Glucose Health, Inc S-1/A, filed Jan 9, 2023
Glucose Health, Inc. (GLUC)
As filed with the U.S. Securities and Exchange Commission on January 9, 2023
Registration No. 333-265335
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
(Exact Name of Registrant as Specified in its Charter) |
| 2833 |
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(State or other jurisdiction of incorporation or organization) |
| (Primary Standard Industrial Classification Code Number) |
| (I.R.S Employer Identification No.) |
Phone: (
(Address, including zip code, and telephone
number, including area code, of principal
executive offices)
Murray Fleming
Chief Executive Officer
609 SW 8th Street
Suite 600
Bentonville, AR 72712
Phone: (479) 802-3827
(Address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Joseph M. Lucosky, Esq. |
| Ross Carmel, Esq. |
Lawrence Metelitsa, Esq. |
| Carmel Milazzo & Feil LLP |
Lucosky Brookman LLP |
| 55 W 39th Street |
101 Wood Avenue South |
| 18th Floor |
Woodbridge, New Jersey 08830 |
| New York, NY 10018 |
(732) 395-4500 |
| (212) 658-0458 |
Approximate date of commencement of proposed sale to the public: As soon as possible after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company”, and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☐ |
☒ | Smaller Reporting Company | ||
Emerging growth company |
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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 to Section 7(a)(2)(B) of the Securities Act.
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary Prospectus is not complete and may be changed. We and the selling stockholders may not sell these securities until the Securities and Exchange Commission declares our registration statement effective. This Prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 9, 2023
PRELIMINARY PROSPECTUS
GLUCOSE HEALTH, INC.
3,438,402
Shares of Common Stock
We are offering 2,125,000 shares of the common stock of Glucose Health, Inc. (“Company”, “Glucose Health”, “we”, “our”, or “us), par value $0.001, at an assumed public offering price of $4.00 per share. The assumed public offering price used herein may not be indicative of the final offering price. The final offering price will be as determined between EF Hutton, division of Benchmark Investments, LLC, as representative of the underwriters (“Representative”), and us, at the time of pricing, and may be issued at a discount to the market price of our common stock. Factors to be considered in determining the actual offering price will include our historical performance and capital structure, prevailing capital market conditions and overall assessment of our business. The market price of our common stock will only be one of several factors to be considered in determining the actual offering price.
We have applied to list our common stock on the Nasdaq Capital Market (“Nasdaq”) under the symbol “GLUC.” No assurance can be given that our application will be approved. If our listing application is not approved, we will not proceed with this offering. The listing standards of the Nasdaq include a minimum stock price. Prior to the closing of this offering, we plan to implement a reverse stock split of our issued and outstanding shares of common stock at a ratio of 1-for-10 (“Common Stock Reverse Split”). Other than in our financial statements and notes thereto, and except where otherwise noted, all references to our common stock presented in this prospectus (this “Prospectus”) have been adjusted to reflect our planned Common Stock Reverse Split.
Our common stock is presently quoted by OTC Markets under symbol “GLUC”. The last reported sale price of our common stock, on January 6, 2023, was $6.40.
In addition, selling stockholders identified herein (“Selling Stockholders”) are offering a total of 1,313,402 shares of common stock consisting of (i) 103,402 shares of issued and outstanding common stock; (ii) 640,000 shares of common stock underlying the Selling Stockholder’s Series D preferred stock; to be issued upon conversion of their Series D preferred stock to shares of common stock following our Common Stock Reverse Split and prior to closing of this offering, and (iii) 570,000 shares of common stock underlying the Selling Stockholder’s Series E preferred stock; to be issued upon conversion of their Series E preferred stock to shares of common stock following our Common Stock Reverse Split and prior to the closing of this offering. Together, these 1,313,402 shares of common stock offered by Selling Stockholders are defined herein as “Selling Stockholder Shares.”
We are an “emerging growth company” under applicable Securities and Exchange Commission rules and will be subject to reduced public company reporting requirements.
While we may be a “controlled company” under the rules of Nasdaq immediately after consummation of this offering, we do not intend to avail ourselves of the corporate governance exemptions afforded to a “controlled company” under the rules of Nasdaq. See “Risk Factors-Risks Related to this Offering.”
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Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 15 of this Prospectus. You should carefully consider these risk factors, as well as the information contained in this Prospectus, before purchasing any of the securities offered by this Prospectus.
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| Per Share |
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| Total |
| ||
Public offering price |
| $ | 4.00 |
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| $ | 8,500,000 |
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Underwriting discounts and commissions(1) |
| $ | 0.32 |
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| $ | 680,000 |
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Proceeds to the Company, before expenses(2,3) |
| $ | 3.68 |
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| $ | 7,820,000 |
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Proceeds to Selling Stockholders, before expenses (4) |
| $ | 4.00 |
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| $ | 5,253,608 |
|
| (1) | We have additionally agreed to issue compensatory warrants to the Representative equal to 2% of the total number of shares of common stock sold in this offering. If 2,125,000 shares of common stock are sold in this offering, we expect to issue compensatory warrants to purchase 42,500 shares of common stock to the Representative. |
| (2) | We have agreed to reimburse the Representative for certain cash expenses incurred by them in this offering, up to $150,000. We have additionally agreed to provide the Representative with a non-accountable expense allowance equal to 0.9% of the gross proceeds of this offering. If our gross proceeds of the offering are $8,500,000, we expect to reimburse $76,500 to the Representative. See the “Underwriting” section of this Prospectus for additional details and further information about underwriting compensation. |
| (3) | The amount of offering proceeds to us does not include any exercise of the (i) over-allotment option we have granted to the Representative as described below, and (ii) exercise of any compensatory warrants being issued to the Representative in this offering. |
| (4) | We will not receive any proceeds from the sale of the Selling Stockholder Shares by the Selling Stockholders. |
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
We have granted a 45-day option to the Representative, exercisable one or more times in whole or in part, to purchase up to 318,750 additional shares of common stock to cover over-allotments, at the public offering price per share of common stock, less, in each case, the underwriting discounts, commissions and expenses payable by us to the Representative. The securities issuable upon exercise of this overallotment option are identical to those offered by this Prospectus and have been registered under the registration statement of which this Prospectus forms a part.
The Representative expects to deliver the Shares to investors on or about , 2023.
EF HUTTON,
division of Benchmark Investments, LLC
The date of this Prospectus is January 9, 2023
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
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Neither we, the Selling Stockholders, the Representative, or the underwriters, have authorized anyone to provide you with information other than that contained in this Prospectus or any free writing Prospectus prepared by or on behalf of us or to which we have referred you. No person is authorized in connection with this Prospectus to give any information or to make any representations about us, the securities offered hereby, or any matter discussed in this Prospectus, other than the information and representations contained in this Prospectus. If any other information or representation is given or made, such information or representation may not be relied upon as having been authorized by us. Neither we nor the underwriters take responsibility for and can provide no assurance as to the reliability of any other information that others may give you.
This Prospectus is not an offer to sell or the solicitation of an offer to buy our securities in any circumstances under which the offer or solicitation is unlawful or in any state or other jurisdiction where the offer is not permitted. The information contained in this Prospectus, or any free writing Prospectus is accurate only as of its date, regardless of its time of delivery or of any sale of shares of our Common Stock. Our business, financial condition, results of operations and prospects may have changed since that date.
No action is being taken in any jurisdiction outside the United States to permit a public offering of our Common Stock or possession or distribution of this Prospectus in that jurisdiction. Persons who come into possession of this Prospectus in jurisdictions outside the United States are required to inform themselves about and to observe any restrictions as to this public offering and the distribution of this Prospectus applicable to that jurisdiction.
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CAUTIONARY NOTE CONCERNING FORWARD-LOOKING STATEMENTS
This Prospectus includes forward-looking statements, which involve risks and uncertainties. These forward-looking statements can be identified by the use of forward-looking terminology, including the terms “believe,” “estimate,” “project,” “anticipate,” “expect,” “seek,” “predict,” “continue,” “possible,” “intend,” “may,” “might,” “will,” “could,” would” or “should” or, in each case, their negative, or other variations or comparable terminology. These forward-looking statements include all matters that are not historical facts. They appear in a number of places throughout this Prospectus and include statements regarding our intentions, beliefs or current expectations concerning, among other things, the use of proceeds from this offering, our product candidates, research and development, commercialization objectives, prospects, strategies, the industry in which we operate and potential acquisitions or collaborations.
We derive many of our forward-looking statements from our operating budgets and forecasts, which are based upon many detailed assumptions. While we believe that our assumptions are reasonable, we caution that it is very difficult to predict the impact of known factors, and, of course, it is impossible for us to anticipate all factors that could affect our actual results. Forward-looking statements should not be read as a guarantee of future performance or results and may not be accurate indications of when such performance or results will be achieved. In light of these risks and uncertainties, the forward-looking events and circumstances discussed in this Prospectus may not occur and actual results could differ materially from those anticipated or implied in the forward-looking statements. In addition, even if our results of operations, financial condition, business, and prospects are consistent with the forward-looking statements contained in this Prospectus, those results may not be indicative of results in subsequent periods.
Forward-looking statements speak only as of the date of this Prospectus. You should not put undue reliance on any forward- looking statements. Except as required by law, we undertake no obligation to update publicly any forward-looking statements for any reason, even if new information becomes available or other events occur in the future. If we update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements. All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements contained above and throughout this Prospectus.
You should read this Prospectus and the documents that we reference in this Prospectus and have filed with the Securities and Exchange Commission, or SEC, as exhibits to the registration statement of which this Prospectus is a part with the understanding that our actual future results, levels of activity, performance and events and circumstances may be materially different from what we expect. In addition to the risk factors set forth above, the factors set forth below under “Risk Factors” and other cautionary statements made in this Prospectus should be read and understood as being applicable to all related forward-looking statements wherever they appear in this Prospectus.
MARKET AND INDUSTRY DATA
This Prospectus includes estimates regarding market and industry data. Unless otherwise indicated, information concerning our industry and the markets in which we operate, including our general expectations, market position, market opportunity, and market size, are based on our management’s knowledge and experience in the markets in which we operate, together with currently available information obtained from various sources, including publicly available information, industry reports and publications, surveys, our customers, trade and business organizations, and other contacts in the markets in which we operate. Certain information is based on management estimates, which have been derived from third-party sources, as well as data from our internal research.
In presenting this information, we have made certain assumptions that we believe to be reasonable based on such data and other similar sources, and on our knowledge of, and our experience to date in, the markets in which we operate. We believe the estimated market and industry data included in this Prospectus to be reliable. In addition, projections, assumptions, and estimates of the future performance of the markets in which we operate are necessarily subject to uncertainty and risk due to a variety of factors, including those described in “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.”
The source of certain statistical data, estimates, and forecasts contained in this Prospectus are the following independent industry publications or reports:
| · | Centers for Disease Control and Prevention, January 18, 2022, www.cdc.gov/diabetes/data/statistics-report/index.html |
| · | Closing America’s Fiber Intake Gap., July 7, 2016, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6124841/ |
| · | Nonnutritive Sweeteners: Current Use and Health Perspectives. A Scientific Statement From the American Heart Association and the American Diabetes Association. July 24, 2012, https://pubmed.ncbi.nlm.nih.gov/22777177/ |
| · | The American Diabetes Association Standards of Medical Care in Diabetes-2022, December 16, 2021, diabetesjournals.org/care/article/45/Supplement_1/S60/138923/5-Facilitating-Behavior-Change-and-Well-being-to |
| · | The American Diabetes Association Standards of Medical Care in Diabetes-2019 (Abridged for Primary Care Providers), Jan 1, 2019, https://diabetesjournals.org/clinical/article/37/1/11/32671/Standards-of-Medical-Care-in-Diabetes-2019 |
| · | Review of the Scientific Evidence on the Physiological Effects of Certain Non-Digestible Carbohydrates, June 2018, Food and Drug Administration, https://www.fda.gov/files/food/published/Review-of-the-Scientific-Evidence-on-the-Physiological-Effects-of-Certain-Non-Digestible-Carbohydrates-PDF.pdf |
The content of the above sources, except to the extent specifically set forth in this Prospectus, does not constitute a portion of this Prospectus and is not incorporated herein.
TRADEMARKS AND TRADE NAMES
We own or have rights to various trademarks, service marks and trade names that we use in connection with the operation of our business. This Prospectus may also contain trademarks, service marks and trade names of third parties, which are the property of their respective owners. Our use or display of third parties’ trademarks, service marks, trade names or products in this Prospectus is not intended to, and does not imply a relationship with, or endorsement or sponsorship by us. Solely for convenience, the trademarks, service marks and trade names referred to in this Prospectus may appear without the ®, TM or SM symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the right of the applicable licensor to these trademarks, service marks and trade names.
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PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in this Prospectus. This summary does not contain all of the information that you should consider before deciding to invest in our common stock. You should read the entire Prospectus carefully, including “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our combined financial statements and the related notes thereto that are included elsewhere in this Prospectus, before making an investment decision. Other than in our financial statements and notes thereto, and except where otherwise noted, all references to our common stock presented in this Prospectus have been adjusted to reflect our planned Common Stock Reverse Split.
Overview
We are an own-label distributor of nutritional beverages. Our niche is the formulation, manufacturing, marketing, and distribution of soluble fiber infused nutritional beverages. In November 2017, we registered the trademark GLUCODOWN® and have since launched the first soluble fiber infused, powdered iced tea, and flavored drink mixes, in North America. We launched GLUCODOWN® because we identified an absence of product variety and/or nutritional suitability among the healthier beverage offerings from other companies, serving pre-diabetic and diabetic consumers. Nutritional suitability means we apply the nutritional recommendations and guidelines of experts, for example, the American Diabetes Association, to the extent feasible, when formulating our beverages. We are currently in the early stages of marketing and distributing GLUCODOWN®.
We believe the physiological impacts of soluble fiber can nutritionally satisfy other interests of health-conscious consumers, and as result, we plan to launch more soluble fiber infused nutritional beverages, marketed under more brands. Building upon our knowledge capital gained from formulating, manufacturing, marketing, and distributing GLUCODOWN®, we registered the trademark FIBER UP® in September 2020, and are developing our second soluble fiber infused nutritional beverage brand. We plan to launch FIBER UP® as a ready-to-drink beverage and to initially focus our marketing and distribution efforts to persons 45 and older.
Recent Developments
On January 25, 2022, we entered into an investment banking agreement with EF Hutton, which was amended on November 16, 2022. The agreement contemplates the Company raising additional capital in a registered offering, listing on a stock exchange, and preparing a registration statement under the Securities Act. The Company is responsible for EF Hutton’s external counsel legal costs, whether any offering is consummated or not.
Effective on March 11, 2022, we filed Articles of Conversion with the Nevada Secretary of State and a Certificate of Conversion and Certificate of Incorporation with the Delaware Department of State, Division of Corporations and converted to a Delaware corporation.
On March 29, 2022, we merged with a subsidiary, created on March 23, 2022, for the sole purpose of the merger, amended and restated our Certificate of Incorporation, and the surviving corporation is Glucose Health, Inc. Our authorized capital stock consists of (i) 40,000,000 shares of common stock, $0.001 par value per share (“Common Stock”), (ii) 10,000,000 shares of preferred stock, $0.001 par value per share (“Preferred Stock”).
Subsequent Events
On October 9, 2022, 2,133,334 shares of our Series B Preferred Stock and 700,001 shares of our Series C Preferred Stock were converted to a total of 2,833,335 shares of our Common Stock (figure not adjusted for our planned Common Stock Reverse Split).
On October 24, 2022, we filed a Certificate of Amendment to our Certificate of Incorporation and increased our authorized shares of Series D Preferred Stock to 1,200,000 shares, and our authorized shares of Series E Preferred Stock increased to 1,440,000 shares. On the same day, we forward split our Series D Preferred Stock at a ratio of 4-for-1, and our Series E Preferred Stock at a ratio of 3-for-1, such that 1,200,000 shares of our Series D Preferred Stock and 1,440,000 shares of our Series E Preferred Stock are issued and outstanding.
On January 3, 2023, 180,000 shares of our Series E Preferred Stock were converted to 180,000 shares of our Common Stock (figure not adjusted for our planned Common Stock Reverse Split).
As of January 6, 2023, 1,686,197 shares of our Common Stock and 2,627,667 shares of our Preferred Stock are issued and outstanding.
Market Opportunity - GLUCODOWN®
The National Diabetes Statistics Report (Source: Centers for Disease Control and Prevention. Website. www.cdc.gov/diabetes/data/statistics-report/index.html. Accessed April 10, 2022) estimates 96 million adults have pre-diabetes and 37.3 million adults have diabetes. We believe the National Diabetes Statistics Report points to a large and growing market of consumers likely receptive to nutritional beverages which help maintain healthy serum glucose levels (healthy blood sugar). Prior to the introduction of GLUCODOWN®, the only nutritional beverages formulated for healthy blood sugar by the companies addressing this large and growing consumer market, were dairy shakes (ready-to-drink and powder). By formulating a new form of nutritional beverage for this consumer market, delicious tasting iced tea, and drink mixes, we believe GLUCODOWN® will gain market share. We additionally believe, as this market of consumers becomes aware of GLUCODOWN®, they will discontinue purchasing sugar-free and low-calorie beverages from other companies which, while delicious tasting, do not provide the nutritional efficacy of GLUCODOWN®.
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Market Opportunity - FIBER UP®
In addition to helping maintain healthy post-prandial serum glucose levels (blood sugar levels measured after meals), soluble fiber has other important physiological impacts. These include helping maintain healthy triglycerides and cholesterol levels, healthy blood pressure, promoting weight loss and healthy waste circumference, preserving bone density, and maintaining gut health, which includes regular digestion and immune health. We believe these additional nutritional impacts of soluble fiber will enable us to launch more soluble fiber infused beverage brands targeted to satisfying many other interests of health-conscious consumers. In this regard, we plan to launch our second brand, FIBER UP®. We believe FIBER UP® will expand our Company’s addressable consumer market, from pre-diabetic and diabetic persons served by GLUCODOWN®, to also serve the 95% of Americans understood to be fiber deficient (Source: Closing America’s Fiber Intake Gap. Website https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6124841/. Accessed April 10, 2022). While the beneficial impacts of increasing soluble fiber intake are applicable across all age cohorts, we plan to initially focus our launch of FIBER UP® to persons 45 and older - a consumer market we believe to be underserved by other beverage companies.
Products
GLUCODOWN®
In fourth quarter of 2017, we launched the first soluble fiber infused iced tea mix in North America in four flavors (Peach Tea, Lemon Tea, Raspberry Tea, and Mixed Berry Tea) under the GLUCODOWN® brand to principally serve pre-diabetic and diabetic persons.
GLUCODOWN® provides nutritional support for the maintenance of healthy blood sugar. The principal ingredient in GLUCODOWN® is a soluble form of dietary fiber invented by Matsutani Chemical Industry Co. Ltd, of Japan. For an ingredient to be labeled as “dietary fiber” in the United States, the ingredient must be determined by the Food and Drug Administration (FDA) to have at least one physiological impact beneficial to human health (See “Government Regulation”). Dietary fiber has beneficial physiological impacts related to blood sugar and insulin (and other beneficial impacts). These beneficial physiological impacts are also replicated in nutritional investigations made available to us by our ingredient supplier related to their dietary fiber. Several of the nutritional investigations compiled by our ingredient supplier evaluated beverages including tea drinks, coffee drinks and soft drinks, enriched with their dietary fiber, in similar concentrations as GLUCODOWN®. These drinks are analogous to GLUCODOWN®. We derive our statements of nutritional support from the dietary fiber in GLUCODOWN®.
GLUCODOWN® is also enriched with micronutrients (vitamins and minerals). We selected chromium in picolinate form, zinc in picolinate form, manganese in citrate form and vitamins B1 (thiamine), B6 (pyridoxine), B7 (biotin) and B12 (cyanocobalamin) based upon some evidence of beneficial physiological impacts related to serving our target market of diabetic and pre-diabetic persons. For example, some research indicates regular consumption of metformin may potentially be associated with vitamin B12 deficiency. We formulated these micronutrients at 50% of the FDA recommended % daily value except for chromium picolinate which is 100% of the FDA % daily value. We do not derive any of our statements of nutritional support from the micronutrients in GLUCODOWN®.
GLUCODOWN® is also enriched with an extract of the banaba leaf plant standardized to a 1% concentration of corosolic acid. For more than 2,000 years, to the present day, the leaf of the banaba plant has been utilized in Ayurveda, a traditional form of healing in India, for healthy blood sugar. We do not derive any of our statements of nutritional support from the banaba leaf extract in GLUCODOWN®.
We manufacture GLUCODOWN® in powder form which consumers can use to make their own beverages. We have developed formulations, which we consider trade secrets, of natural flavors (we do not use artificial flavors), flavor enhancing acidulants (citric and malic acid), and for our iced teas, of decaffeinated pure black tea powder sourced directly from India’s largest manufacturer. To make our beverages sweet tasting without sugar, we were informed by the joint scientific statement of the American Heart Association and the American Diabetes Association regarding non-nutritive sweeteners (Source: Nonnutritive Sweeteners: Current Use and Health Perspectives. A Scientific Statement From the American Heart Association and the American Diabetes Association. Website https://pubmed.ncbi.nlm.nih.gov/22777177/. Accessed August 18, 2022) in our selection of (pure) sucralose for our formulations. While we have, and continue to evaluate other non-nutritive sweeteners as they are introduced by manufacturers, it is our current belief (pure) sucralose is superior to all other non-nutritive sweeteners, based upon our criteria of safety, taste and manufacturing stability
We distinguish the labeling and marketing of our GLUCODOWN® brand with three statements of nutritional support deriving from the physiological impacts of the dietary fiber infused in GLUCODOWN®:
· | Moderate rising glucose levels after meals to maintain healthy post-prandial glycemic response |
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· | Block metabolism of dietary sugars and fats to maintain healthy glucose, cholesterol and triglycerides levels. |
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· | Improve regularity to maintain healthy digestion |
In 2021, we extended our GLUCODOWN® product line by launching four new GLUCODOWN® drink (not iced tea) mix flavors (Cherry, Strawberry-Banana, Peach Mango, and Watermelon) also in powder form.
We manufacture all eight GLUCODOWN® flavor variations in two packaging formats (foil resealable pouches and bulk containers).
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Additionally, we are formulating more GLUCODOWN® line extensions to serve prediabetic and diabetic persons, all to be manufactured in powder form, including flavored instant coffees, such as Mocha Coffee, and Horchata.
We are also developing new GLUCODOWN® packaging formats, including single-serve stick-packs for all our iced tea mix, drink mix and planned future flavor variations.
However, to launch more GLUCODOWN® line extensions in the current fiscal year, we require additional capital, which we do not presently have.
FIBER UP®
FIBER UP® will be our second soluble fiber infused nutritional beverage brand and our first ready-to-drink (not powder) beverage. We plan to utilize a variation suitable for ready-to-drink beverages, of the same soluble fiber from our ingredient supplier, for FIBER UP®, as we use for GLUCODOWN®. We plan to formulate approximately 5 grams of dietary fiber per serving size (16 oz. bottle) which compares to approximately 4 grams of dietary fiber per serving size (one scoop per 8 oz. of water) for GLUCODOWN®. We plan to distinguish the labeling and marketing of our FIBER UP® brand with four statements of nutritional support deriving from the physiological impacts of the dietary fiber infused in FIBER UP®. Our identified target market consists of health-conscious persons 45 years and older who may be fiber deficient. We believe most Americans are not aware of their fiber deficiency. Accordingly, we intend to emphasize the physiological benefits of our dietary fiber, with four statements of nutritional support prominently displayed in our labeling and marketing, which we believe are compelling to our identified consumer market.
· | Supports a healthy heart |
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· | Promotes weight loss |
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· | Preserves bone strength |
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· | Maintains a healthy gut |
Whereas the micronutrients selected for GLUCODOWN® were chosen based upon some evidence of potential physiological benefit targeted to diabetic and pre-diabetic consumers, we intend to enrich FIBER UP® with a broader spectrum of micronutrients targeted to serve health-conscious consumers who may be fiber deficient. For example, we also plan to include calcium in FIBER UP® which complements dietary fiber’s beneficial physiological impacts related to preserving bone strength. We will not derive any of our statements of nutritional support from the micronutrients in FIBER UP®
Whereas extract of banaba leaf (for corosolic acid) was selected for GLUCODOWN® based upon its use in Ayurveda traditional healing for healthy blood sugar, we intend to enrich FIBER UP® with a different plant extract, such as ginseng, for which some evidence indicates potential physiological benefit related to heart health, weight loss, bone strength and a healthy gut. We will not derive any of our statements of nutritional support from the plant extracts in FIBER UP®.
As we plan to manufacture FIBER UP® as a ready-to-drink beverage, we have developed formulas, which we consider trade secrets, of natural flavors (we do not use artificial flavors), flavor enhancing acidulants (citric and malic acid) and our preferred non-nutritive sweetener, (pure) sucralose. Consumer perception of ready-to-drink beverages is also enhanced by appearance. In this regard, we have utilized colors derived from vegetables to develop vibrant purple and red colors for the FIBER UP® drink flavors we have formulated to date, grape and cherry.
We believe consumer awareness of FIBER UP® will be enhanced by attractive artwork and packaging. We evaluated many different forms of consumer packaging for FIBER UP® and determined aluminum bottles to be the most environmentally friendly due to their essentially infinite recyclability. We considered various aluminum bottle options from different manufacturers and opened an account with our chosen supplier. We have completed the graphic design and labeling for FIBER UP® including review by our FDA/FTC attorney for compliance with applicable regulations and industry guidance statements.
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We have also begun early manufacturing, marketing, and distribution planning for FIBER UP®, including hiring a brand management firm to assist us. However, to launch FIBER UP® in the current fiscal year, we require substantial additional capital, which we do not presently have.
Marketing and Distribution
Our most important marketing and distribution objectives are:
| (1) | Build awareness of GLUCODOWN® among the persons which comprise our identified pre-diabetic and diabetic consumer market for this brand. |
| (2) | Increase sales of GLUCODOWN® via direct end-user consumer purchase |
| (3) | Secure distribution of GLUCODOWN® at national and large regional retailers. |
| (4) | Grow sales of GLUCODOWN® at the national and large regional retailers who are already our customers. |
| (5) | Launch FIBER UP® in at least one regional market. |
Competition
GLUCODOWN® competes directly on the shelves and/or online at the retailers who are our customers, and online at Amazon, with other nutritional beverages which serve our market niche of pre-diabetic and diabetic consumers. These nutritional beverages include Glucerna®, distributed by Abbott Laboratories; Boost®, distributed by Nestle; Splenda® distributed by Heartland Food Products Group, and Slimfast®, distributed by Glanbia, PLC. Our principal competitors are far larger companies than our Company, with much greater financial and human resources to allocate to their brands. Our principal competitor’s brands all have extensive retailer and online distribution, and established consumer recognition and loyalty.
Nevertheless, GLUCODOWN® has two competitive advantages over our much larger principal competitor’s brands - its nutritional attributes and its product differentiation.
| 6 |
| Table of Contents |
We believe there are four essential nutritional attributes when formulating a nutritional beverage for diabetic and pre-diabetic consumers:
| · | No sugar (including no added sugar) |
| · | No saturated fat |
| · | Low-calorie (10 calories per serving) |
| · | Good Source of Fiber (soluble) |
Our belief in the nutritional suitability of GLUCODOWN® with respect to our target market, and in particular the essential nature of all four nutritional attributes named above, is informed by the guidelines and recommendations of experts, such as, for example, that published by the American Diabetes Association.
No sugar (including no added sugar) | The consumption of sugar-sweetened beverages…is strongly discouraged…”(1) “People with diabetes and those at risk are advised to…minimize the consumption of foods with added sugar…”(2)
|
No saturated fat | “The type of fats consumed is more important than total amount of fat when looking at metabolic goals and CVD risk, and it is recommended that the percentage of total calories from saturated fats should be limited…”(3)
|
Low-calorie (10 calories per serving) | “Management and reduction of weight is important for people with type 1 diabetes, type 2 diabetes, or prediabetes with overweight or obesity.”(4)
“For some people with diabetes who are accustomed to regularly consuming sugar-sweetened products, non- nutritive sweeteners (containing few or no calories) may be an acceptable substitute for nutritive sweeteners.”(5)
|
Good Source of Fiber (soluble) | Lifestyle modification focusing on….increase of…viscous fiber…”(6) |
(1) | “The American Diabetes Association Standards of Medical Care in Diabetes-2022” page S66. |
|
|
(2) | “The American Diabetes Association Standards of Medical Care in Diabetes-2022” page S63. |
|
|
(3) | “The American Diabetes Association Standards of Medical Care in Diabetes-2022” page S66. |
|
|
(4) | “The American Diabetes Association Standards of Medical Care in Diabetes-2022” page S64. |
|
|
(5) | “The American Diabetes Association Standards of Medical Care in Diabetes-2019 (Abridged for Primary Care Providers)” page 17. |
|
|
(6) | “The American Diabetes Association Standards of Medical Care in Diabetes-2019 (Abridged for Primary Care Providers)” page 26. |
While all our principal competitors utilize dietary fiber, GLUCODOWN® is the only brand, to the best of our knowledge, which possesses all four nutritional attributes identified above. Consistent with their Nutrition Facts panel disclosures, we believe all our principal competitor’s beverages indicate the presence of saturated fat; all our principal competitor’s beverages range between 10x to 19x more calories per serving compared to GLUCODOWN®; and three of our four principal competitors’ beverages indicate the presence of sugar.
Additionally, some of our competitors utilize dietary protein in their formulations. We believe dietary protein supplementation is not scientifically supported for glycemic management (maintaining healthy blood sugar) and is therefore, not nutritionally suitable, for GLUCODOWN®. In support of our belief, we cite The American Diabetes Association Standards of Medical Care in Diabetes-2022 which, on page S66, sub-heading Protein, provides that “[t]here is no evidence that adjusting the daily level of protein intake (typically 1-1.5 g/kg body wt/day or 15-20% total calories) will improve health, and research is inconclusive regarding the ideal amount of dietary protein to optimize either glycemic management or CVD risk (121,153).” (The American Diabetes Association Standards of Medical Care in Diabetes-2022.diabetesjournals.org/care/article/45/Supplement_1/S60/138923/5-Facilitating-Behavior-Change-and-Well-being-to)
GLUCODOWN® is also a unique and distinctive product compared to all others manufactured by our competitors. Our competitor’s products are all dairy shakes (powdered or ready-to-drink) with each brand offering a limited choice of flavors, typically chocolate, strawberry, and vanilla. In contrast, GLUCODOWN® offers an array of delicious iced tea mixes (Peach Tea, Lemon Tea, Raspberry Tea, and Mixed Berry Tea) and delicious (not iced tea) drink mixes (Cherry, Peach-Mango, Strawberry-Banana, and Watermelon).
GLUCODOWN® indirectly competes with a myriad of dietary supplements in tablet and capsule form found in brick-and-mortar retailers and online marketplaces, targeted to our consumer market niche. These dietary supplements include many different plant extracts, such as, for example, cinnamon, bitter melon, fenugreek and others, and some also include many combinations of different plant extracts. The dietary supplements we indirectly compete with further include many vitamins and minerals, such as B12 or chromium, and also include many combinations of these vitamins and minerals (and plant extracts). The dietary supplements we indirectly compete with are usually not themselves branded but can be marketed by large and well-established vitamin manufacturers with established company brand awareness, who have greater financial, staff and distribution resources, compared to our Company. Nevertheless, we believe that as our GLUCODOWN® brand continues to steadily gain consumer recognition, we will effectively compete against all such dietary supplements.
Although GLUCODOWN® is infused with dietary fiber, we believe it to be a deliciously flavored beverage, which does not directly, or indirectly, compete with dietary fiber supplements. Most dietary fiber supplements are tasteless or alternatively, pleasant tasting, but not conceived by manufacturers as a beverage meant to be also evaluated by consumers based upon delicious taste. Additionally, a number of dietary fiber supplements are “insoluble” dietary fiber which does not possess the properties of soluble fiber, which helps to inhibit the metabolism of dietary sugars into serum glucose (i.e., maintain healthy blood sugar).
We expect that upon launch, FIBER UP® will compete in the healthy soft drink market segment, which includes but is not limited to other drinks that are fiber infused. Consumer preference for healthier soft drinks is a recognized industry trend with many established brands participating in the market segment. Additionally, there are a myriad of smaller beverage companies that also market healthier soft drinks, each with varying degrees of brand recognition and distribution success and even some, such as Wanu Water, Olipop, Halfday and Gist that have launched soft drinks infused with dietary fiber. As a new entrant to the healthier soft drink consumer market, we expect that FIBER UP® will face intense competition from all healthier drinks generally, and possibly healthier drinks infused with dietary fiber, if and when it is launched.
Despite this intensely competitive market, we believe that FIBER UP® will be successful because it will have two important competitive advantages vs. the many other healthier soft drinks available to consumers today- statements of nutritional support and early-entrant market status in our category segment.
As a consequence of the physiological impacts on the human body of the soluble fiber we plan to infuse in FIBER UP®, we intend to incorporate various statements of nutritional support in our labeling and marketing of FIBER UP®, such as, for example, “supports a healthy heart”. We believe health-conscious consumers will find such statements compelling, particularly in comparison to other healthier beverages. We believe many, if not most, healthier soft-drinks presently marketed to health-conscious consumers, utilize only simple nutritive statements, such as no-sugar, caffeine-free, gluten-free, or low-calorie. We believe our planned statements of nutritional support for FIBER UP® provide important brand differentiation because they are not apparent in the labeling and marketing of other healthier soft drink brands from other beverage companies. We have limited information to assess whether such statements of nutritional support are also present in the labeling and marketing of other healthier soft drinks we believe to be infused with dietary fiber and whether, as a result, whether these brands may pose a competitive threat. We believe consumers at the age of 45 and older, in particular, will be receptive to our statements of nutritional support. If we obtain the capital to launch FIBER UP®, of which there is no certainty, it is our intention to initially focus our limited marketing resources on 45 and older consumers.
| 7 |
| Table of Contents |
In the last two decades, leading beverage companies have marketed, or test-marketed, various fiber infused soft drinks in the United States, without apparent commercial success. In contrast, in Asian countries, particularly with older populations such as Japan, soluble fiber infused soft drinks are today marketed by leading beverage companies with apparent commercial success and brand longevity. We believe consumer interest in the United States in the physiological benefits of soluble fiber is nascent, for reasons of an aging population and increasing health consciousness but, is still not yet at scale for brand investment by leading beverage companies. The current absence of leading beverage companies manufacturing and distributing soluble fiber infused soft drinks in North America provides an early-entrant market opportunity for our Company. If we are successful, we believe we will be among the first beverage companies in North America to launch soluble fiber infused, healthier soft drinks. As an early-entrant in this category segment, we may potentially gain brand recognition and meaningful distribution without having to face direct competition from the leading beverage companies.
Corporate History
We were incorporated under the laws of the State of Nevada as Bio-Solutions Corp. on March 27, 2007. From inception, through the third quarter of 2014, we were engaged in various businesses which were unrelated to our current business and corporate officers. On November 19, 2014, we changed our name to Glucose Health, Inc., and our business to that of an own-label distributor of nutritional beverages, which is our business today. Following the name change and the changes in the focus of our business, on April 16, 2018, we filed Form 15 to terminate our registered class of securities and reporting requirements under the Exchange Act.
Corporate Information
Our principal executive office is located at 609 SW 8th Street, Suite 600, Bentonville, AR 72712, and our telephone number is 479-802-3827. Our corporate website is www.glucosehealthinc.com, and our principal product website is www.glucodown.com. Information available on our websites is not incorporated by reference in and is not deemed a part of this Prospectus or the registration statement of which this Prospectus is a part.
Nasdaq Listing and Reverse Stock Split
We have applied to list of our Common Stock on the Nasdaq under the symbol “GLUC”. There can be no assurance that such listing will be approved or that a liquid trading market will develop. If our listing is not approved, we will not proceed this offering. Nasdaq listing standards include, among other things, a stock price threshold. In order to meet that threshold, we intend to implement a reverse stock split of our Common Stock at a ratio of 1-for-10 prior to the closing of this offering. No fractional shares will be issued in connection with the reverse split and all such fractional interests will be rounded up to the nearest whole number of shares of Common Stock. Our planned reverse split is referred to herein as our “Common Stock Reverse Split”. Other than in our financial statements and notes thereto, and except where otherwise noted, information presented in this Prospectus indicates our planned Common Stock Reverse Split.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company” as defined in Rule 10(f)(1) of Regulation S-K. Smaller reporting companies may take advantage of certain reduced disclosure obligations, including, among other things, providing only two years of audited financial statements. We will remain a smaller reporting company until the last day of the fiscal year in which (1) the market value of our shares held by non-affiliates equals or exceeds $250 million as of the prior June 30th, or (2) our annual revenues equaled or exceeded $100 million during such completed fiscal year and the market value of our shares held by non-affiliates equals or exceeds $700 million as of the prior June 30th. Such reduced disclosure and corporate governance obligations may make it more challenging for investors to analyze our results of operations and financial prospects.
We are a smaller reporting company within the meaning of the Securities Act, and if we take advantage of certain exemptions from disclosure requirements available to smaller reporting companies, this could make our securities less attractive to investors and may make it more difficult to compare our performance with other public companies and As a “smaller reporting company,” we may choose to exempt our company from certain corporate governance requirements that could have an adverse effect on our public shareholders.”
| 8 |
| Table of Contents |
Implications of Being an Emerging Growth Company
We are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act. We will remain an emerging growth company until the earlier of (1) December 31, 2024 (2) the last day of the fiscal year in which we have total annual gross revenue of at least $1.07 billion, (3) the last day of the fiscal year in which we are deemed to be a “large accelerated filer” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, or the Exchange Act, which would occur on the date on which we have issued more than $1.0 billion in non-convertible debt securities during the prior three-year period. An emerging growth company may take advantage of specified reduced reporting requirements and is relieved of certain other significant requirements that are otherwise generally applicable to public companies. As an emerging growth company, we may:
| · | present only two years of audited financial statements, plus unaudited condensed financial statements for any interim period, and related management’s discussion and analysis of financial condition and results of operations in this Prospectus; |
| · | avail ourselves of the exemption from the requirement to obtain an attestation and report from our auditors on the assessment of our internal control over financial reporting pursuant to the Sarbanes-Oxley Act of 2002, or Sarbanes-Oxley; |
| · | provide reduced disclosure about our executive compensation arrangements; and |
| · | not require stockholder non-binding advisory votes on executive compensation or golden parachute arrangements. |
In addition, under the JOBS Act, an emerging growth company can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have irrevocably elected not to avail ourselves of this extended transition period, and, as a result we will adopt new or revised accounting standards on relevant dates on which adoption of such standards is required for other public companies.
| 9 |
| Table of Contents |
SUMMARY OF THE OFFERING
Issuer: |
| Glucose Health, Inc. |
|
|
|
Securities Offered by us: |
| 2,125,000 shares of Common Stock, at an assumed public offering price of $4.00 per share of Common Stock. |
|
|
|
Over-allotment option: |
| We have granted to the Representative a 45-day option to purchase up to 318,750 additional shares of our Common Stock at our public offering price of $4.00 per share, in any combination solely to cover over-allotments, if any. |
|
|
|
Representative’s warrants: |
| We have agreed to issue to the Representative compensatory warrants to purchase a number of shares of Common Stock equal in the aggregate to 2% of the total number of shares issued in this offering. The Representative’s warrants will be exercisable at a per share exercise price equal to 150% of the public offering price per share of Common Stock sold in this offering. The representative’s warrants will only be exercisable during the four and a half-year period commencing six (6) months from the commencement date of sales in this offering. The Representative’s warrants also provide for customary anti-dilution provisions, one-time demand registration right (with a duration of such right not to exceed five years from the commencement of sales of Common Stock in this offering) and unlimited “piggyback” registration rights (with a duration of such rights not to exceed seven years from the commencement of sales of Common Stock in this offering) with respect to the registration of the shares of Common Stock underlying the warrants. The registration statement of which this Prospectus forms a part also registers the shares of Common Stock issuable upon exercise of the Representative’s warrants. |
|
|
|
Securities Offered by Selling Stockholders |
| The Selling Stockholders are offering 1,313,402 shares of Common Stock, consisting of (i) 103,402 shares of Common Stock, (ii) 640,000 shares of Common Stock to be issued upon conversion of Series D Preferred Stock after our Common Stock Reverse Stock Split, and (iii) 570,000 shares of Common Stock to be issued upon conversion of Series E Preferred Stock after our Common Stock Reverse Split. |
|
|
|
Common stock issued and outstanding before this offering: |
| 1,686,197 shares |
|
|
|
Common stock issued and outstanding after this offering1: |
| 5,021,197 shares. |
|
|
|
Use of proceeds: |
| We estimate that the net proceeds to us from this offering will be approximately $7,593,500 (or approximately $8,755,025 if the Representative exercises its over-allotment option in full) assuming an offering price of $4.00 per share. We will not receive any proceeds from the sale of the Selling Stockholder Shares by the Selling Stockholders.
We intend to use the net proceeds of this offering primarily for working capital, sales and marketing, research and development, and general corporate purposes. See “Use of Proceeds” for additional information. |
|
|
|
Proposed Nasdaq Trading Symbol and Listing:
|
| We have applied to list of our Common Stock on the Nasdaq under the symbol “GLUC”. If our listing is not approved, we will not proceed with this offering. |
|
|
|
Common Stock Reverse Split: |
| We plan to effect a reverse stock split of our Common Stock by a ratio of 1-for-10 prior to the closing of this offering (“Common Stock Reverse Split”). Other than in our financial statements and notes thereto, and except where otherwise noted, information presented in this Prospectus reflects our planned Common Stock Reverse Split. |
|
|
|
Risk Factors: |
| See “Risk Factors” beginning on page 15 and the other information contained in this Prospectus for a discussion of factors you should carefully consider before investing in our securities. |
|
|
|
Lock-up agreements:
|
| The Company, each of our directors and executive officers, and our 5% and greater shareholders have agreed not to, subject to certain limited exceptions, offer, pledge, sell, contract to sell, grant any option to purchase, or otherwise dispose of our Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, or to enter into any hedge or other arrangement or any transaction that transfers, directly or indirectly, the economic consequence of ownership of the shares of our Common Stock, in the case of the Company for a period of 360 days after the date of this Prospectus, and in the case of our directors and executive officers and our 5% and greater stockholders for a period of 180 days after the date of this Prospectus. See “Underwriting” for additional information. |
(1) | Unless otherwise indicated, shares of our Common Stock issued and outstanding after this offering excludes the following: |
| · | 1,416,667 shares of Common Stock which may be issued upon exercise of the 1-for-1 conversion option of 1,416,667 issued and outstanding shares of Preferred Stock. |
| · | Any shares of Common Stock issuable upon exercise of the Representative’s over-allotment option and underlying the Representative’s warrants. |
| 10 |
| Table of Contents |
SUMMARY FINANCIAL INFORMATION
The following summary statements of operations and balance sheet data for interim period ending September 30, 2022, and the fiscal years ended December 31, 2021, and 2020, have been derived from our audited financial statements included elsewhere in this Prospectus. The historical financial data presented below is not necessarily indicative of our financial results in future periods. You should read the summary financial data in conjunction with those financial statements and the accompanying notes and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Our financial statements are prepared and presented in accordance with United States generally accepted accounting principles, or U.S. GAAP. Our financial statements have been prepared on a basis consistent with our audited financial statements and include all adjustments, consisting of normal and recurring adjustments that we consider necessary for a fair presentation of the financial position and results of operations as of and for such periods. The financial statements presented below do not reflect our planned Common Stock Reverse Split.
GLUCOSE HEALTH INC.
STATEMENTS OF OPERATIONS (UNAUDITED)
|
| For the three months ended |
|
| For the nine months ended |
| ||||||||||
|
| September 30, |
|
| September 30, |
| ||||||||||
|
| 2022 |
|
| 2021 |
|
| 2022 |
|
| 2021 |
| ||||
|
|
|
|
|
|
|
|
|
|
|
|
| ||||
REVENUE, NET |
| $ | 340,681 |
|
| $ | 234,930 |
|
| $ | 918,516 |
|
| $ | 759,498 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COST OF REVENUES |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of revenues |
|
| 186,892 |
|
|
| 172,898 |
|
|
| 523,653 |
|
|
| 479,672 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
GROSS PROFIT |
|
| 153,789 |
|
|
| 62,032 |
|
|
| 394,863 |
|
|
| 279,826 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OPERATING EXPENSES |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling and marketing |
|
| 83,748 |
|
|
| 152,723 |
|
|
| 385,405 |
|
|
| 419,230 |
|
General and administrative |
|
| 46,879 |
|
|
| 28,953 |
|
|
| 153,827 |
|
|
| 85,340 |
|
Professional fees |
|
| 15,070 |
|
|
| 12,091 |
|
|
| 149,416 |
|
|
| 49,187 |
|
Uncollectible receivables |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
| 145,697 |
|
|
| 193,767 |
|
|
| 688,648 |
|
|
| 553,757 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INCOME (LOSS) FROM OPERATIONS |
|
| 8,092 |
|
|
| (131,735 | ) |
|
| (293,785 | ) |
|
| (273,931 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OTHER INCOME (EXPENSE) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income (expense) |
|
| - |
|
|
| - |
|
|
| - |
|
|
| (2,785 | ) |
Total other expense |
|
| - |
|
|
| - |
|
|
| - |
|
|
| (2,785 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INCOME (LOSS) BEFORE INCOME TAXES |
|
| 8,092 |
|
|
| (131,735 | ) |
|
| (293,785 | ) |
|
| (276,716 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PROVISION FOR (BENEFIT FROM) INCOME TAXES |
|
| - |
|
|
| - |
|
|
| - |
|
|
| - |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET LOSS ATTRIBUTABLE TO GLUCOSE HEALTH, INC. |
|
| 8,092 |
|
|
| (131,735 | ) |
|
| (293,785 | ) |
|
| (276,716 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends to preferred stock holders |
|
| (25,125 | ) |
|
| (25,125 | ) |
|
| (75,375 | ) |
|
| (74,319 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET LOSS AVAILABLE FOR COMMON STOCK HOLDERS |
| $ | (17,033 | ) |
| $ | (156,860 | ) |
| $ | (369,160 | ) |
| $ | (351,035 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- BASIC AND DILUTED |
|
| 13,848,630 |
|
|
| 13,848,630 |
|
|
| 13,848,630 |
|
|
| 12,550,039 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET INCOME (LOSS) PER SHARE - BASIC AND DILUTED |
| $ | 0.00 |
|
| $ | (0.01 | ) |
| $ | (0.02 | ) |
| $ | (0.02 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET INCOME (LOSS) PER SHARE ATTRIBUTABLE TO |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMMON SHAREHOLDERS - BASIC AND DILUTED |
| $ | (0.00 | ) |
| $ | (0.01 | ) |
| $ | (0.03 | ) |
| $ | (0.03 | ) |
The accompanying notes are an integral part of these financial statements.
| 11 |
| Table of Contents |
GLUCOSE HEALTH INC.
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31,
|
| 2021 |
|
| 2020 |
| ||
|
|
|
|
|
|
| ||
REVENUE, NET |
| $ | 953,681 |
|
| $ | 480,713 |
|
|
|
|
|
|
|
|
|
|
COST OF REVENUES |
|
|
|
|
|
|
|
|
Cost of revenues |
|
| 543,639 |
|
|
| 307,168 |
|
|
|
|
|
|
|
|
|
|
GROSS PROFIT |
|
| 410,042 |
|
|
| 173,545 |
|
|
|
|
|
|
|
|
|
|
OPERATING EXPENSES |
|
|
|
|
|
|
|
|
Selling and marketing |
|
| 596,936 |
|
|
| 213,410 |
|
General and administrative |
|
| 92,885 |
|
|
| 61,735 |
|
Professional fees |
|
| 46,340 |
|
|
| 82,061 |
|
Stock compensation |
|
| - |
|
|
| 440,694 |
|
Uncollectible receivables |
|
| 10,000 |
|
|
| - |
|
Total operating expenses |
|
| 746,161 |
|
|
| 797,900 |
|
|
|
|
|
|
|
|
|
|
INCOME (LOSS) FROM OPERATIONS |
|
| (336,119 | ) |
|
| (624,355 | ) |
|
|
|
|
|
|
|
|
|
OTHER INCOME (EXPENSE) |
|
|
|
|
|
|
|
|
Interest income (expense) |
|
| (2,785 | ) |
|
| (12,156 | ) |
Interest income (expense), non-cash item |
|
| - |
|
|
| (5,604 | ) |
Recovery of retailer chargebacks |
|
| - |
|
|
| 163,765 |
|
Loss on debt settlement |
|
| - |
|
|
| (14,370 | ) |
Gain on forgiveness of accounts payable |
|
| - |
|
|
| 15,042 |
|
Total other expense |
|
| (2,785 | ) |
|
| 146,677 |
|
|
|
|
|
|
|
|
|
|
INCOME (LOSS) BEFORE INCOME TAXES |
|
| (338,904 | ) |
|
| (477,678 | ) |
|
|
|
|
|
|
|
|
|
PROVISION FOR (BENEFIT FROM) INCOME TAXES |
|
| - |
|
|
| - |
|
|
|
|
|
|
|
|
|
|
NET LOSS ATTRIBUTABLE TO GLUCOSE HEALTH, INC. |
|
| (338,904 | ) |
|
| (477,678 | ) |
|
|
|
|
|
|
|
|
|
Dividends to preferred stockholders |
|
| (99,443 | ) |
|
| (49,607 | ) |
|
|
|
|
|
|
|
|
|
NET LOSS AVAILABLE FOR COMMON STOCKHOLDERS |
| $ | (438,347 | ) |
|
| (527,285 | ) |
|
|
|
|
|
|
|
|
|
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING |
|
|
|
|
|
|
|
|
- BASIC AND DILUTED |
|
| 12,877,355 |
|
|
| 11,467,101 |
|
|
|
|
|
|
|
|
|
|
NET INCOME (LOSS) PER SHARE - BASIC AND DILUTED |
| $ | (0.03 | ) |
| $ | (0.04 | ) |
|
|
|
|
|
|
|
|
|
NET INCOME (LOSS) PER SHARE ATTRIBUTABLE TO |
|
|
|
|
|
|
|
|
COMMON SHAREHOLDERS - BASIC AND DILUTED |
| $ | (0.03 | ) |
| $ | (0.05 | ) |
The accompanying notes are an integral part of these financial statements.
| 12 |
| Table of Contents |
GLUCOSE HEALTH, INC.
BALANCE SHEETS
ASSETS | ||||||||
|
| September 30, |
|
| December 31, |
| ||
|
| 2022 |
|
| 2021 |
| ||
CURRENT ASSETS |
| (unaudited) |
|
|
|
| ||
Cash |
| $ | 308,536 |
|
| $ | 752,402 |
|
Accounts receivable, net of allowance for doubtful accounts |
|
|
|
|
|
|
|
|
of $12,052 and $10,742, respectively |
|
| 145,476 |
|
|
| 29,435 |
|
Inventory |
|
| 321,537 |
|
|
| 267,861 |
|
Prepaid expenses |
|
| - |
|
|
| 103,114 |
|
Total current assets |
|
| 775,549 |
|
|
| 1,152,812 |
|
|
|
|
|
|
|
|
|
|
Other Assets |
|
|
|
|
|
|
|
|
Website domains |
|
| 3,295 |
|
|
| 3,295 |
|
Intellectual assets, net of accumulated |
|
|
|
|
|
|
|
|
amortization of $300 |
|
| - |
|
|
| - |
|
|
|
|
|
|
|
|
|
|
TOTAL ASSETS |
| $ | 778,844 |
|
| $ | 1,156,107 |
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS' EQUITY | ||||||||
|
|
|
|
|
|
|
|
|
CURRENT LIABILITIES |
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses |
| $ | 1,452 |
|
| $ | 9,555 |
|
Total current liabilities |
|
| 1,452 |
|
|
| 9,555 |
|
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES |
|
| 1,452 |
|
|
| 9,555 |
|
|
|
|
|
|
|
|
|
|
COMMITMENTS AND CONTINGENCIES |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STOCKHOLDERS' EQUITY |
|
|
|
|
|
|
|
|
Preferred stock, $.001 par value, 10,000,000 shares authorized, |
|
|
|
|
|
|
|
|
Series A, $0.001 par value, 1,000 shares authorized |
|
|
|
|
|
|
|
|
1,000 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
September 30, 2022 and December 31, 2021, respectively |
|
| 1 |
|
|
| 1 |
|
Series B, $0.075 stated value, 3,466,668 shares authorized, |
|
|
|
|
|
|
|
|
2,133,334 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
September 30, 2022 and December 31, 2021, respectively |
|
| 2,133 |
|
|
| 2,133 |
|
Series C, $0.075 stated value, 866,668 shares authorized, |
|
|
|
|
|
|
|
|
866,668 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
September 30, 2022 and December 31, 2021, respectively |
|
| 867 |
|
|
| 867 |
|
Series D, $0.25 stated value, 1,200,000 shares authorized, |
|
|
|
|
|
|
|
|
1,200,000 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
September 30, 2022 and December 31, 2021, respectively |
|
| 1,200 |
|
|
| 1,200 |
|
Series E, $0.667 stated value, 1,440,000 shares authorized, |
|
|
|
|
|
|
|
|
1,440,000 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
September 30, 2022 and December 31, 2021, respectively |
|
| 1,440 |
|
|
| 1,440 |
|
Common stock, $0.001 par value, 40,000,000 shares authorized, |
|
|
|
|
|
|
|
|
13,848,630 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
September 30, 2022 and December 31, 2021, respectively |
|
| 13,849 |
|
|
| 13,849 |
|
Additional paid in capital |
|
| 8,829,373 |
|
|
| 8,829,373 |
|
Accumulated deficit |
|
| (8,071,470 | ) |
|
| (7,702,310 | ) |
Total stockholders' equity |
|
| 777,392 |
|
|
| 1,146,552 |
|
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY |
| $ | 778,844 |
|
| $ | 1,156,107 |
|
The accompanying notes are an integral part of these financial statements.
| 13 |
| Table of Contents |
GLUCOSE HEALTH, INC.
BALANCE SHEETS
ASSETS | ||||||||
|
| December 31, |
|
| December 31, |
| ||
|
| 2021 |
|
| 2020 |
| ||
CURRENT ASSETS |
|
|
|
|
|
| ||
Cash |
| $ | 752,402 |
|
| $ | 69,151 |
|
Accounts receivable, net of allowance for doubtful accounts of $10,742 and $742, respectively |
|
| 29,435 |
|
|
| 18,048 |
|
Inventory |
|
| 267,861 |
|
|
| 254,122 |
|
Prepaid expenses |
|
| 103,114 |
|
|
| - |
|
Total current assets |
|
| 1,152,812 |
|
|
| 341,321 |
|
|
|
|
|
|
|
|
|
|
Other Assets |
|
|
|
|
|
|
|
|
Website domains |
|
| 3,295 |
|
|
| 3,295 |
|
Intellectual assets, net of accumulated amortization of $300 |
|
| - |
|
|
| - |
|
|
|
|
|
|
|
|
|
|
TOTAL ASSETS |
| $ | 1,156,107 |
|
| $ | 344,616 |
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS' EQUITY | ||||||||
|
|
|
|
|
|
|
|
|
CURRENT LIABILITIES |
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses |
| $ | 9,555 |
|
| $ | - |
|
Accrued interest |
|
| - |
|
|
| 27,604 |
|
Convertible note payable, related party |
|
| - |
|
|
| 112,157 |
|
Total current liabilities |
|
| 9,555 |
|
|
| 139,761 |
|
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES |
|
| 9,555 |
|
|
| 139,761 |
|
|
|
|
|
|
|
|
|
|
COMMITMENTS AND CONTINGENCIES |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STOCKHOLDERS' EQUITY |
|
|
|
|
|
|
|
|
Preferred stock, $.001 par value, 10,000,000 shares authorized, |
|
|
|
|
|
|
|
|
Series A, $0.001 par value, 1,000 shares authorized, |
|
|
|
|
|
|
|
|
1,000 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
December 31, 2021 and 2020, respectively |
|
| 1 |
|
|
| 1 |
|
Series B, $0.075 stated value, 3,466,668 shares authorized, |
|
|
|
|
|
|
|
|
2,133,334 shares and 3,466,668 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
December 31, 2021 and 2020, respectively |
|
| 2,133 |
|
|
| 3,467 |
|
Series C, $0.075 stated value, 866,668 shares authorized, |
|
|
|
|
|
|
|
|
866,668 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
December 31, 2021 and 2020, respectively |
|
| 867 |
|
|
| 867 |
|
Series D, $0.25 stated value, 1,200,000 shares authorized, |
|
|
|
|
|
|
|
|
1,200,000 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
December 31, 2021 and 2020, respectively |
|
| 1,200 |
|
|
| 1,200 |
|
Series E, $0.667 stated value, 1,440,000 shares authorized, |
|
|
|
|
|
|
|
|
1,440,000 shares and -0- shares issued and outstanding as of |
|
|
|
|
|
|
|
|
December 31, 2021 and 2020, respectively |
|
| 1,440 |
|
|
| - |
|
Common stock, $0.001 par value, 40,000,000 shares authorized, |
|
|
|
|
|
|
|
|
13,848,630 and 11,627,949 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
December 31, 2021 and 2020, respectively |
|
| 13,849 |
|
|
| 11,628 |
|
Additional paid in capital |
|
| 8,829,373 |
|
|
| 7,451,655 |
|
Accumulated deficit |
|
| (7,702,310 | ) |
|
| (7,263,963 | ) |
Total stockholders' equity |
|
| 1,146,552 |
|
|
| 204,855 |
|
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY |
| $ | 1,156,107 |
|
| $ | 344,616 |
|
The accompanying notes are an integral part of these financial statements.
14 |
| Table of Contents |
RISK FACTORS
An investment in our securities involves a high degree of risk. Before making a decision to invest in our securities, you should carefully consider the risks that are described in this section and elsewhere in this Prospectus. Additional risks not presently known or that we currently deem immaterial could also materially and adversely affect us. You should consult your own financial and legal advisors as to the risks entailed by an investment in our securities and the suitability of investing in our securities in light of your particular circumstances. If any of the risks contained in this Prospectus develop into actual events, our assets, business, cash flows, condition (financial or otherwise), credit quality, financial performance, liquidity, long-term performance goals, prospects, and/or results of operations could be materially and adversely affected, the trading price of our Common Stock could decline, and you may lose all or part of your investment. Some statements in this Prospectus, including statements in the following risk factors, constitute forward-looking statements. See “Cautionary Note Regarding Forward-Looking Statements.”
Risks Related to Our Company and Business
We have a limited operating history and may not be able to operate our business successfully.
On November 19, 2014, we changed our name to Glucose Health, Inc., and our business to that of an own-label distributor of nutritional beverages. Our business has a relatively limited operating history. Historical results are not indicative of, and may be substantially different than, the results we achieve in the future. We cannot assure you that we will be able to operate our business successfully or implement our operating policies and strategies. The results of our operations depend on several factors, our success in attracting and retaining motivated and qualified personnel, the availability of adequate short and long-term financing, conditions in the financial markets, and general economic conditions. In addition, our future operating results and financial data may vary materially from the historical operating results and financial data as well as the pro forma operating results and financial data because of a number of factors, including costs and expenses associated with being a public company.
We have limited capital resources, and we will need to raise additional capital through additional funding raises. Such funding, if obtained, could result in substantial dilution or significant debt service obligations. We may not be able to obtain additional capital on commercially reasonable terms in a timely manner, which could adversely affect our liquidity, financial position, and ability to continue operations.
As of September 30, 2022, we had a cash balance of $308,536. We thus have limited capital resources and require the funds from this offering to continue and grow our business. Even if we substantially increase revenue and reduce operating expenses, we will need to raise additional capital. In order to continue operating, we may need to obtain additional financing, either through borrowings, private offerings, public offerings, or some type of business combination, such as a merger, or buyout, and there can be no assurance that we will be successful in such pursuits. We may be unable to acquire the additional funding necessary to continue operating. Accordingly, if we are unable to generate adequate cash from operations, and if we are unable to find sources of funding, it may be necessary for us to sell one or more lines of business or all or a portion of our assets, enter into a business combination, or reduce or eliminate operations. These possibilities, to the extent available, may be on terms that result in significant dilution to our shareholders or that result in our investors losing all of their investment in our company.
If we are able to raise additional capital, we do not know what the terms of any such capital raising would be. In addition, any future sale of our equity securities would dilute the ownership and control of your shares and could be at prices substantially below prices at which our shares currently trade. Our inability to raise capital could require us to significantly curtail or terminate our operations. We may seek to increase our cash reserves through the sale of additional equity. The sale of additional equity securities could result in additional and potentially substantial dilution to our shareholders. In addition, our ability to obtain additional capital on acceptable terms is subject to a variety of uncertainties. We cannot assure you that financing will be available in amounts or on terms acceptable to us, if at all. Any failure to raise additional funds on favorable terms could have a material adverse effect on our liquidity and financial condition.
| 15 |
| Table of Contents |
The loss of key officers, executives or personnel, or the inability of replacements to quickly and successfully perform in their new roles could adversely affect our business.
We depend on the leadership and experience of our Chief Executive Officer and Chief Financial Officer, Murray Fleming. The loss of his services could have a material adverse effect on our business and prospects, as we may not be able to find suitable individuals to replace our Chief Executive Officer and Chief Financial Officer on a timely basis or without incurring increased costs, or at all. Furthermore, if in the future, we lose or terminate the services of one or more of our key employees or if one or more of our current or former executives or key employees joins a competitor or otherwise competes with us, it could impair our business and our ability to successfully implement our business plan. Additionally, if in the future, we are unable to hire qualified replacements for our executive and other key positions in a timely fashion, our ability to execute our business plan would be harmed. Even if we can quickly hire qualified replacements, we would expect to experience operational disruptions and inefficiencies during any transition. We believe that our future success will depend on our continued ability to attract and retain highly skilled and qualified personnel. There is a high level of competition for experienced, successful personnel in our industry. Our inability to meet our executive staffing requirements in the future could impair our growth and harm our business.
We are dependent on our ability to attract and retain qualified technical, sales and managerial personnel.
Our future success depends in part on our ability to attract and retain highly qualified technical, sales and managerial personnel. Competition for such personnel in the beverage industry is intense and we may not be able to attract and retain additional highly qualified technical, sales and managerial personnel in the future. Any inability to attract and retain the necessary technical, sales and managerial personnel could materially adversely affect us.
Our financial statements may be materially affected if our estimates prove to be inaccurate as a result of our limited experience in making critical accounting estimates.
Financial statements prepared in accordance with GAAP require the use of estimates, judgments, and assumptions that affect the reported amounts. Actual results may differ materially from these estimates under different assumptions or conditions. These estimates, judgments, and assumptions are inherently uncertain, and, if they prove to be wrong, then we face the risk that charges to income will be required. In addition, because we have limited operating history and limited experience in making these estimates, judgments, and assumptions, the risk of future charges to income may be greater than if we had more experience in these areas. Any such charges could significantly harm our financial condition, results of operations, and the price of our securities.
Our operating results may fluctuate significantly as a result of a variety of factors, many of which are outside of our control, which could cause fluctuations in the price of our securities.
We are subject to the following factors that may negatively affect our operating results:
| · | the announcement or introduction of new products by our competitors; |
| · | our ability to upgrade and develop our systems to accommodate growth; |
| · | our ability to attract and retain key personnel in a timely and cost-effective manner; |
| · | the amount and timing of operating costs relating to the expansion of our business operations; |
| · | our ability to identify and enter into relationships with appropriate and qualified third-party providers for operations, tolling and contract manufacturing services; |
| · | regulation by federal, state, or local governments; |
| · | general economic conditions; |
| · | economic conditions specific to the nutritional beverage industry, including for ingredient suppliers, tolling and contract manufactures, packaging suppliers and printers, warehousing, and logistics providers; |
| · | various risks related to health epidemics, pandemics, and similar outbreaks, such as the coronavirus disease 2019 (“COVID-19”) pandemic, which may have material adverse effects on our business, financial position, results of operations and/or cash flows. |
| 16 |
| Table of Contents |
As a result of our limited operating history and the nature of the markets in which we compete, it is difficult for us to forecast our revenues or earnings accurately. As a strategic response to changes in our competitive environment, we may from time to time make certain decisions concerning production, marketing and distribution of our products that could have a material and adverse effect on our business, results of operations, and financial condition. Due to the foregoing factors, our quarterly revenues and operating results are difficult to forecast.
We are increasingly dependent on information technology, and potential cyberattacks, security problems, or other disruption and expanding social media vehicles present new risks.
We rely on information technology networks such as EDI (electronic data interchange), and the internet, to process, transmit, and store electronic information, and to manage or support a variety of business processes, including financial transactions and records, billing, and operating data. We may purchase some of our information technology from vendors, on whom our systems will depend, and we rely on commercially available systems, software, tools, and monitoring to provide security for processing, transmission, and storage of confidential operator and other customer information. We depend upon the secure transmission of this information over public networks. Our networks and storage applications could be subject to unauthorized access by hackers or others through cyberattacks, which are rapidly evolving and becoming increasingly sophisticated, or by other means, or may be breached due to operator error, malfeasance, or other system disruptions. In some cases, it will be difficult to anticipate or immediately detect such incidents and the damage they cause. Any significant breakdown, invasion, destruction, interruption, or leakage of information from our systems could harm our reputation and business.
Further, in the normal course of our business, we collect, store, and transmit proprietary and confidential information regarding our customers, employees, suppliers, and others, including personally identifiable information. An operational failure or breach of security from increasingly sophisticated cyber threats could lead to loss, misuse, or unauthorized disclosure of this information about our customers, employees, suppliers, and others, which may result in regulatory or other legal proceedings, and have a material adverse effect on our business and reputation. We also may not have the resources or technical sophistication to anticipate or prevent rapidly evolving types of cyber-attacks. Any such attacks or precautionary measures taken to prevent anticipated attacks may result in increasing costs, including costs for additional technologies, training, and third-party consultants. The losses incurred from a breach of data security and operational failures as well as the precautionary measures required to address this evolving risk may adversely impact our financial condition, results of operations and cash flows.
We are subject to significant competition from large multinational companies.
The business of making and distributing nutritional beverages is highly competitive. The principal areas of competition include pricing, packaging, distribution channel penetration, development of new products and line extensions and marketing campaigns. Our products compete with a wide range of nutritional beverages produced principally by very large multinational companies, which have substantially greater financial, marketing and distribution resources and brand name recognition than we do.
Our planned FIBER UP® brand may be subject to significant competition from small companies and large companies.
FIBER UP® will likely compete with fiber infused healthier beverages which smaller companies appear to be developing and/or marketing. We have limited knowledge of their formulations (including form of dietary fiber), their brand awareness and marketing and their distribution success. This makes it difficult to assess the extent of these brands competitive threat, if any. While we believe the leading beverage companies are not currently developing fiber infused healthier beverages for North America, they do market and distribute such beverages overseas, and we may face significant competition which could negatively impact our business, if they choose to market these same beverages or other fiber infused beverages they develop in North America.
We compete in an industry that is brand-conscious, so brand name recognition and acceptance of our products are critical to our success and significant marketing and advertising will be needed to achieve and sustain brand recognition.
The business of making and distributing nutritional beverages is substantially dependent upon brand awareness and market acceptance of our products by consumers. The development of brand awareness and market acceptance is likely to require significant marketing and advertising expenditures. Even if we are able to engage in such marketing and advertising efforts, there can be no assurance that we will achieve and maintain satisfactory levels of brand awareness and market acceptance by consumers. Any failure of our brands to achieve brand awareness and market acceptance would likely have a material adverse effect on business, financial condition, and results of operations.
| 17 |
| Table of Contents |
We are dependent on a limited number of raw materials suppliers and a limited number of tolling and contract manufacturers, which may affect our ability to procure our inputs and produce our products in a timely manner. If we are not able to ensure timely product deliveries, our customers may not order our products, and our revenues may decrease.
We rely on a limited number of specialized companies to supply certain of our raw materials, including Archer Daniels Midland/Matsutani, Jiaherb, DSM Fortitech ,Virginia Dare and AVT Tea, and a limited number of tolling and contract manufacturing companies, including Balchem, that have the necessary expertise to manufacture our products. Tolling means we ship primary ingredients to a third-party manufacturing facility for processing, in accordance with our master specifications, into a secondary ingredient, which is then shipped to another third-party manufacturing facility for assembly into a finished good, in accordance with our master specifications. Contract manufacturing means we ship primary and/or secondary ingredients, plus packaging, to a third-party manufacturing facility for assembly into a finished good, in accordance with our master specifications. These suppliers and tolling and contract manufacturers may be unable to satisfy our requirements, on a timely basis.
Because we cannot easily source our raw materials or our tolling/contract manufacturing to other providers, we are susceptible to delays, which can cause us to not have sufficient inventory to meet our customer’s demands. Not only can this adversely affect our revenues, it may jeopardize our relationships with our customers. In the event any of our suppliers and tolling and contract manufacturers were to become unable or unwilling to continue to serve us, we would be required to identify and obtain acceptable alternatives. There is no assurance that we would be able to find such alternatives on a timely basis, or at all. An extended interruption in the supply of our products would result in decreased product sales and our revenues would likely decline.
We depend upon our tolling and contract manufacturers to warehouse our raw materials
We have no facilities of our own to warehouse our raw materials. Instead, we rely on our tolling and contract manufacturers to provide space to us and stage our raw materials for production. While we have negotiated favorable fees for this, there can be no certainty these costs won’t rise and reduce our gross margins. If our tolling and contract manufacturers were to decide not to warehouse and stage our raw materials, this would have a very significant impact on our ability to manufacture any product at all in a cost-effective manner, and our business would materially suffer.
Some of the ingredients we use are only available from a single supplier or a limited group of suppliers. If the single supplier is unable to source raw materials, it could cause production delays and significantly disrupt our business.
We depend upon single suppliers for some of our key ingredients such as our soluble fiber. Unforeseen discontinuation or unavailability of certain ingredients, each of which we currently primarily source from single supplier, could cause backorders. If we were to experience a significant or prolonged shortage of critical ingredients from any of our suppliers and could not procure the components from other sources, we would be unable to manufacture our products and ship them to our customers in a timely fashion, or at all, which would cause production delays and adversely affect our sales, margins and customer relations.
If our sole source supplier was to go out of business or suspend services, we might be unable to find a replacement for such source in a timely manner or at all. Similarly, if any future sole source supplier were to be acquired by a competitor, that competitor may elect not to sell to the Company in the future. Any inability to secure required supplies and services or to do so on appropriate terms could cause production delays and have a materially adverse impact on our business, financial condition and operating results.
Increases in cost or shortages of raw materials could harm our business.
Increases in costs of our raw materials produced by shortages or inflation will result in increased costs of production. We are uncertain whether we will be able to pass any of such increases on to our customers. We do not use hedging agreements or alternative instruments to manage the risks associated with securing our raw materials. In addition, some of our raw materials are only available from a single or a limited number of suppliers. As alternative sources of supply may not be available, any increase in costs or interruption in the supply of such raw materials might materially harm us.
To mitigate the effect on our business of supply chain disruptions, we need to substantially increase inventory.
We believe that raw materials shipment and manufacturing delays are now effectively routine. To avoid product outages and loss of revenue, which are a consequence of these delays, we need hold substantially more finished goods inventory. We presently do not have available capital to substantially increase our finished goods inventory, which may impact our product availability and revenues for the remainder of the fiscal year.
Our failure to accurately estimate demand for our products could adversely affect our business.
We may not correctly estimate demand for our products. If we materially underestimate demand for our products and are unable to secure sufficient raw materials, we might not be able to satisfy consumer demand for our nutritional beverages, on a short-term basis, when we run out of inventory to sell, in which case our business, financial condition and results of operations could be adversely affected.
We may not be able to develop successful new products, which could impede our growth and cause us to sustain future losses.
Part of our business strategy is to increase our sales through the development of new products and line extensions. We cannot assure you that we will be able to develop, market, sell and distribute new products and line extensions that will enjoy consumer or retailer buyer acceptance. The failure to develop new products or line extensions that gain consumer or retailer buyer acceptance could have an adverse impact on our growth and materially adversely affect our financial condition.
Our lack of product diversification and inability to timely introduce new or alternative products could cause us to cease operations.
Our business is focused on GLUCODOWN® and our second brand FIBER UP® is only in early development and not yet commercialized. The risks associated with focusing on such a limited product line are substantial. If consumers do not accept our products or if there is a general decline in market demand for, or any significant decrease in, the consumption of nutritional beverages, we are not financially or operationally capable of introducing alternative products within a short time frame. As a result, such lack of acceptance or market demand decline could cause us to cease operations.
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Low demand for new products and the inability to develop and introduce new products at favorable margins could adversely impact our performance and prospects for future growth.
The uncertainties associated with developing and introducing new products, such as market demand and costs of development and production, may impede the successful development and introduction of new products on a consistent basis. Introduction of new technology may result in higher costs to us than that of the technology replaced. That increase in costs, which may continue indefinitely or until increased demand and greater availability in the sources of the new technology drive down its cost, could adversely affect our results of operations. Market acceptance of the new products introduced in recent years and scheduled for introduction in future years may not meet sales expectations due to various factors, such as the failure to accurately predict market demand, end-user preferences, evolving industry standards, or the emergence of new or disruptive technologies. Moreover, the ultimate success and profitability of the new products may depend on our ability to resolve technical and technological challenges in a timely and cost-effective manner. Our investments in productive capacity and commitments to fund advertising and product promotions in connection with these new products could erode profits if those expectations are not met.
If we are unable to maintain good relationships with retailers and maintain good standing in online marketplaces, our business could suffer.
Our access to the customers of retailers and our access to online marketplaces are both material to our success. If we are unable to maintain our good relationships with retailers and maintain our good standing in online marketplaces, our revenues could decline significantly. Unilateral decisions could be taken by the buyers at retailers, or by the policy-makers at our online marketplaces, to discontinue carrying any or all of our products, at any time, which could cause our business to suffer.
Even if we maintain good relationships with retailers, they might not approve our cost increases.
We are effectively limited to proposing annual price increases at our retailer customers, because we generally only meet annually with product buyers at our retailer customers. Buyers have not in the past and may not in the future, agree with our proposed price increases. As a result, we may earn less gross profit margin over time, the longer we serve a retailer customer.
We may incur material losses as a result of product recall and product liability.
We may be liable if the consumption of any of our products causes injury, illness, or death. We also may be required to recall some of our products if they become contaminated or are damaged or mislabeled. A significant product liability judgment against us, or a widespread product recall, could have a material adverse effect on our business, financial condition, and results of operations. The amount of the insurance we carry is limited, and that insurance is subject to certain exclusions and may or may not be adequate.
Litigation may adversely affect our business.
From time to time in the normal course of our business operations, we may become subject to litigation involving intellectual property, data privacy and security, consumer protection, commercial disputes and other matters that may negatively affect our operating results if changes to our business operation are required. We may also be subject to a variety of claims including product liability, and consumer protection claims, among other litigation. The cost to defend such litigation may be significant and may require a diversion of our resources. There also may be adverse publicity associated with litigation that could negatively affect customer perception of our business, regardless of whether the allegations are valid or whether we are ultimately found liable. As a result, litigation may adversely affect our business, financial condition, and results of operations. In addition, insurance may not cover existing or future claims, be sufficient to fully compensate us for one or more of such claims or continue to be available on terms acceptable to us. A claim brought against us that is uninsured or underinsured could result in unanticipated costs, thereby adversely affecting our results of operations and resulting in a reduction in the trading price of our stock.
We face risks related to Novel Coronavirus (COVID-19) which could significantly disrupt our business.
Our business has been and may continue to be adversely impacted by the effects of the Novel Coronavirus (COVID-19). In addition to global macroeconomic effects, the Novel Coronavirus (COVID-19) outbreak and any other related adverse public health developments has and may continue to cause disruption to our operations and sales activities. Our third-party vendors, third-party distributors, and our customers have been and will be disrupted by worker absenteeism, quarantines, and restrictions on employees’ ability to work, office and factory closures, disruptions to ports and other shipping infrastructure, border closures, or other travel or health-related restrictions. Depending on the magnitude of such effects on our activities or the operations of our third-party vendors and third-party distributors, the supply of our products will be delayed, which could adversely affect our business, operations, and customer relationships. In addition, the Novel Coronavirus (COVID-19) or other disease outbreak will in the short-run and may over the longer term adversely affect the economies and financial markets of many countries, resulting in an economic downturn that will affect demand for our products and services and impact our operating results. There can be no assurance that any decrease in sales resulting from the Novel Coronavirus (COVID-19) will be offset by increased sales in subsequent periods. Although the magnitude of the impact of the Novel Coronavirus (COVID-19) outbreak on our business and operations remains uncertain, the continued spread of the Novel Coronavirus (COVID-19) or the occurrence of other epidemics and the imposition of related public health measures and travel and business restrictions will adversely impact our business, financial condition, operating results, and cash flows. In addition, we have experienced and will experience disruptions to our business operations resulting from quarantines, self-isolations, or other movement and restrictions on the ability of our employees to perform their jobs that may impact our ability to develop and design our products and services in a timely manner or meet required milestones or customer commitments.
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Prolonged economic downturn, particularly in light of the COVID-19 pandemic and international conflicts, could adversely affect our business.
Uncertain global economic conditions, in particular in light of the COVID-19 pandemic and international conflicts, could adversely affect our business. Negative global and national economic trends, such as decreased consumer and business spending, high unemployment levels and declining consumer and business confidence, pose challenges to our business and could result in declining revenues, profitability, and cash flow. Although we continue to devote significant resources to support our brands, unfavorable economic conditions may negatively affect demand for our products.
Risks related to our Intellectual Property
If we fail to protect our compositions and methods with patents, competitors may be able to use our compositions and methods, to weaken our competitive position, reduce our net revenue, and increase our costs.
Our commercial success will depend in part on obtaining and maintaining patent protection to help prevent compositions and methods that we have developed, or may develop or acquire in the future, from being used by our competitors to weaken our competitive position. We have a patent pending before the United States Patent and Trademark Office (“USPTO”). But patent applications can take many years to issue, and there is no assurance that our current patent application, or any future patent applications, will be granted. If we are unable to obtain patent protection for our current or future applications, we may not be able to successfully prevent our competitors from imitating or copying our products or using some or all of the processes that are the subject of such patent application(s). Such imitation, or copying, may lead to increased competition within the finite market for products such as ours. Even if our patent application was granted, our intellectual property rights may not be sufficiently comprehensive to prevent our competitors from developing similar competitive products.
There are multiple risks inherent in patent litigation. In patent litigation in the U.S., defendant counterclaims alleging invalidity and/or unenforceability are commonplace, as are validity challenges by the defendant against the subject patent or other patents before the USPTO. Grounds for a validity challenge could be an alleged failure to meet any of several statutory requirements, including lack of novelty, obviousness or non-enablement, failure to meet the written description requirement, indefiniteness, and/or failure to claim patent eligible subject matter. Grounds for an unenforceability assertion could be an allegation that someone connected with prosecution of the patent intentionally withheld material information from the USPTO, or made a misleading statement, during prosecution. Third parties may also raise similar claims before the USPTO even outside the context of litigation, in for example, post-grant review proceedings and inter partes review proceedings. The outcome is unpredictable following any legal assertions of invalidity and unenforceability. With respect to the validity question, for example, we cannot be certain that no invalidating prior art existed of which we and the patent examiner were unaware during prosecution. These assertions may also be based on information known to us or the USPTO. If a defendant or third party were to prevail on a legal assertion of invalidity and/or unenforceability, we would lose at least part, and perhaps all, of the claims of the challenged patent. Such a loss of patent protection would or could have a material adverse impact on our business.
Even if the validity of our patent rights is upheld by a court, a court may not prevent the alleged infringement of our patent rights on the grounds that such activity is not covered by our patent claims. Although we may aggressively pursue anyone whom we reasonably believe is infringing upon our intellectual property rights, initiating, and maintaining suits against third parties that may infringe upon our intellectual property rights will require substantial financial resources. We may not have the financial resources to bring such suits, and if we do bring such suits, we may not prevail. Regardless of our success in any such actions, we could incur significant expenses in connection with such suits.
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If our trademarks and brand names are not adequately protected, that could adversely impact our ability to build name recognition in certain markets.
We rely on trademarks, service marks, trade names and brand names to distinguish our nutritional beverages from those of competitors and have registered these trademarks. Our registered or unregistered trademarks, service marks, trade names and brand names may be challenged, infringed, diluted, circumvented, or declared generic or determined to be infringing on other marks. Additionally, we cannot assure you that our future trademark applications will be approved. During trademark registration proceedings, we may receive rejections. Although we are given an opportunity to respond to those rejections, we may be unable to overcome such rejections. In addition, in proceedings before the USPTO third parties are given an opportunity to oppose pending trademark applications and to seek to cancel registered trademarks. Opposition or cancellation proceedings may be filed against our trademarks, and our trademarks may not survive such proceedings. In the event that our trademarks are successfully challenged, we could be forced to rebrand our products, which could result in loss of brand recognition and could require us to devote resources towards advertising and marketing new brands. At times, competitors may adopt trade names or trademarks similar to ours, which could harm our brand identity and lead to market confusion. Certain of our current or future trademarks may become so well known by the public that their use becomes generic and they lose trademark protection. Over the long term, if we are unable to establish name recognition through our trademarks and trade names, then we may not be able to compete effectively and our business, financial condition and results of operations may be adversely affected.
If we cannot keep our trade secrets, which includes our formulas, compositions and methods, and knowledge capital (know-how), confidential, that could adversely impact our competitive position and reduce our revenue.
We rely on trade secrets and other proprietary information. We seek to protect this confidential information, in part, through the use of confidentiality agreements with employees, consultants, advisors and others. Nonetheless, we cannot assure you that those agreements will provide adequate protection and prevent their unauthorized use or disclosure. To the extent that consultants, key employees or other third parties apply trade secrets independently developed by them or by others to our proposed products, disputes may arise as to the proprietary rights to such products which may not be resolved in our favor. There is a risk that other parties may breach confidentiality agreements or that our trade secrets and other proprietary information become known or independently discovered by competitors, which could adversely affect our revenue.
Third-party claims of infringement against us could adversely affect our ability to market our products and require us to reformulate our products or seek licenses from third parties.
We are susceptible to intellectual property lawsuits that could cause us to incur substantial costs, pay substantial damages, or prohibit us from distributing our products. Whether a product infringes a patent involves complex legal and factual issues, the determination of which is often uncertain. In addition, because patent applications can take many years to issue, there may be applications now pending of which we are unaware, which later may result in issued patents that our products may infringe. If any of our products infringe a valid patent, we could be prevented from distributing that product unless and until we can obtain a license or reformulate it to avoid infringement. A license may not be available or may require us to pay substantial royalties. We also may not be successful in any attempt to reformulate the product to avoid any infringement. Infringement and other intellectual property claims, with or without merit, can be expensive and time-consuming to litigate, and we may not have the financial and human resources to defend ourselves against any infringement suits that may be brought against us.
We may employ individuals who were previously employed by companies that are developing beverage products, including our competitors or potential competitors. To the extent our employees are involved in research areas which are similar to those areas in which they were involved at their former employers, we may be subject to claims that such employees and/or we have inadvertently or otherwise used or disclosed the alleged trade secrets or other proprietary information of the former employers. Litigation may be necessary to defend against such claims, which could result in substantial costs and be a distraction to management and which may have a material adverse effect on us, even if we are successful in defending such claims.
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Risks related to Government Regulation
We are affected by extensive laws, governmental regulations, administrative determinations, court decisions and similar constraints, which can make compliance costly and subject us to enforcement actions by governmental agencies.
Formulation, manufacturing, packaging, labeling, holding, storage, distribution, advertising, and sale of our products are affected by extensive laws, governmental regulations and policies, administrative determinations, court decisions and similar constraints at the federal, state, and local levels. There can be no assurance that we will be in compliance with all of these regulations. A failure by us to comply with these laws and regulations could lead to governmental investigations, civil and criminal prosecutions, administrative hearings and court proceedings, civil and criminal penalties, injunctions against product sales or advertising, civil and criminal liability for the Company and/or its principals, bad publicity, and tort claims arising out of governmental or judicial findings of fact or conclusions of law adverse to the Company or its principals. In addition, the adoption of new regulations and policies or changes in the interpretations of existing regulations and policies may result in significant new compliance costs or discontinuation of product sales, and may adversely affect the marketing of our products, resulting in decreases in revenues.
Our principal regulator, the Food and Drug Administration (FDA) has not passed on the efficacy of our products or the accuracy of any claim we make related to our products.
FDA does not, and has not, reviewed or passed on the efficacy of any of our products, which are classified as conventional foods, nor has it reviewed or approved any nutritional claims of support we make related to our conventional food beverages.
The Food and Drug Administration (FDA) conducts unannounced on-premises inspections of our facilities and records.
We are subject to periodic unannounced visits by FDA officers who inspect our facilities and records. Even though we are an own-label distributor and utilize tolling and contract manufactures to produce our products, we still must maintain extensive records including certificates of analysis for all ingredients we use, master specifications for our products and certain batch production and testing records. Keeping such records is time-consuming and costly and if our record-keeping is deemed deficient, we could receive warning letters or other more serious administrative actions could take place that could harm our business and reputation with customers.
The Federal Trade Commission (FTC) prohibits use of any consumer testimonials in our marketing
In December 2009, the FTC substantially revised its Guides Concerning the Use of Endorsements and Testimonials in Advertising, or “Endorsement Guides,” to eliminate a safe harbor principle that formerly recognized that Companies like ours could publish consumer testimonials that conveyed truthful but extraordinary results from using our products as long as we clearly and conspicuously disclosed that the endorser’s results were not typical. This change makes it more difficult to communicate the benefits of our nutritional beverages to consumers and our revenues may not grow if we can’t find other compliant means to reach our customers.
Risks Related to this Offering
Our Chief Executive Officer and Chief Financial Officer, Murray Fleming, holds all our Series A Voting Preferred Stock and maintains the ability to control substantially all matters submitted to shareholders for approval.
Our Series A Voting Preferred Stock voting shares may, if exercised, control the election of directors and approval of any merger, consolidation, or sale of all or substantially all of our assets. Our Chief Executive Officer and Chief Financial Officer, Murray Fleming, holds all shares of our Series A Voting Preferred Stock and has the right to vote the number of votes equal to all shares of Common Stock which are then issued and outstanding, plus an additional 10,000 shares. Therefore, Mr. Fleming maintains the ability to control substantially all matters submitted to shareholders for approval due to the voting rights features of the Series A Voting Preferred Stock. This concentration of voting power could delay or prevent an acquisition of us on terms that other shareholders may desire. As a result, currently, and after this offering, Mr. Fleming will possess significant influence and can elect a majority of our Board and authorize or prevent proposed significant corporate transactions without the votes of any other stockholders. Mr. Fleming is expected to have significant influence over a decision to enter into any corporate transaction and have the ability to prevent any transaction that requires the approval of stockholders, regardless of whether or not our other stockholders believe that such transaction is in our best interests. Such concentration of voting power could have the effect of delaying, deterring, or preventing a change of control or other business combination, which could, in turn, have an adverse effect on the market price of our Common Stock or prevent our shareholders from realizing a premium over the then-prevailing market price for their Common Stock.
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Shares eligible for future sale may have adverse effects on our share price.
Sales of substantial amounts of shares or the perception that such sales could occur may adversely affect the prevailing market price for our shares. We may issue additional shares in subsequent public offerings or private placements to make new investments or for other purposes. We are not required to offer any such shares to existing shareholders on a pre-emptive basis. Therefore, it may not be possible for existing shareholders to participate in such future share issuances, which may dilute the existing shareholders’ interests in us.
Our planned Common Stock Reverse Split may decrease the liquidity of the shares of our Common Stock.
The liquidity of the shares of our Common Stock may be affected adversely by our planned Common Stock Reverse Split given the reduced number of shares that will be outstanding following this corporate action, especially if the market price of our Common Stock does not increase as a result. In addition, our Common Stock Reverse Split may increase the number of stockholders who own odd lots (less than 100 shares) of our Common Stock, creating the potential for such stockholders to experience an increase in the cost of selling their shares and greater difficulty effecting such sales.
Following our Common Stock Reverse Split, the resulting market price of our Common Stock may not attract new investors, including institutional investors, and may not satisfy the investing requirements of those investors. Consequently, the trading liquidity of our Common Stock may not improve.
Although we believe that a higher market price of our Common Stock may help generate greater or broader investor interest, there can be no assurance that our planned Common Stock Reverse Split will result in a share price that will attract new investors, including institutional investors. In addition, there can be no assurance that the market price of our Common Stock will satisfy the investing requirements of those investors. As a result, the trading liquidity of our Common Stock may not necessarily improve.
If we fail to comply with the rules and regulations under the Sarbanes-Oxley Act, our operating results, our ability to operate our business and investors’ views of us may be harmed.
Section 404 of the Sarbanes-Oxley Act requires public companies to conduct an annual review and evaluation of their internal controls. Ensuring that we have adequate internal financial and accounting controls and procedures in place so that we can produce accurate financial statements on a timely basis is a costly and time-consuming effort that will need to be evaluated frequently. Our failure to maintain the effectiveness of our internal controls in accordance with the requirements of the Sarbanes-Oxley Act could have a material adverse effect on our business. We could lose investor confidence in the accuracy and completeness of our financial reports, which could have an adverse effect on the price of our Common Stock. In addition, our efforts to comply with the rules and regulations under the Sarbanes-Oxley or new or changed laws, regulations, and standards may differ from the activities intended by regulatory or governing bodies due to ambiguities related to practice. Regulatory authorities may investigate transactions disclosed in our “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and if legal proceedings are initiated against us, it may harm our business.
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We do not anticipate paying any cash dividends on our shares of Common Stock in the foreseeable future.
We currently intend to retain most future earnings (if any) to finance the growth and development of our business, and therefore, we do not anticipate paying any cash dividends on our shares of Common Stock in the foreseeable future. We believe it is likely that our Board will continue to conclude, that it is in the best interests of the Company and its shareholders to retain most earnings (if any) for the development of our business. As a result, capital appreciation, if any, of our Common Stock will be your sole source of gain for the foreseeable future.
Investors in this offering will experience immediate and substantial dilution in net tangible book value.
The public offering price per Share is substantially higher than the net tangible book value per share of our outstanding shares of Common Stock. As a result, investors in this offering will incur immediate dilution of $2.33 per share, based on the assumed public offering price of $4.00 per share. Investors in this offering will pay a price per share that substantially exceeds the book value of our assets after subtracting our liabilities. See “Dilution” for a more complete description of how the value of your investment will be diluted upon the completion of this offering.
Our Common Stock may not be approved for listing on the Nasdaq or on any other trading market and you may not be able to resell your Common Stock at a price above the price you paid, if at all.
We have applied to list the shares of our Common Stock on the Nasdaq, under the symbol “GLUC.” An approval of our listing application by the Nasdaq will be subject to, among other things, our fulfilling all of the listing requirements of the Nasdaq. No assurances can be given, however, that the application will be approved or that our Common Stock will ever be traded on the Nasdaq or listed or quoted on any other trading market. If for any reason our Common Stock is not listed on the Nasdaq, or any other trading market, or a public trading market does not develop, purchasers of our Common Stock may have difficulty selling their Common Stock should they desire to do so. Moreover, there is a risk that our Common Stock could be delisted from any trading market on which it may be listed or quoted. The lack of an active trading market may also impair our ability to raise capital to continue to fund operations by selling securities and may impair our ability to acquire additional intellectual property assets by using our securities as consideration.
There can be no assurances that if our Common Stock is listed on the Nasdaq we will be able to meet the Nasdaq’s continued listing requirements which will result in the delisting of our Common Stock from the Nasdaq.
The Nasdaq has rules for continued listing, including, without limitation, minimum market capitalization and other requirements. Failure to maintain our listing (i.e., being de-listed from the Nasdaq), would make it more difficult for shareholders to sell our Common Stock and more difficult to obtain accurate price quotations on our Common Stock. This could have an adverse effect on the price of our Common Stock. Our ability to issue additional securities for financing or other purposes, or otherwise to arrange for any financing we may need in the future, may also be materially and adversely affected if our Common Stock is not traded on a national securities exchange.
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We are a smaller reporting company within the meaning of the Securities Act, and if we take advantage of certain exemptions from disclosure requirements available to smaller reporting companies, this could make our securities less attractive to investors and may make it more difficult to compare our performance with other public companies.
Rule 12b-2 of the Exchange Act defines a “smaller reporting company” as an issuer that is not an investment company, an asset-backed issuer, or a majority-owned subsidiary of a parent that is not a smaller reporting company and that:
| · | had a public float of less than $250 million as of the last business day of its most recently completed second fiscal quarter, computed by multiplying the aggregate worldwide number of shares of its voting and non-voting common equity held by non-affiliates by the price at which the common equity was last sold, or the average of the bid and asked prices of common equity, in the principal market for the common equity; or |
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| · | in the case of an initial registration statement under the Securities Act or the Exchange Act for shares of its common equity, had a public float of less than $250 million as of a date within 30 days of the date of the filing of the registration statement, computed by multiplying the aggregate worldwide number of such shares held by non-affiliates before the registration plus, in the case of a Securities Act registration statement, the number of such shares included in the registration statement by the estimated public offering price of the shares; or |
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| · | in the case of an issuer whose public float as calculated under paragraph (1) or (2) of this definition was zero or whose public float was less than $700 million, had annual revenues of less than $100 million during the most recently completed fiscal year for which audited financial statements are available. |
As a smaller reporting company, we will not be required and may not include a Compensation Discussion and Analysis section in our proxy statements; we will provide only two years of financial statements; and we need not provide the table of selected financial data. We also will have other “scaled” disclosure requirements that are less comprehensive than issuers that are not smaller reporting companies which could make our Common Stock less attractive to potential investors, which could make it more difficult for our stockholders to sell their shares.
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Because the Company is a “smaller reporting company” we may take advantage of certain scaled disclosures available to us, resulting in holders of our securities receiving less Company information than they would receive from a public company that is not a smaller reporting company.
We are a “smaller reporting company” as defined in the Exchange Act. As a smaller reporting company, we may take advantage of certain of the scaled disclosures available to smaller reporting companies and will be able to take advantage of these scaled disclosures for so long as (i) our common shares held by non-affiliates is less than $250 million measured on the last business day of our second fiscal quarter, or (ii) our annual revenue is less than $100 million during the most recently completed fiscal year and our common shares held by non-affiliates is less than $700 million measured on the last business day of our second fiscal quarter. To the extent we take advantage of any reduced disclosure obligations, it may make it harder for investors to analyze the Company’s results of operations and financial Prospectus in comparison with other public companies.
As a smaller reporting company, we are permitted to comply with scaled-back disclosure obligations in our SEC filings compared to other issuers, including with respect to disclosure obligations regarding executive compensation in our periodic reports and proxy statements. We have elected to adopt the accommodations available to smaller reporting companies. Until we cease to be a smaller reporting company, the scaled-back disclosure in our SEC filings will result in less information about our company being available than for other public companies.
If investors consider our common shares less attractive as a result of our election to use the scaled-back disclosure permitted for smaller reporting companies, there may be a less active trading market for our common shares and our share price may be more volatile.
We are an emerging growth company, and we cannot be certain if the reduced reporting requirements applicable to emerging growth companies will make our Common Stock less attractive to investors.
We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012 (the JOBS Act). For as long as we continue to be an emerging growth company, we may take advantage of exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies, including not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in this Prospectus and our periodic reports and proxy statements and exemptions from the requirements of holding nonbinding advisory votes on executive compensation and stockholder approval of any golden parachute payments not previously approved. We could be an emerging growth company for up to five years following the year in which we complete this offering, although circumstances could cause us to lose that status earlier. We will remain an emerging growth company until the earlier of (i) the last day of the fiscal year (a) following the fifth anniversary of the completion of the first sale of shares covered by this Prospectus, (b) in which we have total annual gross revenue of at least $1.07 billion or (c) in which we are deemed to be a large accelerated filer, which requires the market value of our Common Stock that is held by non-affiliates to exceed $700.0 million as of the prior September 30th, and (ii) the date on which we have issued more than $1.0 billion in non-convertible debt during the prior three-year period.
In the event that we are still considered a smaller reporting company, at such time are we cease being an “emerging growth company”, the disclosure we will be required to provide in our SEC filings will increase, but will still be less than it would be if we were not considered either an emerging growth company or a smaller reporting company.
In the event that we are still considered a smaller reporting company, at such time are we cease being an emerging growth company, the disclosure we will be required to provide in our SEC filings will increase, but will still be less than it would be if we were not considered either an emerging growth company or a smaller reporting company. Should we cease to be an “emerging growth company” but remain a “smaller reporting company”, we would be required to: (1) comply with new or revised US GAAP accounting standards applicable to public companies, (2) comply with new Public Company Accounting Oversight Board requirements applicable to the audits of public companies, and (3) to make additional disclosures with respect to related party transactions, namely Item 404(d).
We have broad discretion in the use of the net proceeds from this offering and may not use them effectively.
Our management will have broad discretion in the application of the net proceeds from this offering including for any of the purposes described in the section entitled “Use of Proceeds” and you will not have the opportunity as part of your investment decision to assess whether the net proceeds will be used appropriately. Because of the number and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. Our management might not apply our net proceeds in ways that ultimately increase the value of your investment. We currently intend to use the net proceeds of this offering primarily for general corporate purposes, including working capital, expanded sales and marketing activities, increased research and development expenditures and funding our growth strategies.
Our expected use of net proceeds from this offering represents our current intentions based upon our present plans and business condition. As of the date of this Prospectus, we cannot predict with certainty all of the particular uses for the net proceeds to be received upon the completion of this offering, or the amounts that we will actually spend on the uses set forth above. The amounts and timing of our actual use of the net proceeds will vary depending on numerous factors, including the commercial success of our systems and the costs of our research and development activities, as well as the amount of cash used in our operations. As a result, our management will have broad discretion in the application of the net proceeds, and investors will be relying on our judgment regarding the application of the net proceeds of this offering.
The failure by our management to apply these funds effectively could harm our business. Pending their use, we may invest the net proceeds from this offering in short-term, investment-grade, interest-bearing securities. These investments may not yield a favorable return to our stockholders. If we do not invest or apply the net proceeds from this offering in ways that enhance stockholder value, we may fail to achieve expected financial results, which could cause our stock price to decline.
As a “controlled company” under the rules of Nasdaq, we may choose to exempt our company from certain corporate governance requirements that could have an adverse effect on our public stockholders.
Under Nasdaq’s rules, a company of which more than 50% of the voting power is held by an individual, group or another company is a “controlled company” and may elect not to comply with certain corporate governance requirements, including, without limitation, (i) the requirement that a majority of the Board of Directors consist of independent directors, (ii) the requirement that the compensation of our officers be determined or recommended to our Board of Directors by a compensation committee that is comprised solely of independent directors, and (iii) the requirement that director nominees be selected or recommended to the Board of Directors by a majority of independent directors or a nominating committee comprised solely of independent directors. Although we currently do not intend to rely on the “controlled company” exemption, we could elect to rely on this exemption in the future if we are a controlled company after this offering. If we elected to rely on the “controlled company” exemption, a majority of the members of our Board of Directors might not be independent directors and our nominating and corporate governance and compensation committees might not consist entirely of independent directors. Our status as a controlled company could cause our Common Stock to look less attractive to certain investors or otherwise harm our trading price.
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If securities or industry analysts do not publish research or publish inaccurate or unfavorable research about our business, our stock price and trading volume could decline.
The trading market for our Common Stock will depend in part on the research and reports that securities or industry analysts publish about us or our business. Securities and industry analysts do not currently, and may never, publish research on our company. If no securities or industry analysts commence coverage of our company, the trading price for our stock would likely be negatively impacted. In the event securities or industry analysts initiate coverage, if one or more of the analysts who covers us downgrades our stock or publishes inaccurate or unfavorable research about our business, our stock price may decline. If one or more of these analysts ceases coverage of our company or fails to publish reports on us regularly, demand for our stock could decrease, which might cause our stock price and trading volume to decline.
Our shares of Common Stock are subject to the penny stock rules, which makes shares of our Common Stock more difficult to trade.
We are currently subject to the SEC’s “penny stock” rules as our shares of Common Stock sell below $5.00 per share. Penny stocks generally are equity securities with a price of less than $5.00. The penny stock rules require broker-dealers to deliver a standardized risk disclosure document prepared by the SEC which provides information about penny stocks and the nature and level of risks in the penny stock market. The broker-dealer must also provide the customer with current bid and offer quotations for the penny stock, the compensation of the broker-dealer and its salesperson, and monthly account statements showing the market value of each penny stock held in the customer’s account. The bid and offer quotations, and the broker-dealer and salesperson compensation information must be given to the customer orally or in writing prior to completing the transaction and must be given to the customer in writing before or with the customer’s confirmation.
In addition, the penny stock rules require that, prior to a transaction, the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s written agreement to the transaction. The penny stock rules are burdensome and may reduce purchases of any offerings and reduce the trading activity for shares of our Common Stock. As long as our shares of Common Stock are subject to the penny stock rules, the holders of such shares of Common Stock may find it more difficult to sell their securities.
The financial and operational projections that we may make from time to time are subject to inherent risks.
The projections that our management may provide from time to time reflect numerous assumptions made by management, including assumptions with respect to our specific as well as general business, economic, market and financial conditions and other matters, all of which are difficult to predict and many of which are beyond our control. Accordingly, there is a risk that the assumptions made in preparing the projections, or the projections themselves, will prove inaccurate. There will be differences between actual and projected results, and actual results may be materially different from those contained in the projections. The inclusion of the projections in this Prospectus should not be regarded as an indication that we or our management or representatives considered or consider the projections to be a reliable prediction of future events, and the projections should not be relied upon as such.
If we were to dissolve, the holders of our securities may lose all or substantial amounts of their investments.
If we were to dissolve as a corporation, as part of ceasing to do business or otherwise, we may be required to pay all amounts owed to any creditors before distributing any assets to the investors. There is a risk that in the event of such a dissolution, there will be insufficient funds to repay amounts owed to holders of any of our indebtedness and insufficient assets to distribute to our other investors, in which case investors could lose their entire investment.
Forum selection provisions in our charter documents may be unenforceable, resulting in federal court jurisdiction over claims arising under the Securities Act or the Exchange Act.
Provisions in our Amended and Restated Certificate of Incorporation that purport to provide the Court of Chancery of the State of Delaware (referring to Delaware State Courts) as the exclusive forum for certain actions, including derivative actions, may be determined to be unenforceable in certain instances, including with respect to claims arising under the Securities Act or Exchange Act, which would result in federal courts instead having jurisdiction over such claims. The Company does not intend for such exclusive forum provision to apply to claims arising under the Securities Act or the Exchange Act. The Company plans to amend its Amended and Restated Certificate of Incorporation upon effectiveness of this registration statement to unambiguously provide that such exclusive forum provisions would not apply to claims arising under the Securities Act or the Exchange Act and until such time as such amendment has become effective, to provide its investors of notice to this effect, the Company will continue to include disclosure indicating that the Company does not intend for such exclusive forum provisions to apply to claims arising under the Securities Act or the Exchange Act. With respect to claims arising under the Securities Act, note that that investor cannot waive compliance with the federal securities laws and rules and regulations thereunder.
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USE OF PROCEEDS
Based upon an assumed public offering price of $4.00 per share and 2,125,000 shares of Common Stock expected to be sold in this offering, we estimate that we will receive net proceeds of $7,593,500 after (i) deducting estimated underwriting discounts and commissions of $680,000, (ii) after deducting estimated offering expenses incurred by the Representative and payable by us of $226,500, (iii) assuming the Representative does not exercise its over-allotment option, and (iv) assuming the Representative does not exercise any of its compensatory warrants. We will not receive any of the proceeds from the sale of Selling Stockholders Shares by the Selling Stockholders identified in this Prospectus.
The Company has no debt, and de minimis liabilities which do not require allocation of any of the net proceeds from this offering. We expect to retire certain shares of Preferred Stock within the next 12 months by exercising the Company’s right to payout the stated value of the shares in cash to the holders.
Accordingly, we plan to use the net proceeds we receive from this offering for the following purposes:
|
| Use of Net Proceeds |
| |
Working Capital |
| $ | 2,500,000 |
|
Sales and Marketing |
|
|
|
|
GLUCODOWN® |
| $ | 1,200,000 | |
FIBER UP® |
| $ | 1,800,000 | |
Research and Development |
|
|
|
|
GLUCODOWN® |
| $ | 300,000 | |
FIBER UP® |
| $ | 450,000 | |
Retirement of Preferred Stock |
| $ | 212,500 |
|
General Corporate Purposes |
| $ | 1,131,000 |
|
We believe that our existing cash and cash equivalents, along with the net proceeds from this offering, together with interest on cash balances, will be sufficient to fund our operating expenses and capital expenditure requirements including our business plan and achievement of our five marketing and distribution objectives (see “Business - Marketing and Distribution”) through at least the next 12 months. The foregoing represents our current intentions based upon our present plans and business conditions to use and allocate the net proceeds of this offering. However, the nature, amounts and timing of our actual expenditures may vary significantly depending on numerous factors. As a result, our management has and will retain broad discretion over the allocation of the net proceeds from this offering. We may find it necessary or advisable to use the net proceeds from this offering for other purposes, and we will have broad discretion in the application of net proceeds from this offering. To the extent that the net proceeds we receive from this offering are not immediately used for the above purposes, we intend to invest our net proceeds in short-term, interest-bearing bank deposits or debt instruments.
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MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Market and Other Information
Our Common Stock is quoted by OTC Markets Group Inc. (“OTC Markets”) under symbol “GLUC” with the designation of “Pink Current”. OTC Markets quotations of our Common Stock, and a designation of “Pink Current”, does not constitute an established public trading market. OTC Markets quotations reflect inter-dealer bid and ask prices, without retail mark-up, mark-down, commission, or adjustments, and may not necessarily represent actual transactions. Our Common Stock was initially quoted under symbol “GLUC” by OTC Markets on November 20, 2014. The last reported sale price of our Common Stock, on January 6, 2023, was $6.40.
The following table sets forth the quarterly high and low closing prices of our Common Stock for the two most recent fiscal years and interim periods of the current fiscal year, if applicable.
Period |
| High |
|
| Low |
| ||
|
|
|
|
|
|
| ||
Fiscal Year 2022: |
|
|
|
|
|
| ||
First Quarter |
| $ | 20.44 |
|
| $ | 10.90 |
|
Second Quarter |
|
| 11.70 |
|
|
| 5.30 |
|
Third Quarter |
|
| 8.30 |
|
|
| 4.30 |
|
Fourth Quarter |
|
| 9.20 |
|
|
| 3.70 |
|
|
|
|
|
|
|
|
|
|
Fiscal Year 2021: |
|
|
|
|
|
|
|
|
First Quarter |
| $ | 87.00 |
|
| $ | 35.10 |
|
Second Quarter |
|
| 45.50 |
|
|
| 20.90 |
|
Third Quarter |
|
| 40.50 |
|
|
| 23.00 |
|
Fourth Quarter |
|
| 24.90 |
|
|
| 14.20 |
|
Our SEC registered transfer agent is Nevada Agency and Transfer Company located at 50 W Liberty Street, #880, Reno, NV, 89501. As of January 6, 2023, there were approximately 121 registered holders of record of our Common Stock.
Listing
We have applied to list our Common Stock on the Nasdaq under the symbol “GLUC.”
Dividend Policy
We have not historically declared dividends on our Common Stock, and we do not currently intend to pay dividends on our Common Stock. The declaration, amount, and payment of any future dividends on shares of our Common Stock, if any, will be at the sole discretion of our Board, out of funds legally available for dividends. Our ability to pay dividends to our shareholders in the future will depend upon our liquidity and capital requirements, as well as our earnings and financial condition, the general economic climate, contractual restrictions, our ability to service any equity or debt obligations senior to our Common Stock, and other factors deemed relevant by our Board.
Penny Stock
Our Common Stock is considered “penny stock” under the rules the SEC under the Securities Exchange Act of 1934. The SEC has adopted rules that regulate broker-dealer practices in connection with transactions in penny stocks. Penny stocks are generally equity securities with a price of less than $5.00, other than securities registered on certain national securities exchanges, provided that current price and volume information with respect to transactions in such securities is provided by the exchange or quotation system. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock, to deliver a standardized risk disclosure document prepared by the Commission, that:
| · | contains a description of the nature and level of risks in the market for penny stocks in both public offerings and secondary trading; |
|
|
|
| · | contains a description of the broker’s or dealer’s duties to the customer and of the rights and remedies available to the customer with respect to a violation to such duties or other requirements of Securities’ laws; contains a brief, clear, narrative description of a dealer market, including bid and ask prices for penny stocks and the significance of the spread between the bid and ask price; |
|
|
|
| · | contains a toll-free telephone number for inquiries on disciplinary actions; |
|
|
|
| · | defines significant terms in the disclosure document or in the conduct of trading in penny stocks; and |
|
|
|
| · | contains such other information and is in such form, including language, type, size and format, as the Commission shall require by rule or regulation. |
The broker-dealer also must provide, prior to effecting any transaction in a penny stock, the customer with:
| · | bid and offer quotations for the penny stock; |
|
|
|
| · | the compensation of the broker-dealer and its salesperson in the transaction; |
|
|
|
| · | the number of shares to which such bid and ask prices apply, or other comparable information relating to the depth and liquidity of the marker for such stock; and |
|
|
|
| · | monthly account statements showing the market value of each penny stock held in the customer’s account. |
In addition, the penny stock rules that require that prior to a transaction in a penny stock not otherwise exempt from those rules; the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s written acknowledgement of the receipt of a risk disclosure statement, a written agreement to transactions involving penny stocks, and a signed and dated copy of a written suitably statement.
These disclosure requirements may have the effect of reducing the trading activity in the secondary market for our Common Stock.
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CAPITALIZATION
The following table sets forth our cash and capitalization as of September 30, 2022.
| · | on an actual basis, reflecting the 4-for-1 forward split of the Company’s Series D Preferred Stock and the 3-for-1 forward split of the Company’s Series E Preferred Stock, which occurred subsequent to the current period. |
| · | on a proforma basis,(i) reflecting the conversions of 2,133,334 Series B, 700,001 Series C, and 180,000 Series E, shares of Preferred Stock, to Common Stock, which occurred subsequent to the current period; (ii) assuming effectiveness of our planned Common Stock Reverse Split; and (iii) assuming conversions of 640,000 Series D, and 570,000 Series E, shares of Preferred Stock, to Common Stock, expected to occur after effectiveness of our planned Common Stock Reverse Split. |
| · | on an adjusted pro-forma basis, adjusting for (i) sale of 2,125,000 shares of Common Stock pursuant to this offering at a public offering price of $4.00 per share, resulting in net proceeds of approximately $7,593,500 to us, after deducting estimated underwriting discounts and commissions of $680,000 and estimated offering expenses payable to the Representative by us of $226,500; and (ii) assuming no exercise of the Representative’s over-allotment option or compensatory warrants. |
The information below is illustrative only and our capitalization following the closing of this offering will be adjusted based on the final public offering price and other terms of this offering determined at pricing. You should read this information together with our financial statements and the related notes thereto included elsewhere in this Prospectus and the information set forth under the heading “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this Prospectus.
As of September 30, 2022 Unaudited | ||||||||||||
Actual | Pro Forma | Pro Forma As Adjusted | ||||||||||
Cash and cash equivalents | $ | 308,536 | $ | 308,536 | $ | 7,902,036 | ||||||
Total liabilities | $ | 1,452 | 1,452 | 1,452 | ||||||||
Preferred Stock, $0.001 par value, 10,000,000 shares authorized: | ||||||||||||
Series A, 1,000 shares authorized; Actual, Pro forma & Pro forma as adjusted, 1,000 shares issued and outstanding. | 1 | 1 | 1 | |||||||||
Series B, 3,466,668 shares authorized; Actual, 2,133,334 shares issued and outstanding; Pro forma & Pro forma as adjusted, -0- shares issued and outstanding. | 2,133 | -0- | -0- | |||||||||
Series C, 866,668 shares authorized; Actual, 866,668 shares issued and outstanding; Pro forma & Pro forma as adjusted, 166,667 shares issued and outstanding. | 867 | 167 | 167 | |||||||||
Series D, 1,200,000 shares authorized; Actual, 1,200,000 shares issued and outstanding; Pro forma & Pro forma as adjusted, 560,000 shares issued and outstanding. | 1,200 | 560 | 560 | |||||||||
Series E, 1,440,000 authorized; Actual, 1,440,000 shares issued and outstanding; Pro forma & Pro forma as adjusted, 690,000 shares issued and outstanding. | 1,440 | 690 | 690 | |||||||||
Common Stock, $0.001 par value, 40,000,000 shares authorized: | ||||||||||||
Actual 13,848,630 shares issued and outstanding; Pro forma 1,686,197 shares issued and outstanding; Pro forma as adjusted, 5,021,197 shares issued and outstanding. | 13,849 | 1,686 | 5,021 | |||||||||
Additional paid-in capital | 8,829,373 | 8,844,549 | 17,342,424 | |||||||||
Accumulated (deficit) | $ | (8,071,470 | ) | $ | (8,071,470 | ) | $ | 8,977,970 | ||||
Total stockholders' equity | $ | 777,392 | $ | 777,392 | $ | 8,370,892 | ||||||
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Each $1.00 increase (decrease) in the assumed public offering price of $4.00 per share would increase (decrease) the pro forma amount of cash and cash equivalents, additional paid-in capital, total stockholders’ equity (deficit) and total capitalization by approximately $1,935,875, assuming that the number of shares offered by us, as set forth on the cover page of this Prospectus, remains the same and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.
Each increase (decrease) of 100,000 shares in the number of shares we are offering would increase (decrease) the pro forma amount of cash and cash equivalents, additional paid-in capital, total stockholders’ equity, and total capitalization by approximately $364,400, assuming that the $4 public offering price remains the same, and after deducting the estimated underwriting discounts and commissions and offering expenses payable by us. The pro forma information discussed above is illustrative only and will be adjusted based on the final public offering price and other terms of this offering determined at pricing.
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DILUTION
If you invest in our shares, your interest will be diluted to the extent of the difference between the public offering price of each share you purchase, and the pro forma as adjusted net tangible book value per share of our Common Stock, immediately after the closing of this offering.
Our pro forma net tangible book value per share is $0.27 per share, (i) reflecting conversions of 2,133,334 Series B, 700,001 Series C, and 180,000 Series E, shares of Preferred Stock, to Common Stock, which occurred subsequent to the current period; (ii) assuming effectiveness of our planned Common Stock Reverse Split; and (iii) assuming conversions of 640,000 Series D, and 570,000 Series E, shares of Preferred Stock, to Common Stock, expected to occur after effectiveness of our planned Common Stock Reverse Split.
Our pro forma as adjusted net tangible book value per share represents the amount of our total tangible assets reduced by our total liabilities, divided by the number of outstanding shares of our Common Stock, immediately after the closing of this offering. Our pro forma as adjusted net tangible book value is $8,369,475 or $1.67 per share of our Common Stock. This represents an immediate increase in net tangible book value of $1.40 per share to existing stockholders, and an immediate dilution of $2.33 per share to new investors participating in this offering.
The following table illustrates this dilution per share:
Assumed public offering price per share |
| $ | 4.00 |
|
Pro forma net tangible book value per share |
|
| 0.27 |
|
Increase in pro forma net tangible book value attributable to new investors |
|
| 1.40 |
|
Pro forma as adjusted net tangible book value after the offering |
|
| 1.67 |
|
Dilution to new investors participating in the offering |
| $ | 2.33 |
|
Each $1.00 increase (decrease) in the assumed public offering price of $4.00 per share would increase (decrease) our pro forma adjusted net tangible book value after this offering by approximately $1.79 per share, and increase (decrease) the dilution per share to new investors by approximately $2.21 per share, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.
Each increase (decrease) of 100,000 shares in the number of shares we are offering at the assumed public offering price of $4 would increase (decrease) each of cash and total stockholders’ (deficit) equity by approximately $364,400 after deducting underwriting discounts and commissions and estimated offering expenses payable by us.
The pro forma adjusted information discussed above is illustrative only and will be adjusted based on the actual public offering price and other terms of this offering determined at pricing.
The following table sets forth, on the pro forma basis described above, the differences between our existing stockholders and the new investors in this offering with respect to the number of shares of Common Stock purchased from us, the total consideration paid to us and the weighted average price paid per share of Common Stock paid to us, based on an assumed initial public offering price of $4.00 per share, before deducting underwriting discounts and commissions, and estimated offering expenses payable to the Representative (and assuming no exercise of the Representative’s over-allotment option and compensatory warrants).
|
| Number |
|
| Percent |
|
| Amount |
|
| Percent |
|
| Weighted Average Price per Share |
| |||||
Existing stockholders |
|
| 3,058,197 |
|
|
| 59 | % |
| $ | 8,847,445 |
|
|
| 51 | % |
| $ | 3.05 |
|
New investors |
|
| 2,125,000 |
|
|
| 41 | % |
|
| 8,500,000 |
|
|
| 49 | % |
| $ | 4.00 |
|
Total |
|
| 5,183,197 |
|
|
| 100 | % |
| $ | 17,347,445 |
|
|
| 100 | % |
| $ | 3.52 |
|
The number of shares of our Common Stock expected to be outstanding after this offering is 5,021,197 shares, and excludes:
| · | 1,416,667 shares of Common Stock which may be issued upon exercise of the 1-for-1 conversion option of 1,416,667 issued and outstanding shares of Preferred Stock. |
| · | Shares of Common Stock issuable upon exercise of the representative’s over-allotment option and underlying the representative’s warrants. |
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of our financial condition and results of operations for the period ended September 30, 2022, and the years ended December 31, 2021, and 2020 should be read in conjunction with our financial statements and accompanying notes included elsewhere in this registration statement. In addition to historical information, this discussion and analysis contains forward-looking statements that involve risks, uncertainties, and assumptions. Our actual results may differ materially from those anticipated in these forward-looking statements as a result of certain factors, including but not limited to those set forth in “Risk Factors”.
Overview
We are an own-label distributor of nutritional beverages. Our niche is the formulation, manufacturing, marketing, and distribution of soluble fiber infused nutritional beverages. In November 2017, we registered the trademark GLUCODOWN® and have since launched the first soluble fiber infused, powdered iced tea, and flavored drink mixes, in North America. We launched GLUCODOWN® because we identified an absence of product variety and/or nutritional suitability among the healthier beverage offerings from other companies, serving pre-diabetic and diabetic consumers. Nutritional suitability means we apply, to the extent feasible, the nutritional recommendations and guidelines of experts, such as, for example, the American Diabetes Association, when formulating our beverages. We are currently in the early stages of marketing and distributing GLUCODOWN®.
We believe the physiological impacts of soluble fiber can nutritionally satisfy other interests of health-conscious consumers, and as result, we plan to launch more soluble fiber infused nutritional beverages, marketed under more brands. Building upon our knowledge capital gained from formulating, manufacturing, marketing, and distributing GLUCODOWN®, we registered the trademark FIBER UP® in September 2020, and are developing our second soluble fiber infused nutritional beverage brand. We plan to launch FIBER UP® as a ready-to-drink beverage and to initially focus our marketing and distribution efforts to persons 45 and older.
Recent Developments
On January 25, 2022, we entered into an investment banking agreement with EF Hutton, which was amended on November 16, 2022. The agreement contemplates the Company raising additional capital in a registered offering, listing on a stock exchange, and preparing a registration statement under the Securities Act. The Company is responsible for EF Hutton’s external counsel legal costs, whether any offering is consummated or not.
Effective on March 11, 2022, we filed Articles of Conversion with the Nevada Secretary of State and a Certificate of Conversion and Certificate of Incorporation with the Delaware Department of State, Division of Corporations and converted to a Delaware corporation.
On March 29, 2022, we merged with a subsidiary, created on March 23, 2022, for the sole purpose of the merger, amended and restated our Certificate of Incorporation, and the surviving corporation is Glucose Health, Inc. Our authorized capital stock consists of (i) 40,000,000 shares of Common Stock, $0.001 par value per share, (ii) 10,000,000 shares of Preferred Stock, $0.001 par value per share.
Subsequent Events
On October 9, 2022, 2,133,334 shares of our Series B Preferred Stock and 700,001 shares of our Series C Preferred Stock were converted to a total of 2,833,335 shares of our Common Stock (figure not adjusted for our planned Common Stock Reverse Split).
On October 24, 2022, we filed a Certificate of Amendment to our Certificate of Incorporation and increased our authorized shares of Series D Preferred Stock to 1,200,000 shares, and our authorized shares of Series E Preferred Stock increased to 1,440,000 shares. We forward split our Series D Preferred Stock at a ratio of 4-for-1, and our Series E Preferred Stock at a ratio of 3-for-1, such that 1,200,000 shares of our Series D Preferred Stock and 1,440,000 shares of our Series E Preferred Stock are issued and outstanding.
On January 3, 2023, 180,000 shares of our Series E Preferred Stock were converted to shares of 180,000 shares of our Common Stock (figure not adjusted for our planned Common Stock Reverse Split).
As of January 6, 2023, 1,686,197 shares of our Common Stock and 2,627,667 shares of our Preferred Stock are issued and outstanding.
Supply Chain Management
We believe managing our own supply chain enables us to realize higher gross margins and faster production times than otherwise can be achieved by outsourcing the supply of finished products to us, to co-packers. We have experienced delays in raw materials shipments from our suppliers in the current period and additionally in the prior fiscal year, which together have impacted our finished goods inventory in the current period. We also depend upon single suppliers for some of our raw materials, which means we cannot readily source these from other suppliers. Additionally, we depend upon specialized manufacturers to produce our products, and we cannot easily transfer this production to other manufacturers. As we believe raw materials shipment delays and manufacturing delays are now effectively routine for the visible future, we plan to substantially increase finished goods inventory to mitigate against product outages and consequent loss of revenue. We presently do not have available capital to substantially increase our finished goods inventory, which may impact our product availability and revenues for the remainder of the fiscal year.
We do not believe our supply chain challenges impact upon our product quality. We ensure the quality of our supply chain by implementing Current Good Manufacturing Practices (CGMP). As an own-label distributor, our principal responsibility is FDA record-keeping and ensuring our master product specifications, are adhered to throughout our supply chain. While we have established relationships with industry leading ingredient companies, our master specifications nevertheless require testing of lots of the ingredients shipped to us organoleptically. We also specify testing of random lots of these ingredients at third-party laboratories for consistency with our ingredient manufacturer’s specifications. We further specify testing of random production batches of our products at third-party laboratories for standard microbiological contaminants. Additionally, we specify testing of random finished goods samples at third-party laboratories for stability and consistency with our Nutrition Facts label claims.
For more information, see “Business-Supply Chain Management.”
Impact of COVID-19 Pandemic
The COVID-19 pandemic continues to rapidly evolve. At this time, there continues to be significant volatility and uncertainty relating to the full extent to which the COVID-19 pandemic and the various responses to it will impact our business, operations, and financial results.
Most states and cities have at various times instituted quarantines, restrictions on travel, “stay at home” rules, social distancing measures and restrictions on the types of businesses that could continue to operate, as well as guidance in response to the pandemic and the need to contain it. As a result, the COVID-19 pandemic may affect the operations of the FDA and other health authorities, including such authorities in Europe, which could result in delays of reviews and approvals. While there have been no specific notices of delay from federal or foreign government authorities, potential interruptions, delays, or changes to the operations of the FDA, or of any foreign authority with which we might interact, might impact the approval of any applications we plan and will need to file in the future.
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In addition, we are dependent upon certain contract manufacturers and their ability to reliably and efficiently fulfill our purchase orders is critical to our business success. The COVID-19 pandemic has impacted and may continue to impact certain of our manufacturers. As a result, we have faced and may continue to face delays or difficulty sourcing certain products, which could negatively affect our business and financial results. Even if we are able to find alternate sources for such products, they may cost more, which could adversely impact our profitability and financial condition.
The global deterioration in economic conditions may have an adverse impact on discretionary consumer spending in markets that we plan to market our products, which could also impact our business and demand for our products. For instance, consumer spending may be negatively impacted by general macroeconomic conditions, including a rise in unemployment, and decreased consumer confidence resulting from the pandemic. Changing consumer behaviors as a result of the pandemic may therefore have a material impact on our expected future revenue.
The spread of COVID-19 has also adversely impacted global economic activity and has contributed to significant volatility and negative pressure in financial markets. The pandemic has resulted, and may continue to result, in a significant disruption of global financial markets, which may reduce our ability to access capital in the future, which could negatively affect our liquidity.
If the COVID-19 pandemic does not continue to slow and the spread of COVID-19 is not contained, our business operations, including those of contract manufacturers, could be further delayed or interrupted. In addition, our operations could be disrupted if any of our employees or employees of our subcontractors were to be tested positive for having COVID-19, which could require quarantine of some or all such employees or closure of our or their facilities for disinfection. The duration of any business disruption cannot be reasonably estimated at this time but may materially affect our ability to operate our business and result in additional costs.
The extent to which the COVID-19 pandemic may impact our results will depend on future developments, which are highly uncertain and cannot be predicted as of the date of this Prospectus, including the effectiveness of vaccines and other treatments for COVID-19, the impact of variants of the COVID-19 virus and other new information that may emerge concerning the severity of the pandemic and steps taken to contain the pandemic or treat its impact. Nevertheless, the pandemic and the current financial, economic, and capital markets environment, and future developments in the global supply chain and other areas present material uncertainty and risk with respect to our performance, financial condition, results of operations and cash flows.
We have not developed a COVID-19 contingency plan to address the potential challenges and risks presented by this pandemic. If we were to prepare such a plan, there could be no assurance that it would be effective in mitigating the effects of the COVID-19 virus.
For a further discussion of the impact of the COVID-19 pandemic on our business, please see “Risk Factors”.
Results Of Operations
Three Months Ended September 30, 2022, and 2021.
Revenue
Revenue increased by $105,751 to $340,681 in the three-month period ended September 30, 2022, from $234,930 in the three-month period ended September 30, 2021. During the period we issued invoices totaling $196,429 pursuant to fulfilling purchase orders from Woodland Partners (for Publix). We do not expect to receive additional purchase orders from Woodland Partners (for Publix) for the remainder of fiscal 2022, which will negatively impact our fourth quarter revenue. While revenue increased 45% in the current period vs. the comparative period, we nevertheless experienced product outages of certain of our eight GLUCODOWN® flavors due to insufficient finished goods inventory to serve our end-user customers. Delays in raw materials shipments and manufacturing in the current period and delays in raw materials shipments and manufacturing in the prior fiscal year, together impacted finished goods inventory in the current period. We believe delays in raw materials shipments and manufacturing are now effectively routine for the visible future and can only be managed by increasing finished goods inventory to mitigate against product outages and consequent loss of revenue. We are presently not able to substantially increase our finished goods inventory due to lack of resources including capital, which may impact our product availability and revenues for the remainder of the fiscal year.
Gross Profit
Gross profit increased by $91,757 to $153,789 in the three-month period ended September 30, 2022, from $62,032 in the three-month period ended September 30, 2021. Gross profit margin was 45% in the current period vs. 26% in the comparative period. The Company’s gross profit margin can be variable depending upon the mix of end-user and retailer customer sales. We earn higher gross margins from sales to end-user customers (online) than from sales to retailer customers. Our higher gross margin from end-user customers is due to our ability to control and adjust (increase) the pricing of our products as we experience price increases from our raw materials suppliers and/or manufacturers. We are effectively limited to proposing annual price increases to our retailer customers and such proposed increases may not even be approved by the retailer’s buyers. To mitigate raw material and manufacturing cost pressures, the Company utilizes a tolling and contract manufacturing business model and directly manages procurement of all inputs for its products
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Operating Expenses
Operating expenses decreased by $48,070 to $145,697 in the three-month period ended September 30, 2022, from $193,767 in the three-month period ended September 30, 2021. Operating expenses decreased in the current period vs. the comparative period due to lower selling expenses offset by higher general and administrative costs and professional fees. The Company pays for its advertising expenses, in part, through the issuance of restricted shares of Common Stock. GAAP requires us to value shares issued in payment for services using the closing quotation of our stock price on the date of entering into a contract for services and, as result, our advertising expenses can be variable between comparative periods.
Other Income (Expense) & Net Loss
Other income (expense) was $-0- in the three-month period ended September 30, 2022, vs. $-0- in the three-month period ended September 30, 2021. Net loss decreased by $139,827 to a net income of $8,092 in the current period from a net loss of ($131,735) in the comparative period. Our decreased net loss was a consequence of lower selling expenses in the current period vs. the comparative period.
Nine Months Ended September 30, 2022, and 2021.
Revenue
Revenue increased by $159,018 to $918,516 in the nine-month period ended September 30, 2022, from $279,826 in the nine-month period ended September 30, 2021. While revenue increased 10% in the current period vs the comparative period, we nevertheless experienced product outages of certain of our eight GLUCODOWN® flavors due to insufficient finished goods inventory to meet customer demand. Delays in raw materials shipments and manufacturing in the current period and delays in raw materials shipments and manufacturing in the prior fiscal year, together impacted finished goods inventory in the current period. We believe delays in raw materials shipments and manufacturing are now effectively routine for the visible future and can only be managed by increasing finished goods inventory to mitigate against product outages and consequent loss of revenue. We are presently not able to substantially increase our finished goods inventory due to lack of resources including capital, which may impact our product availability and revenues for the remainder of the fiscal year. Additionally, revenue from one retailer customer declined as we were impacted by systems issues at the retailer customer preventing their generation of accurate purchase orders, during our transition to supplying this retailer customer with GLUCODOWN® for stocking at their online store vs. brick-and-mortar stores. As we transition to stocking online only, we expect to receive fewer purchase orders and generate less revenue from this retailer customer than in prior periods.
Gross Profit
Gross profit increased by $115,037 to $394,863 in the nine-month period ended September 30, 2022, from $279,826 in the nine-month period ended September 30, 2021. Gross profit margin was 43% in the current period vs. 37% in the comparative period. The Company’s gross profit margin can be variable depending upon the mix of end-user and retailer customer sales. We earn higher gross margins from sales to end-user customers (online) than from sales to retailer customers. Our higher gross margin from end-user customers is due to our ability to control and adjust (increase) the pricing of our products as we experience price increases from our raw materials suppliers and/or manufacturers. We are effectively limited to proposing annual price increases to our retailer customers and such proposed increases may not even be approved by the retailer’s buyers. During the period ended September 30, 2022, we transitioned from supplying one retailer with GLUCODOWN® for stocking in-store, to stocking online only. As part of the transition, we raised our wholesale price to the retailer customer, and we expect to earn higher gross margin as a result. To mitigate raw material and manufacturing cost pressures, the Company utilizes a tolling and contract manufacturing business model and directly manages procurement of all inputs for its products.
Operating Expenses
Operating expenses increased by $134,891 to $688,648 in the nine-month period ended September 30, 2022, from $553,757 in the nine-month period ended September 30, 2021. Operating expenses increased in the current period vs. the comparative period due to higher administrative costs and professional fees and somewhat higher selling expenses. The Company pays for its advertising expenses, in part, through the issuance of restricted shares of Common Stock. GAAP requires us to value shares issued in payment for services using the closing quotation of our stock price on the date of entering into a contract for services and, as result, our advertising expenses can be variable between comparative periods.
Other Income (Expense) & Net Loss
Other income (expense) was $-0- in the nine-month period ended September 30, 2022, vs. ($2,785) in the nine-month period ended September 30, 2021. Net loss increased by $17,069 to ($293,785) in the current period from ($276,716) in the comparative period. Our increased net loss was a consequence of higher general and administrative costs and professional fees and somewhat higher selling expenses in the current period vs. the comparative period.
Fiscal Years ended December 31, 2021 (fiscal 2021) and December 31, 2020 (fiscal 2020).
Revenue
Revenue increased by $472,968 or 98%, to $953,681 in the year ended December 31, 2021, from $480,713 in the year ended December 31, 2020. The 98% increase in fiscal 2021 revenue reflected growth in our sales to end-user customers through Amazon and our own Shopify online store plus the launch of four additional flavors of GLUCODOWN® in fiscal 2021, for a total of eight flavors, compared with fiscal 2020. In fiscal 2021, the Company added no new retailer customers, compared to one additional retailer customer in fiscal 2020, and as a result, experienced only modest growth of GLUCODOWN® sales to retailers.
Gross Profit
Cost of revenue increased by $236,471, or 77%, to $543,639 in the year ended December 31, 2021, from $307,168 in the year ended December 31, 2020. Gross profit increased by $236,497, or 136%, to $410,042 in the year ended December 31, 2021, from $173,545. The increase in gross profit, was a result of the Company’s strategy of utilizing a tolling and contract manufacturing business model and managing procurement of all inputs to its products, such as ingredients and packaging, directly. Additionally, we earn higher gross margins through our sales to end-user customers (online) vs. sales to retailer customers. This higher gross margin from end-user customers is due to our ability to control the pricing of our products and adjust (increase) as we experience price increases from our raw materials suppliers and/or manufacturers. We are effectively limited to proposing annual price increases to our retailer customers and such proposed increases may not even be approved by the retailer’s buyers.
Operating Expenses
Operating expenses decreased by $51,739, or 6%, to $746,161 in the year ended December 31, 2021, from $797,900 in the year ended December 31, 2020. Operating expenses were lower in fiscal 2021 vs. fiscal 2020 due to reduced director’s fees, paid for by the issuances of equity (warrants), and reduced professional fees, offset by increased sales and marketing expenses.
Other Income (Expense) & Net Loss
Other income (expense) was ($2,785) expense in the year ended December 31, 2021, from $146,677 income in the year ended December 31, 2020, as in the fiscal 2020 period, we benefitted from a recovery of claims deducted against our invoices by a retailer and a payment on a debt settlement was offset by a gain on forgiveness of accounts payables.
Liquidity and Capital Resources
Our principal liquidity requirements are for working capital. We fund our liquidity requirements primarily through cash on hand, which are supplemented by cash flows from sales of equity and borrowings.
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Nine Months Ended September 30, 2022, and 2021.
As of September 30, 2022, and December 31, 2021, we had cash of $308,536 and $752,402, respectively, and no cash equivalents. The following table summarizes our cash flows from operating, investing, and financing activities in the interim periods ended September 30, 2022, and 2021:
|
| For the Nine Months Ended September 30, |
| |||||
|
| 2022 |
|
| 2021 |
| ||
|
|
|
|
|
|
| ||
Net cash provided by (used in) operating activities |
| $ | (368,491 | ) |
| $ | (90,794 | ) |
Net cash provided by (used in) investing activities |
|
| - |
|
|
| - |
|
Net cash provided by (used in) financing activities |
|
| (75,375 | ) |
|
| 781,114 |
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash |
| $ | (443,866 | ) |
| $ | 690,320 |
|
Operating Activities - The greater net cash used in operating activities in the nine months ended September 30, 2022, vs. September 30, 2021, was primarily a result of increased professional and administrative costs.
Investing Activities - No cash was used for investing activities in the nine months ended September 30, 2022, or September 30, 2021.
Financing Activities - The greater net cash used in financing activities in the nine months ended September 30, 2022, vs. September 30, 2021, was a result of preferred dividend payments and no cash raised from equity or debt financings in the current period vs. cash proceeds provided by the sale of preferred stock offset by debt repayment and preferred dividend payments in the comparative period.
Fiscal Years ended December 31, 2021 (fiscal 2021) and December 31, 2020 (fiscal 2020).
As of December 31, 2021, and December 31, 2020, we had cash of $752,402 and $69,151, respectively, and no cash equivalents. The following table summarizes our cash flows from operating, investing, and financing activities in the fiscal years 2021 and 2020:
|
| Years Ended December 31, |
| |||||
|
| 2021 |
|
| 2020 |
| ||
|
|
|
|
|
|
| ||
Net cash provided by (used in) operating activities |
| $ | (72,739 | ) |
| $ | (68,937 | ) |
Net cash provided by (used in) investing activities |
| - |
|
|
| (3,295 | ) | |
Net cash provided by (used in) financing activities |
|
| 755,990 |
|
|
| 94,893 |
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash |
| $ | 683,251 |
|
| $ | 22,661 |
|
Operating Activities - The marginally $3,802 greater net cash used in operating activities during the year ended December 31, 2021, vs. December 31, 2020, was a result of costs associated with increased revenues in fiscal 2021 vs. fiscal 2020.
Investing Activities - No cash was used for investing activities in the year ended December 31, 2021, and net cash used for investing activities in the year ended December 31, 2020, consisted of website domain purchases.
Financing Activities - The $661,097 greater net cash provided by financing activities in the year ended December 31, 2021, vs. December 31, 2020, was a result of proceeds received from the sale of preferred stock, offset by debt repayment and preferred dividend payments. The net cash provided by financing activities in the year ended December 31, 2020, consisted of proceeds received from the sale of preferred stock, offset by debt repayment and preferred dividend payments.
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Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditure or capital resources that is material to investors.
Critical Accounting Policies
Our critical accounting estimates are detailed in our significant accounting policies as described in Note 2 of the financial statements included in this Prospectus. These financial statements were prepared in accordance with generally accepted accounting principles in the United States. Critical accounting estimates are those that we believe are most important to the portrayal of our financial condition and results of operations. The preparation of our financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue, and expense. Our estimates are evaluated on an ongoing basis and drawn from historical experience, current trends, and other factors that management believes to be relevant at the time our consolidated financial statements are prepared. Actual results may differ from our estimates.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company” as defined in Rule 10(f)(1) of Regulation S-K. Smaller reporting companies may take advantage of certain reduced disclosure obligations, including, among other things, providing only two years of audited financial statements. We will remain a smaller reporting company until the last day of the fiscal year in which (1) the market value of our shares held by non-affiliates equals or exceeds $250 million as of the prior June 30th, or (2) our annual revenues equaled or exceeded $100 million during such completed fiscal year and the market value of our shares held by non-affiliates equals or exceeds $700 million as of the prior June 30th. Such reduced disclosure and corporate governance obligations may make it more challenging for investors to analyze our results of operations and financial prospects.
We are a smaller reporting company within the meaning of the Securities Act, and if we take advantage of certain exemptions from disclosure requirements available to smaller reporting companies, this could make our securities less attractive to investors and may make it more difficult to compare our performance with other public companies” and “As a “smaller reporting company,” we may choose to exempt our company from certain corporate governance requirements that could have an adverse effect on our public shareholders.”
Implications of Being an Emerging Growth Company
We are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act. We will remain an emerging growth company until the earlier of (1) December 31, 2024 (2) the last day of the fiscal year in which we have total annual gross revenue of at least $1.07 billion, (3) the last day of the fiscal year in which we are deemed to be a “large accelerated filer” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, or the Exchange Act, which would occur on the date on which we have issued more than $1.0 billion in non-convertible debt securities during the prior three-year period. An emerging growth company may take advantage of specified reduced reporting requirements and is relieved of certain other significant requirements that are otherwise generally applicable to public companies. As an emerging growth company, we may:
| · | present only two years of audited financial statements, plus unaudited condensed financial statements for any interim period, and related management’s discussion and analysis of financial condition and results of operations in this Prospectus; |
| · | avail ourselves of the exemption from the requirement to obtain an attestation and report from our auditors on the assessment of our internal control over financial reporting pursuant to the Sarbanes-Oxley Act of 2002, or Sarbanes-Oxley; |
| · | provide reduced disclosure about our executive compensation arrangements; and |
| · | not require stockholder non-binding advisory votes on executive compensation or golden parachute arrangements. |
In addition, under the JOBS Act, an emerging growth company can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have irrevocably elected not to avail ourselves of this extended transition period, and, as a result we will adopt new or revised accounting standards on relevant dates on which adoption of such standards is required for other public companies.
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BUSINESS
Overview
We are an own-label distributor of nutritional beverages. Our niche is the formulation, manufacturing, marketing, and distribution of soluble fiber infused nutritional beverages. In November 2017, we registered the trademark GLUCODOWN® and have since launched the first soluble fiber infused, powdered iced tea, and flavored drink mixes, in North America. We launched GLUCODOWN® because we identified an absence of product variety and/or nutritional suitability among the healthier beverage offerings from other companies, serving pre-diabetic and diabetic consumers. Nutritional suitability means we apply, to the extent feasible, the nutritional recommendations and guidelines of experts, such as, for example, the American Diabetes Association, when formulating our beverages. We are currently in the early stages of marketing and distributing GLUCODOWN®.
We believe the physiological impacts of soluble fiber can nutritionally satisfy other interests of health-conscious consumers, and as result, we plan to launch more soluble fiber infused nutritional beverages, marketed under more brands. Building upon our knowledge capital gained from formulating, manufacturing, marketing, and distributing GLUCODOWN®, we registered the trademark FIBER UP® in September 2020 and are developing our second soluble fiber infused nutritional beverage brand. We plan to launch FIBER UP® as a ready-to-drink beverage and to initially focus our marketing and distribution efforts to persons 45 and older.
Recent Developments
On January 25, 2022, we entered into an investment banking agreement with EF Hutton, which was amended on November 16, 2022. The agreement contemplates the Company raising additional capital in a registered offering, listing on a stock exchange, and preparing a registration statement under the Securities Act. The Company is responsible for EF Hutton’s external counsel legal costs, whether any offering is consummated or not.
Effective on March 11, 2022, we filed Articles of Conversion with the Nevada Secretary of State and a Certificate of Conversion and Certificate of Incorporation with the Delaware Department of State, Division of Corporations and converted to a Delaware corporation.
On March 29, 2022, we merged with a subsidiary, created on March 23, 2022, for the sole purpose of the merger, amended and restated our Certificate of Incorporation, and the surviving corporation is Glucose Health, Inc. Our authorized capital stock consists of (i) 40,000,000 shares of Common Stock, $0.001 par value per share, (ii) 10,000,000 shares of Preferred Stock, $0.001 par value per share.
Subsequent Events
On October 9, 2022, 2,133,334 shares of our Series B Preferred Stock and 700,001 shares of our Series C Preferred Stock were converted to 2,833,335 shares of our Common Stock (figure not adjusted for our planned Common Stock Reverse Split).
On October 24, 2022, we filed a Certificate of Amendment to our Certificate of Incorporation and increased our authorized shares of Series D Preferred Stock to 1,200,000 shares, and our authorized shares of Series E Preferred Stock increased to 1,440,000 shares. We forward split our Series D Preferred Stock at a ratio of 4-for-1, and our Series E Preferred Stock at a ratio of 3-for-1, such that 1,200,000 shares of our Series D Preferred Stock and 1,440,000 shares of our Series E Preferred Stock are issued and outstanding.
On January 3, 2023, 180,000 shares of our Series E Preferred Stock were converted to 180,000 shares of our Common Stock (figure not adjusted for our planned Common Stock Reverse Split).
As of January 6, 2023, 1,686,197 shares of our Common Stock and 2,627,667 shares of our Preferred Stock are issued and outstanding.
Market Opportunity - GLUCODOWN®
The National Diabetes Statistics Report (Source: Centers for Disease Control and Prevention. Website. www.cdc.gov/diabetes/data/statistics-report/index.html. Accessed April 10, 2022) estimates 96 million adults have pre-diabetes and 37.3 million adults have diabetes. We believe the National Diabetes Statistics Report points to a large and growing market of consumers likely receptive to nutritional beverages which help maintain healthy serum glucose levels (healthy blood sugar). Prior to the introduction of GLUCODOWN®, the only nutritional beverages formulated for healthy blood sugar by the companies addressing this large and growing consumer market, were dairy shakes (ready-to-drink and powder). By formulating a new form of nutritional beverage for this consumer market, delicious tasting iced tea, and drink mixes, we believe GLUCODOWN® will gain market share. We additionally believe, as this market of consumers becomes aware of GLUCODOWN®, they will discontinue purchasing sugar-free and low-calorie beverages from other companies which, while delicious tasting, do not provide the nutritional efficacy of GLUCODOWN®.
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Market Opportunity - FIBER UP®
In addition to helping maintain healthy post-prandial serum glucose levels (blood sugar levels measured after meals) soluble fiber has other important physiological impacts. These include helping maintain healthy triglycerides and cholesterol levels, healthy blood pressure, promoting weight loss and healthy waste circumference, preserving bone density, and maintaining gut health, which includes regular digestion and immune health. We believe these additional nutritional impacts of soluble fiber will enable us to launch more soluble fiber infused beverage brands targeted to satisfying many other interests of health-conscious consumers. In this regard, we plan to launch our second brand, FIBER UP®. We believe FIBER UP® will expand our Company’s addressable consumer market, from pre-diabetic and diabetic persons served by GLUCODOWN®, to also serve the 95% of Americans understood to be fiber deficient (Source: Closing America’s Fiber Intake Gap. Website https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6124841/. Accessed April 10, 2022). While the beneficial impacts of increasing soluble fiber intake are applicable across all age cohorts, we plan to initially focus our launch of FIBER UP® to persons 45 and older - a consumer market we believe to be underserved by other beverage companies.
Products
GLUCODOWN®
In fourth quarter of 2017, we launched the first soluble fiber infused iced tea mix in North America in four flavors (Peach Tea, Lemon Tea, Raspberry Tea, and Mixed Berry Tea) under the GLUCODOWN® brand to principally serve pre-diabetic and diabetic persons.
GLUCODOWN® provides nutritional support for the maintenance of healthy blood sugar. The principal ingredient in GLUCODOWN® is a soluble form of dietary fiber invented by Matsutani Chemical Industry Co. Ltd, of Japan. For an ingredient to be labeled as “dietary fiber” in the United States, the ingredient must be determined by the Food and Drug Administration (FDA) to have at least one physiological impact beneficial to human health (See Government Regulation). Dietary fiber has beneficial physiological impacts related to blood sugar and insulin (and other beneficial impacts). These beneficial physiological impacts are also replicated in nutritional investigations made available to us by our ingredient supplier related to their dietary fiber. Several of the nutritional investigations compiled by our ingredient supplier evaluated beverages including tea drinks, coffee drinks and soft drinks, enriched with their dietary fiber, in similar concentrations as GLUCODOWN®. These drinks are analogous to GLUCODOWN®. We derive our statements of nutritional support from the dietary fiber in GLUCODOWN®.
GLUCODOWN® is also enriched with micronutrients (vitamins and minerals). We selected chromium in picolinate form, zinc in picolinate form, manganese in citrate form and vitamins B1 (thiamine), B6 (pyridoxine), B7 (biotin) and B12 (cyanocobalamin) based upon some evidence of beneficial physiological impacts related to serving our target market of diabetic and pre-diabetic persons. For example, some research indicates regular consumption of metformin may potentially be associated with vitamin B12 deficiency. We formulated these micronutrients at 50% of the FDA recommended % daily value except for chromium picolinate which is 100% of the FDA % daily value. We do not derive any of our statements of nutritional support from the micronutrients in GLUCODOWN®.
GLUCODOWN® is also enriched with an extract of the banaba leaf plant standardized to a 1% concentration of corosolic acid. For more than 2,000 years, to the present day, the leaf of the banaba plant has been utilized in Ayurveda, a traditional form of healing in India, for healthy blood sugar. We do not derive any of our statements of nutritional support from the banaba leaf extract in GLUCODOWN®.
We manufacture GLUCODOWN® in powder form which consumers can use to make their own beverages. We have developed formulations, which we consider trade secrets, of natural flavors (we do not use artificial flavors), flavor enhancing acidulants (citric and malic acid), and for our iced teas, of decaffeinated pure black tea powder sourced directly from India’s largest manufacturer. To make our beverages sweet tasting without sugar, we were informed by the joint scientific statement of the American Heart Association and the American Diabetes Association regarding non-nutritive sweeteners (Source: Nonnutritive Sweeteners: Current Use and Health Perspectives. A Scientific Statement From the American Heart Association and the American Diabetes Association. Website https://pubmed.ncbi.nlm.nih.gov/22777177/. Accessed August 18, 2022) in our selection of (pure) sucralose for our formulations. While we have, and continue to evaluate other non-nutritive sweeteners as they are introduced by manufacturers, it is our current belief (pure) sucralose is superior to all other non-nutritive sweeteners, based upon our criteria of safety, taste and manufacturing stability
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We distinguish the labeling and marketing of our GLUCODOWN® brand with three statements of nutritional support deriving from the physiological impacts of the dietary fiber infused in GLUCODOWN®:
· | Moderate rising glucose levels after meals to maintain healthy post-prandial glycemic response |
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· | Block metabolism of dietary sugars and fats to maintain healthy glucose, cholesterol and triglycerides levels. |
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· | Improve regularity to maintain healthy digestion |
In 2021, we extended our GLUCODOWN® product line by launching four new GLUCODOWN® drink (not iced tea) mix flavors (Cherry, Strawberry-Banana, Peach Mango, and Watermelon) also in powder form.
We manufacture all eight GLUCODOWN® flavor variations in two packaging formats (foil resealable pouches and bulk containers).
Additionally, we are formulating more GLUCODOWN® line extensions to serve prediabetic and diabetic persons, all to be manufactured in powder form, including flavored instant coffees, such as Mocha Coffee, and Horchata.
We are also developing new GLUCODOWN® packaging formats, including single-serve stick-packs for all our iced tea mix, drink mix and planned future flavor variations.
However, to launch more GLUCODOWN® line extensions in the current fiscal year, we require additional capital, which we do not presently have.
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FIBER UP®
FIBER UP® will be our second soluble fiber infused nutritional beverage brand and our first ready-to-drink (not powder) beverage. We plan to utilize a variation suitable for ready-to-drink beverages, of the same soluble fiber from our ingredient supplier, for FIBER UP®, as we use for GLUCODOWN®. We plan to formulate approximately 5 grams of dietary fiber per serving size (16 oz. bottle) which compares to approximately 4 grams of dietary fiber per serving size (one scoop per 8 oz. of water) for GLUCODOWN®. We plan to distinguish the labeling and marketing of our FIBER UP® brand with four statements of nutritional support deriving from the physiological impacts of the dietary fiber infused in FIBER UP®. Our identified target market consists of health-conscious persons 45 years and older who may be fiber deficient. We believe most Americans are not aware of their fiber deficiency. Accordingly, we intend to emphasize the physiological benefits of our soluble fiber, with four statements of nutritional support prominently displayed in our labeling and marketing, which we believe are compelling to our identified consumer market.
· | Supports a healthy heart |
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· | Promotes weight loss |
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· | Preserves bone strength |
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· | Maintains a healthy gut |
Whereas the micronutrients selected for GLUCODOWN® were chosen based upon some evidence of potential physiological benefit targeted to diabetic and pre-diabetic consumers, we intend to enrich FIBER UP® with a broader spectrum of micronutrients targeted to serve health conscious consumers who may be fiber deficient. For example, we also plan to include calcium in FIBER UP® which complements dietary fiber’s beneficial physiological impacts related to preserving bone strength. We will not derive any of our statements of nutritional support from the micronutrients in FIBER UP®.
Whereas extract of banaba leaf (for corosolic acid) was selected for GLUCODOWN® based upon its use in Ayurveda traditional healing for healthy blood sugar, we intend to enrich FIBER UP® with a different plant extract, such as ginseng, for which some evidence indicates some potential physiological benefit related to heart health, weight loss, bone strength and a healthy gut. We will not derive any of our statements of nutritional support from the plant extracts in FIBER UP®.
As we plan to manufacture FIBER UP® as a ready-to-drink beverage, we have developed formulas, which we consider trade secrets, of natural flavors (we do not use artificial flavors), flavor enhancing acidulants (citric and malic acid) and our preferred non-nutritive sweetener, (pure) sucralose. Consumer perception of ready-to-drink beverages is also enhanced by appearance. In this regard, we have utilized colors derived from vegetables to develop vibrant purple and red colors for the FIBER UP® drink flavors we have formulated to date, grape and cherry.
We believe consumer awareness of FIBER UP® will be enhanced by attractive artwork and packaging. We evaluated many different forms of consumer packaging for FIBER UP® and determined aluminum bottles to be the most environmentally friendly due to their essentially infinite recyclability. We considered various aluminum bottle options from different manufacturers and opened an account with our chosen supplier. We have completed the graphic design and labeling for FIBER UP® including review by our FDA/FTC attorney for compliance with applicable regulations and industry guidance statements.
We have also begun early manufacturing, marketing, and distribution planning for FIBER UP®, including hiring a brand management firm to assist us. However, to launch FIBER UP® in the current fiscal year, we require substantial additional capital, which we do not presently have.
Marketing and Distribution
Our most important marketing and distribution objectives are:
| (1) | Build awareness of GLUCODOWN® among the persons which comprise our identified pre-diabetic and diabetic consumer market for this brand. |
| (2) | Increase sales of GLUCODOWN® via direct end-user consumer purchase at Amazon and our own Shopify online store. |
| (3) | Secure distribution of GLUCODOWN® at national and large regional retailers. |
| (4) | Grow sales of GLUCODOWN® at the national and large regional retailers who are already our customers. |
| (5) | Launch FIBER UP® in at least one regional market. |
We generate awareness of GLUCODOWN® through placement of advertising on cable television, satellite radio and digital media. We advertise in daytime and primetime on cable television channels such as Hallmark, Game Show Network and National Geographic. All our advertising scripts are vetted by our FDA/FTC attorney for compliance to applicable regulations. Although we do have a GLUCODOWN® Facebook page which facilitates customer questions, we do not expend significant resources utilizing social media platforms to bring awareness to our products. Customer experience or testimonial statements engendered by social media marketing, may be perceived as statements of disease mitigation or prevention. The utilization of such statements by an own-label distributor in marketing its products, is routinely cited in FDA warning letters.
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We launched GLUCODOWN® at Amazon in 2018 and at our own Shopify online store in 2021 and generate the majority of our revenue from these direct-to-consumer sales platforms (our “end-user” customers). We use our GLUCODOWN® brand awareness advertising to drive sales on these platforms. We use the reporting and attribution tools developed by Amazon and Shopify to optimize our advertising campaigns. Optimization means we have visibility to monitor our return on investment from the advertising we place, to ensure it is achieving our revenue objectives.
We also seek to increase our revenue by becoming a supplier to national and large regional retailers (our “retailer” customers). The process of securing product placement in-store and online at national and large regional retailers involves obtaining appointments with buyers; gaining buyer approval during annual or bi-annual reviews; may involve the payment of various fees or incentives to retailers, which may lower gross profits; and may involve payments to third-party agents and/or distributors to secure shelf space at retailers, which may lower gross profits. Once approval is received and we become a supplier to a retailer, significant expense may then be incurred for the filing and processing of various warehouse and logistics claims and disputes, to secure full payment for items shipped to the retailer.
Since we launched the GLUCODOWN® brand in the fourth quarter of 2017, our Company has become a supplier to retailers and the distributors which serve them, including Walmart, CVS Pharmacies and Woodland Partners (for Publix). We use our GLUCODOWN® brand awareness advertising to drive sales at our retailer customers. In addition, we have access to, or can implement on our own initiative, retailer marketing programs which include aisle displays and signage, flyer or digital flyer advertising, coupons or similar discount programs, and temporary price reductions. We have yet to implement these retailer marketing programs, and we believe they may represent an opportunity to generate additional revenues.
We have begun early manufacturing, marketing, and distribution planning for FIBER UP®, including hiring a brand management firm to assist us. We plan to focus our FIBER UP® marketing and distribution efforts initially on persons 45 and older, in one regional market of the United States. However, to launch FIBER UP® in the current fiscal year, we require substantial additional capital, which we do not presently have.
We presently rely upon our CEO/CFO to manage our Amazon and Shopify direct-to-consumer online sales efforts and to secure and increase sales at national and large regional retailers. We plan to build a sales and marketing organization in the future, which includes direct and/or contracted salespersons (brokers) for our brands GLUCODOWN® and FIBER UP®, if we are successful in obtaining more capital, of which there is no certainty.
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Supply Chain Management
We believe managing our own supply chain enables us to realize higher gross margins and faster production times than otherwise can be achieved by outsourcing the supply of finished products to us, to co-packers. Managing our own supply chain means we procure all primary inputs for our products. We routinely procure ingredients such as soluble fiber, flavorings, acidulants, micronutrients, sweeteners, and plant extracts, as well as consumer packaging, including HDPE containers, printed shrink sleeve labels, seals and closures, printed foil pouches and master and inner shipping cases. We source our product inputs directly from their manufacturers, whenever possible. From the formulation of GLUCODOWN® in 2017, to the present date, we have established and maintained direct relationships with a core group of industry leading ingredient companies, including Archer Daniels Midland/Matsutani, Jiaherb, DSM Fortitech, Virginia Dare and AVT Tea, to provide the inputs for our products.
Managing our own supply chain also means we enter into "tolling" and “contract manufacturing” arrangements for the production of our products. Tolling means we ship primary ingredients to a third-party manufacturing facility for processing, in accordance with our master specifications, into a secondary ingredient, which is then shipped to another third-party manufacturing facility for assembly into a finished good, in accordance with our master specifications. An example of a tolling manufacturer we use is Balchem. Contract manufacturing means we ship primary and/or secondary ingredients, plus packaging, to a third-party manufacturing facility for assembly into a finished good, in accordance with our master specifications. We make these arrangements without general written contracts, but through the issuance of purchase orders and ensuring adherence to Current Good Manufacturing Practices (CGMP) via master specifications, and our FDA record-keeping, where applicable.
We have experienced delays in raw materials shipments from our suppliers which have impacted our finished goods and led to product outages and lost opportunity for additional revenue. We also depend upon single suppliers for some of our raw materials, which means we cannot readily source these raw materials from other suppliers. Additionally, we depend upon specialized manufacturers to produce our products, and we cannot easily transfer this production to other manufacturers. We believe raw materials shipment delays and manufacturing delays have become effectively routine for the visible future. To mitigate against product outages and consequent loss of revenue which raw materials shipment delays and manufacturing delays cause, we plan to substantially increase our finished goods inventory. We presently do not have available capital to substantially increase our finished goods inventory, which may impact our product availability and revenues for the remainder of the fiscal year.
We ensure the quality of our supply chain by implementing Current Good Manufacturing Practices (CGMP). As an own-label distributor, our principal responsibility is FDA record-keeping and ensuring our master product specifications, are adhered to throughout our supply chain. While we have established relationships with industry leading ingredient companies, our master specifications nevertheless require testing of lots of the ingredients shipped to us organoleptically. We also specify testing of random lots of these ingredients at third-party laboratories for consistency with our ingredient manufacturer’s specifications. We further specify testing of random production batches of our products at third-party laboratories for standard microbiological contaminants. Additionally, we specify testing of random finished goods samples at third-party laboratories for stability and consistency with our Nutrition Facts label claims.
Competition
GLUCODOWN® competes directly on the shelves and/or online at the retailers who are our customers, and online at Amazon, with other nutritional beverages which serve our market niche of pre-diabetic and diabetic consumers. These nutritional beverages include Glucerna®, distributed by Abbott Laboratories; Boost®, distributed by Nestle; Splenda® distributed by Heartland Food Products Group, and Slimfast®, distributed by Glanbia, PLC. Our principal competitors are far larger companies than our Company, with much greater financial and human resources to allocate to their brands. Our principal competitor’s brands all have extensive retailer and online distribution, and established consumer recognition and loyalty.
Nevertheless, GLUCODOWN® has two competitive advantages over our much larger principal competitor’s brands - its nutritional attributes and its product differentiation.
We believe there are four essential nutritional attributes when formulating a nutritional beverage for diabetic and pre-diabetic consumers:
| · | No sugar (including no added sugar) |
| · | No saturated fat |
| · | Low-calorie (10 calories per serving) |
| · | Good Source of Fiber (soluble) |
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Our belief in the nutritional suitability of GLUCODOWN® with respect to our target market, and in particular the essential nature of all four nutritional attributes named above, is informed by the guidelines and recommendations of experts, for example, that published by the American Diabetes Association.
No sugar (including no added sugar) | The consumption of sugar-sweetened beverages…is strongly discouraged…”(1)
“People with diabetes and those at risk are advised to…minimize the consumption of foods with added sugar…”(2)
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No saturated fat | “The type of fats consumed is more important than total amount of fat when looking at metabolic goals and CVD risk, and it is recommended that the percentage of total calories from saturated fats should be limited…”(3)
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Low-calorie (10 calories per serving) | “Management and reduction of weight is important for people with type 1 diabetes, type 2 diabetes, or prediabetes with overweight or obesity.”(4)
“For some people with diabetes who are accustomed to regularly consuming sugar-sweetened products, non- nutritive sweeteners (containing few or no calories) may be an acceptable substitute for nutritive sweeteners.”(5)
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Good Source of Fiber (soluble) | Lifestyle modification focusing on….increase of…viscous fiber…”(6)
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(1) | “The American Diabetes Association Standards of Medical Care in Diabetes-2022” page S66. |
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(2) | “The American Diabetes Association Standards of Medical Care in Diabetes-2022” page S63. |
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(3) | “The American Diabetes Association Standards of Medical Care in Diabetes-2022” page S66. |
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(4) | “The American Diabetes Association Standards of Medical Care in Diabetes-2022” page S64. |
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(5) | “The American Diabetes Association Standards of Medical Care in Diabetes-2019 (Abridged for Primary Care Providers)” page 17. |
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(6) | “The American Diabetes Association Standards of Medical Care in Diabetes-2019 (Abridged for Primary Care Providers)” page 26. |
While all our principal competitors utilize dietary fiber, GLUCODOWN® is the only brand, to the best of our knowledge, which possesses all four nutritional attributes identified above. According to their Nutrition Facts panel disclosures, we believe all our principal competitor’s beverages indicate the presence of saturated fat; all our principal competitor’s beverages range between 10x to 19x more calories per serving compared to GLUCODOWN®; and three of our four principal competitors’ beverages indicate the presence of sugar.
Additionally, some of our competitors utilize dietary protein in their formulations. We believe dietary protein supplementation is not scientifically supported for glycemic management (maintaining healthy blood sugar) and is therefore, not nutritionally suitable, for GLUCODOWN®. In support of our belief, we cite The American Diabetes Association Standards of Medical Care in Diabetes-2022 which, on page S66, sub-heading Protein, provides that “[t]here is no evidence that adjusting the daily level of protein intake (typically 1-1.5 g/kg body wt/day or 15-20% total calories) will improve health, and research is inconclusive regarding the ideal amount of dietary protein to optimize either glycemic management or CVD risk (121,153).” (The American Diabetes Association Standards of Medical Care in Diabetes-2022. diabetesjournals.org/care/article/45/Supplement_1/S60/138923/5-Facilitating-Behavior-Change-and-Well-being-to)
GLUCODOWN® is also a unique and distinctive product compared to all others manufactured by our competitors. Our competitor’s products are all dairy shakes (powdered or ready-to-drink) with each brand offering a limited choice of flavors, typically chocolate, strawberry, and vanilla. In contrast, GLUCODOWN® offers an array of delicious iced tea mixes (Peach Tea, Lemon Tea, Raspberry Tea, and Mixed Berry Tea) and delicious (not iced tea) drink mixes (Cherry, Peach-Mango, Strawberry-Banana, and Watermelon).
GLUCODOWN® indirectly competes with a myriad of dietary supplements in tablet and capsule form found in brick-and-mortar retailers and online marketplaces, targeted to our consumer market niche. These dietary supplements include many different plant extracts, such as, for example, cinnamon, bitter melon, fenugreek and others, and some also include many combinations of different plant extracts. The dietary supplements we indirectly compete with further include many vitamins and minerals, such as B12 or chromium, and also include many combinations of these vitamins and minerals (and plant extracts). The dietary supplements we indirectly compete with are usually not themselves branded but can be marketed by large and well-established vitamin manufacturers with established company brand awareness, who have greater financial, staff and distribution resources, compared to our Company. Nevertheless, we believe that as our GLUCODOWN® brand continues to steadily gain consumer recognition, we will effectively compete against all such dietary supplements.
Although GLUCODOWN® is infused with dietary fiber, we believe it to be a deliciously flavored beverage, which does not directly, or indirectly, compete with dietary fiber supplements. Most dietary fiber supplements are tasteless or alternatively, pleasant tasting, but not conceived by manufacturers as a beverage meant to be evaluated by consumers also based upon delicious taste. Additionally, a number of dietary fiber supplements utilize “insoluble” dietary fiber, which does not possess the properties of “soluble” fiber that inhibit the metabolism of dietary sugars into serum glucose (i.e., maintain healthy blood sugar).
We expect FIBER UP® will face intense competition when and if we are able to launch this brand. Consumer’s preference for healthier soft drinks is a recognized industry trend. It is apparent that most, if not all leading beverage companies’ market healthier soft drinks, including many with established brand recognition and extensive distribution success. Many small beverage companies also market healthier soft drinks, each with varying degrees of brand recognition and distribution success. Some small beverage companies have even launched soft drinks infused with dietary fiber. We believe these brands may include Wanu Water, Olipop, Halfday and Gist. We have limited information with which we can assess their formulations (including form of dietary fiber), their marketing and brand recognition, and their distribution success. At present, we cannot determine whether these brands may pose a competitive threat. As a new entrant to the healthier soft drink consumer market, FIBER UP® will face intense competition from all healthier drinks generally, and possibly healthier drinks infused with dietary fiber, if and when it is launched.
Despite this intensely competitive market, we believe that FIBER UP® will be successful because it will have two important competitive advantages when comparing with the many other healthier soft drinks available to consumers today - statements of nutritional support and early-entrant market status in our category segment.
As a consequence of the physiological impacts on the human body of the dietary fiber we plan to infuse in FIBER UP®, we intend to incorporate various statements of nutritional support in our labeling and marketing of FIBER UP®, such as, for example, “supports a healthy heart”. We believe health-conscious consumers will find such statements compelling, particularly in comparison to other healthier beverages. We believe many, if not most, healthier soft-drinks presently marketed to health-conscious consumers, utilize only simple nutritive statements, such as no-sugar, caffeine-free, gluten-free, or low-calorie. We believe our planned statements of nutritional support for FIBER UP® provide important brand differentiation because they are not apparent in the labeling and marketing of other healthier soft drink brands from other beverage companies. We have limited information to assess whether such statements of nutritional support are also present in the labeling and marketing of other healthier soft drinks we believe to be infused with dietary fiber and whether, as a result, these brands may pose a competitive threat. We believe consumers at the age of 45 and older, in particular, will be receptive to our statements of nutritional support. If we obtain the capital to launch FIBER UP®, of which there is no certainty, it is our intention to initially focus our limited marketing resources on 45 and older consumers.
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In the last two decades, leading beverage companies have marketed, or test-marketed, various fiber infused soft drinks in the United States, without apparent commercial success. In contrast, in Asian countries, particularly with older populations such as Japan, fiber infused soft drinks are today marketed by leading beverage companies with apparent commercial success and brand longevity. We believe consumer interest in the United States in the physiological benefits of soluble fiber is nascent, for reasons of an aging population and increasing health consciousness but, is still not yet at scale for brand investment by leading beverage companies. The current absence of leading beverage companies manufacturing and distributing soluble fiber infused soft drinks in North America provides an early-entrant market opportunity for our Company. If we are successful, we believe we will be among the first beverage companies in North America to launch soluble fiber infused, healthier soft drinks. As an early-entrant in this category segment, we may potentially gain brand recognition and meaningful distribution without having to face direct competition from the leading beverage companies.
Intellectual Property
Our intellectual property consists of trade secrets, registered trademarks and a patent pending.
Our trade secrets consist of product formulas, composition and methods, research and development, and unpatentable know-how, all of which we seek to protect, in part, by confidentiality agreements. However, it is possible that parties may breach our confidentiality agreements, and we may not have adequate remedies for any breach. It is also possible that our trade secrets will otherwise become known or be independently developed by competitors. There can be no assurance that third parties will not assert infringement or other claims against us with respect to any existing or future products, or that licenses would be available if our formulas were successfully challenged by a third party. Litigation to protect our intellectual property or to determine the validity of any third-party claims could result in significant expense to us, whether or not we are successful in such litigation.
Our registered trademarks, GLUCODOWN® and FIBER UP®, are recorded on the Principal Register following our applications to the United States Patent and Trademark Office ("USPTO"). The Principal Register provides protection only for very distinctive marks or marks that have acquired secondary meaning. Most importantly, the Principal Register is only accepted by Amazon Brand Registry as an authorized trademark. Amazon Brand Registry provides enhanced protections for removing third-party sellers and other benefits such as enhanced listing features which gives us control of our product images at Amazon. Our trademarks can potentially exist in perpetuity if we file renewal documents including Section 8 and Section 9 Affidavits with USPTO. Section 9 Affidavits are generally filed in the 9th or 10th year of trademark registration, to provide a further 10 years of trademark registration.
Our patent pending is "Compositions and Methods for Metabolic Health". Our patent pending relates to a composition of soluble fiber (resistant dextrin), corosolic acid extracted from lagerstroemia speciosa (the banaba plant) and chromium picolinate. The purpose of the composition is maintenance of metabolic health with nutrition. Metabolic health means maintaining healthy weight and/or waistline, normal blood pressure, normal triglyceride levels, normal HDL (good) cholesterol and normal blood sugar levels, both fasting and after meals, without use of medication. We utilize our composition in the formulation of GLUCODOWN® and believe a patent may provide a measure of protection for this product, if granted.
We filed a provisional patent application with the USPTO on December 23, 2021. A provisional patent application provides the means to establish an early effective filing date, in a later filed nonprovisional patent application (35 U.S.C. §111(a)). It provides for the term "Patent Pending" to be applied in connection with the description of the invention. A provisional application for a patent has a pendency lasting 12 months from the date the provisional application is filed. By filing our provisional application first, and then filing our nonprovisional application (with reference to our provisional patent application) within the pendency period, our twenty-year patent term endpoint for our non-provisional (utility) patent (if granted) effectively can be extended by as much as 12 months.
We filed an "international" (PCT) patent application on December 21, 2022, which claims the benefit of priority under Article 4 of the Paris Convention to our provisional application filed with the USPTO on December 23, 2021. The deadline for electing national/regional stage entry of the PCT application in most jurisdictions occurs at 30 months from (i.e., on June 23, 2024), 31 months (i.e., on July 23, 2024), or 32 months (i.e., on August 23, 2024), from the earliest effective priority application filing date. If a corresponding patent is eventually granted in the U.S. or other major jurisdictions, the projected expiry date will be December 21, 2042. Extension of patent term due to prosecution and/or regulatory delays may be available in some jurisdictions.
Patent applications we file may not result in patents being issued. Although our 2021 worldwide patent search undertaken by our patent attorney concluded that our composition has not previously been disclosed, objections of examining attorneys for such compositions are among the most difficult to overcome. Patents we file may not provide us with adequate proprietary protection or advantages against competitors with similar or competing products. Also, because of potential conflicts with the proprietary rights of others, we may in the future have to prove that we are not infringing the patent rights of others or be required to obtain a license to the patent. We do not know whether such a license would be available on commercially reasonable terms, or at all.
While we have no knowledge that we are infringing the proprietary rights of any third party, there can be no assurance that such claims will not be asserted in the future with respect to our product formulas or future products. Any such assertion by a third party could require us to pay royalties, to participate in costly litigation or to refrain from selling an alleged infringing product.
Trademarks
We have two registered trademarks in the United States:
“GLUCODOWN” registered USPTO trademark filed November 6, 2017.
“FIBER UP” registered USPTO trademark, filed September 10, 2020.
Patent Pending
We have one patent pending in the United States:
“Compositions and Methods for Metabolic Health” filed on December 23, 2021.
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Government Regulation
The formulating, manufacturing, packaging & labeling, distributing, marketing, and advertising of our nutritional beverage products are subject to government regulation, principally by the Food and Drug Administration (hereinafter the "FDA"). We are classified as an own-label distributor because we contract with other firms to manufacture our products which we distribute under our trademarks. However, as an own-label distributor, we retain ultimate responsibility for the products we distribute into interstate commerce. We are required to be compliant with pertinent FDA regulations and industry guidance, deriving from TITLE 21--FOOD AND DRUGS, CHAPTER I--FOOD AND DRUG ADMINISTRATION, DEPARTMENT OF HEALTH AND HUMAN SERVICES, SUBCHAPTER B - FOOD FOR HUMAN CONSUMPTION.
We consider our soluble fiber infused nutritional beverages to be conventional foods. Section 201(f) of the Food Drug & Cosmetics Act (FD&C Act) (21 U.S.C. 321(f)) defines a food as “(1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.” The term “conventional” to modify “food” is found throughout the FD&C Act. For example, under Section 201(ff)(2)(B) of the FD&C Act (21 U.S.C. 321(ff)(2)(B)), the term “dietary supplement” means a product that, among other requirements, “is not represented for use as a conventional food or as a sole item of a meal or the diet.”
Our statements of nutritional support for GLUCODOWN® and FIBER UP® fall into two of the three categories of permitted claims of nutritional support defined in FDA regulations and industry guidance:
1) Nutrient Content claims. Nutrient Content claims are permitted in accordance with TITLE 21--FOOD AND DRUGS CHAPTER I--FOOD AND DRUG ADMINISTRATION DEPARTMENT OF HEALTH AND HUMAN SERVICES SUBCHAPTER B - FOOD FOR HUMAN CONSUMPTION PART 101 -- FOOD LABELING, Subpart D - Specific Requirements for Nutrient Content Claims; Sec. 101.54 Nutrient content claims for "good source," "high," "more," and "high potency." An example of such a Nutrient Content claim is “good source of fiber”.
2) Structure/Function claims. FDA published a small entity compliance guide (SECG) for a final rule published in the Federal Register of January 6, 2000 (65 FR 1000), entitled “Regulations on Statements Made for Dietary Supplements Concerning the Effect on the Structure or Function of the Body.” This SECG is intended to set forth the requirements of that final rule in plain language and to help small businesses understand the regulation. “Structure/function claims may describe the role of a nutrient or dietary ingredient intended to affect the normal structure or function of the human body, for example, "calcium builds strong bones." In addition, they may characterize the means by which a nutrient or dietary ingredient acts to maintain such structure or function, for example, "fiber maintains bowel regularity," or "antioxidants maintain cell integrity." General well-being claims describe general well-being from consumption of a nutrient or dietary ingredient. Nutrient deficiency disease claims describe a benefit related to a nutrient deficiency disease (such as vitamin C and scurvy), but such claims are allowed only if they also say how widespread the disease is in the United States. These three types of claims are not pre-approved by FDA (65 FR 1000), but the manufacturer must have substantiation that the claim is truthful and not misleading…” (Source: Structure/Function Claims and Related Dietary Supplement Claims. Website: fda.gov/food/food-labeling-nutrition/label-claims-conventional-foods-and-dietary-supplements. Accessed July 8, 2022).
FDA does not require conventional food distributors or manufacturers to notify FDA about their Nutrient Content claims or Structure/Function claims, and disclaimers are not required for such claims on conventional food labels. Nevertheless, we voluntarily include the disclaimer “These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease.” to better inform consumers. FDA states that nutrient content claims and structure/function claims for conventional food, are not required to be “preapproved by FDA, but the manufacturer must have substantiation that the claim is truthful and not misleading.” (Source: Label claims for conventional foods and dietary supplements. Website: fda.gov/food/food-labeling-nutrition/label-claims-conventional-foods-and-dietary-supplements. Accessed July 8, 2022.) We maintain a compilation of nutritional investigations provided by our ingredient supplier, Archer Daniels Midland/Matsutani, relating to how their dietary fiber impacts the structure or function of the human body. This compilation supports our efforts in substantiating the truthfulness of our claims, consistent with FDA guidance.
Additionally, our efforts in substantiating the truthfulness of our structure/function claims are supported by the determination by FDA, that our supplier’s ingredient can be labeled “dietary fiber”. The Federal Register of May 27, 2016 (81 FR 33742), includes a final rule amending Nutrition Facts and Supplement Facts Labels regulations (hereafter referred to as “the final rule”). The final rule, among other things, defines dietary fiber as “non-digestible soluble and insoluble carbohydrates…determined by FDA to have physiological effects that are beneficial to human health” (21 CFR 101.9(c)(6)(i)). The various impacts of dietary fiber on human physiology studied by FDA in making this determination, include dietary fiber’s impacts on blood glucose and insulin levels (and other impacts, see for example, Review of the Scientific Evidence on the Physiological Effects of Certain Non-Digestible Carbohydrates, June 2018, Food and Drug Administration, https://www.fda.gov/files/food/published/Review-of-the-Scientific-Evidence-on-the-Physiological-Effects-of-Certain-Non-Digestible-Carbohydrates-PDF.pdf). Accordingly, enriching our beverages with dietary fiber, for which various physiological impacts are determined to be scientific fact by FDA, supports our belief that our beverages are compliant with FDA regulations pertaining to truthfulness in labeling. We also believe that the amount of dietary fiber in our beverage serving sizes, which falls within the range considered beneficial in several of the nutritional investigations provided to us by our ingredient manufacturer, also supports our truthfulness in labeling.
Section 402 of the FD&C Act includes many reasons a food may be adulterated including: If the food bears or contains any poisonous or deleterious substance which may render it injurious to health; consists in whole or in part of any filthy, putrid, or decomposed substance, or is otherwise unfit for food; or has been prepared, packed, or held under insanitary conditions whereby it may be rendered injurious to health. Section 403 of the FD&C Act includes many reasons a food may be misbranded including: If the label, brand, tag or notice under which it is sold is false or misleading in any particular as to the kind, grade or quality or composition; if it is sold as the product of one manufacturer when in reality it is the product of another manufacturer; if on the label, brand, tag or notice under which it is sold there is any false statement concerning the sanitary conditions under which it is manufactured. Failure to comply with these statutes, which are material to our business, can result in various levels of regulatory actions being imposed, including but not limited to, action letters, product recalls and injunctions. Such actions, if they took place, could have a deleterious impact on our business.
We retain ultimate responsibility for the products we distribute into interstate commerce, and we are subject to periodic, unannounced, on premise, inspections by FDA officers. Our most recent such inspection was completed during the 2021 fiscal year. Public release of such inspection reports is managed by FDA, but we believe the uneventful completion of our inspection is indicative of our continuous efforts to be aware of, and comply with, pertinent FDA regulations and industry guidance. Since the inception of our current business, we have retained an attorney, Marc Sanchez, who is an adjunct professor at a university and published expert in food and beverage law, to assist us with our FDA (and FTC) compliance. Our attorney routinely reviews our product labeling and marketing materials, including television advertising scripts, to maintain and ensure compliance with pertinent FDA regulations and industry guidance. Additionally, in 2020 and 2021, we retained the services of a consultant specializing in FDA record-keeping, to ensure our compliance, as an own-label distributor, with pertinent FDA record-keeping requirements.
In addition to the FDA, the Federal Trade Commission (hereinafter the "FTC") has further jurisdiction to regulate the labeling, promotion, and advertising of conventional foods. The FTC is authorized to use a variety of processes and remedies for enforcement, both administratively and judicially, including compulsory process, cease and desist orders, and injunctions. FTC enforcement can result in orders requiring, among other things, limits on advertising, corrective advertising, consumer redress, divestiture of assets, rescission of contracts and such other relief as may be deemed necessary. State and local authorities can also regulate advertising and labeling for conventional foods. There can be no assurance that these federal, state, and local authorities will not commence regulatory actions that could restrict the permissible scope of our product claims. Since the inception of our current business, we have not had any contact with FTC, state or local authorities.
Employees
We currently have no employees. All corporate and operations functions of the Company are carried out by our CEO/CFO and by contractors and consultants under the direction and supervision of our CEO/CFO.
Facilities
We hold no real property or leases on property. We utilize our third-party tolling and contract manufacturing and logistics partner’s facilities in Arkansas and Minnesota for purposes of warehousing our raw materials and finished goods. Our principal executive office is located at 609 SW 8th Street, Suite 600, Bentonville AR, 72712, tel. 479-802-3827, for which we have an annual executive office services agreement and utilize for purposes of in-person meetings (prior to COVID-19 pandemic) and maintaining a physical presence for our FDA facility registration and periodic on-premises inspection of records by FDA officers.
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Legal Proceedings
From time to time, we may become involved in various lawsuits and legal proceedings which arise in the ordinary course of business. However, litigation is subject to inherent uncertainties, and an adverse result in these or other matters may arise from time to time that may harm our business. We are not aware of any such legal proceedings or claims against us.
Corporate History
We were incorporated under the laws of the State of Nevada as Bio-Solutions Corp. on March 27, 2007. From inception, through the third quarter of 2014, we were engaged in various businesses which were unrelated to our current business and corporate officers. On November 19, 2014, we changed our name to Glucose Health, Inc., and our business to that of an own-label distributor of nutritional beverages, which is our business today. Following the name change and the changes in the focus of our business, on April 16, 2018, we filed Form 15 to terminate our registered class of securities and reporting requirements under the Exchange Act.
Corporate Information
Our principal executive office is located at 609 SW 8th Street, Suite 600, Bentonville, AR 72712, and our telephone number is 479-802-3827. Our corporate website is www.glucosehealthinc.com, and our product website is www.glucodown.com. Information available on this website is not incorporated by reference in and is not deemed a part of this Prospectus or the registration statement of which this Prospectus is a part.
COVID-19 Pandemic
Starting in late 2019, a novel strain of the coronavirus, or COVID-19, began to rapidly spread around the world and every state in the United States. At this time, there continues to be significant volatility and uncertainty relating to the full extent to which the COVID-19 pandemic and the various responses to it will impact our business, operations, and financial results.
Most states and cities have at various times instituted quarantines, restrictions on travel, “stay at home” rules, social distancing measures and restrictions on the types of businesses that could continue to operate, as well as guidance in response to the pandemic and the need to contain it. As a result, the COVID-19 pandemic may affect the operations of the FDA and other health authorities, including such authorities in Europe, which could result in delays of reviews and approvals. While there have been no specific notices of delay from federal or foreign government authorities, potential interruptions, delays, or changes to the operations of the FDA, or of any foreign authority with which we might interact, might impact the approval of any applications we plan and will need to file in the future.
In addition, we are dependent upon certain contract manufacturers and suppliers and their ability to reliably and efficiently fulfill our orders is critical to our business success. The COVID-19 pandemic has impacted and may continue to impact certain of our manufacturers and suppliers. As a result, we may face delays or difficulty sourcing certain products, which could negatively affect our business and financial results.
The global deterioration in economic conditions may have an adverse impact on discretionary consumer spending in markets that we plan to market our products, which could also impact our business and demand for our products. For instance, consumer spending may be negatively impacted by general macroeconomic conditions, including a rise in unemployment, and decreased consumer confidence resulting from the pandemic. Changing consumer behaviors because of the pandemic may therefore have a material impact on our expected future revenue.
The spread of COVID-19 has also adversely impacted global economic activity and has contributed to significant volatility and negative pressure in financial markets. The pandemic has resulted, and may continue to result, in a significant disruption of global financial markets, which may reduce our ability to access capital in the future, which could negatively affect our liquidity.
If the COVID-19 pandemic does not continue to slow and the spread of COVID-19 is not contained, our business operations, including those of contract manufacturers, could be further delayed or interrupted. We expect that government and health authorities may announce new or extend existing restrictions, which could require us or our subcontractors to make further adjustments to our operations to comply with any such restrictions. We or our subcontractors may also experience limitations in employee resources. In addition, our operations could be disrupted if any of our employees or employees of our subcontractors were to be tested positive for having COVID-19, which could require quarantine of some or all such employees or closure of our or their facilities for disinfection. The duration of any business disruption cannot be reasonably estimated at this time but may materially affect our ability to operate our business and result in additional costs.
The extent to which the COVID-19 pandemic may impact our results will depend on future developments, which are highly uncertain and cannot be predicted as of the date of this Prospectus, including the effectiveness of vaccines and other treatments for COVID-19, the emergence of new strains of the virus and other new information that may emerge concerning the severity of the pandemic and steps taken to contain the pandemic or treat its impact. Nevertheless, the pandemic and the current financial, economic, and capital markets environment, and future developments in the global supply chain and other areas present material uncertainty and risk with respect to our performance, financial condition, results of operations and cash flows.
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We have not developed a COVID-19 contingency plan to address the potential challenges and risks presented by this pandemic. If we were to prepare such a plan, there could be no assurance that it would be effective in mitigating the effects of the COVID-19 virus.
For a further discussion of the impact of the COVID-19 pandemic on our business, please see “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Risk Factors”.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company” as defined in Rule 10(f)(1) of Regulation S-K. Smaller reporting companies may take advantage of certain reduced disclosure obligations, including, among other things, providing only two years of audited financial statements. We will remain a smaller reporting company until the last day of the fiscal year in which (1) the market value of our shares held by non-affiliates equals or exceeds $250 million as of the prior June 30th, or (2) our annual revenues equaled or exceeded $100 million during such completed fiscal year and the market value of our shares held by non-affiliates equals or exceeds $700 million as of the prior June 30th. Such reduced disclosure and corporate governance obligations may make it more challenging for investors to analyze our results of operations and financial prospects.
We are a smaller reporting company within the meaning of the Securities Act, and if we take advantage of certain exemptions from disclosure requirements available to smaller reporting companies, this could make our securities less attractive to investors and may make it more difficult to compare our performance with other public companies” and “As a “smaller reporting company,” we may choose to exempt our company from certain corporate governance requirements that could have an adverse effect on our public shareholders.”
For further discussion of the implications of Smaller Reporting Company status, please see “Risk Factors”.
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| Table of Contents |
Implications of Being an Emerging Growth Company
We are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act. We will remain an emerging growth company until the earlier of (1) December 31, 2024 (2) the last day of the fiscal year in which we have total annual gross revenue of at least $1.07 billion, (3) the last day of the fiscal year in which we are deemed to be a “large accelerated filer” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, or the Exchange Act, which would occur on the date on which we have issued more than $1.0 billion in non-convertible debt securities during the prior three-year period. An emerging growth company may take advantage of specified reduced reporting requirements and is relieved of certain other significant requirements that are otherwise generally applicable to public companies. As an emerging growth company, we may:
| · | present only two years of audited financial statements, plus unaudited condensed financial statements for any interim period, and related management’s discussion and analysis of financial condition and results of operations in this Prospectus; |
|
|
|
| · | avail ourselves of the exemption from the requirement to obtain an attestation and report from our auditors on the assessment of our internal control over financial reporting pursuant to the Sarbanes-Oxley Act of 2002, or Sarbanes-Oxley; |
|
|
|
| · | provide reduced disclosure about our executive compensation arrangements; and |
|
|
|
| · | not require stockholder non-binding advisory votes on executive compensation or golden parachute arrangements. |
In addition, under the JOBS Act, an emerging growth company can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have irrevocably elected not to avail ourselves of this extended transition period, and, as a result we will adopt new or revised accounting standards on relevant dates on which adoption of such standards is required for other public companies.
For further discussion of the implications of Emerging Company status, please see “Risk Factors”.
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MANAGEMENT
Directors and Executive Officers
The following table sets forth information about our executive officers and director. We intend to appoint three independent directors immediately upon the effectiveness of the registration statement of which this Prospectus forms a part.
Name |
| Age |
| Position(s) |
Executive Officers |
|
|
|
|
Murray Fleming |
| 59 |
| Chief Executive Officer (Principal Executive Officer), Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)* |
Sarah Berman |
| 37 |
| Chief Accounting Officer (Principal Financial Officer and Principal Accounting Officer) Nominee** |
Directors |
|
|
|
|
Murray Fleming |
| 59 |
| Director* |
Robert Sipper |
| 68 |
| Independent Director Nominee*** |
William Sipper |
| 55 |
| Independent Director Nominee *** |
Heidi Skolnik |
| 61 |
| Independent Director Nominee*** |
*Murray Fleming provides services as CEO, CFO and as a director to the Company, through BTB Management Company, a company owned by Mr. Fleming, pursuant to a consulting agreement with the Company. See “Executive Compensation-Employment/Consulting Contracts, Termination of Employment, Change-in-Control Arrangements.”
**Sarah Berman has accepted nomination as Principal Financial Officer and Principal Accounting Officer of the Company and will become its Chief Accounting Officer immediately upon the effectiveness of the registration statement of which this Prospectus forms a part.
***Robert Sipper, William Sipper, and Heidi Skolnik have accepted nomination to the Board and will become members of our Board of Directors immediately upon the effectiveness of the registration statement of which this Prospectus forms a part.
Executive Officers, Executive Officer Nominee, Director and Director Nominees
Murray Fleming, age 59, was appointed Director and Chief Executive Officer of Glucose Health, Inc. on October 1, 2014. Mr. Fleming was appointed Chief Financial Officer and Chairman on February 10, 2015. Mr. Fleming conceived soluble fiber infused iced tea and drink mixes and the brands GLUCODOWN® and FIBER UP®. Mr. Fleming also co-developed the ingredient composition which underpins GLUCODOWN®’s nutritional efficacy - a composition not previously invented based upon a worldwide patent search commissioned by Glucose Health Inc. in 2021. From 2014 through 2021, Mr. Fleming has been a significant source of growth capital for Glucose Health, Inc.
Sarah Berman, age 37, has accepted nomination as Principal Financial Officer and Principal Accounting Officer of the Company, and will be its Chief Accounting Officer immediately upon the effectiveness of the registration statement of which this Prospectus forms a part. Sarah Berman earned her bachelor's degree in Accounting from Harding University in 2007, graduating magna cum laude. In 2008, Ms. Berman joined Turner, Stone, & Co. LLP and in 2010, received her CPA designation from the Texas State Board of Public Accountancy. In 2019, Ms. Berman established her own consulting firm and began assisting Glucose Health, Inc. with its financial statements and later audit preparation.
Robert Sipper, age 68, will be a member of our Board of Directors immediately upon the effectiveness of the registration statement of which this Prospectus forms a part. Mr. Sipper is the President of Cascadia Managing Brands, LLC (“CMB”) a brand management firm he co-founded with William Sipper, on March 17, 2011 (to present). Mr. Sipper and CMB have advised established and emerging beverage brands, including Evian, Hint, Liquid Death, Zico, and C2O, in the implementation of sales, marketing, operations and distribution strategies. Prior to founding CMB, Mr. Sipper was Senior Vice President and COO of Mootch & Muck, a New York based beverage and specialty food distributor and was a former practicing business law attorney.
The Company believes that Robert Sipper, as a senior executive leader with significant experience in branding, marketing and operations in the beverage industry, particularly in the space for emerging beverage brands will contribute greatly with helping to establish brand identity and help the Company grow.
William Sipper, age 55, will be a member of our Board of Directors immediately upon the effectiveness of the registration statement of which this Prospectus forms a part. Mr. Sipper is the Managing Partner of Cascadia Managing Brands, LLC (“CMB”), a brand management firm he co-founded with Robert Sipper, on March 17, 2011 (to present). Mr. Sipper has been a featured speaker at Columbia University School of Business, The Bottled Water Congress (Torino, Italy), and at virtually every major US food and beverage industry trade show, including Natural Products Expo, BevNet and Nosh Live. He has been featured on Food Network’s “Unwrapped” and in the PBS documentary “The Water Wars.” Prior to founding CMB, Mr. Sipper held senior positions at beverage companies including Nantucket Nectars, sold to Ocean Spray and Naked Juice, sold to PepsiCo.
The Company believes that William Sipper, as a senior executive leader with significant experience in brand management and operations in the food and beverage industry will assist the Company’s strategic planning and operations.
Heidi Skolnik, age 61, will be a member of our Board of Directors immediately upon the effectiveness of the registration statement of which this Prospectus forms a part. Ms. Skolnik is a sports nutritionist and exercise physiologist and co-author of the NYTimes Best Selling The Whole Body Reset; Your weight loss plan for a flat belly, optimum health, and a body you’ll love. (Simon & Schuster and AARP). Considered a thought leader in her field, has been part of The Women’s Sports Medicine Center at Hospital for Special Surgery for over 20 years, Ms. Skolnik brought the sports nutrition model to artistic athletes and oversees the nutrition program at The Juilliard School and the School of American Ballet. Prior to that, Ms. Skolnik served as the team nutritionist with the NY Knicks for 7 years, the NY Giants for 18 years and the NY Mets for 15 years. Ms. Skolnik sat on the Board of The National Osteoporosis Foundation for ten years and currently sits on the Medical Advisory Committee of The National Menopause Foundation. Ms. Skolnik has earned two Master s degrees, one in Exercise Science, the other in Human Nutrition. As a sought-after presenter, Ms. Skolnik presents internationally and is an expert resource for both print, on-line and TV media. Ms. Skolnik is a Fellow with the American College of Sports Medicine(ACSM).
The Company believes that Heidi Skolnik, as a senior executive leader with comprehensive knowledge of nutrition and the health industry, will contribute greatly with helping to establish brand identity and product development.
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| Table of Contents |
Family Relationships
Robert Sipper and William Sipper, director nominees to our Board, are brothers. There are no other family relationships between or among any of our executive officers or other directors.
Corporate Governance Overview
Director Independence
Nasdaq listing standards require that a majority of our Board of Directors be independent directors. We have determined that Robert Sipper, William Sipper, and Heidi Skolnik, nominees to our Board of Directors, will qualify as “independent directors” as defined by Nasdaq listing standards. Our independent directors will have regularly scheduled meetings at which only independent directors are present.
Committees of the Board of Directors
Audit Committee
We plan to designate an Audit Committee consisting solely of three independent directors who also satisfy the requirements of SEC Rule 10A-3 and who can read and understand fundamental financial statements. The Audit Committee will be responsible for, among other things, the appointment, compensation, removal, and oversight of the work of the Company’s independent registered public accounting firm, overseeing the accounting and financial reporting process of the Company, and reviewing related person transactions.
The Audit Committee will be comprised of Robert Sipper, William Sipper, and Heidi Skolnik, upon their appointment to our Board of Directors. Our Board of Directors has determined that Robert Sipper and William Sipper are independent directors and financially literate. Our Board of Directors has additionally determined that Robert Sipper qualifies as an "audit committee financial expert" as defined in applicable SEC rules. Robert Sipper will serve as the Chairman of the committee. The Audit Committee will operate under a written charter adopted by the Board of Directors, which will be posted at our website at www.glucosehealthinc.com.
Compensation Committee
We plan to designate a Compensation Committee. Under Nasdaq listing standards, we are required, as a smaller reporting company, to have two or more members of a compensation committee, and all members must be independent directors. The Compensation Committee will be responsible for, among other things, (a) reviewing all compensation arrangements for the executive officers of the Company and (b) administering the Company’s stock option plans.
The Compensation Committee will be comprised of Robert Sipper, William Sipper, and Heidi Skolnik, upon their appointment to our Board of Directors. Our Board of Directors has determined that Robert Sipper, William Sipper, and Heidi Skolnik are independent under Nasdaq listing standards. Robert Sipper will serve as Chairman of the committee. The Compensation Committee will operate under a written charter adopted by the Board of directors, which will be posted at our website at www.glucosehealthinc.com.
Nominating and Corporate Governance Committee
The members of our Nominating and Corporate Governance Committee are Robert Sipper, William Sipper, and Heidi Skolnik, upon their appointment to our Board of Directors.
The purpose of our Nominating and Corporate Governance Committee is to assist our Board of Directors in discharging its responsibilities relating to (1) identifying individuals qualified to become new board members, consistent with criteria approved by our Board of Directors, (2) reviewing the qualifications of incumbent directors to determine whether to recommend them for reelection and selecting, or recommending that our Board of Directors select, the director nominees for the next annual meeting of stockholders, (3) identifying board members qualified to fill vacancies on any board committee and recommending that our Board of Directors appoint the identified member or members to the applicable committee, (4) reviewing and recommending to our Board of Directors corporate governance guidelines applicable to us, (5) overseeing the evaluation of our Board of Directors and management and (6) handling such other matters that are specifically delegated to the committee by our Board of Directors from time to time.
The Nominating and Corporate Governance Committee will operate under a written charter adopted by the Board of directors, which will be posted at our website at www.glucosehealthinc.com.
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| Table of Contents |
Code of Business Conduct and Ethics
We plan to adopt a code of business conduct and ethics that applies to our Company’s directors, officers, and future employees, which will be posted at our website at www.glucosehealthinc.com.
Involvement in Certain Legal Proceedings
Our director, nominee directors and executive officers have not been involved in any of the following events during the past ten years, except as noted:
1. any bankruptcy petition filed by or against such person or any business of which such person was a general partner or executive officer either at the time of the bankruptcy or within two years prior to that time;
2. except for our director nominee, William Sipper, who agreed to an Alford plea to misdemeanor sexual abuse in the District of Columbia in 2013, relating to conduct at an industry trade show, any conviction in a criminal proceeding or being subject to a pending criminal proceeding (excluding traffic violations and other minor offenses);
3. being subject to any order, judgment, or decree, not subsequently reversed, suspended, or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him from or otherwise limiting his involvement in any type of business, securities, or banking activities or to be associated with any person practicing in banking or securities activities;
4. being found by a court of competent jurisdiction in a civil action, the Securities and Exchange Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended, or vacated;
5. being subject of, or a party to, any federal or state judicial or administrative order, judgment decree, or finding, not subsequently reversed, suspended, or vacated, relating to an alleged violation of any federal or state securities or commodities law or regulation, any law or regulation respecting financial institutions or insurance companies, or any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or
6. being subject of or party to any sanction or order, not subsequently reversed, suspended, or vacated, of any self-regulatory organization, any registered entity or any equivalent exchange, association, entity, or organization that has disciplinary authority over its members or persons associated with a member.
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EXECUTIVE COMPENSATION
Summary Compensation Table
The following table summarizes information concerning the compensation awarded to, earned by, or paid to, our Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer, Principal Accounting Officer) during fiscal years 2022 and 2021.
Name and Principal Position |
| Year |
| Salary ($) |
|
| Bonus ($) |
|
| Stock Awards ($) |
|
| Options Awards ($) |
|
| All Other Compensation ($) |
|
| Total ($) |
| ||||||
Murray Fleming, |
| 2022 |
|
| 84,000 |
|
| 0 |
|
|
| 0 |
|
|
| 0 |
|
|
| 0 |
|
|
| 84,000 |
| |
CEO/CFO1 |
| 2021 |
|
| 24,000 |
|
|
| 0 |
|
|
| 0 |
|
|
| 0 |
|
|
| 0 |
|
|
| 24,000 |
|
| (1) | Murray Fleming provides services as CEO and as a director to the Company, through BTB Management Company, a company owned by Mr. Fleming, pursuant to a consulting agreement with the Company. |
Outstanding Equity Awards at Fiscal Year-End
The Company had no outstanding equity awards at the end of fiscal year 2021.
Employment/Consulting Contracts, Termination of Employment, Change-in-Control Arrangements
Murray Fleming
On July 1, 2021, the Company entered into a consulting agreement with BTB Management Company (“BTB”), a company owned by Murray Fleming, our CEO, CFO and director. The agreement provides for quarterly payments of $12,000 for a period of 12 months and thereafter renews quarterly until terminated by either party.
Subsequently, on April 1, 2022, we entered into a new consulting agreement with BTB (which supersedes and replaces the prior agreement dated July 1, 2021), pursuant to which BTB agreed that its principal, Mr. Fleming, shall provide services to the Company, including serving as CEO, CFO and as a director, with no fixed term. In consideration of Mr. Fleming’s services to the Company, we agreed to pay $8,000 per month, paid quarterly, to BTB, and for bonus compensation of up to $100,000, to be paid upon achievement of various corporate objectives.
The Company has not entered into employment agreements or other compensation agreements with its executive officers and there are no potential payments payable to its executive officers upon termination of employment (or contract) in connection with a change in control.
Sarah Berman
Sarah Berman has accepted nomination as Principal Financial Officer and Principal Accounting Officer of the Company and will become its Chief Accounting Officer upon the effectiveness of the registration statement of which this Prospectus forms a part.The Company and Ms. Berman intend to enter into a consulting agreement with a company owned by Ms. Berman before the closing of this offering.
Director Compensation
On April 1, 2019, we issued a warrant to purchase 600,000 shares of Common Stock at an exercise price of $0.10 per share to Gerry David, upon his appointment as a Company director. We recorded an expense of $94,260 based upon the $0.16 quoted price of our Common Stock. The warrant was cancelled on March 22, 2022.
On July 15, 2019, we issued a warrant to purchase 600,000 shares of Common Stock at an exercise price of $0.10 per share to Hal Kravitz, upon his appointment as a Company director. We recorded an expense of $96,720 based upon the $0.16 quoted price of our Common Stock. The warrant was cancelled on March 22, 2022.
On June 10, 2020, we issued a warrant to purchase 600,000 shares of Common Stock at an exercise price of $0.10 per share to John Fieldly, upon his appointment as a Company director. We recorded an expense of $440,694 based upon the $0.735 quoted price of our Common Stock. The warrant was cancelled on March 22, 2022.
On February 1, 2022, we entered into a consulting agreement with Cascadia Managing Brands, LLC, a company owned by our director nominees, Robert Sipper, and William Sipper. On August 1, 2022, the Company and Cascadia Managing Brands, LLC mutually agreed to terminate their consulting agreement. On the same day, the Company entered into director’s agreements with William Sipper and Robert Sipper. Pursuant to the director’s agreements, each of William Sipper and Robert Sipper agreed to serve as an independent director of the Company immediately upon the effectiveness of the registration statement we filed on Form S-1. In consideration, we agreed to compensate each of William Sipper and Robert Sipper with a director fee of $30,000 per annum and the issuance of 15,000 shares of the Company’s Common Stock, which will vest 12 months after the effective date of the agreements.
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| Table of Contents |
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
In addition to the compensation arrangements, including employment, termination of employment, and change in control arrangements, and indemnification arrangements, discussed, when required, in the sections titled “Management” and “Executive Compensation,” the following is a description of each transaction for the prior two-year period and each currently proposed transaction in which:
· | we have been or are to be a participant; |
|
|
· | the amount involved exceeded or exceeds $120,000; and |
|
|
· | any of our directors, executive officers, or holders of more than 5% of our capital stock, or any immediate family member of, or person sharing the household with, any of these individuals, had or will have a direct or indirect material interest. |
Notes payable, related party:
During April 2019, the Company consolidated several notes issued to the Company’s CEO/CFO into a single $140,000 note bearing interest at 10% per annum. During the year ended December 31, 2020, the note was repaid in full and retired.
Convertible notes payable, related party:
The Company consolidated 18 separate convertible promissory notes of various principal amounts and fixed conversion prices, all bearing 5% interest per annum, issued to Murray Fleming, the Company’s CEO/CFO, between 2014 and 2016, into a single convertible promissory note of $112,157, bearing 5% interest per annum with a pro-rata fixed conversion price of $0.011, plus $5,939 accrued interest not subject to additional interest. The consolidation was for the purposes of administrative simplification and no inducement nor benefit was given to the Company’s CEO/CFO. During the year ended December 31, 2021, the note was repaid in full by issuing 690,000 shares (Note 3) and $105,950 in cash and retired.
Consulting Agreements, related party:
On July 1, 2021, the Company entered into a consulting agreement with BTB Management Company, a company owned by our CEO/CFO and director, Murray Fleming. The agreement provides for quarterly payments of $12,000 for a period of 12 months and thereafter renews quarterly until terminated by either party.
On April 1, 2022, we entered into a new consulting agreement with BTB Management Company, a company owned by our CEO/CFO and director, Murray Fleming. Pursuant to the consulting agreement, the company agreed that its Principal, Mr. Fleming, shall provide services to the Company including serving as CEO, CFO and as a director, with no fixed term. In consideration of Mr. Fleming’s services to the Company, we agreed to pay $8,000 per month, paid quarterly, to the company, and for bonus compensation of up to $100,000 to be paid, upon achievement of various corporate objectives.
On February 1, 2022, we entered into a consulting agreement with Cascadia Managing Brands, LLC, a company owned by our director nominees, Robert Sipper, and William Sipper. On August 1, 2022, the Company and Cascadia Managing Brands, LLC mutually agreed to terminate the consulting agreement. Also effective on August 1, 2022, the Company entered into director’s agreements with William Sipper and Robert Sipper and each agreed to serve as an independent director of the Company upon the effectiveness of the registration statement we filed on Form S-1. In consideration, we agreed to compensate each of William Sipper and Robert Sipper with a director fee of $30,000 per annum and the issuance of 15,000 shares of the Company’s Common Stock, which will vest 12 months after the effective date of the agreements.
Policy on Future Related-Party Transactions
Following this offering, all future transactions between us and our officers, directors, principal stockholders, and their affiliates will be approved by the audit committee, or a similar committee consisting of entirely independent directors, according to the terms of our Code of Business Conduct and Ethics.
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| Table of Contents |
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information with respect to the beneficially owned holdings of: (1) each person known to us to be the beneficial owner of more than 5% of our Common Stock; (2) our directors or director nominees and executive officers or nominee executive officers; and (3) all directors, director nominees, executive officers and nominee executive officers, as a group.
Applicable percentage ownership before the offering is based upon 1,686,197 shares of Common Stock and 2,626,667 shares of Preferred Stock (convertible to Common Stock), for a total of 4,312,864 shares issued and outstanding, as of the current period (September 30, 2022) and subsequent events thereto.
Applicable percentage ownership after the offering is based upon the sale and issuance of 2,125,000 shares of Common Stock pursuant to the offering, 640,000 shares of Common Stock issuable upon conversion of Series D Preferred Stock and 570,000 shares of Common Stock issuable upon conversion of Series E Preferred Stock, no exercise of the Representative’s over-allotment option to purchase 318,750 shares of Common Stock and no exercise of the Representative’s compensatory warrants.
A person is considered to beneficially own any shares: (i) over which such person, directly or indirectly, exercises sole or shared voting or investment power, or (ii) of which such person has the right to acquire beneficial ownership at any time within 60 days through an exercise of stock options or warrants. To the best of our knowledge, each of the persons named in the table below as beneficially owning the shares set forth therein has sole voting power and sole investment power with respect to such shares, unless otherwise indicated. Unless otherwise specified, the address of each of the persons set forth below is in care of the Company, at 609 SW 8th Street, Suite 600, Bentonville, AR 72712.
Name and Address of Owner |
| Shares of Common Stock Beneficially Owned |
|
| Percent Beneficially Owned Before the Offering |
|
| Percent Beneficially Owned After the Offering |
| |||
|
|
|
|
|
|
|
|
|
| |||
5% Holders |
|
|
|
|
|
|
|
|
| |||
Christopher Jemapete1 |
|
| 858,333 |
|
|
| 19.90 | % |
|
| 13.33 | % |
Edmund Burke2 |
|
| 833,333 |
|
|
| 19.32 | % |
|
| 12.94 | % |
|
|
|
|
|
|
|
|
|
|
|
|
|
Gail Kellogg & Gail V Kellogg Living Trust3 |
|
| 317,000 |
|
|
| 7.35 | % |
|
| 4.92 | % |
Meyer Family Trust4 |
|
| 319,334 |
|
|
| 7.40 | % |
|
| 4.96 | % |
Officers and Directors |
|
|
|
|
|
|
|
|
|
|
|
|
Murray Fleming |
|
| 76,500 |
|
|
| 1.77 | % |
|
| 1.19 | % |
Sarah Berman† |
|
| 0 |
|
|
| 0 | % |
|
| 0 | % |
Robert Sipper* |
|
| 0 |
|
|
| 0 | % |
|
| 0 | % |
William Sipper* |
|
| 0 |
|
|
| 0 | % |
|
| 0 | % |
Heidi Skolnik* |
|
| 0 |
|
|
| 0 | % |
|
| 0 | % |
Hal Kravitz** |
|
| 0 |
|
|
| 0 | % |
|
| 0 | % |
John Fieldly** |
|
| 0 |
|
|
| 0 | % |
|
| 0 | % |
Gerry David*** |
|
| 0 |
|
|
| 0 | % |
|
| 0 | % |
Total of Officers and Directors |
|
| 76,500 |
|
|
| 1.77 | % |
|
| 1.19 | % |
(1) Includes 200,000 shares of Series D Preferred Stock and 300,000 shares of Series E Preferred Stock.
(2) Includes 200,000 shares of Series D Preferred Stock and 300,000 shares of Series E Preferred Stock.
(3) Including (i) 12,000 shares of Common Stock owned by Gail V Kellogg Living Trust; (ii) 200,000 shares of Common Stock issuable upon conversion of Series D Preferred Stock owned by Gail Kellogg; and (iii) 105,000 shares of Common Stock issuable upon conversion of Series E Preferred Stock owned by Gail V Kellogg Living Trust. Gail Kellogg and Brooks Kellogg, in their capacity as trustees of Gail V Kellogg Living Trust, may be deemed to be the beneficial owners and to have investment discretion and voting power over the shares held by Gail V Kellogg Living Trust
(4) Including (i) 89,334 shares of Common Stock; (ii) 140,000 shares of Common Stock issuable upon conversion of Series D Preferred Stock; and (iii) 90,000 shares of Common Stock issuable upon conversion of Series E Preferred Stock. Craig Meyer may be deemed to be the beneficial owner and to have investment discretion and voting power over the shares held by Meyer Family 2000 Trust Dated April 25, 2000.
†nominee Chief Accounting Officer
*nominee director
**resigned March 14, 2022
***resigned March 21, 2022
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| Table of Contents |
SELLING STOCKHOLDERS
This Prospectus covers the possible resale by the Selling Stockholders identified in the table below of up to 1,313,402 shares of our Common Stock. The Selling Stockholder Shares are issuable to the Selling Stockholders upon the conversion of their holdings of Series D Preferred Stock and Series E Preferred Stock, to Common Stock, which will be implemented prior to the consummation of this offering.
The Selling Stockholders may sell some, all or none of their Selling Stockholder Shares. Unless otherwise indicated, the Selling Stockholders have not had any material relationship with us or any of our affiliates within the past three years other than as a security holder.
Unless otherwise indicated in the footnotes below, we believe that: (i) the Selling Stockholders are not a broker-dealer or affiliate of a broker-dealer, and (ii) the Selling Stockholders have not had direct or indirect agreements or understandings with any person to distribute their Selling Stockholder Shares. To the extent the Selling Stockholders identified below are, or are affiliated with, a broker-dealer, it could be deemed, to be an “underwriter” within the meaning of the Securities Act. Information about the Selling Stockholders may change over time.
The following table presents information regarding the Selling Stockholders and the Selling Stockholder Shares that they may offer and sell from time to time under this Prospectus. The table reflects the Selling Stockholders respective holdings as of the date of this filing, unless otherwise noted in the footnotes to the table. Beneficial ownership is determined in accordance with the rules of the SEC, and thus represents voting or investment power with respect to our securities. Under such rules, beneficial ownership includes any shares over which the individual has sole or shared voting power or investment power, as well as any shares that the individual has the right to acquire within 60 days after the date of this table. To our knowledge and subject to applicable community property rules, the persons and entities named in the table have sole voting and sole investment power with respect to all equity interests beneficially owned. The percentage of shares beneficially owned before and after the offering are based upon effectiveness of our planned Common Stock Reverse Split.
Selling Stockholder |
| Shares Beneficially Owned Before this Offering |
|
| Percentage of Outstanding Shares Beneficially Owned Before this Offering |
|
| Shares to be Sold in this Offering |
|
| Shares Beneficially Owned After this Offering |
|
| Percentage of Outstanding Shares Beneficially Owned After this Offering(1) |
| |||||
NWBB Inc. |
|
| 39,735 | (2) |
| * | % |
|
| 39,735 |
|
|
| 0 |
|
|
| 0 | % | |
Marion R Jenkins II |
|
| 19,000 | (3) |
| * | % |
|
| 19,000 |
|
|
| 0 |
|
|
| 0 | % | |
Kimberley Jenkins |
|
| 10,000 | (4) |
| * | % |
|
| 10,000 |
|
|
| 0 |
|
|
| 0 | % | |
Meyer Family Trust |
|
| 319,334 | (5) |
|
| 7.40 | % |
|
| 252,667 |
|
|
| 66,667 |
|
|
| 1.04 | % |
Patrick Sonnier & Claire Sonnier |
|
| 137,500 | (6) |
|
| 3.19 | % |
|
| 137,500 |
|
|
| 0 |
|
|
| 0 | % |
Gail Kellogg |
|
| 200,000 |
|
|
| 4.64 | % |
|
| 200,000 |
|
|
| 0 |
|
|
| 0 | % |
Gail V Kellogg Living Trust |
|
| 117,000 | (7) |
|
| 2.71 | % |
|
| 117,000 |
|
|
| 0 |
|
|
| 0 | % |
Thomas M Gebhardt & Michelle D Gebhardt |
|
| 137,500 | (8) |
|
| 3.19 | % |
|
| 137,500 |
|
|
| 0 |
|
|
| 0 | % |
Brian Burke |
|
| 100,000 | (9) |
|
| 2.32 | % |
|
| 100,000 |
|
|
| 0 |
|
|
| 0 | % |
Avinash Kant |
|
| 150,000 | (10) |
|
| 3.48 | % |
|
| 150,000 |
|
|
| 0 |
|
|
| 0 | % |
Steven C Paul |
|
| 75,000 | (11) |
|
| 1.74 | % |
|
| 75,000 |
|
|
| 0 |
|
|
| 0 | % |
John C Parks & Elizabeth M Parks |
|
| 75,000 | (12) |
|
| 1.74 | % |
|
| 75,000 |
|
|
| 0 |
|
|
| 0 | % |
Total |
|
| 1,380,069 |
|
| % |
|
| 1,313,402 |
|
|
| 66,667 |
|
|
| 1.04 | % | ||
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| Table of Contents |
* | Less than 1% |
(1) Assumes all shares offered by the Selling Stockholders are sold and that the Selling Stockholders buy or sell no additional shares of Common Stock prior to the completion of this Offering. The registration of these shares does not necessarily mean that the Selling Stockholders will sell all or any portion of the shares covered by this Prospectus.
(2) 39,735 shares of Common Stock. Marc Hatch may be deemed to be the beneficial owner of these shares and to have investment discretion and voting power over the shares held by NWBB Inc.
(3) 19,000 shares of Common Stock.
(4) 10,000 shares of Common Stock.
(5) Including (i) 89,334 shares of Common Stock; (ii) 140,000 shares of Common Stock issuable upon conversion of Series D Preferred Stock; and (iii) 90,000 shares of Common Stock issuable upon conversion of Series E Preferred Stock. Craig Meyer may be deemed to be the beneficial owner and to have investment discretion and voting power over the shares held by Meyer Family 2000 Trust Dated April 25, 2000.
(6) Including (i) 100,000 shares of Common Stock issuable upon conversion of Series D Preferred Stock; and (ii) 37,500 shares of Common Stock issuable upon conversion of Series E Preferred Stock.
(7) Including (i) 12,000 shares of Common Stock owned by Gail V Kellogg Living Trust; (ii) 200,000 shares of Common Stock issuable upon conversion of Series D Preferred Stock owned by Gail Kellogg; and (iii) 105,000 shares of Common Stock issuable upon conversion of Series E Preferred Stock owned by Gail V Kellogg Living Trust. Gail Kellogg and Brooks Kellogg, in their capacity as trustees of Gail V Kellogg Living Trust, may be deemed to be the beneficial owners and to have investment discretion and voting power over the shares held by Gail V Kellogg Living Trust.
(8) Including (i) 100,000 shares of Common Stock issuable upon conversion of Series D Preferred Stock; and (ii) 37,500 shares of Common Stock issuable upon conversion of Series E Preferred Stock.
(9) 100,000 shares of Common Stock issuable upon conversion of Series D Preferred Stock.
(10) 150,000 shares of Common Stock issuable upon conversion of Series E Preferred Stock.
(11) 75,000 shares of Common Stock issuable upon conversion of Series E Preferred Stock.
(12) 75,000 shares of Common Stock issuable upon conversion of Series E Preferred Stock.
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Plan of Distribution
We are registering the Selling Stockholder Shares, including Common Stock, and Common Stock issuable upon the conversion of Series D Preferred Stock and Series E Preferred Stock prior to consummation of this offering, to permit the resale of the Selling Stockholder Shares by the Selling Stockholders, from time to time after the date of this Prospectus. We will not receive any of the proceeds from the sale of the Selling Stockholder Shares. We will bear all fees and expenses incident to the registration of the Selling Stockholder Shares in the registration statement of which this Prospectus forms a part. The Selling Stockholder Shares will not be sold through the underwriters in this public offering.
The Selling Stockholders may sell all or a portion of the Selling Stockholder Shares beneficially owned by them and offered hereby from time to time directly or through one or more broker-dealers or agents. If the Selling Stockholder Shares are sold through broker-dealers, the Selling Stockholders will be responsible for commissions or agent’s commissions. The Selling Stockholder Shares may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be affected in transactions, which may involve crosses or block transactions,
| ● | on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; |
|
|
|
| ● | in the over-the-counter market; |
|
|
|
| ● | in transactions otherwise than on these exchanges or systems or in the over-the-counter market; |
|
|
|
| ● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
|
|
|
| ● | block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
|
|
|
| ● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
|
|
|
| ● | an exchange distribution in accordance with the rules of the applicable exchange; |
| ● | privately negotiated transactions; |
|
|
|
| ● | short sales; |
|
|
|
| ● | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; |
|
|
|
| ● | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
|
|
|
| ● | a combination of any such methods of sale; or |
|
|
|
| ● | any other method permitted pursuant to applicable law. |
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The Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available, rather than under this Prospectus. However, the Selling Stockholders will not sell any Selling Stockholder Shares until after the closing of this initial public offering.
If the Selling Stockholders effect such transactions by Selling Stockholder Shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the Selling Stockholders or commissions from purchasers of the Selling Stockholder Shares for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the Selling Stockholder Shares or otherwise, the Selling Stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Selling Stockholder Shares in the course of hedging in positions they assume. The Selling Stockholders may also sell Selling Stockholder Shares short and deliver Selling Stockholder Shares covered by this Prospectus to close out short positions and to return borrowed shares in connection with such short sales. The Selling Stockholders may also loan or pledge Selling Stockholder Shares to broker-dealers that in turn may sell such shares.
The Selling Stockholders may pledge or grant a security interest in some or all of the Selling Stockholder Shares owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the Selling Stockholder Shares from time to time pursuant to this Prospectus or any amendment to this Prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act, amending, if necessary, the list of Selling Stockholders to include the pledgee, transferee or other successors in interest as Selling Stockholders under this Prospectus. The Selling Stockholders also may transfer and donate the Selling Stockholder Shares in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this Prospectus.
The Selling Stockholders and any broker-dealer participating in the distribution of the Selling Stockholder Shares may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the Selling Stockholder Shares is made, a Prospectus supplement, if required, will be distributed which will set forth the aggregate amount of Selling Stockholder Shares being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the Selling Stockholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the Selling Stockholder Shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the Selling Stockholder Shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that any Selling Stockholder will sell any or all of the Selling Stockholder Shares registered pursuant to the registration statement, of which this Prospectus forms a part.
The Selling Stockholders and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the Selling Stockholder Shares by the Selling Stockholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the Selling Stockholder Shares to engage in market-making activities with respect to the Selling Stockholder Shares. All of the foregoing may affect the marketability of the Selling Stockholder Shares and the ability of any person or entity to engage in market-making activities with respect to the Selling Stockholder Shares.
Once sold under the registration statement, of which this Prospectus forms a part, the Selling Stockholder Shares will be freely tradeable in the hands of persons other than our affiliates.
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DESCRIPTION OF SECURITIES
General
The following description of our securities and provisions of our amended and restated certificate of incorporation (the “Amended and Restated Certificate of Incorporation”) and amended and restated bylaws (the “bylaws”) are summaries and are qualified by reference to such Amended and Restated Certificate of Incorporation and bylaws that will be in effect upon the closing of this offering. By becoming a shareholder in our Company, you will be deemed to have notice of and consented to these provisions of our Amended and Restated Certificate of Incorporation and bylaws.
Authorized Capital Stock
Our Amended and Restated Certificate of Incorporation authorizes us to issue up to 50,000,000 shares of capital stock, consisting of (i) 40,000,000 shares of common stock, $0.001 par value per share, (“Common Stock”) (ii) 10,000,000 shares of preferred stock, $0.001 par value per share (“Preferred Stock”). As of September 30, 2022, 1,000 shares of Series A Voting Preferred Stock are authorized, 3,466,668 shares of Series B Preferred Stock are authorized, 866,668 shares of Series C Preferred Stock are authorized, 300,000 shares of Series D Preferred Stock are authorized, and 480,000 shares of Series E Preferred Stock are authorized.
Subsequent to the current reporting period, on October 9, 2022, we amended and restated our Certificate of Incorporation, such that 1,200,000 shares of Series D Preferred Stock are authorized, and 1,440,000 shares of Series E Preferred Stock are authorized, as of the date of this filing.
The authorized but unissued shares of our Common Stock and Preferred Stock are available for future issuance without shareholder approval. These additional shares may be used for a variety of corporate finance transactions, acquisitions, and employee benefit plans. The existence of authorized but unissued and unreserved Common Stock and preferred stock could make more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Common Stock
As of September 30, 2022, 13,848,630 shares of our Common Stock are issued and outstanding (figure not adjusted for our Common Stock Reverse Split). As of January 3, 2023, 1,686,187 shares of our Common Stock are issued and outstanding.
Voting Rights
Holders of our Common Stock are entitled to one vote for each share held on all matters submitted to a vote of shareholders and do not have cumulative voting rights. However, holders of Common Stock shall not be entitled to vote on any amendment to the Amended and Restated Certificate of Incorporation that relates solely to the terms of one or more outstanding series of Preferred Stock, if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote pursuant to the Amended and Restated Certificate of Incorporation. Holders of our Common Stock has the exclusive right to vote for the election of directors and for all other purposes, at any meeting of stockholders, and holders of shares of Preferred Stock and any series shall not be entitled to receive notice of any meeting of stockholders at which they are not otherwise entitled to vote.
Liquidation or Dissolution
In the event of our liquidation or dissolution, the holders of Common Stock are entitled to receive all assets of the Company available for distribution to its stockholders, subject to any preferential or other rights of any then-outstanding Preferred Stock.
Dividends
Holders of Common Stock are entitled to receive proportionately any dividends as may be declared by our Board of Directors, subject to any preferential dividend rights of outstanding preferred stock.
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Pre-emptive Rights
The holders of our Common Stock generally do not have pre-emptive rights to purchase or subscribe for any of our capital stock or other Common Stock.
Redemption
The shares of our Common Stock are not subject to redemption by operation of a sinking fund or otherwise.
Preferred Stock
Our Board of Directors is empowered, upon stockholder approval, to issue shares of Preferred Stock with dividend, liquidation, redemption, voting or other rights which could adversely affect the voting power or other rights of the holders of Common Stock. In addition, the Preferred Stock could be utilized as a method of discouraging, delaying, or preventing a change in control of us.
As of September 30, 2022, 5,641,002 shares of our Preferred Stock are issued and outstanding. As of January 6, 2023, 2,627,667 shares of our Preferred Stock are issued and outstanding.
Series A Voting Preferred Stock
As of September 30, 2022, there are 1,000 shares of Series A Voting Preferred Stock issued and outstanding. For so long as any shares of Series A Voting Preferred Stock remain issued and outstanding, the holders hereof shall possess more than 50% of the voting power of the capital stock of the Corporation. The Series A Voting Preferred Stock shall have the right to vote at any meeting of stockholders, or by consent pursuant to Section 228 of the Delaware General Corporation Law (the “DGCL”), the number of votes equal to all shares of Common Stock which are then issued and outstanding, plus an additional 10,000 shares.
The Company shall not have the right to redeem the Series A Voting Preferred Stock except upon receiving the consent and approval of the terms of conditions of redemption from the holders of at least 66-2/3% of all outstanding shares of Series A Voting Preferred Stock. Currently, our CEO owns 100% of our Series A Voting Preferred Stock.
Series A Voting Preferred Stock shall not be entitled to receive any dividends and does not have any conversion rights.
Series B Preferred Stock
As of September 30, 2022, there are 2,133,334 shares of Series B Preferred Stock issued and outstanding. Subsequent to the current reporting period, on October 9, 2022, all 2,133,334 shares of Series B Preferred Stock were converted to 2,133,334 shares of Common Stock (figure not adjusted for our Common Stock Reverse Split).
During the time that any shares of Series B Preferred Stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of Series B Preferred Stock at the rate of 10% of the stated value of $0.075 per share per year, payable quarterly commencing on July 1, 2019.
Holders of Series B Preferred Stock do not have the right to vote.
Each share of Series B Preferred Stock shall be convertible into one share of Common Stock at the holder’s election in a cashless conversion. Any accrued but unpaid dividends may be converted to shares of Common Stock in the Board of Directors’ discretion, in such amount determined by dividing (x) the stated value of such shares of Series B Preferred Stock by (y) the amount of accrued but unpaid dividends.
The Company has the right, in the sole and absolute discretion of the Board of Directors of the Company and at a time of its choosing, to redeem or convert to Common Stock, any or all of the shares of the Series B Preferred Stock.
Series C Preferred Stock
As of September 30, 2022, there are 866,667 shares of Series C Preferred Stock issued and outstanding. Subsequent to the current reporting period, 700,001 shares of Series C Preferred Stock were converted to 700,001 shares of Common Stock (figure not adjusted for our Common Stock Reverse Split).
During the time that any shares of Series C Preferred Stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of Series C Preferred Stock at the rate of 10% of the stated value of $0.075 per share per year, payable quarterly commencing on July 1, 2020.
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Holders of Series C Preferred Stock do not have the right to vote.
Each share of Series C Preferred Stock shall be convertible into one share of Common Stock at the holder’s election in a cashless conversion. Any accrued but unpaid dividends may be converted to shares of Common Stock in the Board of Directors’ discretion, in such amount determined by dividing (x) the stated value of such shares of Series C Preferred Stock by (y) the amount of accrued but unpaid dividends.
The Company has the right, in the sole and absolute discretion of the Board of Directors of the Company and at a time of its choosing, to redeem or convert to Common Stock, any or all of the shares of the Series C Preferred Stock.
Series D Preferred Stock
As of September 30, 2022, there are 300,000 shares of Series D Preferred Stock issued and outstanding. Subsequent to the current reporting period, on October 9, 2022, we forward split our shares of Series D Preferred Stock by a ratio 4 for 1, such that 1,200,000 shares are now issued and outstanding.
During the time that any shares of Series D Preferred Stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of Series D preferred stock at the rate of 10% of the stated value of $1.00 ($0.25 as of October 9, 2022) per share per year, payable quarterly commencing on July 1, 2020.
Holders of Series D Preferred Stock do not have the right to vote.
Each share of Series D preferred stock shall be convertible into one share of Common Stock at the holder’s election in a cashless conversion. Any accrued but unpaid dividends may be converted to shares of Common Stock in the Board of Directors’ discretion, in such amount determined by dividing (x) the stated value of such shares of Series D Preferred Stock by (y) the amount of accrued but unpaid dividends.
The Company has the right, in the sole and absolute discretion of the Board of Directors of the Company and at a time of its choosing, to redeem or convert to Common Stock, any or all of the shares of the Series D Preferred Stock.
Series E Preferred Stock
As of September 30, 2022, there are 480,000 shares of Series E Preferred Stock issued and outstanding. Subsequent to the current reporting period, on October 9, 2022, we forward split our shares of Series E Preferred Stock by a ratio of 3 for 1, such that 1,440,000 shares are now issued and outstanding. Subsequent to the current reporting period, on January 3, 2023, 180,000 shares of Series E Preferred Stock were converted to 180,000 shares of Common Stock (figure not adjusted for our Common Stock Reverse Split).
During the time that any shares of Series E preferred stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of Series E preferred stock at the rate of 5% of the stated value of $2.00 ($0.667 as of October 9, 2022) per share per year, payable quarterly commencing on April 1, 2021.
Holders of Series E Preferred Stock do not have the right to vote.
Each share of Series E Preferred Stock shall be convertible into one share of Common Stock at the holder’s election in a cashless conversion. Any accrued but unpaid dividends may be converted to shares of Common Stock in the Board of Directors’ discretion, in such amount determined by dividing (x) the stated value of such shares of Series E Preferred Stock by (y) the amount of accrued but unpaid dividends.
The Company has the right, in the sole and absolute discretion of the Board of Directors of the Company and at a time of its choosing, to redeem or convert to Common Stock, any or all of the shares of the Series E Preferred Stock.
Transfer Agent and Registrar
Our transfer agent is Nevada Agency and Transfer Company, 50 W Liberty Street, Suite 880, Reno, NV 89501, (775) 322-0626. Our transfer agent is registered with the Securities and Exchange Commission.
Warrants
We currently do not have any outstanding warrants.
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Representative’s Warrants
Upon the closing of this offering, there are expected to be up to 42,500 shares of Common Stock issuable upon exercise of the Representative’s warrants. See “Underwriting-Representative’s Warrants” for a description of the Representative’s warrants.
Listing
We have applied to have our Common Stock listed on the Nasdaq under the symbol “GLUC.” We will not proceed with this offering in the event our Common Stock is not approved for listing on the Nasdaq.
Holders
As of September 30, 2022, our shares of Common Stock were held by approximately 121 stockholders of record, including Cede & Co.
Certain Anti-Takeover Provisions of Delaware Law, the Company’s Certificate of Incorporation and Bylaws
Section 203 of the DGCL provides that if a person acquires 15% or more of the voting stock of a Delaware corporation, such person becomes an “interested stockholder” and may not engage in certain “Business Combinations” with such corporation for a period of three years from the time such person acquired 15% or more of such corporation’s voting stock, unless: (1) the Board of Directors of such corporation approves the acquisition of stock or the merger transaction before the time that the person becomes an interested stockholder, (2) the interested stockholder owns at least 85% of the outstanding voting stock of such corporation at the time the merger transaction commences (excluding voting stock owned by directors who are also officers and certain employee stock plans), or (3) the merger transaction is approved by the Board of Directors and at a meeting of stockholders, not by written consent, by the affirmative vote of 2/3 of the outstanding voting stock which is not owned by the interested stockholder. A Delaware corporation may elect in its certificate of incorporation or Bylaws not to be governed by this particular Delaware law.
Our certificate of incorporation, our bylaws and the DGCL contain provisions that could have the effect of rendering more difficult, delaying, or preventing an acquisition deemed undesirable by our Board of Directors. These provisions could also make it difficult for stockholders to take certain actions, including electing directors who are not nominated by the members of our Board of Directors or taking other corporate actions, including effecting changes in our management. For instance, our certificate of incorporation does not provide for cumulative voting in the election of directors. Our Board of Directors are empowered to elect a director to fill a vacancy created by the expansion of the Board of Directors or the resignation, death, or removal of a director in certain circumstances; and our advance notice provisions in our bylaws require that stockholders must comply with certain procedures in order to nominate candidates to our Board of Directors or to propose matters to be acted upon at a stockholders’ meeting.
Our authorized but unissued Common Stock will be available for future issuances without stockholder approval and could be utilized for a variety of corporate purposes, including future offerings to raise additional capital, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved Common Stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Forum for Litigation
We note that Article XII of our Amended and Restated Certificate of Incorporation identifies the Court of Chancery of the State of Delaware (referring to Delaware State Courts) as the exclusive forum for certain litigation, including any derivative action. To the extent that the applicability such provision may be sought in connection with actions arising under the Securities Act or Exchange Act, pursuant to Section 27 of the Exchange Act, exclusive federal jurisdiction is created over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder, which would result in federal courts instead having jurisdiction over such claims. Pursuant to Section 22 of the Securities Act, concurrent jurisdiction is created for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. Accordingly, there is uncertainty as to whether a court would enforce such provision in an action arising under the Securities Act or Exchange Act.
The Company does not intend for such exclusive forum provision to apply to claims arising under the Securities Act or the Exchange Act. The Company plans to amend its Amended and Restated Certificate of Incorporation upon effectiveness of this registration statement to unambiguously provide that such exclusive forum provisions would not apply to claims arising under the Securities Act or the Exchange Act and until such time as such amendment has become effective, to provide its investors of notice to this effect, the Company will continue to include disclosure indicating that the Company does not intend for such exclusive forum provisions to apply to claims arising under the Securities Act or the Exchange Act. With respect to claims arising under the Securities Act, note that investors cannot waive compliance with the federal securities laws and rules and regulations thereunder.
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, shares of our Common Stock were quoted by OTC Markets under the symbol “GLUC.” Future sales of substantial amounts of our Common Stock in the public market, including shares issued upon the exercise of outstanding options or warrants, or upon debt conversion, or the anticipation of these sales, could adversely affect market prices prevailing from time to time and could impair our ability to raise capital through sales of equity securities.
Upon completion of this offering, we estimate that we will have 5,021,197 issued and outstanding shares of Common Stock, not including:
| · | 1,416,667 shares of Common Stock which may be issued upon exercise of the 1-for-1 conversion option of 1,416,667 issued and outstanding shares of Preferred Stock. |
|
|
|
| · | Any shares of Common Stock issuable upon exercise of the Representative’s over-allotment option and underlying the Representative’s warrants. |
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Sale of Restricted Securities
The shares of our Common Stock sold pursuant to this offering will be registered under the Securities Act or 1933, as amended, and therefore freely transferable, except for our affiliates. Our affiliates will be deemed to own “control” securities that are not registered for resale under the registration statement covering this Prospectus. Individuals who may be considered our affiliates after this offering include individuals who control, are controlled by or are under common control with us, as those terms generally are interpreted for federal securities law purposes. These individuals may include some or all of our directors and executive officers. Individuals who are our affiliates are not permitted to resell their shares of our Common Stock unless such shares are separately registered under an effective registration statement under the Securities Act or an exemption from the registration requirements of the Securities Act is available, such as Rule 144.
Rule 144
In general, under Rule 144 as currently in effect, a person (or persons whose shares are aggregated), including an affiliate, who beneficially owns “restricted securities” (i.e., securities that are not registered by an effective registration statement) of a “reporting company” may not sell these securities until the person has beneficially owned them for at least six months. Thereafter, affiliates may not sell within any three-month period a number of shares in excess of the greater of: (i) 1% of the then outstanding shares of Common Stock as shown by the most recent report or statement published by the issuer; and (ii) the average weekly reported trading volume in such securities during the four preceding calendar weeks.
Sales under Rule 144 by our affiliates will also be subject to restrictions relating to manner of sale, notice and the availability of current public information about us and may be affected only through unsolicited brokers’ transactions.
Persons not deemed to be affiliates who have beneficially owned “restricted securities” for at least six months but for less than one year may sell these securities, provided that current public information about the Company is “available,” which means that, on the date of sale, we have been subject to the reporting requirements of the Exchange Act for at least 90 days and are current in our Exchange Act filings. After beneficially owning “restricted securities” for one year, our non-affiliates may engage in unlimited re-sales of such securities.
Shares received by our affiliates in this offering or upon exercise of stock options or upon vesting of other equity-linked awards may be “control securities” rather than “restricted securities.” “Control securities” are subject to the same volume limitations as “restricted securities” but are not subject to holding period requirements.
Rule 701
Rule 701 generally allows a stockholder who purchased shares of the Company’s Common Stock pursuant to a written compensatory plan or contract and who is not deemed to have been an affiliate of the Company during the immediately preceding 90 days to sell these shares in reliance upon Rule 144, but without being required to comply with the public information, holding period, volume limitation, or notice provisions of Rule 144. Rule 701 also permits affiliates of the Company to sell their Rule 701 shares under Rule 144 without complying with the holding period requirements of Rule 144. All holders of Rule 701 shares, however, are required to wait until 90 days after the date of this Prospectus before selling such shares pursuant to Rule 701 and until expiration of the lock-up period described below.
Lock-Up Agreements
The Company, each of our directors and executive officers, and our 5% and greater stockholders, have agreed not to, subject to certain limited exceptions, offer, pledge, sell, contract to sell, grant any option to purchase, or otherwise dispose of our Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, or to enter into any hedge or other arrangement or any transaction that transfers, directly or indirectly, the economic consequence of ownership of the shares of our Common Stock, in the case of the Company for a period of 360 days after the date of this Prospectus, and in the case of our directors and executive officers and our 5% and greater stockholders for a period of 180 days after the date of this Prospectus, without the prior written consent of the underwriter. See “Underwriting-Lock-up Agreements.”
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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material U.S. federal income tax considerations relating to the purchase, ownership and disposition of our Common Stock purchased in this offering, which we refer to collectively as our securities, but is for general information purposes only and does not purport to be a complete analysis of all the potential tax considerations. This summary is based upon the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), final, temporary, and proposed Treasury regulations promulgated thereunder, administrative rulings and pronouncements and judicial decisions, all as of the date hereof. These authorities may change, possibly retroactively, resulting in U.S. federal income and estate tax consequences different from those set forth below. There can be no assurance that the Internal Revenue Service (the “IRS”) will not challenge one or more of the tax consequences described herein, and we have not obtained, and do not intend to obtain, an opinion of counsel or ruling from the IRS with respect to the U.S. federal income tax considerations relating to the purchase, ownership, or disposition of our securities.
This summary does not address any alternative minimum tax considerations, any considerations regarding the Medicare tax, any considerations regarding the tax on net investment income, or the tax considerations arising under the laws of any state, local or non-U.S. jurisdiction, or under any non-income tax laws, including U.S. federal gift and estate tax laws, except to the limited extent set forth below. In addition, this summary does not address all of the tax consequences that may be relevant to investors, nor does it address tax considerations applicable to an investor’s particular circumstances or to investors that may be subject to special tax rules, including, without limitation:
| · | banks, insurance companies or other financial institutions; |
| · | tax-exempt entities or governmental organizations, including agencies or instrumentalities thereof; |
| · | regulated investment companies and real estate investment trusts; |
| · | controlled foreign corporations, passive foreign investment companies and corporations that accumulate earnings to avoid U.S. federal income tax; |
| · | brokers or dealers in securities or currencies; |
| · | traders in securities that elect to use a mark-to-market method of accounting for their securities holdings; |
| · | persons that own, or are deemed to own, more than five percent of our capital stock (except to the extent specifically set forth below); |
| · | tax-qualified retirement plans; |
| · | certain former citizens or long-term residents of the United States; |
| · | partnerships or entities or arrangements classified as partnerships for U.S. federal income tax purposes and other pass-through entities including S corporations and trusts (and any investors therein); |
| · | persons who hold our securities as a position in a hedging transaction, “straddle,” “conversion transaction” or other risk reduction transaction or integrated investment; |
| · | persons who do not hold our securities as a capital asset within the meaning of Section 1221 of the Code; or |
| · | persons deemed to sell our securities under the constructive sale provisions of the Code, or persons holding the securities as part of a “straddle,” hedge, conversion transaction, integrated transaction, or other similar transaction. |
In addition, if a partnership (or entity or arrangement classified as a partnership for U.S. federal income tax purposes) holds our securities, the tax treatment of a partner generally will depend on the status of the partner and upon the activities of the partnership. Accordingly, partnerships that hold our securities, and partners in such partnerships, should consult their tax advisors.
You are urged to consult your own tax advisors with respect to the application of the U.S. federal income tax laws to your particular situation, as well as any tax consequences of the purchase, ownership and disposition of our securities arising under the U.S. federal estate or gift tax laws or under the laws of any state, local, non-U.S., or other taxing jurisdiction or under any applicable tax treaty.
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Consequences to U.S. Holders
The following is a summary of the U.S. federal income tax consequences that will apply to a U.S. holder of our securities. For purposes of this discussion, you are a U.S. holder if, for U.S. federal income tax purposes, you are a beneficial owner of our securities, other than a partnership, that is:
| · | an individual citizen or resident of the United States; |
| · | a corporation or other entity taxable as a corporation created or organized in the United States or under the laws of the United States, any State thereof or the District of Columbia; |
| · | an estate trust whose income is subject to U.S. federal income tax regardless of its source; or |
| · | a trust (x) whose administration is subject to the primary supervision of a U.S. court, and which has one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code) who have the authority to control all substantial decisions of the trust or (y) which has made a valid election to be treated as a “United States person.” |
Distributions
As described in the section titled “Market for Our Common Stock - Dividend Policy,” we have never declared or paid cash dividends on our Common Stock and do not anticipate paying any dividends on our Common Stock in the foreseeable future. However, if we do make distributions in cash or other property on our Common Stock, those payments will constitute dividends for U.S. tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. To the extent our distributions exceed our current and accumulated earnings and profits, the excess will constitute a return of capital that will first reduce your basis in our Common Stock, but not below zero, and then will be treated as gain from the sale or other disposition of stock as described below under “Sale, Exchange or Other Taxable Disposition of Common Stock.”
Dividend income may be taxed to an individual U.S. holder at rates applicable to long-term capital gains, provided that a minimum holding period and other limitations and requirements are satisfied with certain exemptions. Any dividends that we pay to a U.S. holder that is a corporation will qualify for the dividends received deduction if the requisite holding period is satisfied, subject to certain limitations. U.S. holders should consult their own tax advisors regarding the holding period and other requirements that must be satisfied in order to qualify for the reduced tax rate on dividends or the dividends-received deduction.
Sale, Exchange or Other Taxable Disposition of Common Stock
A U.S. holder will generally recognize capital gain or loss on the sale, exchange, or other taxable disposition of our securities. The amount of gain or loss will equal the difference between the amount realized on the sale and such U.S. holder’s adjusted tax basis in such securities. The amount realized will include the amount of any cash and the fair market value of any other property received in exchange for such securities. A U.S. holder’s adjusted tax basis in its securities will generally equal the U.S. holder’s acquisition cost or purchase price, less any prior distributions treated as a return of capital. Gain or loss will be long-term capital gain or loss if the U.S. holder has held the securities for more than one year. Long-term capital gains of non-corporate U.S. holders are generally taxed at preferential rates. The deductibility of capital losses is subject to certain limitations.
Information Reporting and Backup Withholding
In general, information reporting requirements may apply to dividends paid to a U.S. holder and to the proceeds of the sale or other disposition of our securities, unless the U.S. holder is an exempt recipient. Backup withholding may apply to such payments if the U.S. holder fails to provide a taxpayer identification number, a certification of exempt status or has been notified by the IRS that it is subject to backup withholding (and such notification has not been withdrawn).
Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a U.S. holder’s U.S. federal income tax liability provided the required information is timely furnished to the IRS.
Unearned Income Medicare Tax
A 3.8% Medicare contribution tax will generally apply to all or some portion of the net investment income of a U.S. holder that is an individual with adjusted gross income that exceeds a threshold amount.
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Consequences to Non-U.S. Holders
The following is a summary of the U.S. federal income tax consequences that will apply to a non-U.S. holder of our securities. A “non-U.S. holder” is a beneficial owner of our securities (other than a partnership or an entity or arrangement treated as a partnership for U.S. federal income tax purposes) that, for U.S. federal income tax purposes, is not a U.S. holder. The term “non-U.S. holder” includes:
| · | a non-resident alien individual (other than certain former citizens and residents of the U.S. subject to U.S. tax as expatriates); |
| · | a foreign corporation; |
| · | an estate or trust that is not a U.S. holder; or |
| · | any other Person that is not a U.S. holder |
but generally does not include an individual who is present in the U.S. for 183 days or more or who is otherwise treated as a U.S. resident in the taxable year. If you are such an individual, you should consult your tax advisor regarding the U.S. federal income tax consequences of the acquisition, ownership or sale or other disposition of our securities.
Distributions
Subject to the discussion below regarding effectively connected income, any distribution paid to a non-U.S. holder, to the extent paid out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles) generally will constitute a dividend for U.S. federal income tax purposes and, provided such dividends are not effectively connected with the non-U.S. holder’s conduct of a trade or business within the U.S., will be subject to U.S. withholding tax either at a rate of 30% of the gross amount of the dividend or such lower rate as may be specified by an applicable income tax treaty. In order to receive a reduced treaty rate, a non-U.S. holder must provide us with an IRS Form W-8BEN, IRS Form W-8BEN-E or other applicable IRS Form W-8 properly certifying qualification for the reduced rate. These forms must be provided prior to the payment of dividends and must be updated periodically. A non-U.S. holder eligible for a reduced rate of U.S. withholding tax pursuant to an income tax treaty should consult with their individual tax advisor to determine if they may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. If a non-U.S. holder holds our securities through a financial institution or other agent acting on the non-U.S. holder’s behalf, the non-U.S. holder will be required to provide appropriate documentation to the agent, which then may be required to provide certification to us or our paying agent, either directly or through other intermediaries.
Dividends received by a non-U.S. holder that are effectively connected with its conduct of a U.S. trade or business (and, if required by an applicable income tax treaty, attributable to a permanent establishment or fixed base maintained by the non-U.S. holder in the United States) are generally exempt from such withholding tax if the non-U.S. holder satisfies certain certification and disclosure requirements. In order to obtain this exemption, the non-U.S. holder must provide us with an IRS Form W-8ECI or other applicable IRS Form W-8 properly certifying such exemption. Such effectively connected dividends, although not subject to withholding tax, are taxed at the same graduated U.S. federal income tax rates applicable to U.S. holders, net of certain deductions and credits. In addition, dividends received by a corporate non-U.S. holder that are effectively connected with its conduct of a U.S. trade or business may also be subject to a branch profits tax at a rate of 30%, or such lower rate as may be specified by an applicable income tax treaty. Non-U.S. holders should consult their own tax advisors regarding any applicable tax treaties that may provide for different rules.
Any distribution not constituting a dividend will be treated first as reducing (but not below zero) the Non-U.S. holder’s adjusted tax basis in its Common Stock and, to the extent such distribution exceeds the Non-U.S. holder’s adjusted tax basis, as gain realized from the sale or other disposition of the Common Stock, which will be treated as described under “Non-U.S. Holders - Gain on Sale, Exchange or Other Taxable Disposition of Common Stock” below.
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Gain on Sale, Exchange or Other Taxable Disposition of Common Stock
Subject to the discussion below regarding backup withholding and foreign accounts, a non-U.S. holder generally will not be required to pay U.S. federal income tax on any gain realized upon the sale, exchange, or other taxable disposition of our securities unless:
| · | the gain is effectively connected with the non-U.S. holder’s conduct of a U.S. trade or business (and, if required by an applicable income tax treaty, the gain is attributable to a permanent establishment or fixed base maintained by the non-U.S. holder in the United States); |
| · | the non-U.S. holder is a non-resident alien individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met; or |
| · | shares of our Common Stock constitute U.S. real property interests by reason of our status as a “United States real property holding corporation” (a USRPHC) for U.S. federal income tax purposes at any time within the shorter of the five-year period preceding the non-U.S. holder’s disposition of, or the non- U.S. holder’s holding period for, our Common Stock (provided that an exception does not apply), and, in the case where shares of our Common Stock are regularly traded on an established securities market, the Non-U.S. holder has owned, directly or constructively, more than 5% of our Common Stock at any time within the shorter of the five-year period preceding the disposition or such Non-U.S. holder’s holding period for the shares of our Common Stock. |
We believe that we are not currently and will not become a USRPHC for U.S. federal income tax purposes, and the remainder of this discussion so assumes. However, because the determination of whether we are a USRPHC depends on the fair market value of our U.S. real property relative to the fair market value of our other business assets, there can be no assurance that we will not become a USRPHC in the future. Even if we become a USRPHC, however, as long as our Common Stock is regularly traded on an established securities market, such Common Stock will be treated as U.S. real property interests only if the non-U.S. holder actually or constructively hold more than five percent of such regularly traded Common Stock at any time during the shorter of the five-year period preceding the non-U.S. holder’s disposition of, or the non-U.S. holder’s holding period for, our Common Stock.
If the non-U.S. holder is described in the first bullet above, they will be required to pay tax on the net gain derived from the sale, exchange or other taxable disposition under regular graduated U.S. federal income tax rates, and a corporate non-U.S. holder described in the first bullet above also may be subject to the branch profits tax at a rate of 30%, or (in each case) such lower rate as may be specified by an applicable income tax treaty. An individual non-U.S. holder described in the second bullet above will be required to pay a flat 30% tax (or such lower rate specified by an applicable income tax treaty) on the gain derived from the sale, exchange, or other taxable disposition, which gain may be offset by U.S. source capital losses for the year (provided the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses). Non-U.S. holders should consult their own tax advisors regarding any applicable income tax or other treaties that may apply.
Federal Estate Tax
Securities beneficially owned by an individual who is not a citizen or resident of the United States (as defined for U.S. federal estate tax purposes) at the time of their death will generally be includable in the decedent’s gross estate for U.S. federal estate tax purposes. Such shares, therefore, may be subject to U.S. federal estate tax, unless an applicable estate tax treaty provides otherwise.
Backup Withholding and Information Reporting
Generally, we must report annually to the IRS the amount of dividends paid to you, your name and address and the amount of tax withheld, if any. A similar report will be sent to you. Pursuant to applicable income tax treaties or other agreements, the IRS may make these reports available to tax authorities in your country of residence.
A Non-U.S. holder may have to comply with certification procedures to establish that it is not a United States person in order to avoid information reporting and backup withholding requirements. The certification procedures required to claim a reduced rate of withholding under a treaty generally will satisfy the certification requirements necessary to avoid the backup withholding as well for example, by properly certifying your non-U.S. status on an IRS Form W-8BEN or IRS Form W-8BEN-E or other applicable IRS Form W-8. Notwithstanding the foregoing, backup withholding and information reporting may apply if either we or our paying agent has actual knowledge, or reason to know, that you are a U.S. person.
Backup withholding is not an additional tax; rather, the U.S. federal income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund or credit may generally be obtained from the IRS, provided that the required information is furnished to the IRS in a timely manner.
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Foreign Account Tax Compliance
The Foreign Account Tax Compliance Act (“FATCA”) generally imposes withholding tax at a rate of 30% on dividends on and gross proceeds from the sale or other disposition of our securities paid to a “foreign financial institution” (as specially defined under these rules), unless any such institution (1) enters into, and complies with, an agreement with the IRS to report, on an annual basis, information with respect to interests in, and accounts maintained by, the institution that are owned by certain U.S. persons and by certain non-U.S. entities that are wholly or partially owned by U.S. persons and to withhold on certain payments, or (2) if required under an intergovernmental agreement between the United States and an applicable foreign country, reports such information to its local tax authority, which will exchange such information with the U.S. authorities. An intergovernmental agreement between the United States and an applicable foreign country may modify these requirements. Accordingly, the entity through which our securities are held will affect the determination of whether such withholding is required. Similarly, dividends in respect of our securities held by an investor that is a non-financial non-U.S. entity that does not qualify under certain exceptions will generally be subject to withholding at a rate of 30%, unless such entity either (1) certifies to us or the applicable withholding agent that such entity does not have any “substantial United States owners” or (2) provides certain information regarding the entity’s “substantial United States owners,” which will in turn be provided to the U.S. Department of Treasury. Non-U.S. holders should consult their own tax advisors regarding the possible implications of this legislation on their investment in our securities.
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UNDERWRITING
We are offering shares of Common Stock as described in this Prospectus through the underwriters named below. EF Hutton, division of Benchmark Investments, LLC (“EF Hutton”, or “Representative”) is acting as the Representative of the underwriters. We have entered into an underwriting agreement with the underwriters. Subject to the terms and conditions of the underwriting agreement, each of the underwriters has severally agreed to purchase, and we have agreed to sell to the underwriters, the number of shares listed next to its name in the following table.
Underwriters |
| Number of Shares |
| |
EF Hutton, division of Benchmark Investments, LLC |
|
| 2,125,000 |
|
Total |
|
|
|
|
The underwriting agreement provides that the underwriters must buy all of the shares if they buy any of them. However, the underwriters are not required to take or pay for the shares covered by the underwriters’ option to purchase additional shares of Common Stock as described below. Our shares of Common Stock are offered subject to a number of conditions, including:
| · | receipt and acceptance of our shares of Common Stock by the underwriters; and |
| · | the underwriters’ right to reject orders in whole or in part. |
We have been advised by EF Hutton that the underwriters intend to make a market in our Common Stock but that they are not obligated to do so and may discontinue making a market at any time without notice.
In connection with this offering, certain of the underwriters or securities dealers may distribute Prospectuses electronically.
Option to Purchase Additional Shares
We have granted the underwriters an option to buy up to an aggregate of 318,750 additional shares of Common Stock. The underwriters have 45 days from the date of this Prospectus to exercise this option. If the underwriters exercise this option, they will each purchase additional securities approximately in proportion to the amounts specified in the table above.
Underwriting Discount
Shares sold by the underwriters to the public will initially be offered at the initial offering price set forth on the cover of this Prospectus. Any Shares sold by the underwriters to securities dealers may be sold at a discount of up to $0.32 per share from the public offering price. The underwriters may offer the shares through one or more of their affiliates or selling agents. If all the Shares are not sold at the public offering price, EF Hutton may change the offering price and the other selling terms. Upon execution of the underwriting agreement, the underwriters will be obligated to purchase the Shares at the prices and upon the terms stated therein.
The following table provides information regarding the amount of the discounts and commissions to be paid to the underwriters by us, before expenses:
|
| Total Per Share |
| |
Public offering price |
| $ | 4.00 |
|
Underwriting discounts and commissions(1) |
| $ | 0.32 |
|
Proceeds, before expenses, to us |
| $ | 3.68 |
|
(1) We have agreed to pay EF Hutton an underwriting discount of 8.0% of the gross proceeds of this offering.
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Expenses
We have agreed to pay up to $150,000 of EF Hutton’s expenses in connection with the offering, including: (i) up to $7,500 of EF Hutton’s actual accountable road show expenses, (ii) a $4,500 cost associated with EF Hutton’s use of book building, Prospectus tracking and compliance software, (iii) costs associated with bound volumes of the offering materials as well as commemorative mementos and lucite tombstones in an aggregate amount not to exceed $3,000, (iv) EF Hutton’s legal fees, up to a maximum amount of $135,000, irrespective of whether the offering is consummated (subject to $50,000 in the event that there is not a closing). We have paid $50,000 to EF Hutton as an advance to be applied towards out-of-pocket accountable expenses (which we refer to as the “Advance”). Any portion of the Advance shall be returned back to us to the extent not actually incurred. Additionally, we have agreed that 0.9% of the gross proceeds of the offering shall be provided to EF Hutton for non-accountable expenses. The Company also agreed that it shall at its own expense conduct background checks, by a background search firm acceptable to EF Hutton, on the Company's senior management and Board of Directors.
Representative’s Warrants
We have agreed to issue warrants to EF Hutton to purchase a number of shares of Common Stock equal to 2% of the total number of shares sold in this offering at an exercise price equal to 150% of the public offering price of the Shares sold in this offering. The underwriters’ warrants will be exercisable upon issuance and will terminate on the fifth anniversary of the commencement date of sales in this offering. The underwriters’ warrants are only exercisable or convertible during the four and a half-year period commencing six (6) months from the effective date of sales in this offering. The underwriters’ warrants also provide for customary anti-dilution provisions, one-time demand registration right (with a duration of such right not to exceed five years from the commencement of sales of Common Stock in this offering) and unlimited “piggyback” registration rights (with a duration of such rights not to exceed seven years from the commencement of sales of Common Stock in this offering) with respect to the registration of the shares of Common Stock underlying the warrants. We have registered the underwriters’ warrants and the shares underlying the underwriters’ warrants in this offering.
The underwriters’ warrant and the underlying shares are deemed to be compensation by FINRA, and therefore will be subject to FINRA Rule 5110(e)(1). In accordance with FINRA Rule 5110(e)(1), neither the underwriters’ warrant nor any of our shares of Common Stock issued upon exercise of the underwriters’ warrants may be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such securities by any person, for a period of 180 days immediately following the commencement date of sales in this offering, subject to certain exceptions. The underwriters’ warrant to be received by EF Hutton and related persons in connection with this offering: (i) fully comply with lock-up restrictions pursuant to FINRA Rule 5110(e)(1); and (ii) fully comply with transfer restrictions pursuant to FINRA Rule 5110(e)(2).
Tail Financing
We have also granted EF Hutton the right to receive a cash fee equal to eight percent (8.0%) of the gross proceeds received by us from the sale of securities to investors introduced to us by EF Hutton, in connection with any public or private financing or capital raise completed during the twelve (12) month period after the date that this offering is completed.
Advisory Services
EF Hutton will also provide us, from time to time, financial and M&A advisory services in the ordinary course of business for which they may receive customary fees and commissions.
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Lock-up Agreements
The Company, each of our directors and executive officers, and our 5% and greater shareholders (determined based upon our total capital stock of 6,437,864 shares, comprised of 5,021,197 shares of Common Stock to be issued and outstanding pursuant to this offering and 1,416,667 shares of Common Stock potentially issuable upon exercise of the 1-for-1 conversion option of 1,416,667 issued and outstanding shares of Preferred Stock; and not including any shares of Common Stock issuable upon exercise of the Representative’s over-allotment option or underlying the Representative’s warrants),have agreed not to, subject to certain limited exceptions, offer, pledge, sell, contract to sell, grant any option to purchase, or otherwise dispose of our Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, or to enter into any hedge or other arrangement or any transaction that transfers, directly or indirectly, the economic consequence of ownership of the shares of our Common Stock, in the case of the Company for a period of 360 days after the date of this Prospectus, and in the case of our directors and executive officers and our 5% and greater stockholders for a period of 180 days after the date of this Prospectus, without the prior written consent of EF Hutton.
Indemnification
We have agreed to indemnify the several underwriters against certain liabilities, including certain liabilities under the Securities Act. If we are unable to provide this indemnification, we have agreed to contribute to payments the underwriters may be required to make in respect of those liabilities.
Other Relationships
Some of the underwriters and their affiliates have engaged in, and may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with us or our affiliates. They have received, or may in the future receive, customary fees and commissions for these transactions.
Stock Exchange
We have applied to list our Common Stock on the Nasdaq stock exchange under the symbol “GLUC.” We will not proceed with this offering in the event our Common Stock is not approved for listing on the Nasdaq.
Price Stabilization, Short Positions
In connection with this offering, the underwriters may engage in activities that stabilize, maintain, or otherwise affect the price of our shares of Common Stock during and after this offering, including:
| · | stabilizing transactions; |
| · | short sales; |
| · | purchases to cover positions created by short sales; |
| · | imposition of penalty bids; and |
| · | syndicate covering transactions. |
Stabilizing transactions consist of bids or purchases made for the purpose of preventing or retarding a decline in the market price of our shares of Common Stock while this offering is in progress. Stabilization transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. These transactions may also include making short sales of our shares of Common Stock, which involve the sale by the underwriters of a greater number of shares of Common Stock than they are required to purchase in this offering and purchasing shares of Common Stock on the open market to cover short positions created by short sales. Short sales may be “covered short sales,” which are short positions in an amount not greater than the underwriters’ option to purchase additional shares referred to above, or may be “naked short sales,” which are short positions in excess of that amount.
The underwriters may close out any covered short position by either exercising their option, in whole or in part, or by purchasing shares in the open market. In making this determination, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option.
Naked short sales are short sales made in excess of the over-allotment option. The underwriters must close out any naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the shares of Common Stock in the open market that could adversely affect investors who purchased in this offering.
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The underwriters also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because EF Hutton has repurchased shares sold by or for the account of that underwriter in stabilizing or short covering transactions.
These stabilizing transactions, short sales, purchases to cover positions created by short sales, the imposition of penalty bids and syndicate covering transactions may have the effect of raising or maintaining the market price of our Common Stock or preventing or retarding a decline in the market price of our Common Stock. As a result of these activities, the price of our Common Stock may be higher than the price that otherwise might exist in the open market. The underwriters may carry out these transactions on the Nasdaq, in the over-the-counter market or otherwise. Neither we nor the underwriters make any representation or prediction as to the effect that the transactions described above may have on the price of the shares. Neither we, nor any of the underwriters make any representation that the underwriters will engage in these stabilization transactions or that any transaction, once commenced, will not be discontinued without notice.
Determination of Offering Price
The principal factors to be considered in determining the public offering price include:
| · | the information set forth in this Prospectus and otherwise available to EF Hutton; |
| · | our history and prospects and the history and prospects for the industry in which we compete; |
| · | our past and present financial performance; |
| · | our prospects for future earnings and the present state of our development; |
| · | the general condition of the securities market at the time of this offering; |
| · | the recent market prices of, and demand for, publicly traded shares of generally comparable companies; and |
| · | other factors deemed relevant by the underwriters and us. |
The estimated public offering price range set forth on the cover page of this preliminary Prospectus is subject to change as a result of market conditions and other factors. Neither we nor the underwriters can assure investors that an active trading market will develop for our shares of Common Stock or that the shares of Common Stock will trade in the public market at or above the public offering price.
Affiliations
The underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment, hedging, financing, and brokerage activities. The underwriters and their affiliates may from time to time in the future engage with us and perform services for us or in the ordinary course of their business for which they will receive customary fees and expenses. In the ordinary course of their various business activities, the underwriters and their respective affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers, and such investment and securities activities may involve securities and/or instruments of us. The underwriters and their respective affiliates may also make investment recommendations and/or publish or express independent research views in respect of these securities or instruments and may at any time hold, or recommend to clients that they acquire, long and/or short positions in these securities and instruments.
Electronic Distribution
A Prospectus in electronic format may be made available on the Internet sites or through other online services maintained by one or more of the underwriters participating in this offering, or by their affiliates. In those cases, prospective investors may view offering terms online and, depending upon the particular underwriter, prospective investors may be allowed to place orders online. The underwriters may agree with us to allocate a specific number of shares for sale to online brokerage account holders. Any such allocation for online distributions will be made by the underwriters on the same basis as other allocations. Other than the Prospectus in electronic format, the information on any underwriter’s website and any information contained in any other website maintained by an underwriter is not part of the Prospectus or the registration statement of which this Prospectus forms a part, has not been approved and/or endorsed by us or any underwriter in its capacity as underwriter and should not be relied upon by investors.
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Selling Restrictions
Canada
The shares may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the shares must be made in accordance with an exemption from, or in a transaction not subject to, the Prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this Prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser's province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser's province or territory for particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 (or, in the case of securities issued or guaranteed by the government of a non-Canadian jurisdiction, section 3A.4) of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.
European Economic Area
In relation to each Member State of the European Economic Area which has implemented the Prospectus Regulation, or each, a Relevant Member State, an offer to the public of any shares of our Common Stock may not be made in that Relevant Member State, except that an offer to the public in that Relevant Member State of any shares of our Common Stock may be made at any time under the following exemptions under the Prospectus Regulation, if they have been implemented in that Relevant Member State:
| (i) | to any legal entity which is a qualified investor as defined in the Prospectus Regulation; |
| (ii) | to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Regulation), subject to obtaining the prior consent of the representatives for any such offer; or |
| (iii) | in any other circumstances falling within Article 1(4) of the Prospectus Regulation, provided that no such offer of shares of our Common Stock shall result in a requirement for the publication by us or any underwriter of a Prospectus pursuant to Article 3 of the Prospectus Regulation. |
For the purposes of this provision, the expression an "offer to the public" in relation to any shares of our Common Stock in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and any shares of our Common Stock to be offered so as to enable an investor to decide to purchase any shares of our Common Stock, and the expression "Prospectus Regulation" means Regulation (EU) 2017/1129.
United Kingdom
Each underwriter has represented and agreed that:
| (a) | it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (“FSMA”) received by it in connection with the issue or sale of the shares of our Common Stock in circumstances in which Section 21(1) of the FSMA does not apply to us; and |
|
|
|
| (b) | it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the shares of our Common Stock in, from or otherwise involving the United Kingdom. |
| 74 |
| Table of Contents |
Hong Kong
Shares of our Common Stock may not be offered or sold by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), (ii) to "professional investors" within the meaning of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) and any rules made thereunder or (iii) in other circumstances which do not result in the document being a "Prospectus" within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), and no advertisement, invitation or document relating to shares of our Common Stock may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to shares of our Common Stock which are or are intended to be disposed of only to persons outside Hong Kong or only to "professional investors" within the meaning of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) and any rules made thereunder.
Japan
No registration pursuant to Article 4, paragraph 1 of the Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948, as amended) (the "FIEL") has been made or will be made with respect to the solicitation of the application for the acquisition of the shares of Common Stock.
Accordingly, the shares of Common Stock have not been, directly or indirectly, offered or sold and will not be, directly or indirectly, offered or sold in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan) or to others for re-offering or re-sale, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan except pursuant to an exemption from the registration requirements, and otherwise in compliance with, the FIEL and the other applicable laws and regulations of Japan.
For Qualified Institutional Investors ("QII")
Please note that the solicitation for newly issued or secondary securities (each as described in Paragraph 2, Article 4 of the FIEL) in relation to the shares of Common Stock constitutes either a "QII only private placement" or a "QII only secondary distribution" (each as described in Paragraph 1, Article 23-13 of the FIEL). Disclosure regarding any such solicitation, as is otherwise prescribed in Paragraph 1, Article 4 of the FIEL, has not been made in relation to the shares of Common Stock. The shares of Common Stock may only be transferred to QIIs.
For Non-QII Investors
Please note that the solicitation for newly issued or secondary securities (each as described in Paragraph 2, Article 4 of the FIEL) in relation to the shares of Common Stock constitutes either a "small number private placement" or a "small number private secondary distribution" (each as is described in Paragraph 4, Article 23-13 of the FIEL). Disclosure regarding any such solicitation, as is otherwise prescribed in Paragraph 1, Article 4 of the FIEL, has not been made in relation to the shares of Common Stock. The shares of Common Stock may only be transferred en bloc without subdivision to a single investor.
Singapore
This Prospectus has not been registered as a Prospectus with the Monetary Authority of Singapore. Accordingly, this Prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of shares of our Common Stock may not be circulated or distributed, nor may the shares of our Common Stock be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore, or the SFA, (ii) to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
| 75 |
| Table of Contents |
Where shares of our Common Stock are subscribed or purchased under Section 275 by a relevant person which is: (i) a corporation (which is not an accredited investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (ii) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares, debentures and units of shares and debentures of that corporation or the beneficiaries' rights and interest in that trust shall not be transferable for 6 months after that corporation or that trust has acquired shares of our Common Stock under Section 275 except: (a) to an institutional investor under Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA; (b) where no consideration is given for the transfer; or (c) by operation of law.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby and certain other legal matters will be passed upon for us by Lucosky Brookman LLP, Woodbridge, NJ. Carmel Milazzo & Feil LLP, is acting as counsel to the underwriters in connection with certain legal matters relating to this offering.
EXPERTS
The financial statements of Glucose Health, as of December 31, 2021, and 2020 appearing in this Prospectus and Registration Statement, have been audited by FRUCI & Associates II, PLLC, independent registered public accounting firm, as set forth in their report thereon appearing elsewhere herein, and are included in reliance upon such report, given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the shares of Common Stock offered by this Prospectus. This Prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement, some of which is contained in exhibits to the registration statement as permitted by the rules and regulations of the SEC. For further information with respect to us and our Common Stock, we refer you to the registration statement, including the exhibits filed as a part of the registration statement. Statements contained in this Prospectus concerning the contents of any contract or any other document are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, please see the copy of the contract or document that has been filed. Each statement in this Prospectus relating to a contract or document filed as an exhibit is qualified in all respects by the filed exhibit.
You can read our SEC filings, including this registration statement, at the SEC’s website at http://www.sec.gov. In addition, upon effectiveness of this registration statement, we will make certain of our filings available at our corporate website, www.glucosehealthinc.com
Upon effectiveness of this registration statement we will become subject to the information reporting requirements of the Exchange Act, and we will file reports, proxy statements and other information with the SEC. These reports, proxy statements and other information will be available on the website of the SEC referred to above. The information contained in, or that can be accessed through, our website is not part of this Prospectus, and you should not consider the contents of our website in making an investment decision with respect to our Common Stock.
| 76 |
| Table of Contents |
INDEX TO FINANCIAL STATEMENTS
|
| PAGE |
Audited Financial Statements for the Years Ended December 31, 2021, and 2020 |
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|
| F-16 | |
| F-18 | |
Statements of Operations for the years ended December 31, 2021, and 2020 |
| F-19 |
| F-20 | |
Statements of Cash Flows for the years ended December 31, 2021, and 2020 |
| F-21 |
| F-22 |
| F-1 |
| Table of Contents |
GLUCOSE HEALTH, INC.
BALANCE SHEETS
ASSETS | ||||||||
|
| September 30, |
|
| December 31, |
| ||
|
| 2022 |
|
| 2021 |
| ||
CURRENT ASSETS |
| (unaudited) |
|
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| ||
Cash |
| $ |
| $ | ||||
Accounts receivable, net of allowance for doubtful accounts of $ |
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Inventory |
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Prepaid expenses |
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Total current assets |
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Other Assets |
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Website domains |
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| Intellectual assets, net of accumulated amortization of $ |
|
| - | |||||
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TOTAL ASSETS |
| $ |
| $ | ||||
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LIABILITIES AND STOCKHOLDERS' EQUITY | ||||||||
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CURRENT LIABILITIES |
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Accounts payable and accrued expenses |
| $ |
| $ | ||||
Total current liabilities |
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TOTAL LIABILITIES |
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COMMITMENTS AND CONTINGENCIES |
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STOCKHOLDERS' EQUITY |
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Preferred stock, $ |
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Series A, $ |
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September 30, 2022 and December 31, 2021, respectively |
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Series B, $ |
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September 30, 2022 and December 31, 2021, respectively |
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Series C, $ |
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September 30, 2022 and December 31, 2021, respectively |
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Series D, $ |
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September 30, 2022 and December 31, 2021, respectively |
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Series E, $ |
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September 30, 2022 and December 31, 2021, respectively |
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Common stock, $ |
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September 30, 2022 and December 31, 2021, respectively |
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Additional paid in capital |
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Accumulated deficit |
| ( | ) |
| ( | ) | ||
Total stockholders' equity |
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TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY |
| $ |
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| $ |
| ||
The accompanying notes are an integral part of these financial statements.
| F-2 |
| Table of Contents |
GLUCOSE HEALTH INC.
STATEMENTS OF OPERATIONS (UNAUDITED)
|
| For the three months ended |
|
| For the nine months ended |
| ||||||||||
|
| September 30, |
|
| September 30, |
| ||||||||||
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| 2022 |
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| 2021 |
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| 2022 |
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| 2021 |
| ||||
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| ||||
REVENUE, NET |
| $ |
| $ |
| $ |
| $ | ||||||||
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COST OF REVENUES |
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Cost of revenues |
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GROSS PROFIT |
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OPERATING EXPENSES |
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Selling and marketing |
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General and administrative |
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Professional fees |
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Uncollectible receivables |
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Total operating expenses |
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INCOME (LOSS) FROM OPERATIONS |
|
| ( | ) |
| ( | ) |
| ( | ) | ||||||
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OTHER INCOME (EXPENSE) |
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Interest income (expense) |
| - |
| - |
| - |
| ( | ) | |||||||
Total other expense |
| - |
| - |
| - |
| ( | ) | |||||||
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INCOME (LOSS) BEFORE INCOME TAXES |
|
| ( | ) |
| ( | ) |
| ( | ) | ||||||
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PROVISION FOR (BENEFIT FROM) INCOME TAXES |
| - |
| - |
| - |
| - | ||||||||
|
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NET LOSS ATTRIBUTABLE TO GLUCOSE HEALTH, INC. |
|
| ( | ) |
| ( | ) |
| ( | ) | ||||||
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Dividends to preferred stock holders |
| ( | ) |
| ( | ) |
| ( | ) |
| ( | ) | ||||
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NET LOSS AVAILABLE FOR COMMON STOCK HOLDERS |
| $ | ( | ) |
| $ | ( | ) |
| $ | ( | ) |
| $ | ( | ) |
|
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| WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING - BASIC AND DILUTED |
|
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| ||||||||||||
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NET INCOME (LOSS) PER SHARE - BASIC AND DILUTED |
| $ |
| $ | ( | ) |
| $ | ( | ) |
| $ | ( | ) | ||
|
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| NET INCOME (LOSS) PER SHARE ATTRIBUTABLE TO COMMON SHAREHOLDERS - BASIC AND DILUTED |
| $ | ( | ) |
| $ | ( | ) |
| $ | ( | ) |
| $ | ( | ) |
The accompanying notes are an integral part of these financial statements.
| F-3 |
| Table of Contents |
GLUCOSE HEALTH, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2022 AND 2021
|
| Preferred Stock |
|
| Preferred Stock, series' B-E (1,2,3) |
|
| Common Stock |
|
| Additional Paid-In |
|
| Accumulated |
|
|
|
| ||||||||||||||||||
|
| Shares |
|
| Amount |
|
| Shares |
|
| Amount |
|
| Shares |
|
| Amount |
|
| Capital |
|
| Deficit |
|
| Total |
| |||||||||
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| |||||||||
Balance - December 31, 2020 |
|
|
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| $ |
|
|
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|
| $ |
|
|
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| $ |
|
| $ |
|
| $ | ( | ) |
| $ |
| ||||||||
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Dividends to preferred stock holders |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
| - |
|
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| ( | ) |
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| ( | ) | ||||
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| Series E Preferred Shares issued for cash received |
|
| - |
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|
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|
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|
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| - |
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| Common shares issued for services |
|
| - |
|
|
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|
|
| - |
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Conversion of Series B preferred shares to common shares |
|
| - |
|
|
|
|
|
| ( | ) |
|
| ( | ) |
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| Common shares issued for settlement of notes payable |
|
| - |
|
|
|
|
|
| - |
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Net income |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
|
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| ( | ) |
|
| ( | ) | ||||
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Balance - September 30, 2021 (unaudited) |
|
|
|
| $ |
|
|
|
|
| $ | ( | ) |
|
|
|
| $ |
|
| $ |
|
| $ | ( | ) |
| $ |
| |||||||
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|
|
Balance - December 31, 2021 |
|
|
|
| $ |
|
|
|
|
| $ |
|
|
|
|
| $ |
|
| $ |
|
| $ | ( | ) |
| $ |
| ||||||||
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|
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|
|
Dividends to preferred stock holders |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
| ( | ) |
|
| ( | ) | ||||
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|
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Net loss |
|
| - |
|
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|
|
|
| - |
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|
|
|
| - |
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|
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|
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| ( | ) |
|
| ( | ) | ||||
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|
|
Balance - September 30, 2022 (unaudited) |
|
|
|
| $ |
|
|
|
|
| $ |
|
|
|
|
| $ |
|
| $ |
|
| $ | ( | ) |
| $ |
| ||||||||
(1) The preferred stock Series D shares authorized, issued and outstanding have been adjusted to reflect a 10 to 1 reverse split, which was effective in March 2022.
(2) The preferred stock Series D shares authorized, issued and outstanding have been adjusted to reflect a 1-for-4 forward split, which was effective in October 2022.
(3) The preferred stock Series E shares authorized, issued and outstanding have been adjusted to reflect a 1-for-3 forward split, which was effective in October 2022.
The accompanying notes are an integral part of these financial statements.
| F-4 |
| Table of Contents |
GLUCOSE HEALTH, INC.
STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30,
|
| 2022 |
|
| 2021 |
| ||
OPERATING ACTIVITIES: |
|
|
|
|
|
| ||
Net income (loss) |
| $ | ( | ) |
| $ | ( | ) |
|
|
|
|
|
|
|
|
|
Adjustments to reconcile net income (loss) to |
|
|
|
|
|
|
|
|
net cash provided by (used in) operating activities: |
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|
|
|
|
Allowance for doubtful accounts |
|
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Common stock issued for services |
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| ||||||
Change in assets and liabilities |
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|
(Increase) decrease in accounts receivable |
| ( | ) |
| ( | ) | ||
(Increase) decrease in inventory |
| ( | ) |
| ||||
Increase (decrease) in accounts payable and accrued expenses |
| ( | ) |
| ( | ) | ||
Total adjustments |
| ( | ) |
| ||||
Net cash provided by (used in) operating activities |
| ( | ) |
| ( | ) | ||
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CASH FLOWS FROM INVESTING ACTIVITIES: |
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Net cash used in investing activities |
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CASH FLOWS FROM FINANCING ACTIVITIES: |
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Payments on notes payable, related party |
|
| ( | ) | ||||
Dividends paid to preferred stockholders |
| ( | ) |
| ( | ) | ||
Proceeds from preferred stock |
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| ||||||
Net cash provided by (used in) financing activities |
| ( | ) |
| ||||
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NET INCREASE (DECREASE) IN CASH |
| ( | ) |
| ||||
CASH - BEGINNING OF PERIOD |
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| ||||||
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CASH - END OF PERIOD |
| $ |
| $ | ||||
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SUPPLEMENTAL CASH FLOW INFORMATION: |
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Cash paid for interest |
| $ |
| $ | ||||
Cash paid for income taxes |
| $ |
| $ | ||||
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NON-CASH FINANCING ACTIVITIES: |
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Conversion of notes payable and accrued interest to Common Stock |
| $ |
| $ | ||||
Conversion of Series B preferred stock to Common stock |
| $ |
| $ | ||||
Issuance of Common Stock for prepaid marketing expense |
| $ |
|
| $ |
| ||
The accompanying notes are an integral part of these financial statements.
F-5 |
| Table of Contents |
NOTES TO FINANCIAL STATEMENTS
NOTE 1 - ORGANIZATION AND BASIS OF PRESENTATION
Overview
We are an own-label distributor of nutritional beverages. Our niche is the formulation, production, marketing, and distribution of soluble fiber infused nutritional beverages. On November 6, 2017, we registered the trademark GLUCODOWN® and have since launched the first soluble fiber infused, powdered iced tea, and flavored drink mixes, in North America. We believe the physiological impacts of soluble fiber can also nutritionally satisfy other interests of health-conscious consumers, and as result, we plan to launch other soluble fiber infused nutritional beverages. On September 10, 2020, we registered the trademark FIBER UP® and are currently in the early stages of developing our second soluble fiber infused nutritional beverage brand. We were incorporated under the laws of the State of Nevada as Bio-Solutions Corp. on March 27, 2007. From inception, through the third quarter of 2014, we were engaged in various businesses which were unrelated to our current business and corporate officers. On November 19, 2014, we changed our name to Glucose Health, Inc., and our business to that of an own-label distributor of nutritional beverages. Following the name change and the changes in the focus of our business, on April 16, 2018, we filed Form 15 to terminate our registered class of securities and reporting requirements under the Exchange Act.
Effective on March 11, 2022, we filed Articles of Conversion with the Nevada Secretary of State and a Certificate of Conversion and Certificate of Incorporation with the Delaware Department of State, Division of Corporations and converted to a Delaware corporation. On March 29, 2022, we merged with a subsidiary, created on March 23, 2022, for the sole purpose of the merger, amended and restated our Certificate of Incorporation, and the surviving corporation is Glucose Health, Inc. Pursuant to our amended and restated Certificate of Incorporation, each previously issued and outstanding share of Series D preferred stock was reverse split, ten for one. All share references herein have been retrospectively modified to account for the reverse split. On October 24, 2022,
Going Concern
The accompanying financial statements have been prepared assuming the Company will continue as a going concern, which contemplates, among other things, the realization of assets and satisfaction of liabilities in the normal course of business. As of September 30, 2022, the Company had an accumulated deficit of $
Basis of Presentation
The accompanying unaudited financial information as of and for the nine months ended September 30, 2022 and 2021, has been prepared in accordance with GAAP for interim financial information and with the instructions to Quarterly Report on Form 10-Q and Article 10 of Regulation S-X. In the opinion of management, such financial information includes all adjustments (consisting only of normal recurring adjustments) considered necessary for a fair presentation of our financial position at such date and the operating results and cash flows for such periods. Operating results for the nine months ended September 30, 2022, are not necessarily indicative of the results that may be expected for the entire year or for any other subsequent interim period.
Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been omitted pursuant to the rules of the U.S. Securities and Exchange Commission, or the SEC. These unaudited financial statements and related notes should be read in conjunction with our audited financial statements for the year ended December 31, 2021, included in the Company’s Form S-1/A registration statement.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues, and expenses, and related disclosure of contingent assets and liabilities. On an ongoing basis, we evaluate our estimates, including those related to revenue recognition, bad debts, investments, intangible assets, and income taxes. Our estimates are based on historical experience and on various other assumptions that are believed to be reasonable under the circumstances. Actual results may differ from these estimates.
| F-6 |
| Table of Contents |
Cash Flow Reporting
The Company follows ASC 230, Statement of Cash Flows, for cash flow reporting, classifies cash receipts and payments according to whether they stem from operating, investing, or financing activities and provides definitions of each category, and uses the indirect or reconciliation method (“indirect method”) as defined by ASC 230, Statement of Cash Flows, to report net cash flow from operating activities by adjusting net income to reconcile it to net cash flow from operating activities by removing the effects of (a) all deferrals of past operating cash receipts and payments and all accruals of expected future operating cash receipts and payments and (b) all items that are included in net income that do not affect operating cash receipts and payments.
Cash and Cash Equivalents
The Company considers all highly liquid debt instruments and other short-term investments with maturity of three months or less, when purchased, to be cash equivalents. There were no cash equivalents as of September 30, 2022 and 2021.
The Company maintains its cash balances at one financial institution that is insured by the Federal Deposit Insurance Corporation. As of September 30, 2022 and December 31, 2021, $
Accounts Receivable
Accounts receivable consists of invoiced and unpaid product sales. The Company records an allowance for doubtful accounts to allow for any amounts that may not be recoverable, which is based on an analysis of the Company’s prior collection experience, the credit worthiness of our retailer customers, and current economic trends. As of September 30, 2022 and December 31, 2021, our allowance for doubtful accounts was $
On October 4, 2016, the Company executed a non-recourse receivables financing agreement with Citibank whereby receivables due to the Company from a retailer customer are assumed by Citibank and paid to the Company, subject to an interest premium derived from the credit worthiness of the retailer customer to Citibank.
Inventory
Inventory is stated at the lower of cost (FIFO: first-in, first-out) or market, and includes finished goods and raw materials. The cost of finished goods includes the cost of packaging supplies, direct and indirect labor, and other indirect manufacturing costs. Inventory impairment is considered quarterly based on the expiration date of the product. As of September 30, 2022, the Company had total inventory of $
Prepaid Expenses
The Company considers all items incurred for future services to be prepaid expenses. As of September 30, 2022, and December 31, 2021, the Company had prepaid expenses for advertising services totaling $
Recoverability of Long-Lived Assets
The Company's long-lived assets and other assets are reviewed for impairment in accordance with the guidance of the ASC 350, Intangibles - Goodwill and Other, and ASC 205, Presentation of Financial Statements. The Company tests for impairment losses on long-lived assets used in operations whenever events or changes in circumstances indicate that the carrying amount of the asset may not be recoverable. Recoverability of an asset to be held and used is measured by a comparison of the carrying amount of an asset to the future undiscounted cash flows expected to be generated by the asset. If such asset is considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the asset exceeds its fair value. Impairment evaluations involve management's estimates on asset useful lives and future cash flows. Actual useful lives and cash flows could be different from those estimated by management which could have a material effect on our reporting results and financial positions. Fair value is determined through various valuation techniques including discounted cash flow models, quoted market values and third-party independent appraisals, as considered necessary. During the nine months ended September 30, 2022 and 2021, the Company had not experienced impairment losses on its long-lived assets.
| F-7 |
| Table of Contents |
Fair Value of Financial Instruments
The carrying amount reported in the balance sheets for cash, accounts payable, accrued expenses, and short-term notes approximate fair value because of the immediate or short-term maturity of these financial instruments. The Company does not utilize derivative instruments.
ASC 820, Fair Value Measurements and Disclosures, defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. ASC 820 also establishes a fair value hierarchy that distinguishes between (1) market participant assumptions developed based on market data obtained from independent sources (observable inputs) and (2) an entity’s own assumptions about market participant assumptions developed based on the best information available in the circumstances (unobservable inputs). The fair value hierarchy consists of three broad levels, which gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1) and the lowest priority to unobservable inputs (Level 3). The three levels of the fair value hierarchy are described below:
Level 1 | Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities |
|
|
Level 2 | Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly, including quoted prices for similar assets or liabilities in active markets; quoted prices for identical or similar assets or liabilities in markets that are not active; inputs other than quoted prices that are observable for the asset or liability (e.g., interest rates); and inputs that are derived principally from or corroborated by observable market data by correlation or other means. |
|
|
Level 3 | Inputs that are both significant to the fair value measurement and unobservable. |
Fair value estimates discussed herein are based upon certain market assumptions and pertinent information available to management as of September 30, 2022. The respective carrying value of certain on-balance-sheet financial instruments approximated their fair values due to the short-term nature of these instruments.
Income Taxes
The Company accounts for income taxes utilizing the liability method of accounting. Under the liability method, deferred taxes are determined based on differences between financial statement and tax bases of assets and liabilities at enacted tax rates in effect in years in which differences are expected to reverse. Valuation allowances are established, when necessary, to reduce deferred tax assets to amounts that are expected to be realized (Note 5).
The Company follows ASC 740-10, “Accounting for Uncertainty in Income Taxes” (“ASC 740-10”). This interpretation requires recognition and measurement of uncertain income tax positions using a “more-likely-than-not” approach. The Company has adopted ASC 740-10, and evaluates its tax positions on an annual basis, and as of December 31, 2021, no additional accrual for income taxes is necessary. The Company’s policy is to recognize both interest and penalties related to unrecognized tax benefits expected to result in payment of cash within one year are classified as accrued liabilities, while those expected beyond one year are classified as other liabilities. The Company has not recorded any interest or penalties since its inception. The Company is required to file income tax returns in the U.S. federal tax jurisdiction and in various state tax jurisdictions and the prior three fiscal years remain open for examination by federal and/or state tax jurisdictions. The Company is currently not under examination by any other tax jurisdictions for any tax year.
Revenue Recognition
We follow a five-step process to recognize revenue.
| · | Identify the Contract |
| · | Identify the Performance Obligation |
| · | Determine the Transaction Price |
| · | Allocate the Transaction Price to the Performance Obligation |
| · | Recognize Revenue upon Satisfying the Performance Obligation |
| F-8 |
| Table of Contents |
In selling our products to retailer customers, we first receive their purchase orders, which, upon our acceptance, are binding contracts. These purchase orders include two shipping dates along with the price our retailer customers agree to pay us for our products. We consider these two shipping dates to be performance obligations, which must be satisfied prior to our invoicing our retailer customers for their purchase orders. The first date on a purchase order is “ship by” referring to the date we must ship product to a retailer customer from our warehouse. The second date on a purchase order is “arrive by” referring to the date when product shipped from our warehouse must arrive at a retailer customer’s warehouse. When a retailer customer dispatches its carrier to pick up product pursuant to a purchase order at our warehouse, legal transfer of ownership occurs upon our obtaining a signed bill of lading from our retailer customer’s carrier (FOB Shipping Point). Our policy is to not allow pick-up by our retailer customer’s carrier without obtaining signature on the bill of lading. When we arrange shipment to our retailer customer’s warehouse using our carrier, legal transfer of ownership occurs upon our receipt of delivery confirmation to the retailer’s warehouse, from our carrier (FOB Destination). We consider our performance obligations for the purchase orders we receive from our retailer customers to be satisfied when legal transfer of ownership of product has occurred. Upon legal transfer of ownership, we then invoice our retailer customers in accordance with the price set forth on their purchase orders and recognize revenue.
Certain of our retailer customers require terms of service (supplier agreements) be negotiated prior to their issuance of purchase orders. These supplier agreements detail various discounts (i.e., early payment, volume, etc.) we have agreed to, but they do not reference pricing or commit our retailer customers to purchase any of our products. Our retailer customer’s purchase orders set forth the transaction price, including any discounts we agreed to in the supplier agreement, and, upon the performance obligations of the purchase order being satisfied, we invoice our retailer customers and recognize revenue. Accordingly, for accounting purposes, we consider our retailer customer’s supplier agreements and purchase orders to be single contracts, and we consider the discounts and allowances written in our supplier agreements, and noted in our purchase orders, to be reductions in transaction price.
Certain of our retailer customers have implemented management policies deriving from their supplier agreements, which can result in an array of supplier penalties, fees, and chargebacks being assessed against us. We dispute such penalties, fees and chargebacks through claims processes administered by our retailer customers and with retailer buyers to the extent of the discretion afforded them. We consider these supplier penalties, fees, and chargebacks to be a reduction in transaction price. We estimate potential unsuccessful chargeback disputes when recognizing revenue from retailer customers. We also periodically review the number of chargebacks, and the number of unsuccessful disputes of chargebacks, in determining whether to continue serving those retailer customers. We estimate and reserve for our bad debt exposure based on our retailer customer’s payment and collectability history, the aging of their accounts receivables, and our history in resolving claims in our favor.
Certain of our retailer customers offer optional marketing incentive programs such as participation in flyers, coupons or rebates, or the ability for us to implement such programs. We consider these expenses to be a reduction in transaction price. We have not yet participated in these programs but plan to do so in the future.
In selling our products to end-user customers, we first receive payment and then legal transfer of ownership occurs upon delivery of our products to end-user customers by our designated carrier (FOB Destination). We consider this to be fulfillment activity, and not promised services creating a performance obligation, and we recognize revenue upon receipt of payment.
When we sell our products to end-user customers our terms are final sale. However, in the case of sales to end-user customers via an online retailer, we are the seller (not a supplier to the online retailer) and fulfillment/customer service is provided by the online retailer as our agent. The online retailer’s refund policy is 30 days. To continue selling via the online retailer, we must accept this refund policy. We account for these refunds as a reduction in transaction price by recording revenue generated at the online retailer, net of refunds.
We have utilized end-user customer marketing incentive programs and have accounted for these incentives as a reduction in transaction price in accordance with ASC 606-10-32-25.
| F-9 |
| Table of Contents |
Advertising Expense
We promote our products and our company with television, radio, and digital advertising. We classify the costs to produce and schedule our advertising, as advertising expenses. Advertising expenses are recorded in “Selling and marketing” in the accompanying statements of operations. We recorded advertising expenses of $
Share Based Compensation
The Company may issue restricted stock to officers, directors, or employees for their services. The Company measures compensation cost for all employee stock-based awards at their fair values on the date of grant. Stock-based awards issued to non-employees are measured at their fair values on the date of grant and are re-measured at each reporting period through their vesting dates, as applicable. The fair value of stock-based awards is recognized as expense over the service period, net of estimated forfeitures, using the straight-line method.
Basic and Diluted Earnings/Loss per Common Share
Earnings per share (“EPS”) is the amount of earnings attributable to each share of Common Stock. For convenience, the term is used to refer to either earnings or loss per share. EPS is computed pursuant to Section 260-10-45 of the FASB Accounting Standards Codification. Pursuant to ASC Paragraphs 260-10-45-10 through 260-10-45-16, basic EPS shall be computed by dividing income available to Common Stockholders (the numerator) by the weighted-average number of common shares outstanding (the denominator) during the period. Income available to Common Stockholders shall be computed by deducting both the dividends declared in the period on preferred stock (whether or not paid) and the dividends accumulated for the period on cumulative preferred stock (whether or not earned) from income from continuing operations (if that amount appears in the income statement) and also from net income. The computation of diluted EPS is similar to the computation of basic EPS except that the denominator is increased to include the number of additional common shares that would have been outstanding if the dilutive potential common shares had been issued during the period to reflect the potential dilution that could occur from common shares issuable through preferred stock conversion, stock options, or warrants. Common stock equivalents are not included in the computation of diluted earnings per share when the Company reports a loss because to do so would be anti-dilutive for periods presented.
The following table shows the outstanding dilutive common shares excluded from the diluted net income (loss) per share calculation as they were anti-dilutive:
|
| Potential Additional Shares of Common Stock: |
| |||||
Potential Dilutive Securities: |
| September 30, 2022 |
|
| September 30, 2021 |
| ||
Preferred stock |
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|
|
| ||
Warrants |
|
| - |
|
|
|
| |
Total |
|
|
|
|
|
| ||
The Company had total fully diluted shares of Common Stock (potential dilutive securities outstanding plus issued securities outstanding) of
The Company pays dividends to its holders of preferred stock and computes net loss/income per common share attributable (available) to its holders of Common Stock as a separate line item in its statements of operations.
| F-10 |
| Table of Contents |
Reclassifications
Certain prior period amounts have been reclassified to conform with the current period presentation.
Recently Issued Accounting Standards
In August 2020, the FASB issued ASU 2020-06, Debt - Debt with Conversion and Other Options (Subtopic 470- 20) and Derivatives and Hedging - Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity (“ASU 2020-06”), which simplifies the accounting for certain financial instruments with characteristics of liabilities and equity. This ASU (1) simplifies the accounting for convertible debt instruments and convertible preferred stock by removing the existing guidance in ASC 470-20, Debt: Debt with Conversion and Other Options, that requires entities to account for beneficial conversion features and cash conversion features in equity, separately from the host convertible debt or preferred stock; (2) revises the scope exception from derivative accounting in ASC 815-40 for freestanding financial instruments and embedded features that are both indexed to the issuer’s own stock and classified in stockholders’ equity, by removing certain criteria required for equity classification; and (3) revises the guidance in ASC 260, Earnings Per Share, to require entities to calculate diluted earnings per share (EPS) for convertible instruments by using the if-converted method.
In addition, entities must presume share settlement for purposes of calculating diluted EPS when an instrument may be settled in cash or shares. For SEC filers, excluding smaller reporting companies, ASU 2020-06 is effective for fiscal years beginning after December 15, 2021, including interim periods within those fiscal years. Early adoption is permitted, but no earlier than fiscal years beginning after December 15, 2020. For all other entities, ASU 2020-06 is effective for fiscal years beginning after December 15, 2023, including interim periods within those fiscal years. Entities should adopt the guidance as of the beginning of the fiscal year of adoption and cannot adopt the guidance in an interim reporting period. The Company is currently evaluating the impact that ASU 2020-06 may have on its financial statements and related disclosures.
During the nine months ended September 30, 2022, there were several new accounting pronouncements issued by the FASB. Each of these pronouncements, as applicable, has been or will be adopted by the Company. Management does not believe the adoption of any of these accounting pronouncements has had or will have a material impact on the Company’s financial statements.
NOTE 3 - STOCKHOLDER’S EQUITY
Our current authorized common and preferred shares are
As of September 30, 2022, the number of shares issued and outstanding for each respective class of stock are as follows:
Shares of Common Stock |
|
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| par value $ | |
Shares Series A preferred stock |
|
| ) |
| par value $ | |
Shares Series B preferred stock |
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| par value $ | |
Shares Series C preferred stock |
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| par value $ | |
Shares Series D preferred stock |
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| par value $ | |
Shares Series E preferred stock |
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| par value $ |
| F-11 |
| Table of Contents |
Preferred Stock
Our Board of Directors is empowered, upon stockholder approval, to issue shares of preferred stock with dividend, liquidation, redemption, voting or other rights which could adversely affect the voting power or other rights of the holders of Common Stock. In addition, the preferred stock could be utilized as a method of discouraging, delaying, or preventing a change in control of us.
Series A Voting Preferred Stock
For so long as any shares of Series A Voting Preferred Stock remain issued and outstanding, the holders hereof shall possess more than 50% of the voting power of the capital stock of the Corporation. The
Series B Preferred Stock
During the time that any shares of Series B Preferred Stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of
During the year ended December 31, 2021, two Series B Preferred Stockholders elected to convert their 666,667 shares of Series B Preferred Stock into common shares. Accordingly, a total of 1,333,334 Series B Preferred Stock were canceled and 1,333,334 shares of Common Stock were issued.
Series C Preferred Stock
During the time that any shares of Series C Preferred Stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of
Series D Preferred Stock
During the time that any shares of Series D preferred stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of
| F-12 |
| Table of Contents |
Series E Preferred Stock
During the time that any shares of Series E preferred stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of
Preferred Stock Dividends
During the nine months ended September 30, 2022 and 2021, total dividends paid were $
Issuances pursuant to debt conversions
During June 2021, the Company issued 690,000 unregistered shares of Common Stock to its CEO/CFO in connection with the settlement of $7,590 principal outstanding (Note 4).
Issuances pursuant to agreements
During May 2021, the Company issued 197,347 shares of unregistered Common Stock to a corporation for advertising services. The shares were valued at $412,455 based upon the closing quotation of our stock price by OTC Markets on the date the contract was consummated. The value of the shares was amortized over the period of the contract as prepaid advertising expense.
Warrants outstanding
A summary of the status of the Company’s warrant grants as of September 30, 2022 and 2021 and the changes during the periods then ended is presented below:
|
|
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|
| Weighted-Average |
| ||
|
| Warrants |
|
| Exercise Price |
| ||
Outstanding, January 1, 2021 |
|
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| $ |
| ||
Granted |
|
| - |
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| - |
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Exercised |
|
| - |
|
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| - |
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Expired |
|
| - |
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| - |
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Outstanding, September 30, 2021 |
|
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| $ |
| ||
|
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|
Outstanding, January 1, 2022 |
|
|
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| $ |
| ||
Granted |
|
| - |
|
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| - |
|
Exercised |
|
| - |
|
|
| - |
|
Expired / cancelled |
|
| ( | ) |
|
| ( | ) |
Outstanding, September 30, 2022 |
|
| - |
|
| $ | - |
|
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|
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|
|
|
|
Warrants exercisable as of September 30, 2022 |
|
| - |
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|
| - |
|
| F-13 |
| Table of Contents |
NOTE 4 - NOTES PAYABLE
Convertible notes payable, related party
The Company consolidated
Accrued Interest
As of September 30, 2022 and 2021, there was no accrued interest outstanding.
NOTE 5 - FEDERAL INCOME TAX
The Company accounts for income taxes under ASC 740-10, which provides for an asset and liability approach of accounting for income taxes. Under this approach, deferred tax assets and liabilities are recognized based on anticipated future tax consequences, using currently enacted tax laws, attributed to temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts calculated for income tax purposes. The provision (benefit) for income taxes for the nine months ended September 30, 2022 and 2021 assumes a
As of September 30, 2022 and 2021, the Company had approximately $
|
| 2022 |
|
| 2021 |
| ||
Net operating loss carryforwards |
| $ |
|
| $ |
| ||
Temporary differences |
|
| ( | ) |
|
| ( | ) |
Permanent differences |
|
| ( | ) |
|
|
| |
Valuation allowance |
|
| ( | ) |
|
| ( | ) |
Significant components of the Company’s deferred tax assets as of September 30, 2022 and 2021 are summarized below.
|
| 2022 |
|
| 2021 |
| ||
Federal tax statutory rate |
|
| % |
|
| % | ||
Temporary differences |
|
| ( | )% |
|
| ( | )% |
Permanent differences |
|
| ( | )% |
|
| % | |
Valuation allowance |
|
| ( | )% |
|
| ( | )% |
Effective rate |
|
| % |
|
| % | ||
| F-14 |
| Table of Contents |
The Company provides for a valuation allowance when it is more likely than not that it will not realize a portion of the deferred tax assets. The Company has established a valuation allowance against the net deferred tax asset due to the uncertainty that enough taxable income will be generated in those taxing jurisdictions to utilize the assets. Therefore, we have not reflected any benefit of such deferred tax assets in the accompanying financial statements. Our net deferred tax asset and valuation allowance increased by $
To the extent that the tax deduction is included in a net operating loss carry forward and is more than amounts recognized for book purposes, no benefit will be recognized until the loss carry forward is recognized. Upon utilization and realization of the carry forward, the corresponding change in the deferred asset and valuation allowance will be recorded as additional paid-in capital.
NOTE 6 - COMMITMENTS/CONTINGENCIES
From time to time, we may be involved in litigation in the ordinary course of business. We are currently not involved in any litigation that we believe could have a material adverse effect on our financial condition or results of operations.
On January 25, 2022, we entered into an investment banking agreement with EF Hutton. The agreement contemplates the Company raising additional capital in a registered offering, listing on a stock exchange, and preparing a registration statement under the Securities Act. The Company is responsible for EF Hutton’s external counsel legal costs, whether any offering is consummated or not.
NOTE 7 - CUSTOMER CONCENTRATIONS
During the nine months ended September 30, 2022, the Company had one retailer customer whose revenue represented more than 10% ($
The Company’s end-user customer sales and retailer customer sales for the nine months ended September 30, 2022 and 2021 were as follows:
|
| 2022 |
|
| 2021 |
| ||||||||||
End-User Sales |
| $ |
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|
| % |
| $ |
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| % | ||||
Retailer Sales |
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| % |
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| % | ||||
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| $ |
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| % |
| $ |
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| % | ||||
NOTE 8 - RELATED PARTY TRANSACTIONS
On July 1, 2021, we entered into a consulting agreement with BTB Management Company, a company owned by our CEO/CFO and director, Murray Fleming. The agreement provides for quarterly payments of $
NOTE 9 - SUBSEQUENT EVENTS
The Company has evaluated subsequent events from the balance sheet through the date of this filing and determined there were no events to disclose except the following.
On October 24, 2022, the Company amended and restated its Certificate of Incorporation to 1)
On January 3, 2023,
| F-15 |
| Table of Contents |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders of Glucose Health, Inc.
Opinion on the Financial Statements
We have audited the accompanying balance sheets of Glucose Health, Inc. (“the Company”) as of December 31, 2021 and 2020, and the related statements of operations, changes in stockholders’ equity (deficit), and cash flows for each of the years in the two-year period ended December 31, 2021, and the related notes (collectively referred to as the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2021 and 2020 and the results of its operations and its cash flows for each of the years in the two-year period ended December 31, 2021, in conformity with accounting principles generally accepted in the United States of America.
Going Concern
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the financial statements, the Company has an accumulated deficit, net losses, and negative cash flows from operations. These factors raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 1. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
F-16 |
| Table of Contents |
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
Revenue Recognition
Description of the Critical Audit Matter
As discussed in Note 2, the Company recognizes revenue upon transfer of control of promised products to customers in an amount that reflects the consideration the Company expects to receive in exchange for those products or services.
Significant judgment is exercised by the Company in determining revenue recognition for its products, and includes the following:
| · | Identification and treatment of contract terms that may impact the timing and amount of revenue recognized. |
How the Critical Audit Matter Was Addressed in the Audit
Our principal audit procedures related to the Company's revenue recognition for these customer agreements included the following, among others:
| · | We evaluated management's significant accounting policies related to revenue recognition and reviewed underlying customer invoices for reasonableness of the application of ASC 606. |
| · | We obtained and read contract source documents for selected revenue invoices and tested management’s treatment of those terms. |
| · | We tested the mathematical accuracy of management's calculations of revenue and the associated timing of revenue recognized in the financial statements. |
Valuation of Inventory
Description of the Critical Audit Matter
As discussed in Note 2 to the financial statements, the Company periodically assess and estimates its allowances and reserves for stagnant, or obsolete inventory. At year end, the Company has recorded no allowance for obsolescence. Also discussed in Note 2 to the financial statements, the cost of inventory includes certain costs associated with preparation of inventory for resale, including packaging and other indirect overhead costs. The recognition and evaluation of inventory costs and reserves involves significant complexity and judgment in applying the relevant accounting standards when auditing management’s estimates and conclusions on inventory transactions.
How the Critical Audit Matter Was Addressed in the Audit
Our principal audit procedures to evaluate management’s calculation of capitalized inventory costs and reserves included, among other procedures, the following:
| · | We evaluated the appropriateness and consistency of management's methods and assumptions used in the identification, recognition, and measurement of the inventory costs and reserves in considering applicable generally accepted accounting standards. |
| · | We tested the significant inputs, sampled underlying transactions, and analyzed historical trends associated with management’s reserve estimates and recognition of indirect costs. |
| · | We evaluated whether management had appropriately considered new information that could significantly change the measurement or disclosure of the inventory valuation, and evaluated the disclosures related to the financial statement impacts of the transactions. |
We have served as the Company’s auditor since 2022.
Spokane, Washington | |
May 2, 2022, except for the second paragraph of Note 1, to which the date is January 6, 2023 |
|
| F-17 |
| Table of Contents |
GLUCOSE HEALTH, INC.
BALANCE SHEETS
ASSETS | ||||||||
|
| December 31, |
|
| December 31, |
| ||
|
| 2021 |
|
| 2020 |
| ||
CURRENT ASSETS |
|
|
|
|
|
| ||
Cash |
| $ | 752,402 |
|
| $ |
| |
Accounts receivable, net of allowance for doubtful accounts of $10,742 and $ |
|
| 29,435 |
|
|
|
| |
Inventory |
|
| 267,861 |
|
|
|
| |
Prepaid expenses |
|
| 103,114 |
|
|
| - |
|
Total current assets |
|
| 1,152,812 |
|
|
|
| |
|
|
|
|
|
|
|
|
|
Other Assets |
|
|
|
|
|
|
|
|
Website domains |
|
| 3,295 |
|
|
|
| |
Intellectual assets, net of accumulated amortization of $ |
|
| - |
|
|
| - |
|
|
|
|
|
|
|
|
|
|
TOTAL ASSETS |
| $ | 1,156,107 |
|
| $ |
| |
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS' EQUITY | ||||||||
|
|
|
|
|
|
|
|
|
CURRENT LIABILITIES |
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses |
| $ | 9,555 |
|
| $ | - |
|
Accrued interest |
|
| - |
|
|
|
| |
Convertible note payable, related party |
|
| - |
|
|
|
| |
Total current liabilities |
|
| 9,555 |
|
|
|
| |
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES |
|
| 9,555 |
|
|
|
| |
|
|
|
|
|
|
|
|
|
COMMITMENTS AND CONTINGENCIES |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STOCKHOLDERS' EQUITY |
|
|
|
|
|
|
|
|
Preferred stock, $ |
|
|
|
|
|
|
|
|
Series A, $0.001 par value, 1,000 shares authorized, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
December 31, 2021 and 2020, respectively |
|
| 1 |
|
|
|
| |
Series B, $ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
December 31, 2021 and 2020, respectively |
|
| 2,133 |
|
|
|
| |
Series C, $ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
December 31, 2021 and 2020, respectively |
|
| 867 |
|
|
|
| |
Series D, $0.25 stated value, 1,200,000 shares authorized, |
|
|
|
|
|
|
|
|
1,200,000 shares issued and outstanding as of |
|
|
|
|
|
|
|
|
December 31, 2021 and 2020, respectively |
|
| 1,200 |
|
|
|
| |
Series E, $0.667 stated value, 1,440,000 shares authorized, |
|
|
|
|
|
|
|
|
1,440,000 shares and - |
|
|
|
|
|
|
|
|
December 31, 2021 and 2020, respectively |
|
| 1,440 |
|
|
| - |
|
Common stock, $ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
December 31, 2021 and 2020, respectively |
|
| 13,849 |
|
|
|
| |
Additional paid in capital |
|
| 8,829,373 |
|
|
|
| |
Accumulated deficit |
|
| (7,702,310 | ) |
|
| ( | ) |
Total stockholders' equity |
|
| 1,146,552 |
|
|
|
| |
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY |
| $ | 1,156,107 |
|
| $ |
| |
The accompanying notes are an integral part of these financial statements.
| F-18 |
| Table of Contents |
GLUCOSE HEALTH INC.
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31,
|
| 2021 |
|
| 2020 |
| ||
|
|
|
|
|
|
| ||
REVENUE, NET |
| $ |
| $ | ||||
|
|
|
|
|
|
|
|
|
COST OF REVENUES |
|
|
|
|
|
|
|
|
Cost of revenues |
|
| ||||||
|
|
|
|
|
|
|
|
|
GROSS PROFIT |
|
| ||||||
|
|
|
|
|
|
|
|
|
OPERATING EXPENSES |
|
|
|
|
|
|
|
|
Selling and marketing |
|
| ||||||
General and administrative |
|
| ||||||
Professional fees |
|
| ||||||
Stock compensation |
|
| ||||||
Uncollectible receivables |
|
| ||||||
Total operating expenses |
|
| ||||||
|
|
|
|
|
|
|
|
|
INCOME (LOSS) FROM OPERATIONS |
| ( | ) |
| ( | ) | ||
|
|
|
|
|
|
|
|
|
OTHER INCOME (EXPENSE) |
|
|
|
|
|
|
|
|
Interest income (expense) |
| ( | ) |
| ( | ) | ||
Interest income (expense), non-cash item |
|
| ( | ) | ||||
Recovery of retailer chargebacks |
|
| ||||||
Loss on debt settlement |
|
| ( | ) | ||||
Gain on forgiveness of accounts payable |
|
| ||||||
Total other expense |
| ( | ) |
| ||||
|
|
|
|
|
|
|
|
|
INCOME (LOSS) BEFORE INCOME TAXES |
| ( | ) |
| ( | ) | ||
|
|
|
|
|
|
|
|
|
PROVISION FOR (BENEFIT FROM) INCOME TAXES |
|
| ||||||
|
|
|
|
|
|
|
|
|
NET LOSS ATTRIBUTABLE TO GLUCOSE HEALTH, INC. |
| ( | ) |
| ( | ) | ||
|
|
|
|
|
|
|
|
|
Dividends to preferred stock holders |
| ( | ) |
| ( | ) | ||
|
|
|
|
|
|
|
|
|
NET LOSS AVAILABLE FOR COMMON STOCK HOLDERS |
| $ | ( | ) |
| ( | ) | |
|
|
|
|
|
|
|
|
|
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING |
|
|
|
|
|
|
|
|
- BASIC AND DILUTED |
|
| ||||||
|
|
|
|
|
|
|
|
|
NET INCOME (LOSS) PER SHARE - BASIC AND DILUTED |
| $ | ( | ) |
| $ | ( | ) |
|
|
|
|
|
|
|
|
|
NET INCOME (LOSS) PER SHARE ATTRIBUTABLE TO |
|
|
|
|
|
|
|
|
COMMON SHAREHOLDERS - BASIC AND DILUTED |
| $ | ( | ) |
| $ | ( | ) |
The accompanying notes are an integral part of these financial statements.
| F-19 |
| Table of Contents |
GLUCOSE HEALTH, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2021 AND 2020
|
| Preferred Stock, Series A |
|
| Preferred Stock, Series B - E (1) |
|
| Common Stock |
|
| Additional Paid-In |
|
| Accumulated |
|
|
|
| ||||||||||||||||||
|
| Shares |
|
| Amount |
|
| Shares |
|
| Amount |
|
| Shares |
|
| Amount |
|
| Capital |
|
| Deficit |
|
| Total |
| |||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||||||||
Balance - December 31, 2019 |
|
|
|
| $ |
|
|
|
|
| $ |
|
|
|
|
| $ |
|
| $ |
|
| $ | ( | ) |
| $ | ( | ) | |||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends to preferred stock holders |
|
| - |
|
|
| - |
|
|
| - |
|
|
| - |
|
|
| - |
|
|
| - |
|
|
| - |
|
|
| ( | ) |
|
| ( | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Series C & D preferred shares issued for cash received |
|
| - |
|
|
|
|
|
|
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
|
|
|
|
| |||||||
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common shares issued for settlement of notes payable |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||||||
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common shares issued for services |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||||||
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock warrant issued for services |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
| ( | ) |
|
| ( | ) | ||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance - December 31, 2020 |
|
|
|
| $ |
|
|
|
|
| $ |
|
|
|
|
| $ |
|
| $ |
|
| $ | ( | ) |
|
|
| ||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends to preferred stock holders |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
| ( | ) |
|
| ( | ) | ||||
|
|
|
|
|
|
|
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|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Series E preferred shares issued for cash received |
|
| - |
|
|
|
|
|
|
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
|
|
|
|
| |||||||
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Conversion of Series B preferred shares to common shares |
|
| - |
|
|
|
|
|
| ( | ) |
|
| ( | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common shares issued for settlement of notes payable |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
| |||||||
|
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|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common shares issued for services |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
| |||||||
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
| - |
|
|
|
|
|
|
|
|
| ( | ) |
|
| ( | ) | ||||
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance - December 31, 2021 |
|
|
|
| $ |
|
|
|
|
| $ |
|
|
|
|
| $ |
|
| $ |
|
| $ | ( | ) |
| $ |
| ||||||||
| (1) | The preferred stock Series D shares authorized, issued and outstanding have been adjusted to reflect a 10 to 1 reverse split, which was effective in March 2022. |
|
|
|
| (2) | The preferred stock Series D shares authorized, issued and outstanding have been adjusted to reflect a 1-for-4 forward split, which was effective in October 2022. |
|
|
|
| (3) | The preferred stock Series E shares authorized, issued and outstanding have been adjusted to reflect a 1-for-3 forward split, which was effective in October 2022. |
The accompanying notes are an integral part of these financial statements.
| F-20 |
| Table of Contents |
GLUCOSE HEALTH, INC.
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31,
|
| 2021 |
|
| 2020 |
| ||
OPERATING ACTIVITIES: |
|
|
|
|
|
| ||
Net loss |
| $ | ( | ) |
| $ | ( | ) |
|
|
|
|
|
|
|
|
|
Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: |
|
|
|
|
|
|
|
|
Amortization of intangible asset |
|
|
|
|
|
| ||
Allowance for doubtful accounts |
|
|
|
|
|
| ||
Gain on forgiveness of accounts payable |
|
|
|
|
| ( | ) | |
Warrants issued for services |
|
|
|
|
|
| ||
Common stock issued for services |
|
|
|
|
|
| ||
Change in assets and liabilities |
|
|
|
|
|
|
|
|
(Increase) decrease in accounts receivable |
|
| ( | ) |
|
|
| |
(Increase) decrease in inventory |
|
| ( | ) |
|
| ( | ) |
Increase (decrease) in accounts payable and accrued expenses |
|
| ( | ) |
|
| ( | ) |
Total adjustments |
|
|
|
|
|
| ||
Net cash provided by (used in) operating activities |
|
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CASH FLOWS FROM INVESTING ACTIVITIES: |
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Purchase of website domains |
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Net cash used in investing activities |
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CASH FLOWS FROM FINANCING ACTIVITIES: |
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Payments on notes and loans payable |
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Payments on notes payable, related party |
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Dividends paid to preferred stock holders |
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Proceeds from preferred stock |
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Net cash provided by financing activities |
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NET INCREASE IN CASH |
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CASH - BEGINNING OF YEAR |
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CASH - END OF YEAR |
| $ |
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SUPPLEMENTAL CASH FLOW INFORMATION: |
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Cash paid for interest |
| $ |
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Cash paid for income taxes |
| $ |
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NONCASH FINANCING ACTIVITIES: |
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Conversion of notes payable and accrued interest to Common Stock |
| $ |
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| $ |
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Conversion of Series B preferred stock to Common stock |
| $ |
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| $ |
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Issuance of Common Stock for prepaid marketing expense |
| $ |
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| $ |
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The accompanying notes are an integral part of these financial statements.
| F-21 |
| Table of Contents |
NOTES TO FINANCIAL STATEMENTS
NOTE 1 - ORGANIZATION AND BASIS OF PRESENTATION
Overview
We are an own-label distributor of nutritional beverages. Our niche is the formulation, production, marketing, and distribution of soluble fiber infused nutritional beverages. On November 6, 2017, we registered the trademark GLUCODOWN® and have since launched the first soluble fiber infused, powdered iced tea, and flavored drink mixes, in North America. We believe the physiological impacts of soluble fiber can also nutritionally satisfy other interests of health-conscious consumers, and as result, we plan to launch other soluble fiber infused nutritional beverages. On September 10, 2020, we registered the trademark FIBER UP® and are currently in the early stages of developing our second soluble fiber infused nutritional beverage brand. We were incorporated under the laws of the State of Nevada as Bio-Solutions Corp. on March 27, 2007. From inception, through the third quarter of 2014, we were engaged in various businesses which were unrelated to our current business and corporate officers. On November 19, 2014, we changed our name to Glucose Health, Inc., and our business to that of an own-label distributor of nutritional beverages. Following the name change and the changes in the focus of our business, on April 16, 2018, we filed Form 15 to terminate our registered class of securities and reporting requirements under the Exchange Act.
Effective on March 11, 2022, we filed Articles of Conversion with the Nevada Secretary of State and a Certificate of Conversion and Certificate of Incorporation with the Delaware Department of State, Division of Corporations and converted to a Delaware corporation. On March 29, 2022, we merged with a subsidiary, created on March 23, 2022, for the sole purpose of the merger, amended and restated our Certificate of Incorporation, and the surviving corporation is Glucose Health, Inc. Pursuant to our amended and restated Certificate of Incorporation, each previously issued and outstanding share of Series D preferred stock was reverse split, ten for one. All share references herein have been retrospectively modified to account for the reverse split. On October 24, 2022, we amended and restated our Certificate of Incorporation to 1) subject the Series D Preferred Stock to a 1-for-4 forward stock split, changing the stated value from $1.00 to $0.25 per share, and 2) subject the Series E Preferred Stock to a 1-for-3 forward stock split, changing the stated value from $2.00 to $0.667 per share. All share references herein have been modified to account for the forward splits. As of September 30, 2022, our issued and outstanding common shares are
Basis of Presentation
This summary of significant accounting policies is presented to assist in understanding the Company’s financial statements. These accounting policies conform to accounting principles, generally accepted in the United States of America (GAAP) and have been consistently applied in the preparation of the financial statements.
Going Concern
The accompanying financial statements have been prepared assuming the Company will continue as a going concern, which contemplates, among other things, the realization of assets and satisfaction of liabilities in the normal course of business. At December 31, 2021, the Company had an accumulated deficit of $
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues, and expenses, and related disclosure of contingent assets and liabilities. On an ongoing basis, we evaluate our estimates, including those related to revenue recognition, bad debts, investments, intangible assets, and income taxes. Our estimates are based on historical experience and on various other assumptions that are believed to be reasonable under the circumstances. Actual results may differ from these estimates.
| F-22 |
| Table of Contents |
Cash Flow Reporting
The Company follows ASC 230, Statement of Cash Flows, for cash flow reporting, classifies cash receipts and payments according to whether they stem from operating, investing, or financing activities and provides definitions of each category, and uses the indirect or reconciliation method (“indirect method”) as defined by ASC 230, Statement of Cash Flows, to report net cash flow from operating activities by adjusting net income to reconcile it to net cash flow from operating activities by removing the effects of (a) all deferrals of past operating cash receipts and payments and all accruals of expected future operating cash receipts and payments and (b) all items that are included in net income that do not affect operating cash receipts and payments.
Cash and Cash Equivalents
The Company considers all highly liquid debt instruments and other short-term investments with maturity of three months or less, when purchased, to be cash equivalents. There were no cash equivalents at December 31, 2021, and 2020.
The Company maintains its cash balances at one financial institution that is insured by the Federal Deposit Insurance Corporation. At December 31, 2021, and 2020, $
Accounts Receivable
Accounts receivable consists of invoiced and unpaid product sales. The Company records an allowance for doubtful accounts to allow for any amounts that may not be recoverable, which is based on an analysis of the Company’s prior collection experience, the credit worthiness of our retailer customers, and current economic trends. At December 31, 2021, and 2020, our allowance for doubtful accounts was $
On October 4, 2016, the Company executed a non-recourse receivables financing agreement with Citibank whereby receivables due to the Company from a retailer customer are assumed by Citibank and paid to the Company, subject to an interest premium derived from the credit worthiness of the retailer customer to Citibank.
Inventory
Inventory is stated at the lower of cost (FIFO: first-in, first-out) or market, and includes finished goods and raw materials. The cost of finished goods includes the cost of packaging supplies, direct and indirect labor, and other indirect manufacturing costs. Inventory impairment is considered quarterly based on the expiration date of the product. At December 31, 2021, the Company had total inventory of $
Prepaid Expenses
The Company considers all items incurred for future services to be prepaid expenses. At December 31, 2021, and 2020 the Company had prepaid expenses for advertising services (Note 3).
Recoverability of Long-Lived Assets
The Company's long-lived assets and other assets are reviewed for impairment in accordance with the guidance of the ASC 350, Intangibles - Goodwill and Other, and ASC 205, Presentation of Financial Statements. The Company tests for impairment losses on long-lived assets used in operations whenever events or changes in circumstances indicate that the carrying amount of the asset may not be recoverable. Recoverability of an asset to be held and used is measured by a comparison of the carrying amount of an asset to the future undiscounted cash flows expected to be generated by the asset. If such asset is considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the asset exceeds its fair value. Impairment evaluations involve management's estimates on asset useful lives and future cash flows. Actual useful lives and cash flows could be different from those estimated by management which could have a material effect on our reporting results and financial positions. Fair value is determined through various valuation techniques including discounted cash flow models, quoted market values and third-party independent appraisals, as considered necessary. During the years ended December 31, 2021, and 2020, the Company had not experienced impairment losses on its long-lived assets.
| F-23 |
| Table of Contents |
Fair Value of Financial Instruments
The carrying amount reported in the balance sheets for cash, accounts payable, accrued expenses, and short-term notes approximate fair value because of the immediate or short-term maturity of these financial instruments. The Company does not utilize derivative instruments.
ASC 820, Fair Value Measurements and Disclosures, defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. ASC 820 also establishes a fair value hierarchy that distinguishes between (1) market participant assumptions developed based on market data obtained from independent sources (observable inputs) and (2) an entity’s own assumptions about market participant assumptions developed based on the best information available in the circumstances (unobservable inputs). The fair value hierarchy consists of three broad levels, which gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1) and the lowest priority to unobservable inputs (Level 3). The three levels of the fair value hierarchy are described below:
Level 1 | Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities |
|
|
Level 2 | Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly, including quoted prices for similar assets or liabilities in active markets; quoted prices for identical or similar assets or liabilities in markets that are not active; inputs other than quoted prices that are observable for the asset or liability (e.g., interest rates); and inputs that are derived principally from or corroborated by observable market data by correlation or other means. |
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|
Level 3 | Inputs that are both significant to the fair value measurement and unobservable. |
Fair value estimates discussed herein are based upon certain market assumptions and pertinent information available to management as of December 31, 2021. The respective carrying value of certain on-balance-sheet financial instruments approximated their fair values due to the short-term nature of these instruments.
Income Taxes
The Company accounts for income taxes utilizing the liability method of accounting. Under the liability method, deferred taxes are determined based on differences between financial statement and tax bases of assets and liabilities at enacted tax rates in effect in years in which differences are expected to reverse. Valuation allowances are established, when necessary, to reduce deferred tax assets to amounts that are expected to be realized (Note 5).
The Company follows ASC 740-10, “Accounting for Uncertainty in Income Taxes” (“ASC 740-10”). This interpretation requires recognition and measurement of uncertain income tax positions using a “more-likely-than-not” approach. The Company has adopted ASC 740-10, and evaluates its tax positions on an annual basis, and as of December 31, 2021, no additional accrual for income taxes is necessary. The Company’s policy is to recognize both interest and penalties related to unrecognized tax benefits expected to result in payment of cash within one year are classified as accrued liabilities, while those expected beyond one year are classified as other liabilities. The Company has not recorded any interest or penalties since its inception. The Company is required to file income tax returns in the U.S. federal tax jurisdiction and in various state tax jurisdictions and the prior three fiscal years remain open for examination by federal and/or state tax jurisdictions. The Company is currently not under examination by any other tax jurisdictions for any tax year.
| F-24 |
| Table of Contents |
Revenue Recognition
We follow a five-step process to recognize revenue.
· Identify the Contract
· Identify the Performance Obligation
· Determine the Transaction Price
· Allocate the Transaction Price to the Performance Obligation
· Recognize Revenue upon Satisfying the Performance Obligation
In selling our products to retailer customers, we first receive their purchase orders, which, upon our acceptance, are binding contracts. These purchase orders include two shipping dates along with the price our retailer customers agree to pay us for our products. We consider these two shipping dates to be performance obligations, which must be satisfied prior to our invoicing our retailer customers for their purchase orders. The first date on a purchase order is “ship by” referring to the date we must ship product to a retailer customer from our warehouse. The second date on a purchase order is “arrive by” referring to the date when product shipped from our warehouse must arrive at a retailer customer’s warehouse. When a retailer customer dispatches its carrier to pick up product pursuant to a purchase order at our warehouse, legal transfer of ownership occurs upon our obtaining a signed bill of lading from our retailer customer’s carrier (FOB Shipping Point). Our policy is to not allow pick-up by our retailer customer’s carrier without obtaining signature on the bill of lading. When we arrange shipment to our retailer customer’s warehouse using our carrier, legal transfer of ownership occurs upon our receipt of delivery confirmation to the retailer’s warehouse, from our carrier (FOB Destination). We consider our performance obligations for the purchase orders we receive from our retailer customers to be satisfied when legal transfer of ownership of product has occurred. Upon legal transfer of ownership, we then invoice our retailer customers in accordance with the price set forth on their purchase orders and recognize revenue.
Certain of our retailer customers require terms of service (supplier agreements) be negotiated prior to their issuance of purchase orders. These supplier agreements detail various discounts (i.e., early payment, volume, etc.) we have agreed to, but they do not reference pricing or commit our retailer customers to purchase any of our products. Our retailer customer’s purchase orders set forth the transaction price, including any discounts we agreed to in the supplier agreement, and, upon the performance obligations of the purchase order being satisfied, we invoice our retailer customers and recognize revenue. Accordingly, for accounting purposes, we consider our retailer customer’s supplier agreements and purchase orders to be single contracts, and we consider the discounts and allowances written in our supplier agreements, and noted in our purchase orders, to be reductions in transaction price.
Certain of our retailer customers have implemented management policies deriving from their supplier agreements, which can result in an array of supplier penalties, fees, and chargebacks being assessed against us. We dispute such penalties, fees and chargebacks through claims processes administered by our retailer customers and with retailer buyers to the extent of the discretion afforded them. We consider these supplier penalties, fees, and chargebacks to be selling expenses, not a reduction in transaction price. We estimate and reserve for our bad debt exposure based on our retailer customer’s payment and collectability history, the aging of their accounts receivables, and our history in resolving claims in our favor.
Certain of our retailer customers offer optional marketing incentive programs such as participation in flyers, coupons or rebates, or the ability for us to implement such programs. We consider these expenses to be a reduction in transaction price. We have not yet participated in these programs but plan to do so in the future.
In selling our products to end-user customers, we first receive payment and then legal transfer of ownership occurs upon delivery of our products to end-user customers by our designated carrier (FOB Destination). We consider this to be fulfillment activity, and not promised services creating a performance obligation, and we recognize revenue upon receipt of payment.
When we sell our products to end-user customers our terms are final sale. However, in the case of sales to end-user customers via an online retailer, we are the seller (not a supplier to the online retailer) and fulfillment/customer service is provided by the online retailer as our agent. The online retailer’s refund policy is 30 days. To continue selling via the online retailer, we must accept this refund policy. We account for these refunds as a reduction in transaction price by recording revenue generated at the online retailer, net of refunds.
We have utilized end-user customer marketing incentive programs and have accounted for these incentives as a reduction in transaction price in accordance with ASC 606-10-32-25.
Advertising Expense
We promote our products and our company with television, radio, and digital advertising. We classify the costs to produce and schedule our advertising as advertising expenses. Advertising expenses are recorded in “Selling and marketing” in the accompanying statements of operations. We recorded advertising expenses of $
Share Based Compensation
The Company may issue restricted stock to officers, directors, or employees for their services. The Company measures compensation cost for all employee stock-based awards at their fair values on the date of grant. Stock-based awards issued to non-employees are measured at their fair values on the date of grant and are re-measured at each reporting period through their vesting dates, as applicable. The fair value of stock-based awards is recognized as expense over the service period, net of estimated forfeitures, using the straight-line method.
| F-25 |
| Table of Contents |
Basic and Diluted Earnings/Loss per Common Share
Earnings per share (“EPS”) is the amount of earnings attributable to each share of Common Stock. For convenience, the term is used to refer to either earnings or loss per share. EPS is computed pursuant to Section 260-10-45 of the FASB Accounting Standards Codification. Pursuant to ASC Paragraphs 260-10-45-10 through 260-10-45-16, basic EPS shall be computed by dividing income available to Common Stock holders (the numerator) by the weighted-average number of common shares outstanding (the denominator) during the period. Income available to Common Stock holders shall be computed by deducting both the dividends declared in the period on preferred stock (whether or not paid) and the dividends accumulated for the period on cumulative preferred stock (whether or not earned) from income from continuing operations (if that amount appears in the income statement) and also from net income. The computation of diluted EPS is similar to the computation of basic EPS except that the denominator is increased to include the number of additional common shares that would have been outstanding if the dilutive potential common shares had been issued during the period to reflect the potential dilution that could occur from common shares issuable through preferred stock conversion, stock options, or warrants. Common stock equivalents are not included in the computation of diluted earnings per share when the Company reports a loss because to do so would be anti-dilutive for periods presented.
The following table shows the outstanding dilutive common shares excluded from the diluted net income (loss) per share calculation as they were anti-dilutive:
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| Potential Additional Shares of Common Stock: |
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Potential Dilutive Securities: |
| 2021 |
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| 2020 |
| ||
Preferred stock |
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Warrants |
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Convertible debt |
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Total |
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The Company had total fully diluted shares of Common Stock (potential dilutive securities outstanding plus issued securities outstanding) of
The Company pays dividends to its holders of preferred stock and computes net loss/income per common share attributable (available) to its holders of Common Stock as a separate line item in its statements of operations.
Reclassifications
Certain prior period amounts have been reclassified to conform with the current period presentation.
Recently Issued Accounting Standards
In August 2020, the FASB issued ASU 2020-06, Debt - Debt with Conversion and Other Options (Subtopic 470- 20) and Derivatives and Hedging - Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity (“ASU 2020-06”), which simplifies the accounting for certain financial instruments with characteristics of liabilities and equity. This ASU (1) simplifies the accounting for convertible debt instruments and convertible preferred stock by removing the existing guidance in ASC 470-20, Debt: Debt with Conversion and Other Options, that requires entities to account for beneficial conversion features and cash conversion features in equity, separately from the host convertible debt or preferred stock; (2) revises the scope exception from derivative accounting in ASC 815-40 for freestanding financial instruments and embedded features that are both indexed to the issuer’s own stock and classified in stockholders’ equity, by removing certain criteria required for equity classification; and (3) revises the guidance in ASC 260, Earnings Per Share, to require entities to calculate diluted earnings per share (EPS) for convertible instruments by using the if-converted method.
In addition, entities must presume share settlement for purposes of calculating diluted EPS when an instrument may be settled in cash or shares. For SEC filers, excluding smaller reporting companies, ASU 2020-06 is effective for fiscal years beginning after December 15, 2021, including interim periods within those fiscal years. Early adoption is permitted, but no earlier than fiscal years beginning after December 15, 2020. For all other entities, ASU 2020-06 is effective for fiscal years beginning after December 15, 2023, including interim periods within those fiscal years. Entities should adopt the guidance as of the beginning of the fiscal year of adoption and cannot adopt the guidance in an interim reporting period. The Company is currently evaluating the impact that ASU 2020-06 may have on its financial statements and related disclosures.
| F-26 |
| Table of Contents |
During the year ended December 31, 2021, there were several new accounting pronouncements issued by the FASB. Each of these pronouncements, as applicable, has been or will be adopted by the Company. Management does not believe the adoption of any of these accounting pronouncements has had or will have a material impact on the Company’s financial statements.
NOTE 3 - STOCKHOLDER’S EQUITY
Our current authorized common and preferred shares are
As of December 31, 2021, the number of shares issued and outstanding for each respective class of stock are as follows:
Shares of Common Stock |
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| par value $ | |
Shares Series A preferred stock |
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| par value $ | |
Shares Series B preferred stock |
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| par value $ stated value $ | |
Shares Series C preferred stock |
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| par value $ stated value $ | |
Shares Series D preferred stock |
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| par value $ stated value $ | |
Shares Series E preferred stock |
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| par value $ stated value $ |
Preferred Stock
Our Board of Directors is empowered, upon stockholder approval, to issue shares of preferred stock with dividend, liquidation, redemption, voting or other rights which could adversely affect the voting power or other rights of the holders of Common Stock. In addition, the preferred stock could be utilized as a method of discouraging, delaying, or preventing a change in control of us.
Series A Voting Preferred Stock
For so long as any shares of Series A Voting Preferred Stock remain issued and outstanding, the holders hereof shall possess more than 50% of the voting power of the capital stock of the Corporation. The
Series B Preferred Stock
During the time that any shares of Series B Preferred Stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of
During the year ended December 31, 2021, two Series B Preferred Stockholders elected to convert their
| F-27 |
| Table of Contents |
Series C Preferred Stock
During the time that any shares of Series C Preferred Stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of
Series D Preferred Stock
During the time that any shares of Series D preferred stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of
Series E Preferred Stock
During the time that any shares of Series E preferred stock are issued and outstanding, the holders shall be entitled to receive, and the Company shall pay, cumulative dividends on each share of
Preferred Stock Dividend
During the years ending December 31, 2021, and 2020, total dividends paid were $
Reclassification of Accumulated Other Comprehensive Income
During 2014, the Company ceased its prior business operations in Canada, which were unrelated to its current business and officers, creating the realization of other comprehensive income based on the foreign exchange rate. Based on FASB ASC 830-30-40, upon the sale or liquidation of an investment in a foreign entity, the amount attributable to that entity and accumulated in the translation adjustment component of equity shall be both removed from the separate component of equity and reported as part of the gain or loss on sale or liquidation of the investment. Accordingly, since the cessation happened in 2014, the Company reclassified the accumulated other comprehensive income/loss from foreign currency translation to accumulated deficit in the accompanying financial statements.
Issuances pursuant to debt conversions
During May 2020, the Company issued
| F-28 |
| Table of Contents |
During June 2021, the Company issued
Issuances pursuant to agreements
During May 2021 and June 2020, the Company issued
Warrants outstanding
During the year ended December 31, 2020, the Company issued a warrant for the purchase of
The Company estimated the fair value of the warrants based on weighted probabilities of assumptions used in the Black Scholes pricing model. The weighted average volatility for the warrants at issuance was
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| Weighted-Average |
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| Warrants |
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| Exercise Price |
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Outstanding, January 1, 2020 |
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Granted |
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Exercised |
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Expired |
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| - |
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| - |
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Outstanding, December 31, 2020 |
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Outstanding, January 1, 2021 |
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Granted |
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| - |
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Exercised |
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| - |
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| - |
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Expired |
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| - |
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| - |
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Outstanding, December 31, 2021 |
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| $ |
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Warrants exercisable at December 31, 2021 |
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| $ |
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NOTE 4 - NOTES PAYABLE
Notes payable, related party:
During April 2019, the Company consolidated several notes issued to the Company’s CEO/CFO into a single $
| F-29 |
| Table of Contents |
Convertible notes payable, related party
The Company consolidated
Convertible notes payable:
During November 2017, the Company and a corporation entered into a debt agreement. The agreement bore interest at
Other notes payable:
During December 2013, the Company issued a $
During December 2013, the Company issued a $
During April 2012, the Company issued a $
Accrued Interest
At December 31, 2021, and 2020, accrued interest on all notes and convertible notes amounted to $-
NOTE 5 - FEDERAL INCOME TAX
The Company accounts for income taxes under ASC 740-10, which provides for an asset and liability approach of accounting for income taxes. Under this approach, deferred tax assets and liabilities are recognized based on anticipated future tax consequences, using currently enacted tax laws, attributed to temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts calculated for income tax purposes. The provision (benefit) for income taxes for the years ended December 31, 2021, and 2020 assumes a
At December 31, 2021, and 2020, the Company had approximately $
|
| 2021 |
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| 2020 |
| ||
Net operating loss carryforwards |
| $ |
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| $ |
| ||
Temporary differences |
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| ( | ) |
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Permanent differences |
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| ( | ) |
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| ( | ) |
Valuation allowance |
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| ( | ) |
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| ( | ) |
| F-30 |
| Table of Contents |
Significant components of the Company’s deferred tax assets as of December 31, 2021, and 2020 are summarized below.
|
| 2021 |
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| 2020 |
| ||
Federal tax statutory rate |
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| % |
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| % | ||
Temporary differences |
|
| - | % |
|
| % | |
Permanent differences |
|
| - | % |
|
| - | % |
Valuation allowance |
|
| % |
|
| - | % | |
Effective rate |
|
| % |
|
| % | ||
The Company provides for a valuation allowance when it is more likely than not that it will not realize a portion of the deferred tax assets. The Company has established a valuation allowance against the net deferred tax asset due to the uncertainty that enough taxable income will be generated in those taxing jurisdictions to utilize the assets. Therefore, we have not reflected any benefit of such deferred tax assets in the accompanying financial statements. Our net deferred tax asset and valuation allowance increased by $
To the extent that the tax deduction is included in a net operating loss carry forward and is in excess of amounts recognized for book purposes, no benefit will be recognized until the loss carry forward is recognized. Upon utilization and realization of the carry forward, the corresponding change in the deferred asset and valuation allowance will be recorded as additional paid-in capital.
NOTE 6 - COMMITMENTS/CONTINGENCIES
From time to time, we may be involved in litigation in the ordinary course of business. We are currently not involved in any litigation that we believe could have a material adverse effect on our financial condition or results of operations.
NOTE 7 - CUSTOMER CONCENTRATIONS
For the year ended December 31, 2021, the Company had one retailer customer whose revenue represents more than 10% ($
The Company’s end-user customer sales and retailer customer sales for the years ended December 31, 2021 and 2020 were as follows:
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| 2021 |
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| 2020 |
| ||||||||||
End-User Sales |
| $ |
|
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| % |
| $ |
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| % | ||||
Retailer Sales |
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| % |
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| % | ||||
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| $ |
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| % |
| $ |
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| % | ||||
NOTE 8 - RECOVERY OF RETAILER CHARGEBACKS
During the year ended December 31, 2020, the Company recognized $
NOTE 9 - RELATED PARTY TRANSACTIONS
On July 1, 2021, the Company entered into a consulting agreement with BTB Management Company, a company owned by our CEO/CFO and director, Murray Fleming. The agreement provides for quarterly payments of $
| F-31 |
| Table of Contents |
NOTE 10 - SUBSEQUENT EVENTS
The Company has evaluated subsequent events from the balance sheet through the date of this filing and determined there were no events to disclose except the following.
On January 25, 2022, we entered into an investment banking agreement with EF Hutton. The agreement contemplates the Company raising additional capital in a registered offering, listing on a stock exchange, and preparing a registration statement under the Securities Act. The Company is responsible for EF Hutton’s external counsel legal costs, whether any offering is consummated or not.
Effective on March 11, 2022, we filed Articles of Conversion with the Nevada Secretary of State and a Certificate of Conversion and Certificate of Incorporation with the Delaware Department of State, Division of Corporations and converted to a Delaware corporation. On March 29, 2022, we merged with a subsidiary, created on March 23, 2022, for the sole purpose of the merger, amended and restated our Certificate of Incorporation, and the surviving corporation is Glucose Health, Inc. Our authorized common shares are
On March 14, 2022, we requested and received the resignations of our two independent directors. On March 21, 2022, our third independent director voluntarily resigned. Each independent director held
On April 1, 2022, we entered into a new consulting agreement with BTB Management Company, a company owned by our CEO/CFO and director, Murray Fleming. The agreement provides for quarterly payments of $
| F-32 |
3,438,402
Shares of Common Stock
One Warrant to Purchase One Share of Common Stock
Glucose Health, Inc.
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PROSPECTUS
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Sole Bookrunner
EF HUTTON
division of Benchmark Investments, LLC
, 2023
Through and including , 2022 (the 25th day after the date of this Prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a Prospectus. This is in addition to a dealer’s obligation to deliver a Prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable in connection with the sale and distribution of the securities being registered. All amounts are estimated except the SEC registration fee and FINRA filing fee. Except as otherwise noted, all the expenses below will be paid by us.
Offering Expenses |
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SEC registration fee |
| $ | 2,055 |
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FINRA filing fee |
| $ | 5,000 |
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Legal fees and expenses |
| $ | [*] |
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Accounting fees and expenses |
| $ | [*] |
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Miscellaneous expenses |
| $ | [*] |
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Total |
| $ | [*] |
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Item 14. Indemnification of Directors and Officers
We are a Delaware corporation and generally governed by the Delaware General Corporation Law (the “DGCL”).
Section 102(b)(7) of the DGCL enables a corporation in its certificate of incorporation, or an amendment thereto, to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for violations of the director’s fiduciary duty as a director, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing for director liability with respect to unlawful payment of dividends or unlawful stock purchases or redemptions) or (iv) for any transaction from which a director derived an improper personal benefit. Our A&R Charter provides for such limitation of liability.
Our Certificate of Incorporation and Bylaws provide that, to the fullest extent permitted by the DGCL, a member of the Board shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty owed to the Company its stockholders.
We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (2) to us with respect to indemnification payments that we may make to such directors and officers.
At the present time, there is no pending litigation or proceeding involving a director, officer, employee, or other agent of ours in which indemnification would be required or permitted. We are not aware of any threatened litigation or proceeding that may result in a claim for such indemnification. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is therefore unenforceable.
Item 15. Recent Sales of Unregistered Securities
The following information is given with regard to unregistered securities sold during the preceding three years including the dates and amounts of securities sold, the persons or class of persons to whom we sold the securities, the consideration received in connection with such sales and, if the securities were issued or sold other than for cash, the description of the transaction and the type and amount of consideration received. The unregistered securities were made in reliance upon the exemptions provided by Section 3(a)(9) of the Securities Act, Section 4(a)(1) of the Securities Act, Section 4(a)(2) of the Securities Act and/or Rule 506 of Regulation D promulgated thereunder for the offer and sale of securities not involving a public offering. With respect to each transaction noted below, no general solicitation was made by either the Company or any person acting on its behalf. All securities issued were restricted securities under the Securities Act and appropriate legends were placed on the documents evidencing the securities, indicating they may not be offered or sold absent registration or pursuant to an exemption. The following transactions noted below do not reflect our planned Common Stock Reverse Split.
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On April 1, 2019, we issued a warrant to purchase 600,000 shares of Common Stock at an exercise price of $0.10 per share to an individual upon appointment as a Company director. We recorded an expense of $94,260 based upon the $0.16 quoted price of our Common Stock. The warrant was cancelled on March 22, 2022.
On May 1, 2019, we entered into a stock purchase agreement with four investors. Pursuant to the stock purchase agreement we issued 4,000,000 shares of our Common Stock at a price of $0.05 per share and 3,466,668 shares of our Series B Preferred Stock, at a price of $0.075 per share, to the investors for consideration of an aggregate amount of $460,000.
On June 3, 2019, we issued 40,000 shares of our Common Stock to an individual for services rendered to the Company pursuant to a verbal agreement. We valued the consideration received at $6,800 based upon the $0.17 quoted price of our Common Stock.
On June 3, 2019, we issued 57,500 shares of our Common Stock to an individual for services rendered to the Company pursuant to a verbal agreement. We valued the consideration received at $9,775 based upon the $0.17 quoted price of our Common Stock.
On July 15, 2019, we issued a warrant to purchase 600,000 shares of Common Stock at an exercise price of $0.10 per share to an individual upon appointment as a Company director. We recorded an expense of $96,720 based upon the $0.16 quoted price of our Common Stock. The warrant was cancelled on March 22, 2022.
On April 30, 2020, we entered into a stock purchase agreement with four investors. Pursuant to the stock purchase agreement, we issued 866,668 shares of our Series C Preferred Stock, at a price of $0.075 per share, to the investors in consideration of an aggregate amount of $65,000.
On May 4, 2020, we issued 226,164 shares of our Common Stock pursuant to a notice of conversion of $3,392.47 principal and interest owing on a December 10, 2013, convertible promissory note issued by the Company acquired by the holder on November 1, 2017.
On June 1, 2020, we issued 200,000 shares of our Common Stock to a corporation pursuant to an agreement for advertising services. We valued the consideration received at $84,000 based upon the $0.42 quoted price of our Common Stock.
On June 10, 2020, we issued a warrant to purchase 600,000 shares of Common Stock at an exercise price of $0.10 per share to an individual upon appointment as a Company director. We recorded an expense of $440,694 based upon the $0.735 quoted price of our Common Stock. The warrant was cancelled on March 22, 2022.
On June 17, 2020, we entered into a stock purchase agreement with eight investors. Pursuant to the stock purchase agreement, we issued a total of 3,000,000 shares of our Series D Preferred Stock to the investors, at a price of $0.10 per share, in consideration of an aggregate amount of $300,000.
On February 11, 2021, we entered into stock purchase agreements with eleven investors. Pursuant to the stock purchase agreements, we issued a total of 480,000 shares of our Series E Preferred Stock to the investors, at a price of $2.00 per share, in consideration of an aggregate amount of $960,000.
On May 15, 2021, we issued 197,347 shares of our Common Stock to a corporation pursuant to an agreement for advertising services. We valued the consideration received at $412,455 based upon the $2.09 quoted price of our Common Stock.
On May 28, 2021, we converted 666,667 shares of our Series B Preferred Stock, held by a trust into 666,667 shares of our Common Stock pursuant a notice of conversion.
On June 15, 2021, we issued 690,000 shares of our Common Stock to our CEO/CFO, pursuant to a notice of conversion of $7,590 principal and interest owing on an April 1, 2016, consolidated convertible promissory note, which consolidated 18 convertible promissory notes issued by the Company prior to April 1, 2016, without additional consideration to the holder.
On June 21, 2021, we converted 666,667 shares of our Series B Preferred Stock, held by a corporation into 666,667 shares of our Common Stock pursuant to a notice of conversion.
On October 9, 2022, we converted 2,133,334 shares of our Series B Preferred Stock held by two shareholders into 2,133,334 shares of our Common Stock. On the same day, we converted 700,001 shares of Series C Preferred stock held by three shareholders into 700,001 shares of our Common Stock.
On January 3, 2023, we converted 180,000 shares of our Series E Preferred Stock held by two shareholders into 180,000 shares of our Common Stock.
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Item 16. Exhibits and Financial Statement Schedules
(a) | Exhibits. |
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Exhibit |
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| S-1 | 2.1 |
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| S-1 | 2.2 |
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| S-1 | 3.1 |
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| S-1 | 3.2 |
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| Amended and Restated Certificate of Incorporation of Glucose Health, Inc., March 29, 2022 |
| S-1 | 3.3 |
| 06/01/22 |
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| S-1 | 3.4 |
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| S-1 | 3.5 |
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5.1* |
| Legal Opinion of Lucosky Brookman LLP |
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| S-1 | 10.2 | 06/01/22 |
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| S-1 | 10.3 | 06/01/22 |
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| S-1 | 10.4 | 06/01/22 |
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| S-1 | 10.5 | 06/01/22 |
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| Convertible Promissory Note issued to BTB Management Company, dated April 1, 2016 |
| S-1 | 10.6 | 08/05/22 |
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| S-1 | 10.6 | 09/02/22 |
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| S-1 | 10.7 | 06/01/22 |
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| Consulting agreement by and between Cascadia Managing Brands, LLC, dated February 1, 2022 |
| S-1 | 10.8 | 06/01/22 |
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| Form of Independent Director Agreement between Glucose Health, Inc. and William Sipper |
| S-1 | 10.9 | 08/05/22 |
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| Form of Independent Director Agreement between Glucose Health, Inc. and Robert Sipper |
| S-1 | 10.10 | 08/05/22 |
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| Consent of FRUCI & Associates II, PLLC, dated January 6, 2023 |
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23.2* |
| Consent of Lucosky Brookman LLP (reference is made to Exhibit 5.1) |
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| S-1 | 99.4 | 06/01/22 |
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| S-1 | 99.5 | 06/01/22 |
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101.INS |
| Inline XBRL Instance Document (the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document). |
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101.SCH |
| Inline XBRL Taxonomy Extension Schema Document. |
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101.CAL |
| Inline XBRL Taxonomy Extension Calculation Linkbase Document. |
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101.DEF |
| Inline XBRL Taxonomy Extension Definition Linkbase Document. |
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101.LAB |
| Inline XBRL Taxonomy Extension Labels Linkbase Document. |
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101.PRE |
| Inline XBRL Taxonomy Extension Presentation Linkbase Document. |
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104 |
| Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101). |
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* To be filed by amendment.
** Previously filed.
† Executive compensation plan or arrangement
# Certain information contained in this Exhibit, identified by [***], has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and is the type of information that Glucose Health, Inc. treats as private or confidential.
No financial statement schedules are provided because the information called for is not required or is shown in the financial statements or related notes.
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Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any Prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of Prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser, each Prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than Prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or Prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or Prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or Prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-1 and has duly caused this registration statement or amendment thereto to be signed on its behalf by the undersigned, thereunto duly authorized, in Bentonville, AR, on January 9, 2023.
| Glucose Health, Inc. |
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| By: | /s/ Murray Fleming |
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| Murray Fleming |
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| Chief Executive Officer |
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities held on the dates indicated.
Signature |
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/s/ Murray Fleming |
| Chief Executive Officer |
| January 9, 2023 |
Murray Fleming |
| (principal executive officer) and Sole Director |
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/s/ Murray Fleming |
| Chief Financial Officer |
| January 9, 2023 |
Murray Fleming |
| (principal financial officer and principal accounting officer) |
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EXHIBIT 1.1
UNDERWRITING AGREEMENT
between
GLUCOSE HEALTH, INC.,
and
EF HUTTON,
DIVISION OF BENCHMARK INVESTMENTS, LLC
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS
TABLE OF CONTENTS
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| Section 1. Purchase and Sale of Firm Shares and Over-Allotment Option |
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| Section 2. Representations and Warranties of the Company |
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| Section 3. Covenants of the Company |
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| Section 4. Conditions of Underwriters’ Obligations |
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| Section 5. Indemnification |
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| Section 6. Default by an Underwriter |
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| Section 7. Additional Covenants |
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| Section 8. Effective Date of This Agreement and Termination Thereof |
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| Section 9. Miscellaneous |
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LIST OF SCHEDULES AND EXHIBITS
| Schedule 1: List of Underwriters |
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| Schedule 2-A: Pricing Information |
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| Schedule 2-B: Issuer General Use Free Writing Prospectuses |
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| Schedule 2-C: Written Testing-The-Waters Communications |
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| Schedule 3: Lock-Up Parties |
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| Exhibit A – Form of Representative’s Warrant |
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| Exhibit B- Form of Lock-Up Agreements for Officers, Directors, and 5% or Greater Shareholders |
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| Exhibit C- Press Release |
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| Exhibit D- Form of Opinion and Negative Assurance of Lucosky Brookman LLP |
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| Exhibit E- Officers’ Certificate |
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| Exhibit F- Secretary’s Certificate |
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GLUCOSE HEALTH, INC.
UNDERWRITING AGREEMENT
New York, New York
[●], 202[●]
EF Hutton,
Division of Benchmark Investments, LLC
As Representative of the several Underwriters named on Schedule 1 attached hereto
590 Madison Avenue, 39th Floor
New York, New York 10022
Ladies and Gentlemen:
The undersigned, Glucose Health, Inc., a company incorporated under the laws of the State of Delaware (the “Company”), hereby confirms its agreement (this “Agreement”) with EF Hutton, Division of Benchmark Investments, LLC, (hereinafter referred to as “you” (including its correlatives), or “EF Hutton” or the “Representative”) and with the other underwriters named on Schedule 1 hereto for which the Representative is acting as representative (the Representative and such other underwriters being collectively called the “Underwriters” or, individually, an “Underwriter”) for the purchase and sale of the Company’s common stock, par value $0.001 per share (the “Common Stock”) pursuant to the following terms:
Section 1. Purchase and Sale of Common Stock.
5.1 Firm Shares.
1.1.1. Nature and Purchase of Firm Shares and Representative’s Warrants.
(i) On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, (i) the Company agrees to issue and sell to the several Underwriters, severally and not jointly, and the Underwriters, severally and not jointly, agree to purchase from the Company an aggregate of [●] duly authorized shares of Common Stock (the “Firm Shares”) at a purchase price of $[●] per share (92% of the per Firm Share offering price). The Firm Shares are to be offered initially to the public at the offering price set forth on the cover page of the Prospectus (as defined in Section 2.1.1 hereof).
1.1.2. Payment and Delivery of the Firm Shares.
(i) Delivery and payment for the Firm Shares shall be made at 10:00 a.m., Eastern time, on the second (2nd) Business Day following the effective date (the “Effective Date”) of the Registration Statement (as defined in Section 2.1.1 below) (or the third (3rd) Business Day following the Effective Date if the Registration Statement is declared effective after 4:01 p.m., Eastern Time) or at such earlier time as shall be agreed upon by the Representative and the Company, at the offices of Carmel, Milazzo & Feil LLP, 55 West 39th Street, 18th Floor, New York, New York 10018 (“Representative Counsel”), or at such other place (or remotely by facsimile or other electronic transmission) as shall be agreed upon by the Representative and the Company. The hour and date of delivery and payment for the Firm Shares is called the “Closing Date.”
(ii) Payment for the Firm Shares shall be made on the Closing Date by wire transfer in Federal (same day) funds, payable to the order of the Company in the applicable amount upon delivery of the certificates (in form and substance satisfactory to the Underwriters) representing the Firm Shares to be sold by the Company(or through the facilities of the Depository Trust Company (“DTC”) for the account of the Underwriters. The Company shall not be obligated to sell or deliver the Firm Shares except upon tender of payment by the Representative for all of the Firm Shares. The term “Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions are authorized or obligated by law to close in New York, New York; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay-at-home,” “shelter-in-place,” “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
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1.2 Over-allotment Option.
1.2.1. Option Shares. For the purposes of covering any over-allotments in connection with the distribution and sale of the Firm Shares, the Company hereby grants to the Underwriters an option to purchase up to [●] additional shares of Common Stock (the “Option Shares”), representing up to fifteen percent (15%) of the Firm Shares sold in the Offering, from the Company (the “Over-allotment Option”). The purchase price to be paid per Option Share shall be equal to $[●]. The Firm Shares and Option Shares are collectively referred to together as the “Public Securities.” The offering and sale of the Public Securities contemplated by this Agreement is referred to herein as the “Offering.”
1.2.2. Exercise of Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representative as to all (at any time) or any part (from time to time) of the Option Shares within 45 days after the Effective Date. The Underwriters shall not be under any obligation to purchase any Option Shares prior to the exercise of the Over-allotment Option. The Over-allotment Option granted hereby may be exercised by the giving of oral notice to the Company from the Representative, which must be confirmed in writing by overnight mail or email or other electronic transmission in accordance with Section 9.1 hereof setting forth the number of Option Shares to be purchased and the date and time for delivery of and payment for the Option Shares (the “Option Closing Date”), which shall not be later than the third (3rd) full Business Day after the date of the notice or such other time as shall be agreed upon by the Company and the Representative, at the offices of the Representative Counsel, or at such other place (including remotely by facsimile or other electronic transmission) as shall be agreed upon by the Company and the Representative. If such delivery and payment for the Option Shares does not occur on the Closing Date, the Option Closing Date will be as set forth in the notice. Upon exercise of the Over-allotment Option with respect to all or any portion of the Option Shares, subject to the terms and conditions set forth herein, (i) the Company shall become obligated to sell to the Underwriters the number of Option Shares specified in such notice and (ii) each of the Underwriters, acting severally and not jointly, shall purchase that portion of the total number of Option Shares then being purchased as set forth in Schedule 1 opposite the name of such Underwriter.
1.2.3. Payment and Delivery. Payment for Option Shares shall be made on the applicable Option Closing Date by wire transfer in Federal (same day) funds, payable to the order of the Company upon delivery of certificates (in form and substance satisfactory to the Underwriters) representing the Option Shares (or through the facilities of DTC) for the account of the Underwriters to the Representative. The Option Shares shall be registered in such name or names and in such authorized denominations as the Representative may request in writing at least one (1) full Business Day prior to the Option Closing Date. The Company shall not be obligated to sell or deliver the Option Shares except upon tender of payment by the Representative for applicable Option Shares.
1.3 Representative’s Warrants.
1.3.1 Issuance of Representative’s Warrants. The Company hereby agrees to issue to the Representative (and/or its designees) on the Closing Date and on any Option Closing Date, one or more warrants for the purchase of an aggregate of [●] shares of Common Stock, representing 2% of the number of Firm Shares, in the case of the Closing Date and in the case of an Option Closing Date, [●]% of the Option Shares sold on such Option Closing Date, in the form attached hereto as Exhibit A (the “Representative’s Warrants”). The Representative’s Warrants shall be exercisable, in whole or in part, commencing on a date which is six (6) months after the Effective Date and expiring on the five-year anniversary of the Effective Date at an initial exercise price per share of $[●] per share of Common Stock, which is equal to 150.0% of the initial public offering price of the Public Securities. The Representative’s Warrants and the Common Stock issuable upon exercise thereof are hereinafter referred to together as the “Representative’s Securities.” The Representative understands and agrees that there are significant restrictions pursuant to FINRA Rule 5110 against transferring the Representative’s Warrants and the underlying shares of Common Stock during the one hundred eighty (180) days after the Effective Date and by its acceptance thereof shall agree that it will not sell, transfer, assign, pledge or hypothecate the Representative’s Warrants, or any portion thereof, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such securities for a period of one hundred eighty (180) days following the Effective Date to anyone other than (i) an Underwriter or a selected dealer in connection with the Offering, or (ii) a bona fide officer or partner of the Representative or of any such Underwriter or selected dealer; and only if any such transferee agrees to the foregoing lock-up restrictions.
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1.3.2 Delivery. Delivery of the Representative’s Warrants shall be made on the Closing Date or the Option Closing Date(s), as applicable, and shall be issued in the name or names and in such authorized denominations as the Representative may request.
Section 2. Representations and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Applicable Time (as defined below), as of the Closing Date and as of the Option Closing Date, if any, as follows:
2.1 Filing of Registration Statement.
2.1.1. Pursuant to the Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”) a registration statement, and an amendment or amendments thereto, on Form S-1 (File No. 333-265335), including any related prospectus or prospectuses, for the registration of the Public Securities and the Representative’s Securities under the Securities Act of 1933, as amended (the “Securities Act”), which registration statement and amendment or amendments have been prepared by the Company in all material respects in conformity with the requirements of the Securities Act and the rules and regulations of the Commission under the Securities Act (the “Securities Act Regulations”) and will contain all material statements that are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations. Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration statement became effective (including the Preliminary Prospectus included in the registration statement, financial statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to be a part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A of the Securities Act Regulations (the “Rule 430A Information”)), is referred to herein as the “Registration Statement.” If the Company files any registration statement pursuant to Rule 462(b) of the Securities Act Regulations, then after such filing, the term “Registration Statement” shall include such registration statement filed pursuant to Rule 462(b). The Registration Statement has been declared effective by the Commission on the date hereof.
Each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “Preliminary Prospectus.” The Preliminary Prospectus, subject to completion, dated [●], 2023, that was included in the Registration Statement immediately prior to the Applicable Time is hereinafter called the “Pricing Prospectus.” The final prospectus in the form first furnished to the Underwriters for use in the Offering that includes the Rule 430A Information is hereinafter called the “Prospectus.” Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement.
“Applicable Time” means [●] [a.m./p.m.], Eastern Time, on the date of this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act Regulations (“Rule 433”), including, without limitation, any “free writing prospectus” (as defined in Rule 405 of the Securities Act Regulations) relating to the Public Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Public Securities or of the Offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic Road Show”)), as evidenced by its being specified in Schedule 2-B hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
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“Pricing Disclosure Package” means any Issuer General Use Free Writing Prospectus issued at or prior to the Applicable Time, the Pricing Prospectus, and the information included on Schedule 2-A hereto, all considered together.
2.1.2. Pursuant to the Exchange Act. The Company has filed with the Commission a Form 8-A (File No. 333-[●]) providing for the registration of the Common Stock pursuant to Section 12(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Form 8-A Registration Statement was declared effective by the Commission on or prior to the date hereof. The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act, nor has the Company received any notification that the Commission is contemplating terminating such registration.
2.2 Stock Exchange Listing. The Common Stock has been approved for listing on the Nasdaq (the “Exchange”), subject only to official notice of issuance, and the Company has taken no action designed to, or likely to have the effect of, delisting the Common Stock from the Exchange, nor has the Company received any notification that the Exchange is contemplating terminating such listing.
2.3 No Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted or, to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied with each request (if any) from the Commission for additional information.
2.4 Disclosures in Registration Statement.
2.4.1. Compliance with Securities Act and 10b-5 Representation.
(i) Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus, including the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus delivered to the Underwriters for use in connection with this Offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to the Commission’s EDGAR filing system (“EDGAR”), except to the extent permitted by Regulation S-T promulgated under the Securities Act (“Regulation S-T”).
(ii) Neither the Registration Statement nor any amendment thereto, at its effective time, as of the Applicable Time, at the Closing Date or at any Option Closing Date (if any), contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iii) The Pricing Disclosure Package, as of the Applicable Time, at the Closing Date and at any Option Closing Date (if any), did not, does not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Limited Use Free Writing Prospectus hereto does not conflict in any material respect with the information contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, and each such Issuer Limited Use Free Writing Prospectus, as supplemented by and taken together with the Pricing Prospectus as of the Applicable Time, did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by the Representative expressly for use in the Registration Statement, the Pricing Prospectus or the Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of any Underwriter consists solely of the following: the names of the Underwriters, the information with respect to stabilizing transactions contained in the section “Underwriting – Price Stabilization, Short Positions”, the section “Underwriting – Underwriting Discount,” the distribution information under “Electronic Distribution”, and the number of shares of Common Stock to be purchased by each Underwriter(the “Underwriters’ Information”).
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(iv) Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), at the Closing Date or at any Option Closing Date, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to the Underwriters’ Information.
2.4.2. Disclosure of Agreements. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package and the Prospectus conform in all material respects to the descriptions thereof contained therein and there are no agreements or other documents required by the Securities Act and the Securities Act Regulations to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound or affected and (i) that is referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and except for any unenforceability that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Change (as defined in Section 2.5.1 below). None of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the Company’s knowledge, any other party is in material default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder except for such defaults that would not reasonably be expected to result in a Material Adverse Change (as defined in Section 2.5.1 below). To the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses (each, a “Governmental Entity”), including, without limitation, those relating to environmental laws and regulations, that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Change as defined in Section 2.5.1 below.
2.4.3. Prior Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling, controlled by or under common control with the Company, except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Preliminary Prospectus.
2.4.4. Regulations. The disclosures in the Registration Statement, the Pricing Disclosure Package and the Prospectus concerning the effects of material applicable federal, state, local and any applicable foreign laws, rules and regulations relating to the Offering and the Company’s business as currently conducted or contemplated are correct and complete in all material respects and no other such laws, rules or regulations are required to be disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus which are not so disclosed.
2.5 Changes After Dates in Registration Statement.
2.5.1. No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in the financial position or results of operations of the Company, nor, to the Company’s knowledge, any development that, singularly or in the aggregate, would reasonably be expected to result in a material adverse change, in or affecting the condition (financial or otherwise), results of operations, business or assets of the Company (a “Material Adverse Change”); (ii) there have been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement; and (iii) no officer or director of the Company has resigned from any position with the Company.
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2.5.2. Recent Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has not: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its Common Stock or preferred stock (collectively, the “capital stock”).
2.6 Independent Accountants. To the knowledge of the Company, Fruci & Associates, PS (the “Auditor”), whose report is filed with the Commission as part of the Registration Statement, the Pricing Disclosure Package and the Prospectus, is an independent registered public accounting firm as required by the Securities Act and the Securities Act Regulations and the Public Company Accounting Oversight Board. To the knowledge of the Company, the Auditor has not, during the periods covered by the financial statements included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
2.7 Financial Statements, etc. The financial statements, including the notes thereto and supporting schedules (if any) included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, fairly present in all material respects the financial condition and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved (provided that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material in the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules included in the Registration Statement, if any, present fairly in all material respects the information required to be stated therein. Except as included therein, no other historical or pro forma financial statements are required to be included in the Registration Statement, the Pricing Disclosure Package or the Prospectus under the Securities Act or the Securities Act Regulations. Each of the Registration Statement, the Pricing Disclosure Package and the Prospectus discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons, if any, that may have a material current or future effect on the Company’s financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (a) the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock, (c) there has not been any change in the capital stock of the Company, or, other than in the course of business, any grants under any stock compensation plan, and (d) there has not been any material adverse change in the Company’s long-term or short-term debt.
2.8 Authorized Capital; Options, etc. The Company had at the date or dates indicated in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the duly authorized, issued and outstanding share capitalization as set forth therein. Based on the assumptions stated in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company will have on the Closing Date the adjusted share capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Pricing Disclosure Package and the Prospectus, on the Effective Date, as of the Applicable Time and on the Closing Date and any Option Closing Date, there will be no stock options, or other rights to purchase or otherwise acquire any authorized, but unissued shares of the Company or any security convertible or exercisable into shares of the Company, or any contracts or commitments to issue or sell Common Stock or any such options, rights or convertible securities.
2.9 Valid Issuance of Securities, etc.
2.9.1. Outstanding Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The authorized capital stock conform in all material respects to all statements relating thereto contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus. The Company has taken all necessary actions to cause its organizational documents to be in full force and effect in accordance with the relevant laws of the State of Delaware on the Closing Date. The offers and sales of the outstanding capital stock were at all relevant times either registered under the Securities Act and the applicable state securities or “blue sky” laws or, based in part on the representations and warranties of the purchasers of such shares, exempt from such registration requirements.
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2.9.2. Securities Sold Pursuant to this Agreement. The Public Securities and Representative’s Securities have been duly authorized for issuance and sale and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof will not be subject to personal liability by reason of being such holders; the Public Securities and Representative’s Securities are and will be free from the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all Company action required to be taken for the authorization, issuance and sale of the Public Securities and Representative’s Securities has been duly and validly taken. The Representative’s Warrants, when issued pursuant to this Agreement, will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the Common Stock underlying the Representative’s Warrants. The Public Securities and Representative’s Securities conform in all material respects to all statements with respect thereto contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.10 Registration Rights of Third Parties. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no holders of any securities of the Company or any options, rights or other securities exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Securities Act or to include any such securities in the Registration Statement or any other registration statement to be filed by the Company.
2.11 Authorization and Delivery of the Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
2.12 No Conflicts, etc. The execution, delivery and performance by the Company of this Agreement and all ancillary documents, the consummation by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a material breach of, or conflict with any of the terms and provisions of, or constitute a material default under, or result in the creation, modification, termination or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to which the Company is a party or as to which any property of the Company is a party; (ii) result in any violation of the provisions of the Company’s certificate of incorporation, bylaws, or other organizational or charter documents (as the same have been amended or restated from time to time; or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof, except in the case of clauses (i) and (iii) for such breach, conflict, default or violation which would not reasonably be expected to cause a Material Adverse Change.
2.13 No Defaults; Violations. Except as may be set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no material default exists in the due performance and observance of any term, covenant or condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject, except for any such default that would not be reasonably expected to result in a Material Adverse Change. The Company is not in violation of its certificate of incorporation, bylaws or other organizational or charter documents, or in violation of any franchise, license, permit, applicable law, rule, regulation, judgment or decree of any Governmental Entity, except for such violations that would not be reasonably expected to result in a Material Adverse Change.
2.14 Corporate Power; Licenses; Consents.
2.14.1. Conduct of Business. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business in all material respects as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
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2.14.2. Transactions Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid issuance, sale and delivery of the Public Securities and the consummation of the transactions and agreements contemplated by this Agreement, except (A) the registration under the Securities Act of the Public Securities, which has been effected, (B) the necessary filings and approvals from the Exchange to list the Public Securities, (C) such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws and the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) in connection with the purchase and distribution of the Public Securities by the several Underwriters, (D) such consents and approvals as have been obtained and are in full force and effect, and (E) such consents, approvals, orders, authorizations and filings the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Change.
2.15 D&O Questionnaires. To the Company’s knowledge, all information contained in the director and officer questionnaires (the “Questionnaires”) completed by each of the Company’s directors and officers prior to the Offering (the “Insiders”) as supplemented by all information concerning the Company’s directors, officers and principal shareholders as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, provided to the Underwriters, is true and correct in all material respects and the Company has not become aware of any information which would cause the information disclosed in the Questionnaires to become materially inaccurate and incorrect.
2.16 Litigation; Governmental Proceedings. There are no actions, suits, proceedings, inquiry, arbitrations, investigations, litigations or governmental proceedings pending or, to the Company knowledge, threatened against, or involving the Company which has not been disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus and actions, suits or proceedings that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Change or materially and adversely affect the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by each of the Registration Statement, the Pricing Disclosure Package and the Prospectus or (ii) that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described. To the Company knowledge, the Company’s listing application for the listing of the Public Securities on the Exchange does not omit any required disclosures with respect to actions suits or proceedings, if any, involving the Company and its executive officer and directors.
2.17 Good Standing. The Company and its subsidiaries are duly incorporated or otherwise organized, validly existing, and in good standing under the laws of the jurisdiction of their incorporation or organization, with the requisite power and authority to own and use their properties and assets and to carry on its business as currently conducted, except where the failure to qualify, singularly or in the aggregate, would not have or reasonably be expected to result in a Material Adverse Change.
2.18 Insurance. The Company carries or is entitled to the benefits of insurance, with insurers of recognized financial responsibility, in such amounts and covering such risks which the Company believes are adequate as are customary for companies engaged in similar business. The Company shall use commercially reasonable efforts to ensure directors and officers insurance coverage, at least equal to $1,000,000, is in full force and effect within 120 days of the Closing Date. The Company has no reason to believe that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not reasonably be expected to result in a Material Adverse Change.
2.19 Transactions Affecting Disclosure to FINRA.
2.19.1. Finder’s Fees. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or, to the Company’s knowledge, any Insider with respect to the sale of the Public Securities hereunder or any other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any of its shareholders that may affect the Underwriters’ compensation, as determined by FINRA.
2.19.2. Payments Within Twelve (12) Months. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect affiliation or association with any FINRA member, within the twelve (12) months prior to the Effective Date, other than the payment to the Underwriters as provided hereunder in connection with the Offering.
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2.19.3. Use of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates, except as specifically authorized herein.
2.19.4. FINRA Affiliation. To the Company’s knowledge, there is no (i) officer or director of the Company, (ii) beneficial owner of 5% or more of any class of the Company’s securities or (iii) beneficial owner of the Company’s unregistered equity securities which were acquired during the 180-day period immediately preceding the filing of the Registration Statement that is an affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with the rules and regulations of FINRA).
2.19.5. Information. To the Company’s knowledge, all information provided by the Company in its FINRA questionnaire to Representative Counsel specifically for use by Representative Counsel in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct and complete in all material respects.
2.20 Foreign Corrupt Practices Act. None of the Company or, to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company or any other person acting on behalf of the Company, has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction) that could reasonably be expected to (i) subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, have had a Material Adverse Change or (iii) if not continued in the future, adversely affect the assets, business, operations or prospects of the Company. The Company has taken reasonable steps to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all material respects with the Foreign Corrupt Practices Act of 1977, as amended.
2.21 Compliance with OFAC. None of the Company or, to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company or any other person acting on behalf of the Company, is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), and the Company will not, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC (“Sanctions”).
2.22 Money Laundering Laws. The operations of the Company are and have been conducted at all times in material compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company with respect to the Money Laundering Laws is pending or, to the Company’s knowledge, threatened.
2.23 Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Representative or to Representative Counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.24 [RESERVED].
2.25 Subsidiaries. All direct and indirect subsidiaries of the Company are duly organized and in good standing under the laws of the place of organization or incorporation, and each subsidiary is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to qualify would not have a material adverse effect on the assets, business or operations of the Company taken as a whole. The Company’s ownership and control of each subsidiary is as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
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2.26 Related Party Transactions. There are no business relationships or related party transactions involving the Company or any other person required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus that have not been described as required under the Securities Act and the Securities Act Regulations.
2.27 Board of Directors. The Board of Directors of the Company is comprised of the persons set forth under the heading of the Pricing Prospectus and the Prospectus captioned “Management.” The qualifications of the persons serving as board members and the overall composition of the board comply with the Exchange Act, the rules and regulations of the Commission promulgated thereunder (the “Exchange Act Regulations”), the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder (the “Sarbanes-Oxley Act”) applicable to the Company and the listing rules of the Exchange, including the phase-in rules of the Exchange. At least one member of the Audit Committee of the Board of Directors of the Company qualifies as an “audit committee financial expert,” as such term is defined under Regulation S-K and the listing rules of the Exchange. In addition, at least a majority of the persons serving on the Board of Directors qualify as “independent,” as defined under the listing rules of the Exchange.
2.28 Sarbanes-Oxley Compliance.
2.28.1. Disclosure Controls. The Company has developed disclosure controls and procedures that will comply in all material respects with Rule 13a-15 or 15d-15 under the Exchange Act Regulations, and such controls and procedures will be effective to ensure that all material information concerning the Company will be made known on a timely basis to the individuals responsible for the preparation of the Company’s Exchange Act filings and other public disclosure documents.
2.28.2. Compliance. The Company is and at the Applicable Time and on the Closing Date will be, in compliance with the provisions of the Sarbanes-Oxley Act applicable to it, and has implemented or will implement such programs and has taken reasonable steps to ensure the Company’s future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the provisions of the Sarbanes-Oxley Act then applicable to the Company.
2.29 Accounting Controls. The Company is in the process of establishing systems of “internal control over financial reporting” (as defined under Rules 13a-15 and 15d-15 under the Exchange Act Regulations) that will comply in all material respects with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company is not aware of any material weaknesses in its internal controls. To the Company’s knowledge, the Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are known to the Company’s management and that have adversely affected or are reasonably likely to adversely affect the Company’ ability to record, process, summarize and report financial information; and (ii) any fraud known to the Company’s management, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
2.30 No Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be, required to register as an “investment company,” as defined in the Investment Company Act of 1940, as amended.
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2.31 No Labor Disputes. No labor dispute with the employees of the Company exists or, to the knowledge of the Company, is imminent.
2.32 Intellectual Property Rights. The Company owns or possesses or has valid rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property Rights”) necessary for the conduct of the business of the Company as currently carried on and as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where the failure to own, possess or have valid rights to use any of the foregoing would not reasonably be expected to have a material adverse effect on the Company. To the knowledge of the Company, no action or use by the Company necessary for the conduct of its business as currently carried on and as described in the Registration Statement and the Prospectus would reasonably be expected to involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property Rights of others. The Company has not received any notice alleging any such infringement, fee or conflict with asserted Intellectual Property Rights of others. Except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change (A) to the knowledge of the Company, there is no infringement, misappropriation or violation by third parties of any of the Intellectual Property Rights owned by the Company; (B) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the rights of the Company in or to any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim, that would, individually or in the aggregate, together with any other claims in this Section 2.32, reasonably be expected to result in a Material Adverse Change; (C) the Intellectual Property Rights owned by the Company and, to the knowledge of the Company, the Intellectual Property Rights licensed to the Company have not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim that would, individually or in the aggregate, together with any other claims in this Section 2.32, reasonably be expected to result in a Material Adverse Change; (D) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company infringes, misappropriates or otherwise violates any Intellectual Property Rights or other proprietary rights of others, the Company has not received any written notice of such claim and the Company is unaware of any other facts which would form a reasonable basis for any such claim that would, individually or in the aggregate, together with any other claims in this Section 2.32, reasonably be expected to result in a Material Adverse Change; and (E) to the Company’s knowledge, no employee of the Company is in or has ever been in violation in any material respect of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment with the Company, or actions undertaken by the employee while employed with the Company and could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change. To the Company’s knowledge, all material technical information developed by and belonging to the Company which has not been patented has been kept confidential. The Company is not a party to or bound by any options, licenses or agreements with respect to the Intellectual Property Rights of any other person or entity that are required to be set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus and are not described therein. The Registration Statement, the Pricing Disclosure Package and the Prospectus contain in all material respects the same description of the matters set forth in the preceding sentence. None of the technology employed by the Company has been obtained or is being used by the Company in violation of any contractual obligation binding on the Company or, to the Company’s knowledge, any of its officers, directors or employees, or otherwise in violation of the rights of any persons.
2.33 Taxes. Except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company, (i) the Company has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof, and (ii) the Company has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company, except those that are being contested in good faith or as would not have, individually or in the aggregate, result in a Material Adverse Change. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements. Except as disclosed in writing to the Underwriters, (i) no material issues have been raised (and are currently pending) by any taxing authority in connection with any of the returns or taxes asserted as due from the Company, and (ii) no waivers of statutes of limitation with respect to the returns or collection of taxes have been given by or requested from the Company. The term “taxes” means all federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements and other documents required to be filed in respect to taxes.
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2.34 ERISA Compliance. The Company and any “employee benefit plan” (as defined under the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established or maintained by the Company or its “ERISA Affiliates” (as defined below) are in compliance in all material respects with ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the “Code”) of which the Company is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under ERISA). Neither the Company nor any of its ERISA Affiliates has incurred or reasonably expects to incur any material liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and, to the knowledge of the Company, nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
2.35 Compliance with Laws. The Company: (A) is and at all times has been in compliance with all statutes, rules, or regulations applicable to the business of the Company as currently conducted (“Applicable Laws”), except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; ; (B) has not received any warning letter, untitled letter or other correspondence or written notice from any Governmental Entity alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws and/or to carry on its business as now conducted (“Authorizations”); (C) possesses all Authorizations and such Authorizations are valid and in full force and effect and are not in violation of any term of any such Authorizations, except where the invalidity of such Authorizations or the failure of such Authorizations to be in full force and effect would not result in a Material Adverse Change; (D) has not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental Entity or third party alleging that any activity conducted by the Company is in violation of any Applicable Laws or Authorizations and has no knowledge that any such Governmental Entity or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding that if brought, would result in a Material Adverse Change; (E) has not received written notice that any Governmental Entity has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge that any such Governmental Entity has threatened or is considering such action; (F) has filed, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission) except where the failure to be so in compliance would not, individually or in the aggregate, result in a Material Adverse Change.
2.36 Environmental Laws. The Company is in compliance with all foreign, federal, state and local rules, laws and regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection of health and safety or the environment which are applicable to their businesses (“Environmental Laws”), except where the failure to comply would not, singularly or in the aggregate, result in a Material Adverse Change. There has been no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind of toxic or other wastes or other hazardous substances by, due to, or caused by the Company (or, to the Company’s knowledge, any other entity for whose acts or omissions the Company is or may otherwise be liable) upon any of the property now or previously owned or leased by the Company, or upon any other property, in violation of any law, statute, ordinance, rule, regulation, order, judgment, decree or permit or which would, under any law, statute, ordinance, rule (including rule of common law), regulation, order, judgment, decree or permit, give rise to any liability, except for any violation or liability which would not have, singularly or in the aggregate with all such violations and liabilities, a Material Adverse Change; and there has been no disposal, discharge, emission or other release of any kind onto such property or into the environment surrounding such property of any toxic or other wastes or other hazardous substances with respect to which the Company has knowledge, except for any such disposal, discharge, emission, or other release of any kind which would not have, singularly or in the aggregate with all such discharges and other releases, a Material Adverse Change. In the ordinary course of business, the Company conducts periodic reviews of the effect of Environmental Laws on its business and assets, in the course of which they identify and evaluate associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or governmental permits issued thereunder, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such reviews, the Company has reasonably concluded that such associated costs and liabilities would not have, singularly or in the aggregate, a Material Adverse Change.
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2.37 Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the Effective Date and at the time of any amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Public Securities and at the Effective Date, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
2.38 Real Property. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real property which are material to the business of the Company and its subsidiaries taken as a whole, in each case free and clear of all liens, encumbrances, security interests, claims and defects that do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or its subsidiaries; and all of the leases and subleases material to the business of the Company and its subsidiaries, and under which the Company and its subsidiaries hold properties described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, are, to the Company’s knowledge, in full force and effect, and neither the Company nor any subsidiary has received any written notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company to the continued possession of the leased or subleased premises under any such lease or sublease.
2.39 Title to Personal Property. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company and its subsidiaries have good and marketable title to, or have valid rights to lease or otherwise use, all items of personal property (other than Intellectual Property, which is addressed in Section 2.32 hereof) which are material to the business of the Company and its subsidiaries taken as a whole, in each case free and clear of all liens, encumbrances, security interests, claims and defects that do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or its subsidiaries; and all of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, are, to the Company’s knowledge, in full force and effect, and neither the Company nor any subsidiary has received any written notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or any subsidiary to the continued possession of the leased or subleased personal property under any such lease or sublease.
2.40 Loans to Directors or Officers. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business), or guarantees or indebtedness by the Company to or for the benefit of any of the officers or directors of the Company or any of their respective family members, except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
2.41 Integration. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the Offering to be integrated with prior offerings by the Company for purposes of the Securities Act that would require the registration of any such securities issued in such prior offerings under the Securities Act.
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2.42 Smaller Reporting Company. As of the time of filing of the Registration Statement, the Company was a “smaller reporting company,” as defined in Rule 12b-2 of the Exchange Act Regulations.
2.43 Industry Data. The statistical and market-related data included in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
2.44 Contracts Affecting Capital. There are no transactions, arrangements or other relationships between and/or among the Company, any of its affiliates (as such term is defined in Rule 405 of the Securities Act Regulations) and any unconsolidated entity, including, but not limited to, any structured finance, special purpose or limited purpose entity that could reasonably be expected to materially affect the Company’s or its subsidiaries’ liquidity or the availability of or requirements for their capital resources required to be described or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus which have not been described or incorporated by reference as required.
2.45 Testing-the-Waters Communications. The Company has not (i) alone engaged in any Testing-the-Waters Communications, other than Testing-the-Waters Communications with the written consent of the Representative and with entities that are qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act and (ii) authorized anyone other than the Representative to engage in Testing-the-Waters Communications. The Company confirms that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule 2-C hereto. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act.
2.46 Electronic Road Show. The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) of the Securities Act Regulations such that no filing of any “road show” (as defined in Rule 433(h) of the Securities Act Regulations) is required in connection with the Offering.
2.47 Margin Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the shares of Common Stock to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.
2.48 Dividends and Distributions. Except as disclosed in the Pricing Disclosure Package, Registration Statement and the Prospectus, no subsidiary of the Company is currently prohibited or restricted, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company.
2.49 Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
2.50 Confidentiality and Non-Competitions. To the Company’s knowledge, no director, officer, key employee, or consultant of the Company or any subsidiary is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with any employer (other than the Company) or prior employer that could materially affect his or her ability to be and act in his or her respective capacity of the Company or such subsidiary or be expected to result in a Material Adverse Change.
2.51 Corporate Records. The minute books of the Company have been made available to the Representative and Representative Counsel and such books (i) contain minutes of all material meetings and actions of the Board of Directors (including each board committee) and shareholders of the Company, and (ii) reflect all material transactions referred to in such minutes.
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2.52 Diligence Materials. The Company has provided to the Representative and Representative Counsel all materials required or necessary to respond in all material respects to the diligence request submitted to the Company or Company Counsel by the Representative.
Section 3. Covenants of the Company. The Company covenants and agrees as follows:
3.1 Amendments to Registration Statement. The Company shall deliver to the Representative, prior to filing, any amendment or supplement to the Registration Statement or Prospectus proposed to be filed after the Effective Date and not file any such amendment or supplement to which the Representative shall reasonably object in writing.
3.2 Federal Securities Laws.
3.2.1. (a) Financial Statements. The financial statements of the Company included in the Registration Statement, the Pricing Disclosure Package comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States GAAP, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package, the Prospectus, conform in all material aspects to the descriptions thereof contained therein and there are no agreements or other documents required by the Securities Act and the rules and regulations thereunder to be described in the Registration Statement, the Pricing Disclosure Package, the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company or a subsidiary is a party or by which it or such subsidiary is or may be bound or affected and (i) that is referred to in the Registration Statement, the Pricing Disclosure Package, the Prospectus or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company or a subsidiary, respectively, is in full force and effect in all material respects and is enforceable against the Company or such subsidiary and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought. Except as described in the Registration Statement, none of such agreements or instruments has been assigned by the Company or subsidiary, and neither the Company nor, to the Company’s knowledge, a subsidiary or any other party is in default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder. To the Company’s knowledge, performance by the Company or the subsidiary of the material provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order, or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company, a subsidiary, or any of their assets or businesses, including, without limitation, those relating to environmental laws and regulations.
(b) Compliance. The Company, subject to Section 3.2.2, shall comply with the requirements of Rule 430A of the Securities Act Regulations, and will, during the period required to permit the completion of the distribution of the Public Securities as contemplated in this Agreement and in the Registration Statement, the Pricing Disclosure Package and the Prospectus, notify the Representative promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed; (ii) of the receipt of any comments from the Commission; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information; (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Public Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the Offering of the Public Securities. The Company shall effect all filings required under Rule 424(b) of the Securities Act Regulations, in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and shall take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company shall use commercially reasonable efforts to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
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3.2.2. Continued Compliance. The Company shall comply with the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations so as to permit the completion of the distribution of the Public Securities as contemplated in this Agreement and in the Registration Statement, the Pricing Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”), would be) required by the Securities Act to be delivered in connection with sales of the Public Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) amend or supplement the Pricing Disclosure Package or the Prospectus in order that the Pricing Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Company will promptly (A) give the Representative notice of such event; (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Pricing Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representative with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representative or counsel for the Underwriters shall reasonably object. The Company will make available to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company shall give the Representative notice of its intention to make any such filing from the Applicable Time until the later of the Closing Date and the exercise in full or expiration of the Over-allotment Option specified in Section 1.2 hereof and will furnish the Representative with copies of the related document(s) a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object.
3.2.3. Exchange Act Registration. For a period of three (3) years after the date of this Agreement, (i) the Company shall use its reasonable best efforts to maintain the registration of the shares of Common Stock under the Exchange Act, and (ii) for a period of two (2) years after the date of this Agreement, the Company shall not deregister any of the shares of Common Stock under the Exchange Act without the prior written consent of the Representative.
3.2.4. Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representative, it shall not make any offer relating to the Public Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representative shall be deemed to have consented to each Issuer General Use Free Writing Prospectus hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Representative as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus, there has occurred or is occurring an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
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3.2.5. Testing-the-Waters Communications. If at any time following the distribution of any Written Testing-the-Waters Communication, there occurred or is occurring an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company shall promptly notify the Representative and shall promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
3.3 Delivery to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make available to the Representative and counsel for the Representative, without charge, conformed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to each Underwriter, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) upon receipt of a written request therefor from such Underwriter. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
3.4 Delivery to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to each Underwriter, without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations, would be) required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
3.5 Effectiveness and Events Requiring Notice to the Representative. The Company shall use its best efforts to cause the Registration Statement to remain effective with a current prospectus for at least 9 months after the Applicable Time, and shall notify the Representative promptly and confirm the notice in writing: (i) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission of any stop order or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of the receipt of any comments or request for any additional information from the Commission; and (vi) of the happening of any event during the period described in this Section 3.5 that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement, the Pricing Disclosure Package or the Prospectus untrue or that requires the making of any changes in (a) the Registration Statement in order to make the statements therein not misleading, or (b) in the Pricing Disclosure Package or the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification at any time, the Company shall use its commercially reasonable efforts to obtain promptly the lifting of such order.
3.6 Retention of Auditor; Review of Financial Statements. For a period of three (3) years after the date of this Agreement, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the three fiscal quarters immediately preceding the announcement of any quarterly financial information.
3.7 Listing. As of the Effective Date and for three (3) years thereafter, the Company shall use its reasonable best efforts to effect and maintain the listing of the Common Stock (including the Public Securities) on the Exchange.
3.8 Reserved.
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3.9 Transfer Agent. As of the Effective Date and for a period of three (3) years thereafter, the Company shall have retained a transfer agent for the Common Stock reasonable acceptable to the Representative and shall furnish to the Representative at the Company’s sole cost and expense such transfer sheets of the Company’s securities as the Representative may reasonably request, including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. Nevada Agency and Transfer Company is acceptable to the Representative to act as Transfer Agent for the Common Stock.
3.10 Payment of Expenses.
3.10.1. General Expenses Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if any, to the extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to: (a) all filing fees and expenses relating to the registration of the Securities with the Commission; (b) all fees and expenses relating to the listing of the Common Stock on a national exchange, if applicable; (c) all fees, expenses and disbursements relating to the registration or qualification of the Securities under the “blue sky” securities laws of such states and other jurisdictions as EF Hutton may reasonably designate (including, without limitation, all filing and registration fees, and the reasonable fees and disbursements of the Company’s “blue sky” counsel, which will be EF Hutton’s counsel) unless such filings are not required in connection with the Company’s proposed listing on a national exchange, if applicable; (d) all fees, expenses and disbursements relating to the registration, qualification or exemption of the Securities under the securities laws of such foreign jurisdictions as EF Hutton may reasonably designate; (e) the costs of all mailing and printing of the Offering documents; (f) transfer and/or stamp taxes, if any, payable upon the transfer of Securities from the Company to EF Hutton; (g) the fees and expenses of the Company’s accountants; (h) all filing fees and communication expenses associated with the review of the Offering by FINRA; (i) up to $7,500 of EF Hutton’s actual accountable road show expenses for the Offering; (j) the $4,500 cost associated with EF Hutton’s use of Ipreo’s book building, prospectus tracking and compliance software for the offering; (k) the costs associated with bound volumes of the Offering materials as well as commemorative mementos and lucite tombstones in an aggregate amount not to exceed $3,000; and (l) the fees for EF Hutton’s legal counsel, in an amount not to exceed $135,000. For the sake of clarity, it is understood and agreed that the Company shall be responsible for EF Hutton’s external counsel legal costs detailed in this Section 3.10.1 irrespective of whether the Offering is consummated or not, subject to $50,000 if there is not a Closing. Additionally, the Company previously provided an expense advance (the “Advance”) to EF Hutton of $50,000. The Advance shall be applied towards out-of-pocket accountable expense set forth herein and any portion of the Advance shall be returned to the Company to the extent not actually incurred. EF Hutton may deduct from the net proceeds of the Offering payable to the Company on the date of Closing, or the closing of the Over-Allotment Option, if any, the expenses set forth herein to be paid by the Company to the underwriters.
3.10.2. Non-accountable Expenses. The Company further agrees that, in addition to the expenses payable pursuant to Section 3.10.1, on the Closing Date, it shall pay to the Representative, by deduction from the net proceeds of the Offering contemplated herein, a non-accountable expense allowance equal to nine tenths of a percent (0.9%) of the gross proceeds received by the Company from the sale of the Public Securities.
3.11 Application of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent with the application thereof described under the caption “Use of Proceeds” in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
3.12 Delivery of Earnings Statements to Security Holders. The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
3.13 Stabilization. Neither the Company nor, to its knowledge, any of its employees, directors or stockholders (without the consent of the Representative) has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Public Securities.
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3.14 Reports to the Representative.
3.14.1. Periodic Reports, etc. On or prior to the date of this Agreement, the Company shall register the Common Shares under the provisions of Section 12(b) or 12(g) of the Exchange Act. The Company, during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations. Additionally, the Company shall report the use of proceeds from the issuance of the Public Securities as may be required under Rule 463 under the Securities Act Regulations. For a period of three (3) years after the date of this Agreement, the Company shall furnish or make available to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities and also promptly furnish to the Representative: (i) a copy of each periodic report the Company shall be required to file with the Commission under the Exchange Act and the Exchange Act Regulations; (ii) a copy of every press release and every news item and article with respect to the Company or its affairs which was released by the Company; (iii) a copy of each Form 8-K prepared and filed by the Company; (iv) a copy of each registration statement filed by the Company under the Securities Act; (v) a copy of each report or other communication furnished to shareholders and (vi) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request. Documents filed with the Commission pursuant to its EDGAR system shall be deemed to have been delivered to the Representative pursuant to this Section 3.14.1.
3.14.2 Trading Reports. For a period of three (3) years after the date of this Agreement, during such time as the Public Securities are listed on the Exchange, the Company shall provide to the Representative, at the Company’s expense, such reports published by the Exchange relating to price trading of the Public Securities, as the Representative shall reasonably request.
3.15 FINRA. For a period of sixty (60) days from the later of the Closing Date or the Option Closing Date, the Company shall advise the Representative (who shall make an appropriate filing with FINRA) if it is or becomes aware that (i) any officer or director of the Company, (ii) any beneficial owner of 10% or more of any class of the Company’s securities or (iii) any beneficial owner of the Company’s unregistered equity securities which were acquired during the 180 days immediately preceding the filing of the Registration Statement is or becomes an affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with the rules and regulations of FINRA).
3.16 No Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely contractual in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in a fiduciary capacity, or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering and the other transactions contemplated by this Agreement. The Company agrees that any and all decisions, acts, actions, or omissions with respect to the Offering shall be the sole responsibility of the Company, and that the performance by the Representative and the Underwriters hereunder shall in no way expose the Representative or the Underwriters to any liability for any such decisions, acts, actions or omissions of the Company.
3.17 Lock-Up Agreements.
3.17.1. Restriction on Sales of Capital Stock. The Company, on behalf of itself and any successor entity, agrees that, without the prior written consent of the Representative, it will not, for a period of 360 days after the date of this Agreement (the “Lock-Up Period”), (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; (ii) file or cause to be filed any registration statement with the Commission relating to the offering of any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; (iii) complete any offering of debt securities of the Company, other than entering into a line of credit , term loan, or other loan with a traditional bank, or (iv) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of capital stock of the Company, whether any such transaction described in clause (i), (ii), (iii) or (iv) above is to be settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise. The restrictions contained in this Section 3.17.1 shall not apply to Exempted Securities.
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“Exempted Securities” means: (i) the Firm Shares to be sold hereunder, (ii) the issuance by the Company of shares of Common Stock upon the exercise of an outstanding stock option or the conversion of a security outstanding on the date hereof, of which the Representative has been advised in writing, (iii) any issuance of securities disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus, (iv) the issuance of securities issued as part of the purchase price in connection with acquisitions or strategic transactions approved a majority of the disinterested directors of the Company, or securities issued in financing transactions, the primary purpose of which is to finance acquisitions or strategic transactions approved a majority of the disinterested directors of the Company, (v) Common Stock, options or convertible securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction, approved by a majority of the disinterested directors of the Company, but shall not include a transaction in which the Company is primarily issuing such securities primarily for the purpose of raising capital or to a person or an entity whose primary business is investing in securities, (vi) Common Stock, options or convertible securities issued to in connection with the provision of goods or services pursuant to transactions approved by a majority of the disinterested directors of the Company, but shall not include a transaction in which the Company is primarily issuing such securities primarily for the purpose of raising capital or to a person or an entity whose primary business is investing in securities, (vii) Common Stock, options or convertible securities issued in connection with sponsored research, collaboration, technology license, development, investor or public relations, marketing or other similar agreements or strategic partnerships approved a majority of the disinterested directors of the Company, but shall not include a transaction in which the Company is primarily issuing such securities primarily for the purpose of raising capital or to a person or an entity whose primary business is investing in securities, or (viii) the issuance by the Company of any shares of Common Stock or standard options to purchase Common Stock to directors, officers, employees or consultants of the Company or its subsidiaries in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that all of the issuances proposed to be made pursuant to items (iv) through (vii) above during the Lock Up Period are approved in advance by the Representative to the extent that such securities so issued are issued at a price per security, and none of the issuances of securities provide for registration rights to any holder or to any holder of an option or convertible security. “Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which Common Stock and standard options to purchase Common Stock may be issued to any employee, officer, director or consultant for services provided to the Company or its subsidiaries in their capacity as such.
3.17.2 Insider Lock-Up. The Company’s directors and officers as of the effective date of the Registration Statement as listed on Schedule 3 hereto shall enter into “lock-up” agreements in favor of EH Hutton, in the form set forth in Exhibit B hereto (the “Lock-Up Agreement”), pursuant to which Company shall not during the period ending 180-days after the date of closing of this Offering, and directors and officers shall not during the period ending 180-days after the date of closing of this Offering; offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company, subject to certain exceptions set forth in the Lock-Up Agreement.
3.18 Blue Sky Qualifications. The Company shall use its commercially reasonable efforts, in cooperation with the Underwriters, if necessary, to qualify the Public Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representative may designate and to maintain such qualifications in effect so long as required to complete the distribution of the Public Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
3.19 Press Releases. Prior to the Closing Date and any Option Closing Date, the Company shall not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Representative is notified), without the prior written consent of the Representative, which consent shall not be unreasonably withheld, unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law.
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3.20 Sarbanes-Oxley. The Company shall at all times comply in all material respects with all applicable provisions of the Sarbanes-Oxley Act in effect from time to time.
3.21 IRS Forms. If requested by the Representative, the Company shall deliver to each Underwriter (or its agent), prior to or at the Closing Date, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such form.
Section 4. Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Public Securities, as provided herein, shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date hereof and as of each of the Closing Date and the Option Closing Date, if any; (ii) the accuracy of the statements of officers of the Company made pursuant to the provisions hereof; (iii) the performance by the Company of its obligations hereunder; and (iv) the following conditions:
4.1 Regulatory Matters.
4.1.1 Effectiveness of Registration Statement; Rule 430A Information. The Registration Statement has become effective not later than 5:30 p.m., Eastern Time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at each of the Closing Date and any Option Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto shall have been issued under the Securities Act, no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus shall have been issued and no proceedings for any of those purposes shall have been instituted or are pending or, to the Company’s knowledge, contemplated by the Commission. The Company has complied with each request (if any) from the Commission for additional information. A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) under the Securities Act Regulations (without reliance on Rule 424(b)(8)) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A under the Securities Act Regulations.
4.1.2. FINRA Clearance. On or before the date of this Agreement, the Representative shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3 Exchange Clearance. On the Closing Date, the Company’s Common Stock shall have been approved for listing on the Exchange, subject only to official notice of issuance. On the first Option Closing Date (if any), the Company’s Common Stock, including the Option Shares, shall have been approved for listing on the Exchange, subject only to official notice of issuance.
4.2 Company Counsel Matters.
4.2.1 Closing Date Opinion of Counsel. On the Closing Date, the Representative shall have received the favorable opinion, and written statement providing certain “10b-5” negative assurances of Lucosky Brookman LLP (“Company Counsel”) counsel to the Company, reasonably satisfactory to the Representative, dated the Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to the Representative. On the Closing Date, the Representative shall have received the favorable opinion of Company Counsel, dated the Closing Date and addressed to the Representative, substantially in the form reasonably satisfactory to the Representative.
4.2.2 Option Closing Date Opinion of Counsel. On the Option Closing Date, if any, the Representative shall have received the favorable opinion of counsel and negative assurance statement listed in Section 4.2.1, dated the Option Closing Date, addressed to the Representative and in form and substance reasonably satisfactory to the Representative, confirming as of the Option Closing Date, the statements made by such counsel in their respective opinion delivered on the Closing Date.
4.2.3 Reliance. In rendering such opinions, such counsel may reasonably rely: (i) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative) of other counsel reasonably acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact, to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company, provided that copies of any such statements or certificates shall be delivered to Representative Counsel if requested.
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4.3 Comfort Letters.
4.3.1 Cold Comfort Letter. At the time this Agreement is executed the Representative shall have received a cold comfort letter from the Auditor containing statements and information of the type customarily included in accountants’ comfort letters with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus, addressed to the Representative and in form and substance reasonably satisfactory in all respects to the Representative and to Representative Counsel, dated as of the date of this Agreement.
4.3.2 Bring-down Comfort Letter. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received from the Auditor a letter, dated as of the Closing Date or the Option Closing Date, as applicable, to the effect that the Auditor reaffirms the statements made in the letter furnished pursuant to Section 4.3.1, except that the specified date referred to shall be a date not more than three (3) Business Days prior to the Closing Date or the Option Closing Date, as applicable.
4.4 Officers’ Certificates.
4.4.1 Officers’ Certificate. The Company shall have furnished to the Representative a certificate, as set forth in Exhibit E attached hereto, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the Pricing Disclosure Package, any Issuer Free Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, as of the Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Pricing Disclosure Package, as of the Applicable Time and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), any Issuer Free Writing Prospectus as of its date and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Pricing Disclosure Package or the Prospectus, (iii) to their knowledge, as of the Closing Date (or any Option Closing Date if such date is other than the Closing Date), the representations and warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as of such date, and the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date (or any Option Closing Date if such date is other than the Closing Date), and (iv) there has not been, subsequent to the date of the most recent audited financial statements included in the Pricing Disclosure Package, any Material Adverse Change.
4.4.2 Secretary’s Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate of the Company signed by the Secretary of the Company, dated the Closing Date or the Option Closing Date, as the case may be, respectively, as set forth in Exhibit F attached hereto, certifying that: (i) that the certificate of incorporation is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
4.5 Good Standing Certificates. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate of the secretary of state or other official dated on or about the Closing Date and each Option Closing Date, certifying that the Company is in existence, is active and is in good standing in such jurisdiction.
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4.6 No Material Changes. Prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have been no Material Adverse Change in the condition or prospects or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any Insider before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may reasonably be expected to cause a Material Adverse Change, except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus; (iii) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations and shall conform in all material respects to the requirements of the Securities Act and the Securities Act Regulations, and neither the Registration Statement, the Pricing Disclosure Package nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
4.7 No Material Misstatement or Omission. The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Option Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Representative Counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the Registration Statement, the Pricing Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of Representative Counsel, is material or omits to state any fact which, in the opinion of Representative Counsel, is material and is necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
4.8 Corporate Proceedings. All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Public Securities, the Registration Statement, the Pricing Disclosure Package, each Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to Representative Counsel, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
4.9 Delivery of Agreements.
4.9.1 Lock-Up Agreement. Each director and officer has delivered to the Representative an executed Lock-Up Agreement in the form attached hereto as Exhibit B, prior to the execution of this Agreement.
4.9.2 Representative’s Warrants. On the Closing Date and on each Option Closing Date, if any, the Company shall have delivered to the Representative executed copies of the Representative’s Warrants.
4.10 Additional Documents. At the Closing Date and at each Option Closing Date (if any) Representative Counsel shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling Representative Counsel to deliver an opinion to the Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Public Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and Representative Counsel.
Section 5. Indemnification.
5.1 Indemnification of the Underwriters.
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5.1.1. The Company shall indemnify and hold harmless each Underwriter, its affiliates and each of its and their respective directors, officers, stockholders, members, managers, employees, representatives, partners, shareholders, affiliates, counsel and agents and each person, if any, who controls any such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Underwriter Indemnified Parties,” and each an “Underwriter Indemnified Party”), against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising out of any action between any of the Underwriter Indemnified Parties and the Company or between any of the Underwriter Indemnified Parties and any third party, or otherwise), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or any other statute or at common law or otherwise or under the laws of foreign countries, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (i) the Registration Statement, the Pricing Disclosure Package, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus (as from time to time each may be amended and supplemented); (ii) any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the Offering, including any “road show” or investor presentations made to investors by the Company (whether in person or electronically); or (iii) any application or other document or written communication (in this Section 5, collectively called “application”) executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Public Securities under the securities laws thereof or filed with the Commission, any state securities commission or agency, the Exchange or any other national securities exchange; or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, unless such statement or omission was made in reliance upon, and in conformity with, the Underwriters’ Information. With respect to any untrue statement or omission or alleged untrue statement or omission made in the Pricing Disclosure Package, the indemnity agreement contained in this Section 7.1.1 shall not inure to the benefit of any Underwriter Indemnified Party to the extent that any loss, liability, claim, damage or expense of such Underwriter Indemnified Party (a) is based on the Underwriters’ Information, (b) results from the fact that a copy of the Prospectus was not given or sent to the person asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale of the Public Securities to such person as required by the Securities Act and the Securities Act Regulations, and if the untrue statement or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus was a result of non-compliance by the Company with its obligations under Section 3.3 hereof, or (c) is found in a final, non-appealable judgment of a court of competent jurisdiction to have resulted primarily from the willful misconduct or gross negligence of such Underwriter Indemnified Party.
5.1.2. [Reserved].
5.1.3. Procedure. If any action is brought against an Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 5.1.1, such Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the approval of such Underwriter Indemnified Party) and payment of actual expenses if an Underwriter Indemnified Party requests that the Company do so. Such Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Company. The Company shall not be liable for any settlement of any action related to it effected without its consent (which shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Underwriters, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Underwriter Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each Underwriter Indemnified Party, acceptable to such Underwriter Indemnified Party, from all liabilities, expenses and claims arising out of such action for which indemnification or contribution may be sought and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Underwriter Indemnified Party.
5.2 Indemnification of the Company. Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in Section 5.1, as incurred, but only with respect to untrue statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package or Prospectus or any amendment or supplement thereto or in any application, in reliance upon, and in strict conformity with, the Underwriters’ Information. In case any action shall be brought against the Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, the Pricing Disclosure Package or Prospectus or any amendment or supplement thereto or any application, and in respect of which indemnity may be sought against any Underwriter, such Underwriter shall have the rights and duties given to the Company and the Company, its directors, its officers who signed the Registration Statement and persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the rights and duties given to the several Underwriters by the provisions of Section 5.1.3. The Company agrees to promptly notify the Representative of the commencement of any litigation or proceedings against the Company or any of its officers, directors or any person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or , as applicable, in connection with the issuance and sale of the Public Securities or in connection with the Registration Statement, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication.
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5.3 Contribution.
5.3.1. Contribution Rights. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 5.1 or 5.2 in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company, as applicable, on the one hand, and each of the Underwriters, on the other, from the Offering, or (ii) if, the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the other, with respect to such Offering shall be deemed to be in the same proportion as the total net proceeds from the Offering purchased under this Agreement (before deducting expenses) received by the Company, and the total underwriting discount and commissions received by the Underwriters in connection with the Offering, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand, and the Underwriters, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand, or the Underwriters, on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement, omission, act or failure to act. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 5.3.1 were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage, expense, liability, action, referred to above in this Section 5.3.1 shall be deemed to include, for purposes of this Section 5.3.1, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, defending against or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action, investigation or proceeding. Notwithstanding the provisions of this Section 5.3.1 no Underwriter shall be required to contribute any amount in excess of the total discount and commission received by such Underwriter in connection with the Offering less the amount of any damages which such Underwriter has otherwise paid or becomes liable to pay by reason of any untrue or alleged untrue statement, omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
5.3.2. Contribution Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice of the commencement of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party (“contributing party”), notify the contributing party of the commencement thereof, but the failure to so notify the contributing party will not relieve it from any liability which it may have to any other party other than for contribution hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party or its representative of the commencement thereof within the aforesaid 15 days, the contributing party will be entitled to participate therein with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be liable to any party seeking contribution on account of any settlement of any claim, action or proceeding affected by such party seeking contribution without the written consent of such contributing party. The contribution provisions contained in this Section 5.3.2 are intended to supersede, to the extent permitted by law, any right to contribution under the Securities Act, the Exchange Act or otherwise available. The Underwriters’ obligations to contribute as provided in this Section 5.3 are several and in proportion to their respective underwriting obligation, and not joint.
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Section 6. Default by an Underwriter.
6.1 Default Not Exceeding 10% of Firm Shares or Option Shares. If any Underwriter or Underwriters shall default in its or their obligations to purchase the Firm Shares or the Option Shares, if the Over-allotment Option is exercised hereunder, and if the number of the Firm Shares or Option Shares with respect to which such default relates does not exceed in the aggregate 10% of the number of Firm Shares or Option Shares that all Underwriters have agreed to purchase hereunder, then such Firm Shares or Option Shares to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2 Default Exceeding 10% of Common Shares or Option Shares. In the event that the default addressed in Section 6.1 relates to more than 10% of the number of Firm Shares or Option Shares, the Representative may in its discretion arrange for itself or for another party or parties to purchase such Firm Shares or Option Shares to which such default relates on the terms contained herein. If, within one (1) Business Day after such default relating to more than 10% of the number of Firm Shares or Option Shares, the Representative does not arrange for the purchase of such Firm Shares or Option Shares, then the Company (with respect to the Firm Shares only) shall be entitled to a further period of one (1) Business Day within which to procure another party or parties satisfactory to the Representative to purchase said Firm Shares or Option Shares on such terms. In the event that neither the Representative, nor the Company (with respect to the Firm Shares only) arrange for the purchase of the Firm Shares or Option Shares to which a default relates as provided in this Section 6, this Agreement will automatically be terminated without liability to any party to any other party, except for the provisions of Section 3.10, Section 5 and Section 8.3 shall at all times be effective and shall survive such termination; provided, however, that if such default occurs with respect to the Option Shares, this Agreement will not terminate as to the Firm Shares; and provided, further, that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to the other Underwriters and to the Company for damages occasioned by its default hereunder.
6.3 Postponement of Closing Date. In the event that the Firm Shares or Option Shares to which the default relates are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure Package or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment to the Registration Statement, the Pricing Disclosure Package or the Prospectus that in the opinion of Representative Counsel may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with like effect as if it had originally been a party to this Agreement with respect to such Firm Shares or Option Shares.
Section 7. Additional Covenants.
7.1 Board Composition and Board Designations. The Company shall ensure as of the Closing Date and the Option Closing Date, if any, that: (i) the qualifications of the persons serving as members of the Board of Directors and the overall composition of the Board of Directors comply with the Sarbanes-Oxley Act, the Exchange Act and the listing rules of the Exchange or any other national securities exchange, as the case may be, in the event the Company seeks to have its Public Securities listed on another exchange or quoted on an automated quotation system, and (ii) if applicable, at least one member of the Audit Committee of the Board of Directors qualifies as an “audit committee financial expert,” as such term is defined under Regulation S-K and the listing rules of the Exchange.
7.2 Prohibition on Press Releases and Public Announcements. The Company shall not issue press releases or engage in any other publicity, without the Representative’s prior written consent, for a period ending at 5:00 p.m., Eastern time, on the first (1st) Business Day following the fortieth (40th) day after the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business.
7.3 Tail Financing. In the event that the Company receives proceeds from the sale of any equity, debt and/or equity derivative instruments (“Tail Financing”) from any investor actually introduced by the Representative to the Company and the Company has direct knowledge of such investor’s participation, during the period beginning on January 21, 2022 and ending on the closing date of this Offering (the “Engagement Period”) and such Tail Financing is consummated at any time during the Engagement Period or within the twelve (12) month period following the termination of the Engagement Period , the Representative shall be entitled to a cash fee equal to eight percent (8.0%) of the gross proceeds received by the Company (the “Tail Financing”), Notwithstanding anything else herein to the contrary, the Representative shall not be entitled to fees under this Section 7.3 from the sales of securities to Affiliates.
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Section 8. Effective Date of this Agreement and Termination Thereof.
8.1 Effective Date. This Agreement shall become effective when the Company and the Representative have executed the same and delivered counterparts of such signatures to the other party.
8.2 Termination. The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative’s reasonable opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange shall have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction; or (iii) if the United States shall have become involved in a new war or an increase in major hostilities; or (iv) if a banking moratorium has been declared by a New York State or federal authority; or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities markets; or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative’s reasonable opinion, make it inadvisable to proceed with the delivery of the Firm Shares or Option Shares ; or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder; or (viii) if the Representative shall have become aware after the date hereof of a Material Adverse Change, or an adverse material change in general market conditions as in the Representative’s judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Public Securities or to enforce contracts made by the Underwriters for the sale of the Public Securities.
8.3 Expenses. Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters, pursuant to Section 5.2 above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified herein or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay to the Underwriters their actual and accountable expenses related to the transactions contemplated herein then due and payable (including the fees and disbursements of Representative Counsel) up to $150,000, less the “Advance” and upon demand the Company shall pay the full amount thereof to the Representative on behalf of the Underwriters; provided, however, that such expense cap in no way limits or impairs the indemnification and contribution provisions of this Agreement. Notwithstanding the foregoing, any advance received by the Representative will be reimbursed to the Company to the extent not actually incurred in compliance with FINRA Rule 5110(g)(4)(A). In addition, nine tenths of a percent (0.9%) of the gross proceeds of the Offering shall be provided to the Representative for non-accountable expenses.
8.4 Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 4 shall remain in full force and effect and shall not be in any way affected by, such election or termination or failure to carry out the terms of this Agreement or any part hereof.
8.5 Representations, Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its affiliates or selling agents, any person controlling any Underwriter, its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Public Securities.
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Section 9. Miscellaneous.
9.1 Notices. All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed (registered or certified mail, return receipt requested), personally delivered or sent by email and confirmed and shall be deemed given when so delivered or emailed and confirmed or if mailed, two (2) days after such mailing.
If to the Representative:
EF Hutton, division of Benchmark Investments, LLC
as Representative of the several Underwriters named on Schedule 1 attached hereto
Attn: Mr. Joseph T. Rallo, CEO
590 Madison Avenue, 39th Floor
New York, New York 10022
Email: jrallo@efhuttongroupcm.com
with a copy (which shall not constitute notice) to:
Ross Carmel, Esq.
Carmel, Milazzo & Feil LLP
55 West 39th Street, 18th Floor
New York, New York 10018
Email: rcarmel@cmfllp.com
If to the Company:
Glucose Health, Inc.
Attn: Murray Fleming, Chief Executive Officer
609 SW 8th Street Suite 600
Bentonville, AR 72712
Email: murray@glucosehealth.com
with a copy (which shall not constitute notice) to:
Joseph M. Lucosky, Esq.
Lucosky Brookman LLP
101 Wood Avenue South, 5th Floor
Woodbridge, NJ 08330
Email: jlucosky@lucbro.com
9.2 Headings; Interpretation. The headings contained herein are for the sole purpose of convenience of reference and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement. References to the Company herein shall include each of its subsidiaries as the context may require.
9.3 Amendment. This Agreement may only be amended by a written instrument executed by each of the parties hereto.
9.4 Entire Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.5 Binding Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters, the Company, and the controlling persons, directors, officers referred to in Section 5 hereof, and their respective successors, legal representatives, heirs and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any provisions herein contained. The term “successors and assigns” shall not include a purchaser, in its capacity as such, of securities from any of the Underwriters.
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9.6 Governing Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflict of laws principles thereof to the extent that such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. The Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.1 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim. The Company agrees that the prevailing party or parties in any such action shall be entitled to recover from the other party or parties all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its shareholders and affiliates), and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
9.7 Execution in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission shall constitute valid and sufficient delivery thereof.
9.8 Waiver, etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision hereof or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
9.9 No Fiduciary Duties. The Company hereby acknowledges that the Underwriters are acting solely as underwriters in connection with the purchase and sale of the Company’s securities. The Company further acknowledges that the Underwriters are acting pursuant to a contractual relationship created solely by this Agreement entered into on an arm’s length basis, and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the Company or their respective management, stockholders or creditors or any other person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and sale of the Company’s securities, either before or after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Company, either in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions, and the Company hereby confirms their understanding and agreement to that effect. The Company and the Underwriters agree that they are each responsible for making their own independent judgments with respect to any such transactions and that any opinions or views expressed by the Underwriters to the Company regarding such transactions, including, but not limited to, any opinions or views with respect to the price or market for the Company’s securities, do not constitute advice or recommendations to the Company . The Company and the Underwriters agree that the Underwriters are acting as principal and not the agent or fiduciary of the Company and no Underwriter has assumed, and none will assume, any advisory responsibility in favor of the Company with respect to the transactions contemplated hereby or the process leading thereto (irrespective of whether any Underwriter has advised or is currently advising the Company on other matters). The Company each hereby waive and release, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any breach or alleged breach of any fiduciary, advisory or similar duty to the Company in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions.
[Signature Page Follows]
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If the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us.
| Very truly yours, | |||
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| GLUCOSE HEALTH, INC. |
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| By: | |||
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| Name: | Murray Fleming | |
| Title: | Chief Executive Officer | ||
Confirmed as of the date first written above mentioned, on behalf of itself and as Representative of the several Underwriters named on Schedule 1 hereto:
EF HUTTON,
Division of Benchmark Investments, LLC
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[Signature Page to Underwriting Agreement]
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SCHEDULE 1
| Underwriter | Total Number of Firm Shares to be Purchased | Number of Option Shares to be Purchased if the Over- Allotment Option is Fully Exercised |
| EF Hutton, division of Benchmark Investments, LLC |
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| TOTAL |
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SCHEDULE 2-A
Pricing Information
Number of Firm Shares: __________
Number of Option Shares: ________
Public Offering Price per Firm Share: $_____
Public Offering Price per Option Share: $_____
Underwriting Discount per Firm Share: $_____
Underwriting Discount per Option Share: $_____
Underwriting Non-accountable expense allowance per Firm Share: $_____
Underwriting Non-accountable expense allowance per Option Share: $_____
Proceeds to Company per Firm Share (before expenses): $______
Proceeds to Company per Option Share (before expenses): $______
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SCHEDULE 2-B
Issuer General Use Free Writing Prospectuses
None
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SCHEDULE 2-C
Written Testing-the-Waters Communications
None
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SCHEDULE 3
Lock-Up Parties
| 1. | [●] |
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| 2. | [●] |
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| 3. | [●] |
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| 4. | [●] |
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| 5. | [●] |
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| 6. | [●] |
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EXHIBIT A
Form of Representative’s Warrant
THE REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE WARRANT EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) EF HUTTON, DIVISION OF BENCHMARK INVESTMENTS, LLC OR AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF EF HUTTON, DIVISION OF BENCHMARK INVESTMENTS, LLC OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
THIS PURCHASE WARRANT IS NOT EXERCISABLE PRIOR TO _____________, 2023. [DATE THAT IS SIX MONTHS FROM THE DATE OF THE COMMENCEMENT OF SALES OF THIS PUBLIC SECURITIES IN THE INITIAL PUBLIC OFFERING.]
VOID AFTER 5:00 P.M., EASTERN TIME, ___________, 2028. [DATE THAT IS FIVE YEARS FROM THE EFFECTIVE DATE OF THIS OFFERING]
COMMON STOCK PURCHASE WARRANT
For the Purchase of [__] Shares of Common Stock
of
Glucose Health, Inc.
1. Purchase Warrant. THIS CERTIFIES THAT, in consideration of funds duly paid by or on behalf of EF Hutton, division of Benchmark Investments, LLC (“Holder”), as registered owner of this Purchase Warrant, Glucose Health, Inc., a Delaware corporation (collectively with its subsidiaries and affiliates, including, without limitation, all entities disclosed or described in the Registration Statement as being subsidiaries (the “Company”), Holder is entitled, at any time or from time to time from _______, 2023 [DATE THAT IS SIX MONTHS FROM THE DATE OF THE COMMENCEMENT OF SALES OF THE PUBLIC SECURITIES IN THIS INITIAL PUBLIC OFFERING] (the “Commencement Date”), and at or before 5:00 p.m., Eastern time, _______, 2028 [DATE THAT IS FIVE YEARS FROM THE EFFECTIVE DATE OF THIS OFFERING] (the “Expiration Date”), but not thereafter, to subscribe for, purchase and receive, in whole or in part, up to [●]1 shares of common stock of the Company (the “Shares”), subject to adjustment as provided in Section 6 hereof. If the Expiration Date is a day on which banking institutions are authorized by law to close, then this Purchase Warrant may be exercised on the next succeeding day which is not such a day in accordance with the terms herein. During the period ending on the Expiration Date, the Company agrees not to take any action that would terminate this Purchase Warrant. This Purchase Warrant is initially exercisable at a price of $___ per Share; provided, however, that upon the occurrence of any of the events specified in Section 6 hereof, the rights granted by this Purchase Warrant, including the exercise price per Share and the number of Shares to be received upon such exercise, shall be adjusted as therein specified. The term “Exercise Price” shall mean the initial exercise price of $____ per Share (equal to 150% of the initial public offering price) or the adjusted exercise price, depending on the context. The term “Effective Date” shall mean ___________, 2023, the date on which the Registration Statement on Form S-1 (File No. 333-265335) of the Company (“Registration Statement”) was declared effective by the Securities and Exchange Commission (the “Commission”).
2. Exercise.
2.1 Exercise Form. In order to exercise this Purchase Warrant, the exercise form attached hereto must be duly executed and completed and delivered to the Company, together with this Purchase Warrant and payment of the Exercise Price for the Shares being purchased payable in cash by wire transfer of immediately available funds to an account designated by the Company or by certified check or official bank check. If the subscription rights represented hereby shall not be exercised at or before 5:00 p.m., Eastern Time, on the Expiration Date, this Purchase Warrant shall become and be void without further force or effect, and all rights represented hereby shall cease and expire.
_____________________________
1 2% of the aggregate number of Common Stocks sold in the Offering (including Option Shares).
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2.2 Cashless Exercise. If at any time after 90 days after the Commencement Date there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, and Holder is not engaged by the Company to conduct a then pending registered offering, then in lieu of exercising this Purchase Warrant by payment of cash or check payable to the order of the Company pursuant to Section 2.1 above, Holder may elect to receive the number of Shares equal to the value of this Purchase Warrant (or the portion thereof being exercised), by surrender of this Purchase Warrant to the Company, together with the exercise form attached hereto, in which event the Company shall issue to Holder, Shares in accordance with the following formula:
| X | = | Y(A-B) |
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| A |
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| Where,
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| X
| =
| The number of Shares to be issued to Holder;
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| Y
| =
| The number of Shares for which the Purchase Warrant is being exercised;
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| A
| =
| The fair market value of one Share; and
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|
| B
| =
| The Exercise Price.
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For purposes of this Section 2.2, the fair market value of a Share is defined as follows:
|
| (i) | if the Company’s common stock is traded on a securities exchange, the value shall be deemed to be the closing price on such exchange on the trading day immediately prior to the exercise form being received by the Company in connection with the exercise of the Purchase Warrant; or |
|
|
|
|
|
| (ii)
| if the Company’s common stock is actively traded over-the-counter, the value shall be deemed to be the closing bid price on the trading day prior to the exercise form being received by the Company in connection with the exercise of the Purchase Warrant; if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Company’s Board of Directors. |
2.3 Legend. If at any time after the Commencement Date there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, each certificate for the securities purchased under this Purchase Warrant shall bear a legend as follows unless such securities have been registered under the Securities Act of 1933, as amended (the “Securities Act”):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE LAW. NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE LAW WHICH, IN THE OPINION OF COUNSEL TO THE COMPANY, IS AVAILABLE.”
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3. Transfer Restrictions.
3.1 General Restrictions. The registered Holder of this Purchase Warrant agrees by his, her or its acceptance hereof, that such Holder will not: (a) sell, transfer, assign, pledge or hypothecate this Purchase Warrant for a period of one hundred eighty (180) days following the Commencement Date to anyone other than: (i) EF Hutton, division of Benchmark Investments, LLC (“EF Hutton”) or an underwriter or a selected dealer participating in the Offering, or (ii) a bona fide officer or partner of EF Hutton or of any such underwriter or selected dealer, in each case in accordance with FINRA Rule 5110(e)(1), or (b) for a period of one hundred eighty (180) days following the Commencement Date, cause this Purchase Warrant or the securities issuable hereunder to be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of this Purchase Warrant or the securities hereunder, except as provided for in FINRA Rule 5110(e)(2). On and after 180 days after the Commencement Date, transfers to others may be made subject to compliance with or exemptions from applicable securities laws. In order to make any permitted assignment, the Holder must deliver to the Company the assignment form attached hereto duly executed and completed, together with the Purchase Warrant and payment of all transfer taxes, if any, payable in connection therewith. The Company shall within five (5) business days transfer this Purchase Warrant on the books of the Company and shall execute and deliver a new Purchase Warrant or Purchase Warrants of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number of Shares purchasable hereunder or such portion of such number as shall be contemplated by any such assignment.
3.2 Restrictions Imposed by the Securities Act. If at any time after the Commencement Date there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, the securities evidenced by this Purchase Warrant shall not be transferred unless and until: (i) the Company has received the opinion of counsel for the Holder that the securities may be transferred pursuant to an exemption from registration under the Securities Act and applicable state securities laws, the availability of which is established to the reasonable satisfaction of the Company (the Company hereby agreeing that the opinion of Carmel, Milazzo & Feil LLP shall be deemed satisfactory evidence of the availability of an exemption), or (ii) a registration statement or a post-effective amendment to the Registration Statement relating to the offer and sale of such securities has been filed by the Company and declared effective by the Commission and compliance with applicable state securities law has been established.
4 Registration Rights.
4.1 Demand Registration.
4.1.1 Grant of Right. If, after the Commencement Date, there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, the Company, upon written demand (a “Demand Notice”) of the Holders of at least 51% of the Purchase Warrants and/or the underlying Shares, agrees to register, on one (1) occasion, all or any portion of Shares for which the Purchase Warrant is exercisable (collectively, the “Registrable Securities”). On such occasion, the Company will file a registration statement with the Commission covering the Registrable Securities within sixty (60) days after receipt of a Demand Notice and use its reasonable best efforts to have the registration statement declared effective promptly thereafter, subject to compliance with review by the Commission; provided, however, that the Company shall not be required to comply with a Demand Notice if the Company has filed a registration statement with respect to which the Holder is entitled to piggyback registration rights pursuant to Section 4.2 hereof and either: (i) the Holder has elected to participate in the offering covered by such registration statement or (ii) if such registration statement relates to an underwritten primary offering of securities of the Company; provided further that the foregoing proviso shall not apply on or after the date on which the offering covered by such registration statement has been withdrawn or is thirty (30) days after such offering is consummated. The Company covenants and agrees to give written notice of its receipt of any Demand Notice by any Holders to all other registered Holders of the Purchase Warrants and/or the Registrable Securities within ten (10) days after the date of the receipt of any such Demand Notice. Notwithstanding anything to the contrary, the obligations of the Company pursuant to this Section 4.1 shall not be applicable so long as the Company’s Registration Statement on Form S-1 (File No. 333-[*]) covering the Registrable Securities remains effective.
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4.1.2 Terms. The Company shall bear all fees and expenses attendant to the registration of the Registrable Securities pursuant to Section 4.1.1, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. The Company agrees to use its reasonable best efforts to cause the filings required herein to become effective promptly and to qualify or register the Registrable Securities in such states of the Unites States of America or such foreign jurisdictions as may be reasonably requested by the Holders; provided, however, that in no event shall the Company be required to register the Registrable Securities in such states or jurisdictions in which such registration would cause: (i) the Company to be obligated to register or license to do business in such state or jurisdiction or submit to general service of process therein, or (ii) the principal stockholders of the Company to be obligated to escrow their shares of capital stock of the Company. The Company shall cause any registration statement filed pursuant to the demand right granted under Section 4.1.1 to remain effective for a period of at least twelve (12) consecutive months after the date that the Holders of the Registrable Securities covered by such registration statement are first given the opportunity to sell all of such securities. The Holders shall only use the prospectuses provided by the Company to sell the shares covered by such registration statement and will immediately cease to use any prospectus furnished by the Company if the Company advises the Holder that such prospectus may no longer be used due to a material misstatement or omission. Notwithstanding the provisions of this Section 4.1.2, the Holder shall be entitled to a demand registration under this Section 4.1.2 on only one (1) occasion in accordance with FINRA Rule 5110(g)(8)(B) and such demand registration right shall terminate on the fifth anniversary of the Effective Date in accordance with FINRA Rule 5110(g)(8)(C).
4.2 “Piggy-Back” Registration.
4.2.1 Grant of Rights. In addition to the demand right of registration described in Section 4.1 hereof, the Holder shall have the right, for a period of five (5) years from the Effective Date in accordance with FINRA Rule 5110(g)(8)(D), to include the Registrable Securities as part of any other registration of securities filed by the Company (other than in connection with a transaction contemplated by Rule 145(a) promulgated under the Securities Act or pursuant to Form S-8 or Form S-4; equivalent form); provided, however, that if, solely in connection with any primary underwritten public offering for the account of the Company, the managing underwriter(s) thereof shall, in its reasonable discretion, impose a limitation on the number of Registrable Securities which may be included in the Registration Statement because, in such underwriter(s)’ judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to include in such Registration Statement only such limited portion of the Registrable Securities with respect to which the Holder requested inclusion hereunder as the underwriter shall reasonably permit. Any exclusion of Registrable Securities shall be made pro rata among the Holders seeking to include Registrable Securities in proportion to the number of Registrable Securities sought to be included by such Holders; provided, however, that the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities, the holders of which are not entitled to inclusion of such securities in such Registration Statement or are not entitled to pro rata inclusion with the Registrable Securities. Notwithstanding anything to the contrary, the obligations of the Company pursuant to this Section 4.2 shall not be applicable so long as the Company’s Registration Statement on Form S-1 (File No. 333-[*]) covering the Registrable Securities remains effective.
4.2.2 Terms. The Company shall bear all fees and expenses attendant to registering the Registrable Securities pursuant to Section 4.2.1 hereof, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. In the event of such a proposed registration, the Company shall furnish the then Holders of outstanding Registrable Securities with not less than thirty (30) days’ written notice prior to the proposed date of filing of such registration statement. Such notice to the Holders shall continue to be given for each registration statement filed by the Company until such time as all of the Registrable Securities have been sold by the Holder. The holders of the Registrable Securities shall exercise the “piggy-back” rights provided for herein by giving written notice within ten (10) days of the receipt of the Company’s notice of its intention to file a registration statement. Except as otherwise provided in this Purchase Warrant, there shall be no limit on the number of times the Holder may request registration under this Section 4.2; provided, however, that such registration rights shall terminate on the fifth (5th) anniversary of the Commencement Date.
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4.3 General Terms.
4.3.1 Indemnification. The Company shall indemnify the Holders of the Registrable Securities to be sold pursuant to any registration statement hereunder and each person, if any, who controls such Holders within the meaning of section 15 of the Securities Act or section 20(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters contained in Section 5.1 of the Underwriting Agreement between the Underwriters (as defined therein) and the Company, dated ___________, 2022 with respect to the Company’s initial public offering of the Shares. The Holders of the Registrable Securities to be sold pursuant to such registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, in writing, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5.2 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company.
4.3.2 Exercise of Purchase Warrants. Nothing contained in this Purchase Warrant shall be construed as requiring the Holders to exercise their Purchase Warrants prior to or after the initial filing of any registration statement or the effectiveness thereof.
4.3.3 Documents Delivered to Holders. The Company shall furnish to each Holder participating in any of the foregoing offerings and to each underwriter of any such offering, if any, a signed counterpart, addressed to such Holder or underwriter, of: (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under any underwriting agreement related thereto), and (ii) a “cold comfort” letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent registered public accounting firm which has issued a report on the Company’s financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants’ letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to underwriters in underwritten public offerings of securities. The Company shall also deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriter, if any, copies of all correspondence between the Commission and the Company, its counsel or auditor and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of FINRA. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditor, all to such reasonable extent and at such reasonable times as any such Holder shall reasonably request.
4.3.4 Underwriting Agreement. The Company shall enter into an underwriting agreement with the managing underwriter(s), if any, selected by any Holders whose Registrable Securities are being registered pursuant to this Section 4, which managing underwriter shall be reasonably satisfactory to the Company. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders, their Shares, and their intended methods of distribution.
4.3.5 Documents to be Delivered by Holders. Each of the Holders participating in any of the foregoing offerings shall furnish to the Company a completed and executed questionnaire provided by the Company requesting information customarily sought of selling security holders.
4.3.6 Damages. Should the registration or the effectiveness thereof required by Sections 4.1 and 4.2 hereof be delayed by the Company or the Company otherwise fails to comply with such provisions, the Holders shall, in addition to any other legal or other relief available to the Holders, be entitled to obtain specific performance or other equitable (including injunctive) relief against the threatened breach of such provisions or the continuation of any such breach, without the necessity of proving actual damages and without the necessity of posting bond or other security.
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4.4 Termination of Registration Rights. The registration rights afforded to the Holders under this Section 4 shall terminate on the earliest date when all Registrable Securities of such Holder either: (i) have been publicly sold by such Holder pursuant to a Registration Statement, (ii) have been covered by an effective Registration Statement on Form S-1 or Form S-3 (or successor form), which may be kept effective as an evergreen Registration Statement, or (iii) may be sold by the Holder (including on a cashless basis) within a 90-day period without registration pursuant to Rule 144 or consistent with applicable SEC interpretive guidance (including CD&I No. 201.04 (April 2, 2007) or similar interpretive guidance).
5. New Purchase Warrants to be Issued.
5.1 Partial Exercise or Transfer. Subject to the restrictions in Section 3 hereof, this Purchase Warrant may be exercised or assigned in whole or in part. In the event of the exercise or assignment hereof in part only, upon surrender of this Purchase Warrant for cancellation, together with the duly executed exercise or assignment form and funds sufficient to pay any Exercise Price and/or transfer tax if exercised pursuant to Section 2.1 hereto, the Company shall cause to be delivered to the Holder without charge a new Purchase Warrant of like tenor to this Purchase Warrant in the name of the Holder evidencing the right of the Holder to purchase the number of Shares purchasable hereunder as to which this Purchase Warrant has not been exercised or assigned.
5.2 Lost Certificate. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Purchase Warrant and of reasonably satisfactory indemnification or the posting of a bond, the Company shall execute and deliver a new Purchase Warrant of like tenor and date. Any such new Purchase Warrant executed and delivered as a result of such loss, theft, mutilation or destruction shall constitute a substitute contractual obligation on the part of the Company.
6. Adjustments.
6.1 Adjustments to Exercise Price and Number of Securities. The Exercise Price and the number of Shares underlying the Purchase Warrant shall be subject to adjustment from time to time as hereinafter set forth:
6.1.1 Share Dividends; Split Ups. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding Shares is increased by a stock dividend payable in Shares or by a split up of Shares or other similar event, then, on the effective day thereof, the number of Shares purchasable hereunder shall be increased in proportion to such increase in outstanding Shares, and the Exercise Price shall be proportionately decreased.
6.1.2 Aggregation of Shares. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding Shares is decreased by a consolidation, combination or reclassification of Shares or other similar event, then, on the effective date thereof, the number of Shares purchasable hereunder shall be decreased in proportion to such decrease in outstanding Shares, and the Exercise Price shall be proportionately increased.
6.1.3 Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Shares or a variation of share capital of the Company, other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely affects the par value of such Shares, or in the case of any share reconstruction or amalgamation or consolidation of the Company with or into another corporation (other than a consolidation or share reconstruction or amalgamation in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Shares), or in the case of any sale or conveyance to another corporation or entity of the property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Holder of this Purchase Warrant shall have the right thereafter (until the expiration of the right of exercise of this Purchase Warrant) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, share reconstruction or amalgamation, or consolidation, or upon a dissolution following any such sale or transfer, by a Holder of the number of Shares obtainable upon exercise of this Purchase Warrant immediately prior to such event; and if any reclassification also results in a change in Shares covered by Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section 6.1.3 shall similarly apply to successive reclassifications, reorganizations, share reconstructions or amalgamations, or consolidations, sales or other transfers.
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6.1.4 Changes in Form of Purchase Warrant. This form of Purchase Warrant need not be changed because of any change pursuant to this Section 6.1, and Purchase Warrants issued after such change may state the same Exercise Price and the same number of Shares as are stated in the Purchase Warrants initially issued pursuant to this Agreement. The acceptance by any Holder of the issuance of new Purchase Warrants reflecting a required or permissive change shall not be deemed to waive any rights to an adjustment occurring after the Commencement Date or the computation thereof.
6.2 Substitute Purchase Warrant. In case of any consolidation of the Company with, or share reconstruction or amalgamation of the Company with or into, another corporation (other than a consolidation or share reconstruction or amalgamation which does not result in any reclassification or change of the outstanding Shares), the corporation formed by such consolidation or share reconstruction or amalgamation shall execute and deliver to the Holder a supplemental Purchase Warrant providing that the holder of each Purchase Warrant then outstanding or to be outstanding shall have the right thereafter (until the stated expiration of such Purchase Warrant) to receive, upon exercise of such Purchase Warrant, the kind and amount of shares of stock and other securities and property receivable upon such consolidation or share reconstruction or amalgamation, by a holder of the number of Shares for which such Purchase Warrant might have been exercised immediately prior to such consolidation, share reconstruction or amalgamation, sale or transfer. Such supplemental Purchase Warrant shall provide for adjustments which shall be identical to the adjustments provided for in this Section 6. The above provision of this Section shall similarly apply to successive consolidations or share reconstructions or amalgamations.
6.3 Elimination of Fractional Interests. The Company shall not be required to issue fractions of Shares upon the exercise of the Purchase Warrant, nor shall it be required to issue scrip or pay cash in lieu of any fractional interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up or down, as the case may be, to the nearest whole number of Shares or other securities, properties or rights.
7. Reservation and Listing. The Company shall at all times reserve and keep available out of its authorized Shares, solely for the purpose of issuance upon exercise of the Purchase Warrants, such number of Shares or other securities, properties or rights as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Purchase Warrants and payment of the Exercise Price therefor, in accordance with the terms hereby, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any stockholder. As long as the Purchase Warrants shall be outstanding, the Company shall use its commercially reasonable efforts to list (subject to official notice of issuance) on all national securities exchanges (or, if applicable, on the OTC Bulletin Board or any successor trading market) on which the Shares issued to the public in the Offering may then be listed and/or quoted.
8. Certain Notice Requirements.
8.1 Holder’s Right to Receive Notice. Nothing herein shall be construed as conferring upon the Holders the right to vote or consent or to receive notice as a stockholder for the election of directors or any other matter, or as having any rights whatsoever as a stockholder of the Company. If, however, at any time prior to the expiration of the Purchase Warrants and their exercise, any of the events described in Section 8.2 shall occur, then, in one or more of said events, the Company shall give written notice of such event at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholders entitled to such dividend, distribution, conversion or exchange of securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of the closing of the transfer books, as the case may be. Notwithstanding the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other stockholders of the Company at the same time and in the same manner that such notice is given to the stockholders.
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8.2 Events Requiring Notice. The Company shall be required to give the notice described in this Section 8 upon one or more of the following events: (i) if the Company shall take a record of the holders of its Shares for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; (ii) the Company shall offer to all the holders of its Shares any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option, right or warrant to subscribe therefor; or (iii) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or share reconstruction or amalgamation) or a sale of all or substantially all of its property, assets and business shall be proposed.
8.3 Notice of Change in Exercise Price. The Company shall, promptly after an event requiring a change in the Exercise Price pursuant to Section 6 hereof, send notice to the Holders of such event and change (“Price Notice”). The Price Notice shall describe the event causing the change and the method of calculating same and shall be certified as being true and accurate by the Company’s Chief Financial Officer.
8.4 Transmittal of Notices. All notices, requests, consents and other communications under this Purchase Warrant shall be in writing and shall be deemed to have been duly made when hand delivered or mailed by express mail or private courier service: (i) if to the registered Holder of the Purchase Warrant, to the address of such Holder as shown on the books of the Company, or (ii) if to the Company, to following address or to such other address as the Company may designate by notice to the Holders:
If to the Holder:
EF Hutton, division of Benchmark Investments, LLC
590 Madison Avenue, 39th Floor
New York, New York 10022
Attn: Mr. Joseph T. Rallo, CEO
Email: jrallo@efhuttongroupcm.com
with a copy (which shall not constitute notice) to:
Ross Carmel, Esq.
Carmel, Milazzo & Feil LLP
55 West 39th Street, 18th Floor
New York, New York 10018
Email: rcarmel@cmfllp.com
If to the Company:
Glucose Health, Inc.
Attn: Murray Fleming, Chief Executive Officer
609 SW 8th Street Suite 600
Bentonville, AR 72712
Email: murray@glucosehealth.com
with a copy (which shall not constitute notice) to:
Joseph M. Lucosky, Esq.
Lucosky Brookman LLP
101 Wood Avenue South, 5th Floor
Woodbridge, NJ 08330
Email: jlucosky@lucbro.com
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9. Miscellaneous.
9.1 Amendments. The Company and EF Hutton may from time to time supplement or amend this Purchase Warrant without the approval of any of the Holders in order to cure any ambiguity, to correct or supplement any provision contained herein that may be defective or inconsistent with any other provisions herein, or to make any other provisions in regard to matters or questions arising hereunder that the Company and EF Hutton may deem necessary or desirable and that the Company and EF Hutton deem shall not adversely affect the interest of the Holders. All other modifications or amendments shall require the written consent of and be signed by the party against whom enforcement of the modification or amendment is sought.
9.2 Headings. The headings contained herein are for the sole purpose of convenience of reference and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Purchase Warrant.
9.3 Entire Agreement. This Purchase Warrant (together with the other agreements and documents being delivered pursuant to or in connection with this Purchase Warrant) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.4 Binding Effect. This Purchase Warrant shall inure solely to the benefit of and shall be binding upon, the Holder and the Company and their permitted assignees, respective successors, legal representative and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Purchase Warrant or any provisions herein contained.
9.5 Governing Law; Submission to Jurisdiction; Trial by Jury. This Purchase Warrant shall be governed by and construed in accordance with the law of the State of New York. The Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Purchase Warrant shall be brought and enforced in the Supreme Court of the State of New York sitting in the County of New York, or in the United States District Court for the Southern District of New York, and irrevocably submits to the jurisdiction of such courts and the appellate courts therefrom, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 8 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim. The Company and the Holder agree that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and the Holder hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Purchase Warrant or the transactions contemplated hereby.
9.6 Waiver, etc. The failure of the Company or the Holder to at any time enforce any of the provisions of this Purchase Warrant shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Purchase Warrant or any provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Purchase Warrant. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Purchase Warrant shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
9.7 Execution in Counterparts. This Purchase Warrant may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Such counterparts may be delivered by facsimile transmission or other electronic transmission.
9.8 Exchange Agreement. As a condition of the Holder’s receipt and acceptance of this Purchase Warrant, Holder agrees that, at any time prior to the complete exercise of this Purchase Warrant by Holder, if the Company and EF Hutton enter into an agreement (“Exchange Agreement”) pursuant to which they agree that all outstanding Purchase Warrants will be exchanged for securities or cash or a combination of both, then Holder shall agree to such exchange and become a party to the Exchange Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Purchase Warrant to be signed by its duly authorized officer as of the ____ day of _______, 2023.
| GLUCOSE HEALTH, INC. | |||
| By: | |||
|
| Name: | Murray Fleming | |
| Title: | Chief Executive Officer | ||
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[Form to be used to exercise Purchase Warrant]
Date: __________, 20___
The undersigned hereby elects irrevocably to exercise the Purchase Warrant for ______ Shares of Common Stock (the “Shares”), of Glucose Health, Inc., a Delaware corporation (the “Company”), and hereby makes payment of $____ (at the rate of $____ per Share) in payment of the Exercise Price pursuant thereto. Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been exercised.
or
The undersigned hereby elects irrevocably to convert its right to purchase Shares of the Company under the Purchase Warrant for ______ Shares, as determined in accordance with the following formula:
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| X | = | Y(A-B) |
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| A |
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| Where,
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| |||
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| X
| =
| The number of Shares to be issued to Holder;
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| Y
| =
| The number of Shares for which the Purchase Warrant is being exercised;
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| A
| =
| The fair market value of one Share which is equal to $_____; and
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|
| B | = | The Exercise Price which is equal to $______ per share | |||
The undersigned agrees and acknowledges that the calculation set forth above is subject to confirmation by the Company and any disagreement with respect to the calculation shall be resolved by the Company in its sole discretion.
Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been exercised.
Signature _______________________________________
Signature Guaranteed ______________________________
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
| Name:
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| (Print in Block Letters)
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| Address:
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NOTICE: The signature to this form must correspond with the name as written upon the face of the Purchase Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
[Form to be used to assign Purchase Warrant]
| 48 |
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the within Purchase Warrant):
FOR VALUE RECEIVED, __________________ does hereby sell, assign and transfer unto______________ the right to purchase _______________ shares, par value $0.001 per share (the “Shares”), of the common stock of Glucose Health, Inc., (collectively with its subsidiaries and affiliates, including, without limitation, all entities disclosed or described in the Registration Statement as being subsidiaries (the “Company”), evidenced by the Purchase Warrant and does hereby authorize the Company to transfer such right on the books of the Company.
Dated: __________, 20__
| Signature
|
|
|
| Signature Guaranteed
|
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|
NOTICE: The signature to this form must correspond with the name as written upon the face of the within Purchase Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
| 49 |
EXHIBIT B
Form of Lock-Up Agreement
for
Officers, Directors, and Holder(s) of more than 5% Common Stock
[●], 202[●]
EF HUTTON,
division of Benchmark Investments, LLC
as Representative of the several Underwriters named on Schedule 1 attached hereto
590 Madison Avenue, 39th Floor
New York, New York 10022
Ladies and Gentlemen:
The undersigned, an officer, director and/or holder of more than 5% of shares of common stocks (the “Common Stocks”), or rights to acquire more than 5% of shares of Common Stocks (the “Shares”) of Glucose Health, Inc. (the “Company”), understands that you are the representative (the “Representative”) of one or several underwriters (collectively, the “Underwriters”), named or to be named in the final form of Schedule 1 to the underwriting agreement (the “Underwriting Agreement”) to be entered into among the Underwriters and the Company, providing for the public offering (the “Public Offering”) of securities of the Company (the “Securities”) pursuant to a registration statement (No. 333-265335) filed (the “Registration Statement”) with the U.S. Securities and Exchange Commission (the “SEC”) on [●].
In consideration of the Underwriters’ agreement to enter into the Underwriting Agreement and to proceed with the Public Offering of the Securities, and for other good and valuable consideration, receipt of which is hereby acknowledged, the Undersigned hereby agrees, for the benefit of the Company, the Representative and the other Underwriters that, without the prior written consent of the Representative, the Undersigned will not, during the period commencing on the date of this Lock-up Agreement and continuing and including the date that is one-hundred and eighty (180) days after the closing of the Public Offering (the “Lock-Up Period”), unless otherwise provided herein, directly or indirectly (a) offer, sell, agree to offer or sell, solicit offers to purchase, grant any call option or purchase any put option with respect to, pledge, encumber, assign, borrow or otherwise dispose of (each a “Transfer”) any Relevant Security (as defined below) or otherwise publicly disclose the intention to do so, or (b) establish or increase any “put equivalent position” or liquidate or decrease any “call equivalent position” with respect to any Relevant Security (in each case within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder) with respect to any Relevant Security or otherwise enter into any swap, derivative or other transaction or arrangement that Transfers to another, in whole or in part, any economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by the delivery of Relevant Securities, other securities, cash or other consideration, or otherwise publicly disclose the intention to do so. As used herein, the term “Relevant Security” means any Share, any warrant to purchase Shares or any other security of the Company or any other entity that is convertible into, or exercisable or exchangeable for, Shares, in each case owned beneficially or otherwise by the Undersigned on the date of closing of the Public Offering or acquired by the Undersigned during the Lock-Up Period.
| 50 |
The restrictions in the foregoing paragraph shall not apply to (a) any exercise (including a cashless exercise or broker-assisted exercise and payment of tax obligations), vesting or settlement, as applicable, by the Undersigned of options or warrants to purchase Shares or other equity awards pursuant to any stock incentive plan or stock purchase plan of the Company; provided that any Shares received by the Undersigned upon such exercise, conversion or exchange will be subject to the Lock-Up Period, (b) any establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the Transfer of Shares (a “Trading Plan”); provided that (i) the Trading Plan shall not provide for or permit any Transfers, sales or other dispositions of Shares during the Lock-Up Period and (ii) the Trading Plan would not require any filing under Section 16(a) of the Exchange Act and no such filing is voluntarily made, (c) any Transfer of Shares acquired in open market transactions following the closing of the Public Offering, provided the Transfer would not require any filing under Section 16(a) of the Exchange Act and no such filing is voluntarily made, (d) the Transfer of the Undersigned’s Shares or any security convertible into or exercisable or exchangeable for Common Stock to the Company in connection with the termination of the Undersigned’s employment with the Company or pursuant to contractual arrangements under which the Company has the option to repurchase such shares, provided that no filing by any party under the Exchange Act shall be required or shall be made voluntarily within 45 days after the date the Undersigned ceases to provide services to the Company, and after such 45th day, if the Undersigned is required to file a report under the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Lock-Up Period, the Undersigned shall indicate in the footnotes thereto that the filing relates to the termination of the Undersigned’s employment, and no other public announcement shall be made voluntarily in connection with such transfer (other than the filing on a Form 5 made after the expiration of the Lock-Up Period), (e) the conversion of the outstanding securities into Shares, provided that any such Shares received upon such conversion shall be subject to the restrictions on Transfer set forth in this Lock-Up Agreement, or (f) the Transfer of Shares or any security convertible into or exercisable or exchangeable for Shares pursuant to a bona fide third-party tender offer for securities of the Company, merger, consolidation or other similar transaction that is approved by the disinterested members of the board of directors of the Company, made to all holders of Common Stock involving a change of control (as defined below), provided that all of the Undersigned’s Relevant Securities subject to this Lock-Up Agreement shall remain subject to the restrictions herein. For purposes of this Lock-Up Agreement, “change of control” means any bona fide third party tender offer, merger, consolidation or other similar transaction, in one transaction or a series of related transactions, the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of affiliated persons, other than the Company, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of 50% or more of the total voting power of the voting stock of the Company (or the surviving entity).
In addition, the Undersigned further agrees that, except for the Registration Statement or any registration statement on Form S-8, during the Lock-Up Period, the Undersigned will not, without the prior written consent of the Representative: (a) file or participate in the filing with the SEC any registration statement or circulate or participate in the circulation of any preliminary or final prospectus or other disclosure documents, in each case with respect to any proposed offering or sale of a Relevant Security beneficially owned by the Undersigned, or (b) exercise any rights the Undersigned may have to require registration with the SEC of any proposed offering or sale of a Relevant Security beneficially owned by the Undersigned.
In furtherance of the Undersigned’s obligations hereunder, the Undersigned hereby authorizes the Company during the Lock-Up Period to cause the transfer agent for the Relevant Securities to decline to Transfer, and to note stop transfer restrictions on the stock register and other records relating to, Relevant Securities for which the Undersigned is the record owner and the Transfer of which would be a violation of this Lock-Up Agreement and, in the case of the Relevant Securities for which the Undersigned is the beneficial owner but not the record owner, the Undersigned agrees that during the Lock-Up Period it will use its reasonable best efforts to cause the record owner to authorize the Company to cause the relevant transfer agent to decline to transfer, and to note stop transfer restrictions on the stock register and other records relating to such Relevant Securities to the extent such transfer would be a violation of this Lock-Up Agreement.
| 51 |
Notwithstanding the foregoing or anything contained herein to the contrary, the Undersigned may transfer the Undersigned’s Relevant Securities without the prior written consent of the Representative:
| (i)
| as a bona fide gift or gifts;
| |
| (ii)
| To any immediate family member of the Undersigned, or to any trust, partnership, limited liability company, or other legal entity commonly used for estate planning purposes which are established for the direct or indirect benefit of the Undersigned or a member or members of the immediate family of the Undersigned;
| |
| (iii)
| if the Undersigned is a corporation, partnership, limited liability company, trust or other business entity, (1) to another corporation, partnership, limited liability company, trust, or other business entity that is a direct or indirect Affiliate (as defined in Rule 405 under the Securities Act of 1933, as amended) of the Undersigned, (2) to partners, limited liability company members or stockholders of the Undersigned or holders of similar equity interests in the Undersigned, or (3) in connection with a sale, merger or transfer of all or substantially all of the assets of the Undersigned or any other change of control of the Undersigned, not undertaken for the purpose of avoiding the restrictions imposed by this Lock-Up Agreement;
| |
| (iv)
| if the Undersigned is a trust, to the trustee or beneficiary of such trust or to the estate of a beneficiary of such trust;
| |
| (v)
| by testate or intestate succession;
| |
| (vi)
| by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement;
| |
| (vii)
| pursuant to the Underwriting Agreement;
| |
| (viii)
| the withholder of Shares by, or surrender of Shares to, the Company pursuant to a “net” or “cashless” exercise or settlement feature to cover taxes due upon or the consideration required in connection with the exercise of securities issued under an equity incentive plan or stock purchase plan of the Company; or
| |
|
| (ix) | to a charity or educational institution; |
provided, in the case of clauses (i)-(vi), that (A) such transfer shall not involve a disposition for value, (B) the transferee agrees in writing with the Underwriters and the Company to be bound by the terms of this Lock-Up Agreement, and (C) such transfer would not require any filing under Section 16(a) of the Exchange Act and no such filing is voluntarily made.
For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage, or adoption, not more remote than the first cousin.
If the Undersigned is an officer or director of the Company, (i) the Representative agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a Transfer of Shares, the Representative will notify the Company of the impending release or waiver and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release as set forth in Exhibit C through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representative hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this Lock-Up Agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.
The Undersigned, whether or not participating in the Public Offering, understands that the Underwriters and the Company are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Lock-Up Agreement.
The Undersigned hereby represents and warrants that the Undersigned has full power and authority to enter into this Lock-Up Agreement and that this Lock-Up Agreement has been duly authorized (if the Undersigned is not a natural person) and constitutes the legal, valid, and binding obligation of the Undersigned, enforceable in accordance with its terms. Upon request, the Undersigned will execute any additional documents necessary in connection with the enforcement hereof. Any obligations of the Undersigned shall be binding upon the successors and assigns of the Undersigned from the date of this Lock-Up Agreement.
This Lock-Up Agreement shall automatically terminate and be of no further effect upon the earliest to occur, if any, of the following: (i) prior to the execution of the Underwriting Agreement, upon such date the Company, on the one hand, or you, on the other hand, notifies the other in writing that it does not intend to proceed with the Public Offering, (ii) the date that the Company withdraws the registration statement related to the Public Offering, or (iii) upon the termination (other than the provisions thereof that survive termination) of the Underwriting Agreement in accordance with the terms thereof prior to payment for and delivery of the Shares to be sold thereunder.
This Lock-Up Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof. Delivery of a signed copy of this Lock-Up Agreement by facsimile or e-mail/.pdf transmission shall be effective as the delivery of the original hereof.
| 52 |
In Witness Whereof, the Undersigned hereby agrees to the above on the date set forth above.
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| Name: |
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| 53 |
EXHIBIT C
Form of Press Release
GLUCOSE HEALTH, INC.
[●], 202[●]
GLUCOSE HEALTH, INC. (the “Company”) announced today that EF Hutton, division of Benchmark Investments, LLC, acting as representative for the underwriters in the Company’s recent public offering of [●].
This press release is not an offer or sale of the securities in the United States or in any other jurisdiction where such offer or sale is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the Securities Act of 1933, as amended.
| 54 |
EXHIBIT D
Form of Opinion of Lucosky Brookman LLP
| 55 |
EXHIBIT E
OFFICERS’ CERTIFICATE
OF
GLUCOSE HEALTH, INC.
[●], 202[●]
| 56 |
EXHIBIT F
SECRETARY’S CERTIFICATE
OF
GLUCOSE HEALTH, INC.
[●], 202[●]
| 57 |
EXHIBIT 3.6
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GLUCOSE HEALTH, INC.
Glucose Health, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation has adopted and approved pursuant to Section 242 of the General Corporation Law of the State of Delaware (the “General Corporation Law”) an amendment to the Certificate of Incorporation of the Corporation. The stockholders of the Corporation have duly approve said proposed amendment in accordance with Section 242 of the General Corporation Law.
SECOND: The Certificate of Incorporation shall be amended by deleting the first paragraph of Article IV in its entirety and replacing the first paragraph of Article IV thereof in its entirety with the following:
The total number of shares of all classes of stock which the Corporation shall have authority to issue is 50,000,000, consisting of (a) 40,000,000 shares of Common Stock, $0.001 par value per share (“Common Stock”), and (b) 10,000,000 shares of Preferred Stock, $0.001 par value per share (“Preferred Stock”). 1,000 shares of the authorized Preferred Stock are hereby designated as “Series A Voting Preferred Stock;” 3,466,668 shares of the authorized Preferred Stock are hereby designated as “Series B Preferred Stock;” 866,668 shares of the authorized Preferred Stock are hereby designated as “Series C Preferred Stock;” 1,200,000 shares of the authorized Preferred Stock are hereby designated as “Series D Preferred Stock;” and 1,440,000 shares of the authorized Preferred Stock are hereby designated as “Series E Preferred Stock.”
Upon the filing of this Certificate of Amendment, each previously issued and outstanding share of Series D Preferred Stock shall automatically be subject to a 1-for-4 stock split, with no further action required by the Corporation or any Series D Holder; and the Series E Preferred Stock shall automatically be subject to a 1-to-3 stock split, with no further action required by the Corporation or any Series E Holder.
| 1 |
THIRD: The Certificate of Incorporation shall be amended by deleting Article IV, Section B(3) in its entirety and replacing Article IV, Section B(3) in its entirety with the following:
Stated Value. The Stated Value of the Series B Preferred Stock is $0.075 per share. The Stated Value of the Series C Preferred Stock is $0.075 per share. Upon the filing of this Certificate of Amendment, the Stated Value of the Series D Preferred Stock is $0.25 per share. Upon the filing of this Certificate of Amendment, the Stated Value of the Series E Preferred Stock is $0.667 per share.
FOURTH: The Certificate of Incorporation shall be amended by renumbering Article IV(B)(6) Voting as Article IV(B)(7) Voting.
[The Remainder of this Page Intentionally Left Blank]
| 2 |
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by a duly authorized officer of the Corporation this 24th day of October, 2022.
| GLUCOSE HEALTH, INC. | |||
| By: | /s/ Murray Fleming | ||
|
| Name: | Murray Fleming | |
| Office: | Chief Executive Officer | ||
| 3 |
EXHIBIT 4.1
Form of Representative’s Warrant
THE REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE WARRANT EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) EF HUTTON, DIVISION OF BENCHMARK INVESTMENTS, LLC OR AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF EF HUTTON, DIVISION OF BENCHMARK INVESTMENTS, LLC OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
THIS PURCHASE WARRANT IS NOT EXERCISABLE PRIOR TO _____________, 2023. [DATE THAT IS SIX MONTHS FROM THE DATE OF THE COMMENCEMENT OF SALES OF THIS PUBLIC SECURITIES IN THE INITIAL PUBLIC OFFERING.]
VOID AFTER 5:00 P.M., EASTERN TIME, ___________, 2028. [DATE THAT IS FIVE YEARS FROM THE EFFECTIVE DATE OF THIS OFFERING]
COMMON STOCK PURCHASE WARRANT
For the Purchase of [__] Shares of Common Stock
of
Glucose Health, Inc.
1. Purchase Warrant. THIS CERTIFIES THAT, in consideration of funds duly paid by or on behalf of EF Hutton, division of Benchmark Investments, LLC (“Holder”), as registered owner of this Purchase Warrant, Glucose Health, Inc., a Delaware corporation (collectively with its subsidiaries and affiliates, including, without limitation, all entities disclosed or described in the Registration Statement as being subsidiaries (the “Company”), Holder is entitled, at any time or from time to time from _______, 2023 [DATE THAT IS SIX MONTHS FROM THE DATE OF THE COMMENCEMENT OF SALES OF THE PUBLIC SECURITIES IN THIS INITIAL PUBLIC OFFERING] (the “Commencement Date”), and at or before 5:00 p.m., Eastern time, _______, 2028 [DATE THAT IS FIVE YEARS FROM THE EFFECTIVE DATE OF THIS OFFERING] (the “Expiration Date”), but not thereafter, to subscribe for, purchase and receive, in whole or in part, up to [●]1 shares of common stock of the Company (the “Shares”), subject to adjustment as provided in Section 6 hereof. If the Expiration Date is a day on which banking institutions are authorized by law to close, then this Purchase Warrant may be exercised on the next succeeding day which is not such a day in accordance with the terms herein. During the period ending on the Expiration Date, the Company agrees not to take any action that would terminate this Purchase Warrant. This Purchase Warrant is initially exercisable at a price of $___ per Share; provided, however, that upon the occurrence of any of the events specified in Section 6 hereof, the rights granted by this Purchase Warrant, including the exercise price per Share and the number of Shares to be received upon such exercise, shall be adjusted as therein specified. The term “Exercise Price” shall mean the initial exercise price of $____ per Share (equal to 150% of the initial public offering price) or the adjusted exercise price, depending on the context. The term “Effective Date” shall mean ___________, 2023, the date on which the Registration Statement on Form S-1 (File No. 333-265335) of the Company (“Registration Statement”) was declared effective by the Securities and Exchange Commission (the “Commission”).
2. Exercise.
2.1 Exercise Form. In order to exercise this Purchase Warrant, the exercise form attached hereto must be duly executed and completed and delivered to the Company, together with this Purchase Warrant and payment of the Exercise Price for the Shares being purchased payable in cash by wire transfer of immediately available funds to an account designated by the Company or by certified check or official bank check. If the subscription rights represented hereby shall not be exercised at or before 5:00 p.m., Eastern Time, on the Expiration Date, this Purchase Warrant shall become and be void without further force or effect, and all rights represented hereby shall cease and expire.
_________________________
1 2% of the aggregate number of Common Stocks sold in the Offering (including Option Shares).
| 1 |
2.2 Cashless Exercise. If at any time after 90 days after the Commencement Date there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, and Holder is not engaged by the Company to conduct a then pending registered offering, then in lieu of exercising this Purchase Warrant by payment of cash or check payable to the order of the Company pursuant to Section 2.1 above, Holder may elect to receive the number of Shares equal to the value of this Purchase Warrant (or the portion thereof being exercised), by surrender of this Purchase Warrant to the Company, together with the exercise form attached hereto, in which event the Company shall issue to Holder, Shares in accordance with the following formula:
| X | = | Y(A-B) | |
| A |
| Where,
|
|
|
|
|
| X
| =
| The number of Shares to be issued to Holder;
|
|
| Y
| =
| The number of Shares for which the Purchase Warrant is being exercised;
|
|
| A
| =
| The fair market value of one Share; and
|
|
| B
| =
| The Exercise Price.
|
For purposes of this Section 2.2, the fair market value of a Share is defined as follows:
|
| (i)
| if the Company’s common stock is traded on a securities exchange, the value shall be deemed to be the closing price on such exchange on the trading day immediately prior to the exercise form being received by the Company in connection with the exercise of the Purchase Warrant; or |
|
|
|
|
|
| (ii)
| if the Company’s common stock is actively traded over-the-counter, the value shall be deemed to be the closing bid price on the trading day prior to the exercise form being received by the Company in connection with the exercise of the Purchase Warrant; if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Company’s Board of Directors. |
2.3 Legend. If at any time after the Commencement Date there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, each certificate for the securities purchased under this Purchase Warrant shall bear a legend as follows unless such securities have been registered under the Securities Act of 1933, as amended (the “Securities Act”):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE LAW. NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE LAW WHICH, IN THE OPINION OF COUNSEL TO THE COMPANY, IS AVAILABLE.”
| 2 |
3. Transfer Restrictions.
3.1 General Restrictions. The registered Holder of this Purchase Warrant agrees by his, her or its acceptance hereof, that such Holder will not: (a) sell, transfer, assign, pledge or hypothecate this Purchase Warrant for a period of one hundred eighty (180) days following the Commencement Date to anyone other than: (i) EF Hutton, division of Benchmark Investments, LLC (“EF Hutton”) or an underwriter or a selected dealer participating in the Offering, or (ii) a bona fide officer or partner of EF Hutton or of any such underwriter or selected dealer, in each case in accordance with FINRA Rule 5110(e)(1), or (b) for a period of one hundred eighty (180) days following the Commencement Date, cause this Purchase Warrant or the securities issuable hereunder to be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of this Purchase Warrant or the securities hereunder, except as provided for in FINRA Rule 5110(e)(2). On and after 180 days after the Commencement Date, transfers to others may be made subject to compliance with or exemptions from applicable securities laws. In order to make any permitted assignment, the Holder must deliver to the Company the assignment form attached hereto duly executed and completed, together with the Purchase Warrant and payment of all transfer taxes, if any, payable in connection therewith. The Company shall within five (5) business days transfer this Purchase Warrant on the books of the Company and shall execute and deliver a new Purchase Warrant or Purchase Warrants of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number of Shares purchasable hereunder or such portion of such number as shall be contemplated by any such assignment.
3.2 Restrictions Imposed by the Securities Act. If at any time after the Commencement Date there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, the securities evidenced by this Purchase Warrant shall not be transferred unless and until: (i) the Company has received the opinion of counsel for the Holder that the securities may be transferred pursuant to an exemption from registration under the Securities Act and applicable state securities laws, the availability of which is established to the reasonable satisfaction of the Company (the Company hereby agreeing that the opinion of Carmel, Milazzo & Feil LLP shall be deemed satisfactory evidence of the availability of an exemption), or (ii) a registration statement or a post-effective amendment to the Registration Statement relating to the offer and sale of such securities has been filed by the Company and declared effective by the Commission and compliance with applicable state securities law has been established.
4 Registration Rights.
4.1 Demand Registration.
4.1.1 Grant of Right. If, after the Commencement Date, there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares by the Holder, the Company, upon written demand (a “Demand Notice”) of the Holders of at least 51% of the Purchase Warrants and/or the underlying Shares, agrees to register, on one (1) occasion, all or any portion of Shares for which the Purchase Warrant is exercisable (collectively, the “Registrable Securities”). On such occasion, the Company will file a registration statement with the Commission covering the Registrable Securities within sixty (60) days after receipt of a Demand Notice and use its reasonable best efforts to have the registration statement declared effective promptly thereafter, subject to compliance with review by the Commission; provided, however, that the Company shall not be required to comply with a Demand Notice if the Company has filed a registration statement with respect to which the Holder is entitled to piggyback registration rights pursuant to Section 4.2 hereof and either: (i) the Holder has elected to participate in the offering covered by such registration statement or (ii) if such registration statement relates to an underwritten primary offering of securities of the Company; provided further that the foregoing proviso shall not apply on or after the date on which the offering covered by such registration statement has been withdrawn or is thirty (30) days after such offering is consummated. The Company covenants and agrees to give written notice of its receipt of any Demand Notice by any Holders to all other registered Holders of the Purchase Warrants and/or the Registrable Securities within ten (10) days after the date of the receipt of any such Demand Notice. Notwithstanding anything to the contrary, the obligations of the Company pursuant to this Section 4.1 shall not be applicable so long as the Company’s Registration Statement on Form S-1 (File No. 333-[*]) covering the Registrable Securities remains effective.
| 3 |
4.1.2 Terms. The Company shall bear all fees and expenses attendant to the registration of the Registrable Securities pursuant to Section 4.1.1, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. The Company agrees to use its reasonable best efforts to cause the filings required herein to become effective promptly and to qualify or register the Registrable Securities in such states of the Unites States of America or such foreign jurisdictions as may be reasonably requested by the Holders; provided, however, that in no event shall the Company be required to register the Registrable Securities in such states or jurisdictions in which such registration would cause: (i) the Company to be obligated to register or license to do business in such state or jurisdiction or submit to general service of process therein, or (ii) the principal stockholders of the Company to be obligated to escrow their shares of capital stock of the Company. The Company shall cause any registration statement filed pursuant to the demand right granted under Section 4.1.1 to remain effective for a period of at least twelve (12) consecutive months after the date that the Holders of the Registrable Securities covered by such registration statement are first given the opportunity to sell all of such securities. The Holders shall only use the prospectuses provided by the Company to sell the shares covered by such registration statement and will immediately cease to use any prospectus furnished by the Company if the Company advises the Holder that such prospectus may no longer be used due to a material misstatement or omission. Notwithstanding the provisions of this Section 4.1.2, the Holder shall be entitled to a demand registration under this Section 4.1.2 on only one (1) occasion in accordance with FINRA Rule 5110(g)(8)(B) and such demand registration right shall terminate on the fifth anniversary of the Effective Date in accordance with FINRA Rule 5110(g)(8)(C).
4.2 “Piggy-Back” Registration.
4.2.1 Grant of Rights. In addition to the demand right of registration described in Section 4.1 hereof, the Holder shall have the right, for a period of five (5) years from the Effective Date in accordance with FINRA Rule 5110(g)(8)(D), to include the Registrable Securities as part of any other registration of securities filed by the Company (other than in connection with a transaction contemplated by Rule 145(a) promulgated under the Securities Act or pursuant to Form S-8 or Form S-4; equivalent form); provided, however, that if, solely in connection with any primary underwritten public offering for the account of the Company, the managing underwriter(s) thereof shall, in its reasonable discretion, impose a limitation on the number of Registrable Securities which may be included in the Registration Statement because, in such underwriter(s)’ judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to include in such Registration Statement only such limited portion of the Registrable Securities with respect to which the Holder requested inclusion hereunder as the underwriter shall reasonably permit. Any exclusion of Registrable Securities shall be made pro rata among the Holders seeking to include Registrable Securities in proportion to the number of Registrable Securities sought to be included by such Holders; provided, however, that the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities, the holders of which are not entitled to inclusion of such securities in such Registration Statement or are not entitled to pro rata inclusion with the Registrable Securities. Notwithstanding anything to the contrary, the obligations of the Company pursuant to this Section 4.2 shall not be applicable so long as the Company’s Registration Statement on Form S-1 (File No. 333-[*]) covering the Registrable Securities remains effective.
4.2.2 Terms. The Company shall bear all fees and expenses attendant to registering the Registrable Securities pursuant to Section 4.2.1 hereof, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. In the event of such a proposed registration, the Company shall furnish the then Holders of outstanding Registrable Securities with not less than thirty (30) days’ written notice prior to the proposed date of filing of such registration statement. Such notice to the Holders shall continue to be given for each registration statement filed by the Company until such time as all of the Registrable Securities have been sold by the Holder. The holders of the Registrable Securities shall exercise the “piggy-back” rights provided for herein by giving written notice within ten (10) days of the receipt of the Company’s notice of its intention to file a registration statement. Except as otherwise provided in this Purchase Warrant, there shall be no limit on the number of times the Holder may request registration under this Section 4.2; provided, however, that such registration rights shall terminate on the fifth (5th) anniversary of the Commencement Date.
4.3 General Terms.
4.3.1 Indemnification. The Company shall indemnify the Holders of the Registrable Securities to be sold pursuant to any registration statement hereunder and each person, if any, who controls such Holders within the meaning of section 15 of the Securities Act or section 20(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters contained in Section 5.1 of the Underwriting Agreement between the Underwriters (as defined therein) and the Company, dated ___________, 2022 with respect to the Company’s initial public offering of the Shares. The Holders of the Registrable Securities to be sold pursuant to such registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, in writing, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5.2 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company.
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4.3.2 Exercise of Purchase Warrants. Nothing contained in this Purchase Warrant shall be construed as requiring the Holders to exercise their Purchase Warrants prior to or after the initial filing of any registration statement or the effectiveness thereof.
4.3.3 Documents Delivered to Holders. The Company shall furnish to each Holder participating in any of the foregoing offerings and to each underwriter of any such offering, if any, a signed counterpart, addressed to such Holder or underwriter, of: (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under any underwriting agreement related thereto), and (ii) a “cold comfort” letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent registered public accounting firm which has issued a report on the Company’s financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants’ letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to underwriters in underwritten public offerings of securities. The Company shall also deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriter, if any, copies of all correspondence between the Commission and the Company, its counsel or auditor and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of FINRA. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditor, all to such reasonable extent and at such reasonable times as any such Holder shall reasonably request.
4.3.4 Underwriting Agreement. The Company shall enter into an underwriting agreement with the managing underwriter(s), if any, selected by any Holders whose Registrable Securities are being registered pursuant to this Section 4, which managing underwriter shall be reasonably satisfactory to the Company. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders, their Shares, and their intended methods of distribution.
4.3.5 Documents to be Delivered by Holders. Each of the Holders participating in any of the foregoing offerings shall furnish to the Company a completed and executed questionnaire provided by the Company requesting information customarily sought of selling security holders.
4.3.6 Damages. Should the registration or the effectiveness thereof required by Sections 4.1 and 4.2 hereof be delayed by the Company or the Company otherwise fails to comply with such provisions, the Holders shall, in addition to any other legal or other relief available to the Holders, be entitled to obtain specific performance or other equitable (including injunctive) relief against the threatened breach of such provisions or the continuation of any such breach, without the necessity of proving actual damages and without the necessity of posting bond or other security.
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4.4 Termination of Registration Rights. The registration rights afforded to the Holders under this Section 4 shall terminate on the earliest date when all Registrable Securities of such Holder either: (i) have been publicly sold by such Holder pursuant to a Registration Statement, (ii) have been covered by an effective Registration Statement on Form S-1 or Form S-3 (or successor form), which may be kept effective as an evergreen Registration Statement, or (iii) may be sold by the Holder (including on a cashless basis) within a 90-day period without registration pursuant to Rule 144 or consistent with applicable SEC interpretive guidance (including CD&I No. 201.04 (April 2, 2007) or similar interpretive guidance).
5. New Purchase Warrants to be Issued.
5.1 Partial Exercise or Transfer. Subject to the restrictions in Section 3 hereof, this Purchase Warrant may be exercised or assigned in whole or in part. In the event of the exercise or assignment hereof in part only, upon surrender of this Purchase Warrant for cancellation, together with the duly executed exercise or assignment form and funds sufficient to pay any Exercise Price and/or transfer tax if exercised pursuant to Section 2.1 hereto, the Company shall cause to be delivered to the Holder without charge a new Purchase Warrant of like tenor to this Purchase Warrant in the name of the Holder evidencing the right of the Holder to purchase the number of Shares purchasable hereunder as to which this Purchase Warrant has not been exercised or assigned.
5.2 Lost Certificate. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Purchase Warrant and of reasonably satisfactory indemnification or the posting of a bond, the Company shall execute and deliver a new Purchase Warrant of like tenor and date. Any such new Purchase Warrant executed and delivered as a result of such loss, theft, mutilation or destruction shall constitute a substitute contractual obligation on the part of the Company.
6. Adjustments.
6.1 Adjustments to Exercise Price and Number of Securities. The Exercise Price and the number of Shares underlying the Purchase Warrant shall be subject to adjustment from time to time as hereinafter set forth:
6.1.1 Share Dividends; Split Ups. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding Shares is increased by a stock dividend payable in Shares or by a split up of Shares or other similar event, then, on the effective day thereof, the number of Shares purchasable hereunder shall be increased in proportion to such increase in outstanding Shares, and the Exercise Price shall be proportionately decreased.
6.1.2 Aggregation of Shares. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding Shares is decreased by a consolidation, combination or reclassification of Shares or other similar event, then, on the effective date thereof, the number of Shares purchasable hereunder shall be decreased in proportion to such decrease in outstanding Shares, and the Exercise Price shall be proportionately increased.
6.1.3 Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Shares or a variation of share capital of the Company, other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely affects the par value of such Shares, or in the case of any share reconstruction or amalgamation or consolidation of the Company with or into another corporation (other than a consolidation or share reconstruction or amalgamation in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Shares), or in the case of any sale or conveyance to another corporation or entity of the property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Holder of this Purchase Warrant shall have the right thereafter (until the expiration of the right of exercise of this Purchase Warrant) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, share reconstruction or amalgamation, or consolidation, or upon a dissolution following any such sale or transfer, by a Holder of the number of Shares obtainable upon exercise of this Purchase Warrant immediately prior to such event; and if any reclassification also results in a change in Shares covered by Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section 6.1.3 shall similarly apply to successive reclassifications, reorganizations, share reconstructions or amalgamations, or consolidations, sales or other transfers.
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6.1.4 Changes in Form of Purchase Warrant. This form of Purchase Warrant need not be changed because of any change pursuant to this Section 6.1, and Purchase Warrants issued after such change may state the same Exercise Price and the same number of Shares as are stated in the Purchase Warrants initially issued pursuant to this Agreement. The acceptance by any Holder of the issuance of new Purchase Warrants reflecting a required or permissive change shall not be deemed to waive any rights to an adjustment occurring after the Commencement Date or the computation thereof.
6.2 Substitute Purchase Warrant. In case of any consolidation of the Company with, or share reconstruction or amalgamation of the Company with or into, another corporation (other than a consolidation or share reconstruction or amalgamation which does not result in any reclassification or change of the outstanding Shares), the corporation formed by such consolidation or share reconstruction or amalgamation shall execute and deliver to the Holder a supplemental Purchase Warrant providing that the holder of each Purchase Warrant then outstanding or to be outstanding shall have the right thereafter (until the stated expiration of such Purchase Warrant) to receive, upon exercise of such Purchase Warrant, the kind and amount of shares of stock and other securities and property receivable upon such consolidation or share reconstruction or amalgamation, by a holder of the number of Shares for which such Purchase Warrant might have been exercised immediately prior to such consolidation, share reconstruction or amalgamation, sale or transfer. Such supplemental Purchase Warrant shall provide for adjustments which shall be identical to the adjustments provided for in this Section 6. The above provision of this Section shall similarly apply to successive consolidations or share reconstructions or amalgamations.
6.3 Elimination of Fractional Interests. The Company shall not be required to issue fractions of Shares upon the exercise of the Purchase Warrant, nor shall it be required to issue scrip or pay cash in lieu of any fractional interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up or down, as the case may be, to the nearest whole number of Shares or other securities, properties or rights.
7. Reservation and Listing. The Company shall at all times reserve and keep available out of its authorized Shares, solely for the purpose of issuance upon exercise of the Purchase Warrants, such number of Shares or other securities, properties or rights as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Purchase Warrants and payment of the Exercise Price therefor, in accordance with the terms hereby, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any stockholder. As long as the Purchase Warrants shall be outstanding, the Company shall use its commercially reasonable efforts to list (subject to official notice of issuance) on all national securities exchanges (or, if applicable, on the OTC Bulletin Board or any successor trading market) on which the Shares issued to the public in the Offering may then be listed and/or quoted.
8. Certain Notice Requirements.
8.1 Holder’s Right to Receive Notice. Nothing herein shall be construed as conferring upon the Holders the right to vote or consent or to receive notice as a stockholder for the election of directors or any other matter, or as having any rights whatsoever as a stockholder of the Company. If, however, at any time prior to the expiration of the Purchase Warrants and their exercise, any of the events described in Section 8.2 shall occur, then, in one or more of said events, the Company shall give written notice of such event at least fifteen (15) days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholders entitled to such dividend, distribution, conversion or exchange of securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of the closing of the transfer books, as the case may be. Notwithstanding the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other stockholders of the Company at the same time and in the same manner that such notice is given to the stockholders.
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8.2 Events Requiring Notice. The Company shall be required to give the notice described in this Section 8 upon one or more of the following events: (i) if the Company shall take a record of the holders of its Shares for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; (ii) the Company shall offer to all the holders of its Shares any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option, right or warrant to subscribe therefor; or (iii) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or share reconstruction or amalgamation) or a sale of all or substantially all of its property, assets and business shall be proposed.
8.3 Notice of Change in Exercise Price. The Company shall, promptly after an event requiring a change in the Exercise Price pursuant to Section 6 hereof, send notice to the Holders of such event and change (“Price Notice”). The Price Notice shall describe the event causing the change and the method of calculating same and shall be certified as being true and accurate by the Company’s Chief Financial Officer.
8.4 Transmittal of Notices. All notices, requests, consents and other communications under this Purchase Warrant shall be in writing and shall be deemed to have been duly made when hand delivered or mailed by express mail or private courier service: (i) if to the registered Holder of the Purchase Warrant, to the address of such Holder as shown on the books of the Company, or (ii) if to the Company, to following address or to such other address as the Company may designate by notice to the Holders:
If to the Holder:
EF Hutton, division of Benchmark Investments, LLC
590 Madison Avenue, 39th Floor
New York, New York 10022
Attn: Mr. Joseph T. Rallo, CEO
Email: jrallo@efhuttongroupcm.com
with a copy (which shall not constitute notice) to:
Ross Carmel, Esq.
Carmel, Milazzo & Feil LLP
55 West 39th Street, 18th Floor
New York, New York 10018
Email: rcarmel@cmfllp.com
If to the Company:
Glucose Health, Inc.
Attn: Murray Fleming, Chief Executive Officer
609 SW 8th Street Suite 600
Bentonville, AR 72712
Email: murray@glucosehealth.com
with a copy (which shall not constitute notice) to:
Joseph M. Lucosky, Esq.
Lucosky Brookman LLP
101 Wood Avenue South, 5th Floor
Woodbridge, NJ 08330
Email: jlucosky@lucbro.com
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9. Miscellaneous.
9.1 Amendments. The Company and EF Hutton may from time to time supplement or amend this Purchase Warrant without the approval of any of the Holders in order to cure any ambiguity, to correct or supplement any provision contained herein that may be defective or inconsistent with any other provisions herein, or to make any other provisions in regard to matters or questions arising hereunder that the Company and EF Hutton may deem necessary or desirable and that the Company and EF Hutton deem shall not adversely affect the interest of the Holders. All other modifications or amendments shall require the written consent of and be signed by the party against whom enforcement of the modification or amendment is sought.
9.2 Headings. The headings contained herein are for the sole purpose of convenience of reference and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Purchase Warrant.
9.3 Entire Agreement. This Purchase Warrant (together with the other agreements and documents being delivered pursuant to or in connection with this Purchase Warrant) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.4 Binding Effect. This Purchase Warrant shall inure solely to the benefit of and shall be binding upon, the Holder and the Company and their permitted assignees, respective successors, legal representative and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Purchase Warrant or any provisions herein contained.
9.5 Governing Law; Submission to Jurisdiction; Trial by Jury. This Purchase Warrant shall be governed by and construed in accordance with the law of the State of New York. The Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Purchase Warrant shall be brought and enforced in the Supreme Court of the State of New York sitting in the County of New York, or in the United States District Court for the Southern District of New York, and irrevocably submits to the jurisdiction of such courts and the appellate courts therefrom, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 8 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim. The Company and the Holder agree that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and the Holder hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Purchase Warrant or the transactions contemplated hereby.
9.6 Waiver, etc. The failure of the Company or the Holder to at any time enforce any of the provisions of this Purchase Warrant shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Purchase Warrant or any provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Purchase Warrant. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Purchase Warrant shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
9.7 Execution in Counterparts. This Purchase Warrant may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Such counterparts may be delivered by facsimile transmission or other electronic transmission.
9.8 Exchange Agreement. As a condition of the Holder’s receipt and acceptance of this Purchase Warrant, Holder agrees that, at any time prior to the complete exercise of this Purchase Warrant by Holder, if the Company and EF Hutton enter into an agreement (“Exchange Agreement”) pursuant to which they agree that all outstanding Purchase Warrants will be exchanged for securities or cash or a combination of both, then Holder shall agree to such exchange and become a party to the Exchange Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Purchase Warrant to be signed by its duly authorized officer as of the ____ day of _______, 2023.
| GLUCOSE HEALTH, INC. | |||
| By: | |||
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| Name: | Murray Fleming | |
| Title: | Chief Executive Officer | ||
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[Form to be used to exercise Purchase Warrant]
Date: __________, 20___
The undersigned hereby elects irrevocably to exercise the Purchase Warrant for ______ Shares of Common Stock (the “Shares”), of Glucose Health, Inc., a Delaware corporation (the “Company”), and hereby makes payment of $____ (at the rate of $____ per Share) in payment of the Exercise Price pursuant thereto. Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been exercised.
or
The undersigned hereby elects irrevocably to convert its right to purchase Shares of the Company under the Purchase Warrant for ______ Shares, as determined in accordance with the following formula:
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The undersigned agrees and acknowledges that the calculation set forth above is subject to confirmation by the Company and any disagreement with respect to the calculation shall be resolved by the Company in its sole discretion.
Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been exercised.
Signature _______________________________________
Signature Guaranteed ______________________________
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
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NOTICE: The signature to this form must correspond with the name as written upon the face of the Purchase Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
[Form to be used to assign Purchase Warrant]
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ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the within Purchase Warrant):
FOR VALUE RECEIVED, __________________ does hereby sell, assign and transfer unto______________ the right to purchase _______________ shares, par value $0.001 per share (the “Shares”), of the common stock of Glucose Health, Inc., (collectively with its subsidiaries and affiliates, including, without limitation, all entities disclosed or described in the Registration Statement as being subsidiaries (the “Company”), evidenced by the Purchase Warrant and does hereby authorize the Company to transfer such right on the books of the Company.
Dated: __________, 20__
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NOTICE: The signature to this form must correspond with the name as written upon the face of the within Purchase Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
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EXHIBIT 10.11
CONSENT OF CHIEF ACCOUNTING OFFICER NOMINEE
In connection with the filing by Glucose Health, Inc. (the “Company”) of a Registration Statement on Form S-1 (together with any amendments or supplements thereto, the “Registration Statement”) with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), the undersigned hereby consents to being named in the Registration Statement, as nominee to the position of Chief Accounting Officer (Principal Accounting Officer, Principal Financial Officer).
November 24, 2022
| By: | /s/ Sarah Berman |
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| Name: | Sarah Berman |
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EXHIBIT 10.12
Form of Lock-Up Agreement
for
Officers, Directors, and Holder(s) of more than 5% Common Stock
[●], 202[●]
EF HUTTON,
division of Benchmark Investments, LLC
as Representative of the several Underwriters named on Schedule 1 attached hereto
590 Madison Avenue, 39th Floor
New York, New York 10022
Ladies and Gentlemen:
The undersigned, an officer, director and/or holder of more than 5% of shares of common stocks (the “Common Stocks”), or rights to acquire more than 5% of shares of Common Stocks (the “Shares”) of Glucose Health, Inc. (the “Company”), understands that you are the representative (the “Representative”) of one or several underwriters (collectively, the “Underwriters”), named or to be named in the final form of Schedule 1 to the underwriting agreement (the “Underwriting Agreement”) to be entered into among the Underwriters and the Company, providing for the public offering (the “Public Offering”) of securities of the Company (the “Securities”) pursuant to a registration statement (No. 333-265335) filed (the “Registration Statement”) with the U.S. Securities and Exchange Commission (the “SEC”) on [●].
In consideration of the Underwriters’ agreement to enter into the Underwriting Agreement and to proceed with the Public Offering of the Securities, and for other good and valuable consideration, receipt of which is hereby acknowledged, the Undersigned hereby agrees, for the benefit of the Company, the Representative and the other Underwriters that, without the prior written consent of the Representative, the Undersigned will not, during the period commencing on the date of this Lock-up Agreement and continuing and including the date that is one-hundred and eighty (180) days after the closing of the Public Offering (the “Lock-Up Period”), unless otherwise provided herein, directly or indirectly (a) offer, sell, agree to offer or sell, solicit offers to purchase, grant any call option or purchase any put option with respect to, pledge, encumber, assign, borrow or otherwise dispose of (each a “Transfer”) any Relevant Security (as defined below) or otherwise publicly disclose the intention to do so, or (b) establish or increase any “put equivalent position” or liquidate or decrease any “call equivalent position” with respect to any Relevant Security (in each case within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder) with respect to any Relevant Security or otherwise enter into any swap, derivative or other transaction or arrangement that Transfers to another, in whole or in part, any economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by the delivery of Relevant Securities, other securities, cash or other consideration, or otherwise publicly disclose the intention to do so. As used herein, the term “Relevant Security” means any Share, any warrant to purchase Shares or any other security of the Company or any other entity that is convertible into, or exercisable or exchangeable for, Shares, in each case owned beneficially or otherwise by the Undersigned on the date of closing of the Public Offering or acquired by the Undersigned during the Lock-Up Period.
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The restrictions in the foregoing paragraph shall not apply to (a) any exercise (including a cashless exercise or broker-assisted exercise and payment of tax obligations), vesting or settlement, as applicable, by the Undersigned of options or warrants to purchase Shares or other equity awards pursuant to any stock incentive plan or stock purchase plan of the Company; provided that any Shares received by the Undersigned upon such exercise, conversion or exchange will be subject to the Lock-Up Period, (b) any establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the Transfer of Shares (a “Trading Plan”); provided that (i) the Trading Plan shall not provide for or permit any Transfers, sales or other dispositions of Shares during the Lock-Up Period and (ii) the Trading Plan would not require any filing under Section 16(a) of the Exchange Act and no such filing is voluntarily made, (c) any Transfer of Shares acquired in open market transactions following the closing of the Public Offering, provided the Transfer would not require any filing under Section 16(a) of the Exchange Act and no such filing is voluntarily made, (d) the Transfer of the Undersigned’s Shares or any security convertible into or exercisable or exchangeable for Common Stock to the Company in connection with the termination of the Undersigned’s employment with the Company or pursuant to contractual arrangements under which the Company has the option to repurchase such shares, provided that no filing by any party under the Exchange Act shall be required or shall be made voluntarily within 45 days after the date the Undersigned ceases to provide services to the Company, and after such 45th day, if the Undersigned is required to file a report under the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Lock-Up Period, the Undersigned shall indicate in the footnotes thereto that the filing relates to the termination of the Undersigned’s employment, and no other public announcement shall be made voluntarily in connection with such transfer (other than the filing on a Form 5 made after the expiration of the Lock-Up Period), (e) the conversion of the outstanding securities into Shares, provided that any such Shares received upon such conversion shall be subject to the restrictions on Transfer set forth in this Lock-Up Agreement, or (f) the Transfer of Shares or any security convertible into or exercisable or exchangeable for Shares pursuant to a bona fide third-party tender offer for securities of the Company, merger, consolidation or other similar transaction that is approved by the disinterested members of the board of directors of the Company, made to all holders of Common Stock involving a change of control (as defined below), provided that all of the Undersigned’s Relevant Securities subject to this Lock-Up Agreement shall remain subject to the restrictions herein. For purposes of this Lock-Up Agreement, “change of control” means any bona fide third party tender offer, merger, consolidation or other similar transaction, in one transaction or a series of related transactions, the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of affiliated persons, other than the Company, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of 50% or more of the total voting power of the voting stock of the Company (or the surviving entity).
In addition, the Undersigned further agrees that, except for the Registration Statement or any registration statement on Form S-8, during the Lock-Up Period, the Undersigned will not, without the prior written consent of the Representative: (a) file or participate in the filing with the SEC any registration statement or circulate or participate in the circulation of any preliminary or final prospectus or other disclosure documents, in each case with respect to any proposed offering or sale of a Relevant Security beneficially owned by the Undersigned, or (b) exercise any rights the Undersigned may have to require registration with the SEC of any proposed offering or sale of a Relevant Security beneficially owned by the Undersigned.
In furtherance of the Undersigned’s obligations hereunder, the Undersigned hereby authorizes the Company during the Lock-Up Period to cause the transfer agent for the Relevant Securities to decline to Transfer, and to note stop transfer restrictions on the stock register and other records relating to, Relevant Securities for which the Undersigned is the record owner and the Transfer of which would be a violation of this Lock-Up Agreement and, in the case of the Relevant Securities for which the Undersigned is the beneficial owner but not the record owner, the Undersigned agrees that during the Lock-Up Period it will use its reasonable best efforts to cause the record owner to authorize the Company to cause the relevant transfer agent to decline to transfer, and to note stop transfer restrictions on the stock register and other records relating to such Relevant Securities to the extent such transfer would be a violation of this Lock-Up Agreement.
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Notwithstanding the foregoing or anything contained herein to the contrary, the Undersigned may transfer the Undersigned’s Relevant Securities without the prior written consent of the Representative:
| (i) | as a bona fide gift or gifts; | |
| (ii) | To any immediate family member of the Undersigned, or to any trust, partnership, limited liability company, or other legal entity commonly used for estate planning purposes which are established for the direct or indirect benefit of the Undersigned or a member or members of the immediate family of the Undersigned; | |
| (iii) | if the Undersigned is a corporation, partnership, limited liability company, trust or other business entity, (1) to another corporation, partnership, limited liability company, trust, or other business entity that is a direct or indirect Affiliate (as defined in Rule 405 under the Securities Act of 1933, as amended) of the Undersigned, (2) to partners, limited liability company members or stockholders of the Undersigned or holders of similar equity interests in the Undersigned, or (3) in connection with a sale, merger or transfer of all or substantially all of the assets of the Undersigned or any other change of control of the Undersigned, not undertaken for the purpose of avoiding the restrictions imposed by this Lock-Up Agreement; | |
| (iv) | if the Undersigned is a trust, to the trustee or beneficiary of such trust or to the estate of a beneficiary of such trust; | |
| (v) | by testate or intestate succession; | |
| (vi) | by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement; | |
| (vii) | pursuant to the Underwriting Agreement; | |
| (viii) | the withholder of Shares by, or surrender of Shares to, the Company pursuant to a “net” or “cashless” exercise or settlement feature to cover taxes due upon or the consideration required in connection with the exercise of securities issued under an equity incentive plan or stock purchase plan of the Company; or | |
| (ix) | to a charity or educational institution; |
provided, in the case of clauses (i)-(vi), that (A) such transfer shall not involve a disposition for value, (B) the transferee agrees in writing with the Underwriters and the Company to be bound by the terms of this Lock-Up Agreement, and (C) such transfer would not require any filing under Section 16(a) of the Exchange Act and no such filing is voluntarily made.
For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage, or adoption, not more remote than the first cousin.
If the Undersigned is an officer or director of the Company, (i) the Representative agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a Transfer of Shares, the Representative will notify the Company of the impending release or waiver and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release as set forth in Exhibit C through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representative hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this Lock-Up Agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.
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The Undersigned, whether or not participating in the Public Offering, understands that the Underwriters and the Company are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Lock-Up Agreement.
The Undersigned hereby represents and warrants that the Undersigned has full power and authority to enter into this Lock-Up Agreement and that this Lock-Up Agreement has been duly authorized (if the Undersigned is not a natural person) and constitutes the legal, valid, and binding obligation of the Undersigned, enforceable in accordance with its terms. Upon request, the Undersigned will execute any additional documents necessary in connection with the enforcement hereof. Any obligations of the Undersigned shall be binding upon the successors and assigns of the Undersigned from the date of this Lock-Up Agreement.
This Lock-Up Agreement shall automatically terminate and be of no further effect upon the earliest to occur, if any, of the following: (i) prior to the execution of the Underwriting Agreement, upon such date the Company, on the one hand, or you, on the other hand, notifies the other in writing that it does not intend to proceed with the Public Offering, (ii) the date that the Company withdraws the registration statement related to the Public Offering, or (iii) upon the termination (other than the provisions thereof that survive termination) of the Underwriting Agreement in accordance with the terms thereof prior to payment for and delivery of the Shares to be sold thereunder.
This Lock-Up Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof. Delivery of a signed copy of this Lock-Up Agreement by facsimile or e-mail/.pdf transmission shall be effective as the delivery of the original hereof.
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In Witness Whereof, the Undersigned hereby agrees to the above on the date set forth above.
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EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the inclusion in this Amendment No. 3 of the Registration Statement on Form S-1 (File No. 333-265335) of our audit report dated May 2, 2022 (dual-dated January 6, 2023), with respect to the balance sheets of Glucose Health, Inc. as of December 31, 2021 and 2020, and the related statements of operations, shareholders’ equity, and cash flows for each of the years then ended, appearing in the Annual Report on Form 10-K for the year December 31, 2021. Our report dated May 2, 2022 (dual-dated January 6, 2023), relating to aforementioned financial statements, includes an emphasis of matter paragraph relating to substantial doubt as to the Company's ability to continue as a going concern.
We also consent to the references to us under the heading “Experts” within the Registration Statement.
/s/ Fruci & Associates II, PLLC
Fruci & Associates II, PLLC
January 6, 2023
EXHIBIT 99.1
GLUCOSE HEALTH, INC.
Charter of the Audit Committee of the Board of Directors
| I. | Audit Committee Purpose |
The purpose of the Audit Committee (the “Committee”) of the Board of Directors (the “Board”) of Glucose Health, Inc. (the “Company”) is to oversee the processes of accounting and financial reporting of the Company and the audits and financial statements of the Company. The Committee’s primary duties and responsibilities are to:
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| A. | Monitor the integrity of the Company’s financial reporting process and systems of internal controls regarding finance, accounting and legal compliance. |
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| B. | Monitor the independence and performance of the Company’s independent auditors and the Company’s accounting personnel. |
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| C. | Provide an avenue of communication among the independent auditors, management, the Company’s accounting personnel, and the Board. |
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| D. | Appoint and provide oversight for the independent auditors engaged to perform the audit of the financial statements. |
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| E. | Discuss the scope of the independent auditors’ examination. |
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| F. | Review the financial statements and the independent auditors’ report. |
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| G. | Review areas of potential significant financial risk to the Company. |
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| H. | Monitor compliance with legal and regulatory requirements. |
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| I. | Solicit recommendations from the independent auditors regarding internal controls and other matters. |
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| J. | Make recommendations to the Board. |
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| K. | Resolve any disagreements between management and the auditors regarding financial reporting. |
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| L. | Prepare the report required by Item 407(d) of Regulation S-K, as required by the rules of the Securities and Exchange Commission (the “SEC”). |
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| M. | Perform other related tasks as requested by the Board. |
The committee has the authority to conduct any investigation appropriate to fulfilling its responsibilities, and it has direct access to the independent auditors as well as anyone in the organization. The Committee has the ability to retain, at the Company’s expense, special legal, accounting, or other consultants or experts it deems necessary in the performance of its duties.
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| II. | Audit Committee Composition and Meetings | |
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| A. | The Committee shall be compromised of three or more directors as determined by the Board. Each member must be independent of the management of the Company and are free of any relationship that, in the opinion of the Board, would interfere with their exercise of independent judgment as a Committee member. Further, each member of the Committee shall meet the independence and experience requirements of the listing rules of any securities exchange or association in which the Company’s securities are traded and the rules and regulations of the SEC, including Rule 10A-3. All members of the Committee shall have a basic understanding of finance and accounting and be able to read and understand fundamental financial statements, including a company’s balance sheet, income statement, and cash flow statement. At least one member of the Committee must have past employment experience in finance or accounting, professional certification in accounting, or any other comparable experience or background that results in the member’s financial sophistication, including being or having been a Chief Executive Officer (“CEO”) or Chief Financial Officer (“CFO”) or other senior officer with financial oversight responsibilities. |
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| B. | Committee members shall be appointed by the Board after due consideration of recommendations of the Nominating and Corporate Governance Committee, and the Board may designate a Chair of the Committee. If an Audit Committee Chair is not designated or present, the members of the Committee may designate a Chair by majority vote of the Committee membership. The Board may, at any time and at its complete discretion, replace a Committee member. |
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| C. | Committee members shall meet (either in person or telephonically) at least four times each fiscal year and more often if the Committee, at its discretion, deems this desirable. The Committee shall meet, at its discretion, with management, the Company’s principal accounting officer, the independent auditors, and as a committee to discuss any matters that the Committee or each of these groups believes should be discussed. The Committee may request any officer or employee of the Company or the Company’s outside counsel or independent auditors to attend a meeting of the Committee or to meet with any members of, or consultants to, the Committee. |
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| III. | Audit Committee Responsibilities and Duties | |
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| A. | Review the Company’s annual audited financial statements prior to distribution. Review should include discussion with management and independent auditors of significant issues regarding accounting principles, practices, and judgments. |
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| B. | In consultation with the management, the independent auditors, and the Company’s principal accounting officer, consider the integrity of the Company’s financial reporting processes and controls, including any major issues as to the adequacy of the Company’s internal controls, and any special steps adopted in light of any identified material control deficiencies. Discuss significant financial risk exposures and the steps management has taken to monitor, control, and report such exposures. Review significant findings prepared by the independent auditors and the Company’s principal accounting officer together with management’s responses. |
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| C. | The Committee shall review with the management and the independent auditors any correspondence with regulators and any published reports that raise material issues regarding the Company’s accounting policies. |
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| A. | The Committee shall have the sole authority to appoint or replace the independent auditor. The Committee shall be directly responsible for the compensation and oversight of the work of the independent auditor (including resolutions of disagreements between management and the independent auditor regarding final reporting) for the purpose of preparing or issuing an audit report or related work. The independent auditor shall report directly to the Committee. The Committee shall approve in advance the provision by the independent auditors of all services to the Company whether or not related to the audit. However, neither the Committee nor any person with authority delegated from the Committee may approve an auditor providing the services that are described in Section 10A(g) of the Securities Exchange Act of 1934 (the “Exchange Act”) as “prohibited activities.” |
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| B. | The Committee shall obtain, review and discuss reports from the independent auditor regarding (1) all critical accounting policies and practices to be used; (2) all alternative treatments of financial information within generally accepted accounting principles that have been discussed with management officials of the Company, ramifications of the use of these alternative disclosures and treatments, and the treatment preferred by the independent auditor and the reasons for favoring that treatment; and (3) other material written communications between the independent auditor and Company management, such as any management letter or schedule of unadjusted differences. |
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| C. | The Committee shall assure the regular rotation of the lead audit partner as required by Section 10A(j) of the Exchange Act. |
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| D. | The Committee shall assure that hiring policies for employees or former employees of the independent auditor are consistent with Section 10A(l) of the Exchange Act. |
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| E. | The Committee shall discuss with the independent auditor and then disclose the matters required to be discussed and disclosed by applicable accounting and auditing guidance, including any difficulties the independent auditor encountered in the course of the audit work, any restrictions on the scope of the independent auditor’s activities or on access to requested information, and any significant disagreements with management. |
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| F. | The Committee shall ascertain annually from the independent auditor whether the Company has issues under Section 10A(b) of the Exchange Act. |
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| G. | The Committee shall determine the independence of the auditors and receive from the independent auditors a formal written statement delineating all relationships between the auditor and the company (consistent with PCAOB Independence Standards Board Standard 1 or any other applicable standards), and thereafter actively engaging in a dialogue with the auditor with respect to any disclosed relationships or services that may impact the objectivity and independence of the auditor and for taking, or recommending that the full Board take, appropriate action to oversee the independence of the outside auditor. |
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| Accounting Department and Legal Compliance | ||
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| The Committee shall: | |
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| A. | Review the personnel activities and qualifications of the Company’s accounting personnel, as needed. |
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| B. | Review the appointment and performance of the principal accounting officer, and review financial and accounting personnel succession planning with the Company. |
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| C. | Review significant reports prepared by the Company’s principal accounting officer together with management’s response and follow-up to these reports. |
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| D. | On at least an annual basis, review with the Company’s counsel any legal matters that could have a significant impact on the Company’s financial statements, the Company’s compliance with applicable laws and regulations, and inquiries received from regulators or governmental agencies. |
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| E. | Establish procedures for the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters and the confidential, anonymous submission by employees of the Company of concerns regarding questionable accounting or auditing matters. |
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| F. | The Committee shall review the CEO and CFO’s disclosure and certifications under Sections 302 and 906 of the Sarbanes-Oxley Act. |
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| G. | Conduct an appropriate review of and approve all related party transactions on an ongoing basis and the Committee shall review potential conflict of interest situations where appropriate. |
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| H. | Conduct an annual risk review with respect to the matters within the role and the responsibilities of the Committee. |
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| The Committee shall: | ||
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| (a) | Report regularly to the Board on its activities; |
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| (b) | Maintain minutes of its meetings and records relating to those meetings and the Committee’s activities; |
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| (c) | Have authority to obtain, at the expense of the Company, advice and assistance from internal or external legal, consulting or other advisors; |
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| (d) | Form and delegate authority to subcommittees of one or more Committee members when desired and appropriate; |
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| (e) | Review and reassess the adequacy of this Charter annually and recommend to the Board any proposed changes to this Charter; and |
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| (f) | Periodically review the Committee’s own performance. |
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| General | ||
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| In performing their responsibilities, Committee members are entitled to rely in good faith on information, opinions, reports or statements prepared or presented by: | ||
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| (a) | One of more officers or employees of the Company whom the Committee member reasonably believes to be reliable and competent in the matters presented; |
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| (b) | Counsel, independent auditors, or other persons as to matters which the Committee member reasonably believes to be within the professional or expert competence of such person; and |
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| (c) | Other committees of the Board as to matters within their respective designated authority which the Committee member reasonably believes to merit confidence. |
The Committee has the powers and responsibilities delineated in this Charter. It is not, however, the Committee’s responsibility to prepare and certify the Company’s financial statements, to guarantee the independent auditor’s report, or to guarantee other disclosures by the Company. These are fundamental responsibilities of management and the independent auditor. Committee members are not full-time Company employees and are not performing the functions of auditors or accountants.
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EXHIBIT 99.2
Glucose Health, Inc.
Charter of the Compensation Committee of the Board of Directors
| I. | Authority and Composition |
The Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of Glucose Health, Inc. (the “Company”) is established pursuant to Article IV of the Bylaws of the Company. Committee members are appointed annually by the Board on the recommendation of the Nominating and Corporate Governance Committee, and may be replaced by the Board. The Committee must consist of at least two directors, each of whom shall meet the independence requirements of the NASDAQ Corporate Governance Rules (subject to any applicable transition periods or exceptions permitted under NASDAQ requirements) and the standards of independence prescribed by NASDAQ and/or for purposes of any federal securities, tax or other laws relating to the Committee’s duties and responsibilities, including Section 162(m) of the Internal Revenue Code. Without limiting the foregoing, to be considered as independent, the Board will consider all relevant factors, including (a) the source of compensation of the director, including any consulting, advisory or other compensatory fee paid by, or on behalf of, the Company, and (b) whether the director is affiliated with the Company, any subsidiary of the Company or any affiliate of a subsidiary of the Company.
The Board shall appoint a Chairman of the Committee upon the recommendation of the Nominating and Corporate Governance Committee. The Committee may also appoint a Secretary, who need not be a director.
This Charter may be amended only by the Board.
| II. | Purposes of the Committee |
The primary purposes of the Committee are to: (i) develop recommendations for the Board with respect to the compensation of the Company’s Chief Executive Officer (the “CEO”) and non-employee directors; (ii) discharge the responsibilities of the Board relating to the approval of the compensation of the Company’s executive officers, other than the CEO; (iii) make determinations with respect to the compensation programs and policies of the Company; (iv) review and discuss with the Company’s management, the Compensation Discussion and Analysis (the “CD&A”) and other Committee or executive compensation disclosures to be included in the Company’s annual proxy statement and/or annual report on Form 10-K, and determine whether to recommend to the Board of Directors that the CD&A be included in the proxy statement and/or annual report on Form 10-K; and (v) provide the Compensation Committee Report for inclusion in the Company’s annual proxy statement and/or annual report on Form 10-K that complies with the rules and regulations of the Securities and Exchange Commission (the “SEC”).
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| III. | Duties and Responsibilities of the Committee |
The following activities are set forth as a guide with the understanding that the Committee may diverge from this guide as it considers appropriate, subject to compliance with applicable NASDAQ, securities, tax and other legal and self-regulatory requirements. Although the Board may consider other duties from time to time, the Committee, to the extent it deems necessary or appropriate, will have the following responsibilities:
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| A. | The Committee shall annually review goals and objectives relevant to the CEO’s compensation, evaluate the CEO’s performance in light of those goals and objectives, determine the CEO’s cash and equity-based compensation based on this evaluation, and recommend such goals, objectives and compensation to the Board for its approval. In determining any incentive component of the CEO’s compensation, the Committee will consider appropriate factors, which may include the Company’s performance and relative shareholder return, the achievement of the CEO’s performance milestones, the value of similar incentive grants or awards to chief executive officers at comparable companies, and the grants or awards given to the CEO in past years. The CEO may not be present for such discussions and determinations. |
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| B. | The Committee shall annually review and approve the compensation of the Company’s “executive officers,” (as that term is defined in the regulations promulgated by the SEC and the NASDAQ Rules) other than the CEO. In making such compensation decisions, the Committee will take into account peer group practices and other appropriate factors, such as corporate and individual performance and historical compensation practices for such officers. The Committee will solicit the recommendations of the CEO in connection with the foregoing. The Committee will also provide general oversight of the Company’s compensation and benefits plans, policies and programs that pertain to employees other than executive officers. |
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| C. | The Committee shall annually review and recommend to the Board for its approval, the fees and equity compensation paid to the Company’s non-employee directors, based on appropriate factors as determined by the Committee. Such review and recommendations shall ensure that no agreements or arrangements for providing professional or consulting services to the Company or an affiliate or an individual officer of the Company or one of their affiliates are made with any director, immediate family members of a director or persons (including entities) with an existing business or personal relationship with any director, without a full review and evaluation of potential conflicts of interest. |
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| D. | The Committee shall have the sole authority to retain and terminate any compensation consultant to be used by the Committee or the Company to assist in the evaluation of the compensation of non-employee directors, the CEO or the other executive officers, shall have sole authority to approve such compensation consultant’s fees and other retention terms, and shall have sole authority to oversee the work of such compensation consultant. In determining whether to engage a compensation consultant, the Committee shall consider the independence factors set forth in the NASDAQ Corporate Governance Rules. Management will advise the Committee of any compensation consultant to be retained with respect to other compensation matters in advance of such retention. |
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| E. | The Committee shall periodically review and make recommendations to the Board with respect to incentive-compensation programs and equity-based plans, and shall periodically review and make recommendations to the Board with respect to the adoption of or material changes in material employee benefit, bonus, severance and other compensation plans of the Company. As appropriate in connection with this process, the Committee shall seek appropriate input from internal or external advisors. |
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| F. | The Committee shall determine the need for and the appropriateness of employment agreements and change in control agreements for each of the Company’s executive officers and any other officers recommended by the CEO or the Board. |
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| G. | The Committee shall determine and approve the options and other equity-based compensation to be granted to executive officers, other than the CEO; and shall recommend to the Board for approval options and other equity-based compensation to be granted to the CEO and non-employee directors. The Committee shall, in conjunction with the CEO, determine the issuance of options and other equity-based compensation under the Company’s incentive compensation and other stock-based plans to all other officers and employees of the Company. The Committee may delegate the determination with respect to persons other than officers to the CEO but will approve the aggregate amount granted to all employees and all new hire grants. Any equity awards to the CEO shall be determined by the Committee and recommended to the Board for its review and approval. |
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| H. | The Committee shall perform such duties and responsibilities as may be assigned to the Committee by the Board and/or under the terms of any compensation plan of the Company. |
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| (a) | Report regularly to the Board on its activities; |
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| (b) | Maintain minutes of its meetings and records relating to those meetings and the Committee’s activities; |
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| (c) | Have authority to obtain, at the expense of the Company, advice and assistance from internal or external legal, consulting or other advisors; |
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| (d) | Form and delegate authority to subcommittees of one or more Committee members when desired and appropriate; |
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| (e) | Review and reassess the adequacy of this Charter annually and recommend to the Board any proposed changes to this Charter; and |
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| (f) | Periodically review the Committee’s own performance. |
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| IV. | General | |
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| In performing their responsibilities, Committee members are entitled to rely in good faith on information, opinions, reports or statements prepared or presented by: |
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| (a) | One or more officers or employees of the Company whom the Committee member reasonably believes to be reliable and competent in the matters presented; |
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| (b) | Counsel, independent auditors, or other persons as to matters which the Committee member reasonably believes to be within the professional or expert competence of such person; and |
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| (c) | Other committees of the Board as to matters within their respective designated authority which committee the Committee member reasonably believes to merit confidence. |
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EXHIBIT 99.3
Glucose Health, Inc.
Charter of the Nominating and Corporate Governance Committee of the Board of Directors
The purpose of the Nominating and Corporate Governance Committee (the “Committee”) of the Board of Directors (the “Board”) of Glucose Health, Inc. (the “Company”) shall be as set forth in this charter (the “Charter”). The Committee has been delegated authority by the Board to: (1) identify qualified individuals to become Board members; (2) determine the composition of the Board and its committees; (3) monitor the self-assessment practices of the Board and its committees; and (4) develop and implement the Company’s corporate governance guidelines.
Authority and Responsibilities
In furtherance of these purposes, the Committee has the following authority and responsibilities:
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| 1. | To oversee the administration of the Company’s Code of Ethics and related policies. |
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| 2. | To lead the search for individuals qualified to become members of the Board and to select director nominees to be presented for election by the shareholders at each annual meeting. The Committee shall select individuals as director nominees who shall have the highest personal and professional integrity, who have demonstrated exceptional ability and judgment and who shall be most effective, in conjunction with the other nominees to the Board, in collectively serving the long-term interests of the shareholders. |
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| 3. | To ensure, in cooperation with the Compensation Committee, that no agreements or arrangements are made with directors or relatives of directors for providing professional or consulting services to the Company or an affiliate or an individual officer of the Company or one of their affiliated, without appropriate review and evaluation for conflicts of interest. |
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| 4. | To ensure that Board members do not serve on more than three other for-profit public company boards that have a class of securities registered under the Securities Exchange Act of 1934 in addition to the Company’s board. Newly appointed or elected directors shall have a grace period of nine (9) months to gain compliance with this condition. |
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| 5. | To review the Board’s committee structure and to recommend to the Board for its approval, directors to serve as members of each committee as well as recommendations for committee chairs. The Committee shall review and recommend committee positions, including chairs of such committees, annually and shall recommend additional committee members to fill vacancies. |
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| 6. | To review recommendations received from shareholders for persons to be considered for nomination to the board of directors, and to designate a member of the Committee to receive such communications directly from shareholders, and to publish the name and contact information of such person in the Company’s proxy statement for each of its annual meeting of shareholders. |
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| 7. | To monitor compliance with the Company’s corporate governance guidelines. The Committee shall review the guidelines at least annually, and recommend changes as necessary to the Board. |
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| 8. | To develop and implement an annual self-evaluation of the Board, both individually and as a Board, and of its committees. The Committee shall oversee the annual self-evaluations, with a focus on the effectiveness of the directors, Board, and committees as representative of the shareholders. |
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| 9. | To review and recommend changes to procedures whereby shareholders may communicate with the Board. |
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| 10. | To assess the independence of directors annually and report to the Board. |
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| 11. | To recommend to the Board for its approval, the leadership structure of the Board, including whether the Board should have an executive or non-executive Chair, whether the roles of Chair and CEO should combine, and whether a Lead Director of the Board should be appointed. |
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| Actions and Recommendations | ||
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| In carrying out its responsibilities under its charter, the Committee is required to: | ||
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| (a) | Establish criteria for selection of potential directors, taking into consideration the following desired attributes: leadership, independence; interpersonal skills; financial acumen; business experiences; industry knowledge; diversity of viewpoints, and any other experiences as the Committee deems important to the effectiveness of the Board. The Committee will periodically assess the criteria to ensure it is consistent with the best practices and the goals of the Company. |
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| (b) | Identify individuals who satisfy the criteria for selection to the Board and make recommendations to the Board on new candidates for Board membership. |
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| (c) | Receive and evaluate nominations for Board membership which are recommended by existing directors, officers, or shareholders in accordance with procedures established by the Committee in accordance with the Company’s corporate governance guidelines and applicable law. |
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| (d) | Oversee the process for conducting background checks on new candidates for Board membership, including the process of validating candidate credentials. |
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| (e) | Review any potential conflicts of interest for Board members in the event of a particular member’s change of employment and recommend to the Board the Committee’s belief as to whether that director should continue his or her board service or resign from the Board. |
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| (f) | Establish criteria for the evaluation of existing directors and the reelection or removal of directors based on the needs of the Company. |
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| (g) | Monitor the requirement that Board members shall not serve on more than three other for-profit public company boards in addition to the Company’s Board. Determinations regarding the definition of “for-profit public company board” shall be made by the Committee. |
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| (h) | Review the qualifications, performance and independence of existing Board members and make recommendations to the Board whether they should stand for reelection. |
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| (i) | Recommend to the Board the removal of a director where appropriate. |
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| (j) | Recommend to the Board a slate of nominees for the next annual meeting of shareholders. |
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| (k) | Oversee the orientation process for new directors. |
Shareholder Recommendations
The Committee will consider all recommendations for nominations to the Board from any person (or group) who has (or collectively if a group have) held more than 3% of the Company’s voting securities for longer than one year. Shareholders desiring to submit recommendations to the Committee should submit information regarding such recommendation in writing or by electronic mail to the person designated in the proxy statement circulated in advance of each annual meeting of shareholders. Each proxy statement shall set forth the information to be provided either directly in the proxy statement or by reference to the Company’s website. When the required information has been received, the Committee will evaluate the proposed nominee based on the criteria described above, with the principal criteria being the needs of the Company and the qualifications of such proposed nominee to fulfill those needs.
The Committee shall:
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| (b) | Maintain minutes of its meetings and records relating to those meetings and the Committee’s activities; |
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| (c) | Have authority to obtain, at the expense of the Company, advice and assistance from search firms and internal or external legal, consulting, or other advisors; |
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| (d) | Form and delegate authority to subcommittees of one or more Committee members when desired and appropriate; |
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| (e) | Review and reassess the adequacy of this Charter annually and recommend to the Board any proposed changes to this Charter; and |
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| (f) | Periodically review the Committee’s own performance. |
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| In performing their responsibilities, Committee members are entitled to rely in good faith on information, opinions, reports or statements prepared or presented by: | ||
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| (a) | One or more officers or employees of the Company whom the Committee member reasonably believes to be reliable and competent in the matters presented; |
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| (b) | Counsel, independent auditors, or other persons as to matters which the Committee member reasonably believes to be within the professional or expert competence of such person; and |
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| (c) | Other committees of the Board as to matters within their respective designated authority which committee the Committee member reasonably believes to merit confidence. |
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EXHIBIT 99.4
CODE OF ETHICS
OF
GLUCOSE HEALTH, INC.
| 1. | Introduction |
The Board of Directors of Glucose Health, Inc. (the “Company”) has adopted this code of ethics (the “Code”), which is applicable to all directors, officers and employees of the Company, with the intent to:
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| · | promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; |
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| · | promote the full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the Securities and Exchange Commission (the “SEC”), as well as in other public communications made by or on behalf of the Company; |
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| · | promote compliance with applicable governmental laws, rules and regulations; |
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| · | deter wrongdoing; and |
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| · | require prompt internal reporting of breaches of, and accountability for adherence to, this Code. |
This Code may be amended only by resolution of the Company’s Board of Directors. In this Code, references to the “Company” include, in appropriate context, the Company’s subsidiaries, if any.
| 2. | Honest, Ethical and Fair Conduct |
Each person owes a duty to the Company to act with integrity. Integrity requires, among other things, being honest, fair and candid. Deceit, dishonesty and subordination of the Company’s interests to personal interests are inconsistent with integrity. Service to the Company should never be subordinated to personal gain or advantage.
Each person must:
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| · | Act with integrity, including being honest and candid while still maintaining the confidentiality of the Company’s information where required or in the Company’s interests. |
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| · | Observe all applicable governmental laws, rules and regulations. |
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| · | Comply with the requirements of applicable accounting and auditing standards, as well as Company policies, in order to maintain a high standard of accuracy and completeness in the Company’s financial records and other business-related information and data. |
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| · | Adhere to a high standard of business ethics and not seek competitive advantage through unlawful or unethical business practices. |
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| · | Deal fairly with the Company’s customers, suppliers, competitors and employees. |
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| · | Refrain from taking advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair-dealing practice. |
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| · | Protect the assets of the Company and ensure their proper use. |
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| · | Refrain from taking for themselves personally opportunities that are discovered through the use of corporate assets and refrain from using corporate assets, information, or position for general personal gain outside the scope of employment with the Company. |
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| · | Avoid conflicts of interest, wherever possible, except under guidelines or resolutions approved by the Board of Directors (or the appropriate committee of the Board of Directors). Anything that would be a conflict for a person subject to this Code also will be a conflict if it is related to a member of his or her family or a close relative. Examples of conflict of interest situations include, but are not limited to, the following: | |
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| · | o | any significant ownership interest in any supplier or customer; |
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| · | o | any consulting or employment relationship with any customer, supplier, or competitor; |
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| · | o | any outside business activity that detracts from an individual’s ability to devote appropriate time and attention to his or her responsibilities with the Company; |
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| · | o | the receipt of any money, non-nominal gifts or excessive entertainment from any company with which the Company has current or prospective business dealings; |
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| · | o | being in the position of supervising, reviewing, or having any influence on the job evaluation, pay, or benefit of any close relative; |
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| · | o | selling anything to the Company or buying anything from the Company, except on the same terms and conditions as comparable officers or directors are permitted to so purchase or sell; and |
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| · | o | any other circumstance, event, relationship or situation in which the personal interest of a person subject to this Code interferes, or even appears to interfere, with the interests of the Company as a whole. |
| 3. | Disclosure |
The Company strives to ensure that the contents of and the disclosures in public communications and in the reports and documents that the Company files with the SEC shall be full, fair, accurate, timely and understandable in accordance with applicable disclosure standards, including standards of materiality, where appropriate. Each person must:
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| · | not knowingly misrepresent, or cause others to misrepresent, facts about the Company to others, whether within or outside the Company, including to the Company’s independent auditors, governmental regulators, self-regulating organizations and other governmental officials, as appropriate; and |
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| · | in relation to his or her area of responsibility, properly review and critically analyze proposed disclosure for accuracy and completeness. |
In addition to the foregoing, the Chief Executive Officer and Chief Financial Officer (or Principal Financial Officer) of the Company and each subsidiary of the Company (or persons performing similar functions), if any, and each other person that typically is involved in the financial reporting of the Company must familiarize himself or herself with the disclosure requirements applicable to the Company as well as the business and financial operations of the Company.
Each person must promptly bring to the attention of the Chairman of the Audit Committee of the Company’s Board of Directors (or the Chairman of the Company’s Board of Directors if no Audit Committee exists) any information he or she may have concerning (a) significant deficiencies in the design or operation of internal and/or disclosure controls which could adversely affect the Company’s ability to record, process, summarize and report financial data or (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s financial reporting, disclosures, or internal controls.
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| 4. | Compliance |
It is the Company’s obligation and policy to comply with all applicable governmental laws, rules and regulations. It is the personal responsibility of each person to, and each person must, adhere to the standards and restrictions imposed by those laws, rules, and regulations, including those relating to accounting and auditing matters.
| 5. | Reporting and Accountability |
The Board of Directors or Audit Committee, if one exists, of the Company is responsible for applying this Code to specific situations in which questions are presented to it and has the authority to interpret this Code in any particular situation. Any person who becomes aware of any existing or potential breach of this Code is required to notify the Chairman of the Board of Directors or Audit Committee promptly. Failure to do so is itself a breach of this Code.
Specifically, each person must:
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| · | Notify the Chairman promptly of any existing or potential violation of this Code. | |
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| · | Not retaliate against any other person for reports of potential violations that are made in good faith. | |
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| · | The Company will follow the following procedures in investigating and enforcing this Code and in reporting on the Code: | |
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| · | o | The Board of Directors or Audit Committee, if one exists, will take all appropriate action to investigate any breaches reported to it. |
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| · | o | If the Audit Committee (if one exists) determines by majority decision that a breach has occurred, it will inform the Board of Directors. |
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| · | o | Upon being notified that a breach has occurred, the Board of Directors by majority decision will take or authorize such disciplinary or preventive action as it deems appropriate, after consultation with the Audit Committee (if one exists) and/or the Company’s counsel, up to and including dismissal or, in the event of criminal or other serious violations of law, notification of the SEC or other appropriate law enforcement authorities. |
No person following the above procedure shall, as a result of following such procedure, be subject by the Company or any officer or employee thereof to discharge, demotion suspension, threat, harassment or, in any manner, discrimination against such person in terms and conditions of employment.
| 6. | Waivers and Amendments |
Any waiver (defined below) or an implicit waiver (defined below) from a provision of this Code for the principal executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions or any amendment (as defined below) to this Code is required to be disclosed in the Company’s Annual Report on Form 10-K or in a Current Report on Form 8-K filed with the SEC.
A “waiver” means the approval by the Company’s Board of Directors of a material departure from a provision of the Code. An “implicit waiver” means the Company’s failure to take action within a reasonable period of time regarding a material departure from a provision of the Code that has been made known to an executive officer of the Company. An “amendment” means any amendment to this Code other than minor technical, administrative or other non-substantive amendments hereto.
All persons should note that it is not the Company’s intention to grant or to permit waivers from the requirements of this Code. The Company expects full compliance with this Code.
| 7. | Other Policies and Procedures |
Any other policy or procedure set out by the Company in writing or made generally known to employees, officers or directors of the Company prior to the date hereof or hereafter are separate requirements and remain in full force and effect.
| 8. | Inquiries |
All inquiries and questions in relation to this Code or its applicability to particular people or situations should be addressed to the Company’s Secretary.
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EXHIBIT 99.7
CONSENT OF DIRECTOR NOMINEE
In connection with the filing by Glucose Health, Inc. (the “Company”) of a Registration Statement on Form S-1 (together with any amendments or supplements thereto, the “Registration Statement”) with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), the undersigned hereby consents, as required by Rule 438 under the Securities Act, to being named in the Registration Statement as a Director Nominee.
October 17, 2022
| By: | /s/ Heidi Skolnik |
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| Name: | Heidi Skolnik |
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