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EX-31.1 - CERTIFICATION - New Leaf Brands, Inc. | nlef_ex311.htm |
EX-21.1 - SUBSIDIARIES OF THE REGISTRANT - New Leaf Brands, Inc. | nlef_ex211.htm |
EX-32.1 - CERTIFICATION - New Leaf Brands, Inc. | nlef_ex321.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K
(Mark One) | |
þ | ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31 2009. |
o | TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ____TO ___ |
Commission
File Number 000-22024
NEW LEAF BRANDS, INC. |
(Exact name of registrant as specified in its charter) |
Nevada
|
77-0125664
|
|
(State or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer
Identification
No.)
|
9380
E. Bahia Drive, Suite A-201 Scottsdale, Arizona 85260
(Address
of principal executive offices) (Zip Code)
(480)
951-3956
(Registrant’s
telephone number, including area code)
Securities
registered pursuant to Section 12(b) of the Act: None
Securities
registered pursuant to Section 12(g) of the Act:
common
stock, $0.001 par value
(Title of
class)
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes o No þ
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or 15(d) of the Act. Yes o No þ
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes þ No o
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§229.405 of this chapter) is not contained herein,
and will not be contained, to the best of registrant’s knowledge, in
definitive proxy or information statements incorporated by reference in Part III
of this Form 10-K or any amendment to this Form 10-K. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. Set the definitions of “large accelerated filer,”
“accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large accelerated filer o | Accelerated filer o | Non-accelerated filer o | Smaller reporting company þ |
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act). Yes o No þ
State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter: As of December 31 2009, $28,369,647 based on a total of 41,720,069 shares of our common stock held by non-affiliates at a closing price of $0.68 per share.
As of
March 26, 2010 the number of outstanding shares of the registrant’s common stock
was 66,508,035
Documents
incorporated by reference: None.
NEW
LEAF BRANDS, INC.
FORM
10-K
For
the year ended December 31, 2009
TABLE
OF CONTENTS
Page
|
|||||
PART
I
|
|||||
Item 1
|
Business
|
1 | |||
Item 1A
|
Risk
Factors
|
6 | |||
Item 2
|
Properties
|
14 | |||
Item 3
|
Legal
Proceedings
|
15 | |||
Item 4
|
Reserved
|
||||
PART
II
|
|||||
Item 5
|
Market
for Registrant’s Common Equity, Related Stockholder Matters and
Issuer
Purchases of Equity Securities
|
16 | |||
Item 7
|
Management’s
Discussion and Analysis of Financial Condition and Results
of Operations
|
20 | |||
Item 8
|
Financial
Statements and Supplementary Data
|
33 | |||
Item 9
|
Changes
in and Disagreements With Accountants on Accounting and Financial
Disclosure
|
33 | |||
Item 9A(T)
|
Controls
and Procedures
|
33 | |||
Item 9B
|
Other
Information
|
35 | |||
PART
III
|
|||||
Item 10
|
Directors,
Executive Officers and Corporate Governance
|
35 | |||
Item 11
|
Executive
Compensation
|
39 | |||
Item 12
|
Security
Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters
|
43 | |||
Item 13
|
Certain
Relationships and Related Transactions, and Director
Independence
|
45 | |||
Item 14
|
Principal
Accounting Fees and Services
|
49 | |||
PART
IV
|
|||||
Item 15
|
Exhibits,
Financial Statement Schedules
|
50 |
This
report contains trademarks and trade names that are the property of New Leaf
Brands, Inc. and of other companies, as indicated.
PART
I
Forward
Looking Statements Disclaimer
Statements
in this Annual Report on Form 10-K may be “forward-looking
statements.” Forward-looking statements include, but are not limited
to, statements that express our intentions, beliefs, expectations, strategies,
predictions or any other statements relating to our future activities or other
future events or conditions. These statements are based on current
expectations, estimates and projections about our business based, in part, on
assumptions made by our management. These statements are not
guarantees of future performance and involve risks, uncertainties and
assumptions that are difficult to predict. Therefore, actual outcomes
and results may differ materially from what is expressed or forecasted in the
forward-looking statements due to numerous factors, including those risks
discussed in this Annual Report on Form 10-K, under “Risk Factors” and
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and in other documents that we file from time to time with the
Securities and Exchange Commission.
Any
forward-looking statements speak only as of the date on which they are made, and
we do not undertake any obligation to update any forward-looking statement to
reflect events or circumstances after the date of this Annual Report on Form
10-K, except as required by law.
GENERAL
We
develop, market and distribute healthy and functional ready-to-drink teas under
the New Leaf® brand. We focus primarily on functional ready-to-drink
beverages, which include teas and other functional drinks. New Leaf
is a natural iced-tea beverage that is sweetened with evaporated organic cane
sugar and specifically formulated to address an unmet consumer demand in the
very competitive, but rapidly growing, ready-to-drink tea
market. The organic sugar sweetening creates a premium and more
healthy product with 20-30% fewer calories than high fructose corn syrup
competitors. New Leaf is available in 14 varieties that are
all-natural and organically-sweetened, including 2 diet
varieties. Varieties include white, black, green and blue
teas.
HISTORY
Prior to
October 9, 2009, we operated under the name of Baywood International, Inc.
through the combination of a wholly-owned subsidiary named Nutritional
Specialties, Inc., that promoted the LifeTime® and Baywood nutraceutical brands,
and a wholly-owned subsidiary that promoted the New Leaf brand of premium ready
to drink teas. The LifeTime brand was acquired in March 2007 with the
acquisition of Nutritional Specialties, Inc. and the New Leaf brand was acquired
in September 2008 with the acquisition of Skae Beverage International,
LLC.
On July
23, 2009, subject to shareholder approval, our Board of Directors unanimously
approved entry into an asset purchase agreement with Nutra, Inc., a subsidiary
of Nutraceutical International Corporation, a Delaware corporation (the “Asset
Sale”) to sell substantially all the rights and assets of our subsidiary,
Nutritional Specialties, Inc. including the LifeTime® and Baywood brands of
products. On July 24, 2009, we entered into an asset purchase
agreement, and submitted to a vote for approval by our
stockholders. On August 6, 2009, a majority of our stockholders
approved the Asset Sale. The Asset Sale closed on October 9,
2009.
1
Pursuant
to the Asset Sale, we sold substantially all of the rights and assets of our
subsidiary, Nutritional Specialties, Inc., including but not limited to our
accounts, notes and other receivables, inventory, tangible assets, rights
existing under assigned purchase orders, proprietary rights, government
licenses, customer lists, records, goodwill and assumed
contracts. Certain rights and assets were excluded from the purchased
assets, including the right to market, sell and distribute
beverages. In addition, pursuant to the close of the Asset Sale,
certain assets of Nutritional Specialties, Inc. were evaluated at closing to see
if they had a minimum net asset value as of the closing date, after giving
effect to normal generally accepted accounting principles, adjustments for
reserves and except for routine reductions related to normal amortization and
depreciation, equal to $1,848,604. If the net asset value was greater
or less than $1,848,604 at the closing, the purchase price payable at closing
would be increased or decreased by the amount of such difference on a
dollar-for-dollar basis. At closing, the net asset value was
$2,176,411 and therefore the initial purchase price of $8,250,000 was increased
by $327,807. Included in this purchase price is a $250,000 hold-back,
of which the proceeds are being held by Nutra, Inc. No later than six
months after the closing date, or April 9, 2010, if Nutra, Inc. determines that
there is a material difference between the actual net asset value and the net
asset value at closing, it may prepare a written statement setting forth the
calculation of the actual net asset value and that amount may be deducted from
the hold-back. We believe most or all of these funds will be
received. The holdback of $250,000 is included in escrow deposit on
sale of discontinued operations as of December 31, 2009 in the consolidated
balance sheet.
Following
the October 9, 2009 closing of the Asset Sale, we no longer develop, market or
distribute nutraceutical products. We now focus on functional
ready-to-drink beverages, including ready-to-drink teas and other functional
drinks. Effective October 16, 2009, we changed our name to New Leaf
Brands, Inc., to reflect the change in our strategic direction with the sale of
our nutraceutical businesses on October 9, 2009. The name change was
effective in the market at the open of business October 19, 2009, at which time
our ticker symbol changed from BAYW.OB to NLEF.OB.
Following
the closing of the Asset Sale, our Chief Executive Officer, Eric Skae, agreed to
continue in his role. We plan to continue to rely on Mr. Skae’s 15
years of experience and expertise in the beverage industry. In order
to take advantage of synergies, improve coordination and increase efficiencies,
we intend to consolidate our Arizona-based corporate office and our New York
offices and operations into one location. We have selected Old
Tappan, New Jersey as our new corporate headquarters. Consolidation
began in the first quarter of 2010 and is expected to be completed during the
second quarter of 2010. As of the date of this report, our principal
executive offices are located at 9380 E. Bahia Dr., Suite A-201, Scottsdale,
Arizona 85260. Our telephone number is (480) 951-3956 and our web
address is www.newleafbrands.com. We do not intend for information on
our web sites to be incorporated into this 10-K.
INDUSTRY
AND BUSINESS STRATEGY
Our
beverages are classified as ready-to-drink teas. We believe that our
products are well-positioned to continue our growth to date and we have a
competitive edge in ingredients, flavor and packaging.
Our
business plan is to build a competitive beverage company around our New Leaf
brand of ready-to-drink teas and other new functional beverages. As
of March 26, 2010, we sell New Leaf beverages in 35 states, through
approximately 100 distributors in over 8,000 outlets. We plan to expand our
business by making inroads into larger mainstream grocery, convenience drug
stores and other larger accounts.
In
addition to our line of ready-to-drink teas, we intend to develop a new line of
lemonade ready-to-drink beverages and other juices. These products
are considered part of a new category of beverages called New Age Beverages that
we believe is gaining popularity with consumers. We believe that the
new lemonade and juice beverages that we plan to develop can be sold into our
existing channels and also to the independent grocery stores and restaurant
“street” channels, such as bagel stores, delis, pizzerias, cafes, independent
convenience stores, and college book stores. We also plan to target
food, drug and mass accounts including grocery stores, drug stores and club
stores.
2
Our
ability to develop new products is limited by our access to
capital. We intend to continue to explore various strategic
alternatives, including business combinations and private placements of debt and
or equity securities to raise capital to grow our Company. We can
provide no assurance that we will be able to raise sufficient capital under
appropriate terms to complete our strategic objectives.
OUR
PRODUCTS
New Leaf
is a natural iced-tea beverage that is sweetened with organic cane sugar
and specifically formulated to address what we believe is an unmet consumer
demand in the very competitive, but rapidly growing, ready-to-drink tea
market. The organic cane sugar sweetening creates a premium and more
healthy product with 20-30% fewer calories than high fructose corn syrup
competitors. New Leaf is available in 12 varieties that are
all-natural and organically-sweetened, and 2 diet
varieties. Varieties include white, black, green and blue
teas. New Leaf products include:
Blue
Teas
• Diet
Blue Tea with Lemon
• Diet
Blue Tea with Peach
• Blue
Tea with Lemon
• Blue
Tea with Peach
• Blue
Tea with Raspberry
|
White
Tea
• White
Tea with Ginseng & Honey
• White
Tea with Honey Dew Melon
• White
Tea with Strawberry
• White
Tea with Tangerine
|
Green
Teas
• Green
Tea with Plum
• Green
Tea with Ginseng
• Green
Tea with Mango
|
Black Tea
• Black
Tea with Mint & Lime
• Sweet
Tea
|
Our
products are sold in a proprietary 16.9 ounce glass bottle that is designed
specifically for our New Leaf brand. The bottles are labeled with
vibrant colors and the New Leaf logo, which we believe appeals to and is
recognizable by consumers. New Leaf products emphasize wellness and
innovation. Our non-diet varieties of New Leaf Tea have 70-80
calories per 8 ounce serving and are sweetened with organic cane sugar,
instead of high-fructose corn syrup.
We also
distinguish the New Leaf brand by creating unique flavors. For
example, New Leaf introduced blue tea, also known as Oolong tea, to mainstream
consumers. Oolong tea is sometimes referred to as “blue tea” because
its dried leaves have a bluish hue. We believe that unique flavors
will continue to attract the attention of consumers.
MANUFACTURING
AND QUALITY CONTROL
We use
third-parties to manufacture and package our products according to the formulae
and packaging guidelines dictated by us. We arrange for the majority
of the product ingredients to be delivered to a co-packer who is responsible for
mixing the tea according to our specifications. In some cases, the
co-packer may provide certain ingredients, although we supervise production and
sample the products to maintain quality and potency. The co-packer
packages the product in bottles and caps provided by us. We currently
use Castle Beverage as a co-packer, however, we believe that switching to
another co-packer would cause little or no disruption to our business at any
time.
3
The
finished product is stored at the co-packer’s warehouse. When a
distributor places an order, we use contracted trucks to deliver the final
product to the distributor and the distributor is responsible for delivering the
product to retail locations. Certain distributors also pick up our
products at the warehouse. Although we use contracted trucks, the
cost of fuel is passed on to us and therefore an increase in fuel prices will
likely cause an increase in our delivery costs.
We may
use additional co-packers if we expand our market reach. As we move
into new markets, the use of regional co-packers may offset increases in fuel
prices, by reducing the distance product travels to reach a distributor, and
result in faster deliveries. Additionally, using multiple co-packers
reduces risk of interruption in the manufacturing process due to one co-packer’s
failure to manufacturer the product.
The
ingredients of New Leaf Tea are generally considered commodity items and, as
such, are readily available from multiple sources at comparable
prices. Additionally, the suppliers of the caps and labels for our
packaging can be obtained from multiple sources at similar prices with little or
no lead time.
The price
of our glass bottles may fluctuate over time. Market prices for glass
fluctuate and an increase in energy costs will likely increase the price of
glass. Our price per bottle, however, generally decreases as the
total number of bottles ordered increases. Although we expect our
price per bottle to decrease as our orders increase, it is possible these volume
discounts could be offset by higher prices of glass overall.
We use
paper packaging to store our products. The cost of the paper
packaging could also fluctuate, however, this fluctuation would not represent a
large enough percentage of our overall cost of product to have a significant
impact on our bottom line.
MARKETING
AND BRANDING
We market
our products to distributors using a number of marketing strategies, including
direct solicitation, trade advertising and trade show
exhibition. These distributors include natural food, gourmet food,
and mainstream distributors. We also maintain a website at
www.newleafbrands.com, however, the information appearing on this site should
not be incorporated into this document. We work with graphic
designers to create marketing materials for placement near our product at retail
sites. These materials include banners, signs, barrels and static
clings that create interest in our products and excitement around our
brand. We believe that our labeling, marketing and promotional
materials are important elements to creating and increasing distributor,
retailer and consumer awareness of our brands and products.
Our
primary sales and marketing strategy is to use internal dedicated sales
staff. As of December 31, 2009, we had 21 employees in this
capacity.
CUSTOMERS
Our
customers are material to our success. If we are unable to maintain
good relationships with our existing customers, our business could be adversely
affected. Unilateral decisions could be taken by our distributors,
retailers and other customers to discontinue carrying all or any of our products
that they are carrying at any time, which could cause our revenues to
decline.
Manhattan
Beer is one of our larger distributors and accounted for approximately 19% of
our sales of New Leaf for the year ended December 31, 2009. While we
believe we have a good relationship with Manhattan Beer, Manhattan
Beer is not obligated to purchase any of our products and could terminate the
relationship on short notice. Our other distributors similarly do not
have purchase or contractual obligations to us.
4
RESEARCH
AND DEVELOPMENT
We
believe that we can sustain our growth in the ready-to-drink tea category by
adding new products, brands and brand extensions. An integral part of
our strategy is to develop and introduce innovative products and
packaging. The development time from inception of the concept through
product development and testing to the manufacture and sale of the finished
product is several months, however, not all of our new ideas survive consumer
research. Our current research and development of New Leaf and other
future beverage products is limited by our capital resources.
COMPETITION
The
ready-to-drink tea market is highly competitive and is currently dominated by
well-known soft drink companies such as Coca-Cola, Pepsi and Dr. Pepper/Snapple
Group. Many of our competitors are substantially larger and more
experienced and have longer operating histories and materially greater financial
and other resources than we do. As a result, we may not be able to
successfully compete with these larger competitors in the
marketplace.
Our
principal competition in the “street” channel comes from a limited number of
large, nationally known manufacturers and many smaller manufacturers of
non-alcoholic beverages. Since we do not yet widely market our
products into mass-market distribution channels, we face limited direct
competition from broad line manufacturers and major private label manufacturers
and similar companies. We also do face indirect competition from
mass-market distribution channels to the extent that consumers may choose to
forgo their purchases of a ready-to-drink tea in the “street” distribution
channels based on price and availability. In addition, we compete
with several large beverage brands, including Arizona, Snapple, Lipton Brisk,
Sobe, Vitamin Water, Fuze, Nestea, Tazo, Honest Tea and Sweet Leaf
Tea.
We
believe that our brands compete favorably with other ready-to-drink tea products
because of the quality of our products, our emphasis on wellness and innovation
and our ability to timely introduce new products that are exciting to
consumers. We have developed flavors such as tangerine,
honeydew melon and strawberry that we believe are differentiated from flavors
offered by our competitors. In addition, we focus on
distinguishing our products from competitors by offering more unique
combinations of packaging, taste and ingredients.
INTELLECTUAL
PROPERTY RIGHTS
We own or
have filed the following trademarks with the U.S. Patent and Trademark
Office:
-
|
"New
Leaf" (word mark): Filing date on August 20, 2003 and
registration date of January 4, 2005 under Registration Number
2916219;
|
-
|
“New
Leaf” (design mark): Filing date on September 28, 2007 and
registration date of December 2, 2008 under Registration Number
3539503;
|
-
|
“The
Official Beverage of Taste” (word mark): Filing date of
November 10, 2009 and estimated registration date by December
2010.
|
In
addition, we consider our finished products and formulas, which are not the
subject of any patents, to be trade secrets. We have not sought any
patents on our brewing processes because we would be required to disclose our
product formulae in patent applications. We consider our trademarks
and trade secrets to be of substantial value and importance to our
business.
5
GOVERNMENT
REGULATION
The
production, distribution and sale in the United States of many of our products
is subject to the Federal Food, Drug and Cosmetic Act, the Dietary Supplement
Health and Education Act of 1994, the Occupational Safety and Health Act,
various environmental statutes and various other federal, state and local
statutes and regulations applicable to the production, transportation, sale,
safety, advertising, labeling and ingredients of such products.
Measures
have been enacted in various localities and states that require that a deposit
be charged for certain non-refillable beverage containers. The
precise requirements imposed by these measures vary. Other deposit,
recycling or product stewardship proposals have been introduced in certain
states and localities and in Congress, and we anticipate that similar
legislation or regulations may be proposed in the future at the local, state and
federal levels, both in the United States and elsewhere. Any such
legislative or regulatory changes may have a negative impact on New Leaf’s
sales, operating costs and gross margins.
Our
facilities in the United States are subject to federal, state and local
environmental laws and regulations. Compliance with these provisions
has not had, and we do not expect such compliance to have, any material adverse
effect upon our capital expenditures, net income or competitive
position.
We are
not aware of any incidences or circumstances where we are out of compliance with
any governmental regulations.
EMPLOYEES
As of
December 31, 2009, we had 32 full-time employees. Twenty-one
employees are in sales/marketing and eight employees perform
administrative functions. None of our employees are represented by a
collective bargaining arrangement and we believe our relations with employees
are good.
ITEM
1A – RISK FACTORS
An
investment in our securities involves a substantial degree of
risk. Before making an investment decision, you should give careful
consideration to the following risk factors in addition to the other information
contained in this annual report. The following risk factors, however,
may not reflect all of the risks associated with our business or an investment
in our Company. You should invest in our Company only if you can
afford to lose your entire investment.
RISK
RELATED TO OUR BUSINESS
Our
Independent Auditors have expressed doubt about our ability to continue as a
going concern and, if we do not continue as a going concern, you may lose your
entire investment.
In their
report dated March 31, 2010, our independent registered public accounting firm,
Mayer Hoffman McCann P.C., stated that our consolidated financial statements for
the year ended December 31, 2009 were prepared assuming that we would continue
as a going concern. Our ability to continue as a going concern is an
issue raised as a result of a loss of $10,930,180 for the year ended December
31, 2009 and a loss of $4,229,745 for the year ended December 31,
2008. We expect to continue to experience net operating
losses. Our ability to continue as a going concern is subject to our
ability to generate a profit and operating cash flows. Our ability to
generate profits depends on the success of our brands, of which there can be no
assurance. We believe that the going concern qualification in the
Independent Auditors’ report is designed to emphasize the uncertainty related to
our business as well as the level of risk associated with an investment in our
common stock.
6
We
have had a history of losses and if we cannot consistently generate positive
cash flows or raise sufficient capital then we will not realize our growth
potential and our business could suffer financially.
Our net
loss in 2009 was $10,930,180 and in 2008 was $4,229,745. We are
attempting to grow our brands while maintaining costs. However, we
expect to require increasing cash flows to finance our needs for inventory to
successfully build the distribution of our products into the
marketplace. In order to finance our growth, we will need to raise
capital to fund our inventory needs and implement more aggressive sales,
marketing and advertising programs. However, if we are not successful
in raising additional capital, we may not meet our projections for growth and
our sales could be adversely affected due to delays in shipments and loss of
customers.
Current
economic conditions could have a material adverse effect on our
business.
Our
current and future business plans are dependent, in large part, on the overall
state of the economy. Any adverse changes in economic conditions may
adversely affect our plan of operation. Our operations and
performance also depend to some degree on economic conditions and their impact
on levels of consumer spending, which have recently deteriorated significantly
in many countries and regions, including the regions in which we operate, and
may remain depressed for the foreseeable future. For example, some of
the factors that could influence the levels of consumer spending include
continuing volatility in fuel and other energy costs, conditions in the
residential real estate and mortgage markets, labor and healthcare costs, access
to credit, consumer confidence and other macroeconomic factors affecting
consumer spending behavior for discretionary consumer goods such as
ours. These and other economic factors could have a material adverse
effect on demand for our products and on our financial condition and operating
results.
We depend upon our trademarks and
proprietary rights, and any failure to protect our intellectual property rights
or any claims that we are infringing upon the rights of others may adversely
affect our competitive position.
Our
success depends, in large part, on our ability to protect our current and future
brands and products and to defend our intellectual property
rights. We cannot be sure that trademarks will be issued with respect
to any future trademark applications or that our competitors will not challenge,
invalidate or circumvent any existing or future trademarks issued to, or
licensed by, us. Litigation related to the protection of intellectual
property rights could disrupt our business, divert management attention and cost
a substantial amount to protect our rights or defend ourselves against
claims. We believe that our competitors, many of whom are more
established, and have greater financial and personnel resources than we do, may
be able to replicate our processes, brands, flavors, or unique market segment
products in a manner that could circumvent our protective
safeguards. Therefore, we cannot give you any assurance that our
confidential business information will remain proprietary.
We
depend on third-party suppliers and manufacturers. Any disruption or
extended delay in product supply from any of our third-party suppliers could
have a significant adverse impact on our operations.
There are
numerous companies that produce or supply the types of products we
distribute. We do not manufacture any of our products and depend
entirely on third-party manufacturers and suppliers. Typically, we do
not have supply agreements, but submit purchase orders for our
products. We use third-parties to manufacture and package our New
Leaf Tea beverages according to the formulae and packaging guidelines dictated
by us. A disruption could occur at any of our suppliers for many
reasons, including fire, natural disasters, weather, manufacturing problems,
transportation interruption or government regulation. Although we
believe that a number of alternative manufacturers are available and that we
could replace our main suppliers with alternative sources at comparable prices
and terms, any disruption or extended delay in our product supply from any of
our third-party suppliers could have a significant adverse impact on our
operations. In addition, the time needed to replace any of our main
suppliers could adversely affect our operations by delaying shipments and
potentially losing customers to our competition.
7
Our
business is sensitive to public perception. If any of our products
prove to be harmful to consumers or if scientific studies provide unfavorable
findings regarding their safety or effectiveness, then our brands and our image
in the marketplace would be negatively impacted.
Our
beverage business could be adversely affected if any of our products or similar
products distributed by other companies prove to be harmful to consumers or if
scientific studies provide unfavorable findings regarding the safety or
effectiveness of our products or any similar products. Our teas may
contain certain nutritional ingredients such as vitamins, herbs and other
ingredients that we regard as safe when taken as directed by us and that various
scientific studies and literature have suggested may offer health
benefits. While we conduct quality control testing on the ingredients
in our products, we depend on consumers' perception of the overall integrity of
the tea and beverage business. The safety and quality of products
made by competitors in our industry may not adhere to the same quality standards
that ours do, and may result in a negative consumer perception of the entire
industry. If our products suffer from this negative consumer
perception, it is likely our sales will slow and we will have difficulty
generating revenues.
Our
products may not meet health and safety standards or could become contaminated,
causing product recalls that may adversely affect our brand image.
We have
adopted various quality, environmental, health and safety
standards. However, our products may still not meet these standards
or could otherwise become contaminated. A failure to meet these
standards or contamination could occur in our operations or those of our
bottlers, distributors or suppliers. This could result in expensive production
interruptions, recalls and liability claims. Moreover, negative
publicity could be generated from false, unfounded or nominal liability claims
or limited recalls. Any of these failures or occurrences could
negatively affect our business and financial performance.
If
we cannot maintain adequate inventory, our revenues will likely decrease and our
operating results will be adversely affected.
From time
to time, we have experienced difficulty maintaining sufficient inventory to meet
customer demand. This failure results from insufficient capital
necessary to build and manage our inventory. We rely on financing to
build our inventories and in the future we may not be able to obtain such
financing on acceptable terms, if at all. If we do not have
sufficient inventory to meet our demand, our revenues will likely
decrease. Additionally, if we do not fill our customers' orders, they
may turn to other suppliers and we could lose the relationship
entirely. If we cannot build sufficient inventories, our business may
be curtailed or could fail entirely and you could lose all or part of your
investment.
We
are at risk for product liability claims and if we do not maintain adequate
insurance to protect us against such claims, a material lawsuit could cause our
business to fail.
We are
constantly at risk that consumers and users of our products will bring lawsuits
alleging product liability. We are not aware of any claims pending
against us or our products that we believe would adversely affect our
business. While we will continue to attempt to take what we consider
to be appropriate precautions, these precautions may not protect us from
significant product liability exposure in the future. We maintain
product liability insurance for our products through third-party
providers. We believe our insurance coverage is adequate; however, we
may not be able to retain our existing coverage or this coverage may not be
cost-justified or sufficient to satisfy any future claims. If we are
unable to secure the necessary insurance coverage at affordable costs, then our
exposure to liability will greatly increase and it will be difficult to market
and sell our products since customers rely on this insurance to distribute our
products. In addition to carrying our own coverage, we also require
our manufacturers to carry product liability insurance. If we are
sued, we may not have sufficient resources to defend against the suit or to pay
damages. A material lawsuit could negatively impact our business by
increasing our expenses and negatively impacting our available capital which, in
turn, could cause our business to fail.
8
If
we do not develop and introduce new products that appeal to consumers, our
revenues may not be sufficient to cover our expenses and our business could
fail.
Our
success depends on new product development. The success of new
product introductions depends on various factors, including the
following:
·
|
proper
new product selection;
|
·
|
successful
sales and marketing efforts;
|
·
|
timely
delivery of new products;
|
·
|
availability
of raw materials; and
|
·
|
customer
acceptance of new products.
|
We face
challenges in developing new products, primarily with funding development costs
and diversion of management time. On a regular basis, we evaluate
opportunities to develop new products through product line extensions and
product modifications. We may not successfully develop product line
extensions or integrate newly developed products into our
business. In addition, newly developed products may not contribute
favorably to our operations and financial condition. Our failure to
develop and introduce new products on a timely basis would adversely affect our
future operating results.
We
need additional capital and if we do not generate sufficient cash flow and we
cannot raise additional capital, we will not be able to fulfill our business
plan.
We need
to obtain additional funding in the future in order to finance our business
strategy, operations and growth. We may not be able to obtain
additional financing in sufficient amounts or on acceptable terms when
needed. If we fail to arrange for sufficient capital on a timely
basis, we may be required to curtail our business activities until we can obtain
adequate financing. Debt financing must be repaid regardless of
whether or not we generate profits or cash flows from our business
activities. Equity financing may result in dilution to existing
stockholders and may involve securities that have rights, preferences, or
privileges that are senior to our common stock or other
securities. If we cannot raise sufficient capital when necessary, we
will likely have to curtail operations and you may lose part or all of your
investment.
We
have a material amount of outstanding debt that may hinder our ability to
sustain or grow our business.
As of
March 26, 2010, we have $2,771,307 in outstanding debt. This
debt could have important consequences to us and our investors,
including:
·
|
requiring
a substantial portion of our cash flow from operations to make interest
payments on this debt;
|
·
|
making
it more difficult to satisfy debt service and other
obligations;
|
·
|
increasing
our vulnerability to general adverse economic and industry
conditions;
|
·
|
reducing
the cash flow available to fund capital expenditures and other corporate
purposes and to grow our business;
|
·
|
limiting
our flexibility in planning for, or reacting to, changes in our business
and the industry;
|
·
|
placing
us at a competitive disadvantage to our competitors that may not be as
highly leveraged with debt as we are;
and
|
·
|
limiting
our ability to borrow additional funds as needed or take advantage of
business opportunities as they arise, pay cash dividends or repurchase
common stock.
|
9
To the
extent we become more leveraged, the risks described above would
increase. In addition, our actual cash requirements in the future may
be greater than expected. Our cash flow from operations may not be
sufficient to repay at maturity all of the outstanding debt as it becomes due,
and we may not be able to borrow money, sell assets or otherwise raise funds on
acceptable terms, or at all, to refinance our debt.
We
have outstanding indebtedness that may have to be renegotiated or
refinanced.
As of
December 31, 2009, we are in default to certain former owners of Nutritional
Specialties, Inc, on an obligation of $1,035,420, all of which is now reflected
as currently due. In the coming months, Management believes it can
remedy these defaults through renegotiation, waivers, pay-down of indebtedness
and/or issuance of equity capital. However, there can be no
assurances that we will be able to complete any new financings or reach
agreement with these parties. One of the former owners of Nutritional
Specialties, Inc. has demanded payment of the obligation. If we are
unable to repay the foregoing indebtedness or renegotiate or refinance on
acceptable terms, or obtain necessary waivers, this could have a material
adverse effect on our business, prospects, financial condition and/or results of
operations.
We
may face significant competition for our ready-to-drink tea products which could
adversely affect our revenues, results of operations and financial
condition.
The
ready-to-drink tea segment of the commercial beverages industry is highly
competitive. Our New Leaf Tea products will compete with well-known
products such as Arizona, Snapple, Lipton Brisk, Sobe, Vitamin Water, Fuze,
Nestea, Tazo, Honest Tea and Sweet Leaf Tea, some of which are produced and/or
owned by major international beverage companies such as Coca-Cola, Pepsi and Dr.
Pepper/Snapple Group. These companies are substantially larger and
more experienced than we are. In addition, they have longer operating
histories and have materially greater financial and other resources than we
do. Our ability to gain or maintain share of sales or gross margins
in the global market or in various local markets may be limited as a result of
actions by our competitors. If we cannot compete in the marketplace,
we may have difficulty selling our products and generating
revenues. Additionally, competition may drive down the prices of our
products, which could adversely affect our revenues and our profitability, if
any.
If
we are unable to manage our projected growth, we may not be able to implement
our business plan and we may not achieve profitability in the
future.
We
believe we must expand our business to achieve profitability. Any
further expansion of our business may strain our current managerial, financial,
operational, and other resources. We will need to continually improve
our operations and our financial, accounting and other internal control systems
in order to manage our growth effectively. Success in managing this
expansion and growth will depend, in part, upon the ability of our senior
management to manage our growth effectively. Any failure to do so may
lead to inefficiencies and redundancies, and result in reduced growth
prospects. As a result, our profitability, if any, may be curtailed
or eliminated.
10
Our
revenues and operating results may fluctuate unexpectedly from quarter to
quarter, which may cause a shareholder’s investment in our common stock to
decline in value.
Our
revenues and operating results may fluctuate significantly in the future due to
various factors including, but not limited to, changes in sales, inventory
expenses, operating expenses, market acceptance of our products, or regulatory
changes that may affect the marketability of our products and buying cycles of
our customers. As a result of these and other factors, we believe
that period-to-period comparisons of our operating results may not be meaningful
in the short term and that you should not rely upon our performance in a
particular period as indicative of our performance in any future
period.
Price
fluctuations in, and unavailability of, raw materials that we use could
adversely affect our business operations.
We do not
enter into hedging arrangements for raw materials. Prices of certain
raw materials have fluctuated in recent years which have affected our cost of
goods. To mitigate the impacts of these price fluctuations on our
cost of goods, we actively source the production of raw materials and finished
goods through different suppliers to stabilize our costs. If these
suppliers are unable or unwilling to meet our requirements, we could suffer
shortages or substantial cost increases. Changing suppliers can
require long lead times. The failure of our suppliers to meet our
needs could occur for many reasons, including fires, natural disasters, weather,
manufacturing problems, disease, strikes, transportation interruption,
government regulation, political instability and terrorism. In
addition, we pass some of these costs onto our customers through intermittent
price increases. If we are not able to continue to effectively
negotiate competitive costs with various suppliers or pass along certain price
increases to our customers, our margins and operations will be adversely
affected.
Our
business is subject to many regulations and noncompliance is
costly.
The
production, marketing and sale of our beverages, including contents, labels,
caps and containers, are subject to the rules and regulations of various
federal, provincial, state and local health agencies. If a regulatory
authority finds that a current or future product or production run is not in
compliance with any of these regulations, we may be fined, or production may be
stopped, thus adversely affecting our financial condition and results of
operations. Similarly, any adverse publicity associated with any
noncompliance may damage our reputation and our ability to successfully market
our products. Furthermore, the rules and regulations are subject to change from
time to time and while we closely monitor developments in this area, we have no
way of anticipating whether changes in these rules and regulations will impact
our business adversely. Additional or revised regulatory
requirements, whether labeling, environmental, tax or otherwise, could have a
material adverse effect on our financial condition and results of
operations.
Failure
to retain our executive officers and to attract other key personnel could
materially affect our ability to compete in the ready-to-drink tea
segment.
Our
performance depends substantially on the performance of our executive officers
and other key personnel. The success of our business in the future
will depend on our ability to attract, train, retain and motivate high quality
personnel, especially highly qualified managerial personnel. The loss
of services of any executive officers or key personnel could have a material
adverse effect on our business, revenues, and results of operations or financial
condition. Competition for talented personnel is intense, and we may
not be able to continue to attract, train, retain or motivate other highly
qualified technical and managerial personnel in the future. In
addition, market conditions may require us to pay higher compensation to
qualified management and technical personnel than we currently
anticipate. Any inability to attract and retain qualified management
and technical personnel in the future could have a material adverse effect on
our business, prospects, financial condition, and/or results of
operations.
11
RISKS
RELATED TO OUR SECURITIES
The
price of our common stock may be volatile, and a shareholders’ investment in our
common stock could decline in value or become worthless.
During
the years ended December 31, 2009, 2008, 2007, 2006 and 2005, the trading price
of our common stock has ranged from $0.29 to $2.60, adjusted for stock
splits. The volatility in our stock price could be caused by a
variety of factors, many of which are beyond our control. These
factors include, but are not limited to, the following:
·
|
operating
results that vary from the expectations of management, securities analysts
and investors;
|
·
|
changes
in expectations as to our business, prospects, financial condition, and
results of operations, including financial estimates by third-party
analysts and investors;
|
·
|
announcements
by us or our competitors of new product innovations and material
developments;
|
·
|
the
operating and securities price performance of other companies that
investors believe are comparable to
us;
|
·
|
future
sales of our equity or equity-related
securities;
|
·
|
more
limited exposure of our equity securities being quoted on the OTC BB to
the investing public as compared to other
exchanges;
|
·
|
changes
in general conditions or trends in our industry and in the economy, the
financial markets, and the domestic or international political
situation;
|
·
|
fluctuations
in oil and gas prices;
|
·
|
additions
or departures of key personnel;
|
·
|
future
sales of our common stock; and
|
·
|
regulatory
considerations.
|
Domestic
and international stock markets often experience significant price and volume
fluctuations that are unrelated to the operating performance of companies with
securities trading in those markets. These fluctuations, as well as
political events, terrorist attacks, threatened or actual war and general
economic conditions unrelated to our performance, may adversely affect the price
of our common stock. In the past, securities holders of other
companies often have initiated securities class action litigation against those
companies following periods of volatility in the market price of those
companies' securities. If the market price of our stock fluctuates
and our stockholders initiate this type of litigation, we could incur
substantial costs and experience a diversion of our management's attention and
resources, regardless of the outcome. This could materially and
adversely affect our business, prospects, financial condition and/or results of
operations. In addition, the exposure of our common stock to the
general investing community is limited and thereby inhibits our ability to
obtain new investors to help finance our business.
On
December 18, 2007, we effected a reverse split of our common stock on a 1 for 20
basis. The immediate effect of the reverse split has been to reduce
the number of shares of our outstanding common stock and to increase the trading
price of such common stock. However, the effect of the reverse split
upon the market price of our common stock cannot be predicted, and the history
of reverse stock splits for companies in similar circumstances would indicate
that a reverse split sometimes improves stock performance, but in many cases
does not. There can be no assurance that the trading price of our
common stock after the reverse split will rise in proportion to the reduction in
the number of shares of our common stock outstanding as a result of the reverse
split or remain at an increased level for any period. Also, there is
no assurance that the reverse split will not eventually lead to a decrease in
the trading price of our common stock. The trading price of our
common stock may change due to a variety of other factors, including our
operating results and other factors related to our business and general market
conditions.
12
Our
current management may control the right to vote our common stock and they may
be able to control our company indefinitely.
As of
December 31, 2009, members of our Board of Directors and our management team
beneficially own approximately 34% of our common stock. As a result,
our Board and management collectively and effectively control our management and
affairs and all matters requiring stockholder approval, including the election
of directors and approval of significant corporate transactions, for an
indefinite period of time. Without a disparate stockholder base or a
fluid aggregation of stockholders, it will be more difficult for a third party
to acquire our Company without the consent of the insiders. This
concentration of ownership might adversely affect the market value of our common
stock in the future and the voting and other rights of our other
stockholders.
Future
classes of preferred stock may be issued with greater rights than our common
stock.
As of
December 31, 2009, we had no preferred stock outstanding. Our Board
is authorized to issue classes or series of shares of our preferred stock
without any action on the part of our stockholders, subject to the limitations
of the preferred stock already outstanding. Our Board also has the
power, without stockholder approval, to set the terms of any such classes or
series of shares of our preferred stock that may be issued, including voting
rights, dividend rights, conversion features and preferences over shares of our
common stock with respect to dividends or if we liquidate, dissolve or wind up
our business and other terms. If we issue shares of our preferred
stock in the future that have preference over shares of our common stock with
respect to the payment of dividends or upon our liquidation, dissolution or
winding up, or if we issue shares of our preferred stock with voting rights that
dilute the voting power of shares of our common stock, the rights of our
stockholders or the market price of shares of our common stock, and as a result
our preferred stock and warrants, could be adversely affected.
In
the event of bankruptcy, all creditors’ claims will have priority over the
rights of holders of shares.
In the
event of bankruptcy, liquidation or winding up, our assets will be available to
pay obligations on our preferred stock and common stock only after all of our
liabilities has been paid. In addition, our preferred shares will
effectively rank junior to all existing and future liabilities of our
subsidiaries and any capital stock of our subsidiaries held by third
parties. The rights of holders of our preferred shares to participate
in the assets of our subsidiaries upon any liquidation or reorganization of any
subsidiary will rank junior to the prior claims of that subsidiary's creditors
and equity holders. In the event of bankruptcy, liquidation or
winding up, there may not be sufficient assets remaining, after paying our and
our subsidiaries' liabilities, to pay amounts due on any or all of our preferred
stock then outstanding, and holders of our common stock will not have the right
to receive any amount of our assets unless and until all amounts due on all our
preferred stock have been paid in full.
Shares of our common stock and other
securities are considered “penny stocks.”
If the
market price per share of our common stock is less than $5.00, the shares may be
“penny stocks” as defined in the Securities Exchange Act of 1934, as amended,
referred to as the Exchange Act. As a result, an investor may find it
more difficult to dispose of or obtain accurate quotations as to the price of
these securities. In addition, “penny stock” rules adopted by the SEC
under the Exchange Act subject the sale of these securities to regulations which
impose sales practice requirements on broker-dealers. For example,
broker-dealers selling penny stocks must, prior to effecting the transaction,
provide their customers with a document that discloses the risks of investing in
penny stocks.
13
Furthermore,
if the person purchasing the securities is someone other than an accredited
investor or an established customer of the broker-dealer, the broker-dealer must
also approve the potential customer’s account by obtaining information
concerning the customer’s financial situation, investment experience and
investment objectives. The broker-dealer must also make a
determination whether the customer has sufficient knowledge and experience in
financial matters to be reasonably expected to be capable of evaluating the risk
of transactions in penny stocks. Accordingly, the SEC’s rules may limit the
number of potential purchasers of shares of our common
stock. Moreover, various state securities laws impose restrictions on
transferring “penny stocks,” and, as a result, investors in our securities may
have their ability to sell their securities impaired.
Future
sales of common stock by our existing stockholders could adversely affect the
stock price of our securities.
The
market price of our common stock could decline as a result of sales of a large
number of shares of our common stock in the market, or the perception that these
sales could occur. These sales also might make it more difficult for
us to sell equity securities in the future at a time and at a price that we deem
appropriate. We can make no prediction as to the effect, if any, that
future sales of shares of common stock or equity-related securities, or the
availability of shares of common stock for future sale, will have on the trading
price of our common stock.
We
do not expect to pay cash dividends on our common stock in the foreseeable
future.
We have
not declared or paid any cash dividends on our common stock and do not expect to
pay cash dividends in the foreseeable future. As a result, investors
may have to sell their shares of our common stock to realize their
investment. We currently intend to retain all future earnings for use
in the operation of our business and to fund future growth.
Our
principal executive office is located at 9380 E. Bahia Drive, Suite A-201,
Scottsdale, Arizona 85260. We lease approximately 4,500 square feet
of office space under an operating lease that expires on September 30,
2013. We have an option to terminate the lease at September 30, 2010
and we have notified the landlord of our intention to terminate the
lease. Rent expense under this lease was $53,670 and
$54,360 for the years ended December 31 2009 and 2008,
respectively. The future minimum lease obligation for the remaining
term of the lease after December 31 2009 is $40,500. We intend to
close the Arizona-based corporate office and relocate its functions to our
office in New Jersey.
Nutritional
Specialties’ principal office and warehouse was located at 1967 North Glassell
Street, Orange, California 92865. Nutritional Specialties leased
approximately 10,381 square feet of office and warehouse space. In conjunction
with the closing of the Asset Sale, effective October 9, 2009, Nutritional
Specialties, Inc. entered into a lease assignment for their existing facility.
Nutritional Specialties, Inc. assigned the lease to Nutra, Inc., a subsidiary of
Nutraceutical Corporation, a Delaware corporation. The lease is comprised of an
original lease dated May 13, 2005; an Assignment and Assumption Agreement
dated March 30, 2007; an Assignment and Assumption Agreement dated
May 24, 2007; and the First Amendment to the Lease dated June 5,
2008. Pursuant to the assignment of the lease, Nutritional
Specialties, Inc. remains fully, directly and primarily liable to the landlord
for the performance of all of the provisions of the lease by Nutra, Inc., as
assignee. Rent expense under this lease was $91,394 and $76,586 for
the year ended December 31, 2009 and 2008 which was reduced by a sublease rent
of $21,801 from the acquirer Nutra, Inc.
14
The
principle office for our ready-to-drink beverage business is located at 60 Dutch
Hill Road #9, Orangeburg, NY 10962. We lease approximately 1,500
square feet of office space under a month-to-month lease. Rent
expense under this lease for the year ended December 31, 2009 was $19,569 and
for the period since acquisition to December 31 2008 was $6,902.
On March
8, 2010 we entered a lease agreement on 2,690 square feet of space at One
DeWolfe Road, Old Tappan, New Jersey for a three year term commencing April 15,
2010. The minimum lease obligation for the three year term of the
lease commencing April 15, 2010 is $145,260. We are in the process of closing
our Arizona and New York facilities and relocating these activities to the New
Jersey facility. We believe the New Jersey facility will be adequate for our
immediate needs however we may need additional space to accommodate our business
growth.
We may
from time to time be a party to lawsuits incidental to our
business. On December 27, 2007, Farmatek IC VE DIS TIC, LTD, STI, a
former distributor of Nutritional Specialties, filed a claim in the Superior
Court of California, County of Orange, against our wholly-owned subsidiary,
Nutritional Specialties. Farmatek alleges breach of contract and a
violation of California Business and Professional Code. Farmatek was
seeking $4,000,000 plus punitive damages and costs. In February 2009,
we reached a settlement with Farmatek to pay Farmatek an aggregate of $250,000
over the following twelve months. We paid $200,000 during 2009 and
have accrued the remaining $50,000 in accrued liabilities in the accompanying
consolidated balance sheet at December 31, 2009.
On
January 29, 2009, we were notified that we were named as a defendant, along with
54 other defendants, in a class action lawsuit under California Proposition 65
for allegedly failing to disclose the amount of lead in one of our
products. Although the product in question was sold as part of our
Asset Sale to Nutra, Inc. we remain as a named defendant in the
case. We believe this case is without merit and we plan to defend it
vigorously. We believe this suit will not have a material adverse
effect on our results of operations, cash flows or financial
condition.
On
December 7, 2009, we received a demand notice for payment for $822,920 from the
estate of a former owner of Nutritional Specialties, Inc. Without acknowledging
liability, we offered to settle any claims against us in this matter for cash
and restricted common stock. Our offer lapsed before it was
accepted. We intend to continue to attempt to negotiate a settlement
for this debt. We have accrued for this payment of $822,920 as of
December 31, 2009 as a short term notes payable. We do not believe
this matter will have a material effect on our results of operations, cash flows
or financial conditions.
On March
12, 2010, we were notified that we were named as a defendant in lawsuit in the
United States District Court, Eastern District of Texas, brought by
Vitro Packaging de Mexico, SA de CV, the assignee of a former
supplier. Vitro Packaging alleges we owed unpaid accounts receivable
and is seeking payment of approximately $345,000. We have included
this claim in our liabilities however our counter claim has not be reflected as
an asset. We believe this case is without merit and we plan to defend
it vigorously. We believe this suit will not have a material adverse
effect on our results of operations, cash flows or financial
condition.
We may be
involved from time to time in ordinary litigation, negotiation and settlement
matters that will not have a material effect on our operations or finances. We
are not aware of any pending or threatened litigation against us or our officers
and directors in their capacity as such that could have a material impact on our
operations or finances.
15
PART II
ITEM 5 - MARKET FOR REGISTRANT’S COMMON
EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY
SECURITIES
Our
common stock trades publicly on the Over-the-Counter Bulletin Board, or OTCBB,
under the symbol NLEF. Prior to October 19, 2009, our ticker symbol
was BAYW. The OTCBB is a regulated quotation service that displays
real-time quotes, last-sale prices and volume information in over-the-counter
equity securities. The OTCBB securities are traded by a community of
market makers that enter quotes and trade reports.
The
following table sets forth the quarterly high and low bid prices per share of
our common stock as reported by Bloomberg. The quotes represent
inter-dealer quotations, without adjustment for retail mark-up, markdown or
commission and may not represent actual transactions. The trading
volume of our securities fluctuates and may be limited during certain
periods. As a result of these volume fluctuations, the liquidity of
any investment in our securities may be adversely affected.
Year Ended December 31,
2009
|
|
High
|
|
|
Low
|
|
||
|
|
|
|
|
|
|
||
March
31, 2009
|
|
$
|
0.88
|
|
|
$
|
0.26
|
|
June
30, 2009
|
|
$
|
0.53
|
|
|
$
|
0.25
|
|
September
30, 2009
|
|
$
|
0.83
|
|
|
$
|
0.37
|
|
December
31, 2009
|
|
$
|
0.80
|
|
|
$
|
0.50
|
|
Year Ended December 31,
2008
|
|
High
|
|
|
Low
|
|
||
|
|
|
|
|
|
|
||
March
31, 2008
|
|
$
|
0.90
|
|
|
$
|
0.51
|
|
June
30, 2008
|
|
$
|
1.35
|
|
|
$
|
0.70
|
|
September
30, 2008
|
|
$
|
1.15
|
|
|
$
|
0.30
|
|
December
31, 2008
|
|
$
|
0.90
|
|
|
$
|
0.51
|
|
Holders
of Record
We had
approximately 391 holders of record of our common stock as of December 31,
2009.
Dividends
We have
never paid a cash dividend on our common stock nor do we anticipate paying cash
dividends on our common stock in the near future. It is our present
policy not to pay cash dividends on the common stock but to retain earnings, if
any, to fund growth and expansion. Under Nevada law, a company is
prohibited from paying dividends if the company, as a result of paying such
dividends, would not be able to pay its debts as they become due, or if the
company’s total liabilities and preferences to preferred stockholders exceed
total assets. Any payment of cash dividends on our common stock in
the future will be dependent on our financial condition, results of operations,
current and anticipated cash requirements, plans for expansion, as well as other
factors our board of directors deems relevant.
As of
December 31, 2008, we had four classes of our preferred stock
outstanding. Two of these classes, Series H and Series I, each
accrued an 8% per annum cumulative dividend, and Series J accrued a 6% per annum
cumulative dividend. The aggregate annual dividend payment obligation
in connection with each of our Series H, Series I, and Series J preferred stock
was $1,885, $428,000 and $12,000, respectively. On October 20, 2009, we
converted our Series A, Series I and Series J Preferred Stock into shares of our
common stock, with an effective date of August 31, 2009. A total of 35,000
shares of Series A Preferred Stock were converted into 1,750 shares of common
stock. A total of 535,000 shares of Series I Preferred Stock, plus unpaid
divideds of $557,041, were converted into 19,690,172 shares of common stock. A
total of 20,000 shares of Series J Preferred Stock, plus unpaid dividends of
$8,000, were converted into 693,336 shares of common stock.
16
During
the three months ended March 31, 2009, a preferred shareholder converted 23,588
Series H preferred shares into 58,895 common shares as payment of the Series H
dividend and conversion of their Series H preferred shares.
Securities
Authorized For Issuance Under Equity Compensation Plans
This
information is incorporated by reference to Item 12 of this annual
report.
Recent
Sales of Unregistered Securities
On
November 4, 2008, we commenced a private placement of Units referred to as the
Series J preferred stock. Each $50,000 Unit consisted of 5,000 shares
of Series J 6% Redeemable Convertible Preferred Stock and a Warrant to purchase
up to 14,368 shares of common stock at a price per share of $0.87 which expire
through December 2013. We paid Northeast Securities, Inc., the placement agent
for the sales of the Units, a fee of 8% of the gross proceeds. At the
time of these transactions, O. Lee Tawes, our director, was Executive Vice
President and Head of Investment Banking and a Director at Northeast Securities,
Inc. and David Tsiang, our director, was the Managing Director of
Investment Banking at Northeast Securities, Inc. Our director,
Scott Ricketts, purchased two of the Units on January 11,
2009.
On March
6, 2009, we sold one unit for $100,000 to an accredited investor. The
unit consisted of (i) a $100,000 principal amount of a 12% Subordinated Note and
(ii) warrants to purchase 100,000 shares of our common stock at a price per
share of $0.85 which expire February 2014. The 12% Subordinated Note
matured on the earlier of (i) September 30, 2009; or (ii) upon our consummation
of a debt or equity financing in which we receive at least $5,000,000 in gross
proceeds, referred to as a Qualified Placement or upon a change of control. This
note was converted into Common Stock on August 31, 2009.
As of
March 6, 2009, we sold 3.25 units to accredited investors for gross proceeds of
$325,000, referred to as the February 2009 Bridge Financing B. Each
unit consisted of (i) $100,000 principal amount of 3% Subordinated Notes and
(ii) warrants to purchase 300,000 shares of our common stock at a price per
share of $0.85 which expire February 2014. The 3% Subordinated Notes
matured on the earlier of (i) September 30, 2009, (ii) upon our consummation of
a debt or equity financing in which we receive at least $5,000,000 in gross
proceeds, referred to as a Qualified Placement, or a change of control. These
notes were converted into Common Stock on August 31, 2009.
On March
20, 2009, we entered into a transaction with our Chief Executive Officer and
Chairman of the Board, Eric Skae, whereby we issued to Mr. Skae an 18%
Subordinated Note, with an effective date of March 17, 2009, for a principal
amount of $325,000 and a Warrant to purchase 100,000 shares of our common stock
at an exercise price of $0.85 per share, subject to adjustment, expiring on the
fifth anniversary of the initial issuance date of the Warrant. The Note was due
on April 12, 2009, unless due earlier in accordance with its terms. Interest
accrued on the Note at a rate of 18% per year. Upon an event of
default, the outstanding principal amount, plus accrued but unpaid interest,
liquidated damages and other amounts owed under the Note shall, at the holder’s
election, become immediately due and payable in cash. Commencing five days
after the event of default, the interest rate shall accrue at a rate of 22% per
year, or such lower maximum amount of interest permitted to be charged under
applicable law. Between March 30, 2009 and October 12, 2009, we made
payments to Mr. Skae on outstanding debt, including $325,000 due on the 18%
Note. Pursuant to an agreement between Mr. Skae and our Company, we agreed to
convert accrued interest of $24,119 into 96,476 shares of our common stock,
thereby satisfying this obligation in full. On November 13, 2009,we
issued the 96,476 shares to Mr. Skae.
17
On March
26, 2009, Mr. Tawes, a member of our Board of Directors, provided financing to
our Company in the amount of $113,357 in exchange for (i) a 12% Subordinated
Note; and (ii) warrants to purchase 175,000 shares of our common stock at a
price per share of $0.85, which expire March 26, 2014. The 12% Note was
due September 26, 2009. In October 2009, we agreed to convert the remaining
balance of this Note plus accrued interest, through an agreed upon effective
date of August 31, 2009, into 476,704 shares of our common stock at a conversion
rate of $0.25 per share.
On May 1,
2009, we sold 4.5 units to accredited investors for gross proceeds of $450,000,
referred to as the April 2009 Bridge Financing. Each Unit consisted of (i)
$100,000 principal amount of 3% Subordinated Notes; and (ii) Warrants to
purchase 300,000 shares of our common stock at an exercise price of $0.40 per
share, which expire on April 2014. The 3% Notes matured on the earlier of
(i) September 30, 2009; or (ii) upon our consummation of a business combination
or sale of our assets or other change of control. Effective August
31, 2009, a holder of $83,330 principal amount of a 3% Subordinated Notes agreed
to convert its debt and accrued interest, through an agreed upon effective date
of August 31, 2009, into 336,960 shares of our common stock at a conversion rate
of $0.25 per share. In October 2009, a holder of $87,495 principal amount of a
3% Subordinated Note agreed to convert its debt and accrued interest, through an
agreed upon effective date of August 31, 2009, into 351,460 shares of our common
stock at a conversion rate of $0.25 per share.
On
October 14, 2009, we entered into an Agreement with O. Lee Tawes, a member of
our Board of Directors, whereby Mr. Tawes agreed to convert all of his
outstanding notes in the amount of $2,798,357, including accrued interest,
warrants to purchase 1,369,792 shares of our common stock, and 51,667 shares of
Class I Preferred Stock, into an aggregate of 12,952,190 shares of common stock.
Mr. Tawes will also receive under the Agreement $200,000 in cash, a $150,000 8%
unsecured note due in January 2010, and a warrant to purchase 350,000 shares of
our common stock with an exercise price of $0.25 and an expiration date in
October 2014.
On
October 20, 2009, pursuant to the approval by our preferred stock holders and
the Board of Directors, we filed Certificates of Amendment to the Certificates
of Designation of our Class A Preferred Shares, our Series I 8% Cumulative
Convertible Preferred Stock, and our Series J 6% Redeemable Convertible
Preferred Stock (together, the “Amendments”). The Amendments have the
effect of causing the outstanding shares of our Series A, Series I and Series J
Preferred Stock to be converted into shares of our common stock, with an
effective date of August 31, 2009. Pursuant to the Amendments, we
converted 35,000 shares of Series A Preferred Stock into 1,750 shares of common
stock, 535,000 shares of Series I Preferred Stock plus $557,041 in accrued
dividends into 19,690,172 shares of common stock and 20,000 shares of Series J
Preferred Stock plus $8,000 in accrued dividends into 693,336 shares of common
stock.
On
November 13, 2009, together with our wholly-owned subsidiary Baywood New Leaf
Acquisition, Inc., we entered into a Settlement Agreement and General Release
with Eric Skae, as an individual, and Skae Beverage International, LLC, a
Delaware limited liability company, referred to as the Settlement
Agreement. At the time of the transaction, Mr. Skae was our Chief
Executive Officer and Chairman of the Board. Pursuant to the Settlement
Agreement, Mr. Skae on his own behalf and on behalf of Skae Beverage
International, LLC, as its sole control person, agreed to terminate existing
debt obligations in exchange for the issuance of shares of our common stock.
Additionally, we reduced the exercise price of a total of 395,000 warrants
held my Mr. Skae to $0.25 per share which Mr. Skae agreed to exercise
immediately, some on a cashless basis and the remaining shares using a portion
of the amount owed to Mr. Skae from outstanding debt obligations. We
anticipate issuing Mr. Skae 140,327 shares of common stock from the exercise of
these warrants. After reducing outstanding amounts owed to Mr. Skae by
$37,357 for the exercise price of a portion of the warrants, we agreed to issue
Mr. Skae an aggregate of 4,742,356 shares of our common stock in satisfaction
and termination of the obligations underlying the $1,000,000 Note, the $100,000
Note, accrued and unpaid interest on these notes, and accrued and unpaid
interest on the $200,000 Note and $325,000 Note, which on November 13, 2009,
were deemed satisfied in full and terminated. The effect of these transactions
are reflected in the financial statement as part of the balance sheet
restructuring.
18
On
November 24, 2009, we completed a private placement of 15 Units. Each Unit
consisted of $100,000 principal amount of 10% Senior Secured Notes and 24,000
shares of our common stock. The Units were sold to accredited investors in
exchange for $100,000 per Unit. Our gross proceeds from the private placement
were $1,500,000 and we agreed to issue an aggregate of $1,500,000 principal
value of Notes and 360,000 shares of our common stock. The
Notes bear interest at a rate of 10% per year and are payable monthly beginning
on December 21, 2009 and thereafter payable on the 19th of
each month or, if the 19th is
not a business day, payable on the next business day. The Notes mature on
May 24, 2010 or in the event of (i) the consummation by our Company of
a merger, business combination, sale of all or substantially all of the
Company’s assets or other change of control; or (ii) our Company securing a bank
financing for working capital and when accomplished the funds will first be used
to pay off the note holders fully. If the bank financing does not materialize or
is insufficient to pay the Notes, future financings will first be used to pay
off the notes or (iii) following the closing of any equity or debt financing
(but excluding a Friends and Family Offering or Operational Finance) by our
Company. In addition, a Friends and Family Offering (defined as a Company
marketed best-efforts equity offering of up to $1,500,000 that closes by January
15, 2010) will not require a prepayment of the Notes and an Operational Finance
(defined as any financing for normal daily operations) will not require a
prepayment of the Notes.
As of
December 31, 2009, we have agreed to convert an aggregate of $6,924,106 of notes
and accrued interest from related parties into an aggregate of 27,696,450 shares
of our common stock. Additionally, we have received $301,588 from warrant
holders for the exercise of 1,206,354 warrants into our common stock at an
exercise price of $0.25 per share. Other warrant holders used a
cashless exercise feature in their warrants to convert warrants to purchase
3,232,707 shares of our common stock into 1,847,169 shares of our common
stock.
On
February 22, 2010, we closed a private placement of common stock and warrants
with certain accredited investors. Pursuant to the private placement, we
sold an aggregate of 1,988,889 shares of our common stock, plus
warrants to purchase 1,057,727 shares of our common stock at an exercise price
of $0.55 per share, subject to adjustment. Gross proceeds from the private
placement were approximately $895,000.
On
January 28, 2010, we agreed with certain vendors and converted their trade
payable in the amount of $85,000 into 170,000 shares of our common
stock.
On
February 22, 2010, we agreed to issue for services rendered 3,000,000 shares of
common stock, which consist of 2,000,000 shares on February 24, 2010 and the
remaining 1,000,000 shares on May 22, 2010.
On
February 24, 2010, we agreed with certain vendors to convert their trade
payables in the amount of $83,781 into 206,043 shares of our common
stock.
On
February 24, 2010, we agreed to issue for services rendered a warrant for
150,000 shares of our common stock with a exercise price of $0.49 per share and
an expiration date of March 2015.
19
With
respect to the issuance of our securities as described above, we relied on the
Section 4(2) exemption from securities registration under the federal securities
laws for transactions not involving any public offering. No advertising or
general solicitation was employed in offering the securities and the securities
were sold to accredited investors. The securities were offered for investment
purposes only and not for the purpose of resale or distribution and the transfer
thereof was restricted by us.
ITEM 7 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
We
develop, market and distribute healthy and functional ready-to-drink teas under
the New Leaf® brand. We focus primarily on functional ready-to-drink
beverages, which include ready-to-drink teas and other functional
drinks.
Prior to
October 9, 2009, we operated under the name of Baywood International, Inc.
through the combination of a nutraceutical subsidiary named Nutritional
Specialties, Inc., that promoted the LifeTime® and Baywood nutraceutical brands,
and a premium ready-to-drink tea subsidiary that promoted the New Leaf
brand. The LifeTime brand was acquired in March 2007 with the
acquisition of Nutritional Specialties, Inc. and the New Leaf brand was acquired
in September 2008 with the acquisition of Skae Beverage International,
LLC.
On July
23, 2009 and subject to shareholder approval, our Board of Directors unanimously
approved entry into an asset purchase agreement with Nutra, Inc., a subsidiary
of Nutraceutical International Corporation, a Delaware corporation (the “Asset
Sale”) to sell substantially all the rights and assets our subsidiary,
Nutritional Specialties, Inc. including the Lifetime ® and Baywood brands of
products. On July 24, 2009, we entered into an asset purchase
agreement, and submitted to a vote for approval by our
stockholders. On August 6, 2009, a majority of our stockholders
approved the Asset Sale. The Asset Sale closed on October 9,
2009.
Pursuant
to the Asset Sale, we sold substantially all of the rights and assets of our
subsidiary, Nutritional Specialties, Inc., including but not limited to our
accounts, notes and other receivables, inventory, tangible assets, rights
existing under assigned purchase orders, proprietary rights, government
licenses, customer lists, records, goodwill and assumed
contracts. Certain rights and assets were excluded from the purchased
assets, including the right to market, sell and distribute
beverages. In addition, pursuant to the close of the Asset Sale,
certain assets of Nutritional Specialties, Inc. were evaluated at closing to see
if they had a minimum net asset value as of the closing date, after giving
effect to normal generally accepted accounting principles, adjustments for
reserves and except for routine reductions related to normal amortization and
depreciation, equal to $1,848,604. If the net asset value was greater
or less than $1,848,604 at the closing, the purchase price payable at closing
would be increased or decreased by the amount of such difference on a
dollar-for-dollar basis. At closing, the net asset value was
$2,176,411 and therefore the initial purchase price of $8,250,000 was increased
by $327,807. Included in this purchase price is a $250,000 hold-back,
of which the proceeds are being held by Nutra, Inc. No later than six
months after the closing date, or April 9, 2010, if Nutra, Inc. determines that
there is a material difference between the actual net asset value and the net
asset value at closing, it may prepare a written statement setting forth the
calculation of the actual net asset value and that amount may be deducted from
the hold-back. We believe that all of these funds will be
received. This amount is reflected as escrow deposit on sale of
discontinued operations as of December 31, 2009 in the accompanying consolidated
balance sheet.
20
Following
the October 9, 2009 closing of the Asset Sale, we no longer develop, market or
distribute nutraceutical products. We now focus primarily on
functional ready-to-drink beverages, including ready-to-drink teas and other
functional drinks. Effective October 16, 2009, we changed our name
from Baywood International, Inc. to New Leaf Brands, Inc., to reflect the change
in our strategic direction.
Following
the closing of the Asset Sale, our Chief Executive Officer, Eric Skae, agreed
to continue in his role at our Company and we plan to continue to rely on
Mr. Skae’s 15 years of experience and expertise in the beverage
industry. In order to take advantage of synergies, improve
coordination and increase efficiencies, we intend to consolidate our
Arizona-based corporate office operations and support functions and our New York
operation into one location. We have selected Old Tappan, New Jersey
as our new corporate headquarters. We intend to begin consolidation
in the first quarter of 2010 and we expect it to be completed during the second
quarter of 2010. We intend to move all accounting, operations,
corporate communications and marketing support functions to our new headquarters
to streamline corporate operations.
CRITICAL ACCOUNTING
POLICIES
We have
identified the policies below as critical to our business operations and the
understanding of our results of operations. The impact and any
associated risks related to these policies on our business operations are
discussed throughout this section.
Use of
Estimates
The
preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those
estimates.
Revenue Recognition, Sales
Returns and Allowances
We
recognize revenue when the product is shipped. Sales returns are
recorded as a reduction to sales when we agree with a customer that a return is
warranted. All returns must be authorized in advance and must be
accompanied by an invoice number within 180 days. Our customers are
responsible for returning merchandise in resalable condition. Full
credit cannot be given for merchandise that has been defaced, marked, stamped,
or priced in any way. All price tags and glue residue must be removed
prior to return. Management communicates regularly with customers to
compile data on the volume of product being sold to the end
consumer. This information is used by management to evaluate the need
for additional sales returns allowance prior to the release of any financial
information. Our experience has been such that sales returns can be
estimated accurately based on feedback within 30 days of customer
receipt.
Reserves
The
following table summarized the activity in the reserves for allowance for
doubtful accounts for the years ended December 31:
Period
|
Balance
beginning of the year
|
Charges
to cost and expenses
|
Deductions
|
Balance
end of the year
|
||||
December
31, 2009
|
$
|
256,323
|
$
|
57,364
|
$
|
223,687
|
$
|
90,000
|
December
31, 2008
|
$
|
2,166
|
$
|
274,485
|
$
|
20,328
|
$
|
256,323
|
21
Inventories
Inventories
consist primarily of raw material and finished product and are recorded at the
lower of cost or market on an average cost basis. Raw material includes:
material, packaging and labeling materials. We do not process raw materials, but
rather have third-party suppliers formulate, encapsulate and package finished
goods.
We
analyze inventory for possible obsolescence on an ongoing basis, and provides a
write down of inventory costs when items are no longer considered to be
marketable. Our estimate of a fair market value is inherently subjective
and actual results could vary from our estimate, thereby requiring future
adjustments to inventories and results of operations.
December
31 2009
|
December
31, 2008
|
|||||||
Raw
material
|
$ | 91,352 | $ | 289,948 | ||||
Finished
goods
|
394,537 | 927,202 | ||||||
$ | 485,889 | $ | 1,217,150 |
Goodwill and other
intangibles
Goodwill
and other intangible assets resulted from the March 30, 2007 acquisition of
certain net assets from Nutritional Specialties, Inc. and the September 9, 2008
acquisition of certain net assets from Skae Beverage International,
LLC. The terms for the acquisition of Skae Beverage
International Inc. included an earn-out. During 2009, the amount of
the earn-out was $260,000 and was added to the Brand Value – New Leaf Tea, as
the original valuation indicated the brand value exceeded the purchase price.
Goodwill and intangible assets consisted of the following at December 31, 2009
and December 31, 2008.
Goodwill-
Nutritional Specialties, Inc.
|
Brand
Value – Nutritional Specialties, Inc.
|
Brand
Value – New Leaf Tea
|
Customer
list- Nutritional Specialties, Inc.
|
Total
|
||||||||||||||||
Asset
value at December 31, 2008
|
$
|
8,917,068
|
$
|
303,400
|
$
|
4,500,824
|
$
|
322,600
|
$
|
14,043,892
|
||||||||||
Accumulated
amortization as of December 31, 2008
|
$
|
-
|
$
|
53,092
|
$
|
112,500
|
$
|
112,913
|
$
|
278,505
|
||||||||||
Net
asset value at December 31, 2008
|
$
|
8,917,068
|
$
|
250,308
|
$
|
4,388,324
|
$
|
209,687
|
$
|
13,765,387
|
||||||||||
Asset
value at December 31, 2009
|
$
|
-
|
$
|
-
|
$
|
4,760,824
|
$
|
-
|
$
|
4,760,824
|
||||||||||
Accumulated
amortization as of December 31, 2009
|
$
|
-
|
$
|
-
|
$
|
562,500
|
$
|
-
|
$
|
562,500
|
||||||||||
Net
asset value at December 31, 2009
|
$
|
-
|
$
|
-
|
$
|
4,198,324
|
$
|
-
|
$
|
4,198,324
|
We
evaluate goodwill for potential impairment on an annual basis or whenever events
or circumstances indicate that an impairment may have occurred in accordance
with the provisions of Goodwill and Other Topic of the Codification
(ASC Topic 350-10), which requires that goodwill be tested for impairment using
a two-step process. The first step of the goodwill impairment test, used to
identify potential impairment, compares the estimated fair value of the
reporting unit containing our goodwill with the related carrying amount. If the
estimated fair value of the reporting unit exceeds its carrying amount, the
reporting unit’s goodwill is not considered to be impaired and the second step
is unnecessary. On October 9, 2009, we completed the sale of the Lifetime and
Baywood brands of products.
22
The brand
value (including Trademarks and Trade Names) of continuing operations are being
amortized over a ten year period. Amortization expense for the years
ended December 31, was $450,000 for 2009 and $ 112,500 for
2008. The aggregate amortization expense for the future years is as
follows:
Year
|
Amortization
|
|||
2010
|
$ | 482,500 | ||
2011
|
482,500 | |||
2012
|
482,500 | |||
2013
|
482,500 | |||
2014
|
482,500 | |||
Thereafter
|
1,785,824 | |||
Total
|
$ | 4,198,324 |
Derivatives
As part
of certain note and warrant agreements, we provided holders with the option to
convert the note or exercise the warrant into our common stock at a specified
strike price. In order to prevent dilution, if the new strike price is lower
than the original strike price on the day of conversion or exercise, the strike
price will be lowered to the new conversion or exercise price. Under
the Derivatives and Hedging Topic of the Codification, ASC Topic 815-40, we
determined that these types of down round protection terms are considered
derivatives.
We
originally estimated the fair value of these warrants using a
Black-Scholes-Merton valuation model. The same valuation model approach is
applied to the market price of our common stock at January 1, 2009 and December
31, 2009 to determine the amount of the derivative relative to the down round
protection. The fair value of these derivatives at January 1, 2009 was $4,000
and at December 31, 2009 was $110,000. The change in this derivative value of
$106,000 was included in the consolidated statement of operations as a change in
fair value of derivative payable for the year ended December 31, 2009. We
consider these derivative instruments as used for the purpose of securing
financing.
In August
2009, pursuant to agreements between us and individual warrant holders, we
offered the warrant holders the opportunity to exercise their warrants at an
exercise price of $0.25 per share or to exercise their remaining warrants on a
cashless basis into common shares.
Additionally,
pursuant to agreements between us and individual note holders, we offered the
note holders a lower conversion price of certain outstanding notes and accrued
interest to $0.25, with an effective date of August 31, 2009. We completed the
conversion of the notes into common stock for those investors who agreed to
exercise this conversion right utilizing the reduced conversion
price.
Certain
notes issued by us were convertible at the option of the holder. These notes
were fully paid or converted to common stock in the fourth quarter of 2009. The
fair value of these derivatives at January 1, 2009 was $2,000 and was charged to
retained earnings as a cumulative effect of adopting ASC Topic 815-40. The
change in fair value of the derivatives to zero as of December 31, 2009 was
included in financing cost for the year then ended. We consider these derivative
instruments as used for the purpose of securing financing.
23
We have a
note agreement with a related party that specifies that if we are in default, we
must pay the holder additional compensation. The fair value of this
derivative at January 1, 2009 was $2,000 and was charged to retained earnings as
a cumulative effect of adoption ASC Topic 815-40. The fair value at December 31,
2009 was zero. The change in this derivative value of $2,000 was included in
financing cost for the year then ended. We consider this derivative instrument
as used for the purpose of securing financing.
Stock-Based
Compensation
Under the
Compensation Topic of the Codification, of ASC Topic 718-10, we are
required to measure the cost of employee services received in exchange for all
equity awards granted including stock options based on the fair market value of
the award as of the grant date.
We
granted stock options and issued restricted stock in the years ended December
31, 2009 and 2008. Accordingly, compensation cost has been recognized
for the stock options and restricted stock granted to employees and vendors in
the years ended December 31, 2009 and 2008 of $468,993 and $345,581
respectively.
The fair
value of each option grant is estimated on the date of grant using the
Black-Scholes option-pricing model with the following assumptions for years
ended December 31:
2009
|
2008
|
|||||
Dividend
yield
|
- | - | ||||
Volatility
|
105%
to 115%
|
103%
to 115%
|
||||
Risk
free interest rate
|
0.32%
to 3.04%
|
1.94%
to 3.62%
|
||||
Estimated
option life
|
3.5
– 7 Years
|
5 –
7 Years
|
||||
Forfeiture
rate
|
8% | 8% |
The
volatility assumption for options and the liquidity discount on restricted stock
is based on management’s estimate reflecting the thinly traded nature of our OTC
securities and the high relative ownership of management and
directors. For 2009, our estimate is based on the monthly changes in
stock price. The estimated option life assumption approximates the
“safe harbor” method described in SAB 107 which considers the weighted average
vesting period and the contractual term. The forfeiture rate
assumption uses our past experience of option participants exercising options
granted as we believe this reflects an accurate estimate of future
activity.
Warrants issued on debt and
beneficial conversion
We
estimate the fair value of each warrant grant on the date of grant using the
Black-Scholes option-pricing model. The warrant estimates are based
on the following assumptions for the years ended December 31:
2009
|
2008
|
|||||
Dividend
yield
|
- | - | ||||
Volatility
|
103%
to 106%
|
99%
to 115%
|
||||
Risk
free interest rate
|
1.97%
to 2.9%
|
2.6%
to 3.0%
|
||||
Term
|
5
years
|
5
years
|
24
We
account for the beneficial conversion feature of debt and preferred stock under
the Debt Topic of the Codification, or ASC Topic 470-20, using intrinsic
value method measure at the date of the note.
Income
Taxes
We
account for income taxes using the asset and liability method under the Income
Taxes Topic of the Codification, or ASC Topic 740-10. Deferred
taxes arise from temporary differences between accounting methods for tax and
financial statement purposes. We establish a valuation allowance for
the uncertainty related to our ability to generate sufficient future taxable
income to utilize the net operating loss carryforwards and other deferred
items. At December 31, 2009, federal net operating loss carryforwards
were approximately $22,700,000, and state net operating loss carryforwards were
approximately $17,000,000. We have not used any of the net operating
loss carryforwards.
Recently Issued Accounting
Standards
On
September 30, 2009, we adopted changes issued by the Financial Accounting
Standards Board, or FASB, to the authoritative hierarchy of Generally Accepted
Accounting Principles, or GAAP. These changes establish the FASB Accounting
Standards Codification, or Codification, as the source of authoritative
accounting principles recognized by the FASB to be applied in the preparation of
financial statements in conformity with GAAP. Rules and interpretive
releases of the Securities and Exchange Commission, or SEC, under authority of
federal securities laws are also sources of authoritative GAAP for SEC
registrants. The FASB will no longer issue new standards in the form of
Statements, FASB Staff Positions, or Emerging Issues Task Force Abstracts;
instead, the FASB will issue Accounting Standards Updates. Accounting
Standards Updates will not be authoritative in their own right as they will only
serve to update the Codification. These changes and the Codification itself do
not change GAAP. Other than the manner in which new accounting
guidance is referenced, the adoption of these changes had no impact on the
consolidated financial statements.
In June
2008, the FASB ratified the Emerging Issues Task Force, or EITF, Issue No.
07-05, Determining Whether an Instrument (or Embedded Feature) is Indexed to an
Entity's Own Stock, or EITF No. 07-05. EITF No. 07-05 was issued to
clarify the determination of whether an instrument including an embedded feature
is indexed to an entity's own stock, which would qualify as an exception under
SFAS No. 133, Accounting for Derivative Instruments and Hedging
Activities. EITF No. 07-05 is effective for financial statements
issued for fiscal years beginning after December 15, 2008. Early
adoption for an existing instrument is not permitted. This topic is
under the Derivatives and Hedging Topic of the Codification, or ASC Topic
815-10, and the Company reflected a $4,000 cumulative effect of restatement for
the period ending December 31, 2008.
In May
2008 the FASB issued Staff Position APB 14-1, Accounting for Convertible Debt
Instruments That May be Settled in Cash upon Conversion (Including Partial Cash
Settlement). APB 14-1 requires companies to separately account for
the liability and equity components of convertible debt instruments to reflect
the nonconvertible debt borrowing rate at fair value. APB 14-1 is
effective for financial statements issued for fiscal years beginning after
December 15, 2008. While early adoption is not permitted, APB 14-1
will apply retrospectively for all periods presented. This topic is under the
Debt Topic of the Codification, or ASC Topic 470-20, and the Company had no
such instruments.
25
RESULTS
OF OPERATIONS
The
following table sets forth our statement of results of operation data as a
percentage of net sales from continuing operations for the years
indicated:
For
the quarter ended,
|
For
the year ended,
|
|||||||||||||||
December 31, |
December
31,
|
December 31, |
December
31,
|
|||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
Continuing
Operations
|
||||||||||||||||
Net
sales
|
$ | 541,564 | $ | 556,171 | $ | 3,457,168 | $ | 799,183 | ||||||||
Cost
of sales
|
396,207 | 402,994 | 2,700,726 | 667,958 | ||||||||||||
Gross
profit
|
145,357 | 153,177 | 756,442 | 131,225 | ||||||||||||
Operating
expenses
|
1,956,397 | 941,482 | 5,974,934 | 2,998,632 | ||||||||||||
(Loss)
from continuing operations
|
(1,811,040 | ) | (788,305 | ) | (5,218,492 | ) | (2,867,407 | ) | ||||||||
Other
income and (expenses), net
|
5,615,279 | (1,118,479 | ) | (3,560,151 | ) | (2,344,724 | ) | |||||||||
Income
(loss) before income taxes
|
3,804,239 | (1,906,784 | ) | (8,778,643 | ) | (5,212,131 | ) | |||||||||
Income
tax provision
|
- | - | - | - | ||||||||||||
Net
income (loss) from continuing operations
|
$ | 3,804,239 | $ | (1,906,784 | ) | $ | (8,778,643 | ) | $ | (5,212,131 | ) |
The nature of our business changed when we sold our nutraceutical businesses on October 9, 2009 and we determined to focus solely on our ready-to-drink beverage business. We acquired our ready-to-drink beverage business when we acquired Skae Beverage International LLC on September 9, 2008. Thus we have included comparison of the quarter ended December 31, 2009 and December 31, 2008, because the fourth quarter is the only quarter over quarter comparison available to date.
Net sales
for the fourth quarter ended December 31, 2009 were $541,564 compared to net
sales of $556,171, for the comparable quarter ended December 31, 2008, a
decrease of 3%. We believe that this decrease was due to short term
out-of-stocks on inventory and the temporary diversion of management's attention
to the sale of our nutraceutical business on October 9, 2009. Our gross profit
margin for the fourth quarter ended December 31, 2009 was 27%, compared to 28%
for the same period last year.
Operating
expenses for the fourth quarter ended December 31, 2009 and 2008 were $1,956,397
and $941,482, respectively. This increase in operating expenses for
the period is primarily due to a $640,000 increase in selling and marketing
expenses in 2009 for planned geographic expansion of the New Leaf brand, a
reduction in administrative expense of $700,000, as well as certain additional
non-cash costs associated with the option and stock compensation cost of
$1,063,000. Operating expenses for the year ended December 31, 2009
and 2008 were $5,974,934 and $2,998,632, respectively. The increase in operating
expense for the year is primarily due to Shipping and Handling of $225,000 and
Marketing of $2,114,000 associated with the full year of cost for the
ready-to-drink beverage business. Administrative expenses declined $443,000 from
professional fees, increase in stock compensation cost of $747,000 for services
and increase of $333,000 depreciation and amortization from the full year of
amortization from the acquisition of New Leaf Brand value.
26
Discontinued
operations for the period ended December 31, 2009 relate to our asset
purchase agreement with Nutra, Inc., a subsidiary of Nutraceutical International
Corporation, a Delaware corporation (the “Asset Sale”) to sell substantially all
the rights and assets of our subsidiary, Nutritional Specialties, Inc. including
the Lifetime ® and Baywood brands of products. On July 24, 2009, we
entered into an asset purchase agreement and submitted it to a vote for approval
by our stockholders. On August 6, 2009, a majority of our
stockholders approved the Asset Sale. The Asset Sale closed on
October 9, 2009.
The
discontinued operations business loss was $1,918,939 which include a impairment
of goodwill charge of $3,250,000 for the period January to October 9, 2009, the
date of sale; and for the year ended December 31, 2008 the discontinued
operations business income was $982,386.
Other
income (expense) for the years ended December 31, 2009 and 2008 was ($3,560,151)
and ($2,344,724), respectively, and was primarily related to debt financing
costs. In the year ended December 31, 2009, interest expense increased because
we issued additional debt, principally through the 2008 and 2009 bridge
financings, totaling approximately $3,265,000 at rates of interest between 3%
-18% plus warrants to purchase shares of our common stock at exercise prices
between $0.40 to $0.85 per share. Our interest expense was incurred from
interest on notes payable to officers, directors, banks and third parties, as
well as from our outstanding bank line of credit. In August 2009, we initiated a
restructuring of our balance sheet by converting our preferred stock and accrued
dividends into common stock, offering to convert debt into common stock and
offering to convert warrants into common stock. The result was
the acceleration of the amortization of debt acquisition cost by $74,951 and the
increase in derivatives cost of $106,000. Other income (expense) for the quarter
ended December 31, 2009 and 2008 was $5,615,279 and ($1,118,479), respectively,
and was primarily related to the fair value of restructuring of $3,362,000, the
recovery of change in derivative payable of $2,700,000, and reduction of debt
financing costs.
There is
no income tax benefit recorded because any potential benefit of the income tax
net operating loss carryforwards has been equally offset by an increase in the
valuation allowance on the deferred income tax asset.
LIQUIDITY
AND CAPITAL RESOURCES
As of
December 31, 2009, we had $2,507,941 in current assets of which $1,754,147, or
70%, was cash and receivables. On average, our receivables are
collected in about 30 days. Total current liabilities at December 31,
2009 totaled $5,100,779, of which $2,291,175, or 45%, represented trade and
operating payables. At December 31, 2009, we had a net working
capital deficiency of $2,592,838. Our need for cash during the year
ended December 31, 2009 was primarily funded through the issuance of debt
totaling approximately $2,793,175; through the net proceeds from the sale of our
subsidiary, Nutritional Specialties, Inc. of $6,120,201; and the issuance of
additional stock of $901,589. As part of the restructuring of our balance
sheet we converted $6,209,963 of notes payable and $1,468,303 of accrued
expenses into 30,336,396 shares of our common stock.
We have
traditionally funded working capital needs through product sales, management of
working capital components of our business, and by cash received from private
offerings of our common stock, preferred stock, warrants to purchase shares of
our common stock and convertible notes.
We
believe that our needs for capital over the next 12 to 24 months could be
minimized if we are able to increase our sales via the introduction of new
products, support our inventory needs and promote our products in the
marketplace. Since our existing operations are capable of absorbing
growth without any significant operational expense, any increases in sales will
allow us to lessen our needs for long-term capital. However, we
intend to aggressively expand our distribution channel more rapidly than in the
past and implement more aggressive advertising programs.
These programs require further investments of capital. The amount and
nature of how we would raise any necessary funds cannot be determined at this
time. It is possible we may not be able to find capital on acceptable
terms. Furthermore, we expect that we will require capital in the next 12 months
to repay certain indebtedness in the amount of approximately
$2,555,000.
The
following table shows the future amortization of debt owed through the end of
fiscal year 2013:
Year
|
Amount
|
|
2010
|
$2,554,908
|
|
2011
|
15,821
|
|
2012
|
17,567
|
|
2013
|
$18,954
|
27
We
believe that our existing cash resources, combined with projected cash flows
from operations may not be sufficient to execute our business plan and continue
operations for the next twelve months. We continue to explore various
longer term capital options which we believe will be necessary to provide for
the growth of our business. Additionally, we are evaluating our
strategic direction aimed at achieving profitability and positive cash
flow. We intend to continue to issue debt or equity securities in
order to raise additional capital. We also intend to engage an
investment banker in the second quarter of 2010 to assist management in raising
additional capital. If we issue additional common stock or securities
that could convert into our common stock, our current stockholders will be
diluted and the trading price of our common stock may
decrease. Additionally, we may not be successful in obtaining
additional financing on acceptable terms, on a timely basis, or at all, in which
case, we may be forced to make further cutbacks or ultimately cease
operations.
Balance Sheet Restructuring
in 2009 and 2010
During
the third quarter ending September 30, 2009, we initiated a restructuring of our
balance sheet by converting our preferred stock and accrued dividends into
common stock, offering to convert debt into common stock and offering to convert
warrants into common stock. Our restructuring has continued through
the fourth quarter of 2009 into the first quarter of 2010. Our goal
in the restructuring was to eliminate as much debt as possible, eliminate
features in our debt and equity instruments that were or might become toxic to
our Company, cure existing defaults in our debt and equity instruments and
prevent future defaults. Additionally, we believed at the time we
initiated the restructuring that we would not be able to meet our obligations
under our debt securities. Finally, we believe a restructured balance
sheet will allow us to raise capital for our Company on more favorable
terms.
On
October 20, 2009, pursuant to the approval by our preferred stock holders and
the Board of Directors, we filed Certificates of Amendment to the Certificates
of Designation of our Class A Preferred Shares, our Series I 8% Cumulative
Convertible Preferred Stock, and our Series J 6% Redeemable Convertible
Preferred Stock (together, the “Amendments”). The Amendments have the
effect of causing the outstanding shares plus accrued dividends of our Series A,
Series I and Series J Preferred Stock to be converted into shares of our common
stock, with an effective date of August 31, 2009. Pursuant to the
Amendments, on October 21, 2009, we converted 35,000 shares of Series A
Preferred Stock into 1,750 shares of common stock, 535,000 shares of Series I
Preferred Stock plus $498,983 in accrued dividends into 19,496,610 shares of
common stock and 20,000 shares of Series J Preferred Stock plus $6,000 in
accrued dividends into 686,668 shares of common stock.
During
the three months ended March 31, 2009, a preferred shareholder converted 23,558
Series H Preferred shares into 58,895 common shares and was issued an additional
1,071 common shares as payment of the Series H dividend of $
942. During the three month period ended March 31, 2009, we issued
75,000 common shares as payment of services rendered. Such shares
were recorded at fair value on the grant date of $1.00 per share.
28
We also
converted certain of our outstanding notes and warrants into our common stock
pursuant to agreements between certain holders and us. The individual
agreements provide that the holders’ existing securities will be exchanged for
new securities and that defaults and obligations under such existing securities,
if any, will be waived. As of December 31, 2009, we have agreed to
convert an aggregate of $4,315,240 of notes and accrued interest from related
parties into an aggregate of 17,260,988 shares of our common stock
and convert an aggregate of $2,608,866 of notes and accrued interest
from related parties into an aggregate of 12,405,870 shares of our common stock.
Additionally, we have received $301,588 from warrant holders for the exercise of
1,206,354 warrants into our common stock at an exercise price of $0.25 per
share. Other warrant holders used a cashless exercise feature in
their warrants to convert those warrants to purchase 3,232,707 shares of our
common stock into 1,847,169 shares of our common stock.
On
April 5, 2007, in connection with the our initial acquisition of
substantially all of the assets, and assumption of certain liabilities, of
Nutritional Specialties, Inc., d/b/a LifeTime ® or LifeTime ® Vitamins, a
California corporation, we entered into agreements to obtain financing through
Vineyard Bank N.A., subsequently succeeded by California Bank & Trust. The
bank financing consisted of a $1,500,000 term loan and a $500,000 revolving line
of credit loan to our Company and Nutritional Specialties, Inc., our
wholly-owned subsidiary. On July 9, 2007, we completed a refinancing
through Vineyard pursuant to which Vineyard, subsequently succeeded by
California Bank & Trust, provided a $2,000,000 term loan to our Company and
Nutritional Specialties, Inc. The loans under the bank financing and the
refinancing were secured by a first priority security interest in all of our
assets. On October 8, 2009, we agreed to pay $3,600,000 and California Bank
& Trust agreed to terminate its rights pursuant to the Business Loan
Agreement, associated Commercial Security Agreement, and Promissory Notes, dated
March 20, 2007 and the Business Loan Agreement, associated Commercial
Security Agreement, and Promissory Note, dated July 9, 2007. Additionally,
California Bank & Trust agreed to remove the liens on our assets. On
October 9, 2009, we paid $3,600,000 to California Bank & Trust who then
terminated its rights and removed its lien as described herein.
Under the
2007 Registration Rights Agreement between us and certain stockholders, we are
obligated to pay penalties of up to $42,000 per month, up to maximum of $420,000
if a registration statement was not filed with the SEC covering our Preferred
Stock, Series I Warrants and the Common Stock underlying the Preferred Stock and
warrants, by May 27, 2007 or was not declared effective within 150 days of the
original issuance of the Preferred Stock and Series I Warrants (August 27,
2007). The registration statement was declared effective on January 25,
2008. Accordingly, the penalty incurred in the approximate amount of
$200,000 was recorded as a liability in the fiscal quarter ended December 31,
2007 and continues to be reflected in the accompanying consolidated balance
sheets.
Financings in 2008 and
2009
On April
4, 2008, we commenced a private placement of Units, referred to as the April
2008 Bridge Financing. Each Unit consisted of (i) $50,000 principal amount of
12% Subordinated Notes; and (ii) warrants to purchase 31,250 shares of our
common stock at an exercise price of $0.80 per share, with an expiration date of
April 4, 2013. The 12% Subordinated Notes matured on the earlier of
(i) 12 months after initial issuance; or (ii) upon our consummation of a debt or
equity financing in which we received at least $3,000,000 in gross proceeds,
referred to as a Qualified Placement, or other change of control. As
of June 11, 2008, the closing date of the offering, we sold 16.6 Units to
qualified investors for gross proceeds of $830,000. Mr. Tawes, a
member of our Board of Directors, participated in this transaction by acquiring
2.5 Units. In August to November 2009, all holders agreed to convert
their debt, through an agreed upon effective date of August 31, 2009, into
3,320,000 shares of our common stock at a conversion rate of $0.25 per share of
which 500,000 shares of Common stock where with a related party.
29
On July
14, 2008, O. Lee Tawes, our director, provided us with financing in the amount
of $200,000 in exchange for a 12% Subordinated Note and warrants to purchase
312,500 shares of common stock at a price per share of $0.80, which will expire
July 14, 2013.
On
September 5, 2008, we commenced a private placement of Units, referred to as the
September 2008 Bridge Financing. Each Unit consisted of (i) $100,000
principal amount of 12% Subordinated Notes and (ii) Warrants to purchase 117,647
shares of common stock at a price per share of $0.85 which expire September 5,
2013. The 12% Subordinated Notes matured on the earlier of (i) September
4, 2009, and (ii) the consummation by us of a debt or equity financing or series
of debt or equity financings in which we receive at least $4,000,000 in gross
proceeds, referred to as a Qualified Placement. The principal amount and accrued
interest on the Subordinated Notes are convertible, at the option of each
investor, into investment in the securities sold in a Qualified Placement, on
the same terms and conditions as other investors in the Qualified Placement.
We have not yet determined the terms of a Qualified Placement and have not
commenced any offers for a Qualified Placement. We paid Northeast
Securities, Inc., the placement agent for the sales of Units in the September
2008 Bridge Financing, a fee of 9% of the gross proceeds, which is accounted for
as debt discount, received by us and warrants to purchase 153,884 shares of our
common stock at a price per share of $0.85 which expire September 5, 2013.
16.35 Units were sold to qualified investors for gross proceeds of
$1,635,000. In October 2009 the holders of $1,485,000 of exercise their put
option on a member of the Board of Directors. On November 13, 2009, in exchange
for forgiveness of $150,000 of the 12% Subordinated Notes, 600,000 shares of
common stock were issued.
On
October 23, 2008, Eric Skae provided financing to us in the amount of $200,000
in exchange for (i) a 12% Subordinated Note and (ii) Warrants to purchase
245,000 shares of common stock at a price per share of $0.85, which will expire
October 23, 2013. At the time of the transaction, Mr. Skae was our
Vice President and a director. On November 13, 2009, in exchange for forgiveness
of the 12% Subordinated Note, the exercise price of the Warrants was reduced to
$0.25 per share of common stock, and 800,000 shares of common stock were issued.
At the time of conversion, Mr. Skae was our Chief Executive Officer and a
director.
On
February 5, 2009, we commenced a private placement of Units, referred to as the
February 2009 Bridge Financing A. Each Unit consisted of (i) $100,000 principal
amount of 12% Subordinated Notes; and (ii) Warrants to purchase 100,000 shares
of our common stock at an exercise price of $0.85 per share, which expire
February 2014. The 12% Notes mature on the earlier of (i) September
30, 2009; or (ii) upon our consummation of a debt or equity financing in which
we receive at least $5,000,000 in gross proceeds, referred to as a Qualified
Placement, business or other change of control. The principal amount
on the 12% Notes are convertible, at the option of each investor, into an
investment in the securities sold in a Qualified Placement, on the same terms
and conditions as other investors in the Qualified Placement. We have
not yet determined the terms of a Qualified Placement and have not commenced any
offers for a Qualified Placement. As of February 11, 2009, the
closing date of the offering, we sold 1 Unit to a qualified investor for gross
proceeds of $100,000. Effective August 31, 2009, the holder of the
$100,000 12% Note agreed to convert its debt, through an agreed upon effective
date of August 31, 2009, into 400,000 shares of our common stock, at a
conversion rate of $0.25 per share.
On
February 5, 2009, we commenced a private placement of Units, referred to as the
February 2009 Bridge Financing B. Each Unit consisted of (i) $100,000
principal amount of 3% Subordinated Notes; and (ii) Warrants to purchase 300,000
shares of our common stock at an exercise price of $0.85 per share, which expire
February, 2014. The 3% Subordinated Notes mature on the earlier of
(i) September 30, 2009; or (ii) upon our consummation of a debt or equity
financing in which we receive at least $5,000,000 in gross proceeds, referred to
as a Qualified Placement, business or other change of control. The principal
amount on the 3% Subordinated Notes are convertible, at the option of each
investor, into an investment in the securities sold in a Qualified Placement, on
the same terms and conditions as other investors in the Qualified
Placement. As of February 11, 2009, we sold 3.25 Units to qualified
investors for gross proceeds of $325,000. Mr. Tawes, a member of our
Board of Directors, participated in this transaction by acquiring .25
Units. Effective August 31, 2009, a holder of $50,000 principal
amount of a 3% Subordinated Note agreed to convert its debt, through an agreed
upon effective date of August 31, 2009, into 200,000 shares of our common stock
at a conversion rate of $0.25 per share. In October 2009 the holders
of $300,000 principal amount of 3% Subordinated Notes agreed to convert their
debt, through an agreed upon effective date of August 31, 2009, into 1,200,000
shares of our common stock at a conversion rate of $0.25 per share.
30
On March
20, 2009, we entered into a transaction with our Chief Executive Officer and
Chairman of the Board, Eric Skae, whereby we issued to Mr. Skae an 18%
Subordinated Note, with an effective date of March 17, 2009, for a principal
amount of $325,000 and a Warrant to purchase 100,000 shares of our common stock
at an exercise price of $0.85 per share, subject to adjustment, expiring on the
fifth anniversary of the initial issuance date of the Warrant. The
Note was due on April 12, 2009, unless due earlier in accordance with its terms.
Interest accrues on the Note at a rate of 18% per year. Upon an
event of default, the outstanding principal amount, plus accrued but unpaid
interest, liquidated damages and other amounts owed under the Note shall, at the
holder’s election, become immediately due and payable in
cash. Commencing five days after the event of default, the interest
rate shall accrue at a rate of 22% per year, or such lower maximum amount of
interest permitted to be charged under applicable law. Between March
30, 2009 and October 12, 2009, we made payments to Mr. Skae on outstanding debt,
including $325,000 due on the 18% Note. Pursuant to an October 2009
agreement between Mr. Skae and our Company, we agreed to convert accrued
interest of $24,119 into 96,476 shares of our common stock, thereby satisfying
this obligation in full.
On March
26, 2009, Mr. Tawes, a member of our Board of Directors, provided financing to
our Company in the amount of $113,357 in exchange for (i) a 12% Subordinated
Note; and (ii) Warrants to purchase 175,000 shares of our common stock at a
price per share of $0.85, which expire March 26, 2014. The 12% Note
was due September 26, 2009. In October 2009, we agreed to convert the
remaining balance of this Note plus accrued interest, through an agreed upon
effective date of August 31, 2009, into 476,704 shares of our common stock at a
conversion rate of $0.25 per share.
On April
29, 2009, we commenced a private placement of Units, referred to as the April
2009 Bridge Financing. Each Unit consisted of (i) $100,000 principal
amount of 3% Subordinated Notes; and (ii) Warrants to purchase 300,000 shares of
our common stock at an exercise price of $0.40 per share, which expire on April
2014. The 3% Notes mature on the earlier of (i) September 30, 2009;
or (ii) upon our consummation of a business combination or sale of our assets or
other change of control. As of May 1, 2009, the closing of the offering,
we sold 4.5 Units to qualified investors for gross proceeds of
$450,000. Effective August 31, 2009, a holder of $83,330 principal
amount of a 3% Subordinated Notes agreed to convert its debt, through an agreed
upon effective date of August 31, 2009, into 333,320 shares of our common stock
at a conversion rate of $0.25 per share. In October 2009, a holder of $87,495
principal amount of a 3% Subordinated Note agreed to convert its debt, through
an agreed upon effective date of August 31, 2009, into 349,980 shares of our
common stock at a conversion rate of $0.25 per share.
31
On
November 24, 2009, we completed a private placement of 15 Units. Each
Unit consisted of $100,000 principal amount of 10% Senior Secured Notes,
referred to as “Notes,” and 24,000 shares of our common stock. The
Units were sold to accredited investors in exchange for $100,000 per
Unit. Our gross proceeds from the private placement were $1,500,000
and we agreed to issue an aggregate of $1,500,000 principal value of Notes and
360,000 shares of our common stock. The Notes bear interest at a rate
of 10% per year and are payable monthly. The Notes mature on May 24, 2010
or in the event of (i) the consummation by the Company of a merger, business
combination, sale of all or substantially all of the Company’s assets or other
change of control; or (ii) the Company securing a bank financing for working
capital and when accomplished the funds will first be used to pay off the note
holders fully. If the bank financing does not materialize or is insufficient to
pay the Notes, future financings will first be used to pay off the notes or
(iii) following the closing of any equity or debt financing (but excluding a
Friends and Family Offering or Operational Finance) by the Company. In addition,
a Friends and Family Offering (defined as a Company marketed best-efforts equity
offering of up to $1,500,000 that closes by January 15, 2010) will not require a
prepayment of the Notes and an Operational Finance (defined as any financing for
normal daily operations) will not require a prepayment of the
Notes. The Company has the right to redeem all or a portion of the
Notes for cash at any time without premium or penalty. The
obligations of the Company under the Notes are secured by all accounts
receivable and inventory present and after acquired of the Company and each
subsidiary to be shared on a pari-passu basis relative to the number of Notes
purchased by each Holder up to an aggregate total of $1,500,000 plus any accrued
and outstanding interest on the Notes.
On
February 22, 2010, we closed a private placement of common stock and warrants
with certain accredited investors. Pursuant to the private placement, we
agreed to issue and sell to the investors, and the investors agreed to purchase,
an aggregate of 1,988,889 shares of our common stock, par value $0.001 per share
plus warrants to purchase 1,057,727 shares of our common stock at an exercise
price of $0.55 per share, subject to adjustment. Gross proceeds from
the private placement were approximately $895,000.
GOING
CONCERN
Our
consolidated financial statements have been prepared in accordance with U. S.
generally accepted accounting principles applicable to a going concern, which
contemplates the realization of assets and the satisfaction of liabilities and
commitments in the normal course of business. As reflected in the
consolidated financial statements included in this annual report, we had a
working capital deficiency of $2,592,837 at December 31, 2009. We
have had material operating losses and have not yet created positive cash
flows. These factors raise substantial doubt about our ability to
continue as a going concern. We cannot provide any assurance that
profits from operations will generate sufficient cash flow to meet our working
capital needs and service our existing debt. The consolidated
financial statements do not include adjustments related to the recoverability
and classification of asset carrying amounts or the amount and classification of
liabilities that might result should we be unable to continue as a going
concern.
OFF-BALANCE
SHEET ARRANGEMENTS
As of
December 31, 2009, we have no off-balance sheet arrangements that have or are
reasonably likely to have a current or future material effect on our financial
condition, changes in financial condition, revenues or expenses, results of
operations, liquidity, capital expenditures or capital resources.
32
ITEM
8 - FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Statement
of Information Furnished
The
accompanying consolidated financial statements have been prepared in accordance
with Form 10-K instructions for a smaller reporting company and in the opinion
of management contain all adjustments necessary to present fairly the
consolidated financial position as of December 31, 2009 and 2008, the results of
operations for the years ended December 31, 2009 and 2008, and cash flows for
the years ended December 31, 2009 and 2008. These results have been
determined on the basis of U.S. generally accepted accounting principles and
practices applied consistently.
Effective
October 20, 2008, we dismissed our principal independent accountant Malone &
Bailey, PC (“M&B”). Our Board of Directors approved the decision to dismiss
M&B.
Except as
reported in the Annual Report on Form 10-K for the fiscal year ended December
31, 2007, which stated that “[t]he accompanying consolidated financial
statements have been prepared assuming that the Company will continue as a going
concern and that “the Company has suffered recurring losses from operations and
has a working capital deficiency, which raises substantial doubt about its
ability to continue as a going concern,” the report of M&B on the Company’s
financial statements for the fiscal year ended December 31, 2007 did not contain
an adverse opinion or a disclaimer of opinion and was not qualified or modified
as to uncertainty, audit scope or accounting principles.
In
connection with the audit of our financial statements for the fiscal year ended
December 31, 2007, and in the subsequent interim periods through October 20,
2008, there were no disagreements with M&B on any matter of accounting
principles or practices, financial statement disclosure or auditing scope or
procedure which, if not resolved to the satisfaction of M&B, would have
caused M&B to make reference to the subject matter of the disagreement in
connection with its report.
Effective
October 20, 2008, we engaged Mayer Hoffman McCann P.C. to act as our principal
independent accountant. Our Board of Directors approved the decision to engage
Mayer Hoffman McCann P.C.
Pursuant
to Section 404 of the Sarbanes-Oxley Act of 2002 management is required to
provide information on our internal control over financial reporting including
that the Company’s management is responsible for establishing and maintaining
adequate internal control over financial reporting and the Company’s management
has evaluated the system of internal control using the Committee of Sponsoring
Organizations of the Treadway Commission, or COSO, framework for its evaluation.
The COSO control framework is recognized by the SEC.
Evaluation
of Disclosure Controls and Procedures
Our
management evaluated, with the participation of our principal executive officer
and principal financial officer, the effectiveness of our disclosure controls
and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) as of the end of the
period covered by this annual report on Form 10-K. Based on this evaluation, our
management concluded that our disclosure controls and procedures, including
internal control over financial reporting, were not effective as of December 31,
2009 to ensure that information we are required to disclose in reports that we
file or submit under the Exchange Act (i) is recorded, processed, summarized and
reported within the time periods specified in Securities and Exchange Commission
rules and forms, and (ii) is accumulated and communicated to our management,
including our principal executive officer and principal financial officer, as
appropriate to allow timely decisions regarding required
disclosure. Our disclosure controls and procedures are designed to
provide reasonable assurance that such information is accumulated and
communicated to our management. Our disclosure controls and
procedures include components of our internal control over financial reporting.
In designing and evaluating our disclosure controls and procedures, management
recognizes that any controls, no matter how well designed and operated, can
provide only reasonable, but not absolute, assurance that misstatements due to
error or fraud will not occur or that all control issues and instances of fraud,
if any, with our Company have been detected.
Our
management identified a control deficiency during 2007 that continued to exist
in the years ended December 31, 2008 and 2009 because we lacked adequate
controls in place to properly evaluate and account for all the complex
characteristics of the debt transactions executed by our Company in accordance
with U.S. generally accepted accounting principles. In addition,
management concluded that there were not adequate controls in place to properly
evaluate and account for stock-based awards issued by our Company in accordance
with U.S. generally accepted accounting principles.
33
These
deficiencies are the result of the complexity of the individual debt and equity
transactions entered into by our Company and the limited amount of personnel
available to provide for the proper level of oversight needed in accounting for
these transactions. Management has determined that these control deficiencies
represent material weaknesses. In addition, we lacked sufficient staff to
segregate accounting duties. The initial draft of the quarterly
report on Form 10-Q for the period ended June 30, 2009 did not reflect assets
held for sale. Based on our review of our accounting controls and procedures, we
believe this control deficiency resulted primarily because we have one person
performing all accounting-related duties. As a result, we did not
maintain adequate segregation of duties within our critical financial reporting
applications. Management believes these are “material weaknesses.”
A
material weakness is defined as a deficiency, or combination of deficiencies in
internal control, such that there is a reasonable possibility that a material
misstatement of the entity’s financial statements will not be prevented, or
detected and corrected on a timely basis. A significant deficiency is a
deficiency, or a combination of deficiencies, in internal control that is less
severe than a material weakness, yet important enough to merit attention by
those charged with governance.
In
preparing our financial statements and in reviewing the effectiveness of the
design and operation of our internal accounting controls and procedures and our
disclosure controls and procedures for the year ended December 31, 2009, we
performed transaction reviews and control activities in connection with
reconciling and compiling our financial records for the year ended December 31,
2009. These reviews and procedures were undertaken in order to
confirm that our financial statements for the year ended December 31, 2009 were
prepared in accordance with generally accepted accounting principles, fairly
presented and free of material errors.
Our
management is in the process of actively addressing and remediating the material
weaknesses in internal control over financial reporting described
above. During 2009, we undertook actions to remediate the material
weaknesses identified, including installation of a new ERP software system to
allow for appropriate checks and reviews of internal control record-keeping and
reporting.
We
believe that the steps outlined above will strengthen our internal control over
financial reporting and address the material weaknesses described above. Our
management will test and evaluate additional controls to be implemented in 2010
to assess whether they will enhance the operating effectiveness of our internal
control environment. However we continue to have only one person who
performs our accounting and reporting functions.
We intend
to continue to remediate material weaknesses and enhance our internal controls,
but cannot guarantee that our efforts will result in remediation of our material
weakness or that new issues will not be exposed in this process.
This
annual report does not include an attestation report of our independent
registered public accounting firm regarding internal control over financial
reporting. Such internal control over financial reporting was not
subject to attestation by our registered public accounting firm pursuant to the
temporary rules of the Securities and Exchange Commission that permit us to
provide only management’s report in this annual report.
34
Changes
in Internal Control Over Financial Reporting
There
were no changes in our internal control over financial reporting that occurred
during our last fiscal quarter that have materially affected, or are reasonably
likely to materially affect, our internal control over financial
reporting.
Our
management is in the process of actively addressing and remediating the material
weaknesses in internal control over financial reporting described
above. During 2010, we intend to undertake actions to remediate the
material weaknesses identified, including implementation of a new recordkeeping
system, hiring additional staff to allow for appropriate checks and reviews of
internal control record-keeping and reporting.
We intend
to continue to remediate material weaknesses and enhance our internal controls,
but cannot guarantee that our efforts will result in remediation of our material
weakness or that new issues will not be exposed in this process.
None.
PART III
Set forth
below is certain information with respect to the individuals who are our
directors and executive officers as of December 31, 2009.
Name
|
Age
|
Position(s) or Office(s)
Held
|
||
Eric
Skae (1)
|
46
|
Chairman
of the Board, President, and Chief Executive Officer
|
||
Neil
Reithinger (2)
|
40
|
Director,
Chief Financial Officer, and Chief Operating Officer
|
||
O.
Lee Tawes, III
|
61
|
Director
|
||
David
Tsiang
|
47
|
Director
|
||
Neil
Russell
|
62
|
Director
|
||
Scott
Ricketts
|
60
|
Director
|
_____________________
1 Mr.
Skae joined our
Company on September 8, 2008. On January 8, 2009, Mr. Skae was
appointed President and Chief Operating Officer of our Company. On
March 4, 2009, Mr. Skae was appointed Chief Executive Officer of our
Company. Mr. Skae has
served as our
director since September 28, 2008 and was appointed Chairman of the Board on
March 4, 2009.
2. Mr. Reithinger
served as our President, Chairman of the Board and Chief Executive Officer from
April 3, 1998 until March 4, 2009; our Chief Financial Officer from October 28,
1996 until January 7, 2010 and our Chief Operating Officer from March 4, 2009
until January 7, 2010 . Mr. Reithinger has also served as a director
from February 18, 1997 until January 7, 2010.
The
following is a summary of the business experience of our directors and
officers:
35
ERIC SKAE
joined our Company on September 8, 2008.. On January 8, 2009, Mr.
Skae was appointed President and Chief Operating Officer of our
Company. On March 4, 2009, Mr. Skae was appointed Chief Executive
Officer of our Company. Mr. Skae has served as our
director since September 28, 2008 and was appointed Chairman of the Board on
March 4, 2009. Prior to joining our Company, Mr. Skae founded Skae Beverage
International, LLC as Midnight Sun Brands, LLC in October 2002. He
has spent the past fifteen years in the beverage industry working in
senior-level sales, marketing and distribution roles. From 1999 to
2002, Mr. Skae worked as President and General Manager of Fresh Solutions, Inc.,
a Division of Saratoga Beverage Group. While there he was responsible
for a $25 million distribution business as well as advising the CEO on the
company’s sale to North Castle Partners. He also was responsible for
rolling out the Naked Juice brand. From 1997 to 1999, Mr. Skae was
Director of Sales at Fresh Samantha Inc. where he managed 7 distribution
centers, was responsible for 70% of company’s sales and assisted the company
grow from $5 million in total sales to $45 million in 2 ½
years. Prior to that from 1996 to 1997, he was Vice-President of
National Accounts at Hansen Beverage Company where he secured and managed
National Accounts such as Seven Eleven, Walgreens, Circle K, Publix, Giant
Foods, Mobil, Chevron, Texaco and Quik Trip. He also managed all
Canadian business. From 1993 to 1996, Mr. Skae was a Regional Manager
at Arizona Beverages where he managed the Mid-Atlantic region from $2 million to
$10 million in sales in 2 years. Mr. Skae graduated from Northwood
University with a Bachelors degree in Business Administration.
NEIL
REITHINGER has served as our President, Chairman of the Board and Chief
Executive Officer from April 3, 1998 until March 4, 2009; our Chief Financial
Officer from October 28, 1996 until January 7, 2010 and our Chief Operating
Officer from March 4, 2009 until January 7, 2010 . Mr. Reithinger has
also served as a director from February 18, 1997 until January 7,
2010. Prior to joining us, and from July 1992 to December 1993, Mr.
Reithinger worked for Bank of America. Mr.
Reithinger received a Bachelor’s degree in accounting from the
University of Arizona in 1992 and received his certification as Certified Public
Accountant in 1996.
O. LEE
TAWES, III has been a director since March 1, 2001. He is Executive
Vice President and Head of Investment Banking and a Director, at Northeast
Securities, Inc. From 2000 to 2001 he was Managing Director of Research for C.E.
Unterberg, Towbin, an investment and merchant banking firm specializing in high
growth technology companies. Mr. Tawes spent 20 years at Oppenheimer
& Co. Inc. and CIBC World Markets, where he was Director of Equity Research
from 1991 to 1999. He was also Chairman of the Stock Selection
Committee at CIBC, a member of the firm’s Executive Committee and Commitment
Committee. From 1972 to 1990, Mr. Tawes was an analyst covering the
food and diversified industries at Goldman Sachs & Co. from 1972 to 1979,
and Oppenheimer from 1979 to 1990. As food analyst, he was named to
the Institutional Investor All American Research Team five times from 1979
through 1989. Mr. Tawes is a graduate of Princeton University and
received his Masters in Business Administration from Darden School at the
University of Virginia.
DAVID
TSIANG was appointed our Chief Financial Officer on January 7,
2010. Mr. Tsiang also served as our director from June 14, 2007 until
March 4, 2010. He is the Managing Director of Investment Banking at
Northeast Securities, Inc. until December 31, 2009. Prior to joining
Northeast Securities, Inc., in December 2001, he served as Vice President of
corporate planning at the investment bank C.E. Unterberg, Towbin from November
1999 to October 2001, and Vice President/Senior Analyst with the financial
services firm Ernst & Company from March 1991 to March
1998. Prior to working at Ernst & Company, Mr. Tsiang served in
various capacities in commercial banking with the Barclays Bank of NY, The CIT
Group and Howard Savings Bank (First Union Bank). Mr. Tsiang is a
graduate of Ramapo College of New Jersey and is NASD Series 7 and 63
qualified.
36
NEIL
RUSSELL has been a director since June 14, 2007. He is President of
Site 85 Productions, a company formed in 2000 that is engaged in the creation
and acquisition of intellectual property rights for exploitation across a broad
spectrum of entertainment media, including motion pictures, television, video
games and publishing. Mr. Russell is a former motion picture and
television distribution executive with Paramount Pictures, Columbia and MGM/UA,
where he handled pictures like “The Godfather,” “Chinatown,” “Death Wish,”
“Three Days of the Condor” and the James Bond films. He formed his
first company, Horizon Entertainment, in 1983, which, after merging with Orbis
Communications, was acquired in 1985 by Carolco Pictures, Inc., producers of
such films as “Rambo” pictures and “Terminator 2.” He was also
founder and President of Carolco Television Productions (CTP) which produced
high-profile television motion pictures for domestic and international
exploitation. In 1991, CTP was acquired by Multimedia Entertainment,
producers of Phil Donahue and Sally Jesse Raphael, and renamed Multimedia Motion
Pictures with Mr. Russell remaining as President. When Multimedia was
acquired by Gannett, Inc. in 1993, Mr. Russell purchased the assets of MMP and
began aggressively acquiring intellectual property rights under his own
banner. Since then, producing partnerships or licensing arrangements
of rights owned or controlled by Mr. Russell have been made with Jerry
Bruckheimer Films, Activision, Simon & Schuster, Tribune Entertainment,
Scott Free Productions, MGM Television, Heyday Films, FP Productions, Touchstone
Television, Hyde Park Entertainment, F/X Networks and others. Mr.
Russell is currently engaged, through Site 85, with several major studios in the
development of television series, motion pictures, video games and an action
comic book series, all based on rights owned by him. He also authored
the book, “Can I Still Kiss You?: Answering Your Children’s Questions about
Cancer,” which grew out of his own two successful battles with the
disease. A graduate of Parsons College, Mr. Russell is a member of
the Naval War College Foundation and a former board member of the Institute for
Foreign Policy Analysis.
SCOTT
RICKETTS is the President and owner of RC Industries, Inc. whose primary holding
is Mid's Pasta Sauces, located in Navarre, Ohio. Mid's is a high-end food
manufacturing company specializing in premium Italian pasta sauces. Mid's
products can be found in 2,300 stores in 15 states. Mr. Ricketts began his
career at the Amster Kirtz Company, an Ohio-based distributor of candy, beverage
and food products, where he rose to the position of sales manager. In 1979,
Scott left Amster Kirtz to purchase Ewing Sales, a small, Northeast Ohio food
brokerage company. Over the next eighteen years, he built Ewing into a $100
million (sales) company handling lines from, among others, Procter & Gamble,
Hunt-Wesson, Newman's Own, Fisher Nut and Cadbury. In 1997, he sold Ewing to a
Detroit-based brokerage firm and purchased Mid's. Mr. Ricketts is the recipient
of many regional and national food industry awards and has been a tireless
fundraiser for charitable organizations throughout Ohio. He is also a former
board member of the Canton Chapter of the American Heart Association and has sat
on the Professional Football Hall of Fame Committee. He attended Kent State
University and currently serves on the university's Athletic Board.
COMPLIANCE
WITH SECTION 16(A) OF THE EXCHANGE ACT
Section
16(a) of the Exchange Act requires our directors, executive officers and persons
who beneficially own more than 10% of a registered class of our securities to
file with the SEC initial reports of ownership and reports of changes in
ownership of common stock and other of our equity
securities. Officers, directors and greater than 10% beneficial
owners are required by SEC regulations to furnish us with copies of all Section
16(a) forms they file. During the last calendar year, the following
officers and directors filed the following reports late: David Tsiang
was late in filing two Form 4s representing six transactions, Mr. Reithinger was
late in filing a Form 3 representing 4 transactions, Mr. Tawes was late in
filing a Form 3 representing 10 transactions, Mr. Pinkowski was late in filing a
Form 3 representing 3 transactions and Mr. Rullich was late in filing a Form 3.
Mr. Russell was late in filing a Form 4 representing 1 transaction.
37
BOARD OF
DIRECTORS AND OFFICERS
Each
director is elected for a period of one year at our annual meeting of
stockholders and serves until the next such meeting and until his or her
successor is duly elected and qualified. Our directors do not
presently receive any compensation for their services as
directors. The Board may also appoint additional directors up to the
maximum number permitted under our By-laws. A director so chosen or
appointed will hold office until the next annual meeting of
stockholders.
Each of
our executive officers is elected by and serves at the discretion of our Board
and holds office until his or her successor is elected or until his or her
earlier resignation or removal in accordance with our Articles of Incorporation,
as amended, and By-laws.
MEETINGS
AND COMMITTEES OF THE BOARD OF DIRECTORS
During
the year ended December 31 2009, our Board held five meetings and took actions
by written consent on eleven occasions. None of our directors
attended less than 75% of our board meetings.
COMMITTEES
OF THE BOARD OF DIRECTORS
From June
29, 2007 until January 30, 2008, we had separate board committees that performed
the functions of audit and compensation committees. After further
review, we believe that given our size and stage of development of our company,
it is more efficient for our entire board of directors to perform these
functions. On January 30, 2008, we dissolved the committees and the
entire board resumed the functions of those committees. As we
continue to grow our company we will periodically reevaluate the benefits of
delegating these duties to an independent committee. Currently our entire board
of directors performs the function of the audit and compensation
committees.
Neil
Russell is an “audit committee financial expert” as that term is set forth in
Item 407(d)(5)(ii).
RELATIONSHIP
OF COMPENSATION TO PERFORMANCE
Our board
of directors annually establishes any applicable employment agreements, the
salaries that will be paid to our executive officers during the coming
year. In setting salaries, our board of directors intends to take
into account several factors, including the following:
· | competitive compensation data; |
· | the extent to which an individual may participate in the stock plans which may be maintained by us; and |
· | qualitative factors bearing on an individual's experience, responsibilities, management and leadership abilities, and job performance. |
NOMINATING
AND CORPORATE GOVERNANCE COMMITTEE
Each
member of our Board participates in the consideration of director
nominees. Stockholders may submit the names and five year backgrounds
for the Board’s consideration in its selection of nominees for directors in
writing to our secretary at our address set forth elsewhere in this
prospectus. Currently, our share ownership is relatively concentrated
in our directors and officers; as such, it is improbable that any Board nominee
found to be unqualified or unacceptable by these majority stockholders could be
selected as a member of the Board. Accordingly, there is no
nominating committee and we do not rely on pre-approval policies and procedures
for our nomination process. We intend to implement the necessary
formation of a nominating committee and will establish proper policies and
procedures upon such time as our share ownership is more
diversified.
38
PROCEDURE
FOR NOMINATING DIRECTORS
We have
not made any material changes to the procedures by which security holders may
recommend nominees to our Board of Directors.
Our Board
does not have a written policy or charter regarding how director candidates are
evaluated or nominated for the Board. Our directors annually select director
nominees based on experience in the beverage industry, financial background and
specific knowledge of our operations, corporate strategies, as well as an
individual's basis to act as a fiduciary to us and our
stockholders.
Our
directors annually review all director performance over the prior year and make
recommendations to the Board of Directors for future nominations. Stockholders
wishing to nominate individuals to serve as directors may submit such
nominations, along with a nominee's curriculum vitae, to our Board of Directors
at New Leaf Brands, Inc., 9380 E. Bahia Dr., Suite
A-201, Scottsdale, Arizona 85260, and the Board of Directors will
consider such nominee. There is no assurance that a director
candidate suggested by a stockholder will be placed on the ballot at our annual
meeting of stockholders.
CODE OF
ETHICS
On June
29, 2007, we adopted a Code of Ethics that applies to our officers, employees
and directors, including our principal executive officers, principal financial
officers and principal accounting officers.
SUMMARY
COMPENSATION
The
following table sets forth all compensation for the last two completed fiscal
years awarded to, earned by, or paid to our current and former Principal
Executive Officers and two most highly compensated executive officers, referred
to herein as the "Named Executive Officers." No other executive
officer or employee’s compensation exceeded $100,000 during the last completed
fiscal year.
Summary
Compensation Table for the Fiscal Years Ended December 31, 2009 and
2008
Name and
Principal
Position
|
Year
|
Salary
$
|
Bonus
$
|
Stock
Awards
$(1)
|
All
Other Compensation $
|
Nonqualified
Deferred Compensation Earnings $
|
Total
$
|
|||||||||||
(a)
|
(b)
|
(c)
|
(d)
|
(e)
|
(i)
|
(h)
|
(j)
|
|||||||||||
Eric
Skae (2)
Principal
Executive Officer, President
|
2009
|
169,787 | - | - | 8,400 | 50,000 | 228,187 | |||||||||||
2008
|
54,314 | 184,000 | - | 12,500 | 250,814 | |||||||||||||
Neil
Reithinger (3)
Former
Principal Executive Officer, Chief Operating Officer, Chief Financial
Officer, Secretary
|
2009
|
161,287 | - | - | - | - | 161,287 | |||||||||||
2008
|
149,900 | - | 196,000 | - | - | 345,900 | ||||||||||||
|
||||||||||||||||||
Thomas
F. Pinkowski
|
2009
|
173,037 | - | 56,000 | 88,100 | 317,137 | ||||||||||||
Vice
President (4)(5)
|
2008
|
198,602 | - | - | - | - | 198,602 |
__________________
1
|
Dollar
amounts are recognized for financial statement reporting purposes with
respect to the fiscal year in accordance with ACS Topic
718.
|
2
|
Mr.
Skae joined our Company on September 9, 2008. On January 8,
2009, Mr. Skae was appointed President and Chief Operating Officer of our
Company. On March 4, 2009, Mr. Skae was appointed Chief
Executive Officer on March 4, 2009. The amount in the “All
Other Compensation” column represents a car allowance paid to Mr.
Skae.
|
3
|
Mr.
Reithinger served as our President, Chairman of the Board and Chief
Executive Officer from April 3, 1998 until March 4, 2009; our Chief
Financial Officer from October 28, 1996 until January 7, 2010 and our
Chief Operating Officer from March 4, 2009 until January 7,
2010. Mr. Reithinger has also served as a director from
February 18, 1997 until January 7,
2010.
|
4
|
Mr.
Pinkowski resigned from our Company on October 9,
2009.
|
5
|
At
the time of Mr. Pinkowski’s resignation, pursuant to a Settlement
Agreement, we agreed to waive Mr. Pinkowski’s obligation to pay an
$80,000 balance remaining on an unsecured promissory note, dated
December 10, 2004, payable to Nutritional Specialties, Inc. d/b/a
LifeTime ® or LifeTime Vitamins ®, a California
corporation. This $80,000 is included in the “All Other
Compensation” column. The additional $8,100 in that column is a
car allowance. We also agreed to pay Mr. Pinkowski $13,042 for
earned but unused vacation and sick time. This amount is
included in the “Salary” column.
|
39
EMPLOYMENT
AGREEMENTS
Eric
Skae
Effective
September 9, 2008, we entered into an employment agreement with Mr. Skae
pursuant to which Mr. Skae agreed to serve as our Vice President and President
of Baywood New Leaf Acquisition Inc., our wholly owned subsidiary, for a
five-year term, with annual compensation of $175,000 subject to an annual
increase of 5% upon meeting performance standards reasonably established by the
board, or otherwise based on performance as reasonably determined by the board
together with (i) an annual bonus of 4% of our annual net operating income based
on achievement of performance standards reasonably established by the board, or
otherwise based on performance as reasonably determined by the board, with a
minimum bonus of $50,000, (ii) a car allowance of $750 per month, (iii) a stock
option grant to purchase 250,000 shares of our common stock at an exercise price
of $0.90 per share, vesting in equal annual installments over five years and
exercisable for a five-year period after each vesting date, as to the
installment then vesting, subject to reduction of such period upon death,
disability or termination of employment, and (iv) access to our benefit plans
which we make generally available to other similarly situated senior level
employees performing similar functions. The employment agreement
contains restrictions on competition for one year after termination of
employment, or three years after the closing of the acquisition of Skae Beverage
International, whichever is the longer period.
In 2009,
Mr. Skae elected to defer the payment of his bonus in the amount of $50,000
earned in 2009 to conserve cash. This deferred bonus in the amount of
$50,000 has been accrued. In 2008, Mr. Skae elected to defer the
payment of his bonus in the amount of $12,500 earned in 2009 to conserve
cash. We accrued $12,500 of bonus payable at that time. As
of December 31, 2009, the accrued compensation owed to Mr. Skae is
$62,500. We intend to pay his deferred bonuses in the future as our
cash flows permit.
David
Tsiang
Mr.
Tsiang was appointed our Chief Financial Officer effective January 7, 2010,
Mr. Tsiang will receive an annual salary of $130,000. Mr. Tsiang will
also be granted 350,000 options to purchase our common stock at an exercise
price of $0.63 per share. The stock options vest 20% every year for 5 years
commencing January 7, 2011.
40
Neil
Reithinger
Effective
July 11, 2007, we entered into an employment agreement with Mr. Reithinger
pursuant to which Mr. Reithinger agreed to serve as our President and Chief
Executive Officer for a five-year term, with annual compensation of $150,000,
subject to an annual increase of 5% upon meeting performance standards
reasonably established by the board, or otherwise based on performance as
reasonably determined by the board, together with (i) an annual bonus to be
determined by the board or otherwise based on performance as reasonably
determined by the board, (ii) a matching 401(k) Plan contribution of up to 6% of
his salary per year, and (iii) a stock option to purchase 500,000 shares of our
common stock at an exercise price of $1.00 per share, exercisable for a ten-year
term. On March 4, 2009, Mr. Reithinger was appointed Chief Operating
Officer and Chief Financial Officer. On January 7, 2010, Mr.
Reithinger resigned as our Chief Operating Officer and Chief Financial
Officer. Mr. Reithinger also resigned as a member of our board of
directors. Pursuant to his employment agreement with the Company,
Mr. Reithinger will remain with the Company for 90 days in a non-executive
employment capacity to assist will all matters necessary.
On
November 13, 2009, we entered into a First Amendment to Employment Agreement,
referred to as the First Amendment, with Neil Reithinger, our Chief Financial
Officer and Chief Operating Officer at the time of the transaction, pursuant to
which we agreed to amend certain terms of the Employment Agreement between our
Company and Mr. Reithinger, dated July 11, 2007, referred to as the Agreement.
Pursuant to the terms of the First Amendment, we agreed to pay to Mr.
Reithinger an aggregate of $94,900 which represents accrued salary currently due
and owing to Mr. Reithinger, to be paid in monthly installments of $9,000 until
paid in full. If, however, we raise debt or equity capital of $1,500,000 or
more, the accrued salary will become due within 30 calendar days.
Pursuant
to the First Amendment, Mr. Reithinger’s option to purchase 300,000 shares of
our common stock, issued on September 28, 2008, shall become immediately vested
on the effective date of the First Amendment. In the event Mr.
Reithinger’s employment is terminated by either party, his outstanding options
will remain exercisable until the earlier of 10 years from the grant date of
each option or 5 years from the date of termination of his employment. The
terms of the First Amendment supersede any and all post-termination exercise
requirements shorter than 5 years as set forth in our 2008 Stock Option and
Incentive Plan. Pursuant to the First Amendment, the exercise price of Mr.
Reithinger’s outstanding options will be reduced to $0.65 per share.
Further, upon termination of Mr. Reithinger’s employment by either party,
the non-compete and confidentiality covenants set forth in the Agreement will
immediately expire. Pursuant to the First Amendment, both our Company
and Mr. Reithinger provided customary releases of claims against the other
party.
Thomas
Pinkowski
Effective
March 30, 2007, we entered into an employment agreement with Mr. Pinkowski,
pursuant to which Mr. Pinkowski agreed to serve as our Vice President and as
President of Nutritional Specialties Inc., our wholly owned subsidiary, for a
five-year term, at an annual compensation of $200,000, subject to an annual
increase of 5% upon meeting performance standards reasonably established by the
board, or otherwise based on performance as reasonably determined by the board,
together with (i) an annual bonus of 4% of our annual net operating income based
on achievement of performance standards reasonably established by the board, or
otherwise based on performance as reasonably determined by the board, with a
minimum bonus for 2007 of $100,000, (ii) a matching 401(k) Plan contribution of
up to $10,000 per year, (iii) a car allowance of $900 per month, (iv) a stock
option grant to purchase 250,000 shares of our common stock at an exercise price
of $1.80 per share, vesting in equal annual installments over five years and
exercisable for a five-year period after each vesting date, as to the
installment then vesting, subject to reduction of such period upon death,
disability or termination of employment, (v) an award of 100,000 shares of
restricted common stock, which shall become unrestricted in five equal annual
installments commencing at the end of the first year of employment, and (vi)
payment or reimbursement for business use of an internet-access high-speed line,
cell phone and other business related expenses. The employment
agreement contains restrictions on competition for one year after termination of
employment, or March 30, 2010 which represents three years after the closing of
the acquisition of Nutritional Specialties, whichever is the longer
period.
41
On
October 9, 2009, Thomas Pinkowski resigned as our Vice President and
President of Nutritional Specialties, Inc. Concurrent with his
resignation, we entered into a Settlement Agreement and General Release or, the
Settlement Agreement. Pursuant to the terms of the Settlement Agreement, we
terminated the existing employment agreement, dated March 30, 2007, or the
Employment Agreement. The terms of the Employment Agreement will continue
to govern the relationship between the parties, except to the extent the
Settlement Agreement states otherwise. Pursuant to the Settlement Agreement, we
agreed as follows:
·
|
to
pay Mr. Pinkowski any accrued but unpaid base salary for services
rendered through the termination
date;
|
·
|
to
pay Mr. Pinkowski any accrued but unpaid expenses required to be
reimbursed pursuant to the Employment Agreement, including $13,042 for
unused vacation and sick time;
|
·
|
to
issue Mr. Pinkowski 60,000 restricted shares of our common stock that
represent the remaining unvested balance of common stock that was issued
to Mr. Pinkowski under the Employment
Agreement;
|
·
|
to
waive Mr. Pinkowski’s obligation under the Employment Agreement to
pay the $80,000 balance remaining on an unsecured promissory note, dated
December 10, 2004, payable to Nutritional Specialties, Inc. d/b/a
LifeTime® or LifeTimeVitamins®,
a California corporation; and
|
·
|
to
waive any rights we may have with respect to non-compete, non-solicitation
and proprietary information provisions included in the Employment
Agreement.
|
Further,
pursuant to the Settlement Agreement, we agreed to pay $94,678.35 outstanding
under an 8% subordinated promissory note and $27,050.96 outstanding under an 8%
convertible subordinated promissory note. Such payment constituted payment in
full and the notes were thereby cancelled and terminated. Mr. Pinkowski
agreed to waive any events of default or other rights he has or may have in the
present or in the future with respect to these notes. Additionally,
pursuant to the Settlement Agreement, the parties provided a mutual release of
any claims, obligations or amounts due to the other party.
Other
than as described above, we do not have any other oral or written employment,
severance or change-in-control agreements with our Named Executive
Officers.
COMPENSATION
PURSUANT TO STOCK OPTIONS
We grant
stock options from time to time to our officers, key employees and
directors. Effective September 9, 2008, we granted Mr. Skae an option
to purchase 250,000 shares of our common stock, vesting at 50,000 shares per
year for 5 years, at an exercise price of $0.90 per share, exercisable within 5
years after the vesting date. Effective September 28, 2009, we
granted Mr. Reithinger two separate options, each to purchase 300,000 shares of
our common stock at an exercise price of $0.80 per share, exercisable for a
ten-year term. On November 13, 2009, pursuant to the First Amendment
to Employment Agreement between Mr. Reithinger and our Company, we agreed to
reduce the exercise price of the options held by Mr. Reithinger to $0.65 per
share
42
OUTSTANDING
EQUITY AWARDS AT FISCAL YEAR-END
The
following table shows grants of options outstanding on December 31, 2009, the
last day of our fiscal year, to each of the Named Executive Officers included in
the Summary Compensation Table.
Outstanding
Equity Awards at Fiscal Year-End December 31, 2009 Table
Name
|
Number
of securities underlying unexercised options
(#)
exercisable
|
Number
of securities underlying unexercised options (#)
unexercisable
|
Option
exercise price($)
|
Option
expiration
date
|
|||||||||
(a)
|
(b)
|
(c)
|
(e)
|
(f)
|
|||||||||
|
|
|
|
||||||||||
Eric
Skae
|
100,000 | 150,000 | $ | 0.90 |
September
9, 2018
|
||||||||
Neil
Reithinger
|
500,000 | - | $ | 0.65 |
July
11, 2017
|
||||||||
300,000 | - | $ | 0.65 |
September
28, 2018
|
|||||||||
300,000 | - | $ | 0.65 |
September
28, 2018
|
NARRATIVE
TO OUTSTANDING EQUITY AWARDS TABLE
Retirement
Benefits
We do not
have any qualified or non-qualified defined benefit plans.
Nonqualified
Deferred Compensation
We do not
have any nonqualified defined contribution plans or other deferred compensation
plans.
ITEM
12 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDER MATTERS
The
following table sets forth certain information concerning the beneficial
ownership of our common stock as of December 31, 2009, by each person known by
us to (i) beneficially own more than 5% of our common stock and by each of our
(ii) directors, (iii) named executive officers at the end of our most recently
completed fiscal year as defined in Regulation S-K, Item 402(m)(2) and (iv) all
directors and executive officers as a group. Except as otherwise indicated, to
our knowledge, all persons named in the table have sole voting and dispositive
power with respect to their shares beneficially owned, except to the extent that
authority is shared by spouses under applicable law.
43
Title
of Class
|
Name
and Address of Beneficial Owner(1)
|
Amount
and Nature
of
Beneficial Owner
|
Percent
of
Class (2)
|
|||
Common
|
Eric
Skae (3)
|
7,895,511
|
12.5%
|
|||
Common
|
David
Tsiang (4)
|
393,959
|
0.6%
|
|||
Common
|
Neil
Reithinger (5)
|
1,307,632
|
2.1%
|
|||
Common
|
O.
Lee Tawes, III (6)
|
14,195,533
|
22.4%
|
|||
Common
|
Neil
Russell (7)
|
280,852
|
0.4%
|
|||
Common
|
Scott
Ricketts (8)
|
393,087
|
0.6%
|
|||
All
executive officers and directors as a group (6 persons)
|
24,466,574
|
38.6%
|
(1)
Unless otherwise indicated, the mailing address for each party listed is c/o New
Leaf Brands, Inc., 9380 E. Bahia Dr., Suite A201, Scottsdale,
AZ 85260.
(2)
Based on 63,280,477 shares of common stock issued and outstanding on December
31, 2009.
(3)
Mr. Skae owns an option to purchase 250,000 shares of common stock with an
exercise price of $0.90 per share. As of December 31, 2009, the
option is vested with regard to 100,000 shares of common stock. Mr.
Skae beneficially owns a total of 6,351,067 shares of common stock, and through
Skae Beverage International, Inc., Mr. Skae beneficially owns 1,444,444 shares
of common stock.
(4)
Mr. Tsiang beneficially owns 200,575 shares of common stock, warrants to
purchase 12,500 shares of common stock at an exercise price of $0.40 per share,
warrants to purchase 155,000 shares of common stock at an exercise price of
$0.80 per share, and warrants to purchase 25,884 shares of common stock at an
exercise price of $0.85 per share.
(5)
Mr. Reithinger beneficially owns 207,632 shares of common stock, and options to
purchase 1,100,000 shares of common stock at an exercise price of $0.65 per
share.
(6)
Mr. Tawes beneficially owns 13,835,533 shares of common stock, an option to
purchase 10,000 shares of common stock at an exercise price of $1.60 per share,
and a warrant to purchase 350,000 shares of common stock at an exercise price of
$0.25 per share.
(7)
Mr. Russell beneficially owns 205,852 shares of common stock, an option to
purchase 12,500 shares of common stock at an exercise price of $1.00 per share
and an option to purchase 62,500 shares of common stock at an exercise price of
$0.79 per share.
(8)
Mr. Ricketts
beneficially owns 363,087 shares of common stock,and an option to purchase
30,000 shares of common stock at an exercise price of $0.74 per share.
As of
December 31, 2009, there are no arrangements known to management which may
result in a change in control of our Company.
44
SECURITIES
AUTHORIZED FOR ISSUANCE UNDER EQUITY COMPENSATION PLANS
The
following table provides information as of December 31, 2009 regarding our stock
option plan compensation under which our equity securities are authorized for
issuance:
Equity
Compensation Plan Information
Plan
Category
|
Number
of securities to be issued upon exercise of outstanding
options, warrants and rights
(a)
|
Weighted-average
exercise price of outstanding options, warrants and rights
(b)
|
Number
of securities remaining available for future issuance under equity
compensation plans (excluding securities reflected in column
(a))
(c)
|
|
||||||||
Equity
compensation plans approved by security holders
|
|
|
1,499,250
|
|
|
$
|
0.72
|
|
|
|
500,750
|
|
Equity
compensation plans not approved by security holders
|
|
|
1,459,000
|
|
|
|
0.78
|
|
|
|
541,000
|
|
Total
|
|
|
2,958,250
|
|
|
$
|
0.75
|
|
|
|
1,041,750
|
|
At our
Annual Meeting held on December 10, 2004, our stockholders approved our 2004
Stock Option Plan. The 2004 Plan provides that 5,000,000 shares, adjusted to
250,000 shares following a 1 for 20 reverse split on September 7, 2007, would be
reserved for issuance from our authorized by unissued common stock.
At our
board of directors meeting held on July 28, 2007, the board approved an increase
in the number of shares of common stock that may be granted under all plans to
2,000,000, adjusted to 100,000 shares following a 1 for 20 reverse split on
September 7, 2007.
On May
14, 2008, our board of directors approved our 2008 Stock Option and Incentive
Plan. Under our 2008 Stock Option and Incentive Plan, we reserved a
maximum of 2,000,000 shares of common stock, subject to
adjustment. The 2008 Plan provides that shares granted come from our
authorized but unissued common stock or shares of common stock that we
reacquired. The price of the options granted pursuant to these plans shall be no
less than 100% of the fair market value of the shares on the date of
grant. The options expire ten years from the date of
grant.
ITEM
13 - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
During
year ended December 31, 2009 we paid fees totaling $14,591 to Northeast
Securities, Inc relating to the issuance of our Series J Preferred
Stock. At the time of these transactions, O. Lee Tawes, our director,
was Executive Vice President and Head of Investment Banking and a Director at
Northeast Securities, Inc. and David Tsiang, our director, was the
Managing Director of Investment Banking at Northeast Securities,
Inc.
In August
2008, we entered into a lease agreement with the brother of Neil Reithinger,
who, at the time of the transaction, was our Chief Executive Officer, Chief
Financial Officer, and a director. The board of directors, except for
Mr. Reithinger, reviewed several proposals for alternate facilities and
determined that Mr. Reithinger’s brother’s facility was superior. The
lease is a five year lease with a two year option out, with monthly lease
payments of $4,500. Rent expense under this lease was $53,670 and
$54,360 for the years ended December 31, 2009 and 2008,
respectively. The future minimum lease obligation for the remaining
term of the lease at December 31, 2009 is $40,500. We intend to shut
down the Arizona office and relocate its functions to our office in New
Jersey.
45
On
September 9, 2008 as part of the acquisition agreement between Skae Beverage
International LLC, Mr. Eric Skae and us, Mr. Skae agreed to a
three-year earn-out payment based on the annual increase in sales and gross
profit margin in relationship to a targeted gross profit margin of 20%, 34% and
37% each of the three year respective. The maximum cumulative earn-out over the
three period is $4,776,100 which includes a $500,000 incentive if the cumulative
earn-out exceeds $2,850,733. For the year ended December 31, 2009, we estimated
a first year earn-out of $260,000 which is included in related party liability.
The final earn-out is subject to the approval of both parties.
On
February 5, 2009, Mr. Tawes, our director, participated in a private placement
of Units, referred to as the February 2009 Bridge Financing, by acquiring .25
units. Each Unit consisted of (i) $100,000 principal amount of 12%
Subordinated Notes and (ii) Warrants to purchase 100,000 shares of our common
stock at a price per share of $0.85 with an expiration date of February
2014.
On March
20, 2009, we entered into a transaction Eric Skae, our Chief Executive Officer
and Chairman of the board at the time of the transaction, whereby we issued to
Mr. Skae a 18% Subordinated Note, with an effective date of March 17, 2009, for
a principal amount of $325,000 and a warrant to purchase up to 100,000 shares of
our common stock at an exercise price of $0.85 per share, subject to adjustment,
expiring on the fifth anniversary of the initial issuance date of the
Warrant. The 18% Subordinated Note is due on April 12, 2009, unless
due earlier in accordance with the terms of the Note. Interest
accrues on the Note at a rate of 18% per year. Absent the occurrence
of an event of default, as defined in the Note, we may prepay the Note for 100%
of the full principal plus all accrued interest thereon, at any time prior to
April 12, 2009, without penalty.
On March
26, 2009, Mr. Tawes, a director, provided financing to us in the amount of
$113,357 in exchange for (i) a 12% Subordinated Note and (ii) warrants to
purchase 175,000 shares of our common stock at a price per share of $0.85, which
will expire March 26, 2014.
On
September 9, 2008, together with Baywood New Leaf Acquisition, Inc., our
wholly-owned subsidiary, we entered into an Asset Purchase Agreement with Skae
Beverage International, LLC, and Eric Skae, as an individual, pursuant to which
we purchased substantially all of the rights and assets of Skae Beverage
International’s business, referred to as the Beverage Business. This
transaction is described in our Form 8-K filed with the Securities and Exchange
Commission on September 15, 2008.
As part
of the purchase price of the Beverage Business, we issued a series of 8%
subordinated promissory notes in the aggregate principal amount of $1,000,000,
to various creditors of Skae Beverage International, LLC, including our now
Chief Executive Officer and Chairman, Eric Skae, referred to as the “Skae Family
and Friends Notes.” Additionally, we issued to Skae Beverage International
an 8% convertible subordinated promissory note in the principal amount of
$1,000,000, referred to as the $1,000,000 Note, and an 8% convertible
subordinated promissory note in the principal amount of $100,000, referred to as
the $100,000 Note. On October 12 and 13, 2009, we paid an aggregate of
$725,712 in principal under the Skae Family and Friends Notes and agreed to
issue an aggregate of 1,408,384 shares of our common stock in full and final
satisfaction of the remaining $274,288 obligation underlying the Skae Family and
Friends Notes.
46
Between
March 30, 2009 and October 12, 2009, we made cash payments to Mr. Skae in the
aggregate amount of $525,000 on the following notes payable:
·
|
12%
subordinated note with a principal amount of $200,000, between our Company
and Eric Skae, dated October 23, 2008, referred to as the $200,000 Note;
and
|
·
|
18%
subordinated note with a principal amount of $325,000, between our Company
and Eric Skae, dated March 20, 2009 with an effective date of March 17,
2009, referred to as the $325,000
Note.
|
On
November 13, 2009, together with our wholly-owned subsidiary Baywood New Leaf
Acquisition, Inc., we entered into a Settlement Agreement and General Release
with Eric Skae, as an individual, and Skae Beverage International, LLC, a
Delaware limited liability company, referred to as the Settlement Agreement.
Pursuant to the Settlement Agreement, Mr. Skae on his own behalf and on
behalf of Skae Beverage International, LLC, as its sole control person, agreed
to terminate existing debt obligations in exchange for the issuance of shares of
our common stock. Additionally, we reduced the exercise price of a total
of 395,000 warrants held by Mr. Skae to $0.25 per share which Mr. Skae agreed to
exercise immediately, some on a cashless basis and the remaining shares using a
portion of the amount owed to Mr. Skae from outstanding debt obligations.
We agreed to issue to Mr. Skae 140,327 shares of common stock from the
exercise of these warrants. After reducing outstanding amounts owed to Mr.
Skae by $37,357 for the exercise price of a portion of the warrants, we agreed
to issue Mr. Skae an aggregate of 4,742,356 shares of our common stock in
satisfaction and termination of the obligations underlying the $1,000,000 Note,
the $100,000 Note, accrued and unpaid interest on these notes, and accrued and
unpaid interest on the $200,000 Note and $325,000 Note, which on November 13,
2009, were deemed satisfied in full and terminated.
Pursuant
to the Settlement Amendment, both our Company and Mr. Skae provided customary
releases of claims against the other party. Additionally, Mr. Skae agreed to
waive any existing default or breach, if any, related to the $1,000,000 Note,
the $100,000 Note, the $200,000 Note and the $325,000 Note.
On
October 20, 2009, we converted our Series I Preferred Stock and accrued
dividends into shares of common stock at $0.30 per share. Our
officers and directors participated as follows:
Related
Party
|
Preferred
Shares Converted
|
Accrued
Dividends
|
Common
stock converted from Preferred Stock
|
Common
stock converted from accrued dividends
|
Total
shares of common stock acquired
|
|||||||||||||||
O.
Lee Tawes
|
51,667 | $ | 70,930 | 1,722,223 | 236,434 | 1,958,657 | ||||||||||||||
N.
Russell
|
5,500 | $ | 2,834 | 83,334 | 9,446 | 92,780 | ||||||||||||||
D.
Tsiang
|
3,500 | $ | 16,142 | 116,667 | 16,142 | 132,809 |
On
October 20, 2009, we converted our Series J Preferred Stock and accrued
dividends into shares of common stock at $0.30 per share. Scott
Ricketts, our director, participated in this conversion. As a result
of this transaction, Mr. Rickets converted 10,000 shares of Series J Preferred
Stock into 333,334 shares of common stock, and $4,000 of accrued dividends on
his Series J Preferred Stock into 13,333 shares of common stock.
47
On
September 5, 2008, we completed a $1,635,000 private placement of Units, or, the
Offering. Each Unit consisted of $100,000 principal amount of 12% Subordinated
Notes and Warrants to purchase 117,647 shares of our common stock with an
exercise price of $0.85 per share, subject to adjustment, expiring on the fifth
anniversary of the initial issuance date of the Warrant. The Units were
sold to accredited investors in exchange for $100,000 per Unit. The net proceeds
of this Offering were $1,484,202 after deduction of the placement agent fee.
The 12% Subordinated Notes, or, the Notes, are due on the earlier of (i)
September 4, 2009 and (ii) no more than 15 business days following the closing
of a debt or equity financing or series of debt or equity financings in which we
receive at least $4,000,000 of gross proceeds. Simple interest on the
Notes accrues at a rate of 12% per year. If the maturity date does not
occur by March 31, 2009, we must pay all accrued interest up to and including
March 31, 2009 on that date. We must pay the remaining interest concurrent
with the payment of the principal amount on the maturity date. At any
time, and from time to time, the holder may, at its sole option, convert all or
any part of the principal amount outstanding under the Note into shares of our
common stock at a conversion price of $0.85 per share, subject to
adjustment. Mr. Tawes entered into a Guaranty in which he provided a
personal guaranty to each investor in the Offering covering the performance and
payment of our obligations related to the Note until such time that (i) the
investor exercises its rights under the Put Agreement and receives all unpaid
principal and interest under the Note or (ii) all other obligations owed to the
investor under the Note have been satisfied in full. Additionally, Mr. Tawes
entered into a Put Agreement whereby he agreed to grant each investor in the
Offering the right to require Mr. Tawes to purchase, in his individual capacity,
the Note from the investor prior to its maturity at any time following an event
of default under the Note after applicable cure periods. This
transaction is described on our Form 8-K filed with the Securities and Exchange
Commission on September 11, 2008. In September 2009, holders of
$1,485,000 principal amount of 12% Subordinated Notes issued as part of the
September 2008 Bridge financing, exercised a put option on Mr. Tawes for the
amount of the debt plus accrued interest of $91,582.
On
November 30, 2009, we entered into an Agreement with O. Lee Tawes, a director,
whereby Mr. Tawes agreed to convert all of his outstanding notes in the amount
of $2,798,357, including accrued interest, warrants to purchase 1,369,792 shares
of our common stock, and 51,667 shares of Class I Preferred Stock, into an
aggregate of 12,952,190 shares of common stock. Mr. Tawes will also receive
under the Agreement $200,000 in cash, a $150,000 8% unsecured note due in
January 2010, and a warrant to purchase 350,000 shares of our common stock with
an exercise price of $0.25 and an expiration date in October
2014. Mr. Tawes assigned 150,000 of these warrants to David Tsiang
who, at the time of the transaction, was also a member of the Company’s board of
directors.
Pursuant
to our Settlement Agreement with Mr. Pinkowski dated October 9, 2009, we agreed
to pay $94,678 outstanding under an 8% subordinated promissory note and $27,051
outstanding under an 8% convertible subordinated promissory note. Such payment
constituted payment in full and the notes were thereby cancelled and terminated.
Mr. Pinkowski agreed to waive any events of default or other rights he has
or may have in the present or in the future with respect to these
notes. Additionally, pursuant to the Settlement Agreement, the
parties provided a mutual release of any claims, obligations or amounts due to
the other party.
Our
policy with regard to transactions with affiliated persons or entities is that
such transactions will be on terms no less favorable than could be obtained from
non-affiliates. The foregoing transactions are on terms no less
favorable than those that could be obtained from non-affiliates. Any
such related party transaction must be reviewed by our independent
directors.
48
Director
Independence
During
the year ended December 31 2009, Eric Skae, Neil Reithinger, O. Lee Tawes, III,
David Tsiang, Neil Russell and Scott Ricketts served as our
directors. Currently, Mr. Russell is considered an independent
director as defined under the standards of independence set forth in Marketplace
Rule 4200(a)(15) of the NASDAQ Stock Market. We are currently traded
on the Over-the-Counter Bulletin Board, or OTCBB. The OTCBB does not
require that a majority of the board be independent.
ITEM
14 – PRINCIPAL ACCOUNTANT FEES AND SERVICES
We have
paid or expect to pay the following fees to Mayer Hoffman McCann P.C. for work
performed in 2009 and 2008 in their audit of our consolidated financial
statements:
2009
|
2008
|
|||||||
Audit
Fees
|
$ | 80,000 | $ | 120,000 | ||||
Audit-Related
Fees
|
- | - | ||||||
Tax
Fees
|
- | - | ||||||
All
Other Fees
|
- | - |
In
January 2003, the SEC released final rules to implement Title II of the
Sarbanes-Oxley Act of 2003. The rules address auditor independence
and have modified the proxy fee disclosure requirements. Audit fees
include fees for services that normally would be provided by the accountant in
connection with statutory and regulatory filings or engagements and that
generally only the independent accountant can provide. In addition to
fees for an audit or review in accordance with generally accepted auditing
standards, this category contains fees for comfort letters, statutory audits,
consents, and assistance with and review of documents filed with the
SEC. Audit-related fees are assurance-related services that
traditionally are performed by the independent accountant, such as employee
benefit plan audits, due diligence related to mergers and acquisitions, internal
control reviews, attest services that are not required by statute or regulation,
and consultation concerning financial accounting and reporting
standards.
The board
has reviewed the fees paid to Mayer Hoffman McCann P.C. for 2009 and 2008, and
has considered whether the fees paid for non-audit services are compatible with
maintaining Mayer Hoffman McCann P.C.. The board has also adopted
policies and procedures to approve audit and non-audit services provided in 2009
and 2008 by Mayer Hoffman McCann P.C. in accordance with the Sarbanes-Oxley Act
and rules of the SEC promulgated thereunder. These policies and
procedures involve annual pre-approval by the board of the types of services to
be provided by our independent auditor and fee limits for each type of service
on both a per-engagement and aggregate level. The board may
additionally ratify certain de minimis services provided by the independent
auditor without prior board approval, as permitted by the Sarbanes-Oxley Act and
rules of the SEC promulgated thereunder.
49
PART
IV
3.1
|
Articles
of Incorporation, as amended (included as Exhibit 3.1 to the form 10-KSB
filed March 6, 1197, and incorporated herein by
reference).
|
3.2
|
By-Laws,
dated February 14, 1988 (included as Exhibit 3 to the Form S-1 filed
January 27, 1987, and incorporated herein by
reference).
|
3.3
|
Amendment
to Articles of Incorporation, dated December 6, 2007 and effective on
December 18, 2007 (included as Exhibit 3.1 to the Form 8-K filed December
26, 2007, and incorporated herein by
reference).
|
3.4
|
Certificate
of Amendment to the Articles of Incorporation, effective October 16, 2009
(included as Exhibit 3.1 to the Form 8-K filed October 14, 2009, and
incorporated herein by reference).
|
3.5
|
Form
of Warrant to purchase the common stock of New Leaf Brands, Inc. (included
as Exhibit 3.1 to the Form 8-K filed February 24, 2010, and incorporated
herein by reference).
|
4.1
|
Specimen
Common Stock Certificate, dated July 9, 1993 (included as Exhibit 1 to the
Form 8-A filed July 2, 1993, and incorporated herein by
reference).
|
4.2
|
Certificate
of Designation for Preferred Shares (included as Exhibit 4.3 to the Form
10-QSB filed August 11, 1997, and incorporated herein by
reference.
|
4.3
|
Certificate
of Designation for Shares, dated July 18, 1997 (included as Exhibit 4.5 to
the Form 10-KSB dated March 30, 1998, and incorporated herein by
reference).
|
4.4
|
Certificates
of Designation for Class D Redeemable Convertible Preferred Stock
(included as Exhibit 4.4 to the Form 10-QSB dated May 17, 1999, and
incorporated herein by reference).
|
4.5
|
Certificate
of Designation of Preferences and Rights of Series G Preferred Stock,
dated September 20, 2005 (included as Exhibit 4.1 to the Form 8-K filed
September 23, 2005, and incorporated herein by
reference).
|
4.6
|
Certificate
of Designation of Preferences and Rights of Series H Preferred Stock,
dated December 21, 2005 (included as Exhibit 4.1 to the Form 8-K filed
January 3, 2006, and incorporated herein by
reference).
|
4.7
|
Certificate
of Designation of Series I 8% Cumulative Convertible Preferred Stock,
dated March 30, 2007 (included as Exhibit 4.X to the Form 8-K filed April
11, 2007, and incorporated herein by
reference).
|
4.8
|
Common
Stock Purchase Warrants between the Company and O. Lee Tawes and John
Talty, dated March 30, 2007 (included as Exhibit 4.v to the Form 8-K filed
on April 11, 2007, and incorporated herein by
reference).
|
50
4.9
|
Common
Stock Purchase Warrant between the Company and JSH Partners, dated March
30, 2007 (included as Exhibit 4.vii to the Form 8-K filed on April 11,
2007, and incorporated herein by
reference).
|
4.10
|
Common
Stock Purchase Warrants between the Company and Thomas Pinkowski, Charles
Ung and M. Amirul Karim, dated March 30, 2007 (included as Exhibit 4.ix to
the Form 8-K filed on April 11, 2007, and incorporated herein by
reference).
|
4.11
|
Form
of Common Stock Purchase Warrant between the Company and Northeast
Securities, Inc., dated March 30, 2007 (included as Exhibit 4.23 to the
Form SB-2/A filed on October 12, 2007, and incorporated herein by
reference).
|
4.12
|
Common
Stock Purchase Warrant between the Company and Ira. J. Gaines, dated June
28, 2006 (included as Exhibit 4.25 to the Form SB-2/A filed on October 12,
2007, and incorporated herein by
reference).
|
4.13
|
Letter
Agreement by and between the Company and Northeast Securities, Inc., dated
March 12, 2007 (included as Exhibit 4.27 to the Form SB-2/A filed on
October 12, 2007, and incorporated herein by
reference).
|
4.14
|
Letter
Agreement by and between the Company and Northeast Securities, Inc., dated
August 21, 2006 (included as Exhibit 4.28 to the Form SB-2/A filed on
October 12, 2007, and incorporated herein by
reference).
|
4.15
|
Common
Stock Purchase Warrant between the Company and Ira J. Gaines, dated April
5, 2005 (included as Exhibit 4.30 to the Form SB-2/A filed October 12,
2007, and incorporated herein by
reference).
|
4.16
|
Common
Stock Purchase Warrant between the Company and O. Lee Tawes, III, dated
May 18, 2004 (included as Exhibit 4.36 to the Form SB-2/A filed October
12, 2007, and incorporated herein by
reference).
|
4.17
|
Common
Stock Purchase Warrant between the Company and O. Lee Tawes, III, dated
February 4, 2005 (included as Exhibit 4.37 to the Form SB-2/A filed
October 12, 2007, and incorporated herein by
reference).
|
4.18
|
Common
Stock Purchase Warrant between the Company and Eric Skae, dated March 20,
2009 (included as Exhibit 4.1 to the Form 8-K filed March 24, 2009, and
incorporated herein by reference).
|
4.19
|
Baywood
International, Inc. 2008 Stock Option and Incentive Plan, dated May, 14,
2008 (included as Exhibit 4.1 to the Registration Statement on Form S-8
filed June 27, 2008, and incorporated herein by
reference).
|
4.20
|
Form
of the Common Stock Purchase Warrant, dated September 5, 2008 (included as
Exhibit 10.2 to the Form 8-K filed September 11, 2008, and incorporated
herein by reference).
|
51
4.21
|
Common
Stock Purchase Warrant between the Company and O. Lee Tawes, III, dated
February 4, 2008 (included as exhibit 4.29 to the Form 10-Q filed May 20,
2009, and incorporated herein by
reference).
|
4.22
|
Common
Stock Purchase Warrant between the Company and O. Lee Tawes, III, dated
February 19, 2008 (included as Exhibit 4.30 to the Form 10-Q filed May 20,
2009, and incorporated herein by
reference).
|
4.23
|
Form
of Subscription Agreement (included as Exhibit 4.31 to the Form 10-Q filed
May 20, 2009, and incorporated herein by
reference).
|
4.24
|
Form
of Warrant (included as Exhibit 4.32 to the Form 10-Q filed May 20, 2009,
and incorporated herein by
reference).
|
4.25
|
Common
Stock Purchase Warrant between the Company and O. Lee Tawes, dated July
14, 2008 (included as Exhibit 4.33 to the Form 10-Q filed May 20, 2009,
and incorporated herein by
reference).
|
4.26
|
Common
Stock Purchase Warrant between the Company and Eric Skae, dated October
23, 2008 (included as Exhibit 4.34 to the Form 10-Q filed May 20, 2009,
and incorporated herein by
reference).
|
4.27
|
Certificate
of Designation of Serie J 6% Redeemable Convertible Stock, dated December
22, 2008 (included as Exhibit 4.1 to the Form 8-K filed December 23, 2008,
and incorporated herein by
reference).
|
4.28
|
Certificate
of Amendment to Certificate of Designation of Class A Preferred Shares
(included as Exhibit 4.1 to the 8-K filed October 26, 2009, and
incorporated herein by reference).
|
4.29
|
Certificate
of Amendment to Certificate of Designation of Series I 8% Cumulative
Convertible Preferred Stock (included as Exhibit 4.2 to the 8-K filed
October 26, 2009, and incorporated herein by
reference).
|
4.30
|
Certificate
of Amendment to Certificate of Designation of Series J 6% Redeemable
Convertible Preferred Stock (included as Exhibit 4.3 to the 8-K filed
October 26, 2009, and incorporated herein by
reference).
|
4.31
|
Form
of 10% Senior Secured Note issued by the Company (included as Exhibit 4.1
to the Form 8-K filed December 1, 2009, and incorporated herein by
reference).
|
4.32
|
Term
sheet agreement between the Company and the Noteholders dated November 24,
2009 (included as Exhibit 4.2 to the Form 8-K filed December 1, 2009, and
incorporated herein by reference).
|
10.1
|
Promissory
Note between the Company and Ira J. Gaines, dated April 2005 (included as
Exhibit 4.29 to the Form SB-2/A filed on October 12, 2007, and
incorporated herein by reference).
|
52
10.2
|
Bridge
Loan Agreement between the Company and O. L. Tawes, Inc., dated May 10,
2004 (included as Exhibit 10 to the Form 10-KSB filed May 12, 2005, and
incorporated herein by reference).
|
10.3
|
Promissory
Note between the Company and Ronald Patterson, dated October 25, 2005
(included as Exhibit 4.34 to the Form SB-2/A filed October 12, 2007, and
incorporated herein by reference).
|
10.4
|
Promissory
Note between the Company and Ira J. Gaines, dated June 28, 2006 (included
as Exhibit 4.24 to the Form SB-2/A filed on October 12, 2007, and
incorporated herein by reference).
|
10.5
|
10%
Senior Convertible Note Agreement between the Company and a certain number
of accredited investors, dated September 19, 2006 (included as Exhibit 4.1
to the Form 8-K filed on September 25, 2006, and incorporated herein by
reference).
|
10.6
|
Asset
Purchase Agreement by and among the Company, Baywood Acquisition, Inc,
Nutritional Specialties, Inc., d/b/a LifeTime® or LifeTime®
Vitamins, and certain individuals named therein, dated March 30, 2007
(included as Exhibit 2 to the Form 8-K filed April 11, 2007, and
incorporated herein by reference).
|
10.7
|
10%
Note Agreement between the Company and Baywood Acquisition, Inc. on one
side and O. Lee Tawes, III, on the other side, dated March 30, 2007
(included as Exhibit 4.iv to the Form 8-K filed April 11, 2007, and
incorporated herein by reference).
|
10.8
|
10%
Note Agreement between the Company and Baywood Acquisition, Inc. on one
side and John Talty on the other side, dated March 30, 2007 (included as
Exhibit 4.iv to the Form 8-K filed April 11, 2007, and incorporated herein
by reference).
|
10.9
|
12%
2007 Bridge Loan Agreement between the Company and JSH Partners and
Guaranty executed by O. Lee Tawes, dated March 30, 2007 (included as
Exhibit 4.vi to the Form 8-K filed April 11, 2007, and incorporated herein
by reference).
|
10.10
|
12%
Note between the Company, Baywood Acquisition, Inc. and JSH Partners,
dated March 30, 2007 (included as Exhibit 4.vi to the Form 8-K filed on
April 11, 2007, and incorporated herein by
reference).
|
10.11
|
8%
Convertible Subordinated Promissory Notes of the Company and Baywood
Acquisition, Inc. issued to Thomas Pinkowski, Charles Ung and M. Amirul
Karim, dated March 30, 2007 (included as Exhibit 4.viii to the Form 8-K
filed April 11, 2007, and incorporated herein by
reference).
|
10.12
|
8%
Subordinated Promissory Notes of the Company and Baywood Acquisition, Inc.
issued to Thomas Pinkowski, Charles Ung and M. Amirul Karim, dated March
30, 2007 (included as Exhibit 4.ix to the Form 8-K filed April 11, 2007,
and incorporated herein by
reference).
|
10.13
|
Business
Loan Agreement between the Company and Baywood Acquisition, Inc., as
Borrowers, and Vineyard Bank N.A., dated March 30, 2007 (included as
Exhibit 4.xi to the Form 8-K filed April 11, 2007, and incorporated herein
by reference).
|
53
10.14
|
Promissory
Note issued by the Company and Baywood Acquisition, Inc. to Vineyard Bank
N.A., dated March 30, 2007 (included as Exhibit 4.xii to the Form 8-K
filed April 11, 2007, and incorporated herein by
reference).
|
10.15
|
Promissory
Note issued by the Company and Baywood Acquisition, Inc. to Vineyard Bank
N.A., dated March 30, 2007 (included as Exhibit 4.xiii to the Form 8-K
filed April 11, 2007, and incorporated herein by
reference).
|
10.16
|
Employment
Agreement between the Company and Thomas Pinkowski, dated March 30, 2007
(included as Exhibit 10.4 to the Registration Statement on Form SB-2/A
filed on July 23, 2007, and incorporated herein by
reference).
|
10.17
|
Manufacturing
Agreement between the Company and NHK Laboratories, Inc., dated March 30,
2007 (included as Exhibit 10.5 to the Registration Statement on Form
SB-2/A filed on July 23, 2007, and incorporated herein by
reference).
|
10.18
|
Manufacturing
Agreement between the Company and Ultimate Formulations, Inc. d/b/a Best
Formulations, dated March 30, 2007 (included as Exhibit 10.6 to the
Registration Statement on Form SB-2/A filed on July 23, 2007, and
incorporated herein by reference).
|
10.19
|
Registration
Rights Agreement among Baywood International, Inc., O. Lee Tawes, John
Talty, JSH Partners and Northeast Securities, Inc., as Attorney-in-Fact
for the investors set forth therein, dated March 30, 2007 (included as
Exhibit 10.7 to the Registration Statement on Form SB-2/A filed on July
23, 2007, and incorporated herein by
reference).
|
10.20
|
Voting
Agreement between Baywood International, Inc. and the individuals listed
as stockholders therein, dated March 30, 2007 (included as Exhibit 10.8 to
the Registration Statement on Form SB-2/A filed on July 23, 2007, and
incorporated herein by reference).
|
10.21
|
Employment
Agreement between Baywood the Company and Neil Reithinger, dated July 11,
2007 (included as Exhibit 10.1 to the Form 8-K filed on July 16, 2007, and
incorporated herein by reference).
|
10.22
|
Business
Loan Agreement between the Company and Nutritional Specialties, Inc., as
borrowers, and Vineyard Bank, N.A., dated July 9, 2007 (included as
Exhibit 10.11 to the Form SB-2/A filed October 12, 2007, and incorporated
herein by reference).
|
10.23
|
Promissory
Note between the Company and Nutritional Specialties, Inc., dated July 9,
2007, and issued to Vineyard Bank, N.A. (included as Exhibit 4.35 to the
Form SB-2/A filed October 12, 2007, and incorporated herein by
reference).
|
10.24
|
Operating
Agreement between the Members and Layfield Energy, LLC, dated December 19,
2007 (included as Exhibit 10.1 to the Form 8-K filed January 4, 2008, and
incorporated herein by reference).
|
10.25
|
Real
Estate Lease between Baywood International Inc. and Glenn Reithinger,
dated October 1, 2008 (included as Exhibit 10.23 to the Form 10-Q filed
August 19, 2008, and incorporated herein by
reference).
|
54
10.26
|
Form
of 12% Subordinated Note, dated September 5, 2008 (included as Exhibit
10.1 to the Form 8-K filed September 11, 2008, and incorporated herein by
reference).
|
10.27
|
Form
of Side Letter Agreement between the Company and the investors signatory
thereto, dated September 5, 2008 (included as Exhibit 10.3 to the
Form 8-K filed September 11, 2008, and incorporated herein by
reference).
|
10.28
|
Form
of Guaranty made by O. Lee Tawes, III, dated September 5, 2008 (included
as Exhibit 10.4 to the Form 8-K filed September 11, 2008, and incorporated
herein by reference).
|
10.29
|
Form
of Put between O. Lee Tawes, III, and the investors signatory thereto,
dated September 5, 2008 (included as Exhibit 10.5 to the Form 8-K filed
September 11, 2008, and incorporated herein by
reference).
|
10.30
|
Asset
Purchase Agreement by and among the Company, Baywood New Leaf Acquisition,
Inc., Skae Beverage International, LLC, and Eric Skae, dated September 9,
2008 (included as Exhibit 10.1 to the Form 8-K filed September 15, 2008,
and incorporated herein by
reference).
|
10.31
|
Intellectual
Property Assignment by and among the Company and Baywood New Leaf
Acquisition, Inc. on the one hand, and Skae Beverage International, LLC,
and Eric Skae on the other hand, dated September 9, 2008 (included as
Exhibit 10.2 to the Form 8-K filed September 15, 2008, and incorporated
herein by reference).
|
10.32
|
Bill
of Sale and Assignment from Skae Beverage International, LLC, to the
Company, Baywood New Leaf Acquisition, Inc. and Eric Skae, dated September
9, 2008 (included as Exhibit 10.3 to the Form 8-K filed September 15,
2008, and incorporated herein by
reference).
|
10.33
|
Assumption
Agreement by and among the Company, Baywood New Leaf Acquisition, Inc.,
Skae Beverage International, LLC, and Eric Skae, dated September 9, 2008
(included as Exhibit 10.4 to the Form 8-K filed September 15, 2008, and
incorporated herein by reference).
|
10.34
|
Form
of Release and Cancellation, dated September 9, 2008 (included as Exhibit
10.5 to the Form 8-K filed September 15, 2008, and incorporated herein by
reference).
|
10.35
|
Release
and Cancellation by Eric Skae in favor of the Released Parties, dated
September 9, 2008 (included as Exhibit 10.6 to the Form 8-K filed
September 15, 2008, and incorporated herein by
reference).
|
10.36
|
Form
of 8% Subordinated Promissory Note, issued by the Company to the creditors
signatory thereto, dated September 9, 2008 (included as Exhibit 10.7 to
the Form 8-K filed September 15, 2008, and incorporated herein by
reference).
|
10.37
|
8%
Convertible Subordinated Promissory Note for $1,000,000, issued by the
Company to Skae Beverage International, LLC, dated September 9, 2008
(included as Exhibit 10.8 to the Form 8-K filed September 15, 2008, and
incorporated herein by reference).
|
55
10.38
|
8%
Convertible Subordinated Promissory Note for $100,000, issued by the
Company to Skae Beverage International, LLC, dated September 9, 2008
(included as Exhibit 10.9 to the Form 8-K filed September 15, 2008, and
incorporated herein by reference).
|
10.39
|
Employment
Agreement between the Company and Eric Skae, dated September 9, 2008
(included as Exhibit 10.10 to the Form 8-K filed September 15, 2008, and
incorporated herein by reference).
|
10.40
|
Form
of 12% Subordinated Promissory Note (included as Exhibit 10.38 to the Form
10Q filed November 19, 2008, and incorporated herein by
reference).
|
10.41
|
12%
Subordinated Note issued by the Company to O. Lee Tawes, III, dated July
14, 2008 (included as Exhibit 10.39 to the Form 10Q filed November 19,
2008, and incorporated herein by
reference).
|
10.42
|
12%
Subordinated Note issued by the Company to Eric Skae, dated October 23,
2008 (included as Exhibit 10.40 to the Form 10Q filed November 19, 2008,
and incorporated herein by
reference).
|
10.43
|
18%
Subordinated Note issued by the Company to Eric Skae, dated March 20, 2009
(included as Exhibit 10.1 to the Form 8-K filed March 24, 2009, and
incorporated herein by reference).
|
10.44
|
Asset
Purchase Agreement by and among the Company, Nutritional Specialties,
Inc., and Nutra, Inc., dated July 24, 2009 (included as Exhibit 10.1 to
the Form 8-K filed July 30, 2009, and incorporated herein by
reference).
|
10.45
|
Settlement
Agreement and Mutual Release between Farmatek IC VE DIS TIC, LTD.STI and
Oskiyan Hamdemir on the one hand and the Company and Nutritional
Specialties, Inc. on the other hand, dated June 12, 2009 (included as
Exhibit 10.45 to the Form 10-Q filed August 19, 2009, and incorporated
herein by reference).
|
10.46
|
Assignment
of Lease between Nutritional Specialties, Inc. and Boyd Business Center of
Orange, dated October 9, 2009 (included as Exhibit 10.2 to the Form
8-K filed on October 14, 2009, and incorporated herein by
reference).
|
10.47
|
Settlement
Agreement and General Release by and among the Company, Nutritional
Specialties, Inc. and Thomas Pinkowski, dated October 9, 2009 (included as
Exhibit 10.3 to the Form 8-K filed on October 14, 2009, and incorporated
herein by reference).
|
10.48
|
First
Amendment to the Employment Agreement between the Company and Neil
Reithinger, dated November 13, 2009 (included as Exhibit 10.49 to the Form
10-Q filed on November 15, 2009, and incorporated herein by
reference).
|
10.49
|
Settlement
Agreement between the Company and O. Lee Tawes, dated November 30, 2009
(included as Exhibit 10.1 to the Form 8-K filed December 1, 2009, and
incorporated herein by reference).
|
56
10.50
|
Securities
Purchase Agreement between New Leaf Brands, Inc. and certain accredited
investors, dated December 4, 2009 (included as Exhibit 10.1 to the Form
8-K filed February 24, 2010, and incorporated herein by
reference).
|
14.1
|
Code
of Ethics (included as Exhibit 14.1 to the Form 10-K filed April 15, 2008,
and incorporated herein by
reference).
|
21.1
|
Subsidiaries
of the Registrant (filed herewith)
|
31.1
|
Certificate
of the Chief Executive Officer and Chief Financial Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002 (filed
herewith).
|
32.1
|
Certificate
of Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002 (filed
herewith).
|
57
SIGNATURES
Pursuant
to the requirements of Section 15(d) of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
March
31, 2010
|
/s/
Eric Skae
|
Eric
Skae
|
|
Chairman
of the Board, President, and
Chief
Executive Officer
|
Pursuant
to the requirements of the Securities Exchange Act of 1934, this report has been
signed below by the following persons on behalf of the Company and in the
capacities and on the dates indicated:
SIGNATURE
|
CAPACITY
|
DATE
|
||
/s/
Eric Skae
|
Chairman
of the Board, Principal Executive Officer and President
|
March
31, 2010
|
||
Eric
Skae
|
||||
|
||||
/s/
David Tsiang
|
Chief
Financial Officer and Principal Accounting Officer
|
March
31, 2010
|
||
David
Tsiang
|
||||
|
||||
/s/
O. Lee Tawes, III
|
Director
|
March
31, 2010
|
||
O.
Lee Tawes, III
|
||||
|
||||
/s/
Neil Russell
|
Director
|
March
31, 2010
|
||
Neil
Russell
|
||||
|
||||
/s/
R. Scott Ricketts
|
Director
|
March
31, 2010
|
||
R.
Scott Ricketts
|
||||
58
INDEX TO FINANCIAL
STATEMENTS
PAGE
|
||||
F-2 | ||||
REPORTS
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
|
||||
CONSOLIDATED
BALANCE SHEETS AS OF DECEMBER 31 2009 & 2008
|
F-3 | |||
CONSOLIDATED
STATEMENTS OF OPERATIONS FOR THE YEARS ENDED DECEMBER
31 2009 & 2008
|
F-4 | |||
CONSOLIDATED
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT) FOR THE YEARS ENDED DECEMBER
31 2009 & 2008
|
F-5 | |||
CONSOLIDATED
STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED DECEMBER 31 2009 &
2008
|
F-6 | |||
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
|
F-7-F-46 |
F-1
REPORT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the
Stockholders and Board of Directors of
NEW
LEAF BRANDS, INC.
We have
audited the accompanying consolidated balance sheets of New Leaf Brands, Inc.
(the “Company”) as of December 31, 2009 and 2008, and the related consolidated
statements of operations, stockholders' equity (deficit), and cash flows for the
years then ended. These consolidated financial statements are the responsibility
of the Company's management. Our responsibility is to express an opinion on
these consolidated financial statements based on our audits.
We
conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audits to obtain reasonable assurance about whether the
consolidated financial statements are free of material misstatement. The Company
is not required to have, nor were we engaged to perform, an audit of their
internal control over financial reporting. Our audits included consideration of
internal control over financial reporting as a basis for designing audit
procedures that are appropriate in the circumstances, but not for the purpose of
expressing an opinion on the effectiveness of the Company’s internal control
over financial reporting. Accordingly, we express no such opinion. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the consolidated financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our
opinion.
In our
opinion, the consolidated financial statements referred to above present fairly,
in all material respects, the financial position of New Leaf Brands, Inc. as of
December 31, 2009 and 2008, and the results of their operations and their cash
flows for the years then ended, in conformity with U.S. generally accepted
accounting principles.
The
accompanying consolidated financial statements have been prepared assuming that
the Company will continue as a going concern. As discussed in Note 1 to the
consolidated financial statements, the Company has suffered recurring losses
from operations, has a working capital deficiency, was not in compliance with
certain financial covenants related to debt agreements, and has a significant
amount of debt maturing in 2010. These conditions raise substantial
doubt about the Company’s ability to continue as a going
concern. Management’s plans regarding these matters are also
described in Note 1. The consolidated financial statements do not include any
adjustments relating to the recoverability and classification of asset carrying
amounts or the amount and classification of liabilities that might result should
the Company be unable to continue as a going concern.
/s/ Mayer Hoffman McCann
P.C.
Mayer
Hoffman McCann P.C.
Phoenix,
Arizona
March 31,
2010
F-2
New
Leaf Brands, Inc.
Consolidated
Balance Sheets
December
31,
|
December
31,
|
|||||||
2009
|
2008
|
|||||||
CURRENT ASSETS
|
||||||||
Cash
& cash equivalents
|
$ | 1,547,924 | $ | 98,410 | ||||
Accounts
receivable, net of allowances for uncollectible of $90,000 in 2009 and
$256,323 in 2008:
|
206,223 | 945,830 | ||||||
Inventory
|
485,889 | 1,217,150 | ||||||
Prepaid
espense
|
17,905 | 68,947 | ||||||
Stock
subscription receivable
|
- | 50,000 | ||||||
Escrow
deposit on sale of discountinued operations
|
250,000 | - | ||||||
Total
current assets
|
2,507,941 | 2,380,337 | ||||||
PROPERTY & EQUIPMENT
|
||||||||
Computer
& equipment, net
|
111,031 | 201,012 | ||||||
OTHER ASSETS
|
||||||||
Goodwill
and other intangible assets, net
|
4,198,324 | 13,765,387 | ||||||
Other
|
- | 250 | ||||||
Deferred
financing costs, net
|
- | 470,572 | ||||||
Total
other assets
|
4,198,324 | 14,236,209 | ||||||
Total
assets
|
$ | 6,817,296 | $ | 16,817,558 | ||||
CURRENT LIABILITIES
|
||||||||
Accounts
payable
|
$ | 1,282,793 | $ | 1,967,224 | ||||
Accrued
liabilities
|
605,135 | 1,192,211 | ||||||
Accrued
liabilities related party
|
403,247 | 420,014 | ||||||
Dividends
payable
|
- | 101,999 | ||||||
Interest
payable
|
53,969 | 192,909 | ||||||
Short-term
notes - other
|
1,429,000 | 500,221 | ||||||
Short-term
notes - related party
|
90,727 | 1,634,512 | ||||||
Notes
payable - current portion
|
1,125,908 | 6,168,114 | ||||||
Derivative
payable
|
110,000 | 4,000 | ||||||
Total
current liabilities
|
5,100,779 | 12,181,204 | ||||||
OTHER LIABILTIES
|
||||||||
Long-term
debt - related party
|
- | 1,850,000 | ||||||
Long-term
debt - other
|
52,342 | 863,889 | ||||||
Total
other liabilities
|
52,342 | 2,713,889 | ||||||
Total
liabilities
|
5,153,121 | 14,895,093 | ||||||
STOCKHOLDERS' EQUITY
(DEFICIT)
|
||||||||
Convertible
preferred stock, $0.001 par value, 10,000,000 shares
authorized
|
||||||||
Class
A - 35,000 shares issued and 0 outstanding at December 31, 2009
and 35,000 shares outstanding at December 31, 2008
|
- | 35 | ||||||
Class
H - 350,000 shares issued and 0 outstanding at December 31,
2009; 23,558 shares outstanding at December 31, 2008
|
- | 24 | ||||||
Class
I - 540,000 shares issued 0 outstanding at December 31, 2009 and 535,000
shares outstanding at December 31, 2008
|
- | 535 | ||||||
Class
J - 20,000 shares issued and 0 outstanding at December 31, 2009
and 20,000 outstanding at December 31, 2008
|
- | 20 | ||||||
Common
Stock, $0.001 par value, 500,000,000 shares authorized, issued and
outstanding: 63,105,447 at December 31, 2009 and 8,399,056 at December 31,
2008
|
63,105 | 8,399 | ||||||
Additional
paid-in capital
|
33,706,045 | 22,786,251 | ||||||
Accumulated
other comprehensive loss
|
- | (37,350 | ) | |||||
Accumulated
deficit
|
(32,104,975 | ) | (20,835,449 | ) | ||||
Total
stockholders' equity (deficit)
|
1,664,175 | 1,922,465 | ||||||
Total
liabilities and stockholders' equity (deficit)
|
$ | 6,817,296 | $ | 16,817,558 |
See
accompanying notes to the consolidated financial statements
F-3
New
Leaf Brands, Inc.
Consolidated
Statements of Operations
Years
ended December 31,
|
|||||||||
2009
|
2008
|
||||||||
CONTINUING
OPERATIONS
|
|||||||||
SALES:
|
|||||||||
NET
SALES
|
$ | 3,457,168 | $ | 799,183 | |||||
COST
OF SALES:
|
|||||||||
COST
OF SALES
|
2,700,726 | 667,958 | |||||||
GROSS
PROFIT
|
756,442 | 131,225 | |||||||
OPERATING
EXPENSES:
|
|||||||||
SHIPPING
& HANDLING
|
331,092 | 105,570 | |||||||
MARKETING
EXPENSES
|
2,995,961 | 882,224 | |||||||
GENERAL
& ADMINISTRATIVE
|
1,174,004 | 1,617,305 | |||||||
OPTION
& STOCK COMPENSATION EXPENSE
|
994,918 | 247,935 | |||||||
DEPRECIATION
& AMORTIZATION
|
478,959 | 145,598 | |||||||
TOTAL
OPERATING EXPENSES
|
5,974,934 | 2,998,632 | |||||||
LOSS
FROM CONTINUING OPERATIONS
|
(5,218,492 | ) | (2,867,407 | ) | |||||
OTHER
INCOME (EXPENSE):
|
|||||||||
INTEREST
INCOME
|
- | 280 | |||||||
GAIN
ON EXTINQUISHMENT OF DEBT
|
324,988 | - | |||||||
REALIZED
LOSS ON INVESTMENTS
|
(37,600 | ) | - | ||||||
MISCELLANEOUS
INCOME (EXPENSE)
|
2,944 | (253,160 | ) | ||||||
INTEREST
EXPENSE
|
(1,065,435 | ) | (836,971 | ) | |||||
AMORTIZATION
OF DEBT DISCOUNT & DEBT ACQUISITION COST
|
(2,604,097 | ) | (1,151,584 | ) | |||||
WRITEOFF
DEBT ACQUISITION COST
|
(74,951 | ) | - | ||||||
CHANGE
IN FAIR VALUE OF DERIVATIVE PAYABLE
|
(106,000 | ) | - | ||||||
IMPAIRMENT
OF JOINT VENTURE
|
- | (103,289 | ) | ||||||
TOTAL
OTHER INCOME (EXPENSE)
|
(3,560,151 | ) | (2,344,724 | ) | |||||
LOSS
FROM CONTINUING OPERATIONS BEFORE INCOME TAXES
|
(8,778,643 | ) | (5,212,131 | ) | |||||
PROVISION
FOR INCOME TAXES
|
- | - | |||||||
NET
LOSS FROM CONTINUING OPERATIONS
|
(8,778,643 | ) | (5,212,131 | ) | |||||
DISCONTINUED
OPERATIONS
|
|||||||||
(LOSS)
INCOME FROM DISCONTINUED OPERATIONS
|
(1,918,939 | ) | 982,386 | ||||||
LOSS
ON SALE OF DISCONTINUED OPERATIONS
|
(232,598 | ) | - | ||||||
PROVISION
FOR INCOME TAXES
|
- | - | |||||||
INCOME
(LOSS) FROM DISCONTINUED OPERATIONS
|
(2,151,537 | ) | 982,386 | ||||||
NET
LOSS
|
$ | (10,930,180 | ) | $ | (4,229,745 | ) | |||
PREFERRED
DIVIDENDS
|
339,346 | 465,537 | |||||||
CUMULATIVE
EFFECT OF RESTATEMENT UNDER EITF 07-05
|
- | 4,000 | |||||||
LOSS
AVAILABLE TO COMMON STOCKHOLDERS
|
$ | (11,269,526 | ) | $ | (4,699,282 | ) | |||
BASIC
AND DILUTED NET LOSS FROM CONTINUING OPERATIONS PER COMMON
SHARE
|
$ | (0.40 | ) | $ | (0.83 | ) | |||
BASIC
AND DILUTED NET LOSS FROM DISCONTINUED OPERATIONS PER COMMON
SHARE
|
$ | (0.10 | ) | $ | 0.14 | ||||
BASIC
AND DILUTED NET LOSS PER COMMON SHARE
|
$ | (0.50 | ) | $ | (0.69 | ) | |||
BASIC
AND DILUTED WEIGHTED AVERAGE COMMON SHARES OUTSTANDING
|
22,437,434 | 6,851,984 |
See
accompanying notes to the consolidated financial
statements
F-4
NEW
LEAF BRANDS, INC.
Consolidated
Statements of Stockholders' Equity (Deficit)
Accumulated | ||||||||||||||||||||||||||||||||
Additional |
Other
|
|||||||||||||||||||||||||||||||
Preferred
Stock
|
Common
stock
|
Paid-In |
Comprehensive
|
Accumulated | ||||||||||||||||||||||||||||
Shares
|
Dollars
|
Shares
|
Dollars
|
Capital
|
Loss
|
Deficit
|
Total
|
|||||||||||||||||||||||||
Balance
December 31, 2007
|
598,558 | $ | 599 | 6,579,647 | $ | 6,580 | $ | 18,910,811 | $ | (37,350 | ) | $ | (16,136,167 | ) | $ | 2,744,473 | ||||||||||||||||
Warrants
issued with Debt
|
1,393,268 | 1,393,268 | ||||||||||||||||||||||||||||||
Conversion
feature of debt
|
435,835 | 435,835 | ||||||||||||||||||||||||||||||
Commons
stock issued for services
|
310,000 | 310 | 209,690 | 210,000 | ||||||||||||||||||||||||||||
Common
stock issued to acquire Skae Beverage International,
LLC
|
1,444,444 | 1,444 | 1,298,556 | 1,300,000 | ||||||||||||||||||||||||||||
Sales
of preferred series J
|
20,000 | 20 | 199,980 | 200,000 | ||||||||||||||||||||||||||||
Transaction
cost on sales of Sereis J preferred shares
|
(33,210 | ) | (33,210 | ) | ||||||||||||||||||||||||||||
Stock-based
compensation expense
|
345,582 | 345,582 | ||||||||||||||||||||||||||||||
Commons
stock issued for dividends on Preferred stock
|
2,465 | 2 | 2,082 | 2,084 | ||||||||||||||||||||||||||||
Conversion
of Preferred series I for common stock
|
(5,000 | ) | (5 | ) | 62,500 | 63 | (58 | ) | - | |||||||||||||||||||||||
Dividend
- benefical conversion feature of Series J preferred
|
23,715 | (23,715 | ) | - | ||||||||||||||||||||||||||||
Preferred
dividend
|
(441,822 | ) | (441,822 | ) | ||||||||||||||||||||||||||||
Net
Loss
|
(4,229,745 | ) | (4,229,745 | ) | ||||||||||||||||||||||||||||
Cumulative
effect of restatement under EITF 07-05
|
(4,000 | ) | (4,000 | ) | ||||||||||||||||||||||||||||
Balance
December 31, 2008
|
613,558 | $ | 614 | 8,399,056 | $ | 8,399 | $ | 22,786,251 | $ | (37,350 | ) | $ | (20,835,449 | ) | $ | 1,922,465 | ||||||||||||||||
Preferred
stock Series H Dividend paid in common stock
|
1,071 | 1 | 941 | 942 | ||||||||||||||||||||||||||||
Preferred
stock Series H Conversion into common stock
|
(23,558 | ) | (24 | ) | 58,895 | 59 | (35 | ) | - | |||||||||||||||||||||||
Warrants
issued with Debt
|
812,606 | 812,606 | ||||||||||||||||||||||||||||||
Stock-based
compensation expense
|
532,866 | 532,866 | ||||||||||||||||||||||||||||||
Commons
stock issued for services
|
1,532,500 | 1,533 | 634,292 | 635,825 | ||||||||||||||||||||||||||||
Cash
exercise of Warrants
|
1,206,354 | 1,206 | 300,382 | 301,588 | ||||||||||||||||||||||||||||
Conversion
of Preferred series A,I and J for common stock
|
(590,000 | ) | (590 | ) | 18,501,787 | 18,502 | (17,912 | ) | - | |||||||||||||||||||||||
Conversion
of debt into common stock by:
|
||||||||||||||||||||||||||||||||
Accrued
dividend
|
1,883,470 | 1,882 | 563,159 | 565,041 | ||||||||||||||||||||||||||||
Accrued
interest
|
2,856,573 | 2,857 | 711,286 | 714,143 | ||||||||||||||||||||||||||||
Other
accrued expenses
|
756,476 | 757 | 188,363 | 189,120 | ||||||||||||||||||||||||||||
Notes
payable
|
24,839,877 | 24,840 | 6,185,123 | 6,209,963 | ||||||||||||||||||||||||||||
Exercise
of warrants into common stock through cashless
conversion
|
1,847,169 | 1,847 | 459,945 | 461,792 | ||||||||||||||||||||||||||||
Common
stock issued through a private placement
|
1,222,219 | 1,222 | 548,778 | 550,000 | ||||||||||||||||||||||||||||
Preferred
dividend
|
(339,346 | ) | (339,346 | ) | ||||||||||||||||||||||||||||
Net
Loss
|
37,350 | (10,930,180 | ) | (10,892,830 | ) | |||||||||||||||||||||||||||
Balance
December 31, 2009
|
- | $ | - | 63,105,447 | $ | 63,105 | $ | 33,706,045 | $ | - | $ | (32,104,975 | ) | $ | 1,664,175 |
See
accompanying notes to the consolidated financial statements
F-5
New
Leaf Brands, Inc.
Consolidated
Statements of Cash Flows
For
the years ended December 31,
|
||||||||
2009
|
2008
|
|||||||
Operating
Activities:
|
||||||||
Continuing
operations
|
||||||||
Net
Loss continuing operations
|
$ | (8,778,643 | ) | $ | (5,212,131 | ) | ||
Adjustments
to reconcile net loss to cash used in continuing operating
activities
|
||||||||
Impairment
of goodwill and other intangible assets
|
- | 103,289 | ||||||
Depreciation
& amortization
|
2,621,459 | 1,297,182 | ||||||
Write-off
debt acquisition cost
|
74,951 | - | ||||||
Stock
compensation expense
|
532,866 | 247,936 | ||||||
Stock
issued for services
|
545,826 | 210,000 | ||||||
Change
in fair value of derivatives payable
|
106,000 | - | ||||||
Realized
loss on investment
|
37,600 | - | ||||||
Gain
on extinquishment of debt
|
(324,988 | ) | - | |||||
Changes
in assets & liabilities:
|
||||||||
(Increase)
decrease in-
|
||||||||
Accounts
receivable
|
(76,053 | ) | 58,693 | |||||
Inventory
|
(245,630 | ) | 221,339 | |||||
Prepaid
expenses
|
2,690 | 17,908 | ||||||
Accounts
payable
|
73,686 | 177,077 | ||||||
Accrued
liabilities
|
449,402 | 467,646 | ||||||
Net
cash used in continuing operations
|
(4,980,834 | ) | (2,411,061 | ) | ||||
Discontinued
operations
|
||||||||
Net
Income (loss) from discontinued operations
|
(2,151,537 | ) | 982,386 | |||||
Adjustments
to reconcile net loss to cash used in discontinue operating
activities
|
||||||||
Depreciation
& amortization
|
39,047 | 105,381 | ||||||
Stock
compensation expense
|
63,873 | 97,647 | ||||||
Changes
in current assets & liabilities
|
369,712 | (80,451 | ) | |||||
Impairment
of goodwill
|
3,250,000 | - | ||||||
Loss
on sale of investment
|
232,598 | - | ||||||
Net
cash provided by discontinued operations
|
1,803,693 | 1,104,963 | ||||||
Net
cash used in operating activities
|
(3,177,141 | ) | (1,306,098 | ) | ||||
Investing
Activites:
|
||||||||
Continuing
operations
|
||||||||
Purchase
of equipment
|
(7,592 | ) | (100,353 | ) | ||||
Purchase
of net assets of Skae Beverage International LLC, net of cash
acquired
|
- | (746,442 | ) | |||||
Investment
in Joint Venture
|
- | (68,868 | ) | |||||
Cash
used in continuing operations investing activities
|
(7,592 | ) | (915,663 | ) | ||||
Discontinued
operations
|
||||||||
Purchase
of equipment
|
(2,120 | ) | (44,576 | ) | ||||
Proceeds
from sale of discontinued operations, net
|
6,120,201 | - | ||||||
Cash
provided by (used in) discontinued operations investing
activities
|
6,118,081 | (44,576 | ) | |||||
Net
cash provided by (used in) investing activities
|
6,110,489 | (960,239 | ) | |||||
Financing
Activities:
|
||||||||
Proceeds
from notes payable
|
2,793,175 | 3,335,975 | ||||||
Proceeds
from sale of common stock
|
550,000 | - | ||||||
Proceeds
from issuance of preferred stock
|
50,000 | 150,000 | ||||||
Payment
of dividends
|
(3,500 | ) | (467,919 | ) | ||||
Payments
on line of credit, net
|
(1,853 | ) | (81,260 | ) | ||||
Principal
payments on notes payable
|
(5,173,245 | ) | (977,584 | ) | ||||
Fees
paid in connection with acquiring debt
|
- | (253,304 | ) | |||||
Fees
paid in connection with raising capital
|
(33,210 | ) | ||||||
Purchase
of common stock by warrant holders
|
301,589 | - | ||||||
Net
cash (used in) provided by financing activities
|
(1,483,834 | ) | 1,672,698 | |||||
Change
in cash & equivalents
|
1,449,514 | (593,639 | ) | |||||
Cash
& cash equivalents beginning of year
|
98,410 | 692,049 | ||||||
Cash
& cash equivalents end of period
|
$ | 1,547,924 | $ | 98,410 | ||||
Supplemental
disclosures:
|
||||||||
Cash
paid during the period for:
|
||||||||
Interest
|
$ | 796,372 | $ | 661,579 | ||||
NONCASH
INVESTING AND FINANCING ACTIVITIES:
|
||||||||
Net
Liabilities acquired from Skae Beverage International, LLC
|
$ | - | $ | 289,439 | ||||
Accrued
preferred stock dividends
|
339,346 | 183,241 | ||||||
Common
stock issued in connection with acquisition
|
- | 1,300,000 | ||||||
Conversion
of preferred stock to common stock
|
5,585,000 | 50,000 | ||||||
Conversion
of debt and accrued expense into common stock
|
5,420,090 | - | ||||||
Debt
issued in connection with acquisition
|
- | 2,100,000 | ||||||
Common
stock issued in lieu of dividends
|
942 | 2,082 | ||||||
Value
of warrants issued in connection with raising capital and
debt
|
729,791 | 180,605 | ||||||
Exchange
of common stock issued for services
|
635,825 | 210,000 | ||||||
Dividend
on beneficial conversion feature series J Preferred stock
|
- | 23,715 |
See
accompanying notes to the consolidated financial
statements
F-6
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS
NOTE
1 - ORGANIZATION AND BASIS OF PRESENTATION
The
consolidated financial statements include NEW LEAF BRANDS, INC. (“the Company”)
and its wholly-owned subsidiaries Nutritional Specialties and Baywood New Leaf
Acquisition, Inc. Nutritional Specialties was acquired by the Company
effective March 30, 2007 and Skae Beverage International LLC was acquired by
Baywood New Leaf Acquisition, Inc. effective September 9,
2008.
The
Company develops, markets and distributes healthy and functional ready-to-drink
(“RTD”) beverages. The Company distributes its products through
independent distributors both internationally and
domestically.
The
Company incorporated as Baywood Financial, Inc. in Nevada on June 13,
1986. In March 1992, the Company changed its name from Baywood
Financial, Inc. to Baywood International, Inc. Between 1992 and 1998,
the Company directed most of its sales efforts to nutraceutical international
markets. In 1999, the Company expanded its nutraceutical business into domestic
markets.
On
April 5, 2007, effective March 30, 2007, the Company acquired, through its
acquisition subsidiary, substantially all of the assets, and assumed certain
liabilities, of Nutritional Specialties for a purchase price of approximately
$11,100,000. Nutritional Specialties is a nutraceutical company that
develops and markets over 350 nutraceutical products under the brand LifeTime®
or LifeTime Vitamins®. The Company caused its acquisition subsidiary
to change its name to Nutritional Specialties, Inc., d/b/a LifeTime® and
operated Nutritional Specialties as a separate, wholly-owned
subsidiary.
On
September 9, 2008 the Company acquired, though its acquisition subsidiary
substantially all of the assets and assumed certain liabilities, of Skae
Beverage International LLC for a purchase price of approximately $4,500,000.
Skae Beverage International LLC was a branding and marketing company focusing on
the ready to drink beverage market. Skae’s premiere brand is New Leaf
Tea. The product comes in 12 organically-sweetened varieties,
and 2 diet varieties. Baywood New Leaf Acquisition Inc.,
d/b/a New Leaf is a separate, wholly-owned subsidiary of the
Company.
On
July 24, 2009, the Company entered into an Asset Purchase Agreement (“the
Agreement”) with Nutra, Inc., a subsidiary of Nutraceutical International
Corporation. Pursuant to the Agreement, the Company sold
substantially all of the rights and assets of Nutritional Specialties, Inc.’s
business, including but not limited to its accounts, notes and other
receivables, inventory, tangible assets, rights existing under assigned purchase
orders, proprietary rights, government licenses, customer lists, records,
goodwill and assumed contracts. Certain rights and assets were
excluded from the purchased assets, including the right to market, sell and
distribute beverages as described in the Agreement. In exchange for the
foregoing, Nutra, Inc. agreed to pay an aggregate purchase price of $8,250,000
in cash, less payment of liabilities, a $250,000 retention and certain
pre-closing working capital adjustments. Pursuant to the Agreement,
the assets of Nutritional Specialties, Inc. were evaluated at closing to see if
they have a minimum net asset value as of the closing date, after giving effect
to normal generally accepted accounting principles, adjustments for reserves and
except for routine reductions related to normal amortization and depreciation,
equal to $1,848,604. If the net asset value was greater or less than $1,848,604
at the closing, the purchase price payable at closing would be increased or
decreased by the amount of such difference on a dollar-for-dollar basis. At
closing, the net asset value was $2,176,411 and therefore the initial purchase
price of $8,250,000 was increased by $327,807. The asset sale contemplated by
the Agreement closed on October 9, 2009.
F-7
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
Baywood
International, Inc. changed its name effective October 16, 2009 to New Leaf
Brands, Inc. to reflect the change in strategic direction with the sale of
Baywood International, Inc.’s nutraceutical businesses on October 9, 2009. The
name change was effective in the market at the open of business October 19,
2009, at which time the Company’s ticker symbol changed from BAYW.OB to
NLEF.OB.
On
September 30, 2009, the Company adopted changes issued by the Financial
Accounting Standards Board (“FASB”) to the authoritative hierarchy of Generally
Accepted Accounting Principles ( GAAP). These changes establish the FASB
Accounting Standards CodificationTM (“Codification”) as the source of
authoritative accounting principles recognized by the FASB to be applied in the
preparation of financial statements in conformity with GAAP. Rules
and interpretive releases of the Securities and Exchange Commission (“SEC”)
under authority of federal securities laws are also sources of authoritative
GAAP for SEC registrants. The FASB will no longer issue new standards in the
form of Statements, FASB Staff Positions, or Emerging Issues Task Force
Abstracts; instead, the FASB will issue Accounting Standards
Updates. Accounting Standards Updates will not be authoritative in
their own right as they will only serve to update the Codification. These
changes and the Codification itself do not change GAAP. Other than
the manner in which new accounting guidance is referenced, the adoption of these
changes had no impact on the consolidated financial statements.
Going
Concern
The
Company’s consolidated financial statements have been prepared in accordance
with U.S. generally accepted accounting principles applicable to a going
concern, which contemplates the realization of assets and the satisfaction of
liabilities and commitments in the normal course of business. The
Company had a working capital deficiency of $2,592,838 and an accumulated
deficit of $32,104,975 at December 31, 2009. The Company had material
operating losses and has not yet created positive cash flows from
operations. The Company’s ability to generate profitable operations
is uncertain. The Company has a significant amount of debt payable in
2010 and at December 31, 2009 was not in compliance with certain financial
covenants related to debt agreements. These factors raise substantial
doubt about the Company’s ability to continue as a going concern. As
discussed above, the Company divested of its nutraceutical business in
2009. The Company intends on focusing on growing its ready-to-drink
beverage business. Management believes that focus on this line of
business will allow the Company to grow the business and generate profits in the
future. However, the Company cannot provide any assurance that
profits from operations will generate sufficient cash flow to meet its working
capital needs and service its existing debt. The consolidated
financial statements do not include adjustments related to the recoverability
and classification of asset carrying amounts or the amount and classification of
liabilities that might result should the Company be unable to continue as a
going concern.
NOTE
2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of consolidation
The
consolidated financial statements include the accounts of all subsidiaries. All
significant intercompany accounts and transactions have been eliminated.
F-8
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES
TO CONSOLIDATED FINANCIAL
STATEMENTS
Revenue
Recognition, Sales Returns and Allowances
Revenue
is recognized when the product is shipped. Sales returns are recorded
as a reduction to sales when a customer and the Company agree a return is
warranted. All returns must be authorized in advance and must be
accompanied by an invoice number within 180 days. If returned, the
Company’s customers are responsible for returning merchandise in resalable
condition. Full credit cannot be given for merchandise that has been
defaced, marked, stamped, or priced in any way. The Company does not
accept products kept longer than two years. Management communicates
regularly with customers to compile data on the volume of product being sold to
the end consumer. This information is used by management to evaluate
the need for additional sales returns allowance prior to the release of any
financial information. The Company’s experience has been such that
sales returns can be estimated accurately based on feedback within 30 days of
customer receipt.
Reclassifications
Certain
prior year amounts on the consolidated statement of operations for the year
ended December 31, 2008 have been reclassified to reflect the Company’s
nutraceutical businesses as discontinued operations.
Comprehensive
Income
The
Company accounts for its Comprehensive Income under the Topic of the
Codification (ASC Topic 220-10), “Comprehensive Income,” establishes standards
for the reporting and display of comprehensive income (loss) and its components
within the financial statements. Other comprehensive income (loss)
consists of charges or credits to stockholders’ equity, other than contributions
from or distributions to stockholders, excluded from the determination of net
income (loss). The Company’s comprehensive income (loss) consists of
unrealized gains and losses on available-for-sale
securities.
Cash
and Equivalents
The
Company considers cash to include all short-term, highly liquid investments that
are readily convertible to known amounts of cash and have original maturities of
three months or less.
Reserves
The
following table summarized the activity in the reserves for allowance for
doubtful accounts for the years ended December
31:
Period
|
Balance
beginning
of
the year
|
Charges
to cost
and
expenses
|
Deductions
|
Balance
end
of
the year
|
||||||||||||
December
31, 2009
|
$ | 256,323 | $ | 57,364 | $ | 223,687 | $ | 90,000 | ||||||||
December
31, 2008
|
$ | 2,166 | $ | 274,485 | $ | 20,328 | $ | 256,323 |
Inventories
Inventories consist primarily of raw material and
finished product and are recorded at the lower of cost or market on an average
cost basis. Raw material includes: material, packaging and labeling materials.
The Company does not process raw materials, but rather has third-party suppliers
formulate, encapsulate and package finished
goods.
F-9
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
Management
analyzes inventory for possible obsolescence on an ongoing basis, and provides a
write down of inventory costs when items are no longer considered to be
marketable. Management’s estimate of a fair market value is inherently
subjective and actual results could vary from our estimate, thereby requiring
future adjustments to inventories and results of
operations.
December
31,
2009
|
December
31,
2008
|
|||||||
Raw
material
|
$ | 91,352 | $ | 289,948 | ||||
Finished
goods
|
394,537 | 927,202 | ||||||
$ | 485,889 | $ | 1,217,150 |
Marketable
Securities
The
Company accounts for its marketable securities under Investment – Debt and
Equity Topic of the Codification (ASC Topic 320-10), which requires certain
securities to be categorized as either trading, available-for-sale or
held-to-maturity. Based on the Company’s intent to invest in the
securities at least through a minimum holding period, the Company’s
available-for-sale securities are carried at fair value with net unrealized gain
or loss recorded as a separate component of stockholders’ equity.
Held-to-maturity securities are valued at amortized cost. If a
decline in fair value of held-to-maturity securities is determined to be other
than temporary, the investment is written down to fair
value.
Property,
Equipment and Depreciation
Property
and Equipment consisted of the following at December
31,
2009
|
2008
|
|||||||
Furniture
and fixtures
|
$ | 26,074 | $ | 20,947 | ||||
Computers
|
112,601 | 116,487 | ||||||
Equipment
|
16,084 | 79,572 | ||||||
Leasehold
improvements
|
- | 13,656 | ||||||
Total
|
$ | 154,759 | $ | 230,662 | ||||
Less: Accumulated
depreciation
|
43,728 | 29,650 | ||||||
Net
property and equipment
|
$ | 111,031 | $ | 201,012 |
Furniture, fixtures, computers and equipment are
recorded at cost and depreciated using the straight-line method over their
estimated useful lives of five years. Leasehold improvements are
recorded at cost and amortized over the lesser of the estimated useful life of
five to seven years or the remaining term of the underlying lease. Depreciation
expense from continuing operations for the years ended December 31, 2009 and
2008 was $28,959 and $33,098, respectively.
F-10
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
Goodwill
and other intangibles
Goodwill
and other intangible assets resulted from the March 30, 2007 acquisition of
certain net assets from Nutritional Specialties, Inc. and the September 9, 2008
acquisition of certain net assets from Skae Beverage International, LLC. The
terms of the acquisition agreement for Skae Beverage International Inc. included
an earn-out. During 2009, the amount of the earn-out to be $260,000.
This amount was added to the Brand Value – New Leaf Tea, as the valuation
indicated the brand value exceeded the original purchase
price. Goodwill and intangible assets consisted of the following at
December 31, 2009 and 2008:
Goodwill-
Nutritional Specialties, Inc.
|
Brand
Value – Nutritional Specialties, Inc.
|
Brand
Value – New Leaf Tea
|
Customer
list- Nutritional Specialties, Inc.
|
Total
|
||||||||||||||||
Asset
value at December 31, 2008
|
$
|
8,917,068
|
$
|
303,400
|
$
|
4,500,824
|
$
|
322,600
|
$
|
14,043,892
|
||||||||||
Accumulated
amortization as of December 31, 2008
|
$
|
-
|
$
|
53,092
|
$
|
112,500
|
$
|
112,913
|
$
|
278,505
|
||||||||||
Net
asset value at December 31, 2008
|
$
|
8,917,068
|
$
|
250,308
|
$
|
4,388,324
|
$
|
209,687
|
$
|
13,765,387
|
||||||||||
Asset
value at December 31, 2009
|
$
|
-
|
$
|
-
|
$
|
4,760,824
|
$
|
-
|
$
|
4,760,824
|
||||||||||
Accumulated
amortization as of December 31, 2009
|
$
|
-
|
$
|
-
|
$
|
562,500
|
$
|
-
|
$
|
562,500
|
||||||||||
Net
asset value at December 31, 2009
|
$
|
-
|
$
|
-
|
$
|
4,198,324
|
$
|
-
|
$
|
4,198,324
|
The
Company evaluates its goodwill for potential impairment on an annual basis or
whenever events or circumstances indicate that an impairment may have occurred
in accordance with the provisions of Goodwill and Other Topic of the
Codification (ASC Topic 350-10), which requires that goodwill be tested for
impairment using a two-step process. The first step of the goodwill impairment
test, used to identify potential impairment, compares the estimated fair value
of the reporting unit containing the Company’s goodwill with the related
carrying amount. If the estimated fair value of the reporting unit exceeds its
carrying amount, the reporting unit’s goodwill is not considered to be impaired
and the second step is unnecessary. The loss from discontinued operations
includes loss on sale of $3,482,598 and, the impairment of Nutritional
Specialties, Inc. intangible assets and goodwill. On October 9, 2009, the
Company completed the sale of the Lifetime and Baywood brands of products, which
is discussed further in Note 12.
The
brand value (including Trademarks and Trade Names) of continuing operations are
being amortized over a ten year period. Amortization expense for the
years ended December 31, 2009 and 2008 was $450,000 and $112,500,
respectively. The aggregate amortization for the years ended December
31, 2010 through December 31, 2014 and years thereafter is as
follows:
Year
|
Amortization
|
|||
2010
|
$ | 482,500 | ||
2011
|
482,500 | |||
2012
|
482,500 | |||
2013
|
482,500 | |||
2014
|
482,500 | |||
Thereafter
|
1,785,824 | |||
Total
|
$ | 4,198,324 |
F-11
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
Deferred
Financing Cost
In
conjunction with certain loans, the Company incurred costs including the
issuance of warrants to purchase the Company’s Common Stock. This
additional consideration is being amortized over the term of the loans using the
straight line method which approximates the effective interest
method. At December 31, 2009 and 2008, deferred financing costs, net
of accumulated amortization, were $0 and 470,572 respectively. The
amortization expense for the years ended December 31, 2009 and 2008 was $470,572
(including $74,591 which was expensed as the related loans that were paid in
October 2009) and $294,925, respectively.
Derivatives
As
part of certain note and warrant agreements, the Company has provided holders
with the option to convert the note or exercise the warrant into the Company’s
common stock at a specified strike price. In order to prevent dilution, if the
new strike price may be lower than the original strike price on the day of
conversion or exercise, the strike price would be lowered to the new conversion
or exercise price. Under the Derivatives and Hedging Topic of the
Codification (ASC Topic 815-40), the Company has determined that these types of
down round protection terms are considered
derivatives.
The
Company originally estimated the fair value of these warrants using a
Black-Scholes-Merton valuation model. The same valuation model approach is
applied to the market price of the Company’s common stock at January 1, 2009 and
December 31, 2009 to determine the amount of the derivative relative to the down
round protection. The fair value of these derivatives at January 1, 2009 was
$4,000 and at December 31, 2009 was $110,000. The change in this derivative
value of $106,000 was included in the consolidated statement of operations as a
change in fair value of derivative payable for the year ended December 31, 2009.
The Company considers these derivative instruments as used for the purpose of
securing financing.
In
August 2009, pursuant to agreements between the Company and individual warrant
holders the Company offered the warrant holders the opportunity to exercise
their warrants at an exercise price of $0.25 per share or to exercise their
remaining warrants on a cashless basis into common
shares.
Additionally,
pursuant to agreements between the Company and individual note holders, the
Company offered the note holders a lower conversion price of certain outstanding
notes and accrued interest to $0.25, with an effective date of August 31, 2009.
The Company completed the conversion of the notes into common stock for those
investors who agreed to exercise this conversion right utilizing the reduced
conversion price.
Certain notes issued by the Company are convertible at the option of the holder. These notes were fully paid or converted to Common Stock in the fourth quarter of 2009. The fair value of these derivatives at January 1, 2009 was $2,000 and was charged to retained earnings as a cumulative effect of adopting ASC Topic 815-40. The change in fair value of the derivatives to zero as of December 31, 2009 was included in financing cost for the year then ended. The Company considers these derivative instruments as used for the purpose of securing financing.
The
Company has a note agreement with a related party that specifies that if the
Company is in default, the Company must pay to the holder additional
compensation. The fair value of this derivative at January 1, 2009
was $2,000 and was charged to retained earnings as a cumulative effect of
adoption ASC Topic 815-40 The fair value at December 31, 2009 was zero. The
change in this derivative value of $2,000 was included in financing cost for the
year then ended. The Company considers this derivative instrument as used for
the purpose of securing financing.
F-12
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
Stock-Based
Compensation
Under
the Compensation Topic of the Codification (ASC Topic 718-10), the Company is
required to measure the cost of employee services received in exchange for all
equity awards granted including stock options based on the fair market value of
the award as of the grant date.
The
Company granted stock options and issued restricted stock in the years ended
December 31, 2009 and 2008. Accordingly, compensation cost has been
recognized for the stock options and restricted stock granted to employees and
vendors in the years ended December 31, 2009 and 2008 of $468,993 and $345,581,
respectively.
The
fair value of each option grant is estimated on the date of grant using the
Black-Scholes option-pricing model with the following assumptions for years
ended December 31:
2009
|
2008
|
|||
Dividend
yield
|
-
|
-
|
||
Volatility
|
105%
to 115%
|
103%
to 115%
|
||
Risk
free interest rate
|
0.32%
to 3.04%
|
1.94%
to 3.62%
|
||
Estimated
option life
|
3.5
– 7 Years
|
5 –
7 Years
|
||
Forfeiture
rate
|
8%
|
8%
|
The
volatility assumption for options and the liquidity discount on restricted stock
is based on management’s estimate reflecting the thinly traded nature of our OTC
securities and the high relative ownership of management and
directors. As such for 2009, management’s estimate is based on the
monthly changes in stock price. The estimated option life assumption
approximates the “safe harbor” method described in SAB 107 which considers the
weighted average vesting period and the contract term. The forfeiture
rate assumption uses the Company’s past experience of option participants
exercising options granted as management believes this represents the expected
future activity.
Income
Taxes
The
Company accounts for income taxes under the liability method under the Income
Taxes Topic of the Codification (ASC Topic 740-10). Deferred taxes
arise from temporary differences, due to differences between accounting methods
for tax and financial statement purposes. The Company establishes a
valuation allowance for the uncertainty related to its ability to generate
sufficient future taxable income to utilize the net operating loss carryforwards
and other deferred items. At December 31 2009, federal and state net
operating loss carryforwards were approximately $22,700,000 and $17,000,000,
respectively. The Company has not used any of the net operating loss
carryforwards.
Net
Loss Per Share
Net
loss per share is calculated using the weighted average number of shares of
common stock outstanding during the period. The Company has adopted
the Earnings Per Share Topic of the Codification (ASC Topic 260-10). Diluted
earnings (loss) per share is computed similar to basic earnings (loss) per share
except that the denominator is increased to include the number of additional
common shares that would have been outstanding if the potential common shares
had been issued and if the additional common shares were
dilutive. Diluted earnings (loss) per share may not been presented if
the effect of the assumed exercise of options and warrants to purchase common
shares would have an anti-dilutive effect. A detail calculation of net loss per
share is discussed in note 3.
F-13
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
Advertising
Expenses
The
Company’s advertising primarily consists of print in trade and consumer
publications and promotional expenses for retail placements for certain
products. The Company expenses advertising costs as incurred or the
first time the advertising takes place. Advertising expense from
continuing operations totaled approximately $403,000 and $16,000 for the years
ended December 31, 2009 and 2008, respectively, and is included in marketing
expenses in the accompanying consolidated statements of
operations.
Shipping
& Handling Expenses
Under
the Revenue Recognition Topic of the Codification (ASC Topic 605-45), all
amounts billed to customers in a sales transaction for shipping and handling are
classified as revenue.
Use of
Estimates
The
preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those
estimates.
Financial
Instruments
Financial instruments consist primarily of cash,
accounts receivable and obligations under accounts payable, accrued expenses and
notes payable. The carrying amounts of cash, accounts receivable,
accounts payable, certain notes payable and accrued expenses approximate fair
value because of the short term maturity of those instruments. The
fair value of notes payable to related parties could not be determined because
of conversion features and affiliated nature of those
instruments.
Impairment
of Long-Lived Assets and Long-Lived Assets to be
Disposed
The
Company reviews its long-lived assets and identifiable finite-lived intangibles
for impairment on an annual basis and whenever events or changes in
circumstances indicate that the carrying amount of the asset may not be
recoverable. If such assets were considered to be impaired, the
impairment to be recognized would be measured by the amount by which the
carrying amount of the assets exceeds the fair market value of the
assets. Assets to be disposed of are reported at the lower of the
carrying amount or fair value less costs to sell.
The
Company evaluates the recoverability of property and equipment and intangibles
not held for sale by comparing the carrying amount of the asset or group of
assets against the estimated undiscounted future net cash flows expected to
result from the use of the asset or group of assets. If the estimated
undiscounted future net cash flows are less than the carrying value of the asset
or group of assets being reviewed, an impairment loss would be
recorded. The loss would be measured based on the estimated fair
value of the asset or group of assets compared to the carrying
value. The estimated fair value would be based on the best
information available under the circumstances, including prices for similar
assets and the results of valuation techniques, including the present value of
expected future cash flows using a discount rate commensurate with the risks
involved.
F-14
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Warrants
issued on debt and beneficial conversion
The
Company estimates the fair value of each warrant grant on the date of grant
using the Black-Scholes option-pricing model. The warrant estimates
are based on the following assumptions for the years ended December
31:
2009 | 2008 | ||||
Dividend
yield
|
-
|
-
|
|||
Volatility
|
103%
to 106%
|
99%
to 115%
|
|||
Risk
free interest rate
|
1.97%
to 2.9%
|
2.6%
to 3.0%
|
|||
Term
|
5
years
|
5
years
|
The
Company accounts for the beneficial conversion feature of debt and preferred
stock under the Debt Topic of the Codification (ASC Topic 470-20) using
intrinsic value method measure at the date of the
note.
Recently
Issued Accounting Standards
On
September 30, 2009, the Company adopted changes issued by the Financial
Accounting Standards Board (“FASB”) to the authoritative hierarchy of GAAP.
These changes establish the FASB Accounting Standards CodificationTM
(“Codification”) as the source of authoritative accounting principles recognized
by the FASB to be applied in the preparation of financial statements in
conformity with GAAP. Rules and interpretive releases of the
Securities and Exchange Commission (“SEC”) under authority of federal securities
laws are also sources of authoritative GAAP for SEC registrants. The FASB will
no longer issue new standards in the form of Statements, FASB Staff Positions,
or Emerging Issues Task Force Abstracts; instead, the FASB will issue Accounting
Standards Updates. Accounting Standards Updates will not be
authoritative in their own right as they will only serve to update the
Codification. These changes and the Codification itself do not change
GAAP. Other than the manner in which new accounting guidance is
referenced, the adoption of these changes had no impact on the consolidated
financial statements.
In
June 2008, the FASB ratified the Emerging Issues Task Force ("EITF") Issue No.
07-05, Determining Whether an Instrument (or Embedded Feature) is Indexed to an
Entity's Own Stock ("EITF No. 07-05"). EITF No. 07-05 was issued to
clarify the determination of whether an instrument including an embedded feature
is indexed to an entity's own stock, which would qualify as an exception under
SFAS No. 133, Accounting for Derivative Instruments and Hedging
Activities. EITF No. 07-05 is effective for financial statements
issued for fiscal years beginning after December 15, 2008. Early
adoption for an existing instrument is not permitted. This topic is
under the Derivatives and Hedging Topic of the Codification (ASC Topic 815-10)
and the Company reflected a $4,000 cumulative effect of restatement for the
period ending December 31, 2008.
In
May 2008 the FASB issued Staff Position APB 14-1, Accounting for Convertible
Debt Instruments That May be Settled in Cash upon Conversion (Including Partial
Cash Settlement). APB 14-1 requires companies to separately account
for the liability and equity components of convertible debt instruments to
reflect the nonconvertible debt borrowing rate at fair value. APB
14-1 is effective for financial statements issued for fiscal years beginning
after December 15, 2008. While early adoption is not permitted, APB
14-1 will apply retrospectively for all periods presented. This topic is under
the Debt Topic of the Codification (ASC Topic 470-20) the Company had no such
instruments.
F-15
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE
3 – NET LOSS PER SHARE
Convertible preferred stock and outstanding options
and warrants were not considered in the calculation for diluted loss per share
for the years ended December 31, 2009 and 2008 because the effect of their
inclusion would be anti-dilutive.
2009
|
2008
|
|||||||||||||||||||||||
Loss
|
Shares
|
Per
share
|
Loss
|
Shares
|
Per
share
|
|||||||||||||||||||
Net
(loss)
|
(10,930,180 | ) | $ | (4,229,745 | ) | |||||||||||||||||||
Preferred
stock dividends
|
(339,346 | ) | (465,537 | ) | ||||||||||||||||||||
Basic
loss per share
|
||||||||||||||||||||||||
Loss
available to
Common
Stockholders
|
(11,269,526 | ) | 22,437,434 | $ | (0.50 | ) | $ | (4,695,282 | ) | 6,851,984 | $ | (0.69 | ) | |||||||||||
Effect
of dilutive securities
|
N/A | N/A | ||||||||||||||||||||||
Diluted
loss per share
|
22,437,434 | $ | (0.50 | ) | 6,851,984 | $ | (0.69 | ) |
Preferred
stock convertible to 7,483,044 shares of Common Stock, warrants and options to
purchase 9,668,759 shares of Common Stock and notes convertible into 3,256,862
shares Common Stock were outstanding at December 31 2008. Warrants and
options to purchase 4,789,304 shares of Common Stock were outstanding at
December 31, 2009. These securities were excluded from the computation of
diluted loss per share because the effect of their inclusion would be
anti-dilutive.
NOTE
4 - ACCOUNTS RECEIVABLE
The
Company records revenue and accounts receivable from customers upon shipment of
product to the customer. Sales returns are recorded as a reduction to
sales when a customer and the Company agree a return is
warranted. All returns must be authorized in advance and must be
accompanied by an invoice number within 180 days. The Company
estimates returns based on historical experience and records an allowance for
product returns and uncollectible accounts receivable. Historically,
returns have been immaterial, and the Company has not recorded an allowance for
product returns. The allowance for uncollectible is
estimated based on detail review of the open receivables, accounts at December
31, 2009 and 2008 was $90,000 and $256,323,
respectively.
F-16
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
NOTE
5 – RELATED PARTY NOTES PAYABLE
Related party notes payable at December 31,
consisted of the following:
Description
|
2009
|
2008
|
||||||
Short-term
|
||||||||
Current
portion of notes payable to officer and a director of the
Company
|
$ | - | $ | 1,587,321 | ||||
Notes
payable to a director. Unsecured note bearing interest at 10% per annum
and are due June 2010.
|
150,000 | - | ||||||
Note
payable to officers bearing interest at 12% per annum, unsecured and past
due
|
- | 47,191 | ||||||
Less:
Debt Discount
|
(59,273 | ) | - | |||||
Total
short term related party notes payable
|
$ | 90,727 | $ | 1,634,512 | ||||
Long-term
|
||||||||
Note
payable to an officer of the Company, bearing interest at 8% per annum,
unsecured and matures on March 31, 2009
|
$ | - | $ | 87,500 | ||||
Notes
payable to an officer of the Company and officers family,
bearing interest at 8% per annum, unsecured and matures on various dates
to September, 2013
|
- | 2,100,000 | ||||||
Note
payable bearing interest at 8%, held by an officer of the Company and
convertible into common stock of the Company, unsecured and matures on
March 31, 2009
|
- | 25,000 | ||||||
Notes
payable to a director. Unsecured note bearing interest at 12% per annum
through the 2008 Bridge financing
|
- | 125,000 | ||||||
Note
payable to a director bearing interest at 10%, unsecured and matures on
February 28, 2009
|
- | 500,000 | ||||||
Note
payable to a Officer. Unsecured note bearing interest at 12% per annum and
is due July 2009.
|
- | 200,000 | ||||||
Note
payable to a director. Unsecured note bearing interest at 12% per annum
and is due April 2009.
|
- | 200,000 | ||||||
Notes
payable to a director. Unsecured note bearing interest at 10% per annum
and are due January 2009.
|
- | 350,000 | ||||||
Carrying
value of Long-term notes payable
|
- | 3,587,500 | ||||||
Less:
Debt Discount
|
(150,179 | ) | ||||||
Total
long term debt related parties
|
- | 3,437,321 | ||||||
Less:
current maturities
|
1,587,321 | |||||||
Long-term
portion
|
$ | - | $ | 1,850,000 |
As
described in Note 7, the Company converted most of the debt due related party
into Common Stock of the Company effective August 31,
2009.
Interest
expense in the years ended December 31 2009 and 2008 amounted to $246,300 and
$180,837, respectively. The weighted average interest rate for all
short term borrowings was 16.3% for 2009 and 17.9% for
2008.
F-17
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
On
September 9, 2008 as part of the acquisition of certain assets of Skae Beverage
International LLC, the Company issued to the Skae Family and Friends $1,000,000
Notes which accrued interest at a rate of 8% per year; a $1,000,000 and $100,000
convertible subordinated notes to Skae Beverage International LLC which accrued
interest at a rate of 8% per year. The Skae Family and Friends notes
were payable as to (i) no less than $25,000 and no more than $50,000 every three
months commencing on the first anniversary of the issuance date and (ii) any and
all remaining principal and any accrued but unpaid interest are due in a single
lump sum on the fifth anniversary of the issuance date. Any interest
accrued during the 12 month period following issuance shall be due and payable
in arrears on the first anniversary of the date issued. Any accrued interest
during the 48 months following the first anniversary of the issuance shall be
payable in arrears in quarterly installments on each three-month anniversary of
the first anniversary of the date issued. The Company may prepay the Skae Family
and Friends Notes in whole or in part at any time without premium or penalty or
discount, together with accrued interest to the date of payment on the principal
amount prepaid. Upon an event of default, the holder may convert all or any
portion of the Skae Family and Friends Note into shares of our restricted Common
Stock at an initial conversion price of the greater of (i) 60% of the average of
the last reported closing price of a share of our Common Stock for the 20
business days immediately preceding such day of determination, and (ii) $0.85,
subject to adjustment. In order to prevent dilution, if (i) is lower
than (ii) on the day of conversion, the Company must pay to the holder
additional compensation as set forth in the Skae Family and Friends Note. Upon
the happening of any event of default, the entire principal and all accrued but
unpaid interest thereon, at the option of the holder, may be declared and
thereupon shall become immediately due and payable. The $1,000,000
Note and the $100,000 Note, together the “Notes,” have substantially similar
terms except with respect to the principal amount, conversion and
prepayment. The $1,000,000 Note is convertible in whole or in part
into shares of our restricted Common Stock at any time, however the Company may
prepay the $1,000,000 Note at any time without penalty, together with accrued
interest to the date of payment on the principal amount
prepaid. The $100,000 Note is convertible in whole or in part
at any time from and after September 8, 2009 into shares of our restricted
Common Stock. Both Notes are convertible at $1.50 per share,
subject to adjustment. The Notes are payable in full on the fifth anniversary of
the issuance date. Notwithstanding the foregoing, Skae Beverage
International has the right, exercisable by notice in writing at any time on or
after February 28, 2009, to declare $150,000 of the of the principal amount of
the $1,000,000 Note to be due and payable on March 31, 2009, if such amount is
requested by Skae Beverage International or Eric Skae to satisfy liabilities
arising from the transactions contemplated by the Asset Purchase
Agreement. Interest accrues on the Notes at a rate of 8% per
year. Any interest accrued during the 12 month period following
issuance is due and payable in arrears on the first anniversary of the date of
issuance. Any accrued interest during the 48 months following the
first anniversary of the issuance is payable in arrears in quarterly
installments on each three-month anniversary of the first anniversary of the
date of issuance. Upon the happening of any event of default, the
entire principal and all interest thereon, at the option of the holder, may be
declared and thereupon shall become immediately due and
payable.
On
February 5, 2009, the Company commenced a private placement of Units, referred
to as the February 2009 Bridge Financing B. Each Unit consisted of (i)
$100,000 principal amount of 3% Subordinated Notes, referred to as the 3% Notes,
and (ii) warrants to purchase 300,000 shares of the Company’s common stock at a
price per share of $0.85 which expire February 2014. The 3% Notes mature
on the earlier of (i) September 30, 2009, or (ii) upon the Company’s
consummation of a debt or equity financing in which the Company receives at
least $5,000,000 in gross proceeds, referred to as a Qualified Placement,
business or other change of control. Management is currently in negotiations
with the holders regarding the past due payments on the 3% Notes as of September
30, 2009. The principal amount on the 3% Notes are convertible, at
the option of each investor, into an investment in the securities sold in a
Qualified Placement, on the same terms and conditions as other investors in the
Qualified Placement. The Company has not yet determined the terms of a
Qualified Placement and has not commenced any offers for a Qualified Placement.
The Company used the net proceeds of this private placement for working capital
purposes. As of February 11, 2009, the closing date of the offering, 3.25 Units
were sold to qualified investors for gross proceeds of $325,000. Mr. Tawes
participated in this transaction by acquiring .25 Units. Mr. Tawes is a member
of the Company’s Board of Directors.
F-18
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
On
March 20, 2009, the Company entered into a transaction with Eric Skae, the
Company’s Chief Executive Officer and Chairman of the Board, whereby it issued
to Mr. Skae an 18% Subordinated Note, with an effective date of March 17, 2009,
for a principal amount of $325,000 and a warrant to purchase 100,000 shares of
the Company’s common stock at an exercise price of $0.85 per share, with an
expiration date of March 20, 2014. The value of the warrant was
$31,285 and was accounted for as debt discount. The Note was due on
April 12, 2009, unless due earlier in accordance with the terms of the
Note. Interest accrues on the Note at a rate of 18% per
year. Between March 30, 2009 and October 12, 2009, the Company made
payments to Mr. Skae on outstanding debt, including $325,000 due on the 18%
Note.
On
March 26, 2009, the Company entered into a transaction with Mr. Tawes, a member
of the Company’s Board of Directors, whereby Mr. Tawes provided financing to the
Company in the amount of $113,357 in exchange for a 12% Subordinated Note and a
warrant to purchase 175,000 shares of the Company’s common stock at an exercise
price of $0.85 per share, with an expiration date of March 26,
2014. The value of the warrant was $39,727 and was accounted for as
debt discount. The Note was due on September 26,
2009.
On
October 14, 2009, Mr. Tawes, a member of the Company’s Board of Directors agreed
to convert all of his outstanding notes totaling $2,798,357, including accrued
interest of $300,022, and 1,369,792 warrants, including those described above,
into an aggregate of 10,993,516 shares of the Company’s common stock at a
conversion rate of $0.25 per share ($2,448,357 in principal plus $300,022 in
interest divided by $0.25 per shares) and agreed to receive $200,000 in cash, a
$150,000 10% unsecured note due in June 2010 and a warrant to
purchase 350,000 shares of the Company’s common stock with an exercise price of
$0.25, with an expiration date of in October 2014. The fair value of
these warrants of $82,817 was recorded as debt discount. Mr. Tawes
assigned the warrants to third parties, including 150,000 warrants to David
Tsiang who is also a member of the Company’s Board of
Directors.
The
following is a schedule of principal maturities for the next five years and the
total amount thereafter on this related party notes as of December 31,
2009:
Year
Ending
December
31,
|
Principal
Maturities
|
|||
2010
|
$ | 150,000 | ||
2011
|
- | |||
2012
|
- | |||
2013
|
- | |||
2014
|
- | |||
Total
|
$ | 150,000 |
F-19
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
NOTE
6 – SHORT-TERM DEBT
Short-term debt at December 31, consisted of the
following:
Description
|
2009
|
2008
|
||||||
Notes
payable bearing interest at 10%, secured and matures on May 24,
2010
|
$ | 1,500,000 | $ | - | ||||
Bank
credit line due in monthly installments of principal and interest based on
outstanding balance at a rate of 1% over prime per annum of 4.25% at
December 31, 2008 until maturity, is secured by all business assets,
maximum borrowing capacity of $500,000.
|
- | 498,368 | ||||||
Bank
credit line due in monthly installments of principal and interest based on
outstanding balance at a rate of 5% over prime per annum of 8.25% at
December 31, 2008 until maturity, is secured by all business assets,
maximum borrowing capacity of $3,000 at December 31, 2008.
|
- | 1,853 | ||||||
Total
|
1,500,000 | 500,221 | ||||||
Less:
Debt Discount
|
(71,000 | ) | - | |||||
Total
Short-term Other
|
$ | 1,429,000 | $ | 500,221 |
On
November 24, 2009, the Company completed a private placement of 15
Units. Each Unit consisted of $100,000 principal amount of 10% Senior
Secured Notes, referred to as “Notes,” and 24,000 shares of our common
stock. The Units were sold to accredited investors in exchange for
$100,000 per Unit. Our gross proceeds from the private placement were
$1,500,000 and we agreed to issue an aggregate of $1,500,000 principal value of
Notes and 360,000 shares of our common stock , value at fair value of $0.25 per
share. The fair value of the common stock of $90,000 was recorded as
debt discount. Amortization of this debt discount of $19,000 is
recorded in the consolidated statements of operations for the year ended
December 31, 2009. The Notes bear interest at a rate of 10% per year
and are payable monthly beginning on December 21, 2009 and thereafter payable on
the 19th of each month or, if the 19th is not a business day, payable on the
next business day. The Notes mature on May 24, 2010 or in the event
of (i) the consummation by the Company of a merger, business combination, sale
of all or substantially all of the Company’s assets or other change of control;
or (ii) the Company securing a bank financing for working capital and when
accomplished the funds will first be used to pay off the note holders fully. If
the bank financing does not materialize or is insufficient to pay the Notes,
future financings will first be used to pay off the notes or (iii) following the
closing of any equity or debt financing (but excluding a Friends and Family
Offering or Operational Finance) by the Company. In addition, a Friends and
Family Offering (defined as a Company marketed best-efforts equity offering of
up to $1,500,000 that closed February 22 , 2010) will not require a prepayment
of the Notes and an Operational Finance (defined as any financing for normal
daily operations) will not require a prepayment of the Notes. The
Company has the right to redeem all or a portion of the Notes for cash at any
time without premium or penalty. In each case, upon at least two
business days prior notice, we will pay a purchase price plus accrued and unpaid
interest, if any, to but not including the purchase date. The obligations of the
Company under the Notes are secured by all accounts receivable and inventory
present and after acquired of the Company and each subsidiary to be shared on a
pari-passu basis relative to the number of Notes purchased by each Holder up to
an aggregate total of $1,500,000 plus any accrued and outstanding interest on
the Notes.
F-20
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
NOTE
7 - LONG-TERM DEBT
Long-term debt at December 31 consisted of the
following:
Description
|
2009
|
2008
|
||||||
Other
|
||||||||
Notes
payable to a bank, bearing interest at Prime plus 2 points (5.25% at
December 31, 2008), has senior debt priority, secured by all business
assets, guaranteed by a director of the Company and matures July 9,
2009
|
$ | - | $ | 1,916,667 | ||||
Note
payable to a bank, bearing interest at 9.75% per annum, has senior debt
priority, secured by all business assets and matures on April 1, 2010,
Company is in default on certain financial covenants.
|
- | 1,338,011 | ||||||
Note
payable bearing interest at 10%, unsecured and matures on February 28,
2009
|
- | 500,000 | ||||||
Notes
payable bearing interest at 8% per annum, unsecured and mature on March
31, 2009
|
87,500 | 87,500 | ||||||
Note
payable bearing interest at 8% convertible into common stock of the
Company, unsecured and matures on March 31, 2009
|
125,000 | 125,000 | ||||||
Notes
payable bearing interest at 12%-28% per annum, are unsecured and mature
June 2003 through June 2010.
|
77,371 | 130,325 | ||||||
Convertible
notes payable – Other. Unsecured notes bear interest at 20%-30% per annum
due January 2009.
|
- | 240,000 | ||||||
Note
payable to a trust, bearing interest at 5% per annum, unsecured, matures
in May 2013
|
822,920 | 899,511 | ||||||
Capitalized
equipment lease
|
- | 2,117 | ||||||
Equipment
loan bearing interest at 11% per annum, mature in November
2013
|
65,459 | 77,237 | ||||||
Notes
payable bearing interest at 36% per annum, are unsecured and mature
January 2009.
|
- | 200,000 | ||||||
Notes
payable. Unsecured note bearing interest at 12% per annum through the 2008
Bridge financing, a director has granted $1,635,000 of these
notes.
|
- | 2,340,000 | ||||||
Carrying
value of Long-term notes payable
|
1,178,250 | 7,856,368 | ||||||
Less:
Debt Discount
|
$ | - | (824,365 | ) | ||||
Total
long-term debt other
|
1,178,250 | 7,032,003 | ||||||
Less
current maturities
|
1,125,908 | 6,168,114 | ||||||
Long-term
debt other
|
52,342 | $ | 863,889 |
Interest
expense in the years ended December 31 2009 and 2008 amounted to $1,042,752 and
$656,134, respectively. The weighted average interest rate for all
short term borrowings was 18.5% for 2009 and 17.9% for
2008.
On
April 4, 2008, the Company commenced a private placement of Units, referred to
as the April 2008 Bridge Financing. Each Unit consisted of (i)
$50,000 principal amount of 12% Subordinated Notes and (ii) Warrants to purchase
31,250 shares of the Company’s Common Stock at a price per share of $0.80 which
expire April 4, 2013. The 12% Subordinated Notes mature on the
earlier of (i) 12 months after initial issuance, (ii) upon the consummation by
the Company of a debt or equity financing in which the Company receives at least
$3,000,000 in gross proceeds, referred to as a Qualified Placement, or other
change of control. The principal amount and accrued interest on the Subordinated
Notes are convertible, at the option of each investor, into investment in the
securities sold in a Qualified Placement, on the same terms and conditions as
other investors in the Qualified Placement. The Company has not yet
determined the terms of a Qualified Placement and has not commenced any offers
for a Qualified Placement. The Company paid Northeast Securities,
Inc., the placement agent for the sales of Units in the 2008 Bridge Financing, a
fee of 7% of the gross proceeds, and is accounted for as debt discount noted in
the above table, received by the Company. 16.6 Units have been sold
to qualified investors for gross proceeds of $830,000. By December 31, 2009
these Units were converted into 2,820,000 shares of Common
stock.
F-21
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
On September 5, 2008, the Company commenced a private
placement of Units, referred to as the September 2008 Bridge
Financing. Each Unit consisted of (i) $100,000 principal amount of
12% Subordinated Notes and (ii) Warrants to purchase 117,647 shares of the
Company’s Common Stock at a price per share of $0.85 which expire September 5,
2013. The 12% Subordinated Notes mature on the earlier of (i)
September 4, 2009, and (ii) the consummation by the Company of a debt or equity
financing or series of debt or equity financings in which the Company receives
at least $4,000,000 in gross proceeds, referred to as a Qualified
Placement. The principal amount and accrued interest on the
Subordinated Notes are convertible, at the option of each investor, into
investment in the securities sold in a Qualified Placement, on the same terms
and conditions as other investors in the Qualified Placement. The
Company has not yet determined the terms of a Qualified Placement and has not
commenced any offers for a Qualified Placement. The Units consisted
of a beneficial conversion feature of $435,836, based on the intrinsic method
and amortized over one year using the straight line method which approximates
the effective interest method. The Company paid Northeast Securities,
Inc., the placement agent, for the sales of Units in the September 2008 Bridge
Financing a fee of 9% of the gross proceeds received by the Company, accounted
for as debt discount noted in the above table, and warrants to purchase 153,884
shares of the Company’s Common Stock at a price per share of $0.85 which expire
September 5, 2013. A total of 16.35 Units were sold to qualified
investors for gross proceeds of $1,635,000. In October 2009 the owners of
$1,485,000 exercised there put on the member of our Board of directors and the
remaining $150,000 Units were converted into 600,000 shares of Common
Stock.
On
December 3, 2008 the Company completed the purchase of a new ERP system and
financed that purchase through a third-party equipment financing arrangement
having an interest rate of 11% and requiring payments of monthly interest and
principal of $1,719 which matures by December 2013.
On
February 5, 2009, the Company commenced a private placement of Units, referred
to as the February 2009 Bridge Financing A. Each Unit consisted of (i)
$100,000 principal amount of 12% Subordinated Notes and (ii) Warrants to
purchase 100,000 shares of the Company’s common stock at an exercise price of
$0.85 per share, which expire February 2014. The 12% Notes mature on the
earlier of (i) September 30, 2009; or (ii) upon the Company’s consummation of a
debt or equity financing in which it receives at least $5,000,000 in gross
proceeds, referred to as a Qualified Placement, business or other change of
control. The principal amount on the 12% Notes are convertible, at the option of
each investor, into an investment in the securities sold in a Qualified
Placement, on the same terms and conditions as other investors in the Qualified
Placement. The Company has not yet determined the terms of a Qualified
Placement and has not commenced any offers for a Qualified Placement. As
of February 11, 2009, 1 Unit was sold to a qualified investor for gross proceeds
of $100,000. Effective August 31, 2009 this unit was converted into 400,000
shares of Common Stock.
On
February 5, 2009, the Company commenced a private placement of Units, referred
to as the February 2009 Bridge Financing B. Each Unit consisted of (i)
$100,000 principal amount of 3% Subordinated Notes; and (ii) Warrants to
purchase 300,000 shares of the Company’s common stock at an exercise price of
$0.85 per share, which expire February, 2014. The 3% Notes mature on the
earlier of (i) September 30, 2009; or (ii) upon the Company’s consummation of a
debt or equity financing in which it receives at least $5,000,000 in gross
proceeds, referred to as a Qualified Placement, business or other change of
control. The principal amount on the 3% Notes are convertible, at the option of
each investor, into an investment in the securities sold in a Qualified
Placement, on the same terms and conditions as other investors in the Qualified
Placement. The Company has not yet determined the terms of a Qualified
Placement and has not commenced any offers for a Qualified Placement. As
of February 11, 2009, the closing date of the offering, 3 Units were sold to a
qualified investor for gross proceeds of $300,000. Effective August 31, 2009
these units were converted into 1,200,000 shares of Common
Stock.
On
April 29, 2009, the Company commenced a private placement of Units, referred to
as the April 2009 Bridge Financing. Each Unit consisted of (i) $100,000
principal amount of 3% Subordinated Notes and (ii) Warrants to purchase 300,000
shares of the Company’s common stock at an exercise price of $0.40 per share,
principal amount of a 3% Subordinated Note which expire May 2014. The 3%
Subordinated Notes mature on the earlier of (i) September 30, 2009; or (ii) upon
the closing of a transaction to sell our wholly-owned subsidiary, Nutritional
Specialties, Inc. Principal repayments were made in June 2009 of 17% of the
principal amount and accrued interest under the 3% Subordinated Notes, then 25%
in August 2009 and the balance in September 2009. As of May 1, 2009, the
closing date of the offering, 4.5 Units had been sold to qualified investors for
gross proceeds of $450,000. During the year 2009 $279,175 were repaid to
investors and the remaining $170,825 was converted into 683,297 shares of Common
Stock.
F-22
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
The
Company also converted certain of our outstanding notes and warrants into common
stock pursuant to agreements between certain holders and the
Company. The individual agreements provide that the holders’ existing
securities will be exchanged for new securities and that defaults and
obligations under such existing securities, if any, will be
waived. Further, the Company offered warrant holders the opportunity
to exercise their outstanding warrants at an exercise price of $0.25 per share
using funds owing to the holder from the Company, or to exercise the warrants on
a cashless basis. The Company also offered debt holders the
opportunity to convert the Company’s existing debt obligations to the debt
holder, at a conversion rate of $0.25 per share, into shares of our common
stock. These debt holders were also given the opportunity to apply
such existing debt to payment of the exercise price of warrants held by that
debt holder. As of December 31, 2009, we have agreed to convert an
aggregate of $6,924,106 of notes and accrued interest into an aggregate of
27,696,450 shares of our common shares at a conversion rate of $0.25 per share.
Additionally, the Company received $301,588 from warrant holders for the
exercise of 1,206,354 warrants into our common stock at an exercise price of
$0.25 per share and through a cashless exercise has converted 3,232,707 warrants
into 1,847,169 shares of common stock.
On
October 9, 2009, contemporaneous with the sale of Nutraceutical businesses, the
Company agreed with California Trust Company, the successor to Vineyard Bank to
pay $3,600,000 in complete and full settlement of the debt and accrued interest
due the bank in the amount of $3,924,988.The $324,988 is reflected as gain on
extinguishment of debt in December 31, 2009
The
Company is in negotiation with certain former shareholders of Nutritional
Specialties, Inc. The value of these notes as of December 31, 2009 in the
aggregate amount of $1,035,920. As of March 29, 2010 the Company is in default
and therefore this amount is reflected as currently
due.
The
Company reviewed the terms of its convertible debt agreements and concluded that
certain debt under ASC Topic 815-40 have embedded derivatives under the
Derivatives and Hedging Topic of the Codification (Topic 815-10). Management
estimates that sufficient authorized shares exist to cover issuances of and
conversions into common stock.
The
following is a schedule of principal maturities for the next five years and the
total amount thereafter on these note as of December 31
2009:
Year
Ending
December
31,
|
Principal
Maturities
|
|||
2010
|
$ | 1,125,909 | ||
2011
|
15,821 | |||
2012
|
17,567 | |||
2013
|
18,953 | |||
2014
|
- | |||
Total
|
$ | 1,178,250 |
F-23
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
NOTE
8 - STOCKHOLDERS EQUITY
RESTRUCTURING
During
the third and fourth quarters of the fiscal year ending December 31, 2009, the
Company initiated a restructuring of the balance sheet by converting our
preferred stock and accrued dividends into common stock, offering to convert
debt into common stock and offering to convert warrants into common
stock. On October 20, 2009, pursuant to the approval by the Company’s
preferred stock holders and the Board of Directors, the Company filed
Certificates of Amendment to the Certificates of Designation of our Class A
Preferred Shares (the “Series A Preferred Stock”), our Series I 8% Cumulative
Convertible Preferred Stock (the “Series I Preferred Stock”), and our Series J
6% Redeemable Convertible Preferred Stock (the “Series J Preferred Stock”)
(together, the “Amendments”). The Amendments have the effect of
causing the outstanding shares of our Series A, Series I and Series J Preferred
Stock to be converted into shares of our common stock, with an effective date of
August 31, 2009. Pursuant to the Amendments, on October 21, 2009, the
Company converted 35,000 shares of Series A Preferred Stock into 1,750 shares of
common stock, 535,000 shares of Series I Preferred Stock plus $557,041 in
accrued dividends into 19,690,172 shares of common stock and 20,000 shares of
Series J Preferred Stock plus $8,000 in accrued dividends into 693,335 shares of
common stock. The conversion price of $0.30 per share and based on the estimate
of fair value of $0.25 per share the company recognized no loss on the
conversion.
The
Company also converted certain of our outstanding notes and warrants into common
stock pursuant to agreements between certain holders and the
Company. The individual agreements provide that the holders’ existing
securities will be exchanged for new securities and that defaults and
obligations under such existing securities, if any, will be
waived. Further, the Company offered warrant holders the opportunity
to exercise their outstanding warrants at an exercise price of $0.25 per share
using funds owing to the holder from the Company, or to exercise the warrants on
a cashless basis. The Company also offered debt holders the
opportunity to convert the Company’s existing debt obligations to the debt
holder, at a conversion rate of $0.25 per share, into shares of our common
stock. These debt holders were also given the opportunity to apply
such existing debt to payment of the exercise price of warrants held by that
debt holder. As of December 31, 2009, we have agreed to convert an
aggregate of $6,924,106 of notes and accrued interest into an aggregate of
27,696,450 shares of our common shares at a conversion rate of $0.25 per share.
Additionally, the Company received $301,588 from warrant holders for the
exercise of 1,206,354 warrants into our common stock at an exercise price of
$0.25 per share and through a cashless exercise has converted 3,232,707 warrants
into 1,847,169 shares of common stock. Based on the estimate of fair value of
$0.25 per share the company recognized no loss on the
conversion.
In
the determination of fair value the Company considered that the historical
volatility of the common stock for the 5 month period prior to August 31, 2009
was 247% above the 35% volatility of the companies derived under the Guideline
Publicly-Traded Company method and therefore the Company’s share price as a
proxy for value of the Common Stock. In estimating fair value the Company
utilized the Discounted Cash Flow method and the Guideline Publicly-Traded
Company Method to determine fair value. The Discounted Cash Flow method utilized
a prospective financial analysis of the estimated future un-levered net cash
flows and Company cost of capital. The Cost of Capital considered the risk-free
rate of 4.1% equity risk, firm specific risk, industry risk and size premium of
10.5%. The Guideline Publicly-Traded Company method is derived from the trading
prices of companies in a similar line of business that is actively traded.
Revenue multiples for comparable companies had a range between 0.7x to 4.2x with
a median of 1.6x and average of 2.0x. Earnings before interest, taxes,
depreciation and amortization of comparable companies had a range between 8.2x
to 22.2x with a median of 11.7x and average of
12.1x.
F-24
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
PREFERRED
STOCK
During
the year ended December 31 2008, the Company issued 20,000 Series J Preferred
Shares. 5,000 of these shares were subscribed under a subscription
agreement dated December 17, 2008 for which payment was received January 13,
2009. Also in 2008, 5,000 shares of Series I Preferred Shares were
converted to 62,500 common shares. On January 26, 2009, we advised our Preferred
Shareholders that we will be suspending the preferred dividends as of December
31 2008. These dividends are cumulative and will resume when our
Company is adequately funded and is generating positive cash flows from
operations.
In
January 2009, a shareholder converted 23,558 Series H Preferred Shares into
58,895 common shares and was issued
an additional 1,071 common shares as payment of the Series H
dividend. Effective August 31, 2009, the Series A, I and J preferred
stock, and accrued dividends owing on the Series I and J preferred stock, were
converted into an aggregate of 20,385,257 shares of common stock. The
Series A preferred stock was convertible into the number of common shares
determined by dividing the total number of shares of Series A preferred
stock held by each holder, by 20. The Series I preferred stock was convertible
into the number of shares of common stock determined by dividing the aggregate
stated value held by each holder by a fixed conversion price of $0.30 per share.
Fractional shares were rounded up to the nearest whole share. The Series J
preferred stock was convertible into the number of shares of common stock
determined by dividing the aggregate stated value held by each holder by a fixed
conversion price of $0.30 per share. Fractional shares were rounded up to the
nearest whole share.
GENERAL
Preferred
stock may be issued in one or more series, having the rights, privileges and
limitations, including voting rights, conversion privileges and redemption
rights, as may, from time to time, be determined by the Board of
Directors. Preferred stock may be issued in the future in connection
with acquisitions, financings, or other matters as the Board of Directors deems
appropriate. In the event that any shares of Preferred stock are to be issued, a
certificate of designation containing the rights, privileges and limitations of
such series of Preferred stock shall be filed with the Secretary of State of
Nevada. The effect of such Preferred stock is that the Board of
Directors alone, subject to, federal securities laws and Nevada law, may be able
to authorize the issuance of Preferred stock which could have the effect of
delaying, deferring or preventing a change in control of the Company without
further action by the stockholders, and may adversely affect the voting and
other rights of the holders of the Common Stock. The issuance of
Preferred stock with voting and conversion rights may also adversely affect the
voting power of the holders of Common Stock, including the loss of voting
control to others.
PREFERRED
STOCK OUTSTANDING
The
Company has four series of Preferred shares outstanding. The total
authorization for all classes of Preferred stock is 10,000,000 shares. As of
December 31, 2009 there were no outstanding Preferred shares. Set forth below is
a description of each such series or class of Preferred
stock.
F-25
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Class A
Preferred Shares. The Company has authorized 35,000 shares of
preferred stock designated as Class A Preferred Shares (the “Class A Shares”),
par value $0.001 per share, of which 35,000 shares are issued and
outstanding. The Class A Shares are convertible at any time, at the
option of the holder thereof, into shares of the Company’s Common Stock on a
one-to-one basis. In the event of dissolution, bankruptcy or
termination of the Company, the par value of all the Class A Shares shall be
paid in full before the Common Stock or any part thereof or any dividend thereon
is paid. Holders of Class A Shares have no voting rights or
redemption rights, and no preference as to dividends or
assets.
Series
H Preferred Stock. The Company has authorized 350,000 shares
of preferred stock designated as Series H Preferred Stock (the “Series H
Preferred”), par value $0.001 and face value of $1.00 per share, of which 23,558
shares are issued and outstanding. The Series H Preferred accrue an
8% per annum cumulative dividend payable in shares of Common Stock, conversion
rights into the Company’s Common Stock at $0.40 per share and are entitled to
one vote for every common share owned on an if-converted basis. The
Series H Preferred are redeemable at the option of the Company only at 115% of
the face value.
Series
I 8% Cumulative Convertible Preferred Stock. The Company has
authorized 1,000,000 shares of preferred stock designated as Series I 8%
Cumulative Convertible Preferred Stock (the “Convertible Preferred Stock”),
$0.001 par value per share, of which 535,000 shares are issued and
outstanding. Each share of Convertible Preferred Stock has a stated
value per share of $10 (the "Stated Value"). The Convertible
Preferred Stock is senior to the Company’s Common Stock with respect to the
right to receive proceeds on liquidation or redemption and is junior to all
indebtedness of the Company. Dividends accrue at the rate of 8% per
annum, payable quarterly in cash, and are due and payable unless and to the
extent that funds are not legally available to the Company to pay
dividends. Dividends not paid shall accrue on a cumulative basis and
are payable upon a Liquidation Event, as defined below, and upon a conversion of
the Convertible Preferred Stock, unless converted into Common Stock at the
option of the holder. At December 31, 2008 the Company had
accumulated undeclared dividends related to Series I Preferred stock of $58,637.
On August 31, 2009 accumulated undeclared dividends related to Convertible
Preferred Stock were converted into Common stock of the company at $0.30 per
share. At the option of the holder, one share of Convertible Preferred Stock may
be converted into 250 shares of Common Stock at any time at a conversion price
of $0.80 per share (the “Conversion Price”), subject to anti-dilution and other
customary adjustments summarized below. In the event any dividend
shall not be paid in full when due (after a 10-day grace period), then for each
quarterly period or portion thereof that such dividend shall not be paid in
full, (i) the conversion price will be reduced by $0.05 (5 cents) but shall not
be reduced below a conversion price of $0.60 per share (the “Special Conversion
Price Adjustment”); and (ii) the dividend rate shall be increased by 50 basis
points (1/2 of 1%), but shall not exceed a dividend rate of 10% per annum. As of
December 31 2008 the Company was late in payment certain dividends and has
accrued $11,737 of additional dividends payable. The Convertible Preferred Stock
will convert automatically into shares of Common Stock upon the closing of an
underwritten public offering by the Company in which (i) gross proceeds to the
Company are equal to or greater than $10 million and (ii) the price per share of
the Common Stock sold in such public offering is equal to or greater than the
then-current Conversion Price. At any time after March 12, 2008, the
Company has the right to cause the mandatory conversion of the Convertible
Preferred Stock into shares of Common Stock if the “Current Stock Price” (as
hereinafter defined) exceeds 500% of the then-current Conversion Price in effect
in any consecutive 30-day trading period. This right may be exercised
upon written notice delivered within 60 days of the end of such 30-day trading
period. At the sole option of the holder, upon conversion of the
Convertible Preferred Stock, accrued and unpaid dividends also may be converted
into shares of Common Stock at the Conversion Price. “Current Stock
Price” means the closing sale price (or if no closing sale price is reported,
the average of the closing bid and closing ask prices or, if more than one in
either case, the average of the average closing bid and average closing ask
prices) as reported in composite transactions for the principal United States
securities exchange on which the Common Stock is traded or, if the Common Stock
is not listed on a United States national or regional securities exchange, as
reported on the OTCBB. The Conversion Price (including the Special
Conversion Price Adjustment) is subject to adjustment for stock splits, stock
dividends, reverse stock splits, recapitalizations, and classifications.
Further, in the event that the Company should issue shares of Common Stock at an
effective price per share less than $0.80, the Conversion Price shall be
adjusted on a weighted average basis to reflect the dilution represented by the
issuance of such shares of Common Stock at such lower effective price on a
fully-diluted basis, provided, however, that no such adjustment shall be made in
the case of certain excluded issuances, including (a) shares of Common Stock
issued upon conversion of the Convertible Preferred Stock or exercise of the
Warrants or in lieu of accrued but unpaid dividends, (b) securities issued upon
the exercise of or conversion of convertible securities, options or warrants
issued and outstanding on the date of authorization of the Convertible Preferred
Stock, provided further that such securities have not been amended thereafter to
increase the number of such securities or to decrease the exercise or conversion
price of any such securities (other than by the anti-dilution provisions
thereof, if any), (c) issuances of equity securities to employees, consultants,
landlords or suppliers of or to the Company in one or more transactions approved
by the board or in mergers, consolidations, acquisitions, joint ventures or
strategic alliances approved by the Board, and (d) issuances of equity
securities to commercial banks or other lenders in connection with the Company
obtaining loan financing in one or more transactions approved by the
Board.
F-26
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
Before
any distribution or payment shall be made to the holders of any Common Stock
with respect to the entitlement to receive liquidation proceeds upon the
occurrence of a Liquidation Event (as hereinafter defined), the holders of
Convertible Preferred Stock shall be entitled to be paid out of the assets of
the Company legally available therefore an amount equal to the Stated Value with
respect to each outstanding share of Convertible Preferred Stock held by them,
plus an additional amount equal to any accrued but unpaid dividends for each
share of Convertible Preferred Stock then held (such amount payable as to each
such share of Convertible Preferred Stock, the “Liquidation
Preference”). If, upon any Liquidation Event, the remaining assets of
the Company legally available for payment of the aggregate amount of all
Liquidation Preferences payable in respect of outstanding shares of Convertible
Preferred Stock (after payment of requisite liquidation distributions or
payments to holders of shares of any class or series of capital stock of the
Company with a liquidation preference senior to the Convertible Preferred Stock)
shall be insufficient to make payment in full of all Liquidation Preferences
payable with respect to outstanding shares of Convertible Preferred Stock and
shares of any class or series of Capital Stock of the Company at the time
outstanding with a liquidation preference on parity with the Convertible
Preferred Stock, then all such remaining assets legally available therefore
shall be distributed among the holders of shares of Convertible Preferred Stock
at the time outstanding and the holders of shares of any class or series of
capital stock of the Company at the time outstanding with a liquidation
preference on parity with the Convertible Preferred Stock, ratably among them in
proportion to the full amounts to which they would otherwise be respectively
entitled. If, upon any Liquidation Event, the remaining assets of the
Company legally available for payment of the aggregate amount of all Liquidation
Preferences payable in respect of outstanding shares of Convertible Preferred
Stock outstanding and all shares of any class or series of capital stock of the
Company at the time outstanding with a liquidation preference on parity with the
Convertible Preferred Stock (after payment of requisite liquidation
distributions or payments to holders of shares of any class or series of capital
stock of the Company with a liquidation preference senior to the Convertible
Preferred Stock) shall be in excess of the amounts necessary to make payment in
full of all Liquidation Preferences payable with respect to outstanding shares
of Convertible Preferred Stock and all such shares of stock on a parity with the
Convertible Preferred Stock, then all such excess assets remaining and legally
available therefore shall be distributed among the holders of shares of
Convertible Preferred Stock at the time outstanding and the holders of the
Common Stock, ratably among them in proportion to the number of shares of Common
Stock then owned or into which shares of Convertible Preferred Stock would then
be convertible. For purposes hereof, the term “Liquidation Event”
shall mean (i)(a) an acquisition after the date hereof by an individual or legal
entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the
Exchange Act) of effective control (whether through legal or beneficial
ownership of capital stock of the Company, by contract or otherwise) of in
excess of fifty percent of the voting securities of the Company, (b) the merger
or consolidation of the Company or any subsidiary of the Company in one or a
series of related transactions with or into another entity as a result of which
the Company ceases to exist or as a result of which the Common Stock ceases to
be a class of securities registered under the Exchange Act, other than (x) a
merger solely for the purpose of changing the jurisdiction of incorporation of
the Company and resulting in a reclassification, conversion or exchange of
outstanding shares of Common Stock solely into shares of Common Stock of the
surviving entity or (y) a merger or consolidation pursuant to which holders of
the capital stock of the Company immediately prior to such transaction have the
right to exercise, directly or indirectly, 50% or more of the total voting power
of all shares of the capital stock entitled to vote generally in elections of
directors of the continuing or surviving person immediately after giving effect
to such issuance, (c) the sale, lease, license or other disposition of all or
substantially all the assets or any substantial asset of the Company in one or a
series of related transactions or (d) the execution by the Company of an
agreement to which the Company is a party or by which it is bound, providing for
any of the events set forth above in (a), (b) or (c) or (ii) any liquidation,
dissolution or winding up of the Company, whether voluntary or
involuntary. Except as otherwise provided by the Nevada Revised
Statutes, the Convertible Preferred Stock votes as a class with the Common Stock
with a number of votes equal to the number of shares of Common Stock into which
each share of Convertible Preferred Stock is convertible at the then-current
Conversion Price. Neither Common Stock nor Convertible Preferred
Stock possesses cumulative voting rights.
Series
J 6% Cumulative Convertible Preferred Stock. The Company has
authorized 100,000 shares of preferred stock designated as Series J 6%
Cumulative Convertible Preferred Stock (the “Convertible Series J Preferred
Stock”), $0.001 par value per share, of which 20,000 shares are issued and
outstanding. Each share of Convertible Series J Preferred Stock has a
stated value per share of $10 (the "Stated Value"). The Convertible
Series J Preferred Stock is senior to the Company’s Common Stock with respect to
the right to receive proceeds on liquidation or redemption and is junior to all
indebtedness of the Company. On August 31, 2009 accumulated
undeclared dividends related to Convertible Preferred Stock were converted into
Common stock of the company at $0.30 per share. For the year ended December 31,
2008 the intrinsic value of the conversion feature of the Series J Preferred
Stock was reflected as a dividend of $23,715 at the time of issuance of the
stock. Dividends accrue at the rate of 6% per annum, payable
quarterly in cash, and are be due and payable unless and to the extent that
funds are not legally available to the Company to pay
dividends. Dividends not paid shall accrue on a cumulative basis and
are payable upon a Liquidation Event, as defined, and upon a conversion of the
Convertible Series J Preferred Stock, unless converted into Common Stock at the
option of the holder. At the option of the holder, one share of
Convertible Preferred Stock may be converted into 57,471 shares of Common Stock
at any time at a conversion price of $0.87 per share (the “Conversion Price”),
subject to anti-dilution and other customary adjustments
summarized. For the year ended December 31, 2008, using the
Black-Scholes option-pricing model the fair-value of the warrants was $36,359,
which would be reflect a net change of zero on additional paid-in
capital.
F-27
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
The
Company has reviewed the terms of the preferred stock and concluded that they do
not contemplate embedded derivatives under the Derivatives and Hedging Topic of
the Codification (ASC Topic 815-10) or liability classification and thus are
appropriately classified within stockholders’ equity
(deficit).
COMMON
STOCK
On
August 31, 2009 the Company completed a restructuring of Preferred stock and
accrued dividends in which the preferred stock and accrued dividends were
converted into common stock at a rate of $0.30 per share agreed between the
company and the shareholder. The following tables summarize this
restructuring:
Preferred
Shares
|
||||||||||||
Preferred
shareholder
|
Converted
common
shares
|
Common
Stock
at
Par
|
Additional
paid
in
capital
|
|||||||||
Directors
|
||||||||||||
Series
I - O Lee Tawes
|
1,722,223 | $ | 1,723 | $ | (1,671 | ) | ||||||
Series
I - N. Russell
|
83,334 | 83 | (82 | ) | ||||||||
Series
I - D. Tsiang
|
116,667 | 117 | (115 | ) | ||||||||
Series
J - R Scott Ricketts
|
333,334 | 333 | (323 | ) | ||||||||
Total
Directors
|
2,255,558 | 2,256 | (2,191 | ) | ||||||||
Non-Affiliates
|
||||||||||||
Series
A
|
1,750 | $ | 2 | $ | 37 | |||||||
Series
I
|
15,911,145 | 15,911 | (15,435 | ) | ||||||||
Series
J
|
333,334 | 333 | (323 | ) | ||||||||
Total
non-affiliates
|
16,246,229 | $ | 16,246 | $ | (15,721 | ) | ||||||
Total
|
18,501,787 | $ | 18,502 | $ | (17,912 | ) |
F-28
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
Accrued
Dividend
|
Accrued
dividend
|
Converted
common
shares
|
Common
Stock
at
Par
|
Additional
paid
in
capital
|
||||||||||||
Directors
|
||||||||||||||||
Series
I - O Lee Tawes
|
$ | 70,930 | 236,434 | $ | 236 | $ | 70,694 | |||||||||
Series
I - N. Russell
|
2,834 | 9,446 | 9 | 2,825 | ||||||||||||
Series
I - D. Tsiang
|
4,843 | 16,142 | 16 | 4,827 | ||||||||||||
Series
J - R Scott Ricketts
|
4,000 | 13,333 | 13 | 3,987 | ||||||||||||
Total
director & officer
|
$ | 82,607 | 275,355 | $ | 274 | $ | 82,333 | |||||||||
Non-affiliates
|
||||||||||||||||
Series
A
|
- | - | - | - | ||||||||||||
Series
I
|
$ | 478,434 | 1,594,781 | $ | 1,595 | $ | 476,839 | |||||||||
Series
J
|
4,000 | 13,334 | 13 | 3,987 | ||||||||||||
Total
non-affiliates
|
$ | 482,434 | 1,608,115 | $ | 1,608 | $ | 480,826 | |||||||||
Total
|
$ | 565,041 | 1,883,470 | $ | 1,882 | $ | 563,159 |
From
August 31, 2009 to December 31, 2009 the Company converted certain debt and
accrued expenses into common stock at $0.25 per share, which the Company
determined to be fair value.
Notes
holder
|
Date
of note
|
Note
payable
|
Conversion
date
|
Converted
common
shares
|
Common
Stock
at
Par
|
Additional
paid
in
capital
|
||||||||||||
Officers
& Directors
|
||||||||||||||||||
Director
- O. Lee Tawes
|
From
March 2007 to September 2008
|
$ | 2,448,357 |
October
14, 2009
|
9,793,428 | $ | 9,794 | $ | 2,438,563 | |||||||||
Officer
- Eric Skae
|
September
2008
|
1,374,281 |
November
2, 2009
|
5,497,152 | $ | 5,497 | $ | 1,368,784 | ||||||||||
Total
director & officer
|
$ | 3,822,638 | 15,290,580 | 15,291 | 3,807,347 | |||||||||||||
Non-affiliates
|
||||||||||||||||||
Convertible
notes payable – Other
|
June
2006 and February 2008
|
$ | 240,000 |
December
17,2009
|
960,000 | $ | 960 | $ | 239,040 | |||||||||
Notes
payable
|
From
October 2005 to November 2008
|
721,500 |
From
July 2009 to November 2009
|
2,886,000 | 2,886 | 718,614 | ||||||||||||
April
2008 Bridge loans
|
April
2008
|
705,000 |
From
August 2009 to November 2009
|
2,820,000 | 2,820 | 702,180 | ||||||||||||
September
2008 Bridge loans
|
September
2008
|
150,000 |
From
August 2009 to October 2009
|
600,000 | 600 | 149,400 | ||||||||||||
February
2009 Bridge loans
|
February
2009
|
400,000 |
From
July 2009 to October 2009
|
1,600,000 | 1,600 | 398,400 | ||||||||||||
April
2009 Bridge loans
|
April
2009
|
170,825 |
From
July 2009 to October 2009
|
683,297 | 683 | 170,142 | ||||||||||||
Total
non-affiliates
|
$ | 2,387,325 | 9,549,297 | $ | 9,549 | $ | 2,377,776 | |||||||||||
Total
Notes payable
|
$ | 6,209,963 | 24,839,877 | $ | 24,840 | $ | 6,185,123 |
F-29
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
Accrued
Interest
|
Accrued
interest
|
Conversion
date
|
Converted
common
shares
|
Common
Stock
at Par
|
Additional
paid
in capital
|
||||||||||||
Officers
& Directors
|
|||||||||||||||||
Director
- O. Lee Tawes
|
$ | 300,023 |
10/14/2009
|
1,200,092 | $ | 1,200 | $ | 298,822 | |||||||||
Officer
- Eric Skae
|
192,579 |
11/2/2009
|
770,316 | 770 | 191,809 | ||||||||||||
Total
director & officer
|
$ | 492,602 | 1,970,408 | $ | 1,970 | $ | 490,631 | ||||||||||
Non-affiliates
|
|||||||||||||||||
Convertible
notes payable - Other
|
$ | 106,572 |
From
July 2009 to November 2009
|
426,293 | $ | 426 | $ | 106,146 | |||||||||
April
2008 Bridge loans
|
95,159 |
From
August 2009 to November 2009
|
380,635 | 381 | 94,778 | ||||||||||||
September
2008 Bridge loans
|
7,688 |
From
August 2009 to October 2009
|
30,750 | 31 | 7,657 | ||||||||||||
February
2009 Bridge loans
|
12,122 |
From
July 2009 to October 2009
|
48,487 | 48 | 12,074 | ||||||||||||
Total
non-affiliates
|
$ | 221,541 | 886,165 | $ | 886 | $ | 220,655 | ||||||||||
Total
|
$ | 714,143 | 2,856,573 | $ | 2,856 | $ | 711,286 |
Other
accrued expenses
|
Other
accrued
expenses
|
Conversion
date
|
Converted
common
shares
|
Common
Stock
at Par
|
Additional
paid
in capital
|
||||||||||||
Officers
& Directors
|
|||||||||||||||||
Officer
– Eric Skae
|
$ | 8,175 |
November
2, 2009
|
32,700 | $ | 32 | $ | 8,143 | |||||||||
Non-affiliates
|
|||||||||||||||||
Preferred
Series I holders
|
$ | 180,944 | 723,776 | $ | 724 | $ | 180,220 | ||||||||||
Total
|
$ | 189,119 | 756,476 | $ | 756 | $ | 188,363 |
F-30
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
During
the period August 31, 2009 to December 31, 2009 the Company received $301,588 in
cash for conversion of the following warrants.
Cash
exercised warrants
|
||||||||||||||
Warrant
holder
|
Conversion
date
|
Converted
common shares
|
Common
Stock
at Par
|
Additional
paid
in capital
|
||||||||||
Director
|
||||||||||||||
Director
- D Tsiang
|
August
31, 2009
|
8,750 | $ | 8 | $ | 2,179 | ||||||||
Non-Affiliates
|
||||||||||||||
Preferred
Series I holders
|
From
August 31 to December 15, 2009
|
435,629 | 436 | 108,471 | ||||||||||
Preferred
Series J holders
|
August
31, 2009
|
14,368 | 14 | 3,578 | ||||||||||
March
2007 Bridge loan
|
August
31, 2009
|
143,159 | 143 | 35,647 | ||||||||||
September
2008 Bridge loans
|
From
August 31 to October 20, 2009
|
117,648 | 118 | 29,294 | ||||||||||
February
2009 Bridge loans
|
August
31, 2009
|
36,800 | 37 | 9,163 | ||||||||||
April
2009 Bridge loans
|
August
31, 2009
|
450,000 | 450 | 112,050 | ||||||||||
Total
non-affliliates
|
1,197,604 | $ | 1,198 | $ | 298,203 | |||||||||
Total
cash exercised warrants
|
1,206,354 | $ | 1,206 | $ | 300,382 |
During
the period July 31 to December 31, 2009 the warrant holder exercise a cashless
conversion of warrants into common stock as follows:
Warrants
converted cashless
|
Conversion
date
|
Converted
common shares
|
Common
Stock
at Par
|
Additional
paid in capital
|
||||||||||
Officers
& Directors
|
||||||||||||||
Director
- R. Scott Ricketts
|
August
3, 2009
|
16,420 | $ | 16 | $ | 4,089 | ||||||||
Director
- N Russell
|
July
31, 2009
|
3,571 | 4 | 889 | ||||||||||
Officer
- Eric Skae
|
November
2, 2009
|
140,327 | 140 | 34,942 | ||||||||||
Total
director & officer
|
160,318 | $ | 160 | $ | 39,920 | |||||||||
Non-affiliates
|
||||||||||||||
Preferred
Series I holders
|
August
2009
|
602,817 | $ | 603 | $ | 150,101 | ||||||||
Preferred
Series J holders
|
August
2009
|
5,714 | 6 | 1,423 | ||||||||||
April
2008 Bridge loans
|
August
2009 to November 2009
|
57,144 | 57 | 14,229 | ||||||||||
September
2008 Bridge loans
|
From
August 2009 to October 2009
|
1,021,176 | 1,021 | 254,272 | ||||||||||
Total
non-affiliates
|
1,686,851 | $ | 1,687 | $ | 420,025 | |||||||||
Total
|
1,847,169 | $ | 1,847 | $ | 459,945 |
F-31
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
For
the year ended December 31, 2009 the Company issued common stock for
services which included:
Value
per share
|
Common
shares
|
Common
Stock
at Par
|
Additional
paid
in capital
|
|||||||||||||
Shares
for services:
|
||||||||||||||||
Investor
Relations
|
$ | 0.25 to $1.00 | 325,000 | $ | 325 | $ | 193,425 | |||||||||
Restructuring
of Debt
|
$ | .025 to $.53 | 755,000 | 755 | 316,795 | |||||||||||
Debt
discount
|
0.25 | 360,000 | 360 | 89,640 | ||||||||||||
Manufacturing
agreement
|
$ | 0.49 | 10,000 | 10 | 4,890 | |||||||||||
Marketing
programs
|
$ | 0.25 to $0.65 | 82,500 | 83 | 29,542 | |||||||||||
Total
|
1,532,500 | $ | 1,533 | 634,292 |
In
addition to the securities surrender by the note and preferred stock holders
noted above the security holder provided the Company a blanket waiver forgoing
any right the security holder may have had, including for example registration
rights or default right, as part of the restructuring exchange
agreement.
During
December 2009, we commenced a private placement offering of common stock and
warrants with certain accredited investors. The offering for sale up to 30 Units
(each a “Unit”
and, collectively, the “Units”)
at a price of $50,000 per Unit, each Unit consisting of 111,111 shares of our
Common Stock (the “Common
Stock”) and warrants (each a “Warrant”
and, collectively, the “Warrants”)
to purchase 59,091 shares of our Common Stock, par value $0.001 per share, at an
exercise price of $0.55 per share (the “Offering”). The
Warrants will expire on or about five years from the Termination Date (as
defined below) and have customary anti-dilution provisions, including that
through the period ended April 30, 2010 if the Company would issue any common
stock or securities that can be converted or exercised for common stock at an
effective price that is less than the unit price the purchases would receive
additional shares or warrants. As of March 29, 2010, no additional shares were
issued at terms more favorable than received by the December 2009 private
placement. As of December 31, 2009, we agreed to issue and sell to
the investors, and the investors agreed to purchase, an aggregate of 1,222,219
shares and 649,999 warrants for an aggregate consideration of $550,000. This
offering closed on February 22, 2010. Upon closing of the private placement, the
Company issued and sold to investors, and the investors agreed to
purchase, an aggregate of 1,988,889 shares of our common stock, par value $0.001
per share plus warrants to purchase 1,057,727 shares of our common stock at an
exercise price of $0.55 per share, subject to adjustment. The
aggregate gross proceeds from the private placement were approximately
$895,000.
F-32
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
NOTE
9 - WARRANTS
Set
forth below is a description of the Company’s warrants as of December 31,
2009:
Shares of Common
Stock
Designation
/ Reason Granted
|
Original
issue date
|
Issuable
Upon
Exercise
|
Exercise
Price
/ Share
|
Expiration
Date
|
||||
New
Product Development
|
July
2007
|
250,000
|
$1.00
|
July
2010
|
||||
Bridge
Warrants / Bridge financing
|
September
2006
|
21,429
|
$1.00
|
September
2011
|
||||
Marketing
Program Development
|
October
2007
|
250,000
|
$1.00
|
October
2012
|
||||
Investor
Warrants / 2007 Private Placement (1)
|
March
2007
|
58,749
|
$0.40
|
March
2012
|
||||
Placement
Agent Warrants
|
March
2007
|
155,000
|
$0.80
|
March
2012
|
||||
12%
Bridge Note Warrants (1)
|
March
2007
|
35,000
|
$1.00
|
March
2012
|
||||
Ancillary
Warrants
|
June
2007
|
5,000
|
$0.40
|
June
2012
|
||||
April
2008 Bridge Notes Warrants (1)
|
April
2008
|
15,625
|
$0.80
|
April
2013
|
||||
September
2008 Bridge Note Warrants
|
September
2008
|
25,884
|
$0.85
|
September
2013
|
||||
Series
J Warrants (1)
|
December
2008
|
14,368
|
$0.87
|
December.
2013
|
||||
October
2009 Note Warrants (1)
|
October
2009
|
350,000
|
$0.25
|
October
2014
|
||||
Investor
Warrants 2009 Private Placement (1)
|
December
2009
|
649,999
|
$0.55
|
December
2014
|
(1)
|
The
exercise price of the warrants and the number of warrant shares subject
thereto shall be subject to adjustment in the event of stock splits, stock
dividends, reverse stock splits, and similar events. Further, in the event
that the Company should issue shares of its Common Stock at an effective
price per share less than the then effective exercise price of the
warrants, the exercise price and the number of warrant shares subject to
such warrants shall be adjusted on a weighted average basis to reflect the
dilution represented by the issuance of such shares of Common Stock and
such lower effective price on a non-fully-diluted basis, subject to
similar exceptions to those described for such adjustments above with
respect to the Convertible Preferred Stock. The impact of this
provision would be to reduce the exercise price. The warrants
contain standard reorganization
provisions.
|
During the year ended December 31, 2009, the Company
issued 350,000 warrants to related parties at an exercise price of $0.85 per
share, 1,000,000 warrants at an exercise price of $0.85 per share, 1,200,000
warrants at an exercise price of $0.40 per share, 50,000 warrants at an exercise
price of $0.65 per share and 350,000 warrants at an exercise price of $0.25 per
share. The warrants were issued as an inducement for loans to the Company or
extension of previously issued loans. In December 2009, the Company
issued 649,999 warrants at an exercise price of $0.55 per share as an inducement
to participate in the December 2009 private placement of equity. During
the year ended December 31, 2008, the Company issued 25,000 warrants at $0.75,
100,000 at $0.79, 881,250 at $0.80, 2,522,414 at $0.85 and 57,472 at
$0.87.
F-33
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
As
part of the previous noted restructuring the warrant holders converted 1,875,616
warrants for notes payable, 2,695,617 warrants for accrued expenses, 3,236,208
warrants in exchange for 1,849,169 in a cashless exchange and 1,203,604 warrants
for $301,588.
The
following table reflects a summary of Common Stock warrants outstanding and
warrant activity during 2009 and 2008:
2009
|
2008
|
|||||||||||||||||||
#
Warrants
|
Weighted
Average
Exercise
Price
|
Weighted
Average
Term
(Years)
|
#
Warrants
|
Weighted
Average
Exercise
Price
|
||||||||||||||||
Warrants
outstanding at January 1,
|
7,250,708 | $ | 0.73 | 3.47 | 3,905,207 | $ | 0.65 | |||||||||||||
Granted
during the year
|
3,599,999 | $ | 0.58 | 4.91 | 3,586,136 | $ | 0.84 | |||||||||||||
Exercised
during the year
|
(9,013,653 | ) | $ | 0.25 | 4.89 | 0 | $ | |||||||||||||
Expired
during the year
|
(6,000 | ) | $ | 0.40 | (240,635 | ) | $ | 0.85 | ||||||||||||
Warrants
outstanding at December 31,
|
1,831,054 | $ | 0.65 | 3.44 | 7,250,708 | $ | 0.73 |
The
Common Stock warrants expire in years ended December 31 as
follows:
2010
|
250,000 | |||
2011
|
21,429 | |||
2012
|
503,749 | |||
2013
|
55,877 | |||
2014
|
999,999 | |||
1,831,054 |
As
discussed in the subsequent events note the company issued 407,727 of additional
warrants in conjunction with the Private Placement that was initiated in
December 2009 and closed in February 22, 2010. In addition, the
Company issued 150,000 warrants in 2010 with an exercise price of $0.49 per
share that expire in March 2015 for services.
F-34
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
NOTE
10 – STOCK OPTIONS AND RESTRICTED STOCK
Under
the Company’s Employee Incentive Stock Option Plan (the “1996 Plan”) approved by
the stockholders in 1996, the total number of shares of Common Stock that may be
granted is 500,000, amended to 325,000 in 1999. The 1996 Plan
provides that shares granted come from the Company’s authorized but unissued
Common Stock. The price of the options granted pursuant to these
plans will not be less than 100% of the fair market value of the shares on the
date of grant. The options expire ten years from date of
grant. At the Company’s Annual Meeting held on December 10, 2004, the
Company’s stockholders approved the 2004 Stock Option Plan (the "2004
Plan"). At the Company’s Board of Directors meeting held on July 28,
2007, the Board approved an increase in the number of shares of Common Stock
that may be granted to 2,000,000 under all plans. At the Company’s
Board of Directors meeting on June 27, 2008, the Board approved a new Stock
Option Plan (the “2008 Plan”) for a total of 2,000,000 additional
shares. The price of the options granted pursuant to these plans will
not be less than 100% of the fair market value of the shares on the date of
grant. The option vesting period is determined by the Board of
Directors at the time of grant and ranges from immediately to five
years. A total of 471,978 shares are available for stock grants under
all plans, or 1% of the Company’s issued and outstanding Common Stock as of
December 31 2009, assuming all options under all plans were granted and
exercised.
The Company granted 1,170,000 and 1,532,000 stock
options during the years ended December 31 2009 and 2008,
respectively.
The summary of activity for the Company's stock
options is presented below:
2009
|
Weighted
Average Exercise Price
|
2008
|
Weighted
Average Exercise Price
|
|||||||||||||
Options
outstanding at beginning of year
|
2,418,052 | $ | 1.11 | 916,000 | $ | 1.13 | ||||||||||
Granted
|
1,170,000 | $ | 0.76 | 1,532,000 | $ | 0.85 | ||||||||||
Exercised
|
- | - | - | - | ||||||||||||
Terminated/Expired
|
(629,800 | ) | $ | 1.41 | (29,948 | ) | $ | 1.16 | ||||||||
Options
outstanding at end of year
|
2,958,250 | $ | 0.75 | 2,418,052 | $ | 1.11 | ||||||||||
Options
exercisable at end of year
|
1,380,850 | $ | 0.90 | 1,200,750 | $ | 1.23 | ||||||||||
Options
available for grant at end of year
|
471,948 | 1,581,948 | ||||||||||||||
Price
per share of options outstanding
|
$ | 0.49 to $3.00 | $ | 0.74 to $3.00 | ||||||||||||
Weighted
average remaining contractual lives of all options
|
6.0
years
|
7.7
years
|
||||||||||||||
Weighted
Average fair value of options granted during the year
|
$ | 0.76 | $ | 0.85 |
F-35
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
The
Common Stock options expire as follows:
2010
|
- | |||
2011
|
1,500 | |||
2012
|
10,000 | |||
2013
|
- | |||
2014
|
- | |||
2015
to 2019
|
2,946,750 | |||
2,958,250 |
The aggregate intrinsic value of the options outstanding
at December 31, 2009 was approximately $33,000 and the aggregate intrinsic value
of the exercisable options outstanding at December 31, 2009 was $51,875 both
with a weighted average remaining contract term of 6.0
years.
Unrecognized compensation costs related to non-vested share-based compensation for the above options amounted to $713,000 and $660,000 as of December 31 2009 and 2008, respectively, with an average forfeiture life of 5.9 years at December 31, 2009.
The
Company granted 100,000 restricted shares of Common Stock during 2007 to Mr.
Pinkowksi that vested ratably over a 5 year period commencing on December 31,
2007. These restricted shares were valued on the grant date at
$56,000 using liquidating discount of 60%. On October 9, 2009 the
Company entered into an agreement with Mr. Pinkowski, the former President of
Nutritional Specialties Inc., which vested all the shares granted in 2007 and
was expensed as part of discontinued operations . Stock based compensation cost
of $33,603 and $11,200 was recorded in discontinued operations in 2009 and 2008
respectively.
NOTE
11 – GAIN ON EXTINQUISHMENT OF DEBT
Contemporaneous with the sale of Nutraceutical
businesses, the Company agreed with California Trust Company, the successor to
Vineyard Bank, to pay $3,600,000 in complete and full settlement of the debt and
accrued interest due the bank in the amount of $3,924,988. This
resulted in a gain on extinguishment of
$324,988.
NOTE
12 – DISCONTINUED OPERATIONS
Prior
to October 9, 2009, the Company operated under the name of Baywood
International, Inc. (“Baywood”) through the combination of a nutraceutical
subsidiary named Nutritional Specialties, Inc., that promoted the LifeTime® and
Baywood nutraceutical brands, and a premium ready-to-drink tea subsidiary that
promoted the New Leaf brand. The LifeTime brand was acquired in March
2007 with the acquisition of Nutritional Specialties, Inc. and the New Leaf
brand was acquired in September 2008 with the acquisition of Skae Beverage
International, LLC.
F-36
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
On
July 23, 2009 and subject to shareholder approval, our Board of Directors
unanimously approved entry into an asset purchase agreement with Nutra, Inc., a
subsidiary of Nutraceutical International Corporation, a Delaware corporation
(the “Asset Sale”) to sell substantially all the rights and assets our
subsidiary, Nutritional Specialties, Inc. including the Lifetime ® and Baywood
brands of products. On July 24, 2009, we entered into an asset
purchase agreement, and submitted to a vote for approval by the Company’s
stockholders. On August 6, 2009, a majority of the Company’s
stockholders approved the Asset Sale. The Asset Sale closed on
October 9, 2009.
Pursuant
to the Asset Sale, the Company sold substantially all of the rights and assets
of the subsidiary Nutritional Specialties, Inc., including but not limited to
accounts, notes and other receivables, inventory, tangible assets, rights
existing under assigned purchase orders, proprietary rights, government
licenses, customer lists, records, goodwill and assumed
contracts. Certain rights and assets were excluded from the purchased
assets, including the right to market, sell and distribute
beverages. In addition, pursuant to the close of the Asset Sale,
certain assets of Nutritional Specialties, Inc. were evaluated at closing to see
if they had a minimum net asset value as of the closing date, after giving
effect to normal generally accepted accounting principles adjustments for
reserves and except for routine reductions related to normal amortization and
depreciation, equal to $1,848,604. If the net asset value was greater
or less than $1,848,604 at the closing, the purchase price payable at closing
would be increased or decreased by the amount of such difference on a
dollar-for-dollar basis. At closing, the net asset value was
$2,176,411 and therefore the initial purchase price of $8,250,000 was increased
by $327,807. Included in this purchase price is a $250,000 hold-back
that is being held by Nutra, Inc. No later than six months after the
closing date, or April 9, 2010, if Nutra, Inc. determines that there is a
material difference between the actual net asset value and the net asset value
at closing, it may prepare a written statement setting forth the calculation of
the actual net asset value and that amount may be deducted from the
hold-back. The Company believes that these funds will be
received. This amount is reflected as escrow deposit on sale of
discontinued operations as of December 31, 2009.
Results
of operations from the discontinued business for the period from January 1, 2009
to October 9, 2009 and for the year ended December 31, 2008 are as
follows:
2009
|
2008
|
|||||||
Sales
|
$ | 11,269,457 | $ | 12,713,755 | ||||
Operating
expenses
|
13,188,396 | 11,731,369 | ||||||
Income
from discountinued operations
|
$ | (1,918,939 | ) | $ | 982,386 |
F-37
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
The sale
of the nutraceutical business resulted in a loss as follows:
Proceeds
on sales
|
$ | 8,250,000 | ||
Adjustment
in proceeds for:
|
||||
Change
in assets
|
327,807 | |||
Severance
for employees
|
45,498 | |||
Net
assets sold, including intangible asset prior to impairment of $3,250,000
initially recorded in April 2009
|
(6,602,799 | ) | ||
Less
payments made to:
|
||||
Trade
payables
|
(1,590,119 | ) | ||
Employees
|
(78,124 | ) | ||
Professional
services and closing cost
|
(584,860 | ) | ||
Loss
on sale of nutraceutical businesses
|
$ | (232,598 | ) |
NOTE 13 –
REALIZED LOSS ON INVESTMENTS
During the year ended December 31,
2009, the Company determined that the investment in Strategic Healthcare Inc.
was impaired. The full amount of the investment was written off
resulting in a loss on this investment of $37,600. The Company had previously
reduced the investment by $37,350 as a component of Other Comprehensive
Income. That amount is included in the loss recorded for the year
ended December 31, 2009.
NOTE 14 -
INCOME TAXES
Deferred income taxes reflect the net
tax effects of temporary differences between the carrying amounts of assets and
liabilities for financial reporting purposes and the amounts used for income tax
purposes. Net deferred tax assets totaling $9,318,000 at December 31,
2009 were offset by a valuation allowance of $9,318,000. The Company
recorded the valuation allowance due to the uncertainty of future realization of
federal and state net operating loss carryforwards that give rise to
approximately $8,938,000 of the net deferred income tax assets. The
deferred income tax assets are comprised of the following at December
31:
2009
|
2008
|
|||||||
Deferred income tax assets: |
|
|
||||||
Write-off
of investment
|
$ | - | $ | 96,000 | ||||
Deferred
compensation
|
100,000 | 116,000 | ||||||
Stock
based compensation
|
485,000 | 280,000 | ||||||
Operating
assets
|
23,000 | 105,000 | ||||||
Debt
acquisition warrants
|
- | 387,000 | ||||||
Settlement
of lawsuit
|
20,000 | 102,000 | ||||||
Net
operating loss carryforward
|
8,913,000 | 6,081,000 | ||||||
Total
deferred income tax assets
|
9,541,000 | 7,167,000 | ||||||
Deferred
income tax liabilities:
|
||||||||
Goodwill
and intangible assets
|
(237,000 | ) | (312,000 | ) | ||||
Valuation
allowance
|
(9,304,000 | ) | (6,855,000 | ) | ||||
Net
total
|
$ | 0 | $ | 0 |
At December 31, 2009, the Company had
federal and state net operating loss carryforwards of approximately $22,712,000
and $17,008,000, respectively. Net operating loss carryforward was reduced by
$5,110,000 to reflect the limitation under section 382 of the Internal Revenue
Code. The federal net operating loss carryforwards expire in 2013 through 2029
and state loss carryforwards expire 2010 through 2015.
F-38
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
The
valuation allowance was increased by $2,463,000 during the year ended December
31, 2009. The current income tax benefit of $2,463,000 and $1,704,000
generated for the years ended December 31, 2009 and 2008, respectively, was
offset by an equal increase in the valuation allowance. The valuation
allowance was increased due to uncertainties as to the Company’s ability to
generate sufficient taxable income to utilize the net operating loss
carryforwards and other deferred income tax items.
A reconciliation of the differences
between the effective and statutory income tax rates is as follows:
2009
|
2008
|
|||||||
Federal
statutory rates
|
$
|
(3,716,000)
|
(34)%
|
$
|
(1,438,000)
|
(34)%
|
||
State
income taxes
|
(765,000)
|
(7)%
|
(296,000)
|
(7)%
|
||||
Valuation
allowance for operating loss carryforwards
|
2,463,000
|
23%
|
1,725,000
|
40%
|
||||
Reduction
in valuation allowance for reduced operating loss
carryforwards
|
2,018,000
|
18%
|
9,000
|
1%
|
||||
Effective
rate
|
$
|
0
|
0%
|
$
|
0
|
0%
|
NOTE 15 -
RELATED PARTY TRANSACTIONS
From time to time, certain officers and
directors loan the Company money as well as defer payment of salaries in order
to assist the Company in its cash flow needs.
The table below sets forth the amounts
of notes payable and accrued salaries of the Company’s officers and directors as
of December 31, 2009, the title reflects the position held by the individual as
of March 9, 2010:
Officer/Director
|
Notes
Payable
|
Accrued
Salaries & Bonus
|
||||||||||
Amount
|
Accrued
Interest
|
Amount
|
||||||||||
Eric
Skae, C.E.O.
& President
|
$ | - | $ | - | $ | 62,500 | ||||||
Neil
Reithinger, Former
C.O.O. & C.F.O.
|
$ | - | - | $ | 76,900 | |||||||
Thomas
Pinkowski, Former
Vice-President
|
$ | - | $ | - | $ | - | ||||||
O.
Lee Tawes, III Director
|
$ | 150,000 | $ | 3,847 | - |
F-39
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
The table
below sets forth the amounts of notes payable and accrued salaries of the
Company’s officers and directors as of December 31, 2008:
Officer/Director
|
Notes
Payable
|
Accrued
Salaries
|
Accrued
Dividend
|
|||||||||||||
Amount
|
Accrued
Interest
|
Amount
|
Amount
|
|||||||||||||
Eric
Skae, C.E.O.
& President
|
$ | 2,300,000 | $ | 52,935 | $ | 12,500 | - | |||||||||
Neil
Reithinger, C.O.O.
& C.F.O.
|
$ | 22,181 | - | $ | 109,900 | |||||||||||
Thomas
Pinkowski, Vice
President
|
$ | 112,500 | $ | 2,276 | $ | - | - | |||||||||
O.
Lee Tawes, III Director
|
$ | 1,175,000 | $ | 93,310 | - | 17,681 |
In
February 2008, as part of the restructuring of two loans with O. Lee Tawes, III,
the Company granted Mr. Tawes a warrant to purchase 50,000 shares of the
Company’ Common Stock at an exercise price of $0.79 per share and a warrant to
purchase 50,000 shares of the Company’s Common Stock at an exercise price of
$0.80 per share, both warrants expiring in February 2013. The value
of the warrants was $57,881 and was accounted for as a debt
discount.
In April
2008, Mr. Tawes participated in a private placement of Units, referred to as the
April 2008 Bridge Financing, by acquiring 2.5 Units. Each Unit
consisted of (i) $50,000 principal amount of 12% Subordinated Notes and (ii)
Warrants to purchase 31,250 shares of the Company’s Common Stock at a price per
share of $0.80, with an expiration date of April 4, 2013.
In July
2008, Mr. Tawes provided additional financing to the Company in the amount of
$200,000 in exchange for (i) a 12% Subordinated Note and (ii) Warrants to
purchase 312,500 shares of the Company’s Common Stock at a price per share of
$0.80, which will expire July 14, 2013. The value of the warrants was
$113,310 and was accounted for as debt discount. A full description
of this transaction is included in Related Party Debt note. In August 2008, the
Company entered into a lease agreement with the brother of the Company’s then
President and Chief Executive Officer, Neil Reithinger. The Board of
Directors, except for Mr. Reithinger, reviewed several proposals for alternate
facilities and determined that Mr. Reithinger’s brother’s facility was superior
and the terms of the lease were better than could be obtained from other
independent third parties. The lease is a five year lease with a two
year option out, with monthly lease payments of $4,500.The Company has notified
Mr. Reithinger’s brother of its intent to exercise the option out provision
effective September 2010.
On
September 9, 2008 as part of the acquisition of certain assets of Skae Beverage
International LLC, the Company issued to the Skae Family and Friends $1,000,000
Notes which accrued interest at a rate of 8% per year, and a $1,000,000 and
$100,000 convertible subordinated notes to Skae Beverage International LLC which
accrue interest at a rate of 8% per year. A full description of this
transaction is included in Related Party Debt note.
F-40
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
On
October 23, 2008, Eric Skae, a Vice President and director, provided financing
to the Company in the amount of $200,000 in exchange for (i) a 12% Subordinated
Note and (ii) Warrants to purchase 295,000 shares of the Company’s Common Stock
at a price per share of $0.85, which will expire October 23,
2013. The value of the warrants was $92,949 and was accounted for as
debt discount. A full description of this transaction is included in Related
Party Debt note.
On November 4, 2008, Scott Ricketts, a
director, participated in a private placement for $100,000. In
exchange, Mr. Ricketts received a warrant to purchase 28,736 common shares at an
exercise price of $0.87 per share, which will expire on November 4,
2013. On November 30, 2008, the Company issued Mr. Ricketts 10,000
shares of Series J Preferred Stock, convertible at $0.87 per share into 114,943
shares of the Company’s Common Stock.
In
February 2009 Mr. Tawes, a director, participated in a private placement of
Units, referred to as the February 2009 Bridge Financing, by acquiring .25
units. Each Unit consisted of (i) $100,000 principal amount of 12%
Subordinated Notes and (ii) Warrants to purchase 100,000 shares of the Company’s
Common Stock at a price per share of $0.85 with an expiration date of February,
2014. The value of the warrants was $15,325 and
was accounted for as debt discount.
On March
20, 2009, the Company entered into a transaction with Eric Skae, the Company’s
Chief Executive Officer and Chairman of the Board, whereby it issued to Mr. Skae
an 18% Subordinated Note, with an effective date of March 17, 2009, for a
principal amount of $325,000 and a warrant to purchase 100,000 shares of the
Company’s common stock at an exercise price of $0.85 per share, with an
expiration date of March 20, 2014. The value of the warrant was
$31,285 and will be accounted for as debt discount. The Note was due
on April 12, 2009, unless due earlier in accordance with the terms of the
Note.
On March
26, 2009, the Company entered into a transaction with Mr. Tawes, a member of the
Company’s Board of Directors, whereby Mr. Tawes provided financing to the
Company in the amount of $113,357 in exchange for a 12% Subordinated Note and a
warrant to purchase 175,000 shares of the Company’s common stock at an exercise
price of $0.85 per share, with an expiration date of March 26,
2014. The value of the warrant was $39,727 and will be accounted for
as debt discount. The Note was due on September 26, 2009.
On
October 14, 2009, Mr. Tawes, a member of the Company’s Board of Directors agreed
to convert all of his outstanding notes of $2,798,357, including accrued
interest of $300,022, and 1,369,792 warrants, including those described
above The Notes were converted into an aggregate of 10,993,516 shares
of the Company’s common stock at a conversion rate of $0.25 per share
($2,448,357 in principal plus $300,022 in interest divided by $0.25 per shares)
and agreed to receive $200,000 in cash, a $150,000 10% unsecured note
due in June 30, 2010 and a warrant to purchase 350,000 shares of the Company’s
common stock with an exercise price of $0.25, with an expiration date of in
October 2014. Mr. Tawes assigned the warrants to third parties,
including 125,000 warrants to David Tsiang who is also a member of the Company’s
Board of Directors.
On
November 2, 2009, Mr. Skae, the Chief Executive Officer and Chairman of the
Board of Directors agreed to convert all of his outstanding notes totaling
$1,374,281, including accrued interest of $192,582, and accrued expenses
of$8,175 into an aggregate of 6,300,168 shares of the Company’s common stock at
a conversion rate of $0.25 per share.
The Company’s policy with regard to
transactions with affiliated persons or entities is that such transactions will
be on terms no less favorable than could be obtained from
non-affiliates. The foregoing transactions are on terms no less
favorable that those that could be obtained from non-affiliates. Any
such transaction must be reviewed by the Company’s independent
directors.
F-41
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
NOTE 16 -
LEASE OBLIGATIONS
The
Company leases its offices and warehouse under various operating leases that
expire in 2010 through 2013. These leases may be canceled at the
option of the Company on September 30, 2010; the Company has notified the
landlord of its intention to cancel as of that date. Rent expense under the
Arizona lease was $53,670 and $54,360 for the years ended December 31, 2009 and
2008, respectively.
The
Company leases certain equipment under various operating leases that expire in
2010 through 2014. Rent expense under these equipment leases was
$47,328 and $44,352 for the years ended December 31, 2009 and 2008,
respectively.
Nutritional
Specialties’ , which lease has been classified as a discontinued operation and
assumed by the acquiror on October 9, 2009, principal office and warehouse is
located in leased space of approximately 10,381 square feet of office space
under an operating lease that expires on June 30, 2010. Rent expense
under this lease was $91,394 and $76,586 for the year ended December 31, 2009
and 2008 which was offset by a sublease rent of $21,801.
Baywood
New Leaf Acquisition principal office is located at 60 Dutch Hill Road #9,
Orangeburg, NY 10962and leases approximately 1,050 square feet of office space
under a non-operating month-to-month lease. Rent expense under this
lease for the year ended December 31, 2009 and from acquisition to December 31
2008 is $19,569 and $6,902 respectively.
On March
8, 2010, the Company entered into a lease for 2,690 square feet of office space
in a building located at One DeWolfe Road, Old Tappan, New Jersey. The lease is
for the period March 1, 2010 to April 30, 2013 with two options to renew for
additional three year periods.
The
future minimum lease obligations for the remaining terms of the leases are as
follows:
Arizona
(related
party)
|
New
Jersey (See
subsequent events note)
|
California
– Lease offset by sublease
|
Equipment
|
|||||||||||||
2010
|
$ | 40,500 | 35,299 | $ | 43,602 | $ | 47,340 | |||||||||
2011
|
48,081 | $ | 30,320 | |||||||||||||
2012
|
24,546 | $ | 6,589 | |||||||||||||
2013
|
12,441 | $ | 3,132 | |||||||||||||
2014
|
$ | 2,349 |
NOTE 17 -
GEOGRAPHIC AREA DATA BY PRODUCT LINE
From
continuing operations the Company generates its revenues from numerous
customers, primarily in the United States. The Company’s product
lines include primarily ready-to-drink beverages. The Company
operates in one reportable segment and holds all of its assets in the United
States. The following table outlines the breakdown of sales to
unaffiliated customers domestically and internationally:
F-42
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
Ready-to-Drink
Beverages
|
||||||||
United
States
|
$ | 2,973,263 | 721,945 | |||||
Canada
|
411,669 | 108,240 | ||||||
Other
international
|
72,236 | |||||||
Total
Ready-to-Drink Beverages
|
$ | 3,457,168 | $ | 830,185 |
From
discontinued operations the Company generated its revenues from numerous
customers, primarily in the United States. The Company’s product
lines include primarily nutritional and dietary supplements. The
Company operated one reportable segment and held all of its assets in the United
States. The following table outlines the breakdown of sales to
unaffiliated customers domestically and internationally:
2009
|
2008
|
|||||||
Nutritional
and Dietary Supplements:
|
||||||||
United
States
|
$ | 9,360,648 | $ | 9,157,125 | ||||
Canada
|
883,205 | 1,073,227 | ||||||
Other
International
|
1,025,604 | 2,483,403 | ||||||
Total
Nutritional and Dietary Supplements
|
$ | 11,269,457 | $ | 12,713,755 |
NOTE 18 -
CREDIT RISK AND OTHER CONCENTRATIONS
As of
December 31, 2008, no customer constituted more that 10% of trade accounts
receivable. As of December 31, 2009, three customers accounted for
17% 16% and 16% of trade accounts receivable. For the years ended
December 31, 2009, there was one customer with 19% of total sales and for the
year ended December 31, 2008, no customer was greater than 10% of consolidated
net sales. The loss of this customer would have a material impact on the
operations of the Company.
From time to time, the Company’s bank
balances exceed federally insured limits. At December 31 2009 the
Company had $1,021,000 bank balances in excess of federally insured
limits. At December 31, 2008, the Company’s no bank balance in excess
of federally insured limits.
The
Company is dependent on certain third-party manufacturers, although we believe
that other contract manufacturers could be quickly secured if any of our current
manufacturers cease to perform adequately. As of December 31 2009 and
2008, we utilized one contract manufacturer. For the periods ended
December 31, 2009 and 2008, we purchased 32% and 35%, respectively, of our raw
material goods from one manufacturer.
NOTE 19 –
CONTINGENCIES
On
December 27, 2007, Farmatek IC VE DIS TIC, LTD, STI, a former distributor of
Nutritional Specialties, filed a claim in the Superior Court of California,
County of Orange, against our wholly-owned subsidiary, Nutritional
Specialties. Farmatek alleges breach of contract and a violation of
California Business and Professional Code. Farmatek was seeking
$4,000,000 plus punitive damages and costs. In February 2009, we
reached a settlement with Farmatek to pay Farmatek and aggregate $250,000 over
the following twelve months and have accrued this item as operating expense in
the year ended December 31, 2008. As of December 31, 2009, the remaining
installments of $125,000 are accrued.
F-43
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
On
September 9, 2008 as part of the acquisition agreement between Skae Beverage
International LLC and Mr. Eric Skae (Skae) and the Company, Skae agreed to an
three-year earn-out payment based on the annual increase in sales and gross
profit margin in relationship to a targeted gross profit margin of 20%, 34% and
37% each of the three year respective. The maximum cumulative
earn-out over the three period is $4,776,100 which includes a $500,000 incentive
if the cumulative earn-out exceeds $2,850,733. At the time of agreement the
cumulative earn-out is not capable of being estimated.. For the year
ended December 31, 2009 the Company has estimate a first year earn-out of
$260,000, which is included in related party liability. The final earn-out is
subject to the approval of both parties.
On
January 29, 2009, the Company was notified that it was named as a defendant,
along with 54 other defendants, in a class action lawsuit under California
Proposition 65 for allegedly failing to disclose the amount of lead in one of
its products. The Company believes that this case is without merit
and plans on defending it vigorously. The Company believes that this
suit will not have a material adverse effect on its results of operations, cash
flows or financial condition.
On March
12, 2010, the Company was notified that it was named as a defendant in lawsuit
for the payment of approximately $345,000 to a former supplier. As of December
31, 2009 this amount is recorded in liabilities.
NOTE 20 –
BUSINESS COMBINATION
On
September 9, 2008, the Company, through a subsidiary, acquired certain assets
and liabilities from Skae Beverage International, LLC. These assets
included current assets, fixed assets and intangible assets such as trademarks
and a brand name. In exchange for the foregoing, the Company agreed
to pay an aggregate purchase price of $3,800,000 and assume certain liabilities
of $1,050,339. For the year ended December 31, 2009 the Company record a
earn-out of $260,000 as a liability and additional other
intangibles. The $3,800,000 purchase price is comprised of a series
of 8% Subordinated Promissory Notes in the aggregate principal amount of
$1,000,000, as well as a payment to Skae Beverage International, LLC of $400,000
in cash, $1,100,000 in 8% Subordinated Promissory Notes and 1,444,444 shares of
the Company’s Common Stock valued at $1,300,000. The Company also
capitalized $152,000 of acquisition related costs.
The
following table sets forth the allocation of the acquisition cost of Skae
Beverage International, LLC in 2008, including acquisition-related expenses, to
the assets acquired and liabilities assumed, based on their estimated fair
values:
2008
|
||||
Current
Assets
|
$ | 726,580 | ||
Equipment
|
34,320 | |||
Other
Intangible assets
|
4,760,824 | |||
Total
Assets Acquired
|
5,521,724 | |||
Current
Liabilities
|
1,040,839 | |||
Total
Liabilities Assumed
|
1,040,839 | |||
Net
Assets Acquired
|
$ | 4,480,885 |
The
following table provides proforma results of operations for the year ended
December 31, 2009 as if Skae acquisition had been acquired as of the beginning
of 2008.:
F-44
NEW
LEAF BRANDS, INC. AND SUBSIDIARIES
PROFORMA
SUMMARY OPERATING STATEMENT
For
the year ended December 31, 2008
From
continuing operations
2008
|
||||
Net
revenues
|
$
|
2,683,059
|
||
Net
loss
|
$
|
(6,118,884
|
)
|
|
Diluted
net loss per share
|
$
|
(0.92)
|
)
|
NOTE 21 -
SUBSEQUENT EVENTS
On
January 7, 2010 as part of the employment agreement with David Tsiang, our Chief
Financial Officer, the Company granted 350,000 options at an exercise price of
$0.63 with an expire date of January 2020.
On
January 28, 2010 based upon a mutual agreement contract the Company agreed with
a vendor to convert their trade payable in the amount of $85,000 into 170,000
Common shares of the Company stock.
On
February 2, 2010, the Company’s Board of Directors authorize the increase in the
number of shares available for the stock option plan by 3,000,000 shares and to
change the vesting of non-vested share to fully vest upon acceptance of a bona
fide offer to acquire the Company.
On
February 22, 2010, the Company closed a private placement of common stock and
warrants with certain accredited investors. Pursuant to the December
2009 private placement described previously, the Company agreed to issue and
sell to the investors, and the investors agreed to purchase, an aggregate of
1,988,889 shares of our common stock, of which 766,665 shares were completed in
January and February 2010 and balance was previously reflecting the period ended
December31, 2009, par value $0.001 per share plus warrants to
purchase 1,057,727 shares of our common stock at an exercise price of $0.55 per
share, subject to adjustment, of which 407,727 warrants were completed in
January and February 2010and balance was previously reflected in the period
ended December 31, 2009. Gross proceeds from the private placement
were approximately $895,000, of which $345,000 was received in January and
February 2010.
On
February 22, 2010, the Company agreed to issue for investor relation services
rendered 3,000,000 common shares, which consist of 2,000,000 shares on February
24, 2010 and the remaining 1,000,000 shares on May 22, 2010, the initial
aggregate value of these shares were valued at the closing market price on
February 24, 2010 of $0.52 per share.
F-45
NEW
LEAF BRANDS, INC.
December
31, 2009 and 2008
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
On
February 24, 2010, the Company agreed with certain vendors to converted their
trade payables in the amount of $83,781 into 206,043 common shares of the
Company stock.
On
February 24, 2010, the Company agreed to issue for investor relation services
rendered a warrant for 150,000 common shares with an exercise price of $0.49 per
share and an expire date of March 2015.
As part
of a severance agreement with a former employee the Company agreed to void the
termination provision of their 28,190 options at an exercise price of $1.02 to
expire June 2018.
On March
8, 2010, the Company entered into a lease for 2,690 square feet of office space
in a building located at One DeWolfe Road, Old Tappan, New Jersey. The lease is
for the period March 1, 2010 to April 30, 2013 with two options to renew for
additional three year periods. Rent for the twelve month period beginning April
15, 2010 is $47,065, for the twelve month period beginning April 15, 2011 is
$48,420, for the twelve month period beginning April 15, 2012 is $49,765 plus
normal increases in Common Area Operating Cost.
On March
12, 2010, the Company was notified that it were named as a defendant in lawsuit
in the United States District Court, Eastern District of
Texas, brought by Vitro Packaging de Mexico, SA de CV, the assignee
of a former supplier. Vitro Packaging alleges the Company owed unpaid
accounts receivable and is seeking payment of approximately $345,000 plus
accrued interest. The $345,000 is included in accounts payable at December 31,
2009. The Company is in discussions with the supplier regarding our
counterclaims. The Company believes this case is without merit and plans to
defend it vigorously.
On March
17, 2010, the Company received a Notice of Indemnification under Asset Purchase
Agreement with Nutra, Inc., the acquirers of the Company’s former nutraceutical
businesses. Nutra contends that certain products distributed under the Baywood
brand failed to disclose the presence of certain components to Nutra or on the
product label and is therefore in violation of certain regulations. The Company
believes the compliant is without merit and plans to challenge the
allegation.
On March
29, 2010 the Board of Directors authorized the issuance of 265,625 shares each
to two debt holders for the conversion of each their $106,250
notes.
On March
29, 2010, the Company agreed to issue for marketing services render 22,500
common shares was valued at the closing market price on March 22, 2010 of $0.43
per share.
On March
29, 2010 the Board of Directors authorized as part of a severance agreement with
a former employee to void the termination provision of their 50,000 options at
an exercise price of $$0.81 to expire September 2018.
F-46