CAPC 8-K
Capstone Companies, Inc. (CAPC)
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT
TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date
of Report: November 5, 2024
(Earliest Event Date requiring this Report:
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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| (State of Incorporation or Organization) | (Commission File Number) | (I.R.S. Employer Identification No.) |
(Address of principal executive offices)
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(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2 of this chapter). Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Securities registered pursuant to Section 12(b) of the Act: None
| Title of Class of Securities. | Trading Symbol(s). | Name of exchange on which registered |
| N/A | N/A | N/A |
The Registrant’s Common Stock is quoted on the OTCQB Venture Market of the OTC Markets Group, Inc. under the trading symbol “CAPC.”
Item 1.01 Entry into a Material Definitive Agreement. On October 31, 2024, Capstone Companies, Inc. (“Company”) signed an Unsecured Promissory Note (“Note”) evidencing a loan from Coppermine Ventures, LLC, a private Maryland limited liability company based in Baltimore County, Maryland, (“Coppermine”) of One Hundred Twenty-Five Thousand Nine Hundred Fourteen Dollars ($125,914.00) (“Principal”) to the Company. The Principal is to be used to pay the working capital debts of the Company listed in Exhibit Two to the Note. The Principal accrues interest at a simple annual rate of 7%. Principal and accrued interest thereon is due and payable in a single lump sum due on July 31, 2025, unless occurrence of certain events causes all sums to become due prior to July 31, 2025, including certain events of default. The Note is not secured by collateral or any other secured interest and does not provide for any conversion of debt-to-equity securities or issuance of any securities.
Acceleration of Payment of Debt. Under the Note, the Principal and interest accrued thereon shall become due before July 25, 2025 if: (1) Company files a voluntary bankruptcy petition; (2) an involuntary bankruptcy petition is filed on the Company; (3) Company ceases to be a reporting company under the Securities Exchange Act of 1934 (“1934 Act”); (4) Company’s Common Stock is not quoted on any tier to The OTC Markets Group; or (5) Company breaches the Management Transition Agreement between the Company and Coppermine (see “Management Transition Agreement” below)(“MTA”) and the breach is not timely cured under the terms of the MTA
Business of Coppermine. Coppermine operates health clubs & recreational facilities in State of Maryland that provide social, athletic, and fitness programming for youth, adults and families. Through its subsidiary operations, Coppermine offers youth and adult sports-oriented classes, clinics, camps, leagues, tournaments, and before & after school programs. Coppermine also holds nationally competitive club teams’ competitions in various sports. Swimming, soccer, lacrosse, tennis, pickleball, gymnastics, dance, football, baseball, and karate are some of the available programs offered at various Coppermine facilities. One of Coppermine’s affiliated operations, Copper Union, is focused on indoor and outdoor pickle ball courts coupled with a sports bar, or food-drink service area. Coppermine is owned and operated by Alexander Jacobs, an entrepreneur based in the Baltimore County, Maryland area. Coppermine is not a shareholder of the Company.
Management Transition Agreement (“MTA”). As an inducement to make the loan evidenced by the Note and to make a financial commitment to fund the essential working capital needs of the Company through March 31, 2025, Company and Coppermine signed the MTA on October 31, 2024. MTA provides, in part, that Coppermine will: (1) designate two (2) persons for appointment to the Company’s Board of Directors to fill vacancies on the Company’s Board of Directors; (2) designate a person to act as Chief Executive Officer and President of the Company upon the resignation of the incumbent Chief Executive Officer of the Company; and (3) fund certain essential and projected working capital needs of the Company, as set forth in Attachment Two to the MTA, through March 31, 2025. The “essential working capital needs” are those Company expenses that are necessary to pay to maintain the Company as a reporting company under the 1934 Act, cover the annual fee for the quotation of the Company’s Common Stock on The OTC Markets Group (“OTC”) QB Venture Market and OTC Blue Sky monitoring service through August 2025, retain the acting Chief Financial Officer of the Company, retain outside legal counsel to the Company and maintain Directors’ and Officers’ liability insurance coverage.
Under the MTA, the Company agreed to accept the resignation of two (2) incumbent directors and the incumbent Chief Executive Officer upon receipt of designation of Coppermine’s two (2) candidates for appointment to the Company’s Board of Directors and designation of Coppermine’s candidate for appointment as Chief Executive Officer and President of the Company, which Coppermine candidates would be appointed to their respective positions upon resignation of the two incumbent directors and Chief Executive Officer of the Company, and which appointments would be subject to the Company’s Board of Directors verification that the Coppermine candidates are qualified and eligible to serve in their respective positions with the Company. Coppermine has not designated its candidates as of the date of the filing of this Form 8-K. Under the MTA, Coppermine has until November 30, 2024, to designate its candidates for appointment to the Company’s Board of Directors and appointment as Chief Executive Officer and President of the Company.
Reason for Management Transition Agreement and Note. As reported previously in filings with the Commission, the Company has pursued two courses of action in 2023 and 2024:
(1) an effort to develop a new product line under its Connected Surface consumer product concept to generate revenues to replace the closed traditional LED product line, which was closed in 2023 due to lack of sales, and to replace the product line the Connected Surface Internet-connected smart mirror product line for residential use which was intended to replace the LED product line. The Connected Surface smart mirror failed to generate sufficient revenues to sustain the Company’s operations in 2023 and 2024, and
(2) concurrently, as the new smart mirror product line did not achieve sufficient revenues to sustain the Company’s operations, the Company searched for a new business line to replace its traditional consumer product business line, which new business line could be either developed internally with sufficient third-party funding or result from a merger, acquisition, or joint venture.
These efforts in 2023 and into September 2024 did not produce a new product line or result in the acquisition of a new business line to generate revenues to fund the working capital needs of the Company. The Company significantly reduced its overhead costs in late 2023 and 2024. Mr. Wallach provided the funding to sustain the reduced Company operations through September 2024, with personal funding of the Company by Mr. Wallach in 2023 and through September 2024 of an estimated total of $673,000.
The Company’s efforts in 2023 and the first nine months of 2024 to find a funding source to replace Mr. Wallach’s personal funding of the Company were unsuccessful due primarily to the Company’s lack of revenues, lack of hard assets suitable as collateral, low market price and low trading volume and market liquidity of the Company’s Common Stock and amount of corporate debt. Mr. Wallach will not provide sufficient ongoing working capital funding for the Company after October 2024. As such, the Company had an urgent need to find replacement working capital funding. Funding under the Note and MTA is intended to provide working capital to sustain the Company operations through March 31, 2025.
The appointment of Coppermine’s candidates to the Company’s Board of Directors and Coppermine’s candidate as Company’s Chief Executive Officer and President under the MTA was necessary to induce Coppermine to provide working capital funding, but the Company’s Board of Directors also believes that new management members will serve the best interests of the Company and its public shareholders by potentially expanding the expertise, funding sources and business development capabilities and networks of the Company and bringing possible new perspectives and ideas to the efforts to establish a viable business operation for the Company. The Company is currently focused on the development or acquisition of a new business line capable of generating operating revenues instead of the internal development and launch of a new consumer product.
A copy of the Note is attached to this Current Report on Form 8-K (“Form 8-K”) as Exhibit 10.1. The summary of the Note in this Item 1.01 of the Form 8-K is qualified in its entirety by reference to the Note filed as Exhibit 10.1 to this Form 8-K. A copy of the MTA is attached as Exhibit 10.2 to this Form 8-K. The above summary of the MTA is qualified in its entirety by reference to the MTA as filed as Exhibit 10.2 to this Form 8-K.
Item 5.01 Change in Control of Registrant.
Potential Change in Control of Registrant. With the Note and MTA, Coppermine is the sole source of significant working capital funding for the Company and, as such, Coppermine may be able influence the management of the Company and its business development efforts through the control of funding of the Company. Further, the ability of Coppermine to have two candidates appointed to the Company’s Board of Directors and its candidate appointed as the Company’s Chief Executive Officer and President provides Coppermine with a potential ability to influence or control the management or business development of the Company. There are no provisions or covenants in the Note or MTA that explicitly empower Coppermine or its nominees to control the Company’s management of operations or business development efforts, or overtly restrict the management or business development of the Company. Coppermine does not own any shares of the Company’s voting capital stock as of the date of the filing of this Form 8-K.
Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
As reported in Item 1.01 above, the MTA when implemented will result in the appointment of two new Company directors and a new Chief Executive Officer and President of the Company and the resignation of two incumbent Company directors and the Company’s Chief Executive Officer. As of the date of the filing of this Form 8-K, no resignation of a director or senior officer of the Company has occurred and no appointment of new directors or a new senior officer has occurred.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits. The following documents are filed as exhibits to this Form 8-K:
| Exhibit Number | Exhibit Description | |
| 10.1 | ||
| 10.2 | Management Transition Agreement, dated 31 October 2024, by Capstone Companies, Inc. and Coppermine Ventures, LLC |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
CAPSTONE COMPANIES, INC., A FLORIDA CORPORATION
By: /s/ Stewart Wallach
Stewart Wallach, Chief Executive Officer
Dated: November 5, 2024
Exhibit Index
| Exhibit Number | Exhibit Description | |
| 10.1 | Unsecured Promissory Note, dated 31 October 2024, issued by Capstone Companies, Inc. to Coppermine Ventures, LLC | |
| 10.2 | Management Transition Agreement, dated 31 October 2024, by Capstone Companies, Inc. and Coppermine Ventures, LLC |
Exhibit 10.1
MANAGEMENT TRANSITION AGREEMENT
This Management Transition Agreement, dated October 28, 2024 ("Effective Date"), ("Agreement") is made by Capstone Companies, Inc., a Florida corporation subject to the reporting requirements of the Securities Exchange Act of 1934 and with shares of its Common Stock, $0.0001 par value, ("Common Stock") quoted on The OTC Markets Group, Inc. QB Venture Market ("OTCQB"), ("CCI") and the person or entity identified in Exhibit One hereto ("Other Signatory" or "OS"). OS and CCI may also be refe1Ted to individually as a "party" and collectively as the "parties".
Background
A. CCI is a "fallen angel" public shell company, being a former public operating company that no longer has revenue generating operations and with nominal assets consisting primarily of cash.
B. Since 2023, CCI has relied upon funding by its chief executive officer, a non-employee director and a third party to fund its essential working capital needs, but such funding will not be available in any significant amount after September 30, 2024, and CCI has no other source of funding all of its essential working capital needs. For purposes of this Agreement, "essential working capital needs" means corporate expenses that are necessary to: (1) maintain the quotation of the Common Stock on the OTCQB; (2) pay for accounting and legal professional services and filing fees required to meet legal compliance requirements of CCI under the Securities Exchange Act of 1934 ("1934 Act"), including annual audit work for Annual Report on Form 10-K, and accounting work for Quarterly Reports on Form 10-Q and other 1934 Act filings with the U.S. Securities and Exchange Commission ("SEC"); (3) expenses required to comply with State of Florida corporate compliance requirements; (4) maintenance of corporate directors' and officers' liability insurance; (5) pay federal, state and local taxes and make tax filings; and (6) other miscellaneous corporate expenses deemed by CCI senior management as necessary to maintain CCI's status as an active corporation in good standing under federal and state laws.
C. OS is willing to provide timely funding for the essential working capital needs of CCI under a promissory note shall be issued by CCI to OS concu1Tently with the signing of this Agreement, which promissory note is attached hereto as Attachment One ("Note"). The proceeds of the Note will pay for essential working capital needs that were due as of September 30, 2024.
D. Further, OS is willing under this Agreement to provide additional, future essential working capital for CCI as described in Attachment Two hereto (the "Commitment"), subject to the terms and conditions of this Agreement.
E. For purposes of this Agreement, "business day" means any day on which the banks in Baltimore County, Maryland are open for business on regular operating hours; "qualified person" means a natural person who meets the legal requirements for serving as a director of a Florida corporation, excluding persons who are deemed "bad actors" under Rule 506(d) of Regulation D under the Securities Act of 1933 ("1933 Act") or are barred by a court order or administrative order or applicable laws from serving as a director or officer of a public company; and "significant corporate transaction" means a merger, other business combination, asset sale, stock exchange, stock issuance, or similar transaction.
Intending to be legally bound, the parties agree:
1. OS Actions. On the Effective Date or within two (2) business days thereafter, OS will do the following: (a) execute or cause OS' affiliate to execute the Note and fully fund the principal amount of the Note in good funds on deposit for CCI, which loan will be wired to CCI's designated corporate bank account in accordance with the terms of the Note; (b) provide CCI with a written nomination specifying two (2) qualified persons as OS' nominees to be appointed to and serve as directors on the CCI Board of Directors ("Nominees"), which Nominees will be appointed to fill vacancies on the CCI Board of Directors; (c) specify a qualified person as OS' nominee to serve as chief executive officer of CCI ("CEO Nominee"); (d) execute and tender this completed Agreement to CCI; (e) provide CCI with written certification of financial ability of payee under the Note to fund the Commitment, which written certification is attached hereto as Attachment Two ("Certification")); and (f) take all other actions and sign all additional agreements and instruments that are reasonably necessary to timely complete the actions set forth in Sections 1 (a), (b), (c), (d) and (e) above.
2. CCI Actions. On the Effective Date or within two (2) business days thereafter, CCI will do or cause the occurrence of the following: (a) CCI Board of Directors will appoint the Nominees to serve as directors on the CCI Board of Directors, subject to each Nominee accepting the terms and conditions of service set forth in Exhibit Two hereto; (b) CCI Board of Directors will accept the resignation of the incumbent chief executive officer of CCI and appoint the CEO Nominee as the chief executive officer of CCI, subject to the CEO Nominee accepting the terms and conditions of service set f01th in Exhibit Two hereto; (c) two (2) incumbent directors of CCI will resign as directors of the CCI Board of Directors; (d) execute an advis01y agreement with Stewart Wallach whereby Mr. Wallach will provide corporate governance and business adviso1y services to the CCI Board of Directors and do so as requested for a set number of hours per month and without cash compensation; (e) execute and deliver a complete Agreement to OS; (f) CCI will sign the Note and tender it to OS; and (g) CCI will take all actions and sign all additional agreements and instruments that are reasonably necessary to timely consummate the actions in Sections 2(a), (b), (c), (d), (e) and (f) above. Appointment of each of the Nominees and the CEO Nominee are subject to acceptance of the appointment by CCI hereunder.
3. Conditions Precedent. (a) The fulfillment of all obligations by CCI under Section 2 is a condition precedent to OS' obligations under Section 1 above, and the fulfillment of all obligations by OS under Section 1 above is a condition precedent to CCI's obligations under Section 2. Any breach of Section 1 above by CCI that is not promptly remedied in accordance with Section 5 will constitute a breach of the Note, causing the principal amount and accrued interest thereon under the Note to become immediately due and payable in full. Additionally, Stewart Wallach and Jeffrey Postal must sign an irrevocable proxy for voting their respective shares of Common Stock in favor of the Nominees' election to the CCI Board of Directors and tender the proxy to OS simultaneously with the submission of CCI's signed version of this Agreement (the "Proxy").
4. Confidentiality. (a) Definitions. The following terms are defined as follows: (i) "Disclosing Party" means the party who owns or controls "Protected Information" (as defined herein) disclosed or made available to the other party; (ii) "Non-public material information" means information that is not public and is information that a reasonable investor would consider important in making a decision to hold, sell or buy any securities of a company; (iii) "Recipient" means the party receiving Protected Information of the Disclosing Party (either directly from the Disclosing Party, or through an officer, director, shareholder, employee, agent, or attorney of the Disclosing Party, or from a third party); and (iv) "Protected Information" shall mean all confidential information and non-public material information, in whatever form or format, of a Disclosing Party and all information provided to Recipient by third parties that Disclosing Party is obligated to keep confidential. Without limiting the foregoing, Recipient agrees that any and all information to which Recipient has access concerning non-public material information of or about the Disclosing Party is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and whether designated or marked as confidential or not so designated or marked. Protected Information also includes trade secrets (as defined under applicable state laws) of the Disclosing Party.
(b) Excluded Information. Notwithstanding Section 4(a) above, Protected Information excludes any information that is or becomes part of the public domain through no act or failure to act on the part of the Recipient or any person or entity acting under the direction or control of Recipient; or is required by court order, government agency order to be publicly disclosed; or any information that is required to be publicly disclosed in order to comply with applicable laws or regulations, including federal, state or foreign securities laws and regulations. OS agrees, understands and acknowledges that federal and state securities laws and regulations will require CCI and OS to make public disclosures of information that would otherwise be deemed Protected Information in filings with the SEC and that this Section 4 shall not be construed or enforced so as to bar or prevent such required public disclosures or to make such required public disclosures a breach of this Section 4.
(c) Duration. From the Effective Date until one year after the expiration or termination of this Agreement, Recipient shall hold in confidence and protect all Protected Information of Disclosing Party. Recipient shall also take reasonable security precautions, and such other actions as may be reasonably necessary to ensure that there is no use or disclosure, intentional or inadve1tent, of Protected Information in violation of this Agreement. OS agrees, acknowledges and understands that trading in CCI securities based on non-public material information violates federal and state laws and regulations and is prohibited.
(d) Return of Protected Information. At the request of Disclosing Party at any time, and in any event, upon expiration or termination of this Agreement, Recipient shall immediately return to Disclosing Party all Protected Information in whatever form, including tapes, notebooks, drawings, digital files or other media containing Protected Information, and all copies thereof, then in Recipient's possession or under Recipient's control. Notwithstanding the foregoing, a Recipient shall be entitled to retain Protected Information that is reasonably necessary to permit the Recipient to comply with applicable laws or regulations, including documenting the basis for public disclosures by or about the Recipient in any filings with the SEC or any other governmental authority.
(e) Public Disclosure - Form 8-K Filing. CCI and OS will fully, diligently cooperate in causing the filing of a Current Report on Form 8-K and amendments thereto with the SEC by CCI ("8-K."), which 8-K and amendments thereto will report the actions taken this Agreement, the Note and the Proxy as well as have a complete copy of this Agreement, Note and Proxy as exhibits thereto. As the company responsible for filing the 8-K and its amendments, CCI retains all rights and authority as to the contents, exhibits and filing of the 8-K and its amendments as well as being responsible for the contents and exhibits of the 8-K and its amendments, and the costs of filing the 8-K and amendments with the SEC. Required disclosures in the 8-K and amendments shall not be governed by this Section 4.
5. Standalone Agreement/Instrument and Transactions. This Agreement and the Note are standalone agreements, instruments and transactions. Neither patty is obligated under this Agreement or the Note to pursue, negotiate, enter into an agreement or commitment, or consummate any other transaction or agreement for, any significant corporate transaction or action and no agreement or commitment exists as of the Effective Date. No agreement for a significant corporate transaction exists between the parties.
6. No Employment Agreement. Neither this Agreement nor any provisions herein are an employment or engagement agreement for any Nominee or CEO Nominee. Any employment or engagement agreement between CCI and any Nominee or CEO Nominee will be a separate agreement.
7. Term; Termination. (a) Term. The term of this Agreement shall commence on the Effective Date and expire at 11 :59 p.m., local Miami, Florida time, on September 30, 2025 ("expiration date"), unless terminated sooner in accordance with Section 7(b) below.
(b) Termination. A patty may terminate this Agreement upon ten (10) days' prior written notice to the other patty upon occurrence of any of the following events: (i) a patty breaches any material provision of this Agreement and fails to remedy that breach within ten (10) days after receipt of a written demand from the non-breaching patty, which written demand shall describe the breach of this Agreement; (ii) a party's board of directors or similar governing body approves a plan of complete dissolution under the laws of that party's domicile state or files for protection from creditors under any federal or state bankruptcy laws; (iii) a party's charter is revoked by its domicile state and not timely reinstated; (iv) a party is convicted of violating a federal or state felony law and there is no available right of appeal of that conviction; or (v) a party ceases conducting operations for ninety (90) consecutive days.
| 8. | Representations and Warranties. |
| (a) | CCI. CCI hereby represents and warrants to OS that: |
| (i) | CCI is duly incorporated, validly existing and in good standing under the laws of the State of Florida; |
(ii) this Agreement has been duly authorized, executed and delivered by CCI and CCI has the legal authority to enter into and perform this Agreement; and
| (iii) | As of August 13, 2024, CCI had 48,826,864 shares of Common Stock issued and outstanding and CCI has not authorized or caused to be issued any additional shares of CCI Common Stock since August 13, 2024. |
(b) OS. OS hereby represents and warrants to CCI that: (i) if an entity, then OS is duly incorporated, organized, validly existing and in good standing under the laws of its domicile state or jurisdiction; and
(ii) this Agreement has been duly authorized, executed and delivered by OS and OS has the legal authority to enter into and perform this Agreement; and (iii) OS understands that CCI files public business and financial disclosures under the 1934 Act with the SEC and OS has had a reasonable opportunity to review those public disclosures prior to signing this Agreement and the Note, which public disclosures can be accessed by OS at www.sec.gov.
(c) Each party has relied solely upon the representations expressly contained in this Agreement and its own investigation of the other party in deciding to enter into this Agreement and the Note.
9. Indemnification. Each party ("Indemnitor") shall indemnify, defend and hold harmless to the fullest extent permitted under applicable laws and the Indemnitor's charter, bylaw or similar organization documents in effect as of the date of this Agreement the other party and its respective officers, directors, employees, managers, members and agents (individually, an "Indemnitee" and collectively the "Indemnitees") against any costs or expenses (including reasonable attorneys' fees), judgments, settlements, fines, losses, claims, damages or liabilities (collectively, "Losses") incurred in connection with any legal proceeding or investigation, whether civil, criminal, administrative or investigative, whenever asserted, arising out of or pe1taining to or based upon a breach of this Agreement or the Note by the Indemnitor, which indemnification excludes Losses which are caused in whole or in part by the bad faith misconduct, gross negligence or violation of laws or regulations by an Indemnitee. Indemnification under this Section 9 shall survive the termination or expiration of this Agreement by one ( 1) year.
10. Successors. This Agreement shall be binding upon and inure to the benefit of each patty and its successors and permitted assigns.
11. Assignment. Neither this Agreement, nor any right, obligation or interest hereunder, may be assigned by a party without the prior written consent of the other party.
12. Waiver of Breach. The waiver by a party of a breach of any provision of this Agreement by the other party shall not be construed as a waiver of any continuing or subsequent breach of the same provision or of any other provision of this Agreement. It is also understood and agreed that no failure or delay by a patty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.
13. Counterparts. This Agreement may be executed in any number of counterparts and by the parties in separate counterparts (including by facsimile, PDF or electronic mail transmission), each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. This Agreement shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (a) an original manual signature; (b) a faxed, scanned, or photocopied manual signature, or (c) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant electronic signatures law, including any relevant provisions of the UCC (collectively, "Signature Law"), in each case to the extent applicable. Each faxed, scanned, or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
14. Governing Law; Litigation. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to principles of choice or conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought exclusively in the United States District Court for the Southern District of Florida, Ft. Lauderdale division, or the state courts for Broward County, Florida. The parties hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any objection or defense based on lack of jurisdiction or of venue based upon forum non conveniens. Each party knowingly, voluntarily waives trial by jury. A party who prevails in any legal proceeding shall be entitled to recover its reasonable attorney's fees and costs incurred in connection with or related to a breach of this Agreement by the other party. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement or any related document or agreement by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner pe1mitted by law.
15. Expenses. All costs and expenses (including attorneys' fees) incurred in connection with the negotiation and preparation of, or any claim, dispute or litigation pe1taining to, this Agreement, shall be paid by the patty incurring such expenses, except as provided in Section 14 above.
16. Entire Agreement; Amendment. This Agreement contains the entire agreement of the parties and their affiliates relating to the subject matter hereof and thereof and supersedes all prior agreements, representations, warranties and understandings, written or oral, with respect thereto, excluding the Mutual Non-Disclosure Agreement, dated 8 October 2024 or thereabouts, between CCI and an affiliate of OS. Neither this Agreement, nor any term hereof, may be changed, waived, discharged or te1minated except by an instrument in writing signed by the party against which such change, waiver, discharge or termination is sought to be enforced. Exhibit One hereto, Exhibit Two hereto, Attachment One hereto and Attachment Two hereto are incorporated herein by reference as if set forth verbatim herein.
17. Severability. If any term or provision of this Agreement or the application thereof to any person, property or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons, property or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each item and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
18. Remedies. Injunctive Relief; Cumulative Remedies. Each party acknowledges and agrees that the covenants and obligations of the other party under this Agreement relate to special, unique and extraordinary matters and are reasonable and necessary to protect the legitimate interests of the party and that a breach of any of the terms of such covenants and obligations will cause the party irreparable injury for which adequate remedies at law are not available. Each party agrees that the other party shall be entitled to an injunction, restraining order, or other equitable relief from any court of competent jurisdiction restraining the party from any breach of this Agreement. A party’s rights and remedies under this Section 17 are cumulative and are in addition to any other rights and remedies the party may have at law or in equity.
19. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
20. Construction. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and that this Agreement shall not be construed in favor of or against either party by reason of the extent to which either party or its legal counsel participated in the drafting of this Agreement.
21. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered personally or sent by a national overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
Capstone Companies, Inc.
144-10 Fairway Drive, Suite 200, Deerfield Beach, Florida 33441
Telephone: (703) 216-8606
Email: [email protected]
OS: As set forth in Exhibit One hereto.
IN WITNESS WHEREOF, the patties have duly executed and delivered this Agreement as of the
Effective Date.
CAPSTONE COMPANIES, INC., a Florida corporation
By: /s/Stewart Wallach
Stewart Wallach, Chief Executive Officer
Coppermine Ventures, LLC, a Maryland limited liability company
By: /s/Alexander Jacobs
Alexander Jacobs, Managing Member/Manager
Exhibit One: Coppermine Ventures, LLC information
Name (print): Coppermine Ventures, LLC, a Maryland limited liability company, located at 13100 Beaver Dam Rd., Hunt Valley, Maryland 21030;
Exhibit Two: Terms of Service
- For COVE Nominees serving as directors of CCI Board of Directors, the terms of service as a director are:
| (1) | Standards of conduct are governed by the CCI By-laws and published codes and policies; any agreement between the director and CCI; and the requirements of applicable federal and state laws and regulations and applicable public policy; and |
| (2) | Compensation. Until CCI has sufficient cash flow from operations or sufficient cash reserves not needed to pay working capital needs that are essential to sustaining CCI business operations, accounting functions and systems, and compliance with corporate obligations under federal, state and local laws and regulations, each COVE Nominee as a CCI director will not receive cash compensation. Any future cash compensation, if any, will be determined by the CCI Board of Director’s Compensation Committee and subject to a written agreement signed by CCI and the director. Director may participate in any stock option, stock grants and other incentive compensation plan for CCI directors and officers that the director is an eligible participant, and any incentive compensation issued under any such incentive compensation plan will constitute compensation to the director for services as a director. CCI will reimburse any business expenses incurred by the director as a sole result of services as a director of CCI, provided, that all such business expenses must be eligible for reimbursement under CCI’s then current business expense policy (as developed by the CCI Board of Directors). |
- For COVE CEO Nominee serving as chief executive officer of CCI, the terms of service are:
| (1) | Standards of Conduct shall be determined by applicable federal and state laws and regulations; any written agreement between the person and CCI; CCI published policies and codes; and directives and resolutions of the CCI Board of Directors; and |
| (2) | Compensation: Until CCI has sufficient cash flow from operations or sufficient cash reserves not needed to pay working capital needs that are essential to sustaining CCI business operations, accounting functions and systems, and compliance with corporate obligations under federal, state and local laws and regulations, the COVE CEO Nominee as CCI directors will not receive cash compensation. Any future cash compensation, if any, will be determined by the CCI Board of Director’s Compensation Committee and subject to a written agreement signed by CCI and the COVE CEO Nominee as a CCI officer. COVE CEO Nominee as a CCI officer may participate in any stock option, stock grants and other incentive compensation plan for CCI officers that COVE CEO Nominee as an CCI officer is an eligible participant, and any incentive compensation issued under any such incentive compensation plan will constitute compensation to the COVE CEO Nominee as CCI officer for services as CCI chief executive officer. CCI will reimburse any business expenses incurred by the COVE CEO Nominee as a CCI officer as a sole result of services as a chief executive officer and president of CCI, provided, that all such business expenses must be eligible for reimbursement under CCI’s then current business expense policy (as developed by the CCI Board of Directors). |
ATTACHMENT ONE: PROMISSORY NOTE
Signed and dated Promissory Note is appended hereto.
ATTACHMENT TWO: CERTIFICATION/COMMITMENT
Coppermine Ventures, LLC, a Maryland limited liability company, (“COVE”) agrees and covenants to timely pay or fund the following working capital expenditures of Capstone Companies, Inc., a Florida corporation and public company, (“CCI”) for the period from the Effective Date to and through March 31, 2025, and to do so when each such working capital expenditure becomes due and payable by CCI in the specified period or date. COVE agrees, understands and acknowledges that the payment or funding of these working capital expenses by COVE is a material inducement for CCI to enter into the Management Transition Agreement between CCI and COVE to which this Attachment Two is appended (“Agreement”) and any breach of this Certification is a material breach of the Agreement between CCI and COVE. Terms used in this Certification shall have the meaning set forth in the Agreement if not defined in this Attachment Two.
| Capstone Companies Inc. |
| Projected Future Expenses through March 31, 2025 |
| Due 9-30-2024 | Due 10-1-2024 to 12-31-2024 | Due 1-01-2025 to 3-31-2025 | TOTAL | |
| Public Company Compliance/Regulatory Expenses | $43,140 | $21,700 | $66,700 | $131,540 |
| Accounting/Legal | $34,934 | $20,300 | $50,800 | $106,034 |
| Insurance Expenses | $17,286 | $17,286 | $17,286 | $51,858 |
| Consulting and Compliance Expenses | $11,182 | $7,284 | $7,284 | $25,750 |
| Software/Operating Expenses | $19,372 | - | - | $19,372 |
| Total Projected Operating Costs | $125,914 | $66,570 | $142,070 | $344,554 |
Does not include any costs for private company two-year audits and related audit preparation & bookkeeping, etc., estimated at approximately $30,000 - $40,000. The above are estimated expenses based on certain assumptions.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Certification as of the Effective Date of the Agreement.
CAPSTONE COMPANIES, INC., A FLORIDA CORPORATION
By: /s/Stewart Wallach
Stewart Wallach, Chief Executive Officer
COPPERMINE VENTURES, LLC, A MARYLAND LIMITED LIABILITY COMPANY
By: /s/Alexander Jacobs
Alexander Jacobs, Managing Member/Manager
Exhibit 10.2
THIS PROMISSORY NOTE PROVIDES FOR A LUMP SUM PAYMENT OF PRINCIPAL AND ACCRUED INTEREST, WHICH OBLIGATION MAY IMPOSE A SUBSTANTIAL FINANCIAL OBLIGATION ON THE MAKER
UNSECURED PROMISSORY NOTE (the “Note”)
October 31, 2024
Principal Amount: USD$125,914.00 Deerfield Beach, Florida
FOR VALUE RECEIVED, Capstone Companies, Inc., a Florida corporation, (the “Maker”) promises to pay to the order of Coppermine Ventures, LLC, a Maryland limited liability company, (“Payee”), or Payee’s registered assigns or successors in interest, the principal sum of ONE HUNDRED TWENTY FIVE THOUSAND NINE HUNDRED FOURTEEN DOLLARS AND NO CENTS ($125,914.00) (“Principal”) in lawful money of the United States of America and on the terms and conditions described below. The Note evidences a loan of the Principal made to Maker by Payee in good funds on deposit, which Principal amount shall be wired to Maker by Payee on October 31, 2024, or within one (1) Business Day thereafter, to the Maker’s bank account set forth in a signed written notice by Maker to the Payee, which signed written notice has been provided to Payee prior to October 31, 2024. Exhibit One hereto sets forth the principal business address of Payee. Maker and Payee may also be referred to individually as a “party” and collectively as the “parties” below.
1. Principal. The Principal balance of this Note shall be payable by the Maker on the earlier to occur of: (i) July 31, 2025 (“Maturity Date”); (ii) the date that the Maker ceases to be subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 or ceases to have shares of its Common Stock, $0.0001 par value per share, (“Common Stock”) quoted on any tier of The OTC Markets Group, Inc. (“OTC”); or (iii) the date that Maker’s board of directors approves a plan of complete liquidation of the Maker (the foregoing triggering date being referred to as the “Maturity Date”). The Principal may be prepaid at any time at the election of Maker without penalty. Under no circumstances shall any individual, including, but not limited to, any executive officer, director, employee or stockholder of the Maker, be obligated personally for any obligations or liabilities of the Maker under this Note. All amounts due on this Note shall be due and payable without set-off, counterclaim or any other deduction whatsoever.
2. Interest. Simple annual interest shall accrue on the unpaid Principal balance of this Note at SEVEN PERCENT (7%) (“Interest”). All accrued Interest shall be added to and become part of the Principal amount outstanding under this Note and all unpaid Principal and unpaid accrued Interest thereon shall be due and payable in full and in a lump sum payment due on the Maturity Date. Interest shall be computed on the basis of a three hundred sixty-five (365) day year, with any calculation based on actual days elapsed.
3. Application of Payments. (a) Order. All payments made hereunder shall be made in name of the Payee and shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable attorney’s fees, then to the payment in full of any late charges, then to the reduction of the unpaid Principal balance of this Note and then finally applied to the Interest accrued on the Principal.
(b) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day. “Business Day” means any day, except: (i) any Saturday; (ii) any Sunday; (iii) any other day which is a federal legal holiday in the United States; or (iv) any day on which commercial banking institutions in the Broward County, Florida are authorized or required by law or other governmental action to close.
4. Events of Default. The following shall constitute an event of default of this Note (“Event of Default”):
(a) Failure to Make Required Payments. Failure by Maker to pay any payment of Principal or accrued Interest thereon on the Maturity Date, provided, that the Maker will have five (5) days after the Maturity Date to cure the late payment by payment in full of all sums due under this Note.
(b) Voluntary Bankruptcy. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency or other similar law, or the consent by Maker to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Maker or for any substantial part of its property, or the taking of corporate action by Maker in furtherance of any of the foregoing.
(c) Involuntary Bankruptcy. The entry of a decree or order for relief by a court having jurisdiction in respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days.
(d) Maker breaches Section 6(a) or Section 6(b) of this Note, which breach is not cured within five (5) days after the date of the breach.
(e) Maker breaches Section 1 of a certain Management Transition Agreement dated same date as this Note or thereabouts, by the Maker and Payee (“MT Agreement”), which breach is not timely remedied in accordance with the terms of the MT Agreement.
5. Remedies. Upon the occurrence and during the continuance of an Event of Default specified in Section 4(a) (b), (c), (d) or (e) above, and expiration of any cure period without the Event of Default being cured in full, then the unpaid Principal amount of this Note and unpaid Interest accrued thereon, as well as all other sums due under this Note, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.
6. Senior Debt; Use of Proceeds. (a) Senior Debt. This Note is not secured by any collateral or secured interest. The debt evidenced by this Note is unsecured, but that debt shall be senior to any debt owed by Maker to Stewart Wallach, a director and officer of the Maker, Jeffrey Postal, a director of the Maker, or any entity owned or controlled by the aforesaid persons (excepting the Maker) (individually, an “Insider Obligee” and collectively, “Insider Obligees”). Maker shall not make any payment on, or settle or make an accord of, any debts owed to any Insider Obligee as long as any sum is owed under this Note to the Payee and without the prior written consent of the Payee.
(b) Use of Proceeds. Payee will loan in full the Principal to Maker in good funds on deposit, (“Loan”) by wire transfer to Maker’s specified corporate bank account and will do so on or before October 31, 2024, or within one (1) Business Day thereafter. The Principal shall be used by the Maker solely to pay the debt obligations listed in Exhibit Two hereto (the “Approved Payments”). Payee will pay wire transfer fees for wire transfer of the Principal to Maker and Payee will not add the wire transfer fees to the Principal or other sums due under this Note. The making of the Loan by Payee to Maker is a condition to the obligations of Maker under this Note.
7. Waivers. Except as required for a breach of Section 1 of the MT Agreement, the Maker, and any endorsers and guarantors of and any sureties for, this Note, each waive: (a) presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Note; (b) all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note; or (c) all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment.
8. Unconditional Liability. Maker agrees that its liability under this Note shall be unconditional, without regard to the liability of any other person or entity, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note.
9. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be made in writing and delivered: (i) personally by hand courier or sent by first class registered or certified mail, or recognized national overnight courier service to the principal executive address of record of the Maker, or to the address set forth in Exhibit One hereto for Payee, (ii) by facsimile to the telephone number most recently provided to such party or the facsimile telephone number as may be designated in writing by such party, or (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally; or on the Business Day following receipt of written confirmation, if sent by facsimile or electronic transmission; or one (1) Business Day after delivery by a nationally recognized overnight courier service; or seven (7) days after date of certified or registered mail mailing through the U.S Postal Service.
10. Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS THEREOF.
11. Severability. Any provision contained in this Note, which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
12. Entire Agreement; Amendment; Waiver. This Note sets forth the entire agreement of the Maker and Payee in respect of the Loan. Exhibit One hereto and Exhibit Two hereto are incorporated herein by reference. Any amendment of this Note or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee. This Note is not conditioned upon, and does not obligate either party to negotiate, enter into or consummate any other agreement or transaction with the other party. This Note supersedes all prior agreements, instruments, commitments, obligations and undertaking of the parties or by a party, whether oral or written or electronic transmission, excepting the Mutual Non-Disclosure Agreement between the parties, dated October 8, 2024, and the MT Agreement (if and when signed).
13. Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by the Maker (by operation of law or otherwise) without the prior written consent of the Payee and any attempted assignment without the required written consent shall be void.
14. Acknowledgment. Payee is acquiring this Note for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, any distribution thereof. Payee understands that the acquisition of this Note involves substantial risk due to the Maker’s lack of revenue producing operations, debts and minimal cash resources. Payee acknowledges that it is able to fend for itself or himself, can bear the economic risk of making the Loan, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of making the Loan and protecting its own interests in connection with this Loan. Prior to receipt of this Note, the Payee has had a reasonable opportunity to review the business and financial reports and filings of the Maker with the U.S. Securities and Exchange Commission or “SEC” as well as ask questions about the Maker and its business and financial affairs and receive answers to those questions. Maker and Payee have each had a reasonable opportunity to consult its own legal counsel and its own financial advisors about this Note and the Loan prior to execution of this Note. The Loan is a standalone commercial transaction and is not conditioned upon, made in reliance upon, or requiring consummation of any other agreement or transaction between the parties. Parties have only relied on the representations expressly stated in this Note in deciding to execute this Note and, for Payee, in making the Loan under this Note.
15. Successors. The rights and obligations of the Maker and Payee hereunder shall be binding upon and benefit their respective successors, assigns, heirs, administrators and transferees.
16. Valid Corporate Debt. The debt evidenced by this Note is a valid corporate debt of the Maker.
17. Lost or Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed, the Maker shall execute and deliver: (a) in exchange and substitution for and upon cancellation of a mutilated Note, a New Note for the unpaid Principal of the Note; or (b) or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the unpaid Principal amount of this Note so lost, stolen or destroyed, but only upon receipt of evidence of the loss, theft or destruction of the Note that is reasonably satisfactory to the Maker.
18. Execution and Counterparts. This Note may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and instrument and shall become effective when counterparts have been signed by Maker and Payee and exchanged by the Maker and Payee. It is understood that both Maker and Payee need not sign the same counterpart and may sign on separate signature pages. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such a signature shall create a valid and binding obligation of the Maker or Payee, as the case may be, executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
19. Remedies and Other Obligations. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note at law or in equity (including a decree of specific performance or other injunctive relief). Amounts set forth or provided for herein with respect to payments, (and the computation thereof) shall be the amounts to be received by the Payee and shall not, except as expressly provided herein, be subject to any other obligation of the Maker (or the performance thereof). The Maker shall provide all information and documentation to the Payee that is reasonably requested by the Payee to enable the Payee to confirm the Maker’s compliance with the terms and conditions of this Note.
20. Headings. The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit or affect any of the provisions hereof.
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
CAPSTONE COMPANIES, INC., a Florida corporation
By: /s/Stewart Wallach Date: October 31, 2024
Stewart Wallach, Chief Executive Officer
SEEN AND AGREED BY:
PAYEE: Coppermine Ventures, LLC, a Maryland limited liability company
By: /s/Alexander Jacobs Date: October 31, 2024
Alexander Jacobs, Managing Member/Manager
Exhibit One: Payee Name and Principal Business Address
Payee is (print full legal name and, if an entity, state or jurisdiction of organization or incorporation):
Coppermine Ventures, LLC, a Maryland limited liability company
13100 Beaver Dam Rd.
Hunt Valley, Maryland 21030
Email:
Attn: Alexander Jacobs
Exhibit Two:
Capstone Companies, Inc.
Projected Future Expenses through Sept 30, 2024
Use of Proceeds
Capstone Companies
Projected Future Expenses through Sept. 30, 2024
All amounts in U.S. Dollars
- Public Company Compliance/Regulatory Expenses [1]: $43,140
- Legal/Accounting Expenses [2]: $34,934
- Insurance Expense [3]: $17,286
- Consulting and Compliance Expenses [4]: $19,372
- Software/Operating Expenses [5]: $11,182
Total Projected Operating Costs through
Sept. 30, 2024, $125,914
Footnotes:
[1] SEC Fees; OTC Market Fees; Shareholder Services; Investor Relations; Audit fees
[2] Tax, Accounting, and Legal Services
[3] Directors and Officers Insurance premium
[4] Technical consultant and product compliance services
[5] General Operating costs: software licenses, phones, bank fees, etc.
Additional Notes:
{A}There is no provision for payroll costs for Stewart Wallach and George Wolf as their salaries have been deferred through 2024
{B} Capstone currently maintains a remote work environment, there are no Lease/Rent/CAM expenses or Travel/Entertainment expense included in the above projection.