Kaival Brands Innovations Group, Inc 8-K, filed Nov 15, 2022
Kaival Brands Innovations Group, Inc. (KAVL)
About this 8-K
Kaival Brands Innovations Group, Inc filed this 8-K on November 15, 2022.
Items reported
- Item 1.01: Entered into a material agreement
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Item 1.01 Entry into a Material Definitive Agreement.
On November 9, 2022, Kaival Brands Innovations Group, Inc., a Delaware corporation (the “Company”), entered into a Fourth Amendment to Service Agreement (the “Amendment”) with QuikfillRx, LLC (“QuikfillRx”), the third party vendor responsible for executing the Company’s marketing and sales strategies. The Amendment amends that certain Service Agreement, dated March 31, 2020, between the Company and QuikfillRx (as previously amended, the “Service Agreement”). The Amendment provides for the following material changes to the Service Agreement:
1. The term of the Service Agreement is extended for a three-year period ending October 31, 2025, subject to automatic one-year extensions, unless the Service Agreement is terminated earlier pursuant to its terms.
2. QuikfillRx will adopt “Kaival Marketing Services” as its “doing business as” name to more properly reflect the commitment of QuikfillRx to the Company’s business.
3. QuikfillRx will be entitled to a monthly cash fee of $125,000 (prior to the Amendment, the monthly cash fee was $150,000).
4. QuikfillRx was granted a one-time, fully vested, ten-year non-qualified option award to purchase up to 250,000 shares of Company common stock with an exercise price of $0.9869 per share (the closing price of the Company’s common stock on November 9, 2022) (the “Exercise Price”). Such option grant was memorialized pursuant to a Nonqualified Option Agreement, dated November 9, 2022, between the Company and QuikfillRx (the “Nonqualified Option Agreement”).
5. QuikfillRx was granted a ten-year non-qualified option award to purchase up to 3,000,000 shares of Company common stock with an exercise price equal to the Exercise Price, The options granted pursuant to this award are subject to annual vesting based on total net revenues and profit margins (which metrics are subject to adjustment in certain cases involving the Company’s products) achieved by the Company from QuickfillRx’s efforts over the term of the Service Agreement (as amended), with a maximum vesting to occur upon achievement of $180,000,000 in total net revenues reported within the three-year term. Such option grant was memorialized pursuant to a Performance-Based Nonqualified Option Agreement, dated November 9, 2022, between the Company and QuikfillRx (the “Performance-Based Option Agreement”). The options granted pursuant to the Performance-Based Option Agreement will fully vest upon a change of control event involving the Company (as described in the Performance-Based Option Agreement).
The options issued to QuickfillRx pursuant to the Nonqualified Option Agreement and the Performance-Based Option Agreement were issued under and subject to the terms of the Company’s Amended and Restated 2020 Stock and Incentive Compensation Plan.
The Amendment, the Nonqualified Option Agreement and the Performance-Based Option Agreement are filed as Exhibits 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
On November 15, 2022, the Company issued a press release regarding the execution of the Amendment. Such press release is filed as Exhibit 99.1 hereto and incorporated by reference.
| Exhibit No. | Description |
| 10.1+ | Fourth Amendment to Service Agreement, dated November 9, 2022 between the Company and QuikfillRx |
| 10.2 | Nonqualified Stock Option Grant Agreement, dated November 9, 2022, between the Company and QuikfillRx |
| 10.3 | Performance-Based Option Agreement, dated November 9, 2022, between the Company and QuikfillRx |
| 99.1 | Press release of the Company, dated November 15, 2022, announcing the Amendment |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
+ Certain portions of this exhibit (indicated by “[***]”) have been omitted pursuant to Regulation S-K, Item 601(b)(10).as the Company has determined they are both not material and are of the type that the Company treats as private or confidential.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| Kaival Brands Innovations Group, Inc. | ||
| Dated: November 15, 2022 | By: | /s/ Eric Mosser |
| Eric Mosser | ||
| President and Chief Operating Officer | ||
Exhibit 10.1
Certain portions of this Exhibit have been redacted pursuant to Item 601(b)(10) of Regulation S-K and, where applicable, have been marked with “[***]” to indicate where redactions have been made.
FOURTH AMENDMENT TO SERVICE AGREEMENT
THIS FOURTH AMENDMENT TO SERVICE AGREEMENT (the “Amendment”) is entered into this 9th day of November, 2022 (the “Execution Date”) and is between KAIVAL BRANDS INNOVATIONS GROUP, INC., a Delaware corporation (the “Company”) and QUIKFILLRX, LLC, a Florida limited liability company (the “Contractor”) (Contractor and Company are each a “Party” and collectively referred to as the “Parties”).
R E C I T A L S
WHEREAS, Company and Contractor are parties to the Service Agreement dated March 31, 2020 as amended by a First Amendment dated June 2, 2020 and a Second Amendment dated March 16, 2021 and a Third Amendment dated September 17, 2021 (collectively, the “Agreement”) wherein Contractor agreed to provide certain services, including, but not limited to business planning, staffing and recruitment, training and onboarding, direct sales, marketing, and various other services as set forth on Exhibit “A” to the Agreement;
WHEREAS, the Company and Contractor desire to further amend the Agreement as set forth in this Amendment, effective as of the Effective Date.
NOW, THEREFORE, in consideration of the mutual obligations set forth in the Agreement and the Amendment, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree to amend the Agreement as follows:
1. Recitals. The recitals are true, correct, and incorporated by this reference into the Agreement by this Amendment.
2. Effective Date. The amendments to the Agreement implemented by this Amendment shall be effective as of November 1, 2022 (the “Effective Date”).
3. Section 1 Revision. Section 1 of the Agreement is deleted in its entirety and replaced with the following:
“1. TERM OF AGREEMENT; NAME CHANGE
A. Term. The initial term (“Term”) of this Agreement will commence on the Effective Date and, unless terminated as provided herein, shall continue and remain in full force and effect until October 31, 2025. The Term shall automatically on renew for successive one (1) year periods beginning November 1, 2025, on the same terms and conditions set forth in this Agreement unless terminated by either Party as set forth in this Agreement.
B. Name Change. Contractor agrees to change its “doing business as” name to “Kaival Marketing Services” within thirty (30) days following the Effective Date.
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4. Section 10 Revision. The first sentence of Section 10 is deleted in its entirety and replaced with the following:
“Either Party may terminate this Agreement without cause upon not less than ninety (90) days prior written notice to the other Party.”
5. Schedule B General Compensation Revision. The section titled “General Compensation” on Schedule B is deleted in its entirety and replaced with the following:
“General Compensation: The following constitute “General Compensation”:
| ● | For each calendar month commencing on the Effective Date and continuing on the first (1st) of each month thereafter throughout the Term, the Client shall pay the Contractor an amount equal to $125,000 for the Services to be performed during such calendar month. Client must remit this monthly payment no later than the ninth (9th) day of such month. |
| ● | If the Agreement automatically renews at the expiration of the Term, the Parties agree to negotiate a new General Compensation package in good-faith within sixty (60) days after the expiration of the Term with the Contractor being paid the General Compensation in such interim period. |
Non-Qualified Stock Options (“NSOs”) to Vest During Term as Part of General Compensation:
| ● | Client hereby grants Contractor Two Hundred and Fifty Thousand (250,000) NSOs (the “Initial NSOs”) for services rendered at a strike price equal to the fair market value of the Client’s common stock on the date of grant (meaning, the closing price of such common stock on the Nasdaq Stock Market). The Initial NSOs date of grant and date of vesting shall be the Execution Date. |
6. Schedule B Bonus Compensation Addition. The following is added as a part of the “Bonus Compensation” set forth on Schedule B and is to appear after the section titled “Total Revenues Annual Bonus Compensation” and before the section titled “Reimbursement of Certain Expenses”
Total Revenues Annual Bonus Compensation. The following is added to the Section titled Bonus Compensation and will be additional bonus compensation as follows:
| ● | Client hereby grants Three Million (3,000,000) NSOs (the “Bonus NSOs”) that shall vest to Contractor on the schedule set forth below. The Bonus NSOs date of grant shall be the Execution Date. |
[***]
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| ● | Gross Profit Margin. For purposes of this Bonus Compensation, based on annual audited financial statements as reported on the Client’s Annual Report on Form 10-K financial filings (a “Form 10-K”), the term Gross Profit Margin (“GPM”) shall be computed as follows: Gross Profit (“GP”) divided by Total Revenues, Net (“TR”), i.e., GPM=GP/TR. |
| ● | The Bonus NSOs shall be subject to an annual testing period commensurate with the Client’s annual audited financial statements reported on the Client’s Annual Report on Form 10-K financial filings (a “Form 10-K”). The Bonus NSOs shall vest on the date of the Client’s actual Form 10-K filings and vest one (1) NSO for each $[***] of reported TR on the Client’s filed Form 10-K, if Client’s GPM meets or exceeds [***] ([***]%) for such year. For the avoidance of doubt, none of the Bonus NSOs shall vest, regardless of Client’s TR, if Client’s GPM during any year is below [***] percent ([***]%). All fractional Bonus NSO calculations shall be rounded down if below .5 and rounded up if .5 or above. |
| ● | Market Event. A (“Market Event”) may occur if all Bidi Vapor, LLC, flavors (excluding tobacco flavor) distributed by Client are removed from the market, or issued a marketing denial order, by the FDA or any other governmental agency. Based upon an occurrence of a Market Event, the metric in determining vesting shall be reduced (“Reduced Metric”), by [***]% to one (1) NSO for each $[***] of reported TR on the Client’s filed Form 10-K if GPM meets or exceeds [***] percent ([***]%). The Reduced Metric shall be applied from the date of the Market Event for each applicable testing period until the expiration of the Term, or until such Market Event is no longer in effect. |
| ● | of this Bonus Compensation, the term TR shall be computed and reflected in the Client’s Form 10-K filings, and, by way of example, if the Client has $[***] of TR in Form 10-K filing, and the GPM is computed to meet or exceed [***]%, then [***] Bonus NSOs shall vest to Contractor as of the Form 10-K filing date ([***]), which is rounded down. |
| ● | True-Up for Year 2 and Year 3: The GPM shall be subject to a true-up calculation in years 2 and 3 of this Agreement based on the blended average GPM of years 1 and 2, and of years 1 and 2 and 3, or as follows; |
| ● | Testing Period for Year 2. If Contractor does not attain GPM of [***] percent ([***]%) or higher in year 1, but attains a GPM of [***] percent ([***]%) or higher in year 2, then the blended average GPM for years 1 and 2 shall be calculated and if the blended average GPM for years 1 and 2 equals or exceeds [***] percent ([***]%), then Contractor shall be entitled to receive the unvested NSOs based on TR for years 1 and 2. |
| ● | Testing Period for Year 3. If Contractor does not attain GPM of [***] percent ([***]%) or higher in either years 1 or 2 or both years 1 and 2, but attains a GPM of [***]percent ([***]%) or higher in year 3, then the blended average GPM for years 1 and 2 and 3 shall be calculated and if the blended average GPM for years 1 and 2 and 3 equals or exceeds [***] percent ([***]%), then Contractor shall be entitled to receive the unvested NSOs based on TR for years 1 and 2 and 3. |
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| ● | Blended Average. The blended average for GPM shall be determined based on cumulative calculations of TR and GPM in any of the applicable testing periods. For example, the initial testing period for year 2 for a year 1 + year 2 calculation would be the cumulative GP derived by Client in years 1 and 2 divided by the cumulative TR in years 1 and 2. The blended average for GPM is not subject to any rounding. |
| ● | All unvested Bonus NSOs shall immediately vest to Contractor if Client undergoes a Change of Control regardless of GPM or TR. The vesting date shall be the actual date the Change of Control occurs. For purposes of this Total Revenues Annual Bonus Compensation vesting only, a “Change of Control” shall mean any of the following: (i) any sale, lease or other disposition of all or substantially all of the Client’s assets or (ii) any merger, consolidation, equity exchange, reorganization, or other similar transaction or series of transactions in which Eric Mosser, Nirajkumar Patel, the family members of Nirajkumar Patel, the family members of Eric Mosser, trusts established for the primary benefit of Nirajkumar Patel, Eric Mosser, or their family members, or closely held business organizations organized, formed, or incorporated and that are owned by Nirajkumar Patel, Eric Mosser, the family members of Nirajkumar Patel, the family members of Eric Mosser, trusts established for the primary benefit of Nirajkumar Patel, Eric Mosser, or their family members (collectively, the “Founders”) collectively own fifty percent (50%) or less of the voting power in the resulting entity immediately after such event, or (iii) any purchase or purchases by any person or persons of equity interests of the Client directly from one or more of the Founders, the effect of which is, following such purchase or purchasers, that the Founders collectively own fifty percent (50%) or less of the voting power in the Client. For the avoidance of doubt, a Change of Control shall not occur under clause (iii) above if the purchase of the equity interests arises out of or relate to a securities offering by the Client pursuant to which new capital is raised by the Client. |
| ● | All unvested Bonus NSOs shall be void if Client terminates this Agreement as the result of Contractor’s breach pursuant to Section 10 of this Agreement or if Contractor voluntarily elects to terminate this Agreement pursuant to Section 10 of this Agreement. |
| ● | All unvested Bonus NSOs shall be adjusted accordingly if Client undergoes a reverse stock split or stock split. |
| ● | If the Agreement automatically renews at the expiration of the Term, the Parties agree to negotiate a new Bonus Compensation package in good-faith within sixty (60) days after the expiration of the Term. |
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7. Effect of Amendment. Except as otherwise expressly and specifically provided herein, the Agreement shall remain unchanged and shall continue in full force and effect. From and after the date hereof, any references to the Agreement, in the Agreement or otherwise, shall be deemed to be references to the Agreement as amended by this Amendment.
8. Entire Agreement; Successors and Assigns. This Amendment constitutes the entire agreement among the Parties with respect to the subject matter of this Amendment and supersedes all prior agreements, understandings, and discussions, whether written or oral, with respect thereto. This Amendment shall be binding upon, and shall inure to the benefit of, and shall be enforceable by, the Parties and their respective successors and permitted assigns.
9. Counterparts. This Amendment may be executed in any number of counterparts, including, but not limited to electronically signed by DocuSign, each of which shall be deemed to be an original and all of which together shall be deemed to be a single agreement. The signatures to this Amendment need not all be on a single copy of this Amendment, and may be facsimiles rather than originals, and shall be fully as effective as though all signatures were originals on the same copy.
10. Governing Law. This Amendment shall be governed by, and construed in accordance with, the substantive laws of the State of Florida, without reference to conflict of law principles.
(SIGNATURES ON FOLLOWING PAGES)
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IN WITNESS WHEREOF, the Parties have signed this Amendment as of the date first written above.
| KAIVAL BRANDS INNOVATIONS GROUP, Inc., a Delaware corporation | ||
| By: | /s/ Eric Mosser | |
| Eric Mosser, Chief Operating Officer | ||
| QUIKFILLRX, LLC, a Florida limited liability company | ||
| By: | /s/ Russell Quick | |
| Russell Quick, Manager | ||
6
Exhibit 10.2
KAIVAL BRANDS INNOVATIONS GROUP, INC.
AMENDED AND RESTATED 2020 STOCK AND INCENTIVE COMPENSATION PLAN
Nonqualified Stock Option
Grant of Option. KAIVAL BRANDS INNOVATIONS GROUP, INC., a Delaware corporation (the “Company”), hereby grants to the Awardee named below a Nonqualified Stock Option for the purchase of up to but not exceeding the number of shares of the Company’s Common Stock, $.001 par value per share (the “Option”), exercisable at the price and upon the terms and conditions set forth below, and subject to any adjustments made pursuant to Section 15 of the Company’s Amended and Restated 2020 Stock and Incentive Compensation Plan (“Plan”):
Awardee: QUIKFILLRX, LLC
Number of Shares: 250,000
Grant Date: November 9, 2022
Exercise Price/Share: see below $0.9869
Expiration Date: November 9, 2032
Approval of Counsel Required for Issuance of Common Stock. No shares of Common Stock shall be issued pursuant to the exercise of the Option unless counsel for the Company shall be satisfied that such issuance will be in compliance with applicable Federal and state securities laws.
Option Subject to Plan. The Option is granted as a Nonqualified Stock Option as defined in Section 2(w) of the Plan that is not intended to qualify as an incentive stock option within the meaning of Section 422 of the Internal Revenue Code, is issued pursuant to the Plan, and is in all respects subject to the terms, provisions, conditions and restrictions of the Plan. In the event of any conflict between this instrument and the Plan, the Plan shall control.
Defined Terms. Except as otherwise defined herein, capitalized terms used in this instrument shall have the meanings ascribed to such terms in the Plan.
Exercise Price. The Option exercise price set forth above for each related Common Share is not less than the Fair Market Value of each Common Share calculated as of the date of grant in accordance with Section 2(t) of the Plan. The exercise price is subject to adjustment pursuant to Section 15 of the Plan.
Vesting of Option. The Option will become fully vested and exercisable with respect to 100% of the Option Shares on the Grant Date.
Services Agreement. In the event of any inconsistencies between the terms of that certain Fourth Amendment to Services Agreement, dated as of the Grant Date, between the Company and the Awardee (the “Services Agreement”) and the terms hereof with respect to the terms of the Option granted hereby, the terms of the Services Agreement shall prevail.
Option Period. The Option, or any part thereof, may be exercised at any time between the date at which it becomes vested and exercisable and the Expiration Date set forth above, inclusive of such dates, subject to the terms of the Services Agreement. Notwithstanding the foregoing, in no event may the Option vest and be exercised unless and until the Company has an effective Registration Statement on Form S-8 (or such other applicable form) on file with the Securities and Exchange Commission to register the issuance of the shares Common Stock upon the exercise of the Option, unless the Company determines that such grant (i) shall be registered in another manner under the Securities Act of 1933, as amended (the “Securities Act”), or (ii) does not require registration under the Securities Act in order to comply with the requirements of the Securities Act, if applicable.
Method of Exercise. The Option is exercisable by providing a written notice of exercise in accordance with the procedures adopted by the Administrator, but subject to all conditions and restrictions set forth in the Plan, and the Option consideration shall be payable in one of the forms permitted under Section 8(f) of the Plan, as determined by the Administrator. The exercise price for the number of shares exercised under the Option shall be payable in full at the time of exercise.
Transferability. The Option is not assignable or transferable except by will or the laws of descent or distribution and is exercisable only by Awardee (or the heirs or assigns of Russell Quick upon distribution from the Option upon the death of Russell Quick).. No assignment or transfer of the Option, or the rights represented thereby, whether voluntary or involuntary, by operation of law or otherwise (except to a designated beneficiary, upon death, by will or the laws of descent or distribution) will vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon such assignment or transfer the Option will terminate and become of no further effect.
Tax Withholding on Exercise. Awardee shall satisfy the Company’s withholding obligation of any federal, state, local or foreign taxes of any kind required to be withheld as a result of an exercise of the Option by providing payment of the amount of such withholding: (i) by cash, certified or cashier’s check, money order or personal check; (ii) by delivery of shares of the Company’s common stock already owned by Awardee; (iii) by the Company’s withholding from other compensation payable to Awardee by the Company; or (iv) pursuant to a request by Awardee, by withholding from the shares of common stock to be delivered upon exercise of the Option no more than the maximum number of shares that is necessary to satisfy the statutory withholding obligation.
| KAIVAL BRANDS INNOVATIONS GROUP, INC. | ||||
| By: | /s/ Eric Mosser | Date: | November 9, 2022 | |
| Name: | ERIC MOSSER | |||
| Title: | PRESIDENT, COO | |||
Page 2 of 3
The Awardee acknowledges receipt of a copy of the Plan, represents that Awardee is familiar with the terms and provisions thereof, and hereby accepts the Option evidenced hereby subject to all the terms, provisions, conditions and restrictions of the Plan. The Awardee also understands that this Option is not intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code. Accordingly, the Awardee understands that Awardee will recognize taxable income upon exercise of the Option based on the difference between the Option exercise price and the Fair Market Value of the shares at the time of exercise.
| QUIKFILL RX, LLC | ||
| By: | /s/ Russell Quick | |
| Name: | RUSSELL QUICK | |
| Title: | MANAGING MEMBER | |
| Date: | November 9, 2022 | |
Page 3 of 3
Exhibit 10.3
KAIVAL BRANDS INNOVATIONS GROUP, INC.
AMENDED AND RESTATED 2020 STOCK AND INCENTIVE COMPENSATION PLAN
Performance-Based Nonqualified Stock Option
Grant of Option. KAIVAL BRANDS INNOVATIONS GROUP, INC., a Delaware corporation (the “Company”), hereby grants to the Awardee named below a Performance-Based Nonqualified Stock Option for the purchase of up to but not exceeding the number of shares of the Company’s Common Stock, $.001 par value per share (the “Option”), exercisable at the price and upon the terms and conditions set forth below, and subject to any adjustments made pursuant to Section 15 of the Company’s Amended and Restated 2020 Stock and Incentive Compensation Plan (“Plan”):
Awardee: QUIKFILL RX, LLC
Number of Shares: 3,000,000
Grant Date: November 9, 2022
Exercise Price/Share: see below $0.9869
Expiration Date: November 9, 2032
Approval of Counsel Required for Issuance of Common Stock. No shares of Common Stock shall be issued pursuant to the exercise of the Option unless counsel for the Company shall be satisfied that such issuance will be in compliance with applicable Federal and state securities laws.
Option Subject to Plan. The Option is granted as a Nonqualified Stock Option as defined in Section 2(w) of the Plan that is not intended to qualify as an incentive stock option within the meaning of Section 422 of the Internal Revenue Code, is issued pursuant to the Plan, and is in all respects subject to the terms, provisions, conditions and restrictions of the Plan. In the event of any conflict between this instrument and the Plan, the Plan shall control.
Defined Terms. Except as otherwise defined herein, capitalized terms used in this instrument shall have the meanings ascribed to such terms in the Plan.
Exercise Price. The Option exercise price set forth above for each related Common Share is not less than the Fair Market Value of each Common Share calculated as of the date of grant in accordance with Section 2(t) of the Plan. The exercise price is subject to adjustment pursuant to Section 15 of the Plan.
Performance Vesting of Option. The Option Shares shall be subject to an annual vesting as provided for in that certain Fourth Amendment to Services Agreement, dated as of the Grant Date, between the Company and the Awardee (the “Services Agreement”).
Option Period. The Option, or any part thereof, may be exercised at any time between the date at which it becomes vested and exercisable and the Expiration Date set forth above, inclusive of such dates, subject to the terms of the Services Agreement. Notwithstanding the foregoing, in no event may the Option vest and be exercised unless and until the Company has an effective Registration Statement on Form S-8 (or such other applicable form) on file with the Securities and Exchange Commission to register the issuance of the shares Common Stock upon the exercise of the Option, unless the Company determines that such grant (i) shall be registered in another manner under the Securities Act of 1933, as amended (the “Securities Act”), or (ii) does not require registration under the Securities Act in order to comply with the requirements of the Securities Act, if applicable.
Method of Exercise. The Option is exercisable by providing a written notice of exercise in accordance with the procedures adopted by the Administrator, but subject to all conditions and restrictions set forth in the Plan, and the Option consideration shall be payable in one of the forms permitted under Section 8(f) of the Plan, as determined by the Administrator. The exercise price for the number of shares exercised under the Option shall be payable in full at the time of exercise.
Transferability. The Option is not assignable or transferable except by will or the laws of descent or distribution and is exercisable only by Awardee (or the heirs or assigns of Russell Quick upon distribution from the Option upon the death of Russell Quick). No assignment or transfer of the Option, or the rights represented thereby, whether voluntary or involuntary, by operation of law or otherwise (except to a designated beneficiary, upon death, by will or the laws of descent or distribution) will vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon such assignment or transfer the Option will terminate and become of no further effect.
Tax Withholding on Exercise. Awardee shall satisfy the Company’s withholding obligation of any federal, state, local or foreign taxes of any kind required to be withheld as a result of an exercise of the Option by providing payment of the amount of such withholding: (i) by cash, certified or cashier’s check, money order or personal check; (ii) by delivery of shares of the Company’s common stock already owned by Awardee; (iii) by the Company’s withholding from other compensation payable to Awardee by the Company; or (iv) pursuant to a request by Awardee, by withholding from the shares of common stock to be delivered upon exercise of the Option no more than the maximum number of shares that is necessary to satisfy the statutory withholding obligation.
Services Agreement. In the event of any inconsistencies between the terms of the Services Agreement and the terms hereof with respect to the terms of the Option granted hereby, the terms of the Services Agreement shall prevail.
| KAIVAL BRANDS INNOVATIONS GROUP, INC. | ||||
| By: | /s/ Eric Mosser | Date: | November 9, 2022 | |
| Name: | ERIC MOSSER | |||
| Title: | PRESIDENT, COO | |||
Page 2 of 3
The Awardee acknowledges receipt of a copy of the Plan, represents that Awardee is familiar with the terms and provisions thereof, and hereby accepts the Option evidenced hereby subject to all the terms, provisions, conditions and restrictions of the Plan. The Awardee also understands that this Option is not intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code. Accordingly, the Awardee understands that Awardee will recognize taxable income upon exercise of the Option based on the difference between the Option exercise price and the Fair Market Value of the shares at the time of exercise.
| QUIKFILL RX, LLC | ||
| By: | /s/ Russell Quick | |
| Name: | RUSSELL QUICK | |
| Title: | MANAGING MEMBER | |
| Date: | November 9, 2022 | |
Page 3 of 3
EXHIBIT 99.1
Kaival Brands Prepares to Support Growth
with Extended
Marketing and Sales Service Agreement
Three-year agreement bolsters corporate infrastructure, reduces spending in preparation for anticipated increase in sales activity following Bidi Vapor merits case win
GRANT, Fla., November 15, 2022 /PRNewswire/ -- Kaival Brands Innovations Group, Inc. (NASDAQ: KAVL) (“Kaival Brands”, the “Company” or “we”, “our” or similar terms), the exclusive U.S. distributor of all vapor products manufactured by Bidi Vapor, LLC (“Bidi Vapor”), which are intended for adults 21 and over, today announced it has reached a three-year extension agreement with QuikfillRx, LLC, the third party vendor responsible for executing Kaival Brands’ marketing and sales strategies.
As part of the agreement, QuikfillRx, LLC will be rebranded as Kaival Marketing Services (“KMS”) to more properly reflect the commitment of KMS to the success of Kaival Brands.
As previously reported, on August 23, 2022, in a “merits case” brought by Bidi Vapor, the 11th Circuit Court of Appeals overruled the Food and Drug Administration’s (the “FDA”) marketing denial order related to Bidi Vapor’s BIDI® Stick electronic nicotine delivery system (“ENDS”). That decision has allowed Bidi Vapor to continue to market (through Kaival Brands) all flavor varieties of the BIDI® Stick in the United States. All ENDS products on the market today that do not have marketing authorization from the FDA are subject to enforcement, at the FDA’s discretion.
The three-year extension with KMS was executed in preparation to support the anticipated improved sales volumes arising from this decision and the increase of BIDI® Stick sales and marketing activities. In addition to monthly cash payments, which will be lower than during the initial term of the agreement, and a one-time upfront vested common stock option award, KMS will be eligible to receive performance-based common stock option awards from Kaival Brands that can vest annually based on total net revenues and profit margins achieved by Kaival Brands from KMS’s efforts over the term of the agreement, with a maximum vesting to occur upon achievement of $180,000,000 in total net revenues reported within the 3-year term.
Eric Mosser, President and Chief Operating Officer of Kaival Brands, stated, “KMS has been an integral part of the Kaival story since our inception. Their industry knowledge and expertise, experience working with our team, and unmatched around-the-clock service is best in class. As part of ongoing corporate efforts in anticipation of increasing sales activity following Bidi Vapor’s merits case win, it became clear that reaffirming our relationship with KMS was an important step to manage growth.”
Russell Quick, President of KMS, stated, “We are happy to continue our service with Kaival Brands and its commitment to responsible marketing. Our combined efforts at preventing underage use of vaping devices and focus on the needs of legal-age smokers looking for an alternative to combustible cigarettes, stands as a model for the industry.”
KMS has served as the primary marketing and sales service provider for Kaival Brands since 2020. In addition to its sales force, KMS brings over 100 contracted employees dedicated to supporting Kaival Brands’ management team through its next stage of growth.
Additional information regarding the marketing and sales agreement between Kaival Brands and KMS will be provided in a Form 8-K to be filed by Kaival Brands with the Securities and Exchange Commission.
ABOUT BIDI VAPOR
Based in Melbourne, Florida, Bidi Vapor maintains a commitment to responsible marketing, supporting age-verification standards and sustainability through its BIDI® Cares recycling program. Bidi Vapor’s premier device, the BIDI® Stick, is a premium product made with medical-grade components, a UL-certified battery and technology designed to deliver a consistent vaping experience for adult smokers 21 and over. Bidi Vapor is also adamant about strict compliance with all federal, state and local guidelines and regulations. At Bidi Vapor, innovation is key to its mission, with the BIDI® Stick promoting environmental sustainability, while providing a unique vaping experience to adult smokers.
Nirajkumar Patel, the Company’s Chief Science and Regulatory Officer, owns and controls Bidi Vapor. As a result, Bidi Vapor is considered a related party.
For more information, visit www.bidivapor.com.
ABOUT KAIVAL BRANDS
Based in Grant, Florida, Kaival Brands is a company focused on growing and incubating innovative and profitable products into mature and dominant brands in their respective markets. Our vision is to develop internally, acquire, own, or exclusively distribute these innovative products and grow each into dominant market-share brands with superior quality and recognizable innovation. Kaival Brands is the exclusive U.S. distributors of all vapor products manufactured by Bidi Vapor. Philip Morris Products S.A., via license from Kaival Brands International, LLC, a 100% fully owned subsidiary of Kaival Brands, is the exclusive distributor of all vapor products manufactured by Bidi Vapor in certain non-U.S. jurisdictions.
Learn more about Kaival Brands at https://ir.kaivalbrands.com/overview/default.aspx.
Cautionary Note Regarding Forward-Looking Statements
This press release and the statements of the Company’s management and partners included herein and related to the subject matter herein includes statements that constitute “forward-looking statements” (as defined in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended), which are statements other than historical facts. You can identify forward-looking statements by words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “forecast,” “intend,” “may,” “plan,” “position,” “should,” “strategy,” “target,” “will,” and similar words. All forward-looking statements speak only as of the date of this press release. Although we believe that the plans, intentions, and expectations reflected in or suggested by the forward-looking statements are reasonable, there is no assurance that these plans, intentions, or expectations will be achieved. Therefore, actual outcomes and results (including, without limitation, the anticipated benefits (i) to the Company’s future sales and other results of operations of the August 2022 11th Circuit Court of Appeals decision and (ii) of the Company’s sales and marketing agreement with KMS, each as described herein) could materially and adversely differ from what is expressed, implied, or forecasted in such statements. Our business may be influenced by many factors that are difficult to predict, involve uncertainties that may materially affect results, and are often beyond our control. Factors that could cause or contribute to such differences include, but are not limited to: (i) future actions by the FDA in response to the 11th Circuit Court’s decision that could impact our business and prospects, (ii) the success of our agreement with Philip Morris International, (iii) how quickly domestic and international markets adopt our products, (iv) the scope of future FDA enforcement of regulations in the ENDS industry, (v) the FDA’s approach to the regulation of synthetic nicotine and its impact on our business, (vi) potential federal and state flavor bans and other restrictions on ENDS products, (vii) the duration and scope of the COVID-19 pandemic and impact on the demand for the products we distribute, (viii) general economic uncertainty in key global markets and a worsening of global economic conditions or low levels of economic growth, (ix) the effects of steps that we could take to reduce operating costs, (x) our inability to generate and sustain profitable sales growth, including sales growth in the international markets, (xi) circumstances or developments that may make us unable to implement or realize anticipated benefits, or that may increase the costs, of our current and planned business initiatives, (xii) significant changes in our relationships with our distributors or sub-distributors and (xiii) other factors detailed by us in our public filings with the Securities and Exchange Commission, including the disclosures under the heading “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended October 31, 2021, filed with the Securities and Exchange Commission on February 16, 2022 and accessible at www.sec.gov. All forward-looking statements included in this press release are expressly qualified in their entirety by such cautionary statements. Except as required under the federal securities laws and the Securities and Exchange Commission’s rules and regulations, we do not have any intention or obligation to update any forward-looking statements publicly, whether as a result of new information, future events, or otherwise.
Investor and Media Relations:
Stephen Sheriff, Director of Communications and Administration
ir.kaivalbrands.com
investors@kaivalbrands.com