UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 10-K/A

Amendment No. 1

 

(Mark One)

☒  ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended December 31, 2016

 

or

☐  TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from ___________ to ___________

Commission file number: 000-54960

Nxt-ID, Inc.

(Exact name of registrant as specified in its charter)

Delaware		46-0678374
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

285 North Drive

Suite D

Melbourne, FL 32904

(Address of principal executive offices)(Zip Code)

Registrant’s telephone number, including area code: (203) 266-2103

Securities registered pursuant to Section 12(b) of the Act:

Title of each class:		Name of each exchange on which registered:
Common Stock, par value $0.0001 Warrants to purchase Common Stock (expiring September 15, 2019)		The Nasdaq Stock Market LLC The Nasdaq Stock Market LLC

 

Securities registered pursuant to Section 12(g) of the Act:

 

None

(Title of class)

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Act. Yes ☐  No ☒ 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes  ☐  No ☒ 

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 periods that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒  No ☐  

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes  ☒  No ☐ 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K 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 or this Form 10-K or any amendment to this Form 10-K. ☐ 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer   ☐	Accelerated filer                     ☐
Non-accelerated filer     ☐	Smaller reporting company    ☒

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐  No ☒ 

The aggregate market value of the common stock held by non-affiliates of the registrant, as of June 30, 2016, the last business day of the second fiscal quarter, was approximately $11,453,722 based on a total number of shares of our common stock outstanding that day of 3,244,680 and a closing price of $3.53. Shares of common stock held by each director, each officer and each person who owns 10% or more of the outstanding common stock have been excluded from this calculation in that such persons may be deemed to be affiliates. The determination of affiliate status is not necessarily conclusive. 

The registrant had 8,543,339 shares of its common stock outstanding as of April 7, 2017.

 

 

 

EXPLANATORY NOTE

 

This Amendment No. 1 on Form 10-K/A (this “Amendment”) to the Annual Report on Form 10-K for the fiscal year ended December 31, 2016, of Nxt-ID, Inc. (the “Company”) originally filed with the Securities and Exchange Commission on April 14, 2017 (the “Original Filing”), is being filed for the purpose of amending Exhibit 23.1 and 23.2.

 

For purposes of this Amendment, and in accordance with Rule 12b-15 under the Securities Exchange Act of 1934, as amended, Item 15 of the Original Filing has been amended and restated in its entirety. Except as described above, no other changes have been made to the Original Filing, and this Amendment does not modify, amend, or update in any way any of the financial or other information contained in the Original Filing. This Amendment does not reflect events that may have occurred subsequent to the filing date of the Original Filing.

 

Pursuant to Rule 12b-15 promulgated under the Securities Exchange Act of 1934, as amended, this Amendment also contains new certifications pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, which are attached hereto.

 

Capitalized terms used but not otherwise defined in this Amendment have the meanings giving in the Original Filing.

 

 

PART IV

 

Item 15.

Exhibits, Financial Statement Schedules.

 

(a) The following documents are filed as part of this report:

 

(1)

Financial Statements:

 

The audited consolidated balance sheets of the Company as of December 31, 2016 and, 2015, the related consolidated statements of operations, changes in stockholders’ equity (deficiency) and cash flows for the years then ended, the footnotes thereto, and the respective reports of Marcum LLP and KPMG LLP, both independent registered public accounting firms, filed previously.

 

(2)

Financial Schedules:

 

None

 

Financial statement schedules have been omitted because they are either not applicable or the required information is included in the consolidated financial statements or notes hereto.

 

(3)

Exhibits:

 

The exhibits listed in the accompanying index to exhibits are filed or incorporated by reference as part of this Report.

 

(b) The following are exhibits to this Report and, if incorporated by reference, we have indicated the document previously filed with the SEC in which the exhibit was included.

 

Certain of the agreements filed as exhibits to this Report contain representations and warranties by the parties to the agreements that have been made solely for the benefit of the parties to the agreement. These representations and warranties:

 

●

May have been qualified by disclosures that were made to the other parties in connection with the negotiation of the agreements, which disclosures are not necessarily reflected in the agreements;

 

●

May apply standards of materiality that differ from those of a reasonable investor; and

 

●

Were made only as of specified dates contained in the agreements and are subject to subsequent developments and changed circumstances.

 

Accordingly, these representations and warranties may not describe the actual state of affairs as of the date that these representations and warranties were made or at any other time. Investors should not rely on them as statements of fact.

  

 

Exhibit No.		Description of Exhibit
3.1(i)		Certificate of Incorporation (1)
3.(i)(a)		Certificate of Amendment to Certificate of Incorporation (16)
3.1(i)(b)		Certificate of Designations of Series A Convertible Preferred Stock (12)
3.1 (i)(c)		Amendment of Certificate of Designations of Series A Convertible Preferred Stock (14)
3.1(i)(d)		Second Certificate of Amendment of Designations of Series A Convertible Preferred Stock (15)
3.1(i)(e)		Certificate of Designations for Series B Convertible Preferred Stock (15)
3.1(ii)		Bylaws (1)
4.1		Form of Warrant Agreement and Form of Warrant (1)
4.2		Form of Warrant for January 2014 Offering (2)
4.3		Form of Agent Warrant for January 2014 Offering (2)
4.4		Form of Warrant for June 2014 and August 2014 Offerings (5)
4.5		Form of Warrant for September 2014 Offering (6)
4.6		Form of Underwriter Warrant for September 2014 Offering (6)
4.7		Form of Class A Warrant (7)
4.8		Form of Class B Warrant (7)
4.9		Form of Warrant for August 2015 Public Offering (8)
4.10		Form of Warrant for December 2015 Agreement with WorldVentures Holdings, LLC (10)
4.11		Form of Warrant for May 2016 Interest Purchase Agreement with LogicMark, LLC (13)
4.12		Form of Warrant for November 2016 Agreement with LogicMark, LLC (18)
4.13		Form of 8% Original Issue Discount Convertible Note for August 2015 Private Placement (8)
10.1†		2013 Long Term Incentive Plan (1)
10.2†		Forms of Agreement Under 2013 Long Term Incentive Plan (1)
10.3†		Employment Agreement Between Nxt-ID and Gino Pereira (3)
10.4		License Agreement between 3D-ID, LLC and Genex Technologies (1)
10.5		Purchase Agreement between 3D-ID, LLC and Nxt-ID, Inc. (1)
10.6††		Manufacturing agreement with Identita Technologies, Inc., dated January 18, 2013 (4)
10.7		Form of Registration Rights Agreement for June 2014 and August 2014 Offerings (5)
10.8		Form of Registration Rights Agreement for April 2015 Offering (7)
10.9*		Form of Placement Agency Agreement for August 2015 Public Offering
10.10		Form of Securities Purchase Agreement for August 2015 Public Offering (8)
10.11		Form of Registration Rights Agreement for August 2015 Public Offering (8)
10.12		Form of Securities Purchase Agreement for August 2015 Private Placement (8)
10.13		Form of Warrant Purchase Agreement for August 2015 Private Placement (8)
10.14		Form of Securities Purchase Agreement for December 2015 Private Placement (9)
10.15		Form of Registration Rights Agreement for December 2015 Private Placement (9)
10.16		Form of Securities Purchase Agreement for December 2015 Agreement with WorldVentures Holdings, LLC (10)
10.17		Form of Registration Rights Agreement for December 2015 Agreement with WorldVentures Holdings, LLC (10)
10.18		Form of Securities Purchase Agreement for April 2016 Registered Direct Offering (11)
10.19		Form of Interest Purchase Agreement for May 2016 Agreement with LogicMark, LLC (13)
10.20		Form of First Amendment to Interest Purchase Agreement for May 2016 Agreement with LogicMark, LLC (14)
10.21		Form of Secured Subordinated Promissory Note for July 2016 Agreement with LogicMark, LLC (15)
10.22		Form of Security Agreement for July 2016 Agreement with LogicMark, LLC (15)
10.23		Form of Loan Agreement for July 2016 Agreement with LogicMark, LLC (15)
10.24		Form of Subordination Agreement for July 2016 Agreement with LogicMark, LLC (15)
10.25		Form of Securities Purchase Agreement for July 2016 Agreement with LogicMark, LLC (15)
10.26		Form of Registration Rights Agreement for July 2016 Agreement with LogicMark, LLC (15)
10.27		Form of Forbearance Agreement between Nxt-ID and LogicMark Investment Partners, LLC (17)
10.28		Form of Exchange Note for November 2016 Agreement with LogicMark, LLC (18)
10.29		Form of Exchange Agreement for November 2016 Agreement with LogicMark, LLC (18)
10.30		Form of Intercreditor Agreement for November 2016 Agreement with LogicMark, LLC (18)
10.31		First Amendment to Forbearance Agreement for November 2016 Agreement with LogicMark, LLC (18)
14.1		Code of Ethics (3)
21.1**		List of Subsidiaries
23.1*		Consent of Marcum LLP
23.2*		Consent of KPMG LLP
31.1*		Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2*		Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1*		Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2*		Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101.INS**		XBRL Instance Document
101.SCH**		XBRL Taxonomy Schema
101.CAL**		XBRL Taxonomy Calculation Linkbase
101.DEF**		XBRL Taxonomy Definition Linkbase
101.LAB**		XBRL Taxonomy Label Linkbase
101.PRE**		XBRL Taxonomy Presentation Linkbase

 

 

In accordance with SEC Release 33-8238, Exhibits 32.1 and 32.2 are being furnished and not filed.

 

* Filed herewith.

** Filed previously.

† Management contract or compensatory plan or arrangement.

†† Confidential treatment has been received for schedules A, C, and D to the agreement

 

	(1)	Filed as an Exhibit to the Company’s Registration Statement on Form S-1 (File No. 333-184673) with the SEC on January 31, 2013.
	(2)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on January 17, 2014.
	(3)	Filed as an Exhibit to the Company’s Annual Report on Form 10-K with the SEC on February 25, 2014.
	(4)	Filed as an Exhibit to the Company’s Registration Statement on Form S-1/A (File No. 333-184673) with the SEC on March 25, 2013.
	(5)	Filed as an Exhibit to the Company’s Registration Statement on Form S-1 (File No. 333-197845) with the SEC on August 5, 2014.
	(6)	Filed as Exhibit to the Company’s Registration Statement on Form S-1 (File No. 333-197845) with the SEC on August 14, 2014.
	(7)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on April 24, 2015.
	(8)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on July 30, 2015.
	(9)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on December 9, 2015.
	(10)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on January 4, 2016.
	(11)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on April 4, 2016.
	(12)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on April 12, 2016.
	(13)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on May 20, 2016.
	(14)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on July 7, 2016.
	(15)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on July 27, 2016.
	(16)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on September 12, 2016.
	(17)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on September 26, 2016.
	(18)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on November 30, 2016.

 

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

	Nxt-ID, Inc.
Date: July 7, 2017	By:	/s/ Gino M. Pereira
		Gino M. Pereira
		Chief Executive Officer (Principal Executive Officer)
Date: July 7, 2017	By:	/s/ Vincent S. Miceli
		Vincent S. Miceli Chief Financial Officer (Principal Financial Officer and Principal Accounting 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 Registrant and in the capacities and on the dates indicated.

 

Date: July 7, 2017	By:	/s/ Gino M. Pereira
		Gino M. Pereira
		Chief Executive Officer and Director (Principal Executive Officer)
Date: July 7, 2017	By:	/s/ Vincent S. Miceli
		Vincent S. Miceli
		Chief Financial Officer (Principal Financial Officer and Accounting Officer)
Date: July 7, 2017	By:	/s/ Major General David R. Gust, USA, Ret.
		Major General David R. Gust, USA, Ret. Director
Date: July 7, 2017	By:	/s/ Michael J. D’Almada-Remedios, PhD
		Michael J. D’Almada-Remedios, PhD
		Director
Date: July 7, 2017	By:	/s/ Daniel P. Sharkey
		Daniel P. Sharkey
		Director
Date: July 7, 2017	By:	/s/ Michael Orlando
		Michael Orlando
		Director

 

Date: July 7, 2017	By:	/s/ Robin D. Richards
		Robin D. Richards
		Director

 

Date: July 7, 2017	By:	/s/ John Bendheim
		John Bendheim
		Director

 

 

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