting shares that will be issued upon the closing and will also control a majority of the board seats. The BCA is expected to close in the fourth quarter of 2023 and is subject to approval by our stockholders, the stockholders of DMAC, as well as other customary closing conditions The BCA is expected to be accounted as a reverse capitalization in accordance with U.S. GAAP.
In March 2023, we entered into a letter of intent (the “Asian JV LOI”) with China based Guangzhou Boli Business Management Ltd to establish a joint venture entity designed to market and sell TruGolf products and services into the Asian territories of China, Korea, Japan, Taiwan, Cambodia, Thailand, and Laos. Pursuant to the terms of the Asian JV LOI, TruGolf will own a 29% equity stake in the joint venture entity. Pursuant to the terms of the Asian JV LOI, Guangzhou Boli Business Management Ltd will invest (along with two other related entities) $710,000 to capitalize the joint venture entity, establish a showroom in Asia, and purchase TruGolf simulators. Pursuant to the terms of the Asian JV LOI, once the joint venture is established, and unless waived in writing, TruGolf will be required to market and sell its products and services in the aforementioned territories exclusively through the joint venture.
| F-66 |
TRUGOLF
NOTES TO CONDENSED FINANCAL STATEMENTS
| 12. | SUBSEQUENT EVENTS |
We evaluate events and transactions occurring subsequent to the date of the financial statements for matters requiring recognition or disclosure in the financial statements. The accompanying financial statements consider events through February 14, 2024, the date at which the financial statements were issued.
On October 1, 2023, TruGolf’s Board of Directors approve the gifting of 124 shares each of TruGolf common stock from Mr. Christopher Jones and Mr. Steven Johnson (current shareholders) to their respective sons Mr. Mason Jones and Mr. Jake Johnson. The Board also awarded and authorized the issuance of 124 shares each of TruGolf common stock to Mr. Brenner Adams (Chief Growth Officer) and Mr. Nathan Larson (Chief Experience Officer).
On November 2, 2023 and December 7, 2023, Deep Medicine Acquisition Corp. (“DMAC”) executed loan agreements with certain accredited investors (together, the “Prior Loan Agreements”) pursuant to which such investors agreed to loan DMAC up to an aggregate $11,000,000 in exchange for the issuance of convertible notes and warrants. On February 2, 2024, TruGolf Holdings, Inc. (“TruGolf Holdings”) executed a securities purchase agreement (the “Purchase Agreement”) with each of the investors that executed the Prior Loan Agreements, which replaced, in their entirety, the Prior Loan Agreements, and with additional investors (together, the “PIPE Investors”). Pursuant to the terms and conditions of the Purchase Agreement, the PIPE Investors agreed to purchase from the TruGolf Holdings (i) senior convertible notes in the aggregate principal amount of up to $15,500,000 (the “PIPE Convertible Notes”), (ii) Series A warrants to initially purchase 1,409,091 shares of the Company’s Class A common stock (the “Series A Warrants”); and (iii) Series B warrants to initially purchase 1,550,000 shares of the TruGolf Holdings’ Class A common stock (the “Series B Warrants,” and collectively with the Series A Warrants, the “PIPE Warrants”) (the “PIPE Financing”).
The Purchase Agreement contemplates funding of the investment (the “Investment”) across multiple tranches. At the first closing (the “Initial Closing”) an aggregate principal amount of $4,650,000 of PIPE Convertible Notes will be issued upon the satisfaction of certain customary closing conditions in exchange for aggregate gross proceeds of $4,185,000, representing an original issue discount of 10%. On such date (the “Initial Closing Date”), TruGolf Holdings will also issue the PIPE Investors the Series A Warrants and the Series B Warrants.
Subject to satisfying the conditions discussed below, TruGolf Holdings, Inc. has the right under the Purchase Agreement, but not the obligation, to require that the PIPE Investors purchase additional Notes at up to two additional closings. Upon notice at any time after the 2nd trading day following the Initial Closing Date, TruGolf Holdings may require that the PIPE Investors purchase an additional aggregate principal amount of $4,650,000 of PIPE Convertible Notes, in exchange for aggregate gross proceeds of $4,185,000, if (i) the Registration Statement (as described below) has been filed; and (ii) certain customary closing conditions are satisfied (the “First Mandatory Additional Closing”). Upon notice at any time after the 2nd trading day following the date that the First Mandatory Additional Closing is consummated, TruGolf Holdings may require that the PIPE Investors purchase an additional aggregate principal amount of $6,200,000 of PIPE Convertible Notes, in exchange for aggregate gross proceeds of $5,580,000, if (i) the shareholder approval is obtained (as described below); (ii) the Registration Statement has been declared effective by the SEC; and (iii) certain customary closing conditions are satisfied (the “Second Mandatory Additional Closing”).
In addition, pursuant to the Purchase Agreement, each PIPE Investor has the right, but not the obligation, to require that, upon notice, TruGolf Holdings sell to such PIPE Investor at one or more additional closings such PIPE Investor’s pro rata share of up to a maximum aggregate principal amount of $10,850,000 in additional PIPE Convertible Notes (each such additional closing, an “Additional Optional Closing”); provided that, the principal amount of the additional PIPE Convertible Notes issued at each Additional Optional Closing must equal at least $250,000. If a PIPE Investor has not elected to effect an Additional Optional Closing on or prior to August 2, 2024, such PIPE Investor shall have no further right to effect an Additional Optional Closing under the Purchase Agreement.
On January 31, 2024, the Company issued a press release announcing that on January 31, 2024, it consummated the business combination (the “Closing”) contemplated by the previously announced Amended and Restated Agreement and Plan of Merger, dated as of July 21, 2023 (as amended, the “Merger Agreement”), by and among the Company, DMAC Merger Sub Inc., a Nevada corporation and a wholly-owned subsidiary of the Company (“Merger Sub”), Bright Vision Sponsor LLC, a Delaware limited liability company, in the capacity as the Purchaser Representative thereunder, Christopher Jones, in the capacity as the Seller Representative thereunder, and TruGolf, Inc., a Nevada corporation (“TruGolf”). As a result of the Closing and the transactions contemplated by the Merger Agreement, (i) Merger Sub merged with and into TruGolf (the “Merger”), with TruGolf surviving the Merger as a wholly-owned subsidiary of the Company, and (ii) the Company’s name was changed from Deep Medicine Acquisition Corp. to TruGolf Holdings, Inc. The Company’s Class A common stock commenced trading on the Nasdaq Global Market LLC under the ticker symbol “TRUG” on February 1, 2024.
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UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
Defined terms included below have the same meaning as terms defined and included elsewhere herein. All dollar amounts are expressed in thousands of United States dollars (“$”), unless otherwise indicated.
Introduction
The following unaudited pro forma condensed combined financial statements and accompanying notes are provided to aid you in your analysis of the financial aspects of the Transactions and adjustments for other material events. These other material events are referred to herein as “Material Events” and the pro forma adjustments for the Material Events are referred to herein as “Adjustments for Material Events.”
The unaudited pro forma condensed combined financial statements give effect to the Merger and other events contemplated by the Merger Agreement as described in this proxy statement/prospectus. The unaudited pro forma condensed combined balance sheet as of September 30, 2023 combines the unaudited balance sheet of DMA as of September 30, 2023 with the unaudited condensed balance sheet of TruGolf Nevada as of September 30, 2023, giving effect to the transactions as if they occurred on September 30, 2023. The unaudited pro forma condensed combined statement of operations for the twelve months ended March 31, 2023 combines the audited statement of operations of DMA for the year ended March 31, 2023 and the audited statement of operations of TruGolf Nevada for the twelve months ended December 31, 2022, giving effect to the transactions and other events contemplated by the Merger Agreement as if they have been consummated on April 1, 2022 (the beginning of the earliest period presented). The unaudited pro forma condensed combined statement of operations for the six months ended September 30, 2023 combines the unaudited statement of operations of DMA for the six months ended September 30, 2023 and the unaudited statement of operations of TruGolf Nevada for the six months ended September 30, 2023, giving effect to the transactions and other events contemplated by the Merger Agreement as if they have been consummated on April 1, 2023 (the beginning of the earliest period presented).
The unaudited pro forma condensed combined financial statements have been presented for illustrative purposes only and do not necessarily reflect what New TruGolf’s financial condition or results of operations would have been had the Transactions and Material Events occurred on the dates indicated. Further, the pro forma condensed combined financial information may not be useful in predicting the future financial condition and results of operations of New TruGolf. The actual financial position and results of operations may differ significantly from the pro forma amounts reflected herein due to a variety of factors.
The unaudited pro forma condensed combined financial statements have been derived from and should be read in conjunction with:
the accompanying notes to the unaudited pro forma condensed combined financial statements;
● the sections entitled “TruGolf Nevada’s Management’s Discussion and Analysis of Financial Condition and Results of Operations”, “DMA’s Management’s Discussion and Analysis of Financial Condition and Results of Operations”, and other financial information relating to each of TruGolf Nevada and DMA included herein.
The unaudited pro forma condensed combined statement of operations for the six months ended September 30, 2023 has been prepared using the following:
● unaudited statement of operations of DMA for the six months ended September 30, 2023;
● unaudited statement of operations of TruGolf Nevada for the six months ended September 30, 2023 (not included elsewhere in this proxy statement/prospectus).
| F-68 |
The unaudited pro forma condensed combined statement of operations for the twelve months ended March 31, 2023 has been prepared using the following:
● audited statement of operations of DMA for the twelve months ended March 31, 2023;
● audited statement of operations of TruGolf Nevada for the twelve months ended December 31, 2022.
Description of the Business Combination
On January 31, 2024, we completed the business combination and transactions contemplated thereby (the “Business Combination”) as set forth in that certain Amended and Restated Agreement and Plan of Merger (as amended), dated July 21, 2023, as amended, including by the First Amendment to the Amended and Restated Agreement and Plan of Merger, dated December 7, 2023, and as it may be further amended and/or restated from time to time (the “Merger Agreement”). On the Closing Date, (i) the total number of DMA Class A Shares issued as Merger Consideration in connection with the Business Combination was 5,750,274, and these DMA Class A Shares represent approximately 44.0%, of the issued and outstanding DMA Common Stock immediately following the closing of the Business Combination, (ii) the total number of DMA Class B Shares issued in connection with the Business Combination was 1,716,860 DMA Class B Shares, and these DMA Class B Shares represent approximately 13.1%, of the issued and outstanding DMA Common Stock immediately following the closing of the Business Combination. As a result of the Merger, TruGolf Nevada became a wholly-owned subsidiary of DMA, with the shareholders of TruGolf Nevada becoming stockholders of DMA.
As contemplated by the Merger Agreement, DMA changed its name to TruGolf Holdings, Inc. Prior to and in connection with the approval of the Business Combination, holders of 378,744 DMA Class A Shares properly exercised their right to have such shares redeemed for a full pro rata portion of the trust account holding the proceeds from the IPO, calculated as of two business days prior to the completion of the Business Combination, which was approximately $11.50 per share resulting in the removal of $4,355,556 from the trust account. In addition, in connection with the January 26, 2024 meeting to amend certain provisions of DMA’s corporate documents allowing DMA to extend its existence, an additional 943 shares were redeemed resulting in the removal of an additional $10,845 from the trust account. As a result, existing DMA stockholders elected to redeem approximately 379,687, or approximately 8.7% of the then-outstanding shares of 4,357,964.
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Basis of Pro Forma Presentation
The unaudited pro forma condensed combined financial statements were prepared in accordance with Article 11 of SEC Regulation S-X, as amended by the final rule, Release No. 33-10786, Amendments to Financial Disclosures about Acquired and Disposed Businesses. Release No. 33-10786 replaces the historical pro forma adjustments criteria with simplified requirements to depict the accounting for the transaction (“Transaction Accounting Adjustments”) and present the reasonably estimable synergies and other transaction effects that have occurred or are reasonably expected to occur (“Management’s Adjustments”). DMA has elected not to present Management’s Adjustments and will only be presenting Transaction Accounting Adjustments in the unaudited pro forma condensed combined financial information. The adjustments presented in the unaudited pro forma condensed combined financial statements have been identified and presented to provide relevant information necessary for an understanding of the combined company upon consummation of the Transactions.
The unaudited pro forma condensed combined financial statements give effect to the Merger and other events contemplated by the Merger Agreement as described in this proxy statement/prospectus. The unaudited pro forma condensed combined balance sheet as of September 30, 2023 combines the unaudited balance sheet of DMA as of September 30, 2023 with the unaudited condensed balance sheet of TruGolf Nevada as of September 30, 2023, giving effect to the transactions as if they occurred on September 30, 2023. The unaudited pro forma condensed combined statement of operations for the twelve months ended March 31, 2023 combines the audited statement of operations of DMA for the year ended March 31, 2023 and the audited statement of operations of TruGolf Nevada for the twelve months ended December 31, 2022, giving effect to the transactions and other events contemplated by the Merger Agreement as if they have been consummated on April 1, 2022 (the beginning of the earliest period presented). The unaudited pro forma condensed combined statement of operations for the six months ended September 30, 2023 combines the unaudited statement of operations of DMA for the six months ended September 30, 2023 and the unaudited statement of operations of TruGolf Nevada for the six months ended September 30, 2023, giving effect to the transactions and other events contemplated by the Merger Agreement as if they have been consummated on April 1, 2023 (the beginning of the earliest period presented).
Management has made significant estimates and assumptions in its determination of the pro forma adjustments. As the unaudited pro forma condensed combined financial information has been prepared based on these preliminary estimates, the final amounts recorded may differ materially from the information presented.
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The pro forma adjustments reflecting the consummation of the Transactions and Material Events are based on certain currently available information and certain assumptions and methodologies that each of TruGolf Nevada and DMA believes are reasonable under the circumstances. The pro forma adjustments, which are described in the accompanying notes, may be revised as additional information becomes available and is evaluated. Therefore, it is likely that the actual adjustments will differ from the pro forma adjustments, and it is possible the differences may be material. Each of TruGolf Nevada and DMA believes that its assumptions and methodologies provide a reasonable basis for presenting all the significant effects of the Transactions and Material Events based on information available to management at this time and that the pro forma adjustments give appropriate effect to those assumptions and are properly applied in the unaudited pro forma condensed combined financial information.
In addition to the Merger Consideration set forth above, the TruGolf Nevada Stockholders will also have a contingent right to receive up to an aggregate of an additional 4.5 million DMA Class A Shares (the “Earnout Shares”), as additional consideration, with each share valued at $10 per share (the “Purchaser Share Price”) during the three (3) year period following the Closing (the “Earnout Period”). The Earnout Shares shall be earned, based on the combined company meeting criteria relating to (i) consolidated gross revenue, (ii) VWAP (as defined below) of DMA Class A Shares, or (iii) number of qualified franchise locations opened. The Earnout Shares shall be allocated into three tranches consisting of a first tranche of 1,000,000 Earnout Shares (the “First Tranche”), a second tranche of 1,500,000 Earnout Shares (the “Second Tranche”), and third tranche of 2,000,000 Earnout Shares (the “Third Tranche”). The Earnout Shares will be earned as set forth below:
a) The First Tranche of a maximum of 1,000,000 Earnout Shares will be earned as follows (i) in the event that the gross consolidated gross revenue of New TruGolf and its subsidiaries (the “ Gross Revenues”) for 2024 equals or exceeds Thirty Million Dollars ($30,000,000) but is less than Forty Two Million Dollars ($42,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 50% of the First Tranche or in the event that the Gross Revenues for 2024 equals or exceeds Forty Two Million Dollars ($42,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the First Tranche; or (ii) in the event that the dollar volume-weighted average price(“VWAP”) of the DMA Class A Shares is at least $13.00 per share for at least twenty (20) out of thirty (30) trading days in the specified period, then the TruGolf Nevada Stockholders shall be entitled to received100% of the First Tranche or, in the event that ten (10) or more Qualified Franchise Locations (as defined in the Merger Agreement) are opened prior to the end of the calendar year 2024, then the TruGolf Nevada Stockholders shall be entitled to received100% of the First Tranche.
b) The Second Tranche of a maximum of 1,500,000 Earnout Shares will be earned as follows (i) in the event that the Gross Revenues for 2025 equals or exceeds Fifty Million Dollars ($50,000,000) but is less than Sixty Five Million Dollars ($65,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 50% of the Second Tranche or in the event that the Gross Revenues for 2025 equals or exceeds Sixty Five Million Dollars ($65,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Second Tranche; or (ii) in the event that the VWAP of DMA Class A Shares is at least $15.00 per share for at least twenty (20) out of thirty (30) trading days in the specified period, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Second Tranche or, in the event that thirty (30) or more Qualified Franchise Locations are opened prior to the end of the calendar year 2025, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Second Tranche.
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c) The Third Tranche of a maximum of 2,000,000 Earnout Shares will be earned as follows (i) in the event that the Gross Revenues for 2026 equals or exceeds Eighty Million Dollars ($80,000,000) but is less than One Hundred Million Dollars ($100,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 50% of the Third Tranche or in the event that the Gross Revenues for 2026 equals or exceeds One Hundred Million Dollars ($100,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Third Tranche; or (ii) in the event that the VWAP of DMA Class A Shares is at least $17.00 per share for at least twenty (20) out of thirty (30) trading days in the specified period, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Third Tranche or, in the event that fifty (50) or more Qualified Franchise Locations are opened prior to the end of the calendar year 2026, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Third Tranche.
If at the end of a Price Measurement Period, a Revenue Milestone or a Price Milestone or a Franchise Milestone is not met, TruGolf Nevada Stockholder shall not be entitled to receive the applicable portion of the Earnout Shares.
The accounting for the Earnout Shares was first evaluated under ASC 718 to determine if the arrangement represents a share-based payment arrangement. Considering that the Earnout Shares are part of the Merger Consideration and there are no service conditions nor any requirement of TruGolf Nevada Stockholders to provide goods or services, we determined that the Earnout Shares are not within the scope of ASC 718. In reaching this conclusion, we focused on the fact that the Earnout Shares are not provided to any holder of options or unvested stock but rather the arrangement is provided only to vested equity holders.
Next, we determined that the Earnout Shares represent a freestanding equity-linked financial instrument to be evaluated under ASC 480. Based upon the analysis, we concluded that the Earnout Shares should not be classified as a liability under ASC 480.
We next considered the conditions in ASC 815-10-15-74 and ASC 815-40 and concluded that the Earnout Shares are not within the scope of ASC 815. Therefore, the Earnout Share arrangement is appropriately classified in equity.
The unaudited pro forma condensed combined financial information does not give effect to any anticipated synergies, operating efficiencies, tax savings, or cost savings that may be associated with the Transactions. TruGolf Nevada and DMA have not had any historical relationship prior to the Transactions. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.
| F-72 |
The unaudited pro forma condensed combined financial information has been prepared based on actual redemptions of 379,687 out of the total 574,764 shares of DMA common stock subject to redemption, for an aggregate redemption price of $4.37 million out the Trust Account. No other shares of DMA common stock were subject to redemption, plus a convertible debt financing of $15,500,000 with 10% Original Issuance Discount (“OID”) were available to fund expenses in connection with the Merger and to fund future cash needs of New TruGolf.
Included in the shares outstanding and weighted-average shares outstanding as presented in the unaudited pro forma condensed combined financial statements are the shares of New TruGolf common stock issued to legacy TruGolf Nevada shareholders on the closing date of the Business Combination, the shares of New TruGolf common stock that were held by existing DMA investors, the shares of New TruGolf common stock issued to I-Bankers as marketing fees in relation to the Business Combination, and the shares of New TruGolf common stock issued to Ellenoff Grossman & Schole LLP as fees for their services.
Upon closing of the Business Combination, shares of TruGolf Nevada common stock outstanding as presented in the unaudited pro forma condensed combined financial statements include the following:
| Accrual Redemptions | ||||||||
| Number of Shares Owned | % Ownership | |||||||
| TruGolf Nevada shareholders (1) | 7,467,134 | 56.2 | % | |||||
| Private Placement Investors (2) | 571,450 | 4.3 | % | |||||
| DMA Public stockholders (3) | 1,460,077 | 11.0 | % | |||||
| DMA Directors and officers | 280,000 | 2.1 | % | |||||
| DMA Sponsor (4) | 3,162,500 | 23.8 | % | |||||
| I-Bankers (5) | 313,952 | 2.4 | % | |||||
| Ellenoff Grossman & Schole LLP (6) | 20,000 | 0.2 | % | |||||
| Total | 13,275,113 | 100 | % | |||||
(1) In connection with the Business Combination, 13,098 TruGolf Nevada ordinary shares were exchanged for 7,467,134 shares of New TruGolf common stock, consisting of 5,750,274 shares of Class A common stock and 1,716,860 shares of Class B common stock.
(2) DMA’s Insiders had an aggregate of 406,500 units, which contain 406,500 Private Placement Shares and 406,500 Private Rights. I-Bankers had an aggregate of 113,000 units, which contain 113,000 Private Placement Shares and 113,000 Private Rights. Each holder of a private right received one-tenth (1/10) of one share of DMA Class A common stock upon consummation of initial business combination. Private placement shares were the shares of DMA Class A common stock. The 519,500 shares of DMA Class A common stock and 519,500 Private Right were exchanged for a total of 571,450 shares of New TruGolf common stock upon the closing of the Business Combination.
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(3) Prior to and in connection with the approval of the Business Combination, holders of 378,744 DMA Class A Shares properly exercised their right to have such shares redeemed for a full pro rata portion of the trust account holding the proceeds from the IPO. In addition, in connection with the January 26, 2024 meeting to amend certain provisions of DMA’s corporate documents allowing DMA to extend its existence, an additional 943 shares were redeemed, resulting in actual redemptions of 379,687 shares out of the total 574,764 shares of DMA common stock subject to redemption. Upon the closing of the Business Combination, 1,265,000 shares of New TruGolf Class A common stock were issued upon the conversion of 12,650,000 public rights.
(4) In connection with the Business Combination, 3,162,500 shares of DMA Class A common stock held by the Sponsor and its affiliates were converted into 3,162,500 shares of New TruGolf Class A common stock.
(5) Reflects the payment of transaction fee pursuant to the BCMA Amendment due at Closing, which was paid to I-Bankers a transaction fee equal to (i) $2,000,000 in cash and (ii) 212,752 New TruGolf Class A Common Shares, and an aggregate of 101,200 Representative Shares issued in connection with the IPO were exchanged to New TruGolf common stock upon the closing of the Business Combination.
(6) Up to 20,000 shares of Class A Common Stock issued to Ellenoff Grossman & Schole LLP as fees for their services.
Material Events and Background Relevant to Material Events
On November 2, 2023 and December 7, 2023, DMA executed loan agreements with certain accredited investors (together, the “Prior Loan Agreements”) pursuant to which such investors agreed to loan DMA up to an aggregate $11,000,000 in exchange for the issuance of convertible notes and warrants. On February 2, 2024, TruGolf Holdings, Inc. (f/k/a Deep Medicine Acquisition Corp.) (the “Company”) executed a securities purchase agreement (the “Purchase Agreement”) with each of the investors that executed the Prior Loan Agreements, which replaced, in their entirety, the Prior Loan Agreements, and with additional investors (together, the “PIPE Investors”). Pursuant to the terms and conditions of the Purchase Agreement, the PIPE Investors agreed to purchase from the Company (i) senior convertible notes in the aggregate principal amount of up to $15,500,000 (the “PIPE Convertible Notes”), (ii) Series A warrants to initially purchase 1,409,091 shares of the Company’s Class A common stock (the “Series A Warrants”); and (iii) Series B warrants to initially purchase 1,550,000 shares of the Company’s Class A common stock (the “Series B Warrants,” and collectively with the Series A Warrants, the “PIPE Warrants”) (the “PIPE Financing”).
The Purchase Agreement contemplates funding of the investment (the “Investment”) across multiple tranches. At the first closing (the “Initial Closing”) an aggregate principal amount of $4,650,000 of PIPE Convertible Notes will be issued upon the satisfaction of certain customary closing conditions in exchange for aggregate gross proceeds of $4,185,000, representing an original issue discount of 10%. On such date (the “Initial Closing Date”), the Company will also issue the PIPE Investors the Series A Warrants and the Series B Warrants.
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Subject to satisfying the conditions discussed below, the Company has the right under the Purchase Agreement, but not the obligation, to require that the PIPE Investors purchase additional Notes at up to two additional closings. Upon notice at any time after the 2nd trading day following the Initial Closing Date, the Company may require that the PIPE Investors purchase an additional aggregate principal amount of $4,650,000 of PIPE Convertible Notes, in exchange for aggregate gross proceeds of $4,185,000, if (i) the Registration Statement (as described below) has been filed; and (ii) certain customary closing conditions are satisfied (the “First Mandatory Additional Closing”). Upon notice at any time after the 2nd trading day following the date that the First Mandatory Additional Closing is consummated, the Company may require that the PIPE Investors purchase an additional aggregate principal amount of $6,200,000 of PIPE Convertible Notes, in exchange for aggregate gross proceeds of $5,580,000, if (i) the shareholder approval is obtained (as described below); (ii) the Registration Statement has been declared effective by the SEC; and (iii) certain customary closing conditions are satisfied (the “Second Mandatory Additional Closing”).
In addition, pursuant to the Purchase Agreement, each PIPE Investor has the right, but not the obligation, to require that, upon notice, the Company sell to such PIPE Investor at one or more additional closings such PIPE Investor’s pro rata share of up to a maximum aggregate principal amount of $10,850,000 in additional PIPE Convertible Notes (each such additional closing, an “Additional Optional Closing”); provided that, the principal amount of the additional PIPE Convertible Notes issued at each Additional Optional Closing must equal at least $250,000. If a PIPE Investor has not elected to effect an Additional Optional Closing on or prior to August 2, 2024, such PIPE Investor shall have no further right to effect an Additional Optional Closing under the Purchase Agreement.
Exchange of TruGolf Nevada Shares for Shares of New TruGolf
Based on 13,098 TruGolf Nevada ordinary shares outstanding immediately prior to the closing of the Business Combination, the Exchange Ratio determined in accordance with the terms of the Merger Agreement is approximately 570.10. New TruGolf issued 7,467,134 shares of New TruGolf common stock to legacy TruGolf Nevada shareholders in the Business Combination, determined as follows:
| TruGolf Nevada shares outstanding as of immediately prior to the Closing | ||||
| Ordinary shares, par value $0.01 per share | 13,098 | |||
| Exchange Ratio | 570.10 | |||
| Estimated shares of New TruGolf common stock issued to TruGolf Nevada shareholders upon Closing | 7,467,134 | |||
(1) The shares issued to legacy TruGolf Nevada shareholders consists of 5,750,274 shares of New TruGolf Class A common stock and 1,716,860 shares of New TruGolf Class B common stock.
| F-75 |
Accounting for the Business Combination
The Merger will be accounted for as a reverse recapitalization in accordance with U.S. GAAP. Under this method of accounting, DMA will be treated as the acquired company for accounting purposes, whereas TruGolf Nevada will be treated as the accounting acquirer. In accordance with this method of accounting, the Business Combination will be treated as the equivalent of TruGolf Nevada issuing shares for the net assets of DMA, accompanied by a recapitalization. The net assets of TruGolf Nevada will be stated at historical cost, with no goodwill or other intangible assets recorded, and operations prior to the Business Combination will be those of TruGolf Nevada. TruGolf Nevada has been determined to be the accounting acquirer for purposes of the Business Combination based on an evaluation of the following facts and circumstances:
| ● | Legacy TruGolf Nevada stockholders expecting to have a majority of the voting power of New TruGolf, | |
| ● | TruGolf Nevada comprising the ongoing operations of New TruGolf, | |
| ● | TruGolf Nevada contributing a majority of the governing body members of New TruGolf, and | |
| ● | TruGolf Nevada’s senior management comprising the senior management of New TruGolf. |
Accordingly, for accounting purposes, the Merger will be treated as the equivalent of TruGolf Nevada issuing stock for the net assets of DMA, accompanied by a recapitalization. The net assets of DMA will be stated at historical cost, with no goodwill or other intangible assets recorded. Operations prior to the Merger will be those of TruGolf Nevada.
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Pro Forma Condensed Combined Consolidated Balance Sheet
as of September 30, 2023
(Unaudited)
(Amounts in thousands of US$, except for per share data)
| DMA | TruGolf Nevada | Transaction Accounting adjustment | Pro Forma Balance Sheet | |||||||||||||||
| ASSETS | ||||||||||||||||||
| Current assets: | ||||||||||||||||||
| Cash and cash equivalents | $ | 357 | $ | 5,474 | $ | 10,044 | A | $ | 15,875 | |||||||||
| Accounts receivable, net | - | 2,136 | - | 2,136 | ||||||||||||||
| Inventory, net | - | 3,411 | - | 3,411 | ||||||||||||||
| Prepaid expenses | - | 224 | - | 224 | ||||||||||||||
| Short-term investments | - | 2,356 | - | 2,356 | ||||||||||||||
| Other current assets | - | - | - | - | ||||||||||||||
| Cash and marketable securities held in Trust Account | 6,648 | - | (6,648 | ) | B | - | ||||||||||||
| Total current assets | 7,005 | 13,601 | 3,396 | 24,002 | ||||||||||||||
| Property, plant and equipment, net | - | 209 | - | 209 | ||||||||||||||
| Right of use assets | - | 1,054 | - | 1,054 | ||||||||||||||
| Other long-term assets | - | 2,026 | - | 2,026 | ||||||||||||||
| TOTAL ASSETS | $ | 7,005 | $ | 16,890 | $ | 3,396 | $ | 27,291 | ||||||||||
| LIABILITIES AND STOCKHOLDERS’ EQUITY | ||||||||||||||||||
| Current liabilities: | ||||||||||||||||||
| Accounts payable | $ | - | $ | 2,300 | $ | - | $ | 2,300 | ||||||||||
| Customer deposits | - | 2,642 | - | 2,642 | ||||||||||||||
| Notes payable, current portion, net of discount | 85 | 9 | (85 | ) | C | 9 | ||||||||||||
| Notes payable to related parties, current portion | 2,065 | 956 | (2,065 | ) | D | 956 | ||||||||||||
| Line of credit | - | 546 | - | 546 | ||||||||||||||
| Line of credit margin account | - | 1,945 | - | 1,945 | ||||||||||||||
| Convertible Notes, Net | - | 948 | 10,540 | E | 11,488 | |||||||||||||
| Accrued Interest | - | 490 | - | 490 | ||||||||||||||
| Accrued and other current liabilities | 1,246 | 460 | (1,246 | ) | F | 460 | ||||||||||||
| Accrued and other current liabilities - related parties | 16 | - | (16 | ) | G | - | ||||||||||||
| Taxes Payable | 57 | - | - | 57 | ||||||||||||||
| Lease liability, current portion | - | 321 | - | 321 | ||||||||||||||
| Total current liabilities | 3,469 | 10,617 | 7,128 | 21,214 | ||||||||||||||
| Non-current liabilities: | ||||||||||||||||||
| Notes payable, net of current portion | - | 2,795 | - | 2,795 | ||||||||||||||
| Note payables to related parties, net of current portion | - | 1,111 | - | 1,111 | ||||||||||||||
| Dividends notes payable | - | 7,586 | - | 7,586 | ||||||||||||||
| Gross sales royalty payable | - | 1,000 | - | 1,000 | ||||||||||||||
| Lease liability, net of current portion | - | 756 | - | 756 | ||||||||||||||
| Other liabilities | - | 38 | - | 38 | ||||||||||||||
| Deferred underwriting commissions | 4,428 | - | (4,428 | ) | H | - | ||||||||||||
| Total liabilities | $ | 7,897 | $ | 23,903 | $ | 2,700 | $ | 34,500 | ||||||||||
| COMMITMENTS AND CONTINGENCIES | ||||||||||||||||||
| Common stock subject to redemption | 6,482 | - | (6,482 | ) | I | - | ||||||||||||
| STOCKHOLDERS’ (DEFICIT) EQUITY | ||||||||||||||||||
| Preferred stock | $ | - | $ | - | $ | - | $ | - | ||||||||||
| Common stock | ||||||||||||||||||
| Class A Common stock | - | - | 1 | J | 1 | |||||||||||||
| Class B Common stock | - | - | - | - | ||||||||||||||
| Additional paid in capital | - | 5,175 | (829 | ) | K | 4,346 | ||||||||||||
| Treasury stock | - | (2,037 | ) | - | (2,037 | ) | ||||||||||||
| Accumulated other comprehensive income | - | (64 | ) | - | (64 | ) | ||||||||||||
| Accumulated deficit | (7,374 | ) | (10,087 | ) | 8,006 | L | (9,455 | ) | ||||||||||
| Total stockholders’ (deficit) equity | $ | (7,374 | ) | $ | (7,013 | ) | $ | 7,178 | $ | (7,209 | ) | |||||||
| TOTAL LIABILITIES AND STOCKHOLDERS’ (DEFICIT) EQUITY | $ | 7,005 | $ | 16,890 | $ | 3,396 | $ | 27,291 | ||||||||||
See accompanying notes to the unaudited pro forma condensed combined financial information.
| F-77 |
Pro Forma Condensed Combined Consolidated Statement of Operations
For the Six Months Ended September 30, 2023
(Unaudited)
(Amounts in thousands of US$, except for number of shares and per share data)
| DMA | TruGolf Nevada | Transaction Accounting adjustment | Pro Forma Balance Sheet | |||||||||||||||
| Revenues | $ | - | $ | 8,706 | $ | - | $ | 8,706 | ||||||||||
| Cost of revenues | - | (3,390 | ) | - | (3,390 | ) | ||||||||||||
| Gross loss | - | 5,316 | - | 5,316 | ||||||||||||||
| Operating expenses: | ||||||||||||||||||
| Royalties | - | 232 | - | 232 | ||||||||||||||
| Franchise taxes | 63 | - | - | 63 | ||||||||||||||
| Salaries, wages and benefits | 30 | 3,940 | - | 3,970 | ||||||||||||||
| Selling, general and administrative | 640 | 3,057 | 281 | (AA) | 3,978 | |||||||||||||
| Total operating expenses | 733 | 7,229 | 281 | 8,243 | ||||||||||||||
| Income from operations | (733 | ) | (1,913 | ) | (281 | ) | (2,927 | ) | ||||||||||
| Other income (expenses): | ||||||||||||||||||
| Interest expense | - | (798 | ) | 632 | (BB) | (166 | ) | |||||||||||
| Interest income | - | 50 | - | 50 | ||||||||||||||
| Investment income (loss) on investments held in Trust Account | 201 | - | 110 | (CC) | 311 | |||||||||||||
| Total other income | 201 | (748 | ) | 742 | 195 | |||||||||||||
| (Loss) income before income taxes | (532 | ) | (2,661 | ) | 461 | (2,732 | ) | |||||||||||
| Income tax | - | - | 546 | (DD) | 546 | |||||||||||||
| Net (loss) | $ | (532 | ) | $ | (2,661 | ) | $ | (85 | ) | $ | (3,278 | ) | ||||||
| Other Comprehensive Income: | ||||||||||||||||||
| Unrealized gain in fair value of short-term investment | - | (76 | ) | - | (76 | ) | ||||||||||||
| Comprehensive (loss) Income | $ | - | $ | (2,737 | ) | $ | - | $ | (3,354 | ) | ||||||||
| Net loss per share | ||||||||||||||||||
| Basic and diluted - Class A | $ | (0.12 | ) | $ | (219.39 | ) | $ | (0.28 | ) | |||||||||
| Basic and diluted - Class B | N/A | N/A | $ | (1.91 | ) | |||||||||||||
| Weighted average number of shares | ||||||||||||||||||
| Basic - Class A | 4,502,530 | 12,129 | 7,055,723 | (EE) | 11,558,253 | |||||||||||||
| Diluted - Class A | 4,502,530 | 12,129 | 21,847,314 | 26,349,844 | ||||||||||||||
| Basic and diluted - Class B | - | - | 1,716,860 | 1,716,860 | ||||||||||||||
See accompanying notes to the unaudited pro forma condensed combined financial information.
| F-78 |
Pro Forma Condensed Combined Consolidated Statement of Operations
For the Twelve Months Ended March 31, 2023
(Unaudited)
(Amounts in thousands of US$, except for number of shares and per share data)
| DMA | TruGolf Nevada | Transaction Accounting adjustment | Pro Forma Balance Sheet | |||||||||||||||||
| Revenues | $ | - | $ | 20,227 | $ | - | $ | 20,227 | ||||||||||||
| Cost of revenues | - | (7,018 | ) | - | (7,018 | ) | ||||||||||||||
| Gross loss | - | 13,209 | - | 13,209 | ||||||||||||||||
| Operating expenses: | ||||||||||||||||||||
| Royalties | - | 551 | - | 551 | ||||||||||||||||
| Franchise taxes | 200 | - | - | 200 | ||||||||||||||||
| Salaries, wages and benefits | 60 | 6,973 | - | 7,033 | ||||||||||||||||
| Selling, general and administrative | 1,907 | 4,953 | 281 | (AA) | 7,141 | |||||||||||||||
| Total operating expenses | 2,167 | 12,477 | 281 | 14,925 | ||||||||||||||||
| Income from operations | (2,167 | ) | 732 | (281 | ) | (1,716 | ) | |||||||||||||
| Other income (expenses): | ||||||||||||||||||||
| Interest expense | - | (1,589 | ) | 632 | (BB) | (957 | ) | |||||||||||||
| Loss on investment | - | (100 | ) | - | (100 | ) | ||||||||||||||
| Investment income (loss) on investments held in Trust Account | 1,824 | - | 110 | (CC) | 1,934 | |||||||||||||||
| Total other income | 1,824 | (1,689 | ) | 742 | 877 | |||||||||||||||
| (Loss) income before income taxes | (343 | ) | (957 | ) | 461 | (839 | ) | |||||||||||||
| Income tax | 57 | - | 546 | (DD) | 603 | |||||||||||||||
| Net (loss) | $ | (400 | ) | $ | (957 | ) | $ | (85 | ) | $ | (1,442 | ) | ||||||||
| Other Comprehensive Income: | ||||||||||||||||||||
| Unrealized gain in fair value of short-term investment | - | - | - | - | ||||||||||||||||
| Comprehensive (loss) Income | $ | (400 | ) | $ | (957 | ) | $ | (85 | ) | $ | (1,442 | ) | ||||||||
| Net loss per share | ||||||||||||||||||||
| Basic and diluted - Class A | $ | (0.03 | ) | $ | (84.62 | ) | $ | (0.12 | ) | |||||||||||
| Basic and diluted - Class B | $ | (0.03 | ) | N/A | $ | (0.84 | ) | |||||||||||||
| Weighted average number of shares | ||||||||||||||||||||
| Basic - Class A | 10,946,277 | 11,308 | 611,976 | (EE) | 11,558,253 | |||||||||||||||
| Diluted - Class A | 10,946,277 | 11,308 | 15,403,567 | 26,349,844 | ||||||||||||||||
| Basic and diluted - Class B | 2,313,390 | - | (596,530 | ) | 1,716,860 | |||||||||||||||
See accompanying notes to the unaudited pro forma condensed combined financial information.
| F-79 |
Adjustments to Unaudited Pro Forma Condensed Combined Balance Sheet
The adjustments included in the unaudited pro forma condensed combined balance sheet as of September 30, 2023 are as follows:
(A) Represents pro forma adjustments to cash to reflect the following:
| (Amounts in thousands of US$) | |||||
| Release of the investments held in the Trust Account to cash and cash equivalents | $ | 2,392 | (1) | ||
| Repayment to sponsor’s loan | (2,065 | ) | (2) | ||
| Payment of legal fees, and other DMA transaction-related fees | (3,001 | ) | (3) | ||
| Payment of the tail insurance premium | (366 | ) | (4) | ||
| Payment of legal fees, and other TruGolf Nevada transaction-related fees | (175 | ) | (5) | ||
| Proceeds from the convertible debt financing at closing | 13,815 | (6) | |||
| Income tax payment | (546 | ) | (7) | ||
| Repayment of accrued expenses to related party | (10 | ) | (8) | ||
| $ | 10,044 | ||||
| (1) | Reflects the reclassification of $2.4 million of cash held in the Trust Account at Closing after the redemption of 379,687 shares of DMA Class A common stock at a redemption price of $11.50 per share for an aggregate redemption of $4.4 million. | |
| (2) | Reflects the repayments of the unsecured promissory notes in an aggregate principal amount of $2,065,000, which is comprised of: (i) an unsecured promissory note in the principal amount of $500,000 issued to the Sponsor on March 15, 2021 in connection with a portion of the IPO expense; (ii) an unsecured promissory note in the principal amount of $1,265,000 issued to two affiliates of the Sponsor on October 15, 2022 in connection with the First Extension, from October 29, 2022 to January 29, 2023; and (iii) an unsecured promissory note in the principal amount of $300,000 issued to an affiliate of the Sponsor on February 9, 2023 in connection with the Second Extension, from January 29, 2023 to July 29, 2023, pursuant to which a monthly payment of $50,000 had been deposited into the Trust Account after January 29, 2023 for six months. Pursuant to the fully executed Promissory Notes, each of the Promissory Notes bears no interest and is due and payable upon the earlier of the consummation of DMA’s initial business combination or the date of the liquidation of DMA. | |
| (3) | Reflects the settlement of $3.0 million of DMA transaction costs at Closing due to advisory, legal and other acquisition-related transaction costs incurred. The acquisition-related transaction costs are accounted for as equity issuance costs and the unaudited pro forma balance sheet reflects these costs as a reduction of cash with a corresponding decrease to additional paid in capital. | |
| (4) | Reflects the payment of expenses due at Closing, such as tail insurance premium, which were excluded from acquisition-related transaction costs and charged to expenses in the unaudited pro forma statements of operations, including the repayment to a promissory note of $84,617, which was issued to a third party in connection with the premium payment for DMA’s Directors and Officers insurance. | |
| (5) | Reflects the settlement of $175,000 of TruGolf Nevada transaction costs at close in connection with the Business Combination, representing advisory, legal and other acquisition-related transaction costs incurred. The acquisition-related transaction costs are accounted for as equity issuance costs and the unaudited pro forma balance sheet reflects these costs as a reduction of cash with a corresponding decrease to additional paid in capital. | |
| (6) | Reflects the proceeds of $13.8 million from the convertible notes, net of 10% OID, pursuant to the securities purchase agreements executed on February 2, 2024. | |
| (7) | We estimate our income tax obligations for the year ended March 31, 2023, which we may pay from funds from the IPO held outside of the Trust Account or from interest earned on the funds held in our Trust Account and released to us for this purpose. | |
| (8) | Reflects the repayment of accrued expenses to related party in amount of $10,000 as of September 30, 2023. |
| F-80 |
(B) Reflects the reclassification of $2.4 million of cash held in the Trust Account at Closing after the redemption of 379,687 shares of DMA Class A common stock at a redemption price of $11.50 per share for an aggregate redemption of $4.4 million. The breakdown is set forth in the following table.
| (Amounts in thousands of US$) | ||||
| Release of the investments held in the Trust Account to cash and cash equivalents at Closing | $ | (2,392 | ) | |
| Investment income on investments held in Trust Account subsequent to September 30, 2023 and up to Closing | 110 | |||
| The redemption of 379,687 shares of DMA Class A common stock at a redemption price of $11.50 per share for an aggregate redemption of $4.4 million | (4,366 | ) | ||
| $ | (6,648 | ) | ||
(C) Reflects the repayment of a third-party promissory note in amount of $84,617 due at Closing.
| F-81 |
(D) Reflects the repayments of the unsecured promissory notes in an aggregate principal amount of $2,065,000, which is comprised of: (i) an unsecured promissory note in the principal amount of $500,000 issued to the Sponsor on March 15, 2021 in connection with a portion of the IPO expense; (ii) an unsecured promissory note in the principal amount of $1,265,000 issued to two affiliates of the Sponsor on October 15, 2022 in connection with the First Extension, from October 29, 2022 to January 29, 2023; and (iii) an unsecured promissory note in the principal amount of $300,000 issued to an affiliate of the Sponsor on February 9, 2023 in connection with the Second Extension, from January 29, 2023 to July 29, 2023, pursuant to which a monthly payment of $50,000 was deposited into the trust account after January 29, 2023, which was totaled $100,000 as of March 31, 2023, and $200,000 deposited after March 31, 2023. Pursuant to the fully executed Promissory Notes, each of the Promissory Notes bears no interest and is due and payable upon the earlier of the consummation of DMA’s initial business combination or the date of the liquidation of DMA.
(E) Represents pro forma adjustments to the convertible notes, pursuant to the securities purchase agreements executed on February 2, 2024 and the warrant cancellation agreements executed on July 10, 2023.
| (Amounts in thousands of US$) | |||||
| Convertible debt funded at Closing | $ | 15,500 | (1) | ||
| 10% Original Issuance Discount | (1,550 | ) | (2) | ||
| Debt discount due to the warrants granted | (3,325 | ) | (3) | ||
| Debt discount due to legal fees | (135 | ) | (4) | ||
| Reversal of debt discount | 50 | (5) | |||
| $ | 10,540 | ||||
| (1) | Reflects the principal of certain convertible debt financing in amount of $15.5 million pursuant to the securities purchase agreements executed on February 2, 2024. | |
| (2) | Reflects the 10% Original Issuance Discount pursuant to the agreements set forth in footnote (1). | |
| (3) | Reflects the fair value of 1,409,091 Series A warrants and 1,550,000 Series B warrants granted to the debt holders pursuant to the agreements set forth in footnote (1). The initial exercise price of the Series A Warrants shall be $13.00 per share for five years after the Closing, the fair value of the Series A Warrants was estimated to be approximately $2.28 million (or $1.61 per warrant) using the Black-Scholes option-pricing model as of the grant date based on the following assumptions: (1) expected volatility of 227.52%, (2) risk-free interest rate of 3.99% and (3) expected life of five years. The initial exercise price of the Series B Warrants shall be $10.00 per share for 30 months after the Closing, the fair value of the Series B Warrants was estimated to be approximately $2.15 million (or $1.38 per warrant) using the Black-Scholes option-pricing model as of the grant date based on the following assumptions: (1) expected volatility of 227.52%, (2) risk-free interest rate of 4.36 % and (3) expected life of 30 months. | |
| (4) | Reflects the legal fee related to the debt financing. | |
| (5) | Reflects the reversal of unamortized debt discount due to the cancellation of warrants, which was granted to TruGolf Nevada existing convertible debt holders in 2022. Pursuant to the Warrant Cancellation Agreements entered into on July 10, 2023 between TruGolf Nevada and the warrants holders, these warrants shall be cancelled at Closing of the Business Combination. |
| F-82 |
(F) Reflects the reduction in accrued liabilities related to DMA transaction costs after the payment to legal, financial advisory and other professional fees at Closing of the Business Combination.
(G) Reflects the reduction in accrued liabilities due to related parties after the cash payment of $10,000 and the issuance of 280,000 shares of DMA Common Stock to DMA’s officers and directors at Closing of the Business Combination. This stock issuance was granted at DMA’s incorporation. The fair value of this stock issuance was determined by the fair value of the DMA’s Common Stock on the grant date, at a price of $0.02 per share.
(H) Reflects the payment of transaction fee pursuant to the BCMA Amendment due at Closing, which was payable to I-Bankers a transaction fee consisting of (i) $2,000,000 in cash and (ii) 212,752 New TruGolf Class A Common Shares.
(I) Reflects the reclassification of approximately $2.4 million of DMA Common Stock subject to possible redemption to permanent equity after the redemption of 379,687 shares of DMA Class A common stock at a redemption price of $11.50 per share for an aggregate redemption of $4.4 million.
(J) Represents pro forma adjustments to reclassify TruGolf Nevada Stockholders equity to paid in capital at Closing of the Business Combination, assuming the conversion of all DMA Rights, DMA Common Shares have been issued to I-Bankers and DMA’s officers and directors, and based on funds in the Trust Account available to DMA outside of the Trust Account at Closing, and all upon the terms and subject to the conditions set forth in the Merger Agreement, but does not take into account (i) any shares reserved for issuance under the Incentive Plan, or (ii) the issuance of any shares relating to any additional Private Placement Units that are issued or issuable to our Sponsor pursuant to the conversion of the Sponsor’s up to $1.5 million working capital loans that were made to DMA.
(K) Represents pro forma adjustments to additional paid-in capital balance to reflect the following:
| (Amounts in thousands of US$) | ||||
| Common stock subject to redemption after consider the non-realized gain up to Closing and the actual redemption | $ | 2,336 | ||
| Reclassification of DMA’s historical retained earnings to additional paid in capital as part of the reverse recapitalization | (8,312 | ) | ||
| Reduction in additional paid-in capital for acquisition related transaction expenses, net of accrual | (180 | ) | ||
| Issuance of 280,000 shares to DMA’s officer and directors | 6 | |||
| Shares issuance to Ellenoff Grossman & Schole LLP as fees for their services due at Closing | 250 | |||
| Shares issuance to I-Bankers to settle $2,427,500 of deferred underwriters’ fees due at Closing | 2,428 | |||
| Fair value of the 1.4 million Series A warrants and 1.5 million Series B warrants granted in connection with the convertible notes described in (E)(3) above, which was executed on February 2, 2024 | 3,325 | |||
| Cancellation of warrants at Closing, in connection with TruGolf Nevada existing convertible notes, pursuant to the Warrant Cancellation Agreements described in (E)(5) above. | (682 | ) | ||
| $ | (829 | ) | ||
| F-83 |
(L) Represents pro forma adjustments to accumulated deficit balance to reflect the following:
| (Amounts in thousands of US$) | ||||
| Reclassification of DMA’s historical accumulated deficit to additional paid in capital as part of the reverse recapitalization | $ | 8,311 | ||
| Investment income on investments held in Trust Account up to the Closing | (110 | ) | ||
| Reflects the estimated income tax payment | (546 | ) | ||
| Reflects the payment of expenses due at Closing, such as tail insurance premium | (281 | ) | ||
| Reversal of expenses due to warrants cancellation at Closing, in connection with TruGolf Nevada existing convertible notes, pursuant to the Warrant Cancellation Agreements described in (E)(5) above. | 632 | |||
| $ | 8,006 | |||
Adjustments to Unaudited Pro Forma Condensed Combined Statement of Operations
The pro forma adjustments included in the unaudited pro forma condensed combined statement of operations for the six months ended September 30, 2023 and the twelve months ended March 31, 2023 are as follows:
(AA) Reflects the payment of expenses due at Closing, such as tail insurance premium, was expensed at the Closing. These costs are a non-recurring item that are not expected to recur in the next 12 months.
(BB) Represents pro forma adjustment to reflect the cancellation of warrants at the Closing of the Business Combination, in connection with TruGolf Nevada existing convertible notes. Pursuant to the Warrant Cancellation Agreements entered into on July 10, 2023 between TruGolf Nevada and the warrants holders, these warrants shall be cancelled at Closing of the Business Combination.
(CC) Reflects the unrealized gain on marketable securities held in the Trust Account up to the Closing.
(DD) Reflects the estimated income tax liabilities due to the interest income from marketable securities held in the Trust Account.
(EE) The pro forma basic and diluted net loss per share amounts presented in the unaudited pro forma condensed combined statements of operations are based on the number of New TruGolf shares outstanding as if the Business Combination had occurred at the beginning of the earliest period presented.
| F-84 |
Pro Forma weighted-average shares outstanding—basic and diluted is calculated as follows for the six months ended September 30, 2023:
Weighted-average shares outstanding—basic and diluted
| Accrual Redemptions | ||||
| Number of Shares Owned | ||||
| Assume conversion of DMA Class A common stock into New TruGolf common stock effective April 1, 2023 as a result of assuming closing of the Business Combination on April 1, 2023 | 4,327,902 | |||
| Assume reclassification of common stock subject to possible redemption to New TruGolf common stock effective April 1, 2023 as a result of assuming closing of the Business Combination on April 1, 2023 | 1,460,077 | |||
| Assume on April 1, 2023 issuance of New TruGolf common stock to TruGolf Nevada shareholders as a result of assuming closing of the Business Combination on April 1, 2023 | 5,750,274 | |||
| Assume on April 1, 2023 issuance of New TruGolf common stock to pay for the legal fee | 20,000 | |||
| Weighted average shares outstanding – Class A | 11,558,253 | |||
| Accrual Redemptions | ||||
| Number of Shares Owned | ||||
| Assume on April 1, 2023 issuance of New TruGolf common stock to TruGolf Nevada shareholders as a result of assuming closing of the Business Combination on April 1, 2023 | 1,716,860 | |||
| Weighted average shares outstanding – Class B | 1,716,860 | |||
Pro Forma weighted-average shares outstanding—basic and diluted is calculated as follows for the year ended March 31, 2023:
Weighted-average shares outstanding—basic and diluted
| Accrual Redemptions | ||||
| Number of Shares Owned | ||||
| Assume conversion of DMA Class A common stock into New TruGolf common stock effective April 1, 2022 as a result of assuming closing of the Business Combination on April 1, 2022 | 4,327,902 | |||
| Assume reclassification of common stock subject to possible redemption to New TruGolf common stock effective April 1, 2022 as a result of assuming closing of the Business Combination on April 1, 2022 | 1,460,077 | |||
| Assume on April 1, 2022 issuance of New TruGolf common stock to TruGolf Nevada shareholders as a result of assuming closing of the Business Combination on April 1, 2022 | 5,750,274 | |||
| Assume on April 1, 2022 issuance of New TruGolf common stock to pay for the legal fee | 20,000 | |||
| Weighted average shares outstanding – Class A | 11,558,253 | |||
| F-85 |
| Accrual Redemptions | ||||
| Number of Shares Owned | ||||
| Assume on April 1, 2022 issuance of New TruGolf common stock to TruGolf Nevada shareholders as a result of assuming closing of the Business Combination on April 1, 2022 | 1,716,860 | |||
| Weighted average shares outstanding – Class B | 1,716,860 | |||
The following potentially dilutive instruments were not included in the calculation of weighted-average shares outstanding for the six months ended September 30, 2023 as their effects would have been anti-dilutive:
| Accrual Redemptions | ||||
| PIPE Convertible Notes (1) | 6,700,000 | |||
| Series A Warrants (1) | 1,409,091 | |||
| PIPE Series B Warrants (1) | 1,550,000 | |||
| Earnout Shares (2) | 4,500,000 | |||
| Underwriter warrants (3) | 632,500 | |||
| Total | 14,791,591 | |||
(1) Pursuant to the terms and conditions of the Securities Purchase Agreements dated on February 2, 2024, the PIPE Investors agreed to purchase from the Company (i) senior convertible notes in the aggregate principal amount of up to $15,500,000 (the “PIPE Convertible Notes”), (ii) Series A warrants to initially purchase 1,409,091 shares of the Company’s Class A common stock (the “Series A Warrants”); and (iii) Series B warrants to initially purchase 1,550,000 shares of the Company’s Class A common stock (the “Series B Warrants,” and collectively with the Series A Warrants, the “PIPE Warrants”) (the “PIPE Financing”).
| F-86 |
Each holder of Notes may convert all, or any part, of the outstanding Notes, at any time at such holder’s option, into shares of our Class A common stock at an initial “Conversion Price” of $10.00 per share, which is subject to proportional adjustment upon the occurrence of any stock split, stock dividend, stock combination and/or similar transactions. Upon the voluntary conversion by the holders of the PIPE Convertible Notes, in addition to the issuance of the Class A common stock issuable upon conversion of the principal amount of PIPE Convertible Notes, the Company shall issue to the holders in Class A common stock the sum of (A) all accrued interest on the PIPE Convertible Notes to date plus (B) all interest that would otherwise accrued on such principal amount of the PIPE Convertible Notes if such converted principal would be held to the Maturity Date at the Conversion Price.
The initial conversion price (the “Conversion Price”) of the PIPE Convertible Notes is $10.00 per share; provided that the Conversion Price will be automatically reduced to the applicable Adjustment Price (as defined below) if on (i) the 45th calendar day after the initial issuance date, and/or (ii) the date the Registration Statement (as described below) is declared effective by the SEC (each, an “Adjustment Measuring Date”), the greater of (A) $2.00 with respect to $5.0 million in principal amount of PIPE Convertible Notes and $2.50 with respect to the remainder of the PIPE Convertible Notes (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events), and (B) the lowest volume weighted average price (“VWAP”) on any trading day during the five trading day period ended, and including, the trading day immediately prior to such applicable Adjustment Measuring Date (each, an “Adjustment Price”), is less than the Conversion Price then in effect.
The Series A Warrants shall expire five years after issuance and shall initially be exercisable for an aggregate of 1,409,091 shares of Class A common stock, which number of shares shall be increased each time the holder exercises any Series B Warrants in an amount equal to 91% of the shares of Class A common stock issued pursuant to such Series B Warrant exercise. The initial exercise price of the Series A Warrants shall be $13.00 per share; provided that if on (A) the 45th calendar day after issuance, and/or (B) the date the Registration Statement (as described below) is declared effective by the SEC (each, a “Warrant Adjustment Measuring Date”), the exercise price then in effect is greater than the greater of (i) $4.00 (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events), and (ii) the lowest VWAP on any trading day during the five trading day period ended, and including, the trading day immediately prior to such applicable Warrant Adjustment Measuring Date, the exercise price shall automatically lower to such price.
| F-87 |
The Series B Warrants shall expire 30 months after issuance and shall initially be exercisable for an aggregate of 1,550,000 shares of Class A common stock. The initial exercise price of the Series B Warrants shall be $10.00 per share.
(2) At the Closing, subject to the terms and conditions set forth herein, the Company Stockholders shall receive the contingent right to receive up to an additional 4,500,000 shares of Purchaser Class A Common Stock. Assumes the earnout measurements will be met:
a) The First Tranche of a maximum of 1,000,000 Earnout Shares will be earned as follows (i) in the event that the gross consolidated gross revenue of New TruGolf and its subsidiaries (the “ Gross Revenues”) for 2024 equals or exceeds Thirty Million Dollars ($30,000,000)but is less than Forty Two Million Dollars ($42,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 50% of the First Tranche or (y) in the event that the Gross Revenues for 2024 equals or exceeds Forty Two Million Dollars ($42,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the First Tranche; or (ii) in the event that the dollar volume-weighted average price(“VWAP”) of the DMA Class A Shares is at least $13.00 per share for at least twenty (20) out of thirty (30) trading days in the specified period, then the TruGolf Nevada Stockholders shall be entitled to received100% of the First Tranche or, in the event that ten (10) or more Qualified Franchise Locations (as defined in the Merger Agreement) are opened prior to the end of the calendar year 2024, then the TruGolf Nevada Stockholders shall be entitled to received100% of the First Tranche.
b) The Second Tranche of a maximum of 1,500,000 Earnout Shares will be earned as follows (i) in the event that the Gross Revenues for2025 equals or exceeds Fifty Million Dollars ($50,000,000) but is less than Sixty Five Million Dollars ($65,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 50% of the Second Tranche or (y) in the event that the Gross Revenues for 2025 equals or exceeds Sixty Five Million Dollars ($65,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Second Tranche; or (ii) in the event that the VWAP of DMA Class A Shares is at least $15.00 per share for at least twenty (20) out of thirty (30) trading days in the specified period, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Second Tranche or, in the event that thirty (30) or more Qualified Franchise Locations are opened prior to the end of the calendar year 2025, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Second Tranche.
| F-88 |
c) The Third Tranche of a maximum of 2,000,000 Earnout Shares will be earned as follows (i) in the event that the Gross Revenues for2026 equals or exceeds Eighty Million Dollars ($80,000,000) but is less than One Hundred Million Dollars ($100,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 50% of the Third Tranche or (y) in the event that the Gross Revenues for 2026 equals or exceeds One Hundred Million Dollars ($100,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Third Tranche; or (ii) in the event that the VWAP of DMA Class A Shares is at least $17.00 per share for at least twenty (20) out of thirty (30) trading days in the specified period, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Third Tranche or, in the event that fifty (50) or more Qualified Franchise Locations are opened prior to the end of the calendar year 2026, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Third Tranche.
(3) The Company issued to I-Bankers a five-year warrant to purchase 632,500 Shares of Class A common stock, equal to 5.0% of the Shares issued in the IPO (“Representative Warrants”). The exercise price of Representative Warrants is $12.00 per Share.
The following potentially dilutive instruments were not included in the calculation of weighted-average shares outstanding for the year ended March 31, 2023 as their effects would have been anti-dilutive:
| Accrual Redemptions | ||||
| PIPE Convertible Notes (1) | 6,700,000 | |||
| Series A Warrants (1) | 1,409,091 | |||
| Series B Warrants (1) | 1,550,000 | |||
| Earnout Shares (2) | 4,500,000 | |||
| Underwriter warrants (3) | 632,500 | |||
| Total | 14,791,591 | |||
(1) Pursuant to the terms and conditions of the Securities Purchase Agreements dated on February 2, 2024, the PIPE Investors agreed to purchase from the Company (i) senior convertible notes in the aggregate principal amount of up to $15,500,000 (the “PIPE Convertible Notes”), (ii) Series A warrants to initially purchase 1,409,091 shares of the Company’s Class A common stock (the “Series A Warrants”); and (iii) Series B warrants to initially purchase 1,550,000 shares of the Company’s Class A common stock (the “Series B Warrants,” and collectively with the Series A Warrants, the “PIPE Warrants”) (the “PIPE Financing”).
| F-89 |
Each holder of Notes may convert all, or any part, of the outstanding Notes, at any time at such holder’s option, into shares of our Class A common stock at an initial “Conversion Price” of $10.00 per share, which is subject to proportional adjustment upon the occurrence of any stock split, stock dividend, stock combination and/or similar transactions. Upon the voluntary conversion by the holders of the PIPE Convertible Notes, in addition to the issuance of the Class A common stock issuable upon conversion of the principal amount of PIPE Convertible Notes, the Company shall issue to the holders in Class A common stock the sum of (A) all accrued interest on the PIPE Convertible Notes to date plus (B) all interest that would otherwise accrued on such principal amount of the PIPE Convertible Notes if such converted principal would be held to the Maturity Date at the Conversion Price.
The initial conversion price (the “Conversion Price”) of the PIPE Convertible Notes is $10.00 per share; provided that the Conversion Price will be automatically reduced to the applicable Adjustment Price (as defined below) if on (i) the 45th calendar day after the initial issuance date, and/or (ii) the date the Registration Statement (as described below) is declared effective by the SEC (each, an “Adjustment Measuring Date”), the greater of (A) $2.00 with respect to $5.0 million in principal amount of PIPE Convertible Notes and $2.50 with respect to the remainder of the PIPE Convertible Notes (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events), and (B) the lowest volume weighted average price (“VWAP”) on any trading day during the five trading day period ended, and including, the trading day immediately prior to such applicable Adjustment Measuring Date (each, an “Adjustment Price”), is less than the Conversion Price then in effect.
The Series A Warrants shall expire five years after issuance and shall initially be exercisable for an aggregate of 1,409,091 shares of Class A common stock, which number of shares shall be increased each time the holder exercises any Series B Warrants in an amount equal to 91% of the shares of Class A common stock issued pursuant to such Series B Warrant exercise. The initial exercise price of the Series A Warrants shall be $13.00 per share; provided that if on (A) the 45th calendar day after issuance, and/or (B) the date the Registration Statement (as described below) is declared effective by the SEC (each, a “Warrant Adjustment Measuring Date”), the exercise price then in effect is greater than the greater of (i) $4.00 (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events), and (ii) the lowest VWAP on any trading day during the five trading day period ended, and including, the trading day immediately prior to such applicable Warrant Adjustment Measuring Date, the exercise price shall automatically lower to such price.
The Series B Warrants shall expire 30 months after issuance and shall initially be exercisable for an aggregate of 1,550,000 shares of Class A common stock. The initial exercise price of the Series B Warrants shall be $10.00 per share.
(2) At the Closing, subject to the terms and conditions set forth herein, the Company Stockholders shall receive the contingent right to receive up to an additional 4,500,000 shares of Purchaser Class A Common Stock. Assumes the earnout measurements will be met:
| F-90 |
a) The First Tranche of a maximum of 1,000,000 Earnout Shares will be earned as follows (i) in the event that the gross consolidated gross revenue of New TruGolf and its subsidiaries (the “ Gross Revenues”) for 2024 equals or exceeds Thirty Million Dollars ($30,000,000)but is less than Forty Two Million Dollars ($42,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 50% of the First Tranche or (y) in the event that the Gross Revenues for 2024 equals or exceeds Forty Two Million Dollars ($42,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the First Tranche; or (ii) in the event that the dollar volume-weighted average price(“VWAP”) of the DMA Class A Shares is at least $13.00 per share for at least twenty (20) out of thirty (30) trading days in the specified period, then the TruGolf Nevada Stockholders shall be entitled to received100% of the First Tranche or, in the event that ten (10) or more Qualified Franchise Locations (as defined in the Merger Agreement) are opened prior to the end of the calendar year 2024, then the TruGolf Nevada Stockholders shall be entitled to received100% of the First Tranche.
b) The Second Tranche of a maximum of 1,500,000 Earnout Shares will be earned as follows (i) in the event that the Gross Revenues for2025 equals or exceeds Fifty Million Dollars ($50,000,000) but is less than Sixty Five Million Dollars ($65,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 50% of the Second Tranche or (y) in the event that the Gross Revenues for 2025 equals or exceeds Sixty Five Million Dollars ($65,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Second Tranche; or (ii) in the event that the VWAP of DMA Class A Shares is at least $15.00 per share for at least twenty (20) out of thirty (30) trading days in the specified period, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Second Tranche or, in the event that thirty (30) or more Qualified Franchise Locations are opened prior to the end of the calendar year 2025, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Second Tranche.
c) The Third Tranche of a maximum of 2,000,000 Earnout Shares will be earned as follows (i) in the event that the Gross Revenues for2026 equals or exceeds Eighty Million Dollars ($80,000,000) but is less than One Hundred Million Dollars ($100,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 50% of the Third Tranche or (y) in the event that the Gross Revenues for 2026 equals or exceeds One Hundred Million Dollars ($100,000,000), then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Third Tranche; or (ii) in the event that the VWAP of DMA Class A Shares is at least $17.00 per share for at least twenty (20) out of thirty (30) trading days in the specified period, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Third Tranche or, in the event that fifty (50) or more Qualified Franchise Locations are opened prior to the end of the calendar year 2026, then the TruGolf Nevada Stockholders shall be entitled to receive 100% of the Third Tranche.
(3) The Company issued to I-Bankers a five-year warrant to purchase 632,500 Shares of Class A common stock, equal to 5.0% of the Shares issued in the IPO (“Representative Warrants”). The exercise price of Representative Warrants is $12.00 per Share.
| F-91 |
PART II: INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses to be borne by the registrant in connection with the issuance and distribution of the shares of Class A Common Stock and warrants being registered hereby.
| SEC registration fee | $ | |||
| Accounting fees and expenses | $ | |||
| Legal fees and expenses | $ | |||
| Miscellaneous expenses | $ | |||
| Total | $ |
Item 14. Indemnification of Directors and Officers.
Section 145 of the DGCL concerning indemnification of officers, directors, employees and agents is set forth below.
“Section 145. Indemnification of officers, directors, employees and agents; insurance.
| (a) | A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the 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 the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the 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 reasonable cause to believe that the person’s conduct was unlawful. |
| (b) | A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. |
| II-1 |
| (c) | (1) | To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith. For indemnification with respect to any act or omission occurring after December 31, 2020, references to “officer” for purposes of these paragraphs (c)(1) and (2) of this section shall mean only a person who at the time of such act or omission is deemed to have consented to service by the delivery of process to the registered agent of the corporation pursuant to § 3114(b) of Title 10 (for purposes of this sentence only, treating residents of this State as if they were nonresidents to apply § 3114(b) of Title 10 to this sentence). |
| (2) | The corporation may indemnify any other person who is not a present or former director or officer of the corporation against expenses (including attorneys’ fees) actually and reasonably incurred by such person to the extent he or she has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein. |
| (d) | Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer of the corporation at the time of such determination, (1) By a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) By a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) If there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) By the stockholders. |
| (e) | Expenses (including attorneys’ fees) incurred by an officer or director of the corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents of the corporation or by persons serving at the request of the corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the corporation deems appropriate. |
| (f) | The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. A right to indemnification or to advancement of expenses arising under a provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to or repeal or elimination of the certificate of incorporation or the bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred. |
| II-2 |
| (g) | A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section. For purposes of this subsection, insurance shall include any insurance provided directly or indirectly (including pursuant to any fronting or reinsurance arrangement) by or through a captive insurance company organized and licensed in compliance with the laws of any jurisdiction, including any captive insurance company licensed under Chapter 69 of Title 18, provided that the terms of any such captive insurance shall: |
(1) Exclude from coverage thereunder, and provide that the insurer shall not make any payment for, loss in connection with any claim made against any person arising out of, based upon or attributable to any (i) personal profit or other financial advantage to which such person was not legally entitled or (ii) deliberate criminal or deliberate fraudulent act of such person, or a knowing violation of law by such person, if (in the case of the foregoing paragraph (g)(1)(i) or (ii) of this section) established by a final, nonappealable adjudication in the underlying proceeding in respect of such claim (which shall not include an action or proceeding initiated by the insurer or the insured to determine coverage under the policy), unless and only to the extent such person is entitled to be indemnified therefor under this section;
(2) Require that any determination to make a payment under such insurance in respect of a claim against a current director or officer (as defined in paragraph (c)(1) of this section) of the corporation shall be made by a independent claims administrator or in accordance with the provisions of paragraphs (d)(1) through (4) of this section; and
(3) Require that, prior to any payment under such insurance in connection with any dismissal or compromise of any action, suit or proceeding brought by or in the right of a corporation as to which notice is required to be given to stockholders, such corporation shall include in such notice that a payment is proposed to be made under such insurance in connection with such dismissal or compromise.
| For purposes of paragraph (g)(1) of this section, the conduct of an insured person shall not be imputed to any other insured person. A corporation that establishes or maintains a captive insurance company that provides insurance pursuant to this section shall not, solely by virtue thereof, be subject to the provisions of Title 18. | |
| (h) | For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. |
| (i) | For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this section. |
| (j) | The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. |
| II-3 |
| (k) | The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees). |
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 of expenses incurred or paid by a director, officer or controlling person in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to the 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.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is theretofore unenforceable.
Item 15. Recent Sales of Unregistered Securities.
On November 2, 2023 and December 7, 2023, Deep Medicine Acquisition Corp. executed loan agreements with certain accredited investors (together, the “Prior Loan Agreements”) pursuant to which such investors agreed to loan Deep Medicine up to an aggregate $11,000,000 in exchange for the issuance of convertible notes and warrants. On February 2, 2024, the Company executed a securities purchase agreement (the “Purchase Agreement”) with each of the investors that executed the Prior Loan Agreements, which replaced, in their entirety, the Prior Loan Agreements, and with additional investors (together, the “PIPE Investors”). Pursuant to the terms and conditions of the Purchase Agreement, the PIPE Investors agreed to purchase from the Company (i) senior convertible notes in the aggregate principal amount of up to $15,500,000 (the “PIPE Convertible Notes”), (ii) Series A warrants to initially purchase 1,409,091 shares of the Company’s Class A common stock (the “Series A Warrants”); and (iii) Series B warrants to initially purchase 1,550,000 shares of the Company’s Class A common stock (the “Series B Warrants,” and collectively with the Series A Warrants, the “PIPE Warrants”) (the “PIPE Financing”).
The Purchase Agreement contemplates funding of the investment (the “Investment”) across multiple tranches. At the first closing (the “Initial Closing”) an aggregate principal amount of $4,650,000 of PIPE Convertible Notes will be issued upon the satisfaction of certain customary closing conditions in exchange for aggregate gross proceeds of $4,185,000, representing an original issue discount of 10%. On such date (the “Initial Closing Date”), the Company will also issue the PIPE Investors the Series A Warrants and the Series B Warrants.
Subject to satisfying the conditions discussed below, the Company has the right under the Purchase Agreement, but not the obligation, to require that the PIPE Investors purchase additional Notes at up to two additional closings. Upon notice at any time after the 2nd trading day following the Initial Closing Date, the Company may require that the PIPE Investors purchase an additional aggregate principal amount of $4,650,000 of PIPE Convertible Notes, in exchange for aggregate gross proceeds of $4,185,000, if (i) the Registration Statement (as described below) has been filed; and (ii) certain customary closing conditions are satisfied (the “First Mandatory Additional Closing”). Upon notice at any time after the 2nd trading day following the date that the First Mandatory Additional Closing is consummated, the Company may require that the PIPE Investors purchase an additional aggregate principal amount of $6,200,000 of PIPE Convertible Notes, in exchange for aggregate gross proceeds of $5,580,000, if (i) the shareholder approval is obtained (as described below); (ii) the Registration Statement has been declared effective by the SEC; and (iii) certain customary closing conditions are satisfied (the “Second Mandatory Additional Closing”).
In addition, pursuant to the Purchase Agreement, each PIPE Investor has the right, but not the obligation, to require that, upon notice, the Company sell to such PIPE Investor at one or more additional closings such PIPE Investor’s pro rata share of up to a maximum aggregate principal amount of $10,850,000 in additional PIPE Convertible Notes (each such additional closing, an “Additional Optional Closing”); provided that, the principal amount of the additional PIPE Convertible Notes issued at each Additional Optional Closing must equal at least $250,000. If a PIPE Investor has not elected to effect an Additional Optional Closing on or prior to August 2, 2024, such PIPE Investor shall have no further right to effect an Additional Optional Closing under the Purchase Agreement.
| II-4 |
Item 16. Exhibits and Financial Statement Schedules.
The financial statements filed as part of this registration statement are listed in the index to the financial statements immediately preceding such financial statements, which index to the financial statements is incorporated herein by reference.
| II-5 |
| II-6 |
| Exhibit Number | Description of Exhibit | |
| 101.INS* | Inline XBRL Instance Document | |
| 101.SCH* | Inline XBRL Taxonomy Extension Schema Document | |
| 101.CAL* | Inline XBRL Taxonomy Extension Calculation Linkbase Document | |
| 101.DEF* | Inline XBRL Taxonomy Extension Definition Linkbase Document | |
| 101.LAB* | Inline XBRL Taxonomy Extension Label Linkbase Document | |
| 101.PRE* | Inline XBRL Taxonomy Extension Presentation Linkbase Document | |
| 107* | Filing Fee Table |
| * | Filed herewith. |
| ** | To be filed by amendment. |
| (1) | Incorporated herein by reference to Deep Medicine’s Current Report on Form 8-K filed with the SEC on April 6, 2023. |
| (2) | Incorporated herein by reference to Deep Medicine’s Current Report on Form 8-K filed with the SEC on November 1, 2021. |
| (3) | Incorporated by reference to Deep Medicine’s Current Report on Form 8-K filed with the SEC on November 4, 2021. |
| (4) | Incorporated herein by reference to Deep Medicine’s Current Report on Form 8-K filed with the SEC on December 23, 2022. |
| (5) | Incorporated herein by reference to Deep Medicine’s Registration Statement on Form S-1/A filed with the SEC on October 12, 2021 (File No. 333-259500). |
| (6) | Incorporated herein by reference to Deep Medicine’s Current Report on Form 8-K filed with the SEC on July 24, 2023. |
| (7) | Incorporated herein by reference to Deep Medicine’s Current Report on Form 8-K filed with the SEC on July 14, 2023. |
| (8) | Incorporated herein by reference to Deep Medicine’s Current Report on Form 8-K filed with the SEC on November 2, 2023. |
| (9) | Incorporated herein by reference to Deep Medicine’s Current Report on Form 8-K filed with the SEC on December 7, 2023. |
| II-7 |
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
| (1) | to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (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 Commission 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; provided, however, that paragraphs (i), (ii) and (iii) do not apply if the registration statement is on Form S-1 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement; | |
| (2) | that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; | |
| (3) | to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; | |
| (4) | that, for the purpose of determining liability under the Securities Act 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; and |
| II-8 |
| (5) | that, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: | |
| (a) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; | |
| (b) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; | |
| (c) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of an undersigned registrant; and | |
| (d) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
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 Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
| II-9 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement on Form S-1/A to be signed on its behalf by the undersigned, in the city of San Diego, State of California, on February 14, 2024.
| TRUGOLF, INC. | ||
| By: | /s/ Christopher (Chris) Jones | |
| Name: | Christopher (Chris) Jones | |
| Title: | Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Christopher (Chris) Jones and Lindsay Jones as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and sign any registration statement (or amendment thereto) for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462 promulgated 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, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith 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, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement on Form S-1/A to be signed on its behalf by the undersigned, thereunto duly authorized.
| Signature | Title | Date | ||
| /s/ Christopher (Chris) Jones | Chief Executive Officer and Director | February 14, 2024 | ||
| Christopher (Chris) Jones | (Principal Executive Officer) | |||
| /s/ Lindsay Jones | Chief Financial Officer | February 14, 2024 | ||
| Lindsay Jones | (Principal
Financial Officer and Principal Accounting Officer) |
|||
| /s/ Shaun B. Limbers | Directors | February 14, 2024 | ||
| Shaun B. Limbers | ||||
| /s/ Humphrey P. Polanen | Director | February 14, 2024 | ||
| Humphrey P. Polanen | ||||
| /s/ Riley Russell | Director | February 14, 2024 | ||
| Riley Russell | ||||
| /s/ AJ Redmer | Director | February 14, 2024 | ||
| AJ Redmer |
| II-10 |