Can B Corp 10-K for FY2023
Can B Corp (NASC)
About this 10-K
Can B Corp filed this 10-K on April 15, 2024, covering the fiscal year ended December 31, 2023 (FY2023).
Headline figures
Fiscal year ended December 31, 2023, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $2.16M
- down 67.8% from $6.69M a year earlier
- Net loss
- $9.74M
- compared with a net loss of $14.92M a year earlier
- Diluted EPS
- -$0.77
- compared with -$4.18 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
(Mark One)
For the Fiscal Year Ended
OR
For the Transition Period From ____________ to ____________
Commission File Number:
(f/k/a Canbiola, Inc.)
(Exact name of registrant as specified in its charter)
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
(Address of principal executive offices)
Registrant’s telephone number, including area code:
None
Securities Registered Pursuant to Section 12(b) of the Act:
| Tile of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| None | CANB | N/A |
Securities Registered Pursuant to Section 12(g) of the Act:
Common Stock, Nil par value per share
Indicate by check mark if the registrant is a well-known
seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐
Indicate by check mark if the registrant is not required
to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐
Indicate by check mark whether the registrant (1)
has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements
for the past 90 days.
Indicate by check mark whether the registrant has
submitted electronically every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405
of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 |
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether
the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control
over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that
prepared or issued its audit report.
Indicate by check mark whether
the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ☐ Yes
If
securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant
included in the filing reflect the correction of an error to previously issued financial statements.
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
The aggregate market value of voting stock held by
non-affiliates of the registrant on June 30, 2023, was $
As of April 12, 2024, the registrant had outstanding shares of common stock, $0.00 par value per share.
Can B̅ Corp.
2023 FORM 10-K ANNUAL REPORT
TABLE OF CONTENTS
| 2 |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained or incorporated by reference in this Annual Report on Form 10-K are considered forward-looking statements (within the meaning of the Private Securities Litigation Reform Act of 1995) concerning our business, results of operations, economic performance and/or financial condition, based on management’s current expectations, plans, estimates, assumptions and projections. Forward-looking statements are included, for example, in the discussions about:
| ● | strategy; | |
| ● | new product discovery and development; | |
| ● | current or pending clinical trials; | |
| ● | our products’ ability to demonstrate efficacy or an acceptable safety profile; | |
| ● | actions by regulatory authorities; | |
| ● | product manufacturing, including our arrangements with third-party suppliers; | |
| ● | product introduction and sales; | |
| ● | royalties and contract revenues; | |
| ● | expenses and net income; | |
| ● | credit and foreign exchange risk management; | |
| ● | liquidity; | |
| ● | value of assets | |
| ● | asset and liability risk management; | |
| ● | the outcome of litigation and other proceedings; | |
| ● | intellectual property rights and protection; | |
| ● | economic factors; | |
| ● | competition; and | |
| ● | legal risks. |
Any statements contained in this report that are not statements of historical fact may be deemed forward-looking statements. Forward-looking statements generally are identified by the words “expects,” “anticipates,” “believes,” “intends,” “estimates,” “aims,” “plans,” “may,” “could,” “will,” “will continue,” “seeks,” “should,” “predict,” “potential,” “outlook,” “guidance,” “target,” “forecast,” “probable,” “possible” or the negative of such terms and similar expressions. Forward-looking statements are subject to change and may be affected by risks and uncertainties, most of which are difficult to predict and are generally beyond our control. Forward-looking statements speak only as of the date they are made, and we undertake no obligation to update any forward-looking statement in light of new information or future events, except as required by law, although we intend to continue to meet our ongoing disclosure obligations under the U.S. securities laws and other applicable laws.
We caution you that a number of important factors could cause actual results or outcomes to differ materially from those expressed in, or implied by, the forward-looking statements, and therefore you should not place too much reliance on them. These factors include, among others, those described herein, under “Risk Factors” and elsewhere in this Annual Report and in our other public reports filed with the Securities and Exchange Commission. It is not possible to predict or identify all such factors, and therefore the factors that are noted are not intended to be a complete discussion of all potential risks or uncertainties that may affect forward-looking statements. If these or other risks and uncertainties materialize, or if the assumptions underlying any of the forward-looking statements prove incorrect, our actual performance and future actions may be materially different from those expressed in, or implied by, such forward-looking statements. We can offer no assurance that our estimates or expectations will prove accurate or that we will be able to achieve our strategic and operational goals.
Forward-looking statements are based on information we have when those statements are made or management’s good faith belief as of that time with respect to future events and are subject to significant risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements.
Moreover, new risks regularly emerge, and it is not possible for our management to predict or articulate all risks we face, nor can we assess the impact of all risks on our business or the extent to which any risk, or combination of risks, may cause actual results to differ from those contained in any forward-looking statements. All forward-looking statements included in this prospectus are based on information available to us on the date of this Annual Report. Except to the extent required by applicable laws or rules, we undertake no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise. 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 Annual Report.
| 3 |
PART I
| Item 1. | Business |
Recent Developments
In February 2024, our 67% owned subsidiary, Nascent Pharma, LLC (“Nascent”), acquired composition of matter and use patents covering liquid formulations of cannabis, including, among other things, beverages, tinctures, vape pen liquids and liquid filled capsules. Patented uses include using the liquid formulations to alleviate numerous debilitating conditions, including cancer, irritable bowel syndrome, chronic pain, post-traumatic stress disorder, anxiety, sleep disorders and opioid dependencies. Through Nascent, we plan to pursue opportunities to license, protect and develop uses for the patents.
An independent valuation firm valued the patents at $122,000,000 in 2020, after taking into account the present value of projected income streams, applying a 90% discount and assuming a revenue stream through August 2034. No assurance can be given that the patents will ultimately provide a revenue stream to the Company or that the value of the patents will equal the value determined by the independent valuation firm.
On March 14, 2024, an auction of the assets of our hemp division was conducted under Article 9 of the Uniform Commercial Code following allegations by certain affiliated creditors that we were in breach of our obligations under certain notes and a forbearance agreement. See “Item 3. Legal Proceedings.”
Following the auction, we have continued our hemp operations on a reduced scale using equipment provided by third parties and the services of third-party processors. Historically, revenues from our hemp division supported, in part, our durable medical equipment business conducted through Duramed, Inc. Due to reduced support from the hemp division, Duramed, Inc. is operating with reduced staff which has adversely impacted revenues. While we plan to continue our hemp and durable medical equipment operations for the near term, our primary focus will be on protecting and commercializing the cannabis patents recently acquired by Nascent.
Organization
We were originally incorporated as WrapMail, Inc. (“Wrap”) in Florida on October 11, 2005 in order to tap into a largely un-serviced segment of the web-based advertising industry. Effective January 5, 2015, WRAP acquired 100% ownership of Prosperity Systems, Inc., a New York corporation incorporated on April 2, 2008, in order to acquire Prosperity’s office productivity software suite as a complement to WRAP’s existing intellectual property. After its acquisition, the Company transferred Prosperity’s operations to WRAP; however, the Company does not currently actively operate its WRAP or Prosperity divisions.
Around the first quarter of 2017, the Company began to transition into the health and wellness space, including the development, processing and sale of hemp derived products, and now operates three distinct divisions: retail sales, R&D and manufacturing, and durable medical devices. The Company also has a hemp cultivation division which is currently non-operational.
On May 15, 2017, WRAP changed its name to Canbiola, Inc. to reflect its transition. On March 6, 2020 CANB changed its name to “Can B̅ Corp.” in order to segregate its corporate identity from its lead products branded under the Canbiola™ brand.
Effective December 27, 2010, WRAP effected a 10 for 1 forward stock split of its common stock. Effective June 4, 2013, WRAP effected a 1 for 10 reverse stock split of its common stock. On March 6, 2020, Can B̅ effected a 1 for 300 reverse stock split of its common stock. On March 13, 2022, the Company effectuated a 1 for 15 reverse split of its stock. The accompanying consolidated financial statements retroactively reflect these stock splits.
Business Divisions
The Company is in the business of promoting health and wellness through its development, manufacture and sale of products containing cannabinoids derived from hemp biomass and the licensing of durable medical devices.
Hemp is thought to contain anywhere from 60 to over 100 naturally occurring compounds (cannabinoids) thought to interact with cannabinoid receptors present on the surface of cells in various parts of the central nervous system. The effects of cannabinoids are thought to depend on the area of the brain involved. Cannabidiol (“CBD”) is probably one of the most well-known of these compounds, thought to have many beneficial uses. CBD is incorporated into many of the Company’s products; however, the Company has recently begun extracting and processing cannabinol (“CBN”), cannabigerol (“CBG”), delta-10 and delta-8 for its products and for wholesale to third-parties looking to incorporate such compounds into their products. The Company has all of its hemp based raw materials to incorporate into products tested by a 3rd party independent laboratory. The Company aims to be the premier provider of the highest quality natural hemp cannabinoid products on the market through sourcing the very best raw material and developing a variety of products it believes will improve people’s lives in a variety of areas.
| I- | Pure Health Products |
Pure Health Products, LLC, a New York limited liability company (“PHP” or “Pure Health Products”) is the Company’s manufacturing arm. PHP manufactures all of the Company’s CBD products.
In December, 2018, the Company acquired 100% of the membership interests in Pure Health Products, with which it then had and currently has an exclusive production agreement, pursuant to an Acquisition Agreement (“PHP Acquisition Agreement”). In January, 2019, PHP acquired certain assets from Seven Chakras, LLC (“Seven Chakras”), a former competitor, which assets included the rights and title to (i) Seven Chakras’ proprietary formulas, methods, trade secrets, and know-how related to the production of Seven Chakras’ CBD products, (ii) Seven Chakras’ tradename, domain name, and social media sites, and (iii) other assets of Seven Chakras including but not limited to raw materials, equipment, packaging and labeling materials, mailing lists, and marketing materials.
| 4 |
The Company currently has two in-house branded CBD products that are manufactured by PHP and sold to consumers, Canbiola™ and Pure Leaf Oil™.
The Company’s Canbiola™ CBD products are sold via medical professionals under distribution agreements and directly by the Company via its website. The Canbiola™ assets are held directly by the Company and include tinctures, soaps, bath soaks, cryo-gel, salves, massage oils, powders, capsules, and roll-ons.
All finished products are stored for time- quality measurement, and each batch of every product is sent to an independent third-party lab for a Certificate of Analysis (“COA”) of the finished products. These COA’s are both listed on our web site and available via the QR code on every retail package.
In the 3rd quarter of 2023, the PHP assets were consolidated into the CO Botanicals facility and operations in Fort Morgan, CO and the Lacey, WA facility was closed. Should the Superfood product line acquire new customers, all future production will be from the Fort Morgan Colorado CO Botanicals facilities.
| II- | Hemp Operating Division |
The Company’s hemp operating division performs R&D for the Company including for CBN, CBG, delta-8 and delta-10. It also produces industrial hemp and processes hemp biomass, isolate and isomers.
Around March 17, 2021, the Company acquired assets through its newly formed, wholly-owned subsidiary, Botanical Biotech, LLC, a Nevada limited liability company (“BB” or “Botanical Biotech”). Such assets include certain materials and manufacturing equipment and marketing or promotional designs, brochures, advertisements, concepts, literature, books, media rights, rights against any other person or entity in respect of any of the foregoing and all other promotional properties, in each case primarily used, developed or acquired by the Sellers for use in connection with the ownership and operation of the BB Assets.
Around August 12, 2021, the Company and CO Botanicals LLC, a Nevada limited liability company and wholly owned subsidiary of CANB (“COB”), acquired hemp processing assets from TWS Pharma, LLC, a Wisconsin limited liability company and L7 TWS Pharma, LLC, a Wisconsin limited liability company. COB operates out of Mead, CO.
Around August 13, 2021, the Company and TN Botanicals LLC, a Nevada limited liability company and wholly owned subsidiary of CANB (“TNB”), acquired assets from Music City Botanicals, LLC, a Wisconsin limited liability company (“MCB”) including certain equipment, inventory, and intellectual property. In late 2022 the assets from TN Botanicals LLC were moved into consolidated operations under CO Botanicals, LLC in Ft. Morgan, CO.
From its Miami lab, the Company processed hemp isolate into isomers such as CBN, CBG, delta-8 and delta-10. At its Tennessee location, the Company produced industrial hemp, processes hemp biomass to isolate, processes isolate to isomers such as CBN, CBG, delta-8 and delta-10, and performed research and development on cannabinoids such as such as CBN, CBG, delta-8, delta-10, CBD and CBDA. At its Colorado facilities, the Company produces industrial hemp and processes hemp biomass to isolate. The biomass and isolate processed by the Company may be produced by the Company or purchased from third parties. All of the Company’s end products contain .3% or less of THC (delta-9). In late 2022 the Company also closed its FL facility and moved the operating assets to Ft. Morgan, CO under the CO Botanicals, LLC operations.
| III- | Durable Medical Equipment |
Through its medical device division, Duramed, Inc. (“Duramed”) and Duramed MI LLC, a Nevada limited liability company fka DuramedNJ, LLC (“Duramed MI”), the Company serves the post-surgery medical patient arena aiming to aid in recovery and pain reduction.
| 5 |
In November 2018, the Company formed Duramed, Inc. to facilitate the manufacture and sale of durable medical equipment (“DME”) incorporating CBD. On January 14, 2019, Duramed entered into a Memorandum of Understanding (the “Sam MOU”) with Sam International (“Sam”) and ZetrOZ Systems LLC (“ZetrOZ” and, collectively with Sam, the “Manufacturers”). Pursuant to the Sam MOU, the Manufacturers granted Duramed the exclusive right to distribute sam® Pro 2.0 (SA271) and sam® Gel Coupling Patches (UB-14-72) within the United States for the Personal Injury Protection/No Fault Market during the term of the Sam MOU. Duramed has agreed to purchase monthly minimums from the Manufacturers at a price per Unit of $2,447. The exclusivity of the Distribution License granted to Duramed under the Sam MOU was dependent upon meeting the monthly minimum, which did not happen. In addition, Duramed was granted the right to distribute sam® Gel Capture Patches (UB-14-24). Duramed will get rebates of 2%-3% based on the volume of products sold by it. The Company did not meet the monthly minimums as contemplated by the Sam MOU and as such is currently distributing the products on an at-will, non-exclusive basis.
On May 29, 2019, the Company created Duramed MI to execute the same business strategy into the no-fault insurance market in New Jersey that it had developed in New York; however, Duramed MI is not currently operating in NJ and fully developed its operations in Michigan. None of Duramed’s products are reimbursable under any federal program. Duramed has also expanded its product offerings to include certain back support braces which are sold to the doctor offices and through no-fault insurance programs.
Due to staffing and support funding, the Duramed operations are on a reduced development basis while it continues to service the existing receivables and customer base.
| IV- | Green Grow Farms |
Green Grow Farms, Inc., a New York corporation (“GGFI” or “Green Grow”) served as the Company’s hemp cultivation arm. Through GGFI, the Company grew its own hemp in New York and partnered with third party growers in other states whereby GGFI provided the farmers with seed and training and splits profits with the farmers. Currently, it is less expensive to buy crude oil and isolate than to produce such from hemp grown by the Company. Accordingly, the Company has stopped its Green Grow operations in favor of buying raw products from third parties. If and when it makes economic sense to grow its own hemp again, the Company will resume Green Grow operations.
| V- | Imbibe Wellness Solutions |
On February 22, 2021, the Company entered into an agreement to purchase additional CBD brand assets from Imbibe Health Solutions, LLC, a Delaware limited liability company. The assets have been placed into the Company’s wholly owned subsidiary, Imbibe Wellness Solutions, LLC, a Nevada limited liability company (fka Radical Tactical LLC) (“Imbibe Wellness”), and include the intellectual property rights, including trademarks, logos, know how, formulations, productions procedures, copyrights, social media accounts, domain names and marketing materials. Previously, Imbibe Wellness had a contract with Forever Brands LLC to produce Longevity Brand Superfood drink mix for Brooke Burke Body, Inc. utilizing sister company Pure Health Products, LLC as the production arm. In late 2023, Forever Brands ceased operations thereby ending the Superfood relationship and product line.
| VI. | Nascent Pharma, LLC |
In February 2024, the Company’s 67% owned subsidiary, Nascent Pharma, LLC, acquired patents covering liquid formulations of cannabis. The patents relate to the extraction of pharmaceutically active components from plant materials, and more particularly to the preparation of a botanical drug substance for incorporation into a medicament and for use in pharmaceutical formulations, in particular comprising cannabinoids obtained from cannabis.
| 6 |
The patents include both a composition of matter patent and a method of use patent. The composition of matter patent covers liquid formulations of cannabis where the present cannabinoids are more than 95% CBD, THC, CBN, CBDa, THCa, or several combinations thereof. This patent covers beverages, tinctures, vape pen liquids and liquid filled capsules. This constitutes a considerable portion of the hemp and cannabis industry, potentially up to 50%.
Patented uses include using the liquid formulations to alleviate numerous debilitating conditions, including cancer, irritable bowel syndrome, chronic pain, post-traumatic stress disorder, anxiety, sleep disorders and opioid dependencies.
An independent valuation firm valued the patents at $122,000,000 in 2020, after taking into account the present value of projected income streams, applying a 90% discount and assuming a revenue stream through August 2034. The valuation of the patents included only CBD claims and only in the U.S. No assurance can be given that the patents will ultimately provide a revenue stream to the Company or that the value of the patents will equal the value determined by the independent valuation firm. Since the date of the valuation, the patents have become effective in Canada, Australia, New Zealand, Israel and Brazil and have received additional divisional patents in the U.S. The priority date for the patents stems back to October 2013 and the patents have pending status in the European Union, India, China, Eurasia, South Korea, Mexico, Japan, and Colombia.
Of significance, the patents survived an earlier invalidity challenge in Federal Court.
Through Nascent, the Company plans to pursue opportunities to license and develop uses for the patents.
FDA DISCLAIMER
The statements found herein have not been evaluated by the Food and Drug Administration (FDA) and the Company’s products are not intended to diagnose, treat, cure or prevent any disease or medical condition.
Competitive Conditions
The CBD and cannabis markets are flooded with competition ranging from mom and pop operations to multi-million-dollar conglomerates, many with longer operating histories, more capital and/or more industry knowledge than the Company. The Company hopes to partner with or engage industry specialists to help set it apart from its numerous competitors. The Company believes that one of those points of differentiation will be its 3rd party independent testing “Certificate of Analysis” conducted on all of the CBD isolate products it purchases and posting of those lab results on its website. The three largest CBD companies known to the Company are Elixinol LLC, a UK based company with $37 million revenue, GW Pharmaceuticals also UK based with $19 million revenue, and Aurora Cannabis based in Canada with just over $19 million revenue. The top USA companies include Medical Marijuana, CV Sciences, Gaia Herbs, and Charlotte’s Web with respective revenues of $59, $48, $45, and $17 million. Worthy of note is that Charlotte’s Web is on the shelf right next to us at Northwell Health.
Hemp biomass and its derivative products have glutted the US market, benefiting our manufacturing divisions with less expensive product but causing our hemp cultivation and processing division to become financially imprudent until the oversupply issue has resolved. Thus, we have halted operations in such division for the time being but may resume such operations should a sound opportunity present. Although we have contract farm agreements in place to grow and harvest hemp biomass, other raw materials for our finished products have at least three sources of supply in the open market and we have little risk of any ingredient supply at this time.
Intellectual Property
The Company employs, through its Pure Health Product LLC division product researchers and developers and technology experts who set the quality standards and new product development status and time-line agendas under the direct supervision of the Company’s management team.
Other than the patents acquired by Nascent, the Company has not been granted any patents or trademarks by the USPTO or by any patent or trademark office of a foreign nation.
| 7 |
Employees
The Company, directly or through its subsidiaries, currently has 12 full-time employees.
Reports to Security Holders
Our common stock is registered under the Exchange Act and we are required to file current, quarterly, and annual reports and other information with the SEC. You may read and copy any document that we file at the SEC’s public reference facilities at 100 F. Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-732-0330 for more information about its public reference facilities. Our SEC filings are available to you free of charge at the SEC’s web site at www.sec.gov. We are an electronic filer with the SEC and, as such, our information is available through the Internet site maintained by the SEC that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC. This information may be found at www.sec.gov and posted on our website at www.canbcorp.com.
Government Regulation
The cultivation and sale of hemp and hemp products is federally regulated under the United States Farm Bill. The 2018 Farm Bill removed hemp as a Schedule 1 Substance under the Controlled Substances Act; however, rules and regulations relating to manufacture and sale of CBD and other hemp derivative products under the Farm Bill must still be promulgated and are expected to impact the Company’s operations. As the industry and our product lines expand, it is uncertain what other statutory schemes and agencies will start to regulate our products. The FDA currently still considers the addition of CBD to food products, cosmetics, or supplements to be illegal and prohibits the advertisement of CBD products with health claims. The Company must also comply with each state’s laws relating to the sale and manufacture, as applicable, of hemp-based products, with some states allowing the sale of cannabinoid products, some states limiting to medical purposes and some states banning outright. These regulations may affect, among others, the way the Company manufactures and distributes its products, the way the Company is taxed, the way the Company banks, the location of the Company’s facilities, the content and testing of the Company’s products, and the quality of the Company’s services. The Company has not sought or received approval of any of its products from the FDA or any state agency. Should the Company be sanctioned by the FDA or state agencies, it could materially, negatively impact the Company’s operations and revenue sources.
We are also subject to general business regulations and laws as well as Federal and state regulations and laws specifically governing the Internet and e-commerce. Existing and future laws and regulations may impede the growth of the Internet, e-commerce or other online services, and increase the cost of providing online services. These regulations and laws may cover sweepstakes, taxation, tariffs, user privacy, data protection, pricing, content, copyrights, distribution, electronic contracts and other communications, consumer protection, broadband residential Internet access and the characteristics and quality of services. It is not clear how existing laws governing issues such as property ownership, sales, use and other taxes, libel and personal privacy apply to the Internet and e-commerce. Unfavorable resolution of these issues may harm our business and results of operations. CBD sales are additionally state regulated for shipping and the Company maintains a current list.
Transfer Agent
We have engaged Transhare Corporation located at 2849 Executive Drive, Suite 200, Clearwater, FL 33762 as our transfer agent.
| 8 |
| Item 1A. | Risk Factors |
RISK FACTORS
Investing in our securities involves a high degree of risk. Before investing in our securities, you should carefully consider the risks and uncertainties described below, together with all of the other information in this prospectus, including our consolidated financial statements and related notes. If any of the following risks materialize, our business, financial condition, operating results and prospects could be materially and adversely affected. In that event, the price of our common stock could decline, and you could lose part or all of your investment.
Risks Related to our Common Stock
We are subject to the reporting requirements of federal securities laws, which is expensive.
We are a public reporting company in the United States and, accordingly, subject to the information and reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and other federal securities laws, and the compliance obligations of the Sarbanes-Oxley Act. The costs of preparing and filing annual and quarterly reports, proxy statements and other information with the SEC and furnishing audited reports to stockholders causes our expenses to be higher than they would be if we remained a privately-held company.
Our stock price may be volatile, which may result in losses to our stockholders.
The stock markets have experienced significant price and trading volume fluctuations, and the trading of our common stock has generally been very volatile and experienced sharp share-price and trading-volume changes. The trading price of our securities is likely to remain volatile and could fluctuate widely in response to many factors, including but not limited to the following, some of which are beyond our control:
| ● | variations in our operating results; | |
| ● | changes in expectations of our future financial performance, including financial estimates by securities analysts and investors; | |
| ● | changes in operating and stock price performance of other companies in our industry; | |
| ● | additions or departures of key personnel; and | |
| ● | future sales of our common stock. |
Domestic and international stock markets often experience significant price and volume fluctuations. These fluctuations, as well as general economic and political conditions unrelated to our performance, may adversely affect the price of our common stock.
In the past, plaintiffs have often initiated securities class action litigation against a company following periods of volatility in the market price of its securities. We may, in the future, be the target of similar litigation. Securities litigation could result in substantial costs and liabilities and could divert management’s attention and resources.
| 9 |
Our common stock is thinly traded, and in the future, may continue to be thinly-traded, and you may be unable to sell at or near ask prices or at all if you need to sell your shares to raise money or otherwise desire to liquidate such shares.
We cannot predict the extent to which an active public market for our common stock will develop or be sustained due to a number of factors, including the fact that we are a small company that is relatively unknown to stock analysts, stock brokers, institutional investors, and others in the investment community that generate or influence sales volume, and that even if we came to the attention of such persons, they tend to be risk-averse and would be reluctant to follow an unproven company such as ours or purchase or recommend the purchase of our shares until such time as we became more seasoned and viable. As a consequence, there may be periods of several days or more when trading activity in our shares is minimal, as compared to a seasoned issuer which has a large and steady volume of trading activity that will generally support continuous sales without an adverse effect on share price. We cannot give you any assurance that a broader or more active public trading market for our common stock will develop or be sustained, or that current trading levels will be sustained.
The market price for our common stock may be particularly volatile given that we are a relatively small company and have experienced losses from operations that could lead to wide fluctuations in our share price. You may be unable to sell your common stock at or above your purchase price if at all, which may result in substantial losses to you.
We do not anticipate paying any cash dividends.
We presently do not anticipate that we will pay any dividends on any of our common stock in the foreseeable future. The payment of dividends, if any, would be contingent upon our revenues and earnings, if any, capital requirements, and general financial condition. The payment of any dividends will be within the discretion of our Board of Directors (the “Board”). We presently intend to retain all earnings to implement our business plan; accordingly, we do not anticipate the declaration of any dividends in the foreseeable future.
Our common stock may be subject to penny stock rules, which may make it more difficult for our stockholders to sell their common stock.
Broker-dealer practices in connection with transactions in “penny stocks” are regulated by certain penny stock rules adopted by the SEC. Penny stocks generally are equity securities with a price of less than $5.00 per share. The penny stock rules require a broker-dealer, prior to a purchase or sale of a penny stock not otherwise exempt from the rules, to deliver to the customer a standardized risk disclosure document that provides information about penny stocks and the risks in the penny stock market. The broker-dealer also must provide the customer with current bid and offer quotations for the penny stock, the compensation of the broker-dealer and its salesperson in the transaction, and monthly account statements showing the market value of each penny stock held in the customer’s account. In addition, the penny stock rules generally require that prior to a transaction in a penny stock the broker-dealer 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. These disclosure requirements may have the effect of reducing the level of trading activity in the secondary market for a stock that becomes subject to the penny stock rules.
We may need additional capital, and the sale of additional shares or other equity securities could result in additional dilution to our stockholders.
We may require additional capital for the development and commercialization of our products and may require additional cash resources due to changed business conditions or other future developments, including any investments or acquisitions we may decide to pursue. If our resources are insufficient to satisfy our cash requirements, we may seek to sell additional equity or debt securities or obtain a credit facility. The sale of additional equity securities could result in additional dilution to our stockholders. The incurrence of additional indebtedness would result in increased debt service obligations and could result in operating and financing covenants that would restrict our operations. We cannot assure you that financing will be available in amounts or on terms acceptable to us, if at all.
| 10 |
Our principal stockholders and management own a significant percentage of our stock and will be able to exert significant control over matters subject to stockholder approval.
Certain of our executive officers, directors and large stockholders own a significant percentage of our outstanding capital stock. Our executive officers, directors, holders of 5% or more of our capital stock and their respective affiliates beneficially own shares representing more than a majority of the eligible votes of the Company. Accordingly, our directors and executive officers have significant influence over our affairs due to their substantial ownership coupled with their positions on our management team and have substantial voting power to approve matters requiring the approval of our stockholders. For example, these stockholders may be able to control elections of directors, amendments of our organizational documents, or approval of any merger, sale of assets, or other major corporate transaction. This concentration of ownership may prevent or discourage unsolicited acquisition proposals or offers for our common stock that some of our stockholders may believe is in their best interest.
If we are unable to implement and maintain effective internal control over financial reporting, investors may lose confidence in the accuracy and completeness of our reported financial information and the market price of our common stock may be negatively affected.
As a public company, we are required to maintain internal control over financial reporting and to report any material weaknesses in such internal control. Section 404 of the Sarbanes-Oxley Act requires that we evaluate and determine the effectiveness of our internal control over financial reporting and provide a management report on the internal control over financial reporting. If we have a material weakness in our internal control over financial reporting, we may not detect errors on a timely basis and our consolidated financial statements may be materially misstated. We may not be able to complete our evaluation, testing and any required remediation in a timely fashion. During the evaluation and testing process, if we identify one or more material weaknesses in our internal control over financial reporting, our management will be unable to conclude that our internal control over financial reporting is effective. Moreover, when we are no longer a smaller reporting company, our independent registered public accounting firm will be required to issue an attestation report on the effectiveness of our internal control over financial reporting. Even if our management concludes that our internal control over financial reporting is effective, our independent registered public accounting firm may conclude that there are material weaknesses with respect to our internal controls or the level at which our internal controls are documented, designed, implemented, or reviewed.
If we are unable to conclude that our internal control over financial reporting is effective, or when we are no longer a smaller reporting company, if our auditors were to express an adverse opinion on the effectiveness of our internal control over financial reporting because we had one or more material weaknesses, investors could lose confidence in the accuracy and completeness of our financial disclosures, which could cause the price of our common stock to decline. Internal control deficiencies could also result in a restatement of our financial results in the future. We have concluded that are internal controls have not been sufficient; however, we have begun to take steps to remediate such insufficiencies. We have communicated to our accounting review firm and audit that we have accomplished the following: (i) we have transitioned each operating subsidiary to a separate bookkeeping system (QuickBooks) and input data at each operating location on a daily basis vs. previously batching data and inputting at corporate office. Corporate then verifies data prior to accepting, (ii) we have a QuickBooks trained person with who inputs data on a real-time basis but not allowed at subsidiary level to access or make certain changes, (iii) we have installed for the hemp division companies (Botanical Biotech (Miami), TN Botanicals (TN), CO botanicals (CO) daily tracking procedures whereby every ounce and pound of raw materials (biomass or crude) is tracked by lot number from input to processing through to finished product, (iv) our accounts receivable tracking system, which is essentially our Duramed Division receivables, is now tracking by medical device unit number, by doctor, by location, by insurance billing company, and we have a far more refined software track and billing system than we did prior quarters, (v) we have consolidated banking to a master account with our primary bank (M&T Bank) by subsidiary, (vi) we have instituted a new procedure for any payables which requires double confirmation to release any funds for any reason, (vii) and we have changed merchant accounts to a single user to better tie out to bank balances and accounts receivable. ,
| 11 |
If securities or industry analysts do not publish research or reports about our business, or if they change their recommendations regarding our stock adversely, our stock price and trading volume could decline.
The trading market for our common stock could be influenced by the research and reports that industry or securities analysts publish about us or our business. We do not currently have and may never obtain research coverage by industry or financial analysts. If no or few analysts commence coverage of us, the trading price of our stock would likely decrease. Even if we do obtain analyst coverage, if one or more of the analysts who cover us downgrade our stock, our stock price would likely decline. If one or more of these analysts cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline.
We may not register or qualify our securities with any state agency pursuant to blue sky regulations.
The holders of our shares of common stock and people who desire to purchase them in the future should be aware that there may be significant state law restrictions upon the ability of investors to resell our shares. We currently do not intend to and may not be able to qualify securities for resale in states which require shares to be qualified before they can be resold by our shareholders.
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, or the JOBS Act. Section 107 of the JOBS Act provides that we may elect to utilize the extended transition period for complying with new or revised accounting standards and such election is irrevocable if made. As such, we have made the election to use the extended transition period for complying with new or revised accounting standards under Section 102(b)(1) of the JOBS Act. Please refer to a discussion under “Risk Factors” of the effect on our financial statements of such election.
As an emerging growth company, we are exempt from Section 404(b) of the Sarbanes Oxley Act. Section 404(a) requires Issuers to publish information in their annual reports concerning the scope and adequacy of the internal control structure and procedures for financial reporting. This statement shall also assess the effectiveness of such internal controls and procedures. Section 404(b) requires that the registered accounting firm shall, in the same report, attest to and report on the assessment on the effectiveness of the internal control structure and procedures for financial reporting. As an emerging growth company, we are also exempt from Section 14A (a) and (b) of the Exchange, which require the shareholder approval of executive compensation and golden parachutes.
We have elected to use the extended transition period for complying with new or revised accounting standards under Section 102(b)(2) of the JOBS Act, that allows us to delay the adoption of new or revised accounting standards that have different effective dates for public and private companies until those standards apply to private companies. As a result of this election, our financial statements may not be comparable to companies that comply with public company effective dates.
We are in default of payment obligations under certain promissory notes.
As of December 31, 2023, notes payable with principal amounts totaling $8.9 million were past due. Although only the Arena Entities have elected to pursue remedies against us, no assurance can be given that the other holders will not do so in the future. The institution of collection actions could have a material adverse effect on our business and could force us to seek relief through insolvency or other proceedings.
We could face significant penalties for our failure to comply with the terms of our outstanding convertible notes.
Our various convertible notes contain positive and negative covenants and customary events of default including requiring us in many cases to timely file SEC reports. In the event we fail to timely file our SEC reports in the future, or any other events of defaults occur under the notes, we could face significant penalties and/or liquidated damages and/or the conversion price of such notes could be adjusted downward significantly, all of which could have a material adverse effect on our results of operations and financial condition, or cause any investment in the Company to decline in value or become worthless.
| 12 |
The issuance and sale of common stock upon conversion of our convertible notes may depress the market price of our common stock.
If sequential conversions of the convertible notes and sales of such converted shares take place, the price of our common stock may decline, and as a result, the holders of the convertible notes will be entitled to receive an increasing number of shares in connection with conversions, which shares could then be sold in the market, triggering further price declines and conversions for even larger numbers of shares, to the detriment of our investors. The shares of common stock which the convertible notes are convertible into may be sold without restriction pursuant to Rule 144. As a result, the sale of these shares may adversely affect the market price, if any, of our common stock.
We have established preferred stock which can be designated by the Company’s Board of Directors without shareholder approval.
The Company has 5,000,000 shares of preferred stock authorized. The shares of preferred stock of the Company may be issued from time to time in one or more series, each of which shall have a distinctive designation or title as shall be determined by the board of directors of the Company prior to the issuance of any shares thereof. The preferred stock shall have such voting powers, full or limited, or no voting powers, and such preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof as adopted by the board of directors. Because the board of directors is able to designate the powers and preferences of the preferred stock without the vote of a majority of the Company’s shareholders, shareholders of the Company will have no control over what designations and preferences the Company’s preferred stock will have. The issuance of shares of preferred stock or the rights associated therewith, could cause substantial dilution to our existing shareholders. Additionally, the dilutive effect of any preferred stock which we may issue may be exacerbated given the fact that such preferred stock may have voting rights and/or other rights or preferences which could provide the preferred shareholders with substantial voting control over us and/or give those holders the power to prevent or cause a change in control, even if that change in control might benefit our shareholders. As a result, the issuance of shares of preferred stock may cause the value of our securities to decrease.
Risks Related to our Business
Since we have a limited operating history in our industry, it is difficult for potential investors to evaluate our business.
Our short operating history in our industry may hinder our ability to successfully meet our objectives and makes it difficult for potential investors to evaluate our business or prospective operations. As an early-stage company, we are subject to all the risks inherent in the financing, expenditures, operations, complications and delays inherent in a new business. Accordingly, our business and success faces risks from uncertainties faced by developing companies in a competitive environment. There can be no assurance that our efforts will be successful or that we will ultimately be able to attain profitability.
We may not be able to raise capital when needed, if at all, which would force us to delay, reduce or eliminate our product development programs or commercialization efforts and could cause our business to fail.
We expect to need substantial additional funding to pursue additional product development and launch and commercialize our products. There are no assurances that future funding will be available on favorable terms or at all. If additional funding is not obtained, we may need to reduce, defer or cancel additional product development or overhead expenditures to the extent necessary. The failure to fund our operating and capital requirements could have a material adverse effect on our business, financial condition and results of operations.
If we are unable to raise capital when needed or on attractive terms, we could be forced to delay, reduce or eliminate our research and development programs or any future commercialization efforts. Any of these events could significantly harm our business, financial condition and prospects.
| 13 |
Our independent registered public accounting firm has expressed substantial doubt about our ability to continue as a going concern.
Our historical financial statements have been prepared under the assumption that we will continue as a going concern. Our independent registered public accounting firm has expressed substantial doubt in our ability to continue as a going concern. Our ability to continue as a going concern is dependent upon our ability to obtain additional equity financing or other capital, attain further operating efficiencies, reduce expenditures, and, ultimately, generate more revenue. The doubt regarding our potential ability to continue as a going concern may adversely affect our ability to obtain new financing on reasonable terms or at all. Additionally, if we are unable to continue as a going concern, our stockholders may lose some or all of their investment in the Company.
We depend heavily on key personnel, and turnover of key senior management could harm our business.
Our future business and results of operations depend in significant part upon the continued contributions of our senior management personnel. If we lose their services or if they fail to perform in their current positions, or if we are not able to attract and retain skilled personnel as needed, our business could suffer. Significant turnover in our senior management could significantly deplete our institutional knowledge held by our existing senior management team. We depend on the skills and abilities of these key personnel in managing the product acquisition, marketing and sales aspects of our business, any part of which could be harmed by turnover in the future. We do not have any key person insurance.
We expect to face intense competition, often from companies with greater resources and experience than we have.
The health and wellness and hemp derivative industries are highly competitive and subject to rapid change. The industry continues to expand and evolve as an increasing number of competitors and potential competitors enter the market. Many of these competitors and potential competitors have substantially greater financial, technological, managerial and research and development resources and experience than we have. Some of these competitors and potential competitors have more experience than we have in the development of hemp products, including validation procedures and regulatory matters. Moreover, some of these competitors may have patents or pending patent applications that our products infringe and for which we would need a license to become free to operate. In addition, our products compete with product offerings from large and well-established companies that have greater marketing and sales experience and capabilities than we or our collaboration partners have. If we are unable to compete successfully, we may be unable to grow and sustain our revenue.
We have substantial capital requirements that, if not met, may hinder our operations.
We anticipate that we will make substantial capital expenditures for research and product development work and acquisitions. If we cannot raise sufficient capital, we may have limited ability to expend the capital necessary to undertake or complete research and product development work and acquisitions. There can be no assurance that debt or equity financing will be available or sufficient to meet these requirements or for other corporate purposes, or if debt or equity financing is available, that it will be on terms acceptable to us. Moreover, future activities may require us to alter our capitalization significantly. Our inability to access sufficient capital for our operations could have a material adverse effect on our financial condition, results of operations or prospects.
The Russia-Ukraine and Israel-Hamas wars have disrupted global markets and my adversely impact our ability to obtain financing.
On February 24, 2022, Russian military forces invaded Ukraine, and the length, impact, and outcome of the ongoing war in Ukraine is highly unpredictable. On October 7, 2023, Hamas terrorists infiltrated Israel’s border with the Gaza Strip and conducted a series of attacks on civilian and military targets. Hamas has also launched extensive rocket attacks on Israeli population and industrial centers located along Israel’s border with the Gaza Strip and in other areas within the State of Israel. These attacks have resulted in extensive deaths, injuries and kidnapping. Following the attack, Israel’s security cabinet declared war against Hamas and a military campaign against these terrorist organizations commenced in parallel to their continued rocket and terror attacks. The intensity and duration of Israel’s current war against Hamas is similarly difficult to predict. As a result of the Russia-Ukraine and Israel-Hamas wars and other geopolitical and macroeconomic events, the global credit and financial markets have experienced volatility and disruptions, including severely diminished liquidity and credit availability, declines in consumer confidence, declines in economic growth, increases in unemployment rates, and uncertainty about economic stability. If the equity and credit markets deteriorate, it may make any necessary debt or equity financing more difficult, more costly or more dilutive.
Current global financial conditions have been characterized by increased volatility which could negatively impact our business, prospects, liquidity and financial condition.
Current global financial conditions and recent market events have been characterized by increased volatility and the resulting tightening of the credit and capital markets has reduced the amount of available liquidity and overall economic activity. We cannot guarantee that debt or equity financing, the ability to borrow funds or cash generated by operations will be available or sufficient to meet or satisfy our initiatives, objectives or requirements. Our inability to access sufficient amounts of capital on terms acceptable to us for our operations will negatively impact our business, prospects, liquidity and financial condition.
| 14 |
We will need to increase the size of our organization, and we may experience difficulties in managing any growth we may achieve.
As our development and commercialization plans and strategies develop, we expect to need additional research, development, managerial, operational, sales, marketing, financial, accounting, legal, and other resources. Future growth would impose significant added responsibilities on members of management. Our management may not be able to accommodate those added responsibilities, and our failure to do so could prevent us from effectively managing future growth, if any, and successfully growing our company.
We may expend our limited resources to pursue a particular product and may fail to capitalize on products that may be more profitable or for which there is a greater likelihood of success.
Because we have limited financial and managerial resources, we have focused our efforts on particular products. As a result, we may forego or delay the pursuit of opportunities with other products that later prove to have greater commercial potential. Our resource allocation decisions may cause us to fail to capitalize on viable commercial products or profitable market opportunities. Any failure to improperly assess potential products could result in missed opportunities and/or our focus on products with low market potential, which would harm our business and financial condition.
We engage in transactions with related parties and such transactions present possible conflicts of interest that could have an adverse effect on us.
We have entered, and may continue to enter, into transactions with related parties for financing, corporate, business development and operational services, as detailed herein. Such transactions may not have been entered into on an arm’s-length basis, and we may have achieved more or less favorable terms because such transactions were entered into with our related parties. We rely, and will continue to rely, on our related parties to maintain these services. If the pricing for these services changes, or if our related parties cease to provide these services, including by terminating agreements with us, we may be unable to obtain replacements for these services on the same terms without disruption to our business. This could have a material effect on our business, results of operations and financial condition.
Such conflicts could cause an individual in our management to seek to advance his or her economic interests or the economic interests of certain related parties above ours. Further, the appearance of conflicts of interest created by related party transactions could impair the confidence of our investors, which could have a material adverse effect on our liquidity, results of operations and financial condition.
Any inability to protect our intellectual property rights could reduce the value of our technologies and brands, which could adversely affect our financial condition, results of operations and business.
Our business is dependent upon our trademarks, trade secrets, the patents recently acquired by Nascent and other intellectual property rights. There is a risk of certain valuable trade secrets being exposed to potential misappropriation. The efforts we have taken to protect our proprietary rights may not be sufficient or effective. Any significant impairment of our intellectual property rights could harm our business or our ability to compete. There is a risk that we may have insufficient resources to counter adequately such misappropriation or infringement through negotiation or the use of legal remedies. It may not be practicable or cost effective for us to fully protect our intellectual property rights in some countries or jurisdictions. If we are unable to successfully identify and stop unauthorized use of our intellectual property, we could lose potential revenue and experience increased operational and enforcement costs, which could adversely affect our financial condition, results of operations and business.
Our potential for rapid growth and our entry into new markets make it difficult for us to evaluate our current and future business prospects, and we may be unable to effectively manage any growth associated with these new markets, which may increase the risk of your investment and could harm our business, financial condition, results of operations and cash flow.
Our entry into the rapidly growing CBD, CBN, CBG and delta-8 markets may place a significant strain on our resources and increase demands on our executive management, personnel and systems, and our operational, administrative, and financial resources may be inadequate. We may also not be able to effectively manage any expanded operations or achieve planned growth on a timely or profitable basis, particularly if the number of customers using our technology significantly increases or their demands and needs change as our business expands. If we are unable to manage expanded operations effectively, we may experience operating inefficiencies, the quality of our products and services could deteriorate, and our business and results of operations could be materially adversely affected.
| 15 |
If we are unable to develop and maintain our brand and reputation for our product offerings, our business and prospects could be materially harmed.
Our business and prospects depend, in part, on developing and then maintaining and strengthening our brands and reputation in the markets we serve. If problems with our products or technologies cause customers to experience operational disruption or failure or delays, our brand and reputation could be diminished. If we fail to develop, promote and maintain our brand and reputation successfully, our business and prospects could be materially harmed.
If we or any of our suppliers or third parties on which we rely for the development, manufacturing, marketing, or sale of our products fails to comply with regulatory requirements applicable to the development, manufacturing, marketing, and sale of our product candidates, regulatory agencies may take action against us or them, which could significantly harm our business.
Our product candidates, along with the development process, the manufacturing processes, labeling, advertising, and promotional activities for these products, are subject to continual requirements and review by the FDA and state and foreign regulatory bodies. Regulatory authorities subject a marketed product, its manufacturer, and the manufacturing facilities to continual review and periodic inspections. We, our suppliers, third-parties on which we rely, and our and their respective contractors, suppliers and vendors, will be subject to ongoing regulatory requirements, including complying with regulations and laws regarding advertising, promotion and sales of products (including applicable anti-kickback, fraud and abuse and other health care laws and regulations), required submissions of safety and other post-market information and reports, registration requirements, Clinical Good Manufacturing Practices (cGMP) regulations (including requirements relating to quality control and quality assurance, as well as the corresponding maintenance of records and documentation), and the requirements regarding the distribution of samples to physicians and recordkeeping requirements. Regulatory agencies may change existing requirements or adopt new requirements or policies. We, our suppliers, third-parties on which we rely, and our and their respective contractors, suppliers, and vendors, may be slow to adapt or may not be able to adapt to these changes or new requirements.
Failure to comply with regulatory requirements may result in any of the following:
| ● | restrictions on our product candidates or manufacturing processes; | |
| ● | warning letters; | |
| ● | withdrawal of the products from the market; | |
| ● | voluntary or mandatory recall; | |
| ● | fines; | |
| ● | suspension or withdrawal of regulatory approvals; | |
| ● | refusal to approve pending applications or supplements to approved applications that we submit; | |
| ● | product seizure; | |
| ● | injunctions; or | |
| ● | imposition of civil or criminal penalties. |
We could be subject to costly product liability claims related to our products.
Since most of our products are intended for human use, we face the risk that the use of our products may result in adverse side effects to people. We face even greater risks upon further commercialization of our products. An individual may bring a product liability claim against us alleging that one of our products causes, or is claimed to have caused, an injury or is found to be unsuitable for consumer use. Any product liability claim brought against us, with or without merit, could result in:
| ● | the inability to commercialize our products; | |
| ● | decreased demand for our products; | |
| ● | regulatory investigations that could require costly recalls or product modifications; |
| 16 |
| ● | loss of revenue; | |
| ● | substantial costs of litigation; | |
| ● | liabilities that substantially exceed our product liability insurance, which we would then be required to pay ourselves; | |
| ● | an increase in our product liability insurance rates or the inability to maintain insurance coverage in the future on acceptable terms, if at all; | |
| ● | the diversion of management’s attention from our business; and | |
| ● | damage to our reputation and the reputation of our products. |
Product liability claims may subject us to the foregoing and other risks, which could have a material adverse effect on our business, results of operations, financial condition, and prospects.
The Company could be subject to enforcement action by the FDA and certain state regulatory agencies for its products containing CBD or THC compounds.
In 2018, the federal Farm Bill removed hemp as a Schedule I drug under the Controlled Substances Act and hemp may now be grown as a commodity crop, with restrictions; however, the 2018 Farm Bill did not specifically legalize CBD. Until Congress promulgates rules and regulations relating to hemp derived cannabinoids, the “legal” status of such, or the processes the Company may have to implement (and at what expense), are still unknowns. A similar paradigm exists under various state laws with which the Company will have to comply. Further, the FDA currently considers the addition of CBD to food products, cosmetics or supplements to be illegal and also prohibits the advertisement of CBD products with health claims. In addition, the FTC under the Federal Trade Commission Act (“FTC Act”) requires that product advertising is truthful, substantiated and non-misleading. We believe that our advertising meets these guidelines; however, the FTC may bring a challenge at any time to evaluate our compliance with the FTC Act.
Further, the FDA has recently increased its review of and enforcement against CBD companies for violations of the Federal Food, Drug, and Cosmetic Act (“FCDA”), particularly with respect to the sale of food products containing CBD, claiming that CBD can treat medical conditions in humans or animals, promoting CBD products as dietary supplements, and adding CBD to human and animal foods. Should the Company become subject to enforcement action by the FDA, it could be forced to spend significant sums defending against such enforcement, pay significant fines and ultimately could be forced to stop offering some or all of its CBD products, which would materially, negatively affect the Company’s business and shareholders’ investments. The FDA can also subject individuals to criminal penalties, including fines and imprisonment, for violating certain provisions of the FDCA related to CBD products. In addition, notwithstanding the intense pressure on FDA to fast-track the CBD approval process, it is likely that the approval process for use of CBD or other cannabinoids in foods, cosmetics or supplements will take years and possible that it could never occur at all.
Due to the controversy over the cannabis plant within the United States, we face challenges getting our products into stores and into the hands of the end user.
The Company intends to release products that contain CBD derived from hemp that are legal within the U.S. However, it is possible we may face scrutiny and run into issues getting our products into stores due to hesitation by stores to carry any product at all affiliated with the cannabis plant, as well as federal, state and local regulations that may restrict our ability to sell cannabinoid products.
The Company’s production of Delta-8 THC and Delta-10 THC could subject it to enforcement action by certain federal and state regulatory agencies.
Delta-8 THC and delta-10 THC are cannabis compounds that can cause effects similar to delta-9 THC, the main compound in cannabis that causes psychoactive effects. Delta-8 THC and delta-10 THC can be extracted from either hemp or marijuana, but all of the Company’s delta-8 products are made with hemp containing no more than 0.3% THC. Because of the 2018 Farm Bill, hemp can be legally grown and used for extractions all over the United States. Notwithstanding the foregoing, the legality of hemp-derived delta-8 THC and delta-10 THC is in a gray area and varies from state-to-state, with some states allowing, some not addressing specifically, and others banning due to similarity to delta-9 THC. Although the federal legality of delta-8 THC and delta-10 THC is still unclear, the FDA has recently issued Warning Letters to five companies for selling products labeled as containing delta-8 tetrahydrocannabinol, noting that delta-8 THC has psychoactive and intoxicating effects and may be dangerous to consumers. The Warning Letters were primarily targeted at companies marketing the compound as unapproved treatments for various medical conditions or for other therapeutic uses, without adequate directions for use, or the addition of delta-8 THC in foods. Should the Company become subject to enforcement action by federal or state agencies, it could be forced to spend significant sums defending against such enforcement and ultimately could be forced to stop offering some or all of its delta-8 THC and/or delta-10 THC products and/or be subject to other civil or criminal sanctions, which would materially, negatively affect the Company’s business and shareholders’ investments.
| 17 |
The novel coronavirus disease of 2019 (“COVID-19”) has had, and continues to have, broad impacts on multiple sectors of the global economy, making it difficult to predict the extent of its impact on our business.
On January 30, 2020, the World Health Organization (“WHO”) announced a global health emergency because of a new strain of coronavirus originating in Wuhan, China (the “COVID-19 outbreak”) and the risks to the international community as the virus spreads globally beyond its point of origin. In March 2020, the WHO classified the COVID-19 outbreak as a pandemic, based on the rapid increase in exposure globally.
The full impact of the COVID-19 outbreak continues to evolve as of the date of this Report. As such, it is uncertain as to the full magnitude that the pandemic will have on our financial condition, liquidity, and future results of operations. Management is actively monitoring the impact of the global situation on our financial condition, liquidity, operations, suppliers, industry, and workforce. Given the daily evolution of the COVID-19 outbreak and the global responses to curb its spread, we are not able to estimate the effects of the COVID-19 outbreak on our results of operations, financial condition, or liquidity for the foreseeable future. We have experienced negative impacts from COVID in the form of reduced sales, delayed operations, inability to effectuate certain business plans, supply chain issues and the like.
Our acquisitions may expose us to unknown liabilities.
Because we have acquired, and expect generally to acquire, all (or a majority of) the outstanding securities of certain of our acquisition targets, our investment in those companies are or will be subject to all of their liabilities other than their respective debts which we paid or will pay at the time of the acquisitions. If there are unknown liabilities or other obligations, our business could be materially affected. We may also experience issues relating to internal controls over financial reporting that could affect our ability to comply with the Sarbanes-Oxley Act, or that could affect our ability to comply with other applicable laws.
If we fail to comply with government laws and regulations it could have a materially adverse effect on our business.
Our industry is subject to extensive federal, state and local laws and regulations that are extremely complex and for which, in many instances, the industry does not have the benefit of significant regulatory or judicial interpretation. We exercise care in structuring our operations to comply in all material respects with applicable laws to the extent possible. We will also take such laws into account when planning future operations and acquisitions. The laws, rules and regulations described above are complex and subject to interpretation. In the event of a determination that we are in violation of such laws, rules or regulations, or if further changes in the regulatory framework occur, any such determination or changes could have a material adverse effect on our business. There can be no assurance however that we will not be found in noncompliance in any particular situation.
Any failure to comply with all applicable federal and state anti-kickback laws may result in fines and other liabilities, which may adversely affect the Company’s results of operations and reputation.
The federal anti-kickback statute (the “AKS”) applies to Medicare, Medicaid and other state and federal programs. AKS prohibits the solicitation, offer, payment or receipt of remuneration in return for referrals or the purchase, or in return for recommending or arranging for the referral or purchase, of goods, including drugs, covered by the federal health care programs. At present, the Company does not participate in any federal programs and its products are not reimbursed by Medicare, Medicaid or any other state or federal program. The AKS is a criminal statute with criminal penalties, as well as potential civil and administrative penalties. The AKS, however, provides several statutory exceptions and regulatory “safe harbors” for particular types of transactions. Many states have similar fraud and abuse laws and their own anti-kickback laws, some of which can apply to all payors, and not just governmental payors. While the Company believes that it is in material compliance with both federal and state AKS laws, the AKS laws present different levels of risks as to two of the Company’s lines of business: (1) sale of the Company’s medical foods, and (2) sale of the Company’s medical devices.
| 18 |
At present, the Company’s products are not reimbursable under any federal program. If, however, that changes in the future and it were determined that the Company was not in compliance with the AKS, the Company could be subject to liability, and its operations could be curtailed, which could have a material adverse effect on the Company’s business, financial condition and results of operations. Moreover, if the activities of its customers or other entity with which the Company has a business relationship were found to constitute a violation of the AKS and the Company, as a result of the provision of products or services to such customer or entity, were found to have knowingly participated in such activities, the Company could be subject to sanctions or liability under such laws, including civil and/or criminal penalties, as well as exclusion from government health programs. As a result of exclusion from government health programs, neither products nor services could be provided to any beneficiaries of any federal healthcare program.
We may not maintain sufficient insurance coverage for the risks associated with our business operations.
Risks associated with our business and operations include, but are not limited to, claims for wrongful acts committed by our officers, directors, and other representatives, the loss of intellectual property rights, the loss of key personnel, risks posed by natural disasters and risks of lawsuits from customers who are injured from or dissatisfied with our products. Any of these risks may result in significant losses. We cannot provide any assurance that our insurance coverage is sufficient to cover any losses that we may sustain, or that we will be able to successfully claim our losses under our insurance policies on a timely basis or at all. If we incur any loss not covered by our insurance policies, or the compensated amount is significantly less than our actual loss or is not timely paid, our business, financial condition and results of operations could be materially and adversely affected.
Our ability to service our indebtedness will depend on our ability to generate cash in the future.
Our ability to make payments on our indebtedness will depend on our ability to generate cash in the future. Our ability to generate cash is subject to general economic and market conditions and financial, competitive, legislative, regulatory and other factors that are beyond our control. Our business may not generate sufficient cash to fund our working capital requirements, capital expenditure, debt service and other liquidity needs, which could result in our inability to comply with financial and other covenants contained in our debt agreements, our being unable to repay or pay interest on our indebtedness, and our inability to fund our other liquidity needs. If we are unable to service our debt obligations, fund our other liquidity needs and maintain compliance with our financial and other covenants, we could be forced to curtail our operations, our creditors could accelerate our indebtedness and exercise other remedies and we could be required to pursue one or more alternative strategies, such as selling assets or refinancing or restructuring our indebtedness. However, such alternatives may not be feasible or adequate.
| Item 1B. | Unresolved Staff Comments |
Not applicable.
| Item 2. | Properties |
The Company does not currently own any real property. We do, however, lease office space in Hicksville, New York on a month to month basis following the termination of our lese in December 2023. We have reached an agreement in principle with the landlord pursuant to which we would move into smaller space in the same facility and our rent would be reduced from $3,917 to $1,562 per month. The Company has leases for two additional properties, as described below.
CO Botanicals, LLC (“COB”), a wholly owned subsidiary of Can B̅ Corp. leases the real properties located at 17171 County Road 21, Fort Morgan, CO 80701 (out of which PHP operates) and 12555 Energy Road, Fort Morgan, CO 80701 (collectively, the “Fort Morgan Properties”) on a month-to-month basis. Base rent for the Fort Morgan Properties is $14,500 per month.
| 19 |
| Item 3. | Legal Proceedings |
On April 28, 2021, the Company was served with a commercial legal action against the Company and certain officers by David Weissberg and Donna Marino, who are investors in the Company (collectively, the “Investors”). The complaint was filed in the Supreme Court of the State of New York, County of Nassau, Index No. 605191/2021. The complaint alleges four causes of action.
The first cause of action alleges that the Company breached Securities Purchase Agreements with the Investors by failing to assist the Investors in getting opinion letters to remove the restrictive legends from their shares, even though the Company made introductions and requests to the Company’s counsel, provided supporting documents for the Investor’s shares, and ultimately the opinion letters could not be rendered because the Investors failed to submit required documentation to counsel.
The second cause of action is similar to the first but related to alleged misrepresentations regarding removing the restrictive legends from shares that were issued for services rather than purchased.
The third cause of action alleges that the Company mislead the Investors to invest $500,000. The final cause of action alleges that officers of the Company made misrepresentations regarding the value of the Company’s stock, which caused David Weissberg to owe more in taxes than he was expecting.
We have consulted with attorneys and believe the Investors’ claims are meritless, factually inaccurate, and frivolous. We intend to vigorously defend ourselves against the aforementioned legal action and will likely bring counterclaims against the Investors.
Approximately November 24, 2021, a vendor of the Company filed amended suit against the Company in Florida, Case No. 2021 CA 001797, for monies allegedly owed and civil theft relating to such monies and related products and fraud in the inducement. We do not believe we owe such vendor any amount. The court has entered a default judgement against the Company for our failure to timely answer the complaint, which default has since been overturned. Subsequently the case has been set for interrogatories and document production which activities are being fulfilled.
On or about August 11, 2022, a Complaint was filed by Evexia Plus, LLC against Can B Corp. in a product payment trade dispute. Case Number 63-CV-2022-900692.00 in the Circuit Court of Tuscaloosa County, AL. On 1-26-2023 the court ordered a Summary Judgement in the amount of $336,924. The parties are trying to work out a payment schedule tied to production to satisfy the judgement.
On December 1, 2023,the Company, received a notice from Arena Special Opportunities Partners I, LP, Arena Special Opportunities Fund, LP and Arena Investors, LP (collectively, the “Arena Entities” or “Arena”) advising that by virtue of defaults in the performance of the obligations of the Company and its subsidiaries to the Arena Entities, the Arena Entities intended to conduct a public auction of certain assets of the Company and its subsidiaries under Article 9 of the Uniform Commercial Code.
The Arena Entities collectively hold approximately $3,838,770 aggregate principal amount of Convertible Notes (the “Arena Notes”) issued by the Company. The Arena Entities previously notified the Company and its subsidiaries that they were in default of certain obligations under the Forbearance Agreement dated February 27, 2023 among the Company, its subsidiaries and the Arena Entities pursuant to which the Arena Entities agreed to forbear from exercising remedies under the Arena Notes until December 31, 2024 provided that no defaults occurred under the Arena Notes or the Forbearance Agreement. The alleged defaults include a failure to deliver account control agreements, failure to enter into a servicing agreement, failure to timely make certain payments and the unauthorized use and misuse of receivable assigned to the Arena Entities.
On February 27, 2024, the Supreme Court, County of New York (the “Court”), denied a motion made by the Company seeking a temporary restraining order and preliminary injunction to halt the proposed sale. As a result of the decision, the Arena Entities proceeded with its proposed auction of the Company’s hemp division assets and the auction took place on March 14, 2024. Approximately $300,000 of proceeds were generated by the sale.
On April 7, 2024, Arena filed a complaint in the Court against the Company, it subsidiaries and certain officers of the Company and its subsidiaries alleging tortious interference with the auction and seeking a declaratory judgment that the Company is in breach of the Arena Notes and the Forbearance Agreement and that Arena has the right to auction certain equipment held at a Company facility that is not owned by the Company or any of its subsidiaries. The Company believes that Arena’s claims are without merit and intends to vigorously defend Arena’s claims.
Other than above, we are not aware of any pending or threatened legal proceedings in which we are involved.
| Item 4. | Mine Safety Disclosures |
Not applicable.
| 20 |
| Item 5. | Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities |
Market Information
Our common stock is listed for quotation on OTC Market’s OTCQB® Venture Market under the symbol “CANB.” Our common stock began trading in April 2011. Trading in our common stock has historically lacked consistent volume, and the market price has been volatile.
Record Holders
As of April 12, 2024, there were 49,344,230 shares of common stock issued and outstanding and held by approximately 250 shareholders of record.
Dividends
The Company paid $0 in in-kind dividends on its Series B Preferred Stock by the issuance of common stock to the Series B holders in 2020 and 2019. Each share of Series B Preferred Stock has the first preference to dividends, distributions and payments upon liquidation, dissolution and winding-up of the Company, and is entitled to an accrued cumulative but not compounding dividend at the rate of 5% per annum whether or not declared. After six months of the issuance date, such share and any accrued but unpaid dividends can be converted into common stock at the conversion price which is the lower of (i) $0.0101; or (ii) the lower of the dollar volume weighted average price of CANB common stock on the trading day prior to the conversion day or the dollar volume weighted average price of CANB common stock on the conversion day. The Series B Preferred Stock have no voting rights. There are no currently outstanding shares of Series B Preferred Stock*.
We do not anticipate paying any cash dividends in the foreseeable future. Except for its Series B Preferred Stock, of which there are none issued and outstanding*, the payment of dividends is within the discretion of our Board of Directors and will depend on our earnings, capital requirements, financial condition, and other relevant factors. There are no restrictions that currently limit our ability to pay dividends on our common stock other than those generally imposed by applicable state law.
* It has come to our attention that the Company’s transfer agent still shows 227,590 Series B Preferred shares as being held by RedDiamond Partners LLC (“RedDiamond”) due to an administrative oversight. Nonetheless, such shares were retired in exchange for 97,608 shares of common stock and rights to acquire an additional 35,667 shares of common stock issued to RedDiamond pursuant to an Exchange Agreement dated August 13, 2019.
Securities Authorized for Issuance under Equity Compensation Plans
On July 28, 2020, the Company adopted an Incentive Stock Option Plan (“ISO”). The purpose of this Can B Corp. 2020 ISO (the “Plan”) is to attract, retain, and motivate employees, officers, directors, consultants, agents, advisors and independent contractors of the Company and its Related Companies by providing them the opportunity to acquire a proprietary interest in the Company and to align their interests and efforts to the long-term interests of the Company’s stockholders. The Plan is administered by the Compensation Committee or, in the Board’s sole discretion, the Board. The Compensation Committee shall be composed of two or more directors, each of whom is a “non-employee director” within the meaning of Rule 16b-3(b)(3) promulgated under the Exchange Act, or any successor definition adopted by the Securities and Exchange Commission. As used in this Plan, the term “Compensation Committee” shall be construed as if followed by the words “(if any);” and nothing in this Plan requires the Board to have a Compensation Committee. Except for the terms and conditions explicitly set forth in the Plan and to the extent permitted by applicable law, the Committee shall have full power and exclusive authority, subject to such orders or resolutions not inconsistent with the provisions of the Plan as may from time to time be adopted by the Board or a Committee composed of members of the Board, to (i) select the Eligible Persons to whom Awards may from time to time be granted under the Plan; (ii) determine the type or types of Award to be granted to each Participant under the Plan; (iii) determine the number of shares of Preferred Stock and/or Common Stock (collectively, “Stock”) to be covered by each Award granted under the Plan; (iv) determine the terms and conditions of any Award granted under the Plan; (v) approve the forms of notice or agreement for use under the Plan; (vi) determine whether, to what extent and under what circumstances Awards may be settled in cash, shares of Preferred Stock and/or Common Stock or other property or canceled or suspended; (vii) determine whether, to what extent and under what circumstances cash, shares of Stock, other property and other amounts payable with respect to an Award shall be deferred either automatically or at the election of the Participant; (viii) interpret and administer the Plan and any instrument evidencing an Award, notice or agreement executed or entered into under the Plan; (ix) establish such rules and regulations as it shall deem appropriate for the proper administration of the Plan; (x) delegate ministerial duties to such of the Company’s employees as it so determines; and (xi) make any other determination and take any other action that the Committee deems necessary or desirable for administration of the Plan. Subject to adjustment from time to time, a maximum of two thousand (2,000) shares of Class C Preferred Stock and, effective as of February 8, 2024, one hundred ten million (110,000,000) shares of Common Stock are available for issuance under the Plan. Shares issued under the Plan shall be drawn from authorized and unissued shares or shares now held or subsequently acquired by the Company as treasury shares. The Committee shall also, without limitation, have the authority to grant Awards as an alternative to or as the form of payment for grants or rights earned or due under other compensation plans or arrangements of the Company. Subject to earlier termination in accordance with the terms of the Plan and the instrument evidencing the Option, the maximum term of an Option shall be ten years from the Grant Date. An Award may be granted to any employee, officer or director of the Company or a Related Company whom the Committee from time to time selects. An Award may also be granted to any consultant, agent, advisor or independent contractor for bona fide services rendered to the Company or any Related Company that (a) are not in connection with the offer and sale of the Company’s securities in a capital-raising transaction and (b) do not directly or indirectly promote or maintain a market for the Company’s securities.
| 21 |
Equity Compensation Plan Information
| Plan Category | Number of Securities to be Issued Upon Excise of Outstanding Options, Warrants and Rights | Weighted-Average Exercise Price of Outstanding Options, Warrants and Rights | Number of Securities Remaining Available for Future Issuances Under Equity Compensation Plans* | |||||||||
| Equity compensation plans approved by security holders | 12,223,321 | $ | 0.36 | 47,776,679 | ||||||||
| Equity compensation plans not approved by security holders | - | - | - | |||||||||
| Total | 12,223,321 | $ | 0.36 | 47,776,679 | ||||||||
| * | Represents 2,000 Series C Preferred Shares on an as-converted basis and 8,812,801 shares of common stock available under the Plan. |
Recent Sales of Unregistered Securities
On October 27, 2023, the Company completed the sale of a convertible promissory note in the principal amount of $156,250 to an accredited investor. The purchase price of the note was $156,250, representing a 20% original issue discount. The note is non-interest bearing, except in the case of the event of a default, in which case interest will accrue from the date of the default at a rate equal to the lower of 18% per annum or the maximum rate permitted by law. The note becomes due on October 27, 2024. The holder may elect to convert the principal amount of the note and default interest, if any, subject to adjustment at a price equal to 90% of the lowest daily volume weighted average price of the common stock during the fifteen trading days preceding the conversion date. The Company relied upon the exemption provided by Section 4(a)(2) of the Securities Act of 1933 in connection with this transaction.
During the three months ended December 31, 2023, the Company issued 3,300,000 shares of common stock upon the conversion of outstanding notes The Company relied upon the exemption provided by Section 3(a)(9) of the Securities Act of 1933 in connection with these issuances.
During the three months ended December 31, 2023, the Company issued 1,233,025 shares of common stock as payment for consulting and advisory service. The Company relied upon the exemption provided by Section 4(a)(2) of the Securities Act of 1933 in connection with these transactions.
In December 2023, the Company issues 1,364,154 shares of common stock in settlement of obligations under a purchase agreement. The Company relied upon the exemption provided by Section 4(a)(2) of the Securities Act of 1933 in connection with this transaction.
In December 2023, the Company 962,087 shares of common stock in settlement of $134,683 of indebtedness. The Company relied upon the exemption provided by Section 4(a)(2) of the Securities Act of 1933 in connection with this transaction.
In December 2023, the Company issued 464,409 shares of common stock in satisfaction of payments due under a note. The Company relied upon the exemption provided by Section 4(a)(2) of the Securities Act of 1933 in connection with this transaction.
In September 2023 the Company issued a convertible note in the principal amount of $10,000 for a purchase price of $15,000. The note has term of six months, bears interest at a rate of twelve percent per annum and is convertible into common stock at a price of $.0772 per share. In connection with this transaction, the Company issued the purchaser 100,000 shares of common stock. The Company relied upon the exemption provided by Section 4(a)(2) of the Securities Act of 1933 in connection with this transaction.
In December 2023 the Company issued a convertible note in the principal amount of $37,500 for a purchase price of $25,000. The note has term of six months, bears interest at a rate of twelve percent per annum and is convertible into common stock at a price of $.0772 per share. In connection with this transaction, the Company issued the purchaser 500,000 shares of common stock. The Company relied upon the exemption provided by Section 4(a)(2) of the Securities Act of 1933 in connection with this transaction.
In December 2023, the Company issued 9,167 shares of common stock in connection with the settlement of a litigation matter. The Company relied upon the exemption provided by Section 4(a)(2) of the Securities Act of 1933 in connection with this transaction.
| 22 |
| Item 6. | Selected Financial Data |
Not required for smaller reporting companies.
| Item 7. | Management’s Discussion and Analysis of Financial Condition and Results of Operation |
General
Can B̅ Corp. was originally formed as a Florida corporation on October 11, 2005, under the name of WrapMail, Inc. Effective January 5, 2015, we acquired 100% ownership of Prosperity Systems, Inc., which the Company is in the process of dissolving. Effective December 28, 2018, we acquired 100% ownership of Pure Health Products. In November 2018, we formed Duramed as a wholly owned subsidiary. The Company is presently in the process of dissolving Prosperity.
The Company is in the business of promoting health and wellness through its development, manufacture and sale of products containing cannabinoids derived from hemp biomass and the licensing of durable medical devises. Can B̅’s products include oils, creams, moisturizers, isolate, gel caps, spa products, and concentrates and lifestyle products. Can B̅ develops its own line of proprietary products as well seeks synergistic value through acquisitions in the hemp industry. Can B̅ aims to be the premier provider of the highest quality hemp derived products on the market through sourcing the best raw material and offering a variety of products we believe will improve people’s lives in a variety of areas.
On March 14, 2024, an auction of the assets of our hemp division was conducted under Article 9 of the Uniform Commercial Code following allegations by Arena that we were in breach of our obligations under certain notes and a forbearance agreement. See “Item 3. Legal Proceedings.”
Following the auction, we have continued our hemp operations on a reduced scale using equipment provided by third parties and the services of third-party processors. Historically, revenues from our hemp division supported, in part, our durable medical equipment business conducted through Duramed. Due to reduced support from the hemp division, Duramed is operating with reduced staff which has adversely impacted revenues. While we plan to continue our hemp and durable medical equipment operations for the near term, our primary focus will be on protecting and commercializing the cannabis patents recently acquired by Nascent.
Results of Operations
| Year Ended December 31, | ||||||||||||||||
| 2023 | 2022 | $ Change | % Change | |||||||||||||
| Revenues | ||||||||||||||||
| Product sales | $ | 1,336,117 | $ | 5,524,036 | $ | (4,187,919 | ) | -75.8 | % | |||||||
| Service revenue | 819,627 | 1,161,483 | (341,856 | ) | -29.4 | % | ||||||||||
| Total revenues | 2,155,744 | 6,685,519 | (4,529,775 | ) | -67.8 | % | ||||||||||
| Cost of revenues | 1,797,047 | 4,071,144 | (2,274,097 | ) | -55.9 | % | ||||||||||
| Gross profit | 358,698 | 2,614,375 | (2,255,677 | ) | -86.3 | % | ||||||||||
| Operating expenses | 7,845,140 | 16,782,522 | (8,937,382 | ) | 53.3 | % | ||||||||||
| Loss from operations | (7,486,442 | ) | (14,168,147 | ) | 6,681,705 | -47.2 | % | |||||||||
| Other (expense) income: | ||||||||||||||||
| Change in fair value of warrant liability | 201,277 | 154,010 | (16,762 | ) | -7.7 | % | ||||||||||
| Interest expense | (2,510,811 | ) | (902,130 | ) | (1,851,417 | ) | 280.8 | % | ||||||||
| Other expense | 68,108 | (7,115 | ) | 72,928 | -1513 | % | ||||||||||
| Other expense | (2,241,426 | ) | (755,235 | ) | 1,795,251 | 402.4 | % | |||||||||
| Loss before provision for income taxes | (9,727,868 | ) | (14,923,382 | ) | 4,886,454 | -33.4 | % | |||||||||
| Provision for income taxes | 9,596 | 793 | 9,596 | NA | ||||||||||||
| Net loss | $ | (9,737,464 | ) | $ | (14,924,175 | ) | $ | 4,876,858 | -33.4 | % | ||||||
Year Ended December 31, 2023 compared with Year Ended December 31, 2022:
Revenues decreased $4,529,775. The decrease largely due to the normalization of sales activity with 2022 positively impacted by the wind down of restrictions related to the Covid-19 Pandemic surrounding elective surgeries, enabling an increase in the usage of the Company’s Duramed product lines and ultrasound device associated with patient recovery.
Compensation expenses decreased $4,275,357 primarily related to a decrease in non-cash stock-based compensation expense.
Consulting and professional fees decreased $3,591,054 in 2023. The decrease relates to one time amount including legal, accounting, and other consulting fees and services incurred during the year ending December 31, 2022 related to an increase in legal fees and increase in consulting fees related to expansion of our durable medical device offerings as well as additional consulting fees related to formulation and development consulting related to hemp product development and other product enhancements which did not recur in 2023
Other operating expenses decreased $1,070,971 which is mainly due to decrease in rent expense from closing certain facilities and other cost saving initiatives.
| 23 |
Liquidity and Capital Resources
As of December 31, 2023, the Company had cash and cash equivalents of $34,006 and negative working capital of $5,747,103. Cash and cash equivalents decreased $31,519 compared to December 31, 2022. For the year ended December 31, 2023, $1,349,938 was provided by financing activities, and $1,311,838 was used in operating activities.
The Company currently has no agreements, arrangements, or understandings with any person to obtain funds through bank loans, lines of credit or any other sources.
We currently have no commitments with any person for any capital expenditures.
We have no off-balance sheet arrangements.
As of December 31, 2023 the Company had $8.9 million aggregate principal amount of notes that are past due. The Company plans to seek additional extensions of these notes or refinance the indebtedness. No assurance can be given that the Company will be successful in obtaining extensions or refinancing the indebtedness.
| Item 7A. | Quantitative and Qualitative Disclosure About Market Risk |
Not applicable.
| Item 8. | Financial Statements and Supplementary Data |
Our Consolidated Financial Statements and Notes thereto, for the fiscal years ended December 31, 2022 and 2021 and the report of BF Borgers CPA PC, our independent registered public accounting firm, are set forth on pages F-1 through F-25 of this Annual Report.
| Item 9 | Changes in and Disagreements With Accountants on Accounting and Financial Disclosure |
N/A
| Item 9A. | Controls and Procedures |
Evaluation of Disclosure Controls and Procedures
Disclosure controls and procedures are designed to ensure that information required to be disclosed in the reports filed or submitted under the Exchange Act is recorded, processed, summarized, and reported, within the time period specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in the reports filed under the Exchange Act is accumulated and communicated to management, including the Chief Executive Officer (CEO), as appropriate, to allow timely decisions regarding required disclosure. Based on the evaluation, the CEO has concluded that our disclosure controls and procedures are ineffective to ensure that information disclosed by us in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission rules and forms. This determination was based on the small size of our accounting staff and the lack of segregation of duties.
To address the material weaknesses, we performed additional analysis and other post-closing procedures in an effort to ensure our financial statements included in this annual report have been prepared in accordance with generally accepted accounting principles. Accordingly, management believes that the financial statements included in this report fairly present in all material respects our financial condition, results of operations and cash flows for the periods presented.
Management Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control system was designed to provide reasonable assurance to our management and board of directors regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
| 24 |
Any internal control system, no matter how well designed, has inherent limitations and may not prevent or detect misstatements. Accordingly, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.
Management, with the participation of our Chief Executive Officer, has evaluated the effectiveness of our internal control over financial reporting as of December 31, 2023 based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this evaluation, because of the Company’s limited resources and limited number of employees, and the absence of an audit committee, management concluded that, as of December 31, 2023, our internal control over financial reporting is not effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting principle, which creates a material weakness. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the Company’s annual or interim financial statements will not be prevented or detected on a timely basis. A material weakness means there is a risk that our financial reports or other filings may contain an error or inaccuracy or not submitted timely.
There was a material weakness in the Company’s internal control over financial reporting due to the fact that the Company did not have an adequate process established to ensure appropriate levels of review of accounting and financial reporting matters, which resulted in our closing process not identifying all required adjustments and disclosures in a timely fashion. We expect that the Company will need to hire accounting personnel with the requisite knowledge to improve the levels of review of accounting and financial reporting matters. The Company may experience delays in doing so and any such additional employees would require time and training to learn the Company’s business and operating processes and procedures. For the near-term future, until such personnel are in place, this will continue to constitute a material weakness in the Company’s internal control over financial reporting that could result in material misstatements in the Company’s financial statements not being prevented or detected.
Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Securities and Exchange Act of 1934) during the year ended December 31, 2023 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
| Item 9B. | Other Information |
None.
| Item 9C. | Disclosure Regarding Foreign Jurisdictions that Prevent Inspections |
Not Applicable.
| Item 10. | Directors, Executive Officers and Corporate Governance |
Our board of directors is to be elected annually by our shareholders. The board of directors elects our executive officers annually. Our directors and executive officers as of March 31, 2024 are as follows:
| Name | Age | Position | ||
| Marco Alfonsi | 63 | CEO, Director and Chairman since June 15, 2017 | ||
| Stanley L. Teeple | 75 | CFO, Secretary and Director since October 1, 2018 | ||
| Frederick Alger Boyer, Jr. | 55 | Independent Director appointed October 9, 2019 | ||
| James F. Murphy | 76 | Independent Director appointed October 9, 2019 |
Marco Alfonsi, CEO and Chairman Director has been a financial service professional for the past 20 years. Mr. Alfonsi was appointed director and CEO of the Company in or around January 2015. Immediately prior to that, he spent eight years serving as the CEO of Prosperity Systems, Inc.
| 25 |
Throughout his career, Mr. Alfonsi was directly and indirectly involved in raising over $100 million dollars for small and medium sized business. Prior to his involvement in the financial services industry, Mr. Alfonsi has owned, operated, financed and sold several businesses. Mr. Alfonsi successfully started and managed two companies (ExecuteDirect.com, and Bakers Express of New York, Inc.), and held senior management positions with a number of financial institutions, including: Global American Investments, Clark Street Capital and Basic Investors.
Stanley L. Teeple –Mr. Teeple, CFO, Secretary, Director, was engaged from 2017-2018 with Solis Tek, Inc. (OTCQB:SLTK) a California based publicly traded corporation as Senior Vice President, Corporate Secretary , and Chief Compliance Officer. Solis Tek, Inc. a NV Corporation, is a developer of lighting and nutrient products, and most recently in cultivation and processing for the cannabis industry. Previously, from 2015-2016 Mr. Teeple was Chief Financial Officer and Secretary for Zonzia Media, Inc. (OTC:ZONX), a provider of streaming video and content to cable subscribers and hotel networks throughout the eastern US. From 2008 to 2014 Mr. Teeple was Chief Financial Officer and Secretary of Indigo-Energy, Inc. (OTC:IDGG) a publicly traded company in the oil and gas exploration business. Over the prior three plus decades Mr. Teeple through his turnaround consulting business, Stan Teeple, Inc., has held numerous senior management positions in several public and private companies across a broad spectrum of industries. Additionally, he has operated and worked for various court appointed trustees and principals as CEO, COO, and CFO in the entertainment, pharmaceuticals, food, travel, and tech industries. He operated his consulting business on a project-to-project basis and holds various other directorships. His businesses operational strengths include knowing how to manage and maximize the resources and preserve the integrity of a company from start-up through to maturity and corporate compliance in a regulatory environment.
Frederick Alger Boyer, Jr. Independent Director, is President & CEO of Advance Care Medical, Inc. - Mr. Boyer has over 25 years of Wall Street experience having worked on both the investment side as well as the banking side of the business Most recently he served as Head of Equities for the New York based investment bank H.C. Wainwright & Co. where he had overseen efforts in capital markets, sales, and trading. Prior to that he worked and or supervised teams at Rodman & Renshaw, Oppenheimer, Piper Jaffray, and Credit Suisse in New York, San Francisco, and Minneapolis. In his various roles he has advised hundreds of companies in their financing efforts both publicly and privately. Mr. Boyer has numerous securities licenses and is a graduate of the University of California at Berkeley.
James F. Murphy, Independent Director, brings more than 40 years of investigative and consulting experience as the Founder and President of Sutton Associates. From 1980 to 1984, Mr. Murphy was an Assistant Special Agent in Charge with the Federal Bureau of Investigation, responsible for a territory encompassing more than seven million people. His investigative specialties included organized crime, white-collar crime, labor racketeering and political corruption. From 1976 to 1980, Mr. Murphy was assigned to the Office of Planning and Evaluation at FBI headquarters, Washington, D.C. In this capacity, he evaluated and recommended changes in the FBI’s administrative and investigative programs. Since entering the private sector in 1984, Mr. Murphy has advanced the industry by developing systematic and professional protocols for performing due diligence, as well as other investigative services.
| 26 |
Board Committees
We have established an audit committee, compensation committee, or nominating committee. With one of the independent Directors sitting as chair of each committee. Mr. Ronald Siver served as Chairman of the Nominating Committee until his resignation from the Board in July 2023 and the position is currently vacant. Mr. James Murphy is Chairman of the Audit Committee, and Mr. Alger Boyer is Chairman of the Compensation Committee.
Family Relationships
There are no familial relationships between any of our officers and directors.
Director or Officer Involvement in Certain Legal Proceedings
Our current directors and executive officers have not been involved in any legal proceedings as described in Item 401(f) of Regulation S-K in the past ten years.
Director Independence
The Company is not currently listed on any national securities exchange that has a requirement that the board of directors be independent. However, in anticipation of a possible exchange up listing, and in an effort toward better Board oversight, the company has engaged three independent Directors making the independent outside directors a majority on the Board of Directors.
Code of Ethics
We have adopted a Code of Ethics that applies to all of our employees and officers, and the members of our Board of Directors. This Code of Ethics is posted on the Company’s website www.canbiola.com and applies to all executive officers including CEO, CFO and COO.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires our directors and executive officers, and persons who own more than 10% of a registered class of our equity securities, to file reports of ownership and changes in ownership with the SEC. Officers, directors and greater than 10% shareholders are required by SEC regulation to furnish the Company with copies of all Section 16(a) forms they file. Based on our review of the reports filed by Reporting Persons, we believe that, during the year ended December 31, 2023, the following Reporting Persons did not meet all applicable Section 16(a) filing requirements: (i) Stanley Teeple and (ii) Marco Alfonsi. Otherwise, we believe that the Reporting Persons met such filing requirements.
| 27 |
| Item 11. | Executive Compensation |
The table below summarizes all compensation awarded to, earned by, or paid to our executive officers and directors for all services rendered in all capacities to us during the fiscal years ended December 31, 2023 and 2022.
| Name and principal position | Year | Salary | Bonus | Stock awards | Option awards (4) | Non-equity incentive plan comp. | Non-qualified deferred comp. earnings | All other comp. | Total | |||||||||||||||||||||||||||
| Marco Alfonsi (1) | 2023 | $ | 10,000 | $ | 0 | $ | 0 | $ | 108,333 | $ | 0 | $ | 0 | $ | 0 | $ | 118,333 | |||||||||||||||||||
| 2022 | $ | 25,962 | $ | 0 | $ | 500,100 | $ | 100,000 | $ | 0 | $ | 0 | $ | 0 | $ | 626,062 | ||||||||||||||||||||
| Stanley L. Teeple (2) | 2023 | $ | 10,000 | $ | 0 | $ | 0 | $ | 108,333 | $ | 0 | $ | 0 | $ | 0 | $ | 118,333 | |||||||||||||||||||
| 2022 | $ | 25,962 | $ | 0 | $ | 500,100 | $ | 100,000 | $ | 0 | $ | 0 | $ | 0 | $ | 626,062 | ||||||||||||||||||||
(1) On December 28, 2020, Marco Alfonsi signed a three year Employment Agreement. Under that agreement, he was i) entitled to receive a base salary of fifteen thousand dollars ($15,000.00) per month, ii) was eligible to receive cash and or stock bonuses, iii) was entitled to receive a stock bonus in accordance with the Company’s Incentive Stock Option Plan (“ISOP”) in an amount of one-hundred thousand dollars ($100,000) per year of the Agreement, iv) issued 200 shares of the Company’s Series C Preferred Stock, and v) granted usual and customary benefits including expense reimbursement, health and life insurance plan reimbursements and allowances. Actual salary compensation was $25,962 during 2022 and $10,000 for 2023. In February 2024 the Company and Mr. Alfonsi entered into a new three year employment agreement containing terms substantially similar to the prior agreement except that the base salary was increased to $20,000 per month and the agreement provides that Mr. Alfonsi will be entitled to quarterly distributions of two percent (2%) of the total revenues received by the Company from Nascent during and after the term of the agreement.
(2) On December 28, 2020, Stanley Teeple entered into a three-year employment agreement with the Company. Under that agreement, he was i) entitled to receive base salary of fifteen thousand dollars ($15,000.00) per month, ii) eligible to receive cash and or stock bonuses, iii) entitled to receive a stock bonus in accordance with the Company’s ISOP in an amount of one-hundred thousand dollars ($100,000) per year of the Agreement, iv) issued 200 shares of the Company’s Series C Preferred Stock, and v) granted usual and customary benefits including expense reimbursement, health and life insurance plan reimbursements and allowances. Actual salary compensation was $25,962 during 2022 and $10,000 for 2023. In February 2024 the Company and Mr. Teeple entered into a new three year employment agreement containing terms substantially similar to the prior agreement except that the base salary was increased to $18,500 per month and the agreement provides that Mr. Teeple Alfonsi will be entitled to quarterly distributions of two percent (2%) of the total revenues received by the Company from Nascent during and after the term of the agreement.
As of December 31, 2023, there were Incentive Stock Option Awards issued to Marco Alfonsi and Stanley Teeple in the amount of $100,000 each. The Options were issued on December 29, 2020 under the ISO Plan, at a strike price of $.361 per share for 277,008 shares for each of the 4 persons named.
(5) The amounts reported in this column represent the grant date fair value of option awards granted during the years ended December 31, 2023 and 2022 in accordance with FASB ASC 718. The assumptions used in the calculation of these awards are discussed in Note 11 to the Consolidated Financial Statements included in this Report.
| 28 |
The table below summarizes all compensation awarded to, earned by, or paid to our non-interested directors for all services rendered in all capacities to us during the previous two fiscal years, as of December 31, 2022.
| Non-Interested Director Summary Compensation Table | ||||||||||||||||||||||||||||||
| Name and principal position | Year | Fees Earned or Paid in Cash |
Stock awards (1) |
Option awards (2) | Non-equity incentive plan comp. | Non-qualified deferred comp. earnings | All other com. | Total | ||||||||||||||||||||||
| Frederick A. Boyer | 2023 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | |||||||||||||||
| Director | 2022 | $ | 0 | $ | 100,020 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 100,020 | |||||||||||||||
| Ronald Silver | 2023 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | |||||||||||||||
| Director (3) | 2022 | $ | 0 | $ | 100,020 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 100,020 | |||||||||||||||
| James F. Murphy | 2023 | $ | 0 | $ | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | ||||||||||||||||
| Director | 2022 | $ | 0 | $ | 100,020 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 100,020 | |||||||||||||||
| 1) | Each of the 3 non-interested independent directors was issued 20 Preferred C shares in 2022. | |
| 2) | As of December 31, 2023, Directors Boyer, Silver and Murphy each owned 10,000 options to exercise and purchase stock at $.30 at any time until 2023. | |
| 3) | Mr. Silver resigned his position as Director in July 2023. |
No director has received cash compensation for their directorship. We do have a compensation committee and compensation for our directors and officers is determined by our board of directors.
We reimburse Non-Employee Directors for actual out-of-pocket costs incurred to attend board meetings. No additional compensation is paid for attendance in person or by telephone at board meetings.
The table below summarizes all outstanding equity awards for officers, as of December 31, 2022.
| Outstanding Equity Awards at Fiscal Year-End | ||||||||||||||||||||||||
| Name and principal position | Grant Date | Grant Type | Number of Securities Underlying Unexercised Options Exercisable | Number of Securities Underlying Unexercised Options Unexercisable | Option Exercise Price | Option Expiration Date | ||||||||||||||||||
| Stanley Teeple – CFO | 10/21/2018 | Stock Options | 667 | 0 | $ | 4.50 | 10/20/2023 | |||||||||||||||||
| Marco Alfonsi – CEO | 8/28/2022 | Stock Options | 100,000 | 0 | $ | 3.00 | 8/27/2027 | |||||||||||||||||
| Stanley Teeple – CFO | 8/28/2022 | Stock Options | 100,000 | 0 | $ | 3.00 | 8/27/2027 | |||||||||||||||||
| Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
The following table sets forth the ownership, as of April 12, 2023, of our common stock, Series C Preferred Stock and Series D Preferred Stock by (i) each person known by us to be the beneficial own of more than five (5%) percent of the applicable class; (ii) each of the Company’s executive officers and directors; and (iii) the Company’s directors and executive officers as a group. To the best of our knowledge, the persons named have sole voting and investment power with respect to such shares, except as otherwise noted. There are not any pending or anticipated arrangements that may cause a change in control. The information presented below regarding beneficial ownership of our voting securities has been presented in accordance with the rules of the Securities and Exchange Commission and is not necessarily indicative of ownership for any other purpose. Under these rules, a person is deemed to be a “beneficial owner” of a security if that person has or shares the power to vote or direct the voting of the security or the power to dispose or direct the disposition of the security. A person is deemed to own beneficially any security as to which such person has the right to acquire sole or shared voting or investment power within 60 days through the conversion or exercise of any convertible security, warrant, option or other right. More than one person may be deemed to be a beneficial owner of the same securities.
| 29 |
Shares Beneficially Owned(1) As of April 12, 2023 | ||||||||||||||||||||||||||||
| Name and Address of Beneficial Owner(2): | Common Stock |
Percent of Class(3) | Series C Preferred Stock |
Percent of Class(4) | Series D Preferred Stock |
Percent of Class(5) | Percent of Total Voting Power |
|||||||||||||||||||||
| Marco Alfonsi, CEO and Director | 3,620,805 | (6) | 6.90 | % | 300 | 27.3 | % | 1,250 | 31.3 | % | 7.89 | % | ||||||||||||||||
| Stanley L. Teeple, CFO and Director | 3,620,632 | (7) | 6.88 | % | 300 | 27.3 | % | 1,250 | 31.3 | % | 7.87 | % | ||||||||||||||||
| Frederick A. Boyer, Director | 1,008,668 | (8) | 2.00 | % | – | – | – | – | 1.84 | % | ||||||||||||||||||
| James F. Murphey, Director | 1,208,668 | (9) | 2.39 | % | – | – | – | - | 2.20 | % | ||||||||||||||||||
| All directors and executive officers as a group (4 persons) | 9,470,773 | 16.59 | % | 600 | 10.4 | % | 2,500 | 62.5 | % | 18.35 | % | |||||||||||||||||
| Arena Special Opportunities Fund, L.P | 5,421,840 | (11) | 9.9 | % | – | – | – | – | 9.19 | % | ||||||||||||||||||
| Walleye Opportunities Master Fund LTD | 5,421,840 | (12) | 9.9 | % | 9.19 | % | ||||||||||||||||||||||
| ClearThink Capital Partners | 5,421,840 | (13) | 9.9 | % | – | – | – | – | 9.46 | % | ||||||||||||||||||
| (1) | Shares of common stock subject to stock options, warrants or convertible securities currently exercisable or convertible, or exercisable or convertible within 60 days of April 12, 2023 are deemed to be outstanding for computing the percentage ownership of the person holding such options, warrants or convertible securities and the percentage ownership of any group of which the holder is a member, but are not deemed outstanding for computing the percentage ownership of any other person. |
| (2) | Except as otherwise indicated, the address of each beneficial owner is c/o Can B Corp., 960 South Broadway, Suite 120, Hempstead, New York 11801. |
| (3) | Based on 49,344,230 shares of common stock issued and outstanding as of April 12, 2023. |
| (4) | Based on 1,100 shares of Series C Preferred Stock issued and outstanding as of April 12, 2023. Shares of Series C Preferred Stock entitle their holders to vote on an as converted basis (1,667 shares of common stock per share of Series C Preferred Stock). |
| (5) | Based on 4,000 shares of Series D Preferred Stock issued and outstanding as of April 12, 2023. Holders of Series D Preferred Stock are entitled to 667 votes per share. |
| (6) | Includes 2,774,965 shares of common stock issuable upon the exercise of options and 500,100 shares of common stock issuable upon conversion of 300 shares of Series C Preferred Stock. Does not include 42,343 shares of common stock held by adult members of Mr. Alfonsi’s family. |
| (7) | Includes 2,778,526 shares of common stock issuable upon the exercise of options and 500,100 shares of common stock issuable upon conversion of 300 shares of Series C Preferred Stock. |
| (8) | Includes 1,000,667 shares of common stock issuable upon the exercise of options. |
| (9) | Includes 1,200,667 shares of common stock issuable upon the exercise of options. |
| (10) | Includes 2,778,526 shares of common stock issuable upon the exercise of options and 500,100 shares of common stock issuable upon conversion of 300 shares of Series C Preferred Stock. |
| (11) | Includes shares beneficially owned by the shareholder’s affiliates, Arena Investors, LP and Arena Special Opportunities Partners I, LP, and 4,650,146 shares issuable upon conversion of convertible securities and exercise of warrants that contain a 9.99% beneficial ownership limitation. The address of this shareholder is 405 Lexington Avenue, 59th Floor, New York, New York 10174. |
| (12) | Includes 4,826,358 shares of common stock issuable upon conversion of convertible notes and exercise of warrants that contain a 9.99% beneficial ownership limitation. The address of this shareholder is 2800 Niagara Lane North, Plymouth Minnesota 55447. |
| (13) | Includes 3,488,815 shares of common stock issuable upon conversion of convertible notes that contain a 9.99% beneficial ownership limitation |
| 30 |
| Item 13. | Certain Relationships and Related Party Transactions, and Director Independence |
Can B̅ Corp.’s Corporate Governance Guidelines establish standards for evaluating Director independence and requires that a majority of Directors be independent. The Board determines the independence of each Director under Nasdaq governance standards. Those standards identify the types of relationships that, if material, could impair independence. The Board determined that, under the Nasdaq listing standards, the following non-employee Directors are independent: Frederick A. Boyer, and James F. Murphy. Our non-independent directors are Marco Alfonsi and Stanley L. Teeple.
Except as described herein (or within the section entitled Executive Compensation of this report), none of the following parties (each a “Related Party”) has, in our fiscal years ended 2022 and 2021, had any material interest, direct or indirect, in any transaction with us or in any presently proposed transaction that has or will materially affect us:
| ● | any of our directors or officers; | |
| ● | any person who beneficially owns, directly or indirectly, shares carrying more than 10% of the voting rights attached to our outstanding shares of common stock; or | |
| ● | any member of the immediate family (including spouse, parents, children, siblings and in- laws) of any of the above persons. |
LI Accounting Associates, LLC (“LIA”), an entity controlled by a relative of the Managing Member PHP, is a vendor of Can B̅ Corp. As of December 31, 2023, the Company had accounts payable due to LIA of $_____. For the twelve months ended December 31, 2023, the Company had expenses to LIA of $______.
At December 31, 2023, the Company has amounts due to a director of the Company of approximately $____ which are expected to be repaid in the next twelve months.
| Item 14. | Principal Accounting Fees and Services |
The following table sets forth fees billed to us by BF Borgers CPA PC, our independent registered public accounting firm during the fiscal years ended December 31, 2023 and December 31, 2022 for: (i) services rendered for the audit of our annual financial statements and the review of our quarterly financial statements; (ii) services by our independent registered public accounting firms that are reasonably related to the performance of the audit or review of our financial statements and that are not reported as audit fees; (iii) services rendered in connection with tax compliance, tax advice and tax planning; and (iv) all other fees for services rendered.
| December 31, 2023 | December 31, 2022 | |||||||
| Audit Fees | $ | 197,300 | $ | 197,300 | ||||
| Audited Related Fees | $ | 0 | $ | 0 | ||||
| Tax Fees | $ | 0 | $ | 0 | ||||
| All Other Fees | $ | 0 | $ | 0 | ||||
| 31 |
PART IV
| Item 15. | Exhibits, Financial Statement Schedules. |
Exhibits Schedule
The following exhibits are filed with this Annual Report:
| 32 |
| 33 |
| 101.INS | Inline XBRL Instance Document | |
| 101.SCH | Inline XBRL Taxonomy Extension Schema | |
| 101.CAL | Inline XBRL Taxonomy Extension Calculation | |
| 101.DEF | Inline XBRL Taxonomy Extension Definition | |
| 101.LAB | Inline XBRL Taxonomy Extension Labels | |
| 101.PRE | Inline XBRL Taxonomy Extension Presentation | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
| (1) | Filed with the Annual Report on Form 10-K filed with the SEC on April 2, 2020 and incorporated herein by reference. |
| (2) | Filed with the Form S-1 Registration Statement filed with the SEC on December 2, 2015 and incorporated herein by reference. |
| (3) | Filed with the Current Report on Form 8-K filed with the SEC on January 30, 2019 and incorporated herein by reference. |
| (4) | Filed with the Current Report on Form 8-K filed with the SEC on December 6, 2019 and incorporated herein by reference. |
| (5) | Filed with the Current Report on Form 8-K filed with the SEC on February 18, 2020 and incorporated herein by reference. |
| (6) | Filed with the Current Report on Form 8-K filed with the SEC on January 15, 2019 and incorporated herein by reference. |
| (7) | Filed with the Form 1-A/A, Part II, filed with the SEC on July 17, 2020 and incorporated herein by reference. |
| (8) | Filed with the Form 1-A POS, Part II, filed with the SEC on September 11, 2020 and incorporated herein by reference. |
| (9) | Filed with the Current Report on Form 8-K filed with the SEC on November 23, 2020 and incorporated herein by reference. |
| (10) | Filed with the Annual Report on Form 10-K filed with the SEC on April 15, 2022 and incorporated herein by reference. |
| (11) | Filed with the Quarterly Report on Form 10-Q filed with the SEC on May 21, 2021 and incorporated herein by reference. |
| (12) | Filed with the Current Report on Form 8-K filed with the SEC on August 17, 2021 and incorporated herein by reference. |
| (13) | Filed with the Current Report on Form 8-K filed with the SEC on September 1, 2021 and incorporated herein by reference. |
| (14) | Filed with the Current Report on Form 8-K filed with the SEC on March 31, 2022 and incorporated herein by reference. |
| (15) | Filed with the Form 10-K filed with the SEC on April 15, 2022 and incorporated herein by reference. |
| (16) | Filed with the Current Report on Form 8-K filed with the SEC on April 29, 2022 and incorporated herein by reference. |
| (17) | Filed with Form S-1/A filed with the SEC on February 14, 2022 and incorporated herein by reference. |
| (18) | Filed with Form S-1/A filed with the SEC on May 25, 2022 and incorporated herein by reference. |
| (19) | Filed with the Current Report on Form 8-K filed with the SEC on June 15, 2022 and incorporated herein by reference. |
| (20) | Filed with Form S-1/A filed with the SEC on May 25, 2022 and incorporated herein by reference. |
| (21) | Filed with the Current Report on Form 8-K filed with the SEC on July 25, 2022 and incorporated herein by reference. |
| (22) | Filed with the Annual Report on Form 10-K filed with the SEC on April 17, 2023 and incorporated herein by reference. |
| (23) | Filed with the Quarterly Report on Form 10-Q filed with the SEC on May 22, 2023 and incorporated herein by reference. |
| (24) | Filed with the Current Report on Form 8-K filed with the SEC on November 3, 2023 and incorporated herein by reference. |
| 34 |
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Can B̅ Corp. | ||
| Date: April 15, 2024 | By: | /s/ Marco Alfonsi |
| Name: | Marco Alfonsi | |
| Title: | Chief Executive Officer | |
| (Principal Executive Officer and Principal Accounting Officer) | ||
| Date: April 15, 2024 | By: | /s/ Stanley L. Teeple |
| Name: | Stanley L. Teeple | |
| Title: | Chief Financial Officer | |
In accordance with the Exchange Act, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Marco Alfonsi | Chief Executive Officer, Director and Chairman | April 15, 2024 | ||
| Marco Alfonsi | (Principal Executive Officer) | |||
| /s/ Stanley L. Teeple | Secretary, CFO and Director | April 15, 2024 | ||
| Stanley L. Teeple | (Principal Financial and Accounting Officer) | |||
| /s/ Frederick Alger Boyer Jr. | Independent Director | April 15, 2024 | ||
| Frederick Alger Boyer Jr. | ||||
| /s/ James Murphy | Independent Director | April 15, 2024 | ||
| James Murphy |
| 35 |
| Can B Corp. and Subsidiaries | |
| Index to Financial Statements | |
| Consolidated Financial Statements | |
| Report of Independent Registered Public Accounting Firm | F-2 |
| Consolidated Balance Sheets | F-3 |
| Consolidated Statements of Operations | F-4 |
| Consolidated Statements of Stockholders’ Equity | F-5 |
| Consolidated Statements of Cash Flows | F-6 |
| Notes to Consolidated Financial Statements. | F-7 |
| F-1 |
Report of Independent Registered Public Accounting Firm
To the shareholders and the board of directors of Can B Corp.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Can B Corp. as of December 31, 2023 and 2022, the related statements of operations, stockholders’ equity (deficit), and cash flows for the years then ended, 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, 2023 and 2022, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States.
Substantial Doubt about the Company’s Ability to Continue as a Going Concern
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 2 to the financial statements, the Company’s significant operating losses raise substantial doubt about its ability to continue as a going concern. 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 audit. 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 audit 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 audit 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 audit 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 audit provides a reasonable basis for our opinion.
Critical Audit Matter
Critical audit matters 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.
We determined that there are no critical audit matters.
/S/
We have served as the Company’s auditor since 2021
April 15, 2024
| F-2 |
Can B̅ Corp. and Subsidiaries
Consolidated Balance Sheets
| December 31, 2023 | December 31, 2022 | |||||||
| Assets | ||||||||
| Current assets: | ||||||||
| Cash and cash equivalents | $ | $ | ||||||
| Accounts receivable, less allowance for doubtful accounts of $ | ||||||||
| Inventory | ||||||||
| Prepaid expenses and other current assets | ||||||||
| Total current assets | ||||||||
| Other assets: | ||||||||
| Deposits | ||||||||
| Intangible assets, net | ||||||||
| Property and equipment, net | ||||||||
| Right of use assets, net | ||||||||
| Other noncurrent assets | ||||||||
| Total other assets | ||||||||
| Total assets | $ | $ | ||||||
| Liabilities and Stockholders’ Equity | ||||||||
| Current liabilities: | ||||||||
| Accounts payable | $ | $ | ||||||
| Accrued expenses | ||||||||
| Due to related party | ||||||||
| Notes and loans payable, net | ||||||||
| Warrant liabilities | ||||||||
| Operating lease liability - current | ||||||||
| Total current liabilities | ||||||||
| Long-term liabilities: | ||||||||
| Operating lease liability - noncurrent | ||||||||
| Total long-term liabilities | ||||||||
| Total liabilities | $ | $ | ||||||
| Commitments and contingencies (Note 14) | ||||||||
| Stockholders’ equity: | ||||||||
| Preferred stock, authorized shares: | ||||||||
| Series A Preferred stock, | ||||||||
| Series B Preferred stock, $ par value: shares authorized, issued and outstanding | ||||||||
| Series C Preferred stock, $ par value: shares authorized, and issued and outstanding at December 31, 2023 and 2022, respectfully | ||||||||
| Series D Preferred stock, $ par value: shares authorized, and issued and outstanding at December 31, 2023 and 2022, respectfully | ||||||||
| Preferred stock, value | ||||||||
| Common stock, | ||||||||
| Common stock issuable, | ||||||||
| Treasury stock | ( | ) | ( | ) | ||||
| Additional paid-in capital | ||||||||
| Accumulated deficit | ( | ) | ( | ) | ||||
| Total stockholders’ equity | ( | ) | ||||||
| Total liabilities and stockholders’ equity | $ | $ | ||||||
See notes to consolidated financial statements
| F-3 |
Can B̅ Corp. and Subsidiaries
Consolidated Statement of Operations
| 2023 | 2022 | |||||||
| Year Ended December 31, | ||||||||
| 2023 | 2022 | |||||||
| Revenues | ||||||||
| Product sales | $ | $ | ||||||
| Service revenue | ||||||||
| Total revenues | ||||||||
| Cost of revenues | ||||||||
| Gross profit | ||||||||
| Operating Expenses | ||||||||
| Compensation | ||||||||
| Consulting and professional fees | ||||||||
| Other operating expenses | ||||||||
| Total operating expenses | ||||||||
| Loss from operations | ( | ) | ( | ) | ||||
| Other (expense) income: | ||||||||
| Change in fair value of warrant liability | ||||||||
| Interest expense | ( | ) | ( | ) | ||||
| Other income/(expense) | ( | |||||||
| Other expense | ( | ) | ( | ) | ||||
| Loss before provision for income taxes | ( | ) | ( | ) | ||||
| Provision for income taxes | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Loss per share - basic and diluted | $ | ) | $ | ) | ||||
| Weighted average shares outstanding - basic and diluted | ||||||||
See notes to consolidated financial statements
| F-4 |
Can B̅ Corp. and Subsidiaries
Consolidated Statements of Stockholders’ Equity
Years ended December 31, 2023 and 2022
| Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Issuable | Shares | Amount | Capital | Deficit | Total | |||||||||||||||||||||||||||||||||||||||||||||||||
Series A Preferred Stock | Series B Preferred Stock | Series C Preferred Stock | Series D Preferred Stock | Common Stock | Common Stock | Treasury Stock | Additional Paid-in | Accumulated | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Issuable | Shares | Amount | Capital | Deficit | Total | |||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, December 31, 2021 | $ | $ | $ | $ | $ | $ | $ | ( | ) | $ | $ | ( | ) | $ | ||||||||||||||||||||||||||||||||||||||||||||||||||
| Conversion of Series A Preferred stock to Common stock | ( | ) | ( | ) | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of preferred stock | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Sale of common stock | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in lieu of note interest repayments | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock for services rendered | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock for equipment | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock for asset acquisition | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock resulting from the exercise of warrants | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net loss | - | - | - | - | - | - | ( | ) | ( | ) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, December 31, 2022 | $ | $ | $ | $ | $ | $ | $ | ( | ) | $ | $ | ( | ) | $ | ||||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, value | $ | $ | $ | $ | $ | $ | $ | ( | ) | $ | $ | ( | ) | $ | ||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock for services rendered | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock for purchase of equipment | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Warrants issued in connection with the issuance of convertible note | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock for for wages and salaries | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock for purchase of inventory | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in lieu of interest payments | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock or legal settlement | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in lieu of note repayments | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net loss | - | - | - | - | - | - | ( | ) | ( | ) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, December 31, 2023 | $ | $ | $ | $ | $ | $ | $ | ( | ) | $ | $ | ( | ) | $ | ( | ) | ||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, value | $ | $ | $ | $ | $ | $ | $ | ( | ) | $ | $ | ( | ) | $ | ( | |||||||||||||||||||||||||||||||||||||||||||||||||
See notes to consolidated financial statements
| F-5 |
Can B̅ Corp. and Subsidiaries
Consolidated Statements of Cash Flows
| 2022 | 2022 | |||||||
| Year Ended December 31, | ||||||||
| 2022 | 2022 | |||||||
| Operating activities: | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
| Stock-based compensation | ||||||||
| Common stock in lieu of cash payroll | ||||||||
| Depreciation | ||||||||
| Amortization of intangible assets | ||||||||
| Amortization of original-issue-discounts | ||||||||
| Bad debt expense | ||||||||
| Impairment of intangible assets | ||||||||
| Loss on sale of property and equipment | ||||||||
| Cancellation of debt | ( | ) | ||||||
| Change in fair value of warrant liability | ( | ) | ( | ) | ||||
| Stock-based interest expense | ||||||||
| Stock-based consulting expense | ||||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | ( | ) | ||||||
| Inventory | ) | |||||||
| Prepaid expenses | ( | |||||||
| Operating lease right-of-use asset | ( | ) | ||||||
| Accounts payable | ( | ) | ||||||
| Accrued expenses | ( | ) | ||||||
| Net cash used in operating activities | ( | ) | ( | ) | ||||
| Investing activities: | ||||||||
| Purchase of property and equipment | ( | ) | ||||||
| Deposits paid | ( | ) | ||||||
| Net cash used in investing activities | ( | ) | ||||||
| Financing activities: | ||||||||
| Net proceeds received from notes and loans payable | ||||||||
| Proceeds from issuance of Series D Preferred Stock | ||||||||
| Proceeds from sale of common stock | ||||||||
| Repayments of notes and loans payable | ( | ) | ( | ) | ||||
| Deferred financing costs | ( | ) | ( | |||||
| Amounts received from related parties, net | ||||||||
| Net cash provided by financing activities | ||||||||
| Decrease in cash and cash equivalents | ( | ) | ( | ) | ||||
| Cash and cash equivalents, beginning of period | ||||||||
| Cash and cash equivalents, end of period | $ | $ | ||||||
| Supplemental Cash Flow Information: | ||||||||
| Income taxes paid | $ | $ | ||||||
| Interest paid | $ | $ | ||||||
| Non-cash Investing and Financing Activities: | ||||||||
| Issuance of common stock in lieu of repayment of notes payable | $ | $ | ||||||
| Issuance of common stock in asset acquisitions | $ | $ | ||||||
| Issuance of common stock for property and equipment | $ | $ | ||||||
| Assets acquired through issuance of promissory note | $ | |||||||
| Debt discount associated with warrant liability | $ | $ | ||||||
| Issuance of common stock resulting from the exercise of warrants | $ | $ | ||||||
| Issuance of common stock warrants and commitment shares in connection with convertible promissory note | $ | $ | ||||||
See notes to consolidated financial statements
| F-6 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Note 1 – Organization and Description of Business
Can B̅ Corp. was originally incorporated as WrapMail, Inc. (“WRAP”) in Florida on October 11, 2005. On May 15, 2017, WRAP changed its name to Canbiola, Inc. On January 16, 2020 Canbiola, Inc. changed its name to Can B̅ Corp. (the “Company”, “we”, “us”, “our”, “CANB”, “Can B̅” or “Registrant”).
The Company acquired 100% of the membership interests in Pure Health Products, LLC, a New York limited liability company (“PHP” or “Pure Health Products”) effective December 28, 2018. The Company runs it manufacturing operations through PHP and holds and sells several of its brands through PHP as well. The Company’s durable equipment products, such as sam® units with and without CBD infused pads, are marketed and sold through its wholly-owned subsidiaries, Duramed Inc. (incorporated on November 29, 2018) and Duramed MI LLC (fka DuramedNJ, LLC) (incorporated on May 29, 2019) (collectively, “Duramed”). Duramed began operating on or about February 1, 2019. Most of the Company’s consumer products include hemp derived cannabidiol (“CBD”); however, the Company has just recently begun extracting cannabinol (“CBN”) and cannabigerol (“CBG”) for wholesale to third-parties looking to incorporate such compounds into their products through its wholly owned subsidiaries, Botanical Biotech, LLC (incorporated March 10, 2021), TN Botanicals, LLC and CO Botanicals LLC (both incorporated in August 2021). These three subsidiaries have also begun synthesizing Delta-8 and Delta-10 from hemp. Delta-8 and Delta-10 can produce similar, though less potent, effects as delta-9 (commonly referred to as THC); however, the legality of hemp derived Delta-8 and Delta-10 are in a gray area and considered a potential loophole at this point due to the 2018 hemp bill. The Company’s other subsidiaries did not have operations during the year ended December 31, 2022.
The Company is in the business of promoting health and wellness through its development, manufacture and sale of products containing cannabinoids derived from hemp biomass and the licensing of durable medical devises. Can B̅’s products include oils, creams, moisturizers, isolate, gel caps, spa products, and concentrates and lifestyle products. Can B̅ develops its own line of proprietary products as well seeks synergistic value through acquisitions in the hemp industry. Can B̅ aims to be the premier provider of the highest quality hemp derived products on the market through sourcing the best raw material and offering a variety of products we believe will improve people’s lives in a variety of areas.
Note 2 – Going Concern
The
consolidated financial statements have been prepared on a “going concern” basis, which contemplates the realization of
assets and liquidation of liabilities in a normal course of business. As of December 31, 2023, the Company had cash and cash
equivalents of $
After careful consideration and analysis of the economics, supply chain, processing logistics, and management of manpower the Company decided to consolidate operations in its CO operations in Mead and Ft. Morgan. The Company has very limited processing ability via 3rd party vendors to process its owned biomass into isolate.
As a result of the consolidation of the Florida and Tennessee operations into Fort Morgan, Colorado and the subsequent Article 9 auction sale of the primary hemp division assets, the Colorado operation has limited ability to process any materials other than through third party operations.
The consolidated financial statements do not include any adjustments that might be necessary should the Company be unable to continue as a going concern.
Note 3 – Basis of Presentation and Summary of Significant Accounting Policies
Basis of presentation
The accompanying consolidated financial statements are presented in conformity with accounting principles generally accepted in the United States of America (“GAAP”).
On
February 8, 2022,
Principles of Consolidation
The consolidated financial statements contained herein include the accounts of Can B Corp. and its wholly owned subsidiaries. All significant intercompany balances and transactions have been eliminated.
| F-7 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of sales (or revenues) and expenses during the reporting period.
Making estimates requires management to exercise significant judgment. It is at least reasonably possible that estimates made as of the date of the financial statements could change in the near term due to one or more future events. Accordingly, the actual results could differ significantly from those estimates. Significant accounting estimates reflected in the Company’s consolidated financial statements include, but are not limited to, revenue recognition, allowance for doubtful accounts, recognition and measurement of income tax assets, valuation of share-based compensation, and the valuation of net assets acquired.
Asset Acquisitions
When applicable, the Company accounts for the acquisition of a business in accordance with the accounting standards codification (“ASC”) guidance for business combinations, whereby the total purchase consideration transferred is allocated to the assets acquired and liabilities assumed, including amounts attributable to non-controlling interests, when applicable, based on their respective estimated fair values as of the date of acquisition. Goodwill represents the excess of purchase consideration transferred over the estimated fair value of the identifiable net assets acquired in a business combination.
Assigning estimated fair values to the net assets acquired requires the use of significant estimates, judgments, inputs, and assumptions regarding the fair value of the assets acquired and liabilities assumed. Estimated fair values of assets acquired and liabilities assumed are generally based on available historical information, independent valuations or appraisals, future expectations, and assumptions determined to be reasonable but are inherently uncertain with respect to future events, including economic conditions, competition, the useful life of the acquired assets, and other factors. The company may refine the estimated fair values of assets acquired and liabilities assumed, if necessary, over a period not to exceed one year from the date of acquisition by taking into consideration new information that, if known at the date of acquisition, would have affected the estimated fair values ascribed to the assets acquired and liabilities assumed. The judgments made in determining the estimated fair value assigned to assets acquired and liabilities assumed, as well as the estimated useful life and depreciation or amortization method of each asset, can materially impact the net earnings of the periods subsequent to the acquisition through depreciation and amortization, and in certain instances through impairment charges, if the asset becomes impaired in the future. During the measurement period, any purchase price allocation changes that impact the carrying value of goodwill affects any measurement of goodwill impairment taken during the measurement period, if applicable. If necessary, purchase price allocation revisions that occur outside of the measurement period are recorded within cost of sales or selling, general and administrative expense within the Consolidated Statements of Earnings depending on the nature of the adjustment.
| F-8 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
When an acquisition does not meet the definition of a business combination because either: (i) substantially all of the fair value of the gross assets acquired is concentrated in a single identifiable asset, or group of similar identified assets, or (ii) the acquired entity does not have an input and a substantive process that together significantly contribute to the ability to create outputs, the company accounts for the acquisition as an asset acquisition. In an asset acquisition, goodwill is not recognized, but rather, any excess purchase consideration over the fair value of the net assets acquired is allocated on a relative fair value basis to the identifiable net assets as of the acquisition date and any direct acquisition-related transaction costs are capitalized as part of the purchase consideration.
Revenue Recognition
The Company recognizes revenue in accordance with the Financial Accounting Standards Board (“FASB”) ASC 606, Revenue from Contracts with Customers, which requires that five basic steps be followed to recognize revenue: (1) a legally enforceable contract that meets criterial standards as to composition and substance is identified; (2) performance obligations relating to provision of goods or services to the customer are identified; (3) the transaction price, with consideration given to any variable, noncash, or other relevant consideration, is determined; (4) the transaction price is allocated to the performance obligations; and (5) revenue is recognized when control of goods or services is transferred to the customer with consideration given, whether that control happens over time or not. Determination of criteria (3) and (4) are based on our management’s judgments regarding the fixed nature of the selling prices of the products and services delivered and the collectability of those amounts.
Private Label Customers are wholesale distributors of the Company’s product, under their own wholesale private label brand. The products are made to Company specifications and shipped directly to the wholesaler. The pricing is predicated upon a volume discount negotiated at the time of the placement of the orders. Product is produced and labeled in the Washington manufacturing facility and shipped directly to the Private Label customer who re-distributes to their retail and other customers. The products are fully paid when shipped.
Revenue from product sales is recognized when an order has been obtained, the price is fixed and determinable, the product is shipped, title has transferred, and collectability is reasonably assured.
The Company’s Duramed Division provides a sam® Pro 2.0 medical device to patients through a doctor program whereby the physician evaluates the patients’ needs for medical necessity, and if determined that the device use would be beneficial, writes a prescription for the patient who signs a rental form, for a 35-day cycle for the unit, that is submitted to Duramed who bills the appropriate insurance company. The insurance company pays the invoice, or a negotiated amount via arbitration, and that revenue is reported as revenue when invoiced to the insurance carrier. The collected amount is reconciled with the invoice amount on a daily basis.
Service revenue consists of hemp processing services provided by the Company to other hemp related entities. Services revenues are recorded when services are rendered.
Freight billed to customers is included within sales on the consolidated statement of operations. The related freight charged to the Company is included within cost of revenues. Sales tax collected from customers is remitted to governmental authorities on a net basis.
Cost of Revenues
The cost of revenues is the total cost incurred to obtain a sale, the cost of the goods sold, and costs related to the processing of hem for outside parties. The Company’s policy is to recognize it in the same manner as, and in conjunction with, revenue recognition. Cost of revenues primarily consist of the costs directly attributable to revenue recognized and includes expenses related to the production, packaging and labeling of our CBD products and durable medical goods.
| F-9 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Cash, cash equivalents and restricted cash
The Company considers all short-term investments with an original maturity of three months or less when purchased to be cash equivalents.
Accounts receivables, net
Trade receivables arise from granting credit to customers in the normal course of business, are unsecured and are presented net of an allowance for doubtful accounts. The allowance is based on a number of factors, including the length of time the receivable is past due, the Company’s previous loss history, the customer’s current ability to pay, and the general condition of the economy and industry as a whole. Depending on the customer, payment is due between 30 and 60 days after the customer receives an invoice. Certain receivables related to durable medical devices can have collection periods of 18 to 24 months due to the inherent nature of no-fault insurance claims. The Company has taken this into consideration when assessing receivables related to durable medical devices. Other accounts that are more than 45 days past due are individually analyzed for collectability. When all collection efforts have been exhausted, the accounts are written off. Historically, the Company has not suffered significant losses with respect to its trade receivables.
Inventories
Inventories, which consist of purchased components for resale, are valued at the lower of average cost (which approximates the first-in, first-out method) and net realizable value. The Company reduces the carrying value of inventory for those items that are potentially excess, obsolete or slow-moving based on changes in customer demand, technology developments or other economic factors.
Long-lived assets
Property and equipment are recorded at cost and presented net of accumulated depreciation. Major additions and betterments are capitalized while maintenance and repairs, which do not improve or extend the life of the respective assets, are expensed. Property and equipment are depreciated on the straight-line basis over their estimated useful lives.
Definite-lived intangible assets arising from asset acquisitions include intellectual property, patents, trademarks, and certain hemp processing registrations. Definite-lived intangible assets are amortized over the estimated period during which the asset is expected to contribute directly or indirectly to future cash flows.
The Company reviews its long-lived assets for impairment whenever events or circumstances exist that indicate the carrying amount of an asset or asset group may not be recoverable. The recoverability of long-lived assets is measured by a comparison of the carrying amount of the asset or asset group to the future undiscounted cash flows expected to
be generated by that asset group. If the asset or asset group is considered to be impaired, an impairment loss would be recorded to adjust the carrying amounts to the estimated fair value. No such impairment was recorded during the periods covered by this report.
| F-10 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Leases
The Company determines if an arrangement is or contains a lease at contract inception. In arrangements that involve an identified asset, there is also judgment in evaluating if we have the right to direct the use of that asset.
The
Company does not have any finance leases. Operating leases are recorded in our consolidated balance sheets. Right-of-use (“ROU”)
assets and lease liabilities are measured at the lease commencement date based on the present value of the remaining lease payments over
the lease term, determined using the discount rate for the lease at the commencement date. Because the rate implicit in our leases is
not readily determinable, we use our incremental borrowing rate as the discount rate, which approximates the interest rate at which we
could borrow on a collateralized basis with similar terms and payments and in similar economic environments. As of December 31, 2024,
our Hicksville, NY office lease was terminated and we are renting month-to-month until a new lease is signed. The Colorado operations,
presently in two Fort Morgan, Colorado facilities, are being rented on a month to month basis for approximately $
In accordance with accounting requirements, leases with an initial term of 12 months or less are recorded on the balance sheet, with lease expense for these leases recognized on a straight-line basis over the lease term.
Income taxes
Income taxes are accounted for under the asset and liability method pursuant to ASC Topic 740, Income Taxes (ASC 740), whereby deferred tax assets and liabilities are recognized for the expected future consequences attributable to the differences between the financial statement carrying amounts and the tax basis of assets and liabilities. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in the period of the change. Further, deferred tax assets are recognized for the expected realization of available net operating loss and tax credit carryforwards. A valuation allowance is recorded on gross deferred tax assets when it is “more likely than not” that such asset will not be realized. When evaluating the realizability of deferred tax assets, all evidence, both positive and negative, is evaluated. Items considered in this analysis include the ability to carry back losses, the reversal of temporary differences, tax planning strategies, and expectations of future earnings. The Company reviews its deferred tax assets on a quarterly basis to determine if a valuation allowance is required based upon these factors. Changes in the Company’s assessment of the need for a valuation allowance could give rise to a change in such allowance, potentially resulting in additional expense or benefit in the period of change.
The Company’s income tax provision or benefit includes U.S. federal, state and local income taxes and is based on pre-tax income or loss. In determining the annual effective income tax rate, the Company analyzed various factors, including its annual earnings and taxing jurisdictions in which the earnings were generated, the impact of state and local income taxes, and its ability to use tax credits and net operating loss carryforwards.
| F-11 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Under ASC 740, the amount of tax benefit to be recognized is the amount of benefit that is “more likely than not” to be sustained upon examination. The Company analyzes its tax filing positions in all of the U.S. federal, state, local,
and foreign tax jurisdictions where it is required to file income tax returns, as well as for all open tax years in these jurisdictions. If, based on this analysis, the Company determines that uncertainties in tax positions exist, a liability is established in the consolidated financial statements. The Company recognizes accrued interest and penalties related to unrecognized tax positions in the provision for income taxes.
The Company’s income tax returns are subject to examination by federal and state authorities in accordance with prescribed statutes.
Stock-based compensation
The Company accounts for stock-based compensation in accordance with ASC 718, Compensation—Stock Compensation (“ASC 718”), by recognizing compensation expense based upon the estimated fair value of the awards on the date of grant. The Company determines the estimated grant-date fair value of restricted shares using the closing price on the date of the grant and the grant-date fair value of stock options using the Black-Scholes-Merton model. In order to calculate the fair value of the options, certain assumptions are made regarding the components of the model, including risk-free interest rate, volatility, expected dividend yield and expected option life. Changes to the assumptions could cause significant adjustments to the valuation. The Company recognizes compensation costs ratably over the period of service using the straight-line method.
Pursuant to ASC Topic 260, Earnings Per Share, basic net loss per common share is computed by dividing net loss by the weighted average number of common shares outstanding during the reporting periods, including vested but undelivered stock options.
Diluted net loss per share is based on the weighted average number of shares outstanding during the periods plus the effect, if any, of the potential exercise or conversion of securities, such as warrants and restricted stock units that would cause the issuance of additional shares of common stock. In computing the basic and diluted net loss per share applicable to common stockholders during the periods listed in the consolidated statements of operations, the weighted average number of shares are the same for both basic and diluted net loss per share due to the fact that when a net loss exists, dilutive shares are not included in the calculation as the impact is anti-dilutive. An anti-dilutive impact is an increase in earnings per share or a decrease in net loss per share that would result from the conversion, exercise, or issuance of certain contingent securities.
Concentration of business and credit risk
Financial
instruments, which potentially subject the Company to concentrations of credit risk, consist primarily of cash and cash equivalents and
accounts receivable. Cash held by the Company, in financial institutions, may exceed the federally insured limit of $
No
customer accounted for more than
Fair value of financial instruments
Fair value is the price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value measurements for assets and liabilities required or permitted to be recorded at fair value, the Company considers the principal or most advantageous market in which it would transact, and it considers assumptions that market participants would use when pricing the asset or liability.
| F-12 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
ASC Topic 820, Fair Value Measurements and Disclosures provides a fair value hierarchy, which prioritizes the inputs to valuation techniques used to measure fair value into three broad levels. The level in the hierarchy within which the fair value measurement in its entirety falls is based upon the lowest level of input that is significant to the fair value measurement as follows:
| ● | Level 1 — inputs are based upon unadjusted quoted prices for identical assets or liabilities traded in active markets. | |
| ● | Level 2 — inputs are based upon quoted prices for similar assets and liabilities in active markets, quoted prices for identical or similar assets and liabilities in markets that are not active and model-based valuation techniques for which all significant assumptions are observable in the market or can be corroborated by observable market data for substantially the full term of the assets or liabilities. | |
| ● | Level 3 — inputs are generally unobservable and typically reflect management’s estimates of assumptions that market participants would use in pricing the asset or liability. The fair values are therefore determined using model-based techniques that include option pricing models, discounted cash flow models, and similar techniques. |
Assets measured at fair value on a non-recurring basis include goodwill, and tangible and intangible assets. Such assets are reviewed annually for impairment indicators. If a triggering event has occurred, the assets are re-measured when the estimated fair value of the corresponding asset group is less than the carrying value. The fair value measurements, in such instances, are based on significant unobservable inputs (Level 3).
The carrying amounts of the Company’s financial instruments, which include accounts receivables, accounts payable and accrued expenses and debt at floating interest rates, approximate their fair values, principally due to their short-term nature, maturities or nature of interest rates.
Advertising and vendor considerations
Advertising costs are expensed as incurred.
Reclassifications
Certain prior period amounts have been reclassified to conform to the current period presentation.
Segment reporting
The Company operates as a single operating segment. The Chief Executive Officer, who is the chief operating decision maker, manages the Company as a single profit center in order to promote collaboration, provide comprehensive service offerings across the entire customer base, and provide incentives to employees based on the success of the organization as a whole. Although certain information regarding selected products or services is discussed for purposes of promoting an understanding of the Company’s business, the chief operating decision maker manages the Company and allocates resources at the consolidated level.
Recently Adopted Accounting Pronouncements
The Financial Accounting Standards Board (“FASB”) issued the following accounting pronouncement which became effective for the Company in 2021, and which did not have a material impact on its condensed consolidated financial statements:
| F-13 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
In May 2021, the FASB issued ASU No. 2021-04, Issuer’s Accounting for Certain Modifications or Exchanges of Freestanding Equity-Classified Written Call Options (“ASU No. 2021-04”), which provides guidance for a modification or an exchange of a freestanding equity-classified written call option that is not within the scope of another Topic. Under ASU 2021-04, an entity is required to treat a modification of the terms or conditions or an exchange of a freestanding equity-classified written call option, that remains equity classified, as an exchange of the original instrument for a new instrument. ASU 2021-04 also provides guidance on the measurement of the effect of a modification or exchange and requires entities to recognize the effect of any such modification or exchange on the basis of the substance of the transaction.
ASU No. 2021-04 was effective for fiscal years beginning after December 15, 2021, including interim periods within those fiscal years. Entities were required to apply the amendments prospectively to modifications or exchanges that occurred on or after the effective date. ASU No. 2021-04 was effective for the Company on January 1, 2022. The adoption did not materially impact the Company’s financial condition or results as the Company’s treatment of such modifications were already consistent with the guidance in ASU 2021-04.
Recently issued accounting standards
The Company does not believe other recently issued but not yet effective accounting standards, if currently adopted, would have a material effect on the Company’s consolidated balance sheets, statements of changes in equity, statements of operations and statements of cash flows.
Note 4 – Fair Value Measurements
The carrying value and fair value of the Company’s financial instruments are as follows:
Schedule of Carrying Value and Fair Value
| December 31, 2023 | Level 1 | Level 2 | Level 3 | Total | ||||||||||||
| Liabilities | ||||||||||||||||
| Warrant liabilities | $ | $ | $ | $ | ||||||||||||
| As of December 31, 2022 | Level 1 | Level 2 | Level 3 | Total | ||||||||||||
| Liabilities | ||||||||||||||||
| Warrant liabilities | $ | $ | $ | $ | ||||||||||||
The fair value of the warrants outstanding was estimated using the Black-Scholes model. The application of the Black-Scholes model requires the use of a number of inputs and significant assumptions including volatility. The following reflects the inputs and assumptions used:
Schedule of Fair Value Assumptions
| As of | December 31, 2023 | December 31, 2022 | ||||||
| Stock price | $ | $ | ||||||
| Exercise price | $ | $ | ||||||
| Remaining term (in years) | ||||||||
| Volatility | % | % | ||||||
| Risk-free rate | % | % | ||||||
| Expected dividend yield | % | |||||||
The warrant liabilities will be remeasured at each reporting period with changes in fair value recorded in other income (expense), net on the consolidated statements of operations. The change in fair value of the warrant liabilities was as follows:
Schedule of Change in Fair Value of the Warrant Liabilities
| Warrant liabilities | ||||
| Estimated fair value at December 31, 2022 | $ | |||
| Issuance of warrant liabilities | ||||
| Change in fair value | ( | ) | ||
| Estimated fair value at December 31, 2023 | $ | |||
| F-14 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Note 5 – Inventories
Inventories consist of hemp biomass that is received in bulk. The CBD biomass is initially processed by extraction into winterized crude oil. The winterized crude oil is then processed into distillate and then into CBD isolate. These three processes are continuous as raw materials are converted from biomass to isolate in back-to-back operations so work in process is just a matter of hours in the processing cycle from biomass to CBD isolate. The isolate is then sold at wholesale or further processed into isomers. Inventories consistent of the following:
Schedule of Inventories
| December 31, 2023 | December 31, 2022 | |||||||
| Raw materials | $ | $ | ||||||
| Finished goods | ||||||||
| Total | $ | $ | ||||||
| F-15 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Note 6 – Property and Equipment
Property and equipment consist of:
Schedule of Property and Equipment
| December 31, 2023 | December 31, 2022 | |||||||
| Furniture and fixtures | $ | $ | ||||||
| Office equipment | ||||||||
| Manufacturing equipment | ||||||||
| Medical equipment | ||||||||
| Leasehold improvements | ||||||||
| Total | ||||||||
| Accumulated depreciation | ( | ) | ( | ) | ||||
| Net | $ | $ | ||||||
Depreciation
expense related to property and equipment was $
Note 7 –Intangible Assets
Intangible assets consist of:
Schedule of Intangible Assets
| December 31, 2023 | December 31, 2022 | |||||||
| Technology, IP and patents | $ | $ | ||||||
| Total | ||||||||
| Accumulated amortization | ( | ) | ( | ) | ||||
| Intangible assets, net | $ | $ | ||||||
Amortization expense, related to technology, IP, and patents was $12,000 and $26,906 for the years ended December 31, 2023 and 2022, respectively.
Amortization expense for each of the next five years ending and thereafter is estimated to be as follows:
Schedule of Estimated Amortization Expenses
| Years ending December 31, | ||||
| 2024 | $ | |||
| 2025 | ||||
| 2026 | ||||
| 2027 | ||||
| 2028 | ||||
| Thereafter | ||||
| Total | $ | |||
| F-16 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Note 8 – Notes and Loans Payable
Convertible Promissory Notes
In
December 2020, the Company entered into a convertible promissory note (“ASOP Note I”) with Arena Special Opportunities Partners
I, LP (“ASOP”). The original principal amount of the note was $
In
December 2020, the Company entered into a convertible promissory note (“ASOF Note I”) with Arena Special Opportunities Fund,
LP (“ASOF”). The principal balance of the note is $
In
May 2021, the Company entered into a convertible promissory note (“ASOP Note II”) with Arena Special Opportunities Partners
I, LP. The principal balance of the note is $
In
May 2021, the Company entered into a convertible promissory note (“ASOF Note II”) with Arena Special Opportunities Fund,
LP. The principal balance of the note is $
The
maturity dates for the above notes were extended to April 30, 2022 on April 14, 2022 in exchange for the Company’s promise to pay
the holders $
| F-17 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
On
January 1, 2022, the Company entered into a convertible promissory note (“Empire Note”) with Empire Properties, LLC (“Empire”).
The principal balance of the note is $
In
March 2022, the Company entered into a convertible promissory note (“BL Note”) with Blue Lake Partners, LLC (“BL”).
The original principal amount of the note was $
In
March 2022, the Company entered into a convertible promissory note (“MH Note”) with Mast Hill Fund, LP (“MH”).
The original principal amount of the note was $
In
April 2022, the Company entered into a convertible promissory note (“FM Note”) with Fourth Man, LLC (“FM”). The
original principal amount of the note was $
| F-18 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
In
June 2022, the Company entered into a convertible promissory note (“Alumni Note”) with Alumni Capital, LP (“Alumni”).
The original principal amount of the note was $
The
principal balance outstanding at December 31, 2023 was $
In
August 2022, the Company entered into a convertible promissory note (“WN”) with Walleye Opportunities Master Fund Ltd. (“WOMF”).
The original principal amount of the note was $
In
January 2023 the Company entered into a convertible promissory note (“Tysadco Note VI”) with Tysadco Partners, LLC (“Tysadco”).
The original principal amount of the note was $
On
March 2, 2023, the Company completed the sale of a promissory note (the “Note”) in the principal amount of $
The
Note is payable in nine (9) monthly installments of $
| F-19 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
The Note requires the Company to use reasonable commercial efforts to complete an offering which will result in an uplisting of its common stock to a national securities exchange within a reasonable time following the issuance of the Note. The Note contains certain negative covenants, including a prohibition on the incurrence of debt that is senior or pari passu to the indebtedness represented by the Note, the creation of liens on the Company’s assets, the payment of dividends and other distributions on the Company’s common stock, the repurchase of the Company’s common stock, the sale of a significant portion of the Company’s assets and the repayment of indebtedness other than existing indebtedness.
The
Company may elect to pay all or a portion of a monthly installment due under the Note by converting such amount into shares of the Company’s
common stock at a price of $
If the Company receives cash proceeds from any source, including payments from customers or from the issuance of equity or debt, WOMF can require the Company to apply 100% of such proceeds to the repayment of the Note.
If the Company completes a placement of securities, WOMF will have the right to accept such new securities in lieu of the Note and Warrant. For so long as the Note is outstanding, if the Company issues a security or amends the terms of a security issued before the issue date of the Note, and WOMF believes that terms of the new or amended security are more favorable to the holder than the terms provided to WOMF, WOMF may require that such terms become part of WOMF’s transaction documents with the Company.
In
the event of a default under the Note, the Company shall be required to pay WOMF an amount equal to the amount determined by multiplying
the principal amount then outstanding plus default interest by
WOMF has been granted a right of first refusal to participate in future financing transactions conducted by the Company.
As
additional consideration for the purchase of the Note, the Company issued WOMF a warrant (the “Warrant”) to purchase
shares of the Company’s common stock at an exercise price equal to
The Company has entered into a Registration Rights Agreement with WOMF pursuant to which the Company has agreed to file a registration statement with the Securities and Exchange Commission to register the shares of common stock issuable upon the conversion of the Note and the exercise of the Warrant for public resale. The Company filed the registration statement on May 12, 2023 and it was declared effective on May 22, 2023. WOMF has also been granted piggyback registration rights with respect to the shares of common stock issuable upon the conversion of the Note and the exercise of the Warrant. Each of the Note and Warrant grants full ratchet anti-dilution protection to WOMF in the event that the Company issues common stock or rights to purchase common stock at a price less than the conversion or exercise price then in effect.
In
May 2023, the Company issued a promissory note to WOMF in the principal amount of $
| F-20 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Forbearance and Amendment of Outstanding Notes.
Contemporaneous
with the sale of the Note and Warrant to WOMF, ASOP and ASOF (collectively, “Arena”), who hold promissory notes with an unpaid
principal balance of approximately $
The
Forbearance Agreement requires the Company and/or Company’s subsidiaries, Duramed, Inc. and Duramed MI, LLC (together the “Duramed
Subsidiaries”) to remit to Arena on a monthly basis certain accounts receivable collected by the Company and/or the Duramed
Subsidiaries until the total amount collected is $
If
Arena fully exercises warrants to purchase shares of the Company’s common stock that were previously issued to it, and the aggregate
market value of the shares acquired is less than $
In December 2023Arna notified the Company that it intended to conduct an auction of certain of the Company’s assets under Article 9 of the Uniform Commercial Code due to the alleged breaches of the Forbearance Agreement. See Note 14.
As a condition to the closing of the sale of the Note and Warrant to the WOMF, certain terms of certain promissory notes previously issued by the Company were amended, including the following:
| ● | in consideration of an
increase in the aggregate principal amount by $ | |
| ● | in consideration of the
Company’s agreement to provide a product credit for future orders of $ | |
| ● | the maturity date of a
promissory note in the principal amount of $ | |
| ● | in consideration of the
repayment of a total of $ |
| F-21 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
TWS Note
On
August 12, 2021, pursuant to an Equipment Acquisition Agreement, the Company entered into a twelve-month promissory note of $
WOMF October 2023 Note
On
October 27, 2023, the Company completed the sale of a promissory note (the “Initial Note”) in the principal amount of $
| F-22 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
September 30, 2023
WOMF
may elect to convert the principal amount of the Initial Note and default interest, if any, subject to adjustment at a price equal to
WOMF
and/or investors introduced by WOMF may purchase up to an additional $
In
the event of a default under a Note, the Company shall be required to pay the holder of the Note an amount equal to the amount determined
by multiplying the principal amount of the Note then outstanding plus default interest by
WOMF has been granted a right of first refusal to participate in future financing transactions conducted by the Company.
The
Company has entered into a Registration Rights Agreement with WOMF pursuant to which the Company has agreed to file a registration statement
with the Securities and Exchange Commission by December 11, 2023 to register for public resale the shares of common stock issuable upon
the conversion of the Note and a consolidated note issued to WOMF in the principal amount of $
| F-23 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
The
Initial Note contains and the New Notes will contain a provision which provides that the holder will not be converted if the conversion
would result in the holder becoming the beneficial owner of more than
ClearThink Notes
The
Company issued a convertible note in the principal amount of $
Other Loans
On
November 18, 2021, the Company entered into a $
During
the year ended December 31, 2022, the Company entered into various agreements relating to the sales of future receivables for an aggregate
purchase amount of approximately $
On
February 11, 2022, the Company entered into a $
On
August 18, 2022, the Company entered into a $
On
October 14, 2022, the Company entered into a $
On
October 14, 2022, the Company entered into a $
On
November 17, 2022, the Company entered into a $
Note 9 – Stockholders’ Equity
Preferred Stock
| F-24 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Each share of Series C Preferred Stock has preference to payment of dividends, if and when declared by the Company, compared to shares of our common stock. Each Preferred Series C share is convertible into shares of common stock. The shares of Series C Preferred Stock have voting rights as if fully converted. During the year ended December 31, 2022 the Company issued shares of Series C preferred stock.
On
February 8, 2021, the Company’s Board of Directors approved the designation of the Series D Preferred Shares and the number of
shares constituting such series, and the rights, powers, preferences, privileges and restrictions relating to such series. On March 27,
2021, the Company filed an amendment to its articles of incorporation to authorize shares of a new Series D Preferred Stock with
a par value of $ each. All Series D Preferred Shares shall rank senior to all shares of Common Stock of the Company with respect
to liquidation preferences and shall rank pari passu to all current and future series of preferred stock, unless otherwise stated
in the certificate of designation for such preferred stock.
Common Stock
For the year ended December 31, 2022, the Company issued an aggregate of shares of Common Stock under its Offering Statement on Form 1-A (File No. 024-11233) (the “Regulation A Offering”).
In addition, for the year ended December 31, 2023, the Company issued an aggregate of of Common Stock for the acquisition of inventory and equipment, services rendered, legal settlements, accrued payroll, conversion of promissory notes and principal and interest payments
| F-25 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
The Company has an employee share option plan, which is shareholder-approved, permits the grant of share options and shares to its employees. The Company believes that such awards better align the interests of its employees with those of its shareholders. Option awards are generally granted with an exercise price equal to the market price of the Company’s stock at the date of grant. Share awards generally vest over five years.
The fair value of each option award is estimated on the date of grant using a lattice-based option valuation model that uses the assumptions noted in the following table. Because lattice-based option valuation models incorporate ranges of assumptions for inputs, those ranges are disclosed. Expected volatilities are based on implied volatilities from traded options on the Company’s stock, historical volatility of the Company’s stock, and other factors. The expected term of options granted is derived from the output of the option valuation model and represents the period of time that options granted are expected to be outstanding; the range given below results from certain groups of employees exhibiting different behavior. The risk-free rate for periods within the contractual life of the option is based on the U.S. Treasury yield curve in effect at the time of grant.
December 31, 2023 | December 31, 2022 | |||||||
| Per share fair value at grant date | $ | $ | ||||||
| Risk free interest rate | ||||||||
| Expected volatility | % | % | ||||||
| Dividend yield | % | % | ||||||
| Expected life in years | ||||||||
Schedule of Stock Options Activity
| Option Shares | Weighted Average Exercise Price | Weighted Average Remaining Contractual Life (Years) | ||||||||||
| Outstanding, December 31, 2021 | $ | |||||||||||
| Granted | $ | |||||||||||
| Exercised | - | |||||||||||
| Forfeited | - | |||||||||||
| Expired | - | |||||||||||
| Outstanding and exercisable, December 31, 2022 | $ | |||||||||||
| Granted | $ | |||||||||||
| Outstanding and exercisable, December 31, 2023 | $ | |||||||||||
At December 31, 2023 all stock options are intrinsic value.
As of December 31, 2023, there was no unrecognized compensation cost related to nonvested stock-based compensation arrangements granted under the share option plan. The Company recognized$ and $ of stock-based compensation expense during the years ended December 31, 2023 and December 31, 2022, respectively
| F-26 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Note 11 – Income Taxes
The provision for income taxes consisted of the following:
Schedule of Provision For Income Taxes
| December 31, 2023 | December 31, 2022 | |||||||
| State franchise tax | $ | $ | ||||||
The Company’s effective income tax rate differs from the federal statutory rate primarily as a result of certain expenses being deductible for financial reporting purposes that are not deductible for tax purposes, the existence of research and development tax credits, operating loss carryforwards, and adjustments to previously recorded deferred tax assets and liabilities due to the enactment of the Tax Cuts and Jobs Act in 2017.
The difference in the provision for income taxes and the amount computed by applying the statutory federal income tax rates consists of the following:
Schedule of Provisions for (Benefits from) Income Taxes
| December 31, 2023 | December 31, 2022 | |||||||
| Expected income tax benefit | $ | ( | ) | $ | ( | ) | ||
| State franchise tax | ||||||||
| Non-deductible stock-based compensation | ||||||||
| Non-deductible stock-based interest | ||||||||
| Increase in deferred income tax assets valuation allowance | ||||||||
| Provision for income taxes | $ | $ | ||||||
Principal components of the Company’s deferred tax assets as of December 31, 2022 and December 31, 2021 were as follows:
Schedule of Deferred Income Tax Assets
| December 31, 2023 | December 31, 2022 | |||||||
| Net operating loss carryforward | $ | ( | ) | $ | ( | ) | ||
| Valuation allowance | ||||||||
| Net | $ | $ | ||||||
At
December 31, 2023, the Company had net operating loss carryforwards of approximately $
The Company files a federal income tax return and separate income tax returns in various states. For federal and certain states, the 2019 through 2022 tax years remain open for examination by the tax authorities under the normal three-year statute of limitations.
The
Company assesses available positive and negative evidence to estimate whether sufficient future taxable income will be generated to permit
use of the existing deferred tax assets. A significant component of objective negative evidence identified during management’s
evaluation was the cumulative loss incurred over the three-year period ended December 31, 2023. Such objective evidence limits the ability
to consider other subjective evidence, such as our forecasts of future taxable income and tax planning strategies. On the basis of this
evaluation as of December 31, 2023 and 2022, the Company recognized a full valuation allowance against its net deferred tax assets, pursuant
to ASC 740, as of December 31, 2023 and December 31, 2022. Based on the Company’s evaluation, it was determined that
Note 12 – Related Party Transactions
For
the year ended December 31, 2022 the Company paid fees to a service provider that is a relative of a director for professional services
in the amount of $
At
December 31, 2023 and 2022, the Company has amounts due to directors of the Company of $
| F-27 |
Can B̅ Corp. and Subsidiaries
Notes to Consolidated Financial Statements
December 31, 2023 and 2022
Note 13 – Commitments and Contingencies
Employment Agreements
On
December 28, 2020, the Company entered into new three-year Employment Agreements with CEO Marco Alfonsi, CFO Stanley Teeple, and
Pure Health Products LLC Pasquale Ferro. Under these agreements, they are to receive a i) base salary of fifteen thousand dollars
($
Lease Agreements
The Company leases office space in numerous medical facilities offices under month-to-month agreements. The Company determines if a contract contains a lease at inception. ROU assets represent the Company’s right to use an underlying asset for the lease term and lease liabilities represent the obligation to make lease payments arising from the lease. Operating lease ROU assets and liabilities are recognized at commencement date of the lease based on the present value of lease payments over the lease term. The Company uses the incremental borrowing rate to determine the present value of lease payments, as the implicit rate is not readily determinable. The ROU asset also includes any lease payments made. Lease expense for lease payments is recognized on a straight-line basis over the lease term.
At December 31, 2023, the total future minimum lease payments were as follows:
Schedule of Future Maturities of Lease Liabilities
| 2024 | $ | |||
| Total future minimum lease payments | $ | |||
| Less: Interest | ( | ) | ||
| Total present value of lease liabilities | $ |
As
of December 31, 2023, the Company had a weighted average remaining lease term of
Note 14 – Subsequent Events
In
February 2024, the Company’s
In
connection with the assignment of the patents to Nascent, Nascent has agreed to distribute to creditors of a prior owner of the patents
five percent (
The
Company has entered into a consulting agreement with the inventor who assigned the patents to Nascent which provides that the consultant
will be entitled to fifty percent (
In
February 2024, the Company issues options to purchase shares of it commo stock at an exercise price of $
On
February 29, 2024, the Company completed the sale of a promissory note in the principal amount of $
On
March 14, 2024, the previously announced auction of assets of the hemp division of Can B Corp. (the “Company”) under Article
9 of the Uniform Commercial Code was completed. The auction resulted in proceeds of approximately $
On April 7, 2024, Arena filed a complaint in the Court against the Company, it subsidiaries and certain officers of the Company and its subsidiaries alleging tortious interference with the auction and seeking a declaratory judgment that the Company is in breach of the Arena notes and the Forbearance Agreement and that Arena has the right to auction certain equipment held at a Company facility that is not owned by the Company or any of its subsidiaries. The Company believes that Arena’s claims are without merit and intends to vigorously defend Arena’s claims.
| F-28 |
EXHIBIT 31.1
CERTIFICATIONS PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002 CERTIFICATION
I, Marco Alfonsi, certify that:
1. I have reviewed this Annual Report on Form 10-K of Can B Corp. for the year ended December 31, 2023;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation;
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: April 15, 2024 | ||
| By: | /s/ Marco Alfonsi | |
| Name: | Marco Alfonsi | |
| Its: | Chief Executive Officer (Principal Executive Officer) | |
EXHIBIT 31.2
CERTIFICATIONS PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002 CERTIFICATION
I, Stanley Teeple, certify that:
1. I have reviewed this Annual Report on Form 10-K of Can B Corp. for the year ended December 31, 2023;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting.
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: April 15, 2024 | ||
| By: | /s/ Stanley Teeple | |
| Name: | Stanley Teeple | |
| Its: | Chief Financial Officer (Principal Financial Officer) | |
EXHIBIT 32.1
Certification
Pursuant to Section 906 of the Sarbanes-Oxley Act Of 2002
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code), each of the undersigned officers of Can B Corp. (the “Company”), does hereby certify, to such officer’s knowledge, that:
The Annual Report on Form 10-K for the year ended December 31, 2023 (the “Form 10-K”) of the Company fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and the information contained in the Form 10-K fairly presents, in all material respects, the financial condition and results of operations of the Company.
| Dated: April 15, 2024 | /s/ Marco Alfonsi |
| Chief Executive Officer | |
| Dated: April 15, 2024 | /s/ Stanley Teeple |
| Chief Financial Officer |
A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 10.67
EMPLOYMENT AGREEMENT
This Employee Services Agreement (“Agreement”) is entered into as of February 8, 2024 (“Effective Date”) by and between Can B Corp., a Florida corporation (“Company”), and Marco Alfonsi, a resident of New York (“Employee”) and collectively as the Parties (“Parties”). The Parties agree as follows:
I. Services Provided.
Company hereby appoints Employee to serve as its Chief Executive Officer (“CEO”) and Employee hereby accepts such appointment. Employee shall provide those services required of an officer of like title of a company of similar size and industry, under the applicable laws of the States in which the Company operates, the federal securities laws and other state and federal laws and regulations, as applicable. Employee shall report to the Company’s President. Employee understands and agrees that travel may be necessary to accomplish his job responsibilities outlined herein. The principal place of Executive’s employment shall be Company’s principal executive office, unless Employee is otherwise required to travel from time to time on Company business during the Employment term.
II. Nature of Relationship
The Employee is entitled to all the rights and benefits along with the responsibilities and obligations of an employee. The Company will provide office equipment, supplies, and other facilities and services, suitable to Employee’s position and adequate for the performance of his duties. Subject to the exceptions set forth herein, Employee shall devote as required, his time, attention, best efforts, energy, and skill to the business of Company during the term of his employment necessary to effectively and efficiently execute all job responsibilities set forth herein. Employee may devote time and attention to other activities that do not compete with Company or interfere with Employee’s obligations, duties and responsibilities to Company hereunder. For the purposes of this Agreement, the term “compete” shall mean business or professional activities, other than passive investments, for which Employee is compensated by an individual or entity other than Company or a parent, subsidiary, or affiliate of Company. This Agreement shall not be interpreted to prohibit Employee from making passive personal investments or conducting private business affairs if those activities do not interfere or conflict with the services required under this Agreement. hold or during the term of Employee’s employment, Employee shall not directly or indirectly acquire, hold, or retain any interest in any business competing with or similar in nature to the business of Company.
III. Compensation
| A. | Base Salary. As compensation for Employee’s services, Employee shall receive twenty thousand dollars ($20,000.00) per month (“Base Salary”). The Base Salary shall be paid according to the Company’s standard payroll procedures in effect at the time of payment. In any quarter that the full Base Salary cannot be paid, due solely to cash flow considerations as determined by the Company, the difference between actual amount paid and the Base Salary paid (“Difference”) shall be accrued and deferred per the Company policies and may be paid in shares of the Company’s common stock (“Common Stock”) or preferred stock (“Preferred Stock”), at the Company’s sole discretion, based on the average 30-day closing price for the Company’s Common Stock at the end of the period. | |
| B. | Base Salary Increase. At each annual anniversary of the Agreement, the Base Salary may be increased as determined by the Compensation Committee of the Board of Directors or, if no such committee, the Board of Directors, but in no case shall the increase be less than ten percent (10%). | |
| C. | Incentive Bonus. Employee is eligible to receive cash and or stock bonuses (each, an “Incentive Bonus”) as otherwise determined by the Company’s Compensation Committee or the Board of Directors. | |
| D. | Incentive Stock Option Plan. Employee shall receive a stock bonus in accordance with the Company’s Incentive Stock Option Plan (“ISOP”) in an amount of one-hundred thousand dollars ($100,000) per year of the Agreement and valued at fair market value, such issuance shall be issued on the anniversary of each subsequent year of employment. The other terms of such options shall be as approved by the Compensation Committee or board of directors, as applicable, pursuant to an approved Award Notice and Award Agreement. |
| 1 of 11 |
| Initials: _____, _____ |
| F. | Benefits. During the Term (defined below), from the Effective Date through the Initial Term of Employee’s engagement with the Company, including following termination unless terminated for Cause or Employee resigns, and during any renewal term if not terminated during the Initial Term, Employee shall be entitled to participate in any welfare, health and life insurance and pension benefit and incentive programs, including sick pay and vacation time, as may be adopted from time to time by the Company on the same basis as that provided to similarly situated employees or employees of the Company generally. Until the Company has such plans in place the Company shall reimburse the Employee as follows: |
i. To the extent that no Welfare Benefit Plan is in place, reimbursement, up to a maximum amount of $2,500 per month, for the actual cost paid by Employee for a family medical, and dental insurance program, and for reimbursement for the cost of personal life insurance at three (3) times the annual Base Salary. Such policies may be payable to the Employee designee.
ii. Automobile-related allowance of $1,200 per month.
iii. A flat rate home office allowance of $1,200 per month.
| G. | Reimbursement for Business Expenses. During the Term, the Company shall reimburse Employee for all reasonable expenses incurred by Employee in performing Employee’s duties for the Company, on the same basis as similarly situated Employees of the Company generally and in accordance with the Company’s policies as in effect from time to time, provided that the Company consented to the expenses in writing prior to such expenses being incurred. | |
| H. | Nascent Pharma LLC Bonus. During the term of this Agreement, and for the life of the Patents, regardless of employment status, Employee shall receive quarterly distributions equal to two percent (2%) of the total gross revenues received by Can B Corp. from Nascent Pharma LLC. This Section III H. shall survive and remain in force for Sections VI D, E, F, and H. |
IV. Indemnification and Insurance
The Company hereby fully agrees to hold harmless and indemnify Employee pursuant to the Indemnity Agreement attached as Exhibit A to this Agreement.
V. Term of Agreement
This Agreement shall be in effect from the Effective Date hereof and continue for an initial term of three (3) years (“Initial Term”). This Agreement shall be renewed for an additional three (3) year renewal term (“Renewal Term”) unless either party gives notice of its intent to not to renew the Agreement at least thirty (30) days prior to the expiration of the applicable Initial Term. Failure to renew this Agreement upon the expiration of the Initial Term shall not constitute a termination of this Agreement by either party. The Initial Term together with all applicable Renewal Terms is referred to herein as the “Term.”
VI. Employee Termination
| A. | Right to Terminate. The Company may terminate Employee’s employment under this Agreement with or without Cause at any time, and Employee may resign under this Agreement with or without Good Reason at any time, by providing written notice to the other party. As used herein, “Cause” shall mean: (i) the plea of guilty or nolo contendere to, conviction for, or the commission of, a felony offense by Employee that is not in connection with Employee’s duties or services to the Company and which will be expected to have a material adverse impact on the Company; (ii) a material breach by Employee of this Agreement that is not cured within ten (10) days from written notice by the Company; (iii) a knowing and material violation by Employee of any Company policy that is not cured within ten (10) days following notice by the Company, (iv) Employee’s failure to meet performance goals agreed to by the Employee and the Company’s Board of Directors that is not cured within (10) days following notice from the Company, (v) Employee’s disparagement of the Company or its officers or directors, or (vi) Employee’s willful failure to perform or gross negligence in performing Employee’s duties owed to the Company (including as reasonably directed by the Board of Directors), after ten (10) days written notice delivered to Employee by the Board, which notice specifies such failure or negligence and provides Employee an opportunity to cure within such ten (10) day period. As used herein, “Good Reason” shall mean: (i) a diminution in the Employee’s Base Salary of 10% or more; (ii) a material diminution in the Employee’s authority, duties or responsibilities; (iii) a material change in the geographic location at which the Employee must perform services; (iii) any action or inaction that constitutes a material breach by the Company of this Agreement, or (iv) Employee is required to resign as a result of the Company’s breach with a third party. |
| 2 of 11 |
| Initials: _____, _____ |
| B. | Termination for Cause or without Good Reason. Upon Employee’s (i) termination of employment by the Company for Cause prior to the expiration of the Term, or (ii) resignation without Good Reason prior to the expiration of the Term, this Agreement shall terminate without further obligation by the Company, except Employee shall be entitled, if applicable, to all Base Salary previously earned, amounts due under benefit plans and profit sharing plans, and reimbursement of business expenses accrued but unpaid through the date of termination, payable thirty (30) days following such termination, or such sooner time as required by law. | |
| C. | Period to Cure Good Reason. For the Employee to be able to terminate his employment with the Company on account of Good Reason, except for Good Reason in subsection (iv) of its definition, he must provide notice of the occurrence of the event constituting Good Reason and his desire to terminate his employment with the Company on account of such within ninety (90) days following the initial existence of the condition constituting Good Reason, and the Company must have a period of thirty (30) days following receipt of such notice to cure the condition. If the Company does not cure the event constituting Good Reason within such thirty (30) day period, the Employee’s termination date shall be the day immediately following the end of such thirty (30) day period, unless the Company provides for an earlier termination date. | |
| D. | Termination by the Employee with Good Reason or by the Company without Cause. Upon termination of Employee’s employment prior to the expiration of the Initial Term by the Company without Cause or by Employee for Good Reason then: |
i. The Company shall pay Employee a severance payment in the amount of all Base Salary due the employee for the remaining Initial Term of the Agreement, including consideration for each annual Base Salary increase per Section III A. and B. above.
ii. Notwithstanding anything to the contrary contained herein, the Company’s obligation to pay and the Employee’s right to receive any severance pay under this Section or other remuneration due under this Agreement, including the right to exercise its vested options shall be conditioned upon Employee’s execution of the Company’s standard waiver and release agreement substantially in the form contained herewith as Exhibit B (“Release Agreement”). Should Employee fail to execute and return to the Company the Release Agreement within fourteen (14) days from the date of Employee’s termination without Cause, Employee shall forfeit all right to receive severance payments pursuant to this Section or to exercise his vested options.
| E. | Termination upon Death. Employee’s employment hereunder shall terminate upon his death, in which event the Company shall pay to such person as the Employee shall designate in a written notice filed with the Company, or if no such person shall have been designated to his estate, all salary, amounts due under benefit plans and profit-sharing plans, vested shares and reimbursement of business expenses though the date of termination plus of the remainder of his Base Salary for the remaining Initial Term of the Agreement. |
| 3 of 11 |
| Initials: _____, _____ |
| F. | Termination upon Disability. If as a result of a permanent mental or physical disability, Employee shall have been unable to perform his duties hereunder on a full-time basis for three (3) consecutive months and, within thirty (30) days after the Company notifies Employee in writing that it intends to replace him, (which notice can be given at the end of the second month during such three-month period), Employee shall not have returned to the complete performance of his duties on a full time basis, the employer shall be entitled to terminate Employee’s employment. For the purposes of this Agreement, “Disability” shall mean the Employee (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (ii) receiving income replacement benefits for a period of not less than three (3) months under an accident or health plan covering employees of the Company. In addition, Employee shall, upon his Disability, have the right to terminate his employment with the Company. If such employment is terminated (whether by the Company or Employee) as a result of Employee’s Disability, then the Company shall pay to Employee all salary, amounts due under benefit plans and profit-sharing plans, and reimbursement of business expenses, through the date of termination plus the remaining Base Salary for the Initial Term of this Agreement. | |
| G. | Vesting of Stock. On the date of termination for any reason, Employee shall only be entitled to the value of the shares of any class of stock vested on or before the date of termination of employment, if any shares have vested by that date, in accordance with the vesting schedule outlined in the applicable Award Notice and Award Agreement or other documentation between Employee and the Company governing the vesting of such shares. As of the date of termination, all vesting options will lapse with respect to all of Employee’s then-unvested shares of any class of stock. Notwithstanding anything to the contrary contained herein, should the Employee be terminated for Cause, then all options granted Employee, whether vested or unvested, shall be forfeited by Employee and shall terminate. | |
| H. | Termination by acquisition or merger. In the event of a merger or acquisition involving the Company where this Agreement is terminated, the Company shall arrange to pay Employee according to Section VII(D) of this Agreement plus 6-months Base Salary. | |
| I. | Return of Materials. Upon (a) termination of this Agreement for any reason, or (b) the Company’s request at any time during the Term, the Employee agrees to (i) provide or return to the Company any and all Company property, including but not limited to any electronic equipment, keys, key cards, access cards, identification cards, security devices, employer credit cards, network access devices, computers, cell phones, smartphones, equipment, files, e-mail messages, thumb drives or other removable information storage devices, and data and all Company documents and materials belonging to the Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information or work product, that are in the possession or control of Employee, whether they were provided to Employee by the Company or any of its business associates or created by Employee in connection with his employment with the Company; (ii) delete or destroy all copies of any such documents and materials not returned to the Company that remain in Employee’s possession or control, including those stored on any non-Company devices, networks, storage locations, and media in Employee’s possession or control, and provide written confirmation of such deletion or destruction to the Company; and (iii) not access or use or permit or assist others in accessing or using any facilities or information technology resources belonging to the Company, such as, without limitation, Team Drive/Google Drive or Dropbox, in any manner after such event. |
VII. Proprietary Rights
| A. | Intellectual Property Ownership. The parties hereto agree that nothing contained in this Agreement shall grant Employee any right or title in or to any writing, works of authorship, technology, invention, discovery, technique, idea, concept, research, proposal, material, improvement, device, design, apparatus, practice, process, method, product, or other work product of any nature whatsoever, whether or not patentable or copyrightable (“Intellectual Property”) owned or licensed by the Company, and the Company shall remain the sole and exclusive owner or licensee, as applicable, of all such Intellectual Property. |
| 4 of 11 |
| Initials: _____, _____ |
| B. | Employee Inventions. The Employee shall promptly disclose in writing to the Company as set forth below complete information concerning each and every work of Intellectual Property made, developed, perfected, devised, conceived, produced, created or first reduced to practice by the Employee individually or jointly with others, during the Term during working hours with the Company or using the Company’s property, facilities or resources or which relate either directly or indirectly to the services or products of the Company developed or being developed by the Company which are known to the Employee (“Employee Inventions”). The Employee acknowledges and agrees that any and all of said Employee Inventions are the property of the Company and hereby assigns and agrees to assign to the Company any and all of his right, title and interest in and to any and all of such Employee Inventions. The Employee shall execute any documents requested by the Company (which shall be prepared at the Company’s expense), including but not limited to patent and copyright applications and registrations, and shall perform any and all further acts deemed necessary or desirable by the Company in order to confirm, exploit, or enforce the rights herein granted and assigned by the Employee to the Company. The provisions of this Article VIII shall not apply to any Employee Invention meeting each of the following conditions: (i) such Employee Invention was developed entirely on the Employee’s own time, (ii) such Employee Invention was made without the use of any Company equipment, supplies, facility or confidential information, (iii) such Employee Invention does not relate to any service or product of the Company in place or planned or to any research or development efforts of the Company during the Term which are known or should be known to the Employee, and (iv) such Employee Invention does not result from any work or service performed by the Employee on behalf of or for the Company. The Employee shall promptly disclose all Employee Inventions to the Board of Directors and perform all actions reasonably requested by the Board of Directors to establish and confirm ownership thereof by the Company. | |
| C. | Work Made for Hire, Assignment. Employee acknowledges that, by reason of being employed by the Company, to the extent permitted by law, all Employee Inventions consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. section 101 and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, Employee hereby irrevocably assigns to the Company, for no additional consideration, Employee’s entire right, title, and interest in and to all Employee Inventions and Intellection Property rights therein, including the right to sure, counterclaim, and recover for all past, present, and future infringement, misappropriate, or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title, or interest in any Employee Inventions or intellection property rights therein so as to be less in any respect than Company would have had in the absence of this Agreement. | |
| D. | Further Assurances; Power of Attorney. During and after his employment, Employee agrees to reasonably cooperate with the Company to (a) apply for, obtain, perfect, and transfer to Company the Employee Inventions as well as any and all intellectual property rights in the Employee Inventions in any jurisdiction in the world; and (b) maintain, protect, and enforce the same, including, without limitation, giving testimony and executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by Company. Employee hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on Employee’s behalf in his name and to do all other lawfully permitted acts to transfer the Employee Inventions to the Company and further the transfer, prosecution, issuance, and maintenance of all intellection property rights therein, to the full extent permitted by law, if Employee does not promptly cooperate with Company’s request (without limiting the rights Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by Employee’s subsequent incapacity. |
| 5 of 11 |
| Initials: _____, _____ |
VIII. Employee Representations and Warranties. Employee hereby represents and warrants as follows:
| A. | As of the Effective Date, that Employee (i) has the necessary power and authority and the legal right to enter into this Agreement and perform Employee’s obligations hereunder, and (ii) has taken all necessary action on Employee’s part required to authorize the execution and delivery of this Agreement and the performance of Employee’s obligations hereunder. This Agreement has been duly executed and delivered on behalf of Employee, and constitutes a legal, valid, binding obligation of Employee and is enforceable against him in accordance with its terms subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity whether enforceability is considered a proceeding at law or equity. | |
| B. | Employee represents and warrants that all services rendered in accordance with this Agreement shall meet the standards and quality expected by Company, as set forth in writing in the Company’s policies, so as to enhance the associated goodwill of the Company. | |
| C. | Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (i) violate any applicable law, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Employee is subject, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Employee is a party or by which it is bound or to which any of his assets are subject. | |
| D. | Employee shall comply with all applicable laws, ordinances, rules, and regulations of the states and cities in which it is operating, including but not limited to, local fire codes, zoning regulations, and occupancy codes. Employee shall promptly provide to the Company copies of all communications to or from the any governmental entity that relate to noncompliance, or alleged noncompliance, with any laws or other government requirements. | |
| E. | Employee acknowledges and agrees that any and all securities issued pursuant to this Agreement (“Securities”) are characterized as “restricted securities” under applicable U.S. federal and state securities laws, including Rule 144 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), and that pursuant to these laws, Employee must hold the Securities indefinitely unless subsequently registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Neither the Company nor any other person is under any obligation to register the Securities under the Securities Act or otherwise. The Employee understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities. It is further understood that the stock certificates representing the Securities may bear one or more legends restricting the transfer of the Securities or as otherwise required by applicable law. Employee is acquiring the Securities for Employee’s own account for investment only and not with a view towards the public sale or distribution thereof and not with a view to or for sale in connection with any distribution thereof. Employee (i) understands that its investment in Securities involves a high degree of risk, (ii) is experienced in making investments of the kind described in this Agreement, (iii) is able to afford the entire loss of its investment in the Securities, and (v) has no need for liquidity in its investment in Securities. Employee has received and reviewed the Company’s governing documents including, but not limited to, its Articles of Incorporation, Bylaws and Shareholder Agreements, and hereby agrees to be bound thereto and abide by the provisions thereof. Employee has been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities which have been requested by the Employee. Employee has been afforded the opportunity to ask questions of the Company and has received complete and satisfactory answers to any such inquiries. If desired, Employee has consulted its own advisors with respect to its proposed purchase of the Securities. Except as set forth herein, no representations or warranties have been made to Employee by the Company, or any officer, partner, agent, representative, employee or affiliate thereof and, in entering into this transaction, Employee is not relying upon any information, other than that contained herein. Employee did not learn of the Securities by way of general solicitation and was not solicited by any person or entity without a pre-existing relationship with Employee. |
| F. | The representations of this Article shall survive termination of this Agreement. |
| 6 of 11 |
| Initials: _____, _____ |
IX. Sole Agreement
This Agreement supersedes all prior or contemporaneous written or oral understandings or agreements, and may not be added to, modified, or waived, in whole or in part, except by a writing signed by the party against whom such addition, modification or waiver is sought to be asserted. Upon execution of this Agreement, Employee’s previous employment agreement with the Company is terminated and of no further force or effect.
X. Assignment
This Agreement and all of the provisions hereof shall be binding upon and insure to the benefit of the parties hereto and their respective successors and permitted assigns and, except as otherwise expressly provided herein, neither this Agreement, nor any of the rights, interests or obligations hereunder shall be assigned by either of the parties hereto without the prior written consent of the other party.
XI. Notices
All notices or other communications required or permitted hereunder shall be in writing shall be deemed duly given (i) if by personal delivery, when so delivered, (ii) if mailed, three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid and addressed to the intended recipient, (iii) if sent through an overnight delivery service in circumstances to which such service guarantees next day delivery, the following day, or (iv) when sent by facsimile with telephonic confirmation or electronic mail with confirmation of transmission by the transmitting equipment, the same day, in each case to the addresses, facsimile numbers, or electronic mail addresses designated in writing by each party hereto to the other party. Any party may change the address, facsimile number, or electronic mail address to which notices and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth.
XII. Survival of Obligations
Notwithstanding the expiration of termination of this Agreement, neither party hereto shall be released hereunder from any liability or obligation to the other which has already accrued as of the time of such expiration or termination or which thereafter might accrue in respect of any act or omission of such party prior to such expiration or termination.
XIII. Severability
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. In the event any provision or term hereof is deemed to have exceeded applicable legal authority or shall be in conflict with applicable legal limitations, such provision shall be reformed and rewritten as necessary to achieve consistency and compliance with such applicable law.
| 7 of 11 |
| Initials: _____, _____ |
XIV. Governing Laws
This Agreement will be construed in accordance with the laws of the state of New York, without resort to conflict of law principles.
XV. Attorneys’ Fees
If either party brings a claim or lawsuit against the other party to this Agreement to interpret or enforce any of the terms of this Agreement, the prevailing party shall, in addition to all other damages, be entitled to reasonable attorneys’ fees and costs, costs of witnesses, and costs of investigation from the non-prevailing party.
XVI. Waiver
Either party’s failure to enforce any right resulting from a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach by the other party.
XVII. Force Majeure
If and to the extent that any party may be precluded by acts of God, authority of law, war, acts of terrorists, strikes, lockouts, casualties, pandemics, viruses or other causes beyond its reasonable control from performance hereunder, such performance (except for payment of amounts due hereunder) shall be excused to the extent that it is necessitated by such causes beginning on the date in which written notice of a party’s inability to perform is received by the other party at the respective addresses provided below. Such notice must be given at least thirty (30) days in advance of the scheduled performance date. Any delay in performance in excess of thirty (30) days beyond the scheduled performance date shall be considered an irreparable delay and the party whose performance is not impaired shall have the right to cancel performance.
XVIII. Further Assurances
The parties hereby agree to execute and deliver such further and other documents and perform or cause to be performed such further acts and things as may be necessary or desirable to give full effect to this Agreement.
XIX. Interpretation
The division of this Agreement into articles and sections and the insertion of headings are for convenience of reference only and shall not affect the interpretation or construction of the Agreement or any provision hereof. Words importing the singular number only shall include the plural, and vice versa, words importing the masculine gender shall include the feminine gender and neuter gender, and vice versa, and words importing persons shall include a natural person, firm, trust, partnership, association, corporation, government board, agency or instrumentality.
XX. Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. The parties hereto confirm that any electronic copy of another party’s executed counterpart of this Agreement (or such party’s signature page thereof) shall be deemed to be an executed original thereof.
| 8 of 11 |
| Initials: _____, _____ |
XXI. Arbitration; Equitable Remedies
To the fullest extent allowed by law, any controversy, claim or dispute between Employee and the Company (and/or any of its owners, directors, officers, employees, affiliates, or agents) relating to or arising out of Employee’s employment or the cessation of that employment will be submitted to final and binding arbitration in the County of Nassau, State of New York, for determination in accordance with the American Arbitration Association’s (“AAA”) National Rules for the Resolution of Employment Disputes, as the exclusive remedy for such controversy, claim or dispute. In any such arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall have the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal discovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be available in court. The parties shall share the filing fees required for the arbitration, provided that Employee shall not be required to pay an amount in excess of the filing fees required by a federal or state court with jurisdiction. The Company shall pay the arbitrator’s fees and any AAA administrative expenses. The award of the arbitrator shall be final and binding upon the parties and may be entered as a judgment in any New York court of competent jurisdiction and the parties hereby consent to the exclusive jurisdiction of the courts of New York. Possible disputes covered by the above include (but are not limited to) unpaid wages, breach of contract, torts, violation of public policy, discrimination, harassment, or any other employment-related claims under laws including but not limited to, Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Age Discrimination in Employment Act, and any other statutes or laws relating to an employee’s relationship with his/her employer, regardless of whether such dispute is initiated by the employee or the company. Thus, this bilateral arbitration agreement applies to any and all claims that the Company may have against an employee, including but not limited to, claims for misappropriation of company property, disclosure of proprietary information or trade secrets, interference with contract, libel, gross negligence, or any other claim for alleged wrongful conduct or breach of the duty of loyalty by an employee. However, notwithstanding anything to the contrary contained herein, in addition to any other remedies available to it at law or in equity, the Company and Employee shall have their respective rights to seek and obtain injunctive relief (without the requirement of posting a bond or other form of security) with respect to any controversy, claim or dispute to the extent permitted by law. Claims for workers’ compensation benefits and unemployment insurance (or any other claims where mandatory arbitration is prohibited by law) are not covered by this arbitration agreement, and such claims may be presented by either Employee or the Company to the appropriate court or government agency. BY AGREEING TO THIS BINDING ARBITRATION PROVISION, BOTH EMPLOYEE AND THE COMPANY GIVE UP ALL RIGHTS TO TRIAL BY JURY. This arbitration agreement is to be construed as broadly as is permissible under applicable law.
XXII. Confidentiality
| A. | Obligation to Keep Confidential. Employee shall hold in strict confidence any and all Confidential Information he received or may receive regarding the Company, its business plan, operations, Intellectual Property, and other trade secrets, and may not disclose such information to any person except as provided herein. The provisions of this Article XXIII shall survive termination of this Agreement. | |
| B. | Definition. For purposes of this is Agreement, “Confidential Information” includes, but is not limited to, all information not generally known to the general public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, operations, services, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, pricing information, credit information, payroll information, personnel information, supplier lists, vendor internal controls, customer information, manufacturing processes or its businesses or any existing or prospective customer, supplier, investor or other associated third party, or of any other person or entity that has entrusted information to Company in confidence. Employee understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. Employee understands and agrees that Confidential Information includes information developed by him in the course of his employment by Company as if Company furnished the same Confidential Information to Employee in the first instance. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to Employee; provided that, such disclosure is through 110 direct or indirect fault of Employee or person(s) acting on Employee’s behalf. |
| 9 of 11 |
| Initials: _____, _____ |
| C. | Company Creation and Use of Confidential Information. Employee understands and acknowledges that Company has invested, and continues to invest, substantial time, money, and specialized knowledge into developing its resources, creating a customer base, generating customer and potential customer lists, training its employees, and improving its offerings in the field of cannabis cultivation, manufacturing, distribution and sale. Employee understands and acknowledges that as a result these efforts, Company has created, and continues to use and create Confidential Information. This Confidential Information provides Company with a competitive advantage over others in the marketplace. | |
| D. | Disclosure and Use Restrictions. The Employee agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever (including other employees of Company) not having a need to know and authority to know and use the Confidential Information in connection with the business of Company and, in any event, not to anyone outside of the direct employ of Company except as required in the performance of Employee’s authorized employment duties to or with the prior consent of other members of the Board of Directors acting on behalf of Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent); and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media, or resources containing any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of Company, except as required in the performance of Employee’s authorized employment duties to Company or with the prior consent of members of the Board of Directors acting on behalf of Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent). Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Employee shall promptly provide written notice of any such order to the Board of Directors. |
XXIII. Non-Disparagement
No party will disparage or otherwise publish or communicate derogatory statements or opinions about any other party or their respective affiliates, practices, businesses, personnel, to any person or entity, be it orally, in writing, or otherwise. For purposes of this Agreement, “derogatory” means a statement that detracts from one’s character, standing, or reputation. The provisions of this Section shall survive termination of this Agreement.
XXIV. No Solicitation
While Employee is an employee of the Company, and for a period of one (1) year after termination, Employee shall not, directly or indirectly, solicit, hire, recruit, attempt to hire or recruit, or induce the breach or termination of employment of any employee, contractor, or service provider of the Company, Furthermore, for a period of one (1) year immediately following the termination of this Agreement for any reason, whether voluntary or involuntary, Employee shall, directly or indirectly, solicit any of the Company’s customers or divert or attempt to divert from the Company any business the Company had enjoyed or solicited from its customers or potential customers prior to termination of Employee’s employment. This provision will survive termination of this Agreement.
| 10 of 11 |
| Initials: _____, _____ |
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their duly authorized officers, as of the date first written above and replaces any and all prior agreement whether in writing or orally.
| CAN B CORP. | |
| /s/ Stanley L. Teeple | |
| Stanley L. Teeple, CFO | |
| EMPLOYEE | |
| /s/ Marco Alfonsi | |
| Marco Alfonsi |
| 11 of 11 |
| Initials: _____, _____ |
EXHIBIT A
INDEMNITY AGREEMENT
This Indemnity Agreement (“Agreement”) is made and entered into this 8th day of February 2024, by and between Can B Corp., a Florida corporation (the “Company”), and the undersigned employee (“Employee”).
RECITALS
WHEREAS, Employee performs a valuable service to the Company in his capacity as the Company’s, CEO and Member of the Board of Directors.
WHEREAS, the Company has adopted Bylaws (the “Bylaws”) providing for the indemnification of the directors, officers, Employees and other agents, including persons serving at the request of the Company in such capacities with other corporations or enterprises; and
WHEREAS, in order to induce Employee to continue to serve the Company, the Company has determined and agreed to enter into this Agreement with Employee.
NOW, THEREFORE, in consideration of Employee’s continued service after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. Indemnity of Employee. The Company hereby agrees to hold harmless and indemnify Employee to the fullest extent authorized or permitted by the provisions of the Bylaws and applicable law against any and all expenses (including attorneys’ fees), witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that Employee becomes legally obligated to pay because of any claim or claims made against or by him in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or investigative (including an action by or in the right of the Company) to which Employee is, was or at any time becomes a party, or is threatened to be made a party, by reason of the fact that Employee is, was or at any time becomes a director, officer, Employee or other agent of Company, or is or was serving or at any time serves at the request of the Company as a director, officer, Employee or other agent of another corporation, partnership, joint venture, trust, Employee benefit plan or other enterprise.
2. Limitations on Indemnity. No indemnity shall be paid by the Company:
(a) on account of any claim against Employee solely for an accounting of profits made from the purchase or sale by Employee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Employee’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
| 1 of 5 |
| Initials: _____, _____ |
(c) on account of Employee’s conduct that is established by a final judgment as constituting a breach of Employee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Employee was not legally entitled;
(d) for which payment is actually made to Employee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Company and Employee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Employee, or any proceeding by Employee against the Company or its directors, officers, Employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the board of directors of the Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the NYCRR, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
3. Continuation of Indemnity. All agreements and obligations of the Company contained herein shall continue during the period Employee is a director, officer, Employee or other agent of the Company (or is or was serving at the request of the Company as a director, officer, Employee or other agent of another corporation, partnership, joint venture, trust, Employee benefit plan or other enterprise) and shall continue thereafter so long as Employee shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or investigative, by reason of the fact that Employee was serving in the capacity referred to herein.
4. Partial Indemnification. Employee shall be entitled under this Agreement to indemnification by the Company for a portion of the expenses (including attorneys’ fees), witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that Employee becomes legally obligated to pay in connection with any action, suit or proceeding referred to in Section 1 hereof even if not entitled hereunder to indemnification for the total amount thereof, and the Company shall indemnify Employee for the portion thereof to which Employee is entitled.
5. Notification and Defense of Claim. Not later than thirty (30) days after receipt by Employee of notice of the commencement of any action, suit or proceeding, Employee will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof; but the omission so to notify the Company will not relieve it from any liability which it may have to Employee otherwise than under this Agreement. With respect to any such action, suit or proceeding as to which Employee notifies the Company of the commencement thereof:
(a) the Company will be entitled to participate therein at its own expense;
(b) except as otherwise provided below, the Company may, at its option and jointly with any other indemnifying party similarly notified and electing to assume such defense, assume the defense thereof, with counsel reasonably satisfactory to Employee. After notice from the Company to Employee of its election to assume the defense thereof, the Company will not be liable to Employee under this Agreement for any legal or other expenses subsequently incurred by Employee in connection with the defense thereof except for reasonable costs of investigation or otherwise as provided below. Employee shall have the right to employ separate counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Employee unless (i) the employment of counsel by Employee has been authorized by the Company, (ii) Employee shall have reasonably concluded, and so notified the Company, that there is an actual conflict of interest between the Company and Employee in the conduct of the defense of such action or (iii) the Company shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of Employee’s separate counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Company or as to which Employee shall have made the conclusion provided for in clause (ii) above; and
| 2 of 5 |
| Initials: _____, _____ |
(c) the Company shall not be liable to indemnify Employee under this Agreement for any amounts paid in settlement of any action or claim affected without its written consent, which shall not be unreasonably withheld. The Company shall be permitted to settle any action except that it shall not settle any action or claim in any manner which would impose any penalty or limitation on Employee without Employee’s written consent, which may be given or withheld in Employee’s sole discretion.
6. Expenses. The Company shall advance, prior to the final disposition of any proceeding, promptly following request therefore, all expenses incurred by Employee in connection with such proceeding upon receipt of an undertaking by or on behalf of Employee to repay said amounts if it shall be determined ultimately that Employee is not entitled to be indemnified under the provisions of this Agreement, the Bylaws, applicable law or otherwise.
7. Enforcement. Any right to indemnification or advances granted by this Agreement to Employee shall be enforceable by or on behalf of Employee in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefore. Employee, in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting his claim. It shall be a defense to any action for which a claim for indemnification is made under Section 1 hereof (other than an action brought to enforce a claim for expenses pursuant to Section 6 hereof, provided that the required undertaking has been tendered to the Company) that Employee is not entitled to indemnification because of the limitations set forth in Section 2 hereof. Neither the failure of the Company (including its board of directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Employee is proper in the circumstances, nor an actual determination by the Company (including its board of directors or its stockholders) that such indemnification is improper shall be a defense to the action or create a presumption that Employee is not entitled to indemnification under this Agreement or otherwise.
8. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Employee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights.
9. Non-Exclusivity of Rights. The rights conferred on Employee by this Agreement shall not be exclusive of any other right which Employee may have or hereafter acquire under any statute, provision of the Company’s Articles of Incorporation or Bylaws, agreement, vote of stockholders or directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding office.
| 3 of 5 |
| Initials: _____, _____ |
10. Survival of Rights.
(a) The rights conferred on Employee by this Agreement shall continue after Employee has ceased to be a director, officer, Employee or other agent of the Company or to serve at the request of the Company as a director, officer, Employee or other agent of another corporation, partnership, joint venture, trust, Employee benefit plan or other enterprise and shall inure to the benefit of Employee’s heirs, executors and administrators.
(b) The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
11. Severability. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. Furthermore, if this Agreement shall be invalidated in its entirety on any ground, then the Company shall nevertheless indemnify Employee to the fullest extent provided by the Bylaws, the NYCRR or any other applicable law.
12. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of New York.
13. Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.
14. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence the existence of this Agreement.
15. Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof.
16. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) upon delivery if delivered by hand to the party to whom such communication was directed or (ii) upon the third business day after the date on which such communication was mailed if mailed by certified or registered mail with postage prepaid to the parties address of record, or to such other address as may have been furnished to Employee by the Company.
[Signature Page Follows]
| 4 of 5 |
| Initials: _____, _____ |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written.
| CAN B CORP. | ||
| By: | Stanley L. Teeple, CFO | |
| EMPLOYEE | ||
| Marco Alfonsi | ||
| 5 of 5 |
| Initials: _____, _____ |
EXHIBIT A
RELEASE AGREEMENT
This Release Agreement (“Agreement”) is made effective in accordance with Section 4 below, by and between CAN B CORP. (“CANB” or the “Company”) and Marco Alfonsi (the “Employee”).
1. Employment Agreement. Employee understands and agrees that this Agreement is entered into in consideration for certain severance benefits and other promises made by the Company pursuant to the Employment Agreement that Employee executed with the Company (the “Employment Agreement”), and that Employee is not entitled to receive any severance benefits unless and until this Agreement has become effective and irrevocable pursuant to Section 4, below.
2. Release of Claims and Rights. Employee, on behalf of himself and all of his heirs, family members, executors, accountants, administrators, attorneys, agents, assigns, successors and representatives, fully and forever releases, acquits and discharges the Company and all of its affiliates, successors, predecessors, assigns, parents, subsidiaries, divisions (whether incorporated or unincorporated), and all of its and their past and present owners, directors, officers, trustees, employees and agents (in their individual and representative capacities) (collectively, the “Released Parties”) from and for all manner of claims, actions, suits, charges, grievances and/or causes of action, in law or in equity, existing by reason of and/or based upon any fact or set of facts, known or unknown, existing from the beginning of time through the date Employee signs this Agreement, whether known or unknown, suspected or unsuspected. For illustration purposes, the released claims include, but are not limited to, all claims and actions for or related to breach of implied or express contract; promissory estoppel; conversion; invasion of privacy; intentional infliction of emotional distress; negligence; fraud; defamation; wrongful discharge; discrimination; harassment; public policy violation; retaliation; any other claim or cause of action Seaman may have under the Age Discrimination in Employment Act (“ADEA”), the Older Workers Benefit Protection Act (“OWBPA”), Title VII of the Civil Rights Act, the Family and Medical Leave Act, the Genetic Information Nondiscrimination Act, the Americans with Disabilities Act, the Equal Pay Act, the Employee Retirement Income Security Act, the Civil Rights Act of 1991, Section 1981 of U.S.C. Title 42, the Worker Adjustment and Retraining Notification Act, the Whistleblower Protection Act, the California Labor Code, the California Fair Employment and Housing Act (as amended), and any other federal, state, or local statute or law; and any claim or recovery for any type of damages, compensation, bonus, attorneys’ fees, costs, or other relief that is or may be available to Employee. Employee acknowledges and agrees that the release contained in this Section 2 is intended to and shall be construed broadly to release any and all claims which Employee may have against the Released Parties, including, but not limited to, relating to and/or arising out of Employee’s employment and/or the cessation of his employment with any of the Released Parties and/or otherwise. To the fullest extent permitted by law, Employee will not take any action that is contrary to the promises he has made in this Agreement.
3. Covenant Not to Sue; Exclusions.
(a) To the fullest extent permitted by law, Employee agrees not to file or initiate a lawsuit in any court or initiate an arbitration proceeding asserting any of the claims released pursuant to this Agreement. Employee further agrees that Employee will not permit himself to be a member of any class action and/or collective action in any court or in any arbitration proceeding seeking relief based on any claims released pursuant to this Agreement. Further, while nothing in this Agreement precludes Employee from filing a charge with a governmental or administrative agency or participating in any investigation, hearing, or proceeding of such agency, Employee agrees that (except as to possible whistleblower awards from the Securities and Exchange Commission), he will not be entitled to any personal relief or money damages arising out of such claims, whether pursued by him or any governmental agency, other person or group.
(b) Notwithstanding the foregoing, by signing this Agreement, Employee is not giving up: (i) any rights to vested benefits, such as pension or retirement benefits, the rights to which are governed by the terms of the applicable plan documents and award agreements; (ii) claims or rights that cannot be waived by operation of law, such as claims for unemployment compensation or workers’ compensation benefits; (iii) claims to enforce this Agreement; or (iv) any monetary award offered by the Securities and Exchange Commission pursuant to Section 21F of the Securities Exchange Act of 1934.
4. ADEA Notice. Employee acknowledges that he is waiving and releasing any claims he may have under the ADEA, the OWBPA and otherwise, and that this waiver and release is knowing and voluntary. Employee is advised to consult with an attorney who is not affiliated with any of the Released Parties before signing this Agreement. Employee has twenty-one (21) days from the date he receives this Agreement to consider this Agreement. Employee may knowingly and voluntarily waive all or part of this 21-day period by signing and returning this Agreement to the Company, per the notice provisions of the Employment Agreement, prior to the expiration of the 21-day period. In the event that this Agreement is signed and delivered, Employee has a period of seven (7) days from the signature date to revoke this Agreement. Any revocation shall be made in writing by Employee and delivered to the Company, per the notice provisions of the Employment Agreement, within the 7-day revocation period. This Agreement will become effective and enforceable only after the revocation period has expired, without any revocation having been communicated, and the day following the expiration of the revocation period will be the “Effective Date” of this Agreement.
5. Unknown Claims. It is the intent of the parties that this Agreement shall be effective as a full and final accord and satisfaction and release of all released claims, whether known or unknown, as set forth above. Employee expressly waives and releases any right or benefit which he may have under Section 1542 to the fullest extent that he may waive all such rights and benefits pertaining to the matters released in this Agreement. It is the intent of the parties, through this Agreement and with the advice of counsel, to fully, finally and forever settle and release all claims Employee may have against the Released Parties, whether known or unknown.
6. Confidentiality of Agreement. Except as may be required by law, Employee will not in any manner disclose or communicate the existence of or any part of this Agreement to any other person except his spouse, his accountant or financial advisor to the limited extent needed for that person to prepare Employee’s tax returns, and his attorney. If Employee is required by law to disclose any of the terms of this Agreement, he must immediately provide written notice of that fact to the Company, enclose a copy of the subpoena and any other documents describing the legal obligation, and cooperate with the Company in objecting to such request and/or seeking confidentiality protections.
7. Non-Admission of Liability. The parties wish to resolve all disputes amicably and without additional costs and expenses. Nothing in this Agreement shall be construed as an admission of liability by any party or any Released Parties.
8. Adequacy of Consideration. Employee acknowledges that the Company’s promises set forth throughout this Agreement and the severance pursuant to the Employment Agreement would not be provided unless Employee signed this Agreement and are each separate and adequate consideration for this Agreement, including Employee’s release of claims.
9. Non-Assistance. To the fullest extent permitted by law, Employee will not cooperate with, or assist in, any claim, charge, lawsuit, investigation or arbitration against any of the Released Parties, unless required to do so by a lawfully issued subpoena, by court order or as expressly provided by regulation or statute. If Employee is served with a subpoena or is required by court order or otherwise to testify or produce documents in any type of proceeding involving any of the Released Parties, he must immediately advise the Company of same and cooperate with the Company in objecting to such request and/or seeking confidentiality protections.
10. Binding Agreement; Assignment. Except as otherwise provided herein, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors, permitted assigns and transferees, personal representatives, heirs and estates, as the case may be; provided, however, that Employee’s rights and obligations under this Agreement may not be assigned without the prior written consent of the Company.
11. Choice of Law; Attorneys’ Fees; Arbitration. This Agreement and the rights and obligations of the parties hereunder will be governed by, and construed and enforced in accordance with, the laws of the State of New York, excluding any such laws that direct the application of the laws of any other jurisdiction. The Released Parties are intended third party beneficiaries of Employee’s obligations under this Agreement. In any action in which any of the Released Parties seeks to enforce this Agreement, in addition to available legal and equitable damages, it will be entitled to recover from Employee its reasonable attorneys’ fees and costs associated with such action. Any and all disputes related to or arising out of this Agreement shall be subject to the mandatory arbitration provisions of the Employment Agreement as though expressly incorporated herein.
12. Return of Severance Benefits. In addition to any other legal and/or equitable remedies, if it is judicially determined that Employee has breached this Agreement or any other contractual or legal obligation Employee owes to any of the Released Parties, then the Company shall be entitled to suspend payment of the severance benefits set forth in the Employment Agreement and Employee will be required to repay all severance benefits as set forth in the Employment Agreement, provided that he may retain $5,000. The exercise and/or availability of such remedy will not affect the validity of the release and other obligations of Employee as set forth in this Agreement or otherwise, nor will they limit the other legal and/or equitable remedies otherwise available to any of the Released Parties.
13. Interpretation; Severability. This Agreement shall be enforceable to the fullest extent permitted by law. If any provision is held to be unenforceable, then such provision will be construed or revised in a manner so as to permit its enforceability to the fullest extent permitted by applicable law. If such provision cannot be reformed in that manner, such provision will be deemed to be severed from this Agreement, but every other provision of this Agreement will remain in full force and effect.
14. Section 409A. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the final regulations issued thereunder (“Section 409A”), or an exemption under Section 409A and shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under or in connection with the execution of this Agreement will be made in a manner that complies with Code Section 409A or an applicable exemption.
15. Entire Agreement. This Agreement reflects the entire agreement of the parties relative to the subject matter hereof, and supersedes all prior, contemporaneous, oral or written understandings, agreements, statements, representations or promises regarding the subject matter hereof. For the avoidance of doubt, this Agreement does not supersede any post-termination obligations of Employee under the Employment Agreement, or any restrictive covenant agreement between Employee or any other Released Party, including but not limited to the Restrictive Covenant Agreement between CANB and Employee executed contemporaneously with the Employment Agreement. This Agreement may not be amended, modified, waived or terminated except in a writing signed by Employee and the Company’s signatory to this Agreement. Further, the waiver by a party of a breach of any provision of this Agreement by the other will not operate or be construed as a waiver of any subsequent breach of the same or other provision of this Agreement.
16. Employee’s Acknowledgment. Employee represents that he has fully read and understands the meaning and application of this Agreement and all exhibits thereto; that he is not relying on any representation, statement, and/or promise not set forth in this Agreement; that the Company and Released Parties have advised him/her to consult with independent legal counsel; and that Employee is signing this Agreement of his/her own free will.
The parties hereto confirm their agreement by the signatures shown below.
| EXECUTIVE | CAN B CORP. | ||
| By: | |||
| Marco Alfonsi | Stanley L. Teeple, CFO | ||
Exhibit 10.68
EMPLOYMENT AGREEMENT
This Employee Services Agreement (“Agreement”) is entered into as of February 8, 2024 (“Effective Date”) by and between Can B Corp., a Florida corporation (“Company”), and Stanley L. Teeple, a resident of Nevada (“Employee”) and collectively as the Parties (“Parties”). The Parties agree as follows:
I. Services Provided.
Company hereby appoints Employee to serve as its Chief Financial Officer (“CFO”), Secretary, and Employee hereby accepts such appointment. Employee shall provide those services required of an officer of like title of a company of similar size and industry, under the applicable laws of the States in which the Company operates, the federal securities laws and other state and federal laws and regulations, as applicable. Employee shall report to the Company’s President. Employee understands and agrees that travel may be necessary to accomplish his job responsibilities outlined herein. The principal place of Executive’s employment shall be Company’s principal executive office, unless Employee is otherwise required to travel from time to time on Company business during the Employment term.
II. Nature of Relationship
The Employee is entitled to all the rights and benefits along with the responsibilities and obligations of an employee. The Company will provide office equipment, supplies, and other facilities and services, suitable to Employee’s position and adequate for the performance of his duties. Subject to the exceptions set forth herein, Employee shall devote as required, his time, attention, best efforts, energy, and skill to the business of Company during the term of his employment necessary to effectively and efficiently execute all job responsibilities set forth herein. Employee may devote time and attention to other activities that do not compete with Company or interfere with Employee’s obligations, duties and responsibilities to Company hereunder. For the purposes of this Agreement, the term “compete” shall mean business or professional activities, other than passive investments, for which Employee is compensated by an individual or entity other than Company or a parent, subsidiary, or affiliate of Company. This Agreement shall not be interpreted to prohibit Employee from making passive personal investments or conducting private business affairs if those activities do not interfere or conflict with the services required under this Agreement. hold or during the term of Employee’s employment, Employee shall not directly or indirectly acquire, hold, or retain any interest in any business competing with or similar in nature to the business of Company.
III. Compensation
| A. | Base Salary. As compensation for Employee’s services, Employee shall receive eighteen thousand seven hundred fifty dollars ($18,750.00) per month (“Base Salary”). The Base Salary shall be paid according to the Company’s standard payroll procedures in effect at the time of payment. In any quarter that the full Base Salary cannot be paid, due solely to cash flow considerations as determined by the Company, the difference between actual amount paid and the Base Salary paid (“Difference”) shall be accrued and deferred per the Company policies and may be paid in shares of the Company’s common stock (“Common Stock”) or preferred stock (“Preferred Stock”), at the Company’s sole discretion, based on the average 30-day closing price for the Company’s Common Stock at the end of the period. | |
| B. | Base Salary Increase. At each annual anniversary of the Agreement, the Base Salary may be increased as determined by the Compensation Committee of the Board of Directors or, if no such committee, the Board of Directors, but in no case shall the increase be less than five percent (5%). | |
| C. | Incentive Bonus. Employee is eligible to receive cash and or stock bonuses (each, an “Incentive Bonus”) as otherwise determined by the Company’s Compensation Committee or the Board of Directors. |
| 1 of 11 |
| Initials: _____, _____ |
| D. | Incentive Stock Option Plan. Employee shall receive a stock bonus in accordance with the Company’s Incentive Stock Option Plan (“ISOP”) in an amount of one-hundred thousand dollars ($100,000) per year of the Agreement and valued at fair market value, such issuance shall be issued on the anniversary of each subsequent year of employment. The other terms of such options shall be as approved by the Compensation Committee or board of directors, as applicable, pursuant to an approved Award Notice and Award Agreement. | |
| F. | Benefits. During the Term (defined below), from the Effective Date through the Initial Term of Employee’s engagement with the Company, including following termination unless terminated for Cause or Employee resigns, and during any renewal term if not terminated during the Initial Term, Employee shall be entitled to participate in any welfare, health and life insurance and pension benefit and incentive programs, including sick pay and vacation time, as may be adopted from time to time by the Company on the same basis as that provided to similarly situated employees or employees of the Company generally. Until the Company has such plans in place the Company shall reimburse the Employee as follows: |
i. To the extent that no Welfare Benefit Plan is in place, reimbursement, up to a maximum amount of $2,000 per month, for the actual cost paid by Employee for a family medical, and dental insurance program, and for reimbursement for the cost of personal life insurance at two (2) times the annual Base Salary. Such policies may be payable to the Employee designee.
ii. Automobile-related allowance of $1,200 per month.
iii. A flat rate home office allowance of $1,200 per month.
| G. | Reimbursement for Business Expenses. During the Term, the Company shall reimburse Employee for all reasonable expenses incurred by Employee in performing Employee’s duties for the Company, on the same basis as similarly situated Employees of the Company generally and in accordance with the Company’s policies as in effect from time to time, provided that the Company consented to the expenses in writing prior to such expenses being incurred. | |
| H. | Nascent Pharma LLC Bonus. During the term of this Agreement, and until February 8, 2034, regardless of employment status, Employee shall receive quarterly distributions equal to two percent (2%) of the total gross revenues received by Can B Corp. from Nascent Pharma LLC. This Section III H. shall survive and remain in force for Sections VI D, E, F, and H. |
IV. Indemnification and Insurance
The Company hereby fully agrees to hold harmless and indemnify Employee pursuant to the Indemnity Agreement attached as Exhibit A to this Agreement.
V. Term of Agreement
This Agreement shall be in effect from the Effective Date hereof and continue for an initial term of three (3) years (“Initial Term”). This Agreement shall be renewed for an additional three (3) year renewal term (“Renewal Term”) unless either party gives notice of its intent to not to renew the Agreement at least thirty (30) days prior to the expiration of the applicable Initial Term. Failure to renew this Agreement upon the expiration of the Initial Term shall not constitute a termination of this Agreement by either party. The Initial Term together with all applicable Renewal Terms is referred to herein as the “Term.”
| 2 of 11 |
| Initials: _____, _____ |
VI. Employee Termination
| A. | Right to Terminate. The Company may terminate Employee’s employment under this Agreement with or without Cause at any time, and Employee may resign under this Agreement with or without Good Reason at any time, by providing written notice to the other party. As used herein, “Cause” shall mean: (i) the plea of guilty or nolo contendere to, conviction for, or the commission of, a felony offense by Employee that is not in connection with Employee’s duties or services to the Company and which will be expected to have a material adverse impact on the Company; (ii) a material breach by Employee of this Agreement that is not cured within ten (10) days from written notice by the Company; (iii) a knowing and material violation by Employee of any Company policy that is not cured within ten (10) days following notice by the Company, (iv) Employee’s failure to meet performance goals agreed to by the Employee and the Company’s Board of Directors that is not cured within (10) days following notice from the Company, (v) Employee’s disparagement of the Company or its officers or directors, or (vi) Employee’s willful failure to perform or gross negligence in performing Employee’s duties owed to the Company (including as reasonably directed by the Board of Directors), after ten (10) days written notice delivered to Employee by the Board, which notice specifies such failure or negligence and provides Employee an opportunity to cure within such ten (10) day period. As used herein, “Good Reason” shall mean: (i) a diminution in the Employee’s Base Salary of 10% or more; (ii) a material diminution in the Employee’s authority, duties or responsibilities; (iii) a material change in the geographic location at which the Employee must perform services; (iii) any action or inaction that constitutes a material breach by the Company of this Agreement, or (iv) Employee is required to resign as a result of the Company’s breach with a third party. | |
| B. | Termination for Cause or without Good Reason. Upon Employee’s (i) termination of employment by the Company for Cause prior to the expiration of the Term, or (ii) resignation without Good Reason prior to the expiration of the Term, this Agreement shall terminate without further obligation by the Company, except Employee shall be entitled, if applicable, to all Base Salary previously earned, amounts due under benefit plans and profit sharing plans, and reimbursement of business expenses accrued but unpaid through the date of termination, payable thirty (30) days following such termination, or such sooner time as required by law. | |
| C. | Period to Cure Good Reason. For the Employee to be able to terminate his employment with the Company on account of Good Reason, except for Good Reason in subsection (iv) of its definition, he must provide notice of the occurrence of the event constituting Good Reason and his desire to terminate his employment with the Company on account of such within ninety (90) days following the initial existence of the condition constituting Good Reason, and the Company must have a period of thirty (30) days following receipt of such notice to cure the condition. If the Company does not cure the event constituting Good Reason within such thirty (30) day period, the Employee’s termination date shall be the day immediately following the end of such thirty (30) day period, unless the Company provides for an earlier termination date. | |
| D. | Termination by the Employee with Good Reason or by the Company without Cause. Upon termination of Employee’s employment prior to the expiration of the Initial Term by the Company without Cause or by Employee for Good Reason then: |
i. The Company shall pay Employee a severance payment in the amount of all Base Salary due the employee for the remaining Initial Term of the Agreement, including consideration for each annual Base Salary increase per Section III A. and B. above.
ii. Notwithstanding anything to the contrary contained herein, the Company’s obligation to pay and the Employee’s right to receive any severance pay under this Section or other remuneration due under this Agreement, including the right to exercise its vested options shall be conditioned upon Employee’s execution of the Company’s standard waiver and release agreement substantially in the form contained herewith as Exhibit B (“Release Agreement”). Should Employee fail to execute and return to the Company the Release Agreement within fourteen (14) days from the date of Employee’s termination without Cause, Employee shall forfeit all right to receive severance payments pursuant to this Section or to exercise his vested options.
| E. | Termination upon Death. Employee’s employment hereunder shall terminate upon his death, in which event the Company shall pay to such person as the Employee shall designate in a written notice filed with the Company, or if no such person shall have been designated to his estate, all salary, amounts due under benefit plans and profit-sharing plans, vested shares and reimbursement of business expenses though the date of termination plus of the remainder of his Base Salary for the remaining Initial Term of the Agreement. |
| 3 of 11 |
| Initials: _____, _____ |
| F. | Termination upon Disability. If as a result of a permanent mental or physical disability, Employee shall have been unable to perform his duties hereunder on a full-time basis for three (3) consecutive months and, within thirty (30) days after the Company notifies Employee in writing that it intends to replace him, (which notice can be given at the end of the second month during such three-month period), Employee shall not have returned to the complete performance of his duties on a full time basis, the employer shall be entitled to terminate Employee’s employment. For the purposes of this Agreement, “Disability” shall mean the Employee (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (ii) receiving income replacement benefits for a period of not less than three (3) months under an accident or health plan covering employees of the Company. In addition, Employee shall, upon his Disability, have the right to terminate his employment with the Company. If such employment is terminated (whether by the Company or Employee) as a result of Employee’s Disability, then the Company shall pay to Employee all salary, amounts due under benefit plans and profit-sharing plans, and reimbursement of business expenses, through the date of termination plus the remaining Base Salary for the Initial Term of this Agreement. | |
| G. | Vesting of Stock. On the date of termination for any reason, Employee shall only be entitled to the value of the shares of any class of stock vested on or before the date of termination of employment, if any shares have vested by that date, in accordance with the vesting schedule outlined in the applicable Award Notice and Award Agreement or other documentation between Employee and the Company governing the vesting of such shares. As of the date of termination, all vesting options will lapse with respect to all of Employee’s then-unvested shares of any class of stock. Notwithstanding anything to the contrary contained herein, should the Employee be terminated for Cause, then all options granted Employee, whether vested or unvested, shall be forfeited by Employee and shall terminate. | |
| H. | Termination by acquisition or merger. In the event of a merger or acquisition involving the Company where this Agreement is terminated, the Company shall arrange to pay Employee according to Section VII(D) of this Agreement plus 6-months Base Salary. | |
| I. | Return of Materials. Upon (a) termination of this Agreement for any reason, or (b) the Company’s request at any time during the Term, the Employee agrees to (i) provide or return to the Company any and all Company property, including but not limited to any electronic equipment, keys, key cards, access cards, identification cards, security devices, employer credit cards, network access devices, computers, cell phones, smartphones, equipment, files, e-mail messages, thumb drives or other removable information storage devices, and data and all Company documents and materials belonging to the Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information or work product, that are in the possession or control of Employee, whether they were provided to Employee by the Company or any of its business associates or created by Employee in connection with his employment with the Company; (ii) delete or destroy all copies of any such documents and materials not returned to the Company that remain in Employee’s possession or control, including those stored on any non-Company devices, networks, storage locations, and media in Employee’s possession or control, and provide written confirmation of such deletion or destruction to the Company; and (iii) not access or use or permit or assist others in accessing or using any facilities or information technology resources belonging to the Company, such as, without limitation, Team Drive/Google Drive or Dropbox, in any manner after such event. |
| 4 of 11 |
| Initials: _____, _____ |
VII. Proprietary Rights
| A. | Intellectual Property Ownership. The parties hereto agree that nothing contained in this Agreement shall grant Employee any right or title in or to any writing, works of authorship, technology, invention, discovery, technique, idea, concept, research, proposal, material, improvement, device, design, apparatus, practice, process, method, product, or other work product of any nature whatsoever, whether or not patentable or copyrightable (“Intellectual Property”) owned or licensed by the Company, and the Company shall remain the sole and exclusive owner or licensee, as applicable, of all such Intellectual Property. | |
| B. | Employee Inventions. The Employee shall promptly disclose in writing to the Company as set forth below complete information concerning each and every work of Intellectual Property made, developed, perfected, devised, conceived, produced, created or first reduced to practice by the Employee individually or jointly with others, during the Term during working hours with the Company or using the Company’s property, facilities or resources or which relate either directly or indirectly to the services or products of the Company developed or being developed by the Company which are known to the Employee (“Employee Inventions”). The Employee acknowledges and agrees that any and all of said Employee Inventions are the property of the Company and hereby assigns and agrees to assign to the Company any and all of his right, title and interest in and to any and all of such Employee Inventions. The Employee shall execute any documents requested by the Company (which shall be prepared at the Company’s expense), including but not limited to patent and copyright applications and registrations, and shall perform any and all further acts deemed necessary or desirable by the Company in order to confirm, exploit, or enforce the rights herein granted and assigned by the Employee to the Company. The provisions of this Article VIII shall not apply to any Employee Invention meeting each of the following conditions: (i) such Employee Invention was developed entirely on the Employee’s own time, (ii) such Employee Invention was made without the use of any Company equipment, supplies, facility or confidential information, (iii) such Employee Invention does not relate to any service or product of the Company in place or planned or to any research or development efforts of the Company during the Term which are known or should be known to the Employee, and (iv) such Employee Invention does not result from any work or service performed by the Employee on behalf of or for the Company. The Employee shall promptly disclose all Employee Inventions to the Board of Directors and perform all actions reasonably requested by the Board of Directors to establish and confirm ownership thereof by the Company. | |
| C. | Work Made for Hire, Assignment. Employee acknowledges that, by reason of being employed by the Company, to the extent permitted by law, all Employee Inventions consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. section 101 and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, Employee hereby irrevocably assigns to the Company, for no additional consideration, Employee’s entire right, title, and interest in and to all Employee Inventions and Intellection Property rights therein, including the right to sure, counterclaim, and recover for all past, present, and future infringement, misappropriate, or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title, or interest in any Employee Inventions or intellection property rights therein so as to be less in any respect than Company would have had in the absence of this Agreement. | |
| D. | Further Assurances; Power of Attorney. During and after his employment, Employee agrees to reasonably cooperate with the Company to (a) apply for, obtain, perfect, and transfer to Company the Employee Inventions as well as any and all intellectual property rights in the Employee Inventions in any jurisdiction in the world; and (b) maintain, protect, and enforce the same, including, without limitation, giving testimony and executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by Company. Employee hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on Employee’s behalf in his name and to do all other lawfully permitted acts to transfer the Employee Inventions to the Company and further the transfer, prosecution, issuance, and maintenance of all intellection property rights therein, to the full extent permitted by law, if Employee does not promptly cooperate with Company’s request (without limiting the rights Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by Employee’s subsequent incapacity. |
| 5 of 11 |
| Initials: _____, _____ |
VIII. Employee Representations and Warranties. Employee hereby represents and warrants as follows:
| A. | As of the Effective Date, that Employee (i) has the necessary power and authority and the legal right to enter into this Agreement and perform Employee’s obligations hereunder, and (ii) has taken all necessary action on Employee’s part required to authorize the execution and delivery of this Agreement and the performance of Employee’s obligations hereunder. This Agreement has been duly executed and delivered on behalf of Employee, and constitutes a legal, valid, binding obligation of Employee and is enforceable against him in accordance with its terms subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity whether enforceability is considered a proceeding at law or equity. | |
| B. | Employee represents and warrants that all services rendered in accordance with this Agreement shall meet the standards and quality expected by Company, as set forth in writing in the Company’s policies, so as to enhance the associated goodwill of the Company. | |
| C. | Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (i) violate any applicable law, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Employee is subject, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Employee is a party or by which it is bound or to which any of his assets are subject. | |
| D. | Employee shall comply with all applicable laws, ordinances, rules, and regulations of the states and cities in which it is operating, including but not limited to, local fire codes, zoning regulations, and occupancy codes. Employee shall promptly provide to the Company copies of all communications to or from the any governmental entity that relate to noncompliance, or alleged noncompliance, with any laws or other government requirements. | |
| E. | Employee acknowledges and agrees that any and all securities issued pursuant to this Agreement (“Securities”) are characterized as “restricted securities” under applicable U.S. federal and state securities laws, including Rule 144 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), and that pursuant to these laws, Employee must hold the Securities indefinitely unless subsequently registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Neither the Company nor any other person is under any obligation to register the Securities under the Securities Act or otherwise. The Employee understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities. It is further understood that the stock certificates representing the Securities may bear one or more legends restricting the transfer of the Securities or as otherwise required by applicable law. Employee is acquiring the Securities for Employee’s own account for investment only and not with a view towards the public sale or distribution thereof and not with a view to or for sale in connection with any distribution thereof. Employee (i) understands that its investment in Securities involves a high degree of risk, (ii) is experienced in making investments of the kind described in this Agreement, (iii) is able to afford the entire loss of its investment in the Securities, and (v) has no need for liquidity in its investment in Securities. Employee has received and reviewed the Company’s governing documents including, but not limited to, its Articles of Incorporation, Bylaws and Shareholder Agreements, and hereby agrees to be bound thereto and abide by the provisions thereof. Employee has been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities which have been requested by the Employee. Employee has been afforded the opportunity to ask questions of the Company and has received complete and satisfactory answers to any such inquiries. If desired, Employee has consulted its own advisors with respect to its proposed purchase of the Securities. Except as set forth herein, no representations or warranties have been made to Employee by the Company, or any officer, partner, agent, representative, employee or affiliate thereof and, in entering into this transaction, Employee is not relying upon any information, other than that contained herein. Employee did not learn of the Securities by way of general solicitation and was not solicited by any person or entity without a pre-existing relationship with Employee. |
| F. | The representations of this Article shall survive termination of this Agreement. |
| 6 of 11 |
| Initials: _____, _____ |
IX. Sole Agreement
This Agreement supersedes all prior or contemporaneous written or oral understandings or agreements, and may not be added to, modified, or waived, in whole or in part, except by a writing signed by the party against whom such addition, modification or waiver is sought to be asserted. Upon execution of this Agreement, Employee’s previous employment agreement with the Company is terminated and of no further force or effect.
X. Assignment
This Agreement and all of the provisions hereof shall be binding upon and insure to the benefit of the parties hereto and their respective successors and permitted assigns and, except as otherwise expressly provided herein, neither this Agreement, nor any of the rights, interests or obligations hereunder shall be assigned by either of the parties hereto without the prior written consent of the other party.
XI. Notices
All notices or other communications required or permitted hereunder shall be in writing shall be deemed duly given (i) if by personal delivery, when so delivered, (ii) if mailed, three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid and addressed to the intended recipient, (iii) if sent through an overnight delivery service in circumstances to which such service guarantees next day delivery, the following day, or (iv) when sent by facsimile with telephonic confirmation or electronic mail with confirmation of transmission by the transmitting equipment, the same day, in each case to the addresses, facsimile numbers, or electronic mail addresses designated in writing by each party hereto to the other party. Any party may change the address, facsimile number, or electronic mail address to which notices and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth.
XII. Survival of Obligations
Notwithstanding the expiration of termination of this Agreement, neither party hereto shall be released hereunder from any liability or obligation to the other which has already accrued as of the time of such expiration or termination or which thereafter might accrue in respect of any act or omission of such party prior to such expiration or termination.
XIII. Severability
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. In the event any provision or term hereof is deemed to have exceeded applicable legal authority or shall be in conflict with applicable legal limitations, such provision shall be reformed and rewritten as necessary to achieve consistency and compliance with such applicable law.
| 7 of 11 |
| Initials: _____, _____ |
| Exhibit 10.68 |
XIV. Governing Laws
This Agreement will be construed in accordance with the laws of the state of New York, without resort to conflict of law principles.
XV. Attorneys’ Fees
If either party brings a claim or lawsuit against the other party to this Agreement to interpret or enforce any of the terms of this Agreement, the prevailing party shall, in addition to all other damages, be entitled to reasonable attorneys’ fees and costs, costs of witnesses, and costs of investigation from the non-prevailing party.
XVI. Waiver
Either party’s failure to enforce any right resulting from a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach by the other party.
XVII. Force Majeure
If and to the extent that any party may be precluded by acts of God, authority of law, war, acts of terrorists, strikes, lockouts, casualties, pandemics, viruses or other causes beyond its reasonable control from performance hereunder, such performance (except for payment of amounts due hereunder) shall be excused to the extent that it is necessitated by such causes beginning on the date in which written notice of a party’s inability to perform is received by the other party at the respective addresses provided below. Such notice must be given at least thirty (30) days in advance of the scheduled performance date. Any delay in performance in excess of thirty (30) days beyond the scheduled performance date shall be considered an irreparable delay and the party whose performance is not impaired shall have the right to cancel performance.
XVIII. Further Assurances
The parties hereby agree to execute and deliver such further and other documents and perform or cause to be performed such further acts and things as may be necessary or desirable to give full effect to this Agreement.
XIX. Interpretation
The division of this Agreement into articles and sections and the insertion of headings are for convenience of reference only and shall not affect the interpretation or construction of the Agreement or any provision hereof. Words importing the singular number only shall include the plural, and vice versa, words importing the masculine gender shall include the feminine gender and neuter gender, and vice versa, and words importing persons shall include a natural person, firm, trust, partnership, association, corporation, government board, agency or instrumentality.
XX. Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. The parties hereto confirm that any electronic copy of another party’s executed counterpart of this Agreement (or such party’s signature page thereof) shall be deemed to be an executed original thereof.
| 8 of 11 |
| Initials: _____, _____ |
XXI. Arbitration; Equitable Remedies
To the fullest extent allowed by law, any controversy, claim or dispute between Employee and the Company (and/or any of its owners, directors, officers, employees, affiliates, or agents) relating to or arising out of Employee’s employment or the cessation of that employment will be submitted to final and binding arbitration in the County of Nassau, State of New York, for determination in accordance with the American Arbitration Association’s (“AAA”) National Rules for the Resolution of Employment Disputes, as the exclusive remedy for such controversy, claim or dispute. In any such arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall have the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal discovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be available in court. The parties shall share the filing fees required for the arbitration, provided that Employee shall not be required to pay an amount in excess of the filing fees required by a federal or state court with jurisdiction. The Company shall pay the arbitrator’s fees and any AAA administrative expenses. The award of the arbitrator shall be final and binding upon the parties and may be entered as a judgment in any New York court of competent jurisdiction and the parties hereby consent to the exclusive jurisdiction of the courts of New York. Possible disputes covered by the above include (but are not limited to) unpaid wages, breach of contract, torts, violation of public policy, discrimination, harassment, or any other employment-related claims under laws including but not limited to, Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Age Discrimination in Employment Act, and any other statutes or laws relating to an employee’s relationship with his/her employer, regardless of whether such dispute is initiated by the employee or the company. Thus, this bilateral arbitration agreement applies to any and all claims that the Company may have against an employee, including but not limited to, claims for misappropriation of company property, disclosure of proprietary information or trade secrets, interference with contract, libel, gross negligence, or any other claim for alleged wrongful conduct or breach of the duty of loyalty by an employee. However, notwithstanding anything to the contrary contained herein, in addition to any other remedies available to it at law or in equity, the Company and Employee shall have their respective rights to seek and obtain injunctive relief (without the requirement of posting a bond or other form of security) with respect to any controversy, claim or dispute to the extent permitted by law. Claims for workers’ compensation benefits and unemployment insurance (or any other claims where mandatory arbitration is prohibited by law) are not covered by this arbitration agreement, and such claims may be presented by either Employee or the Company to the appropriate court or government agency. BY AGREEING TO THIS BINDING ARBITRATION PROVISION, BOTH EMPLOYEE AND THE COMPANY GIVE UP ALL RIGHTS TO TRIAL BY JURY. This arbitration agreement is to be construed as broadly as is permissible under applicable law.
XXII. Confidentiality
| A. | Obligation to Keep Confidential. Employee shall hold in strict confidence any and all Confidential Information he received or may receive regarding the Company, its business plan, operations, Intellectual Property, and other trade secrets, and may not disclose such information to any person except as provided herein. The provisions of this Article XXIII shall survive termination of this Agreement. | |
| B. | Definition. For purposes of this is Agreement, “Confidential Information” includes, but is not limited to, all information not generally known to the general public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, operations, services, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, pricing information, credit information, payroll information, personnel information, supplier lists, vendor internal controls, customer information, manufacturing processes or its businesses or any existing or prospective customer, supplier, investor or other associated third party, or of any other person or entity that has entrusted information to Company in confidence. Employee understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. Employee understands and agrees that Confidential Information includes information developed by him in the course of his employment by Company as if Company furnished the same Confidential Information to Employee in the first instance. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to Employee; provided that, such disclosure is through 110 direct or indirect fault of Employee or person(s) acting on Employee’s behalf. |
| 9 of 11 |
| Initials: _____, _____ |
| C. | Company Creation and Use of Confidential Information. Employee understands and acknowledges that Company has invested, and continues to invest, substantial time, money, and specialized knowledge into developing its resources, creating a customer base, generating customer and potential customer lists, training its employees, and improving its offerings in the field of cannabis cultivation, manufacturing, distribution and sale. Employee understands and acknowledges that as a result these efforts, Company has created, and continues to use and create Confidential Information. This Confidential Information provides Company with a competitive advantage over others in the marketplace. | |
| D. | Disclosure and Use Restrictions. The Employee agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever (including other employees of Company) not having a need to know and authority to know and use the Confidential Information in connection with the business of Company and, in any event, not to anyone outside of the direct employ of Company except as required in the performance of Employee’s authorized employment duties to or with the prior consent of other members of the Board of Directors acting on behalf of Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent); and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media, or resources containing any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of Company, except as required in the performance of Employee’s authorized employment duties to Company or with the prior consent of members of the Board of Directors acting on behalf of Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent). Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Employee shall promptly provide written notice of any such order to the Board of Directors. |
XXIII. Non-Disparagement
No party will disparage or otherwise publish or communicate derogatory statements or opinions about any other party or their respective affiliates, practices, businesses, personnel, to any person or entity, be it orally, in writing, or otherwise. For purposes of this Agreement, “derogatory” means a statement that detracts from one’s character, standing, or reputation. The provisions of this Section shall survive termination of this Agreement.
XXIV. No Solicitation
While Employee is an employee of the Company, and for a period of one (1) year after termination, Employee shall not, directly or indirectly, solicit, hire, recruit, attempt to hire or recruit, or induce the breach or termination of employment of any employee, contractor, or service provider of the Company, Furthermore, for a period of one (1) year immediately following the termination of this Agreement for any reason, whether voluntary or involuntary, Employee shall, directly or indirectly, solicit any of the Company’s customers or divert or attempt to divert from the Company any business the Company had enjoyed or solicited from its customers or potential customers prior to termination of Employee’s employment. This provision will survive termination of this Agreement.
| 10 of 11 |
| Initials: _____, _____ |
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their duly authorized officers, as of the date first written above and replaces any and all prior agreement whether in writing or orally.
| CAN B CORP. | |
| /s/ Marco Alfonsi | |
| Marco Alfonsi, CEO | |
| EMPLOYEE | |
| /s/ Stanley Teeple | |
| Stanley L. Teeple |
| 11 of 11 |
| Initials: _____, _____ |
EXHIBIT A
INDEMNITY AGREEMENT
This Indemnity Agreement (“Agreement”) is made and entered into this 8th day of February 2024, by and between Can B Corp., a Florida corporation (the “Company”), and the undersigned employee (“Employee”).
RECITALS
WHEREAS, Employee performs a valuable service to the Company in his capacity as the Company’s, CFO, Secretary, and Member of the Board of Directors.
WHEREAS, the Company has adopted Bylaws (the “Bylaws”) providing for the indemnification of the directors, officers, Employees and other agents, including persons serving at the request of the Company in such capacities with other corporations or enterprises; and
WHEREAS, in order to induce Employee to continue to serve the Company, the Company has determined and agreed to enter into this Agreement with Employee.
NOW, THEREFORE, in consideration of Employee’s continued service after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. Indemnity of Employee. The Company hereby agrees to hold harmless and indemnify Employee to the fullest extent authorized or permitted by the provisions of the Bylaws and applicable law against any and all expenses (including attorneys’ fees), witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that Employee becomes legally obligated to pay because of any claim or claims made against or by him in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or investigative (including an action by or in the right of the Company) to which Employee is, was or at any time becomes a party, or is threatened to be made a party, by reason of the fact that Employee is, was or at any time becomes a director, officer, Employee or other agent of Company, or is or was serving or at any time serves at the request of the Company as a director, officer, Employee or other agent of another corporation, partnership, joint venture, trust, Employee benefit plan or other enterprise.
2. Limitations on Indemnity. No indemnity shall be paid by the Company:
(a) on account of any claim against Employee solely for an accounting of profits made from the purchase or sale by Employee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Employee’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
| 1 of 5 |
| Initials: _____, _____ |
(c) on account of Employee’s conduct that is established by a final judgment as constituting a breach of Employee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Employee was not legally entitled;
(d) for which payment is actually made to Employee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Company and Employee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Employee, or any proceeding by Employee against the Company or its directors, officers, Employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the board of directors of the Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the NYCRR, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
3. Continuation of Indemnity. All agreements and obligations of the Company contained herein shall continue during the period Employee is a director, officer, Employee or other agent of the Company (or is or was serving at the request of the Company as a director, officer, Employee or other agent of another corporation, partnership, joint venture, trust, Employee benefit plan or other enterprise) and shall continue thereafter so long as Employee shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or investigative, by reason of the fact that Employee was serving in the capacity referred to herein.
4. Partial Indemnification. Employee shall be entitled under this Agreement to indemnification by the Company for a portion of the expenses (including attorneys’ fees), witness fees, damages, judgments, fines and amounts paid in settlement and any other amounts that Employee becomes legally obligated to pay in connection with any action, suit or proceeding referred to in Section 1 hereof even if not entitled hereunder to indemnification for the total amount thereof, and the Company shall indemnify Employee for the portion thereof to which Employee is entitled.
5. Notification and Defense of Claim. Not later than thirty (30) days after receipt by Employee of notice of the commencement of any action, suit or proceeding, Employee will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof; but the omission so to notify the Company will not relieve it from any liability which it may have to Employee otherwise than under this Agreement. With respect to any such action, suit or proceeding as to which Employee notifies the Company of the commencement thereof:
(a) the Company will be entitled to participate therein at its own expense;
| 2 of 5 |
| Initials: _____, _____ |
(b) except as otherwise provided below, the Company may, at its option and jointly with any other indemnifying party similarly notified and electing to assume such defense, assume the defense thereof, with counsel reasonably satisfactory to Employee. After notice from the Company to Employee of its election to assume the defense thereof, the Company will not be liable to Employee under this Agreement for any legal or other expenses subsequently incurred by Employee in connection with the defense thereof except for reasonable costs of investigation or otherwise as provided below. Employee shall have the right to employ separate counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Employee unless (i) the employment of counsel by Employee has been authorized by the Company, (ii) Employee shall have reasonably concluded, and so notified the Company, that there is an actual conflict of interest between the Company and Employee in the conduct of the defense of such action or (iii) the Company shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of Employee’s separate counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Company or as to which Employee shall have made the conclusion provided for in clause (ii) above; and
(c) the Company shall not be liable to indemnify Employee under this Agreement for any amounts paid in settlement of any action or claim affected without its written consent, which shall not be unreasonably withheld. The Company shall be permitted to settle any action except that it shall not settle any action or claim in any manner which would impose any penalty or limitation on Employee without Employee’s written consent, which may be given or withheld in Employee’s sole discretion.
6. Expenses. The Company shall advance, prior to the final disposition of any proceeding, promptly following request therefore, all expenses incurred by Employee in connection with such proceeding upon receipt of an undertaking by or on behalf of Employee to repay said amounts if it shall be determined ultimately that Employee is not entitled to be indemnified under the provisions of this Agreement, the Bylaws, applicable law or otherwise.
7. Enforcement. Any right to indemnification or advances granted by this Agreement to Employee shall be enforceable by or on behalf of Employee in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefore. Employee, in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting his claim. It shall be a defense to any action for which a claim for indemnification is made under Section 1 hereof (other than an action brought to enforce a claim for expenses pursuant to Section 6 hereof, provided that the required undertaking has been tendered to the Company) that Employee is not entitled to indemnification because of the limitations set forth in Section 2 hereof. Neither the failure of the Company (including its board of directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Employee is proper in the circumstances, nor an actual determination by the Company (including its board of directors or its stockholders) that such indemnification is improper shall be a defense to the action or create a presumption that Employee is not entitled to indemnification under this Agreement or otherwise.
8. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Employee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights.
9. Non-Exclusivity of Rights. The rights conferred on Employee by this Agreement shall not be exclusive of any other right which Employee may have or hereafter acquire under any statute, provision of the Company’s Articles of Incorporation or Bylaws, agreement, vote of stockholders or directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding office.
| 3 of 5 |
| Initials: _____, _____ |
10. Survival of Rights.
(a) The rights conferred on Employee by this Agreement shall continue after Employee has ceased to be a director, officer, Employee or other agent of the Company or to serve at the request of the Company as a director, officer, Employee or other agent of another corporation, partnership, joint venture, trust, Employee benefit plan or other enterprise and shall inure to the benefit of Employee’s heirs, executors and administrators.
(b) The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
11. Severability. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. Furthermore, if this Agreement shall be invalidated in its entirety on any ground, then the Company shall nevertheless indemnify Employee to the fullest extent provided by the Bylaws, the NYCRR or any other applicable law.
12. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of New York.
13. Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.
14. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence the existence of this Agreement.
15. Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof.
16. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) upon delivery if delivered by hand to the party to whom such communication was directed or (ii) upon the third business day after the date on which such communication was mailed if mailed by certified or registered mail with postage prepaid to the parties address of record, or to such other address as may have been furnished to Employee by the Company.
[Signature Page Follows]
| 4 of 5 |
| Initials: _____, _____ |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written.
| CAN B CORP. | ||
| By: | Marco Alfonsi, CEO | |
| EMPLOYEE | ||
| Stanley L. Teeple | ||
| 5 of 5 |
| Initials: _____, _____ |
EXHIBIT A
RELEASE AGREEMENT
This Release Agreement (“Agreement”) is made effective in accordance with Section 4 below, by and between CAN B CORP. (“CANB” or the “Company”) and Stanley L. Teeple (the “Employee”).
1. Employment Agreement. Employee understands and agrees that this Agreement is entered into in consideration for certain severance benefits and other promises made by the Company pursuant to the Employment Agreement that Employee executed with the Company (the “Employment Agreement”), and that Employee is not entitled to receive any severance benefits unless and until this Agreement has become effective and irrevocable pursuant to Section 4, below.
2. Release of Claims and Rights. Employee, on behalf of himself and all of his heirs, family members, executors, accountants, administrators, attorneys, agents, assigns, successors and representatives, fully and forever releases, acquits and discharges the Company and all of its affiliates, successors, predecessors, assigns, parents, subsidiaries, divisions (whether incorporated or unincorporated), and all of its and their past and present owners, directors, officers, trustees, employees and agents (in their individual and representative capacities) (collectively, the “Released Parties”) from and for all manner of claims, actions, suits, charges, grievances and/or causes of action, in law or in equity, existing by reason of and/or based upon any fact or set of facts, known or unknown, existing from the beginning of time through the date Employee signs this Agreement, whether known or unknown, suspected or unsuspected. For illustration purposes, the released claims include, but are not limited to, all claims and actions for or related to breach of implied or express contract; promissory estoppel; conversion; invasion of privacy; intentional infliction of emotional distress; negligence; fraud; defamation; wrongful discharge; discrimination; harassment; public policy violation; retaliation; any other claim or cause of action Seaman may have under the Age Discrimination in Employment Act (“ADEA”), the Older Workers Benefit Protection Act (“OWBPA”), Title VII of the Civil Rights Act, the Family and Medical Leave Act, the Genetic Information Nondiscrimination Act, the Americans with Disabilities Act, the Equal Pay Act, the Employee Retirement Income Security Act, the Civil Rights Act of 1991, Section 1981 of U.S.C. Title 42, the Worker Adjustment and Retraining Notification Act, the Whistleblower Protection Act, the California Labor Code, the California Fair Employment and Housing Act (as amended), and any other federal, state, or local statute or law; and any claim or recovery for any type of damages, compensation, bonus, attorneys’ fees, costs, or other relief that is or may be available to Employee. Employee acknowledges and agrees that the release contained in this Section 2 is intended to and shall be construed broadly to release any and all claims which Employee may have against the Released Parties, including, but not limited to, relating to and/or arising out of Employee’s employment and/or the cessation of his employment with any of the Released Parties and/or otherwise. To the fullest extent permitted by law, Employee will not take any action that is contrary to the promises he has made in this Agreement.
3. Covenant Not to Sue; Exclusions.
(a) To the fullest extent permitted by law, Employee agrees not to file or initiate a lawsuit in any court or initiate an arbitration proceeding asserting any of the claims released pursuant to this Agreement. Employee further agrees that Employee will not permit himself to be a member of any class action and/or collective action in any court or in any arbitration proceeding seeking relief based on any claims released pursuant to this Agreement. Further, while nothing in this Agreement precludes Employee from filing a charge with a governmental or administrative agency or participating in any investigation, hearing, or proceeding of such agency, Employee agrees that (except as to possible whistleblower awards from the Securities and Exchange Commission), he will not be entitled to any personal relief or money damages arising out of such claims, whether pursued by him or any governmental agency, other person or group.
(b) Notwithstanding the foregoing, by signing this Agreement, Employee is not giving up: (i) any rights to vested benefits, such as pension or retirement benefits, the rights to which are governed by the terms of the applicable plan documents and award agreements; (ii) claims or rights that cannot be waived by operation of law, such as claims for unemployment compensation or workers’ compensation benefits; (iii) claims to enforce this Agreement; or (iv) any monetary award offered by the Securities and Exchange Commission pursuant to Section 21F of the Securities Exchange Act of 1934.
4. ADEA Notice. Employee acknowledges that he is waiving and releasing any claims he may have under the ADEA, the OWBPA and otherwise, and that this waiver and release is knowing and voluntary. Employee is advised to consult with an attorney who is not affiliated with any of the Released Parties before signing this Agreement. Employee has twenty-one (21) days from the date he receives this Agreement to consider this Agreement. Employee may knowingly and voluntarily waive all or part of this 21-day period by signing and returning this Agreement to the Company, per the notice provisions of the Employment Agreement, prior to the expiration of the 21-day period. In the event that this Agreement is signed and delivered, Employee has a period of seven (7) days from the signature date to revoke this Agreement. Any revocation shall be made in writing by Employee and delivered to the Company, per the notice provisions of the Employment Agreement, within the 7-day revocation period. This Agreement will become effective and enforceable only after the revocation period has expired, without any revocation having been communicated, and the day following the expiration of the revocation period will be the “Effective Date” of this Agreement.
5. Unknown Claims. It is the intent of the parties that this Agreement shall be effective as a full and final accord and satisfaction and release of all released claims, whether known or unknown, as set forth above. Employee expressly waives and releases any right or benefit which he may have under Section 1542 to the fullest extent that he may waive all such rights and benefits pertaining to the matters released in this Agreement. It is the intent of the parties, through this Agreement and with the advice of counsel, to fully, finally and forever settle and release all claims Employee may have against the Released Parties, whether known or unknown.
6. Confidentiality of Agreement. Except as may be required by law, Employee will not in any manner disclose or communicate the existence of or any part of this Agreement to any other person except his spouse, his accountant or financial advisor to the limited extent needed for that person to prepare Employee’s tax returns, and his attorney. If Employee is required by law to disclose any of the terms of this Agreement, he must immediately provide written notice of that fact to the Company, enclose a copy of the subpoena and any other documents describing the legal obligation, and cooperate with the Company in objecting to such request and/or seeking confidentiality protections.
7. Non-Admission of Liability. The parties wish to resolve all disputes amicably and without additional costs and expenses. Nothing in this Agreement shall be construed as an admission of liability by any party or any Released Parties.
8. Adequacy of Consideration. Employee acknowledges that the Company’s promises set forth throughout this Agreement and the severance pursuant to the Employment Agreement would not be provided unless Employee signed this Agreement and are each separate and adequate consideration for this Agreement, including Employee’s release of claims.
9. Non-Assistance. To the fullest extent permitted by law, Employee will not cooperate with, or assist in, any claim, charge, lawsuit, investigation or arbitration against any of the Released Parties, unless required to do so by a lawfully issued subpoena, by court order or as expressly provided by regulation or statute. If Employee is served with a subpoena or is required by court order or otherwise to testify or produce documents in any type of proceeding involving any of the Released Parties, he must immediately advise the Company of same and cooperate with the Company in objecting to such request and/or seeking confidentiality protections.
10. Binding Agreement; Assignment. Except as otherwise provided herein, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors, permitted assigns and transferees, personal representatives, heirs and estates, as the case may be; provided, however, that Employee’s rights and obligations under this Agreement may not be assigned without the prior written consent of the Company.
11. Choice of Law; Attorneys’ Fees; Arbitration. This Agreement and the rights and obligations of the parties hereunder will be governed by, and construed and enforced in accordance with, the laws of the State of New York, excluding any such laws that direct the application of the laws of any other jurisdiction. The Released Parties are intended third party beneficiaries of Employee’s obligations under this Agreement. In any action in which any of the Released Parties seeks to enforce this Agreement, in addition to available legal and equitable damages, it will be entitled to recover from Employee its reasonable attorneys’ fees and costs associated with such action. Any and all disputes related to or arising out of this Agreement shall be subject to the mandatory arbitration provisions of the Employment Agreement as though expressly incorporated herein.
12. Return of Severance Benefits. In addition to any other legal and/or equitable remedies, if it is judicially determined that Employee has breached this Agreement or any other contractual or legal obligation Employee owes to any of the Released Parties, then the Company shall be entitled to suspend payment of the severance benefits set forth in the Employment Agreement and Employee will be required to repay all severance benefits as set forth in the Employment Agreement, provided that he may retain $5,000. The exercise and/or availability of such remedy will not affect the validity of the release and other obligations of Employee as set forth in this Agreement or otherwise, nor will they limit the other legal and/or equitable remedies otherwise available to any of the Released Parties.
13. Interpretation; Severability. This Agreement shall be enforceable to the fullest extent permitted by law. If any provision is held to be unenforceable, then such provision will be construed or revised in a manner so as to permit its enforceability to the fullest extent permitted by applicable law. If such provision cannot be reformed in that manner, such provision will be deemed to be severed from this Agreement, but every other provision of this Agreement will remain in full force and effect.
14. Section 409A. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the final regulations issued thereunder (“Section 409A”), or an exemption under Section 409A and shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under or in connection with the execution of this Agreement will be made in a manner that complies with Code Section 409A or an applicable exemption.
15. Entire Agreement. This Agreement reflects the entire agreement of the parties relative to the subject matter hereof, and supersedes all prior, contemporaneous, oral or written understandings, agreements, statements, representations or promises regarding the subject matter hereof. For the avoidance of doubt, this Agreement does not supersede any post-termination obligations of Employee under the Employment Agreement, or any restrictive covenant agreement between Employee or any other Released Party, including but not limited to the Restrictive Covenant Agreement between CANB and Employee executed contemporaneously with the Employment Agreement. This Agreement may not be amended, modified, waived or terminated except in a writing signed by Employee and the Company’s signatory to this Agreement. Further, the waiver by a party of a breach of any provision of this Agreement by the other will not operate or be construed as a waiver of any subsequent breach of the same or other provision of this Agreement.
16. Employee’s Acknowledgment. Employee represents that he has fully read and understands the meaning and application of this Agreement and all exhibits thereto; that he is not relying on any representation, statement, and/or promise not set forth in this Agreement; that the Company and Released Parties have advised him/her to consult with independent legal counsel; and that Employee is signing this Agreement of his/her own free will.
The parties hereto confirm their agreement by the signatures shown below.
| EXECUTIVE | CAN B CORP. | ||
| By: | |||
| Stanley L. Teeple | Marco Alfonsi, CEO | ||
Exhibit 10.69
AMENDMENT MODIFICATION
TO
CONVERTIBLE PROMISSORY NOTE
This Amendment Modification to Convertible Promissory Note(s) (this “Amendment”) is made effective as of August 7, 2023, by CAN B CORP., a Florida corporation (the “Company”); and CLEARTHINK CAPITAL PARTNERS, LLC, a Delaware limited liability company, or its assigns (the “Holder”).
WHEREAS, the Holder maintains ownership in certain Convertible Promissory Note(s) and prior Amendments to the Holder total in aggregate in the amount of Nine Hundred Thirty-Seven Thousand Seven Hundred Fifty and No/100 United States Dollars (US$937,750) plus 12% accrued annual interest;
WHEREAS, the parties to this Amendment desire to amend certain terms of the Note, as set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1.Defined Terms. Except as expressly provided in this Amendment, all capitalized terms used in this Amendment have meanings ascribed to them in the Note and those definitions are incorporated by reference into this Amendment.
2. Aggregate and Increase in Principal. In additional to the above cited Nine Hundred Thirty-Seven Thousand Seven Hundred Fifty and No/100 United States Dollars (US$937,750) plus 12% accrued annual interest, the Principal is increased by a $100,000 additional investment (made on August 4, 2023) and a $100,000 inducement for the additional investment to $1,137,750 plus accrued interest.
3. Maturity Extension. The Promissory Note is due February 4, 2024.
4. Additional Commitment Shares. An additional 250,000 restricted common shares shall be issued in the name of ClearThink Capital Partners upon execution of this Agreement.
5. Most Favored Nation. Remains in place.
6. Default. In the event the planned funding and Nasdaq uplisting does not occur by the Maturity Date, the Lender retains all remedies allowed by law under the terms of the Notes.
7. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original as against the party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Amendment shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all the parties reflected hereon as the signatories.
8. Third Parties. Except as specifically set forth or referred to herein, nothing herein express of implied is intended or shall be construed to confer upon or give to any person other than the parties hereto and their permitted successors or assigns, any claims, rights, remedies under or by reason of this Amendment.
9. Governing Law. This Amendment shall be governed and construed in accordance with the laws of the State of Nevada applicable to agreements made and to be performed entirely within such State and the federal laws of the United States of America, without regard to the conflict of laws rules thereof.
10. No Other Amendment. All other terms and conditions of the Note shall remain in full force and effect and the Note shall be read and construed as if the terms of this Amendment were included therein by way of addition or substitution, as the case may be.
[signature page follows]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date set forth above.
| CAN B CORP. | ||
| By: | /s/ Marco Alfonsi | |
| Name: | Marco Alfonsi | |
| Title: | Chief Executive Officer | |
| CLEARTHINK CAPITAL PARTNERS, LLC | ||
| By: | /s/ Jeffrey Hart | |
| Name: | Jeffrey Hart | |
| Title: | Managing Member | |
Exhibit 10.70
THE SECURITIES OFFERED HEREBY AND THE SECURITIES TO WHICH THEY CONVERT HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE “SECURITIES ACT”).
PROMISSORY NOTE
Principal Sum: $15,000.00
Actual Amount of Purchase Price $10,000.00
Effective Date: September 27, 2023
FOR VALUE RECEIVED, Can B Corp., a Florida corporation, its successors and assigns (the “Company) promises to pay to the order of ClearThink Capital Partners, LLC, a Delaware limited liability company, its successors and assigns (“Holder”), in immediately available funds, the aggregate principal amount set forth above (the “Purchase Price”), plus all accrued interest thereon, in accordance with the terms of this Promissory Note (“Note”).
1. Interest. The outstanding Purchase Price of this Note shall bear interest at an annual rate equal to 12% simple interest (“Interest”), payable upon the Maturity Date, unless earlier converted to shares of the Company in accordance herewith. Interest shall be calculated on the basis of a 360 day year, comprised of 12 equal months 30 days long each.
2. Maturity. This Note shall mature September 27, 2024 (“Maturity Date”), at which time the Purchase Price and all unpaid Interest shall become due and payable in full.
3. Payment. All payments (including prepayments) hereunder are to be applied first to the payment of fees due hereunder, then accrued Interest and then the remaining balance shall be applied to the payment of the Purchase Price. The Company may prepay this Note, in whole or in part, without premium or penalty; provided that, it gives Holder written notice of its intent to prepay at least five (5) days in advance, during which time Holder will be permitted to convert this Note in accordance with the below conversion terms. Payments shall be made to Holder at the address listed in Section 10, hereof. The company shall have a five (5) day grace period for all payments due hereunder.
4. Default. The Company’s failure to comply with any material term, obligation, covenant, or condition contained in this Note shall be considered an event of default. During an event of default, Interest under this note shall be increased to 15% per year and Holder shall have all remedies available under law and equity.
5. Conversion.
a. Conversion Terms. At any time prior to or after the Maturity Date, Holder may elect to convert the unpaid Purchase Price and Interest under this Note, or any portion thereof, into shares of common stock of the Company (“Shares”) in accordance with the terms hereof. Any amount so converted will be converted into common stock of the Company at a conversion price of $0.0772 per share.
| -1- |
b. Conversion Method. In order to affect the conversion of all or part of this Note, the Holder shall issue a notice of conversion substantially in the form attached hereto as Exhibit “A” (the “Conversion Notice”). The Company shall maintain records showing the amounts converted and the date of such conversions. Each conversion of this Note will be deemed to have been affected as of the close of business on the date on which such Conversion Notice is delivered to the principal office of the Company in accordance herewith. At such time, to the extent that any portion of the Note is converted, the rights of the Holder with respect to such portion of the Note shall cease and the Holder shall be deemed to have become the holder of record of the Shares so converted. Holder shall have no rights of a shareholder of the Company until conversion. Holder shall surrender this Note upon full conversion of the Purchase Price and unpaid Interest. The Company will have two (2) business days from receipt of the Conversion Notice to issue the Shares.
c. Ownership Limitations. Notwithstanding any other provision of this Note, Holder may not convert this Note if such conversion would cause Holder’s beneficial ownership (as defined by Section 13(d) of the Securities Exchange Act of 1934, as amended) of the Company to exceed 4.9% of its total issued and outstanding common or voting shares. Notwithstanding the foregoing, upon not less than sixty-one (61) days’ advance written notice, at any time or from time to time, the Holder, at its sole discretion, may waive this 4.9% conversion limit. However, the Holder may not, in any case, convert this Note if such conversion would cause Holder’s beneficial ownership (as defined by Section 13(d) of the Securities Exchange Act of 1934, as amended) of the Company to exceed 9.9% of its total issued and outstanding common or voting shares.
d. Fractional Shares. No fractional Shares shall be issued upon conversion of this Note. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall round up to the nearest whole Share of common stock.
e. Concerning the Shares. The Shares of common stock issuable upon conversion of this Note may not be sold or transferred unless (i) such shares are sold pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Act”) or (ii) the Company or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration or (iii) such shares are sold or transferred pursuant to Rule 144 under the Act (or a successor rule) (“Rule 144”) or (iv) such shares are transferred to an “affiliate” (as defined in Rule 144) of the Company who agrees to sell or otherwise transfer the shares only in accordance with this Section and who is an Accredited Investor (as defined in the Act). Until such time as the Shares of common stock issuable upon conversion of this Note have been registered under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold, each certificate for Shares issuable upon conversion of this Note that has not been so included in an effective registration statement or that has not been sold pursuant to an effective registration statement or an exemption that permits removal of the legend, shall bear a legend substantially in the following form, as appropriate:
“NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
| -2- |
The legend set forth above shall be removed and the Company shall issue to the Holder a new certificate therefore free of any transfer legend if (i) the Company or its transfer agent shall have received an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Common Stock may be made without registration under the Act, which opinion shall be reasonably accepted by the Company so that the sale or transfer is effected or (ii) in the case of the common stock issuable upon conversion of this Note, such security is registered for sale by the Holder under an effective registration statement filed under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold.
f. Adjustment for Reclassifications. In case, at any time prior to the Note being paid in full, the Company undertakes any capital reorganization, reclassification of its common stock, the consolidation or merger of the Company with or into another entity (other than when the Company is the surviving entity), or of the sale or other disposition of all or substantially all the properties and assets of the Company in its entirety to any other person, the Note shall, after such reorganization, reclassification, consolidation, merger, sale or other disposition (a “Reclassification”), be exercisable so that upon conversion the Holder shall procure, in lieu of each Share, the kind and amount of shares of stock, other securities, money, or property receivable upon such Reclassification by the holder of one share of common stock issuable upon conversion of the Note as if the Note had been converted immediately prior to such Reclassification. The provisions of this section, 5(f), shall similarly apply to successive Reclassifications.
g. Adjustments for Stock Dividends; Combinations, Etc. In case the Company shall do any of the following (an “Event”):
| (i) | declare a dividend or other distribution on its common stock payable in common stock of the Company, | |
| (ii) | subdivide or combine the outstanding common stock pursuant to a stock split or otherwise, or | |
| (iii) | reclassify its common stock, |
then the number of Shares at the time issuable upon conversion of this Note and the Conversion Price shall be appropriately proportionately adjusted to reflect any such Event.
h. Reserve. The Company shall cause its transfer agent to initially reserve 100,000 Shares of common stock for issuance upon conversion of this Note. Such number will be proportionately reduced with each conversion of this Note.
i. Exchange of Note. The Holder may exchange the balance of Purchase Price and Interest under this Note into a future registered offering by the Company on form S-1, if any, pursuant to the terms of such offering as permitted by the Act and its rules and regulations.
6. Commitment Shares. Upon Holder fully funding the Purchase Price of this Note, the Company will issue Holder one hundred thousand (100,000) Shares or restricted common stock. The transfer and sale of such stock shall be subject to the limitations set forth in Section (e) hereof.
| -3- |
7. No Waiver. No waiver of any provision under the Note shall be implied from any failure of Holder to take, or any delay by Holder in taking, action with respect to any such provision or from any previous waiver of any similar or unrelated provision. A waiver of any term of the Note must be made in writing and shall be limited to the written terms of such waiver.
8. Governing Law; Venue. The Note shall be governed by and construed in accordance with the laws of the State of New York, without resort to any conflict of laws principles, and the courts of the State of New York shall have sole and exclusive jurisdiction over any matter brought under, or by reason of, the Note.
9. Amendments in Writing. The Note may not be changed, modified or amended expect in writing signed by the parties.
10. Notice. Any notice or communication required or permitted hereunder shall be made in writing and given by facsimile, certified mail, hand delivery or overnight mail to the address provided below, unless an alternative address is provided in writing. Each party may change the address or addressee to receive notice from time to time by giving notice in the foregoing manner. The person entitled to notice may waive any notice required under this Agreement in writing. Simultaneous email verification of any notice issued under this Section is requested, but not required. Notices may be given on behalf of a party by its attorney:
If to the Company:
Can B Corp.
Attn: Marco Alfonsi
960 South Broadway, Suite 120
Hicksville, NY 11801
If to the Holder:
Clear Think Capital Partners LLC
Attn: Jeffrey Hart
210 West 77th Street, #7W,
New York, NY 10024
11. Construction. Every covenant, term, and provision of this Note shall be construed simply according to its fair meaning and not strictly for or against the Company or Holder. Headings and numbers have been set forth for convenience only. Unless the contrary is compelled by the context, the language set forth in each section applies equally to the entire Note.
12. Severability. Any provision of this Note which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or thereof, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.
13. Successors and Assigns; Transfer. This Note is binding upon the successors and assigns of the Company and will inure to the benefit of the Holder and its respective successors and permitted assigns. The Holder may not assign, participate, pledge, grant a security interest in, or otherwise transfer all or any portion of its rights and obligations under this Note without the prior written consent of the Company, which will not be unreasonably withheld.
| -4- |
14. Entire Agreement. This Note and its attachments represent the final, entire agreement between the parties regarding the subject matter hereof and thereof and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.
15. Holder Representations. By accepting this Note, Holder represents and warrants that it is acquiring this Notes and the Shares into which it converts for its own account and not with a view towards distribution. Holder has had the opportunity to ask questions of and receive answers from the Company regarding this Note, the Shares and the Company’s business. Holder is an accredited investor, as such term is defined in Rule 501 under the Act.
16. Conformity with Law. It is the intention of the Company and of the Holder to conform strictly to applicable usury and similar laws. Accordingly, notwithstanding anything to the contrary in this Note, it is agreed that the aggregate of all charges which constitute interest under applicable usury and similar laws that are contracted for, chargeable or receivable under or in respect of this Note, shall under no circumstances exceed the maximum amount of interest permitted by such laws, and any excess, whether occasioned by acceleration or maturity of this Note or otherwise, shall be canceled automatically, and if theretofore paid, shall be either refunded to the Company or credited on the Principal Amount of this Note.
IN WITNESS WHEREOF, Company has caused this Note to be Made and executed as of January 12, 2023
| Can B Corp. | |
| /s/ Marco Alfonsi | |
| Marco Alfonsi, CEO |
| -5- |
EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Registered Holder in order to Convert the Note)
The undersigned hereby irrevocably elects to convert $___________ of the above Note into _________ Shares of Common Stock of Can B Corp. (“Shares”) according to the conditions set forth in such Note, as of the date written below.
If Shares are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer and other taxes and charges payable with respect thereto.
Date of Conversion: _________________________________________________________________
Applicable Conversion Price: __________________________________________________________
Signature: _________________________________________________________________________
[Print Name of Holder and Title of Signer]
| Address: | _______________________________________________________________________ |
| _______________________________________________________________________ |
SSN or EIN: _______________________________
Shares are to be registered in the following name: ____________________________________________________
Name: ____________________________________________________________________________
Address: __________________________________________________________________________
Tel: ________________________________________________
Fax: ________________________________________________
SSN or EIN: __________________________________________
Shares are to be sent or delivered to the following account:
Account Name: _____________________________________________________________________
Address: __________________________________________________________________________
| -6- |
Exhibit 10.71
THE SECURITIES OFFERED HEREBY AND THE SECURITIES TO WHICH THEY CONVERT HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE “SECURITIES ACT”).
PROMISSORY NOTE
Principal Sum: $50,000.00
Actual Amount of Purchase Price $75,000.00
Effective Date: December 20, 2023
FOR VALUE RECEIVED, Can B Corp., a Florida corporation, its successors and assigns (the “Company) promises to pay to the order of Clear Think Capital Partners, LLC, a Delaware limited liability company, its successors and assigns (“Holder”), in immediately available funds, the aggregate principal amount set forth above (the “Purchase Price”), plus all accrued interest thereon, in accordance with the terms of this Promissory Note (“Note”).
1. Interest. The outstanding Purchase Price of this Note shall bear interest at an annual rate equal to 12% simple interest (“Interest”), payable upon the Maturity Date, unless earlier converted to shares of the Company in accordance herewith. Interest shall be calculated on the basis of a 360 day year, comprised of 12 equal months 30 days long each.
2. Maturity. This Note shall mature June 20, 2024 (“Maturity Date”), at which time the Purchase Price and all unpaid Interest shall become due and payable in full.
3. Payment. All payments (including prepayments) hereunder are to be applied first to the payment of fees due hereunder, then accrued Interest and then the remaining balance shall be applied to the payment of the Purchase Price. The Company may prepay this Note, in whole or in part, without premium or penalty; provided that, it gives Holder written notice of its intent to prepay at least five (5) days in advance, during which time Holder will be permitted to convert this Note in accordance with the below conversion terms. Payments shall be made to Holder at the address listed in Section 10, hereof. The company shall have a five (5) day grace period for all payments due hereunder.
4. Default. The Company’s failure to comply with any material term, obligation, covenant, or condition contained in this Note shall be considered an event of default. During an event of default, Interest under this note shall be increased to 15% per year and Holder shall have all remedies available under law and equity.
5. Conversion.
a. Conversion Terms. At any time prior to or after the Maturity Date, Holder may elect to convert the unpaid Purchase Price and Interest under this Note, or any portion thereof, into shares of common stock of the Company (“Shares”) in accordance with the terms hereof. Any amount so converted will be converted into common stock of the Company at a conversion price of $.0772 per share.
| -1- |
b. Conversion Method. In order to affect the conversion of all or part of this Note, the Holder shall issue a notice of conversion substantially in the form attached hereto as Exhibit “A” (the “Conversion Notice”). The Company shall maintain records showing the amounts converted and the date of such conversions. Each conversion of this Note will be deemed to have been affected as of the close of business on the date on which such Conversion Notice is delivered to the principal office of the Company in accordance herewith. At such time, to the extent that any portion of the Note is converted, the rights of the Holder with respect to such portion of the Note shall cease and the Holder shall be deemed to have become the holder of record of the Shares so converted. Holder shall have no rights of a shareholder of the Company until conversion. Holder shall surrender this Note upon full conversion of the Purchase Price and unpaid Interest. The Company will have two (2) business days from receipt of the Conversion Notice to issue the Shares.
c. Ownership Limitations. Notwithstanding any other provision of this Note, Holder may not convert this Note if such conversion would cause Holder’s beneficial ownership (as defined by Section 13(d) of the Securities Exchange Act of 1934, as amended) of the Company to exceed 4.9% of its total issued and outstanding common or voting shares. Notwithstanding the foregoing, upon not less than sixty-one (61) days’ advance written notice, at any time or from time to time, the Holder, at its sole discretion, may waive this 4.9% conversion limit. However, the Holder may not, in any case, convert this Note if such conversion would cause Holder’s beneficial ownership (as defined by Section 13(d) of the Securities Exchange Act of 1934, as amended) of the Company to exceed 9.9% of its total issued and outstanding common or voting shares.
d. Fractional Shares. No fractional Shares shall be issued upon conversion of this Note. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall round up to the nearest whole Share of common stock.
e. Concerning the Shares. The Shares of common stock issuable upon conversion of this Note may not be sold or transferred unless (i) such shares are sold pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Act”) or (ii) the Company or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration or (iii) such shares are sold or transferred pursuant to Rule 144 under the Act (or a successor rule) (“Rule 144”) or (iv) such shares are transferred to an “affiliate” (as defined in Rule 144) of the Company who agrees to sell or otherwise transfer the shares only in accordance with this Section and who is an Accredited Investor (as defined in the Act). Until such time as the Shares of common stock issuable upon conversion of this Note have been registered under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold, each certificate for Shares issuable upon conversion of this Note that has not been so included in an effective registration statement or that has not been sold pursuant to an effective registration statement or an exemption that permits removal of the legend, shall bear a legend substantially in the following form, as appropriate:
“NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
| -2- |
The legend set forth above shall be removed and the Company shall issue to the Holder a new certificate therefore free of any transfer legend if (i) the Company or its transfer agent shall have received an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Common Stock may be made without registration under the Act, which opinion shall be reasonably accepted by the Company so that the sale or transfer is effected or (ii) in the case of the common stock issuable upon conversion of this Note, such security is registered for sale by the Holder under an effective registration statement filed under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold.
f. Adjustment for Reclassifications. In case, at any time prior to the Note being paid in full, the Company undertakes any capital reorganization, reclassification of its common stock, the consolidation or merger of the Company with or into another entity (other than when the Company is the surviving entity), or of the sale or other disposition of all or substantially all the properties and assets of the Company in its entirety to any other person, the Note shall, after such reorganization, reclassification, consolidation, merger, sale or other disposition (a “Reclassification”), be exercisable so that upon conversion the Holder shall procure, in lieu of each Share, the kind and amount of shares of stock, other securities, money, or property receivable upon such Reclassification by the holder of one share of common stock issuable upon conversion of the Note as if the Note had been converted immediately prior to such Reclassification. The provisions of this section, 5(f), shall similarly apply to successive Reclassifications.
g. Adjustments for Stock Dividends; Combinations, Etc. In case the Company shall do any of the following (an “Event”):
(i) declare a dividend or other distribution on its common stock payable in common stock of the Company,
(ii) subdivide or combine the outstanding common stock pursuant to a stock split or otherwise, or
(iii) reclassify its common stock,
then the number of Shares at the time issuable upon conversion of this Note and the Conversion Price shall be appropriately proportionately adjusted to reflect any such Event.
h. Reserve. The Company shall cause its transfer agent to initially reserve 100,000 Shares of common stock for issuance upon conversion of this Note. Such number will be proportionately reduced with each conversion of this Note.
i. Exchange of Note. The Holder may exchange the balance of Purchase Price and Interest under this Note into a future registered offering by the Company on form S-1, if any, pursuant to the terms of such offering as permitted by the Act and its rules and regulations.
| -3- |
6. Commitment Shares. Upon Holder fully funding the Purchase Price of this Note, the Company will issue Holder five hundred thousand (500,000) Shares or restricted common stock. The transfer and sale of such stock shall be subject to the limitations set forth in Section (e) hereof.
7. No Waiver. No waiver of any provision under the Note shall be implied from any failure of Holder to take, or any delay by Holder in taking, action with respect to any such provision or from any previous waiver of any similar or unrelated provision. A waiver of any term of the Note must be made in writing and shall be limited to the written terms of such waiver.
8. Governing Law; Venue. The Note shall be governed by and construed in accordance with the laws of the State of New York, without resort to any conflict of laws principles, and the courts of the State of New York shall have sole and exclusive jurisdiction over any matter brought under, or by reason of, the Note.
9. Amendments in Writing. The Note may not be changed, modified or amended expect in writing signed by the parties.
10. Notice. Any notice or communication required or permitted hereunder shall be made in writing and given by facsimile, certified mail, hand delivery or overnight mail to the address provided below, unless an alternative address is provided in writing. Each party may change the address or addressee to receive notice from time to time by giving notice in the foregoing manner. The person entitled to notice may waive any notice required under this Agreement in writing. Simultaneous email verification of any notice issued under this Section is requested, but not required. Notices may be given on behalf of a party by its attorney:
If to the Company:
Can B Corp.
Attn: Marco Alfonsi
960 South Broadway, Suite 120
Hicksville, NY 11801
If to the Holder:
Clear Think Capital Partners LLC
Attn: Jeffrey Hart
210 West 77th Street, #7W,
New York, NY 10024
11. Construction. Every covenant, term, and provision of this Note shall be construed simply according to its fair meaning and not strictly for or against the Company or Holder. Headings and numbers have been set forth for convenience only. Unless the contrary is compelled by the context, the language set forth in each section applies equally to the entire Note.
12. Severability. Any provision of this Note which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or thereof, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.
13. Successors and Assigns; Transfer. This Note is binding upon the successors and assigns of the Company and will inure to the benefit of the Holder and its respective successors and permitted assigns. The Holder may not assign, participate, pledge, grant a security interest in, or otherwise transfer all or any portion of its rights and obligations under this Note without the prior written consent of the Company, which will not be unreasonably withheld.
| -4- |
14. Entire Agreement. This Note and its attachments represent the final, entire agreement between the parties regarding the subject matter hereof and thereof and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.
15. Holder Representations. By accepting this Note, Holder represents and warrants that it is acquiring this Notes and the Shares into which it converts for its own account and not with a view towards distribution. Holder has had the opportunity to ask questions of and receive answers from the Company regarding this Note, the Shares and the Company’s business. Holder is an accredited investor, as such term is defined in Rule 501 under the Act.
16. Conformity with Law. It is the intention of the Company and of the Holder to conform strictly to applicable usury and similar laws. Accordingly, notwithstanding anything to the contrary in this Note, it is agreed that the aggregate of all charges which constitute interest under applicable usury and similar laws that are contracted for, chargeable or receivable under or in respect of this Note, shall under no circumstances exceed the maximum amount of interest permitted by such laws, and any excess, whether occasioned by acceleration or maturity of this Note or otherwise, shall be canceled automatically, and if theretofore paid, shall be either refunded to the Company or credited on the Principal Amount of this Note.
IN WITNESS WHEREOF, Company has caused this Note to be Made and executed as of January 12, 2023
| Can B Corp. | |
| s/ Marco Alfonsi |
| -5- |
EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Registered Holder in order to Convert the Note)
The undersigned hereby irrevocably elects to convert $___________ of the above Note into _________ Shares of Common Stock of Can B Corp. (“Shares”) according to the conditions set forth in such Note, as of the date written below.
If Shares are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer and other taxes and charges payable with respect thereto.
Date of Conversion: ___________________________________________________________
Applicable Conversion Price: ____________________________________________________
Signature: ___________________________________________________________________
[Print Name of Holder and Title of Signer]
| Address: | _____________________________________________________________________ |
| _____________________________________________________________________ |
SSN or EIN: _______________________________
Shares are to be registered in the following name: ____________________________________________________
Name: ___________________________________________________________________________
Address: _________________________________________________________________________
Tel: ________________________________________
Fax: ________________________________________
SSN or EIN: __________________________________
Shares are to be sent or delivered to the following account:
Account Name: _____________________________________________________________________
Address: __________________________________________________________________________
| -6- |
Exhibit 10.72
THE SECURITIES OFFERED HEREBY AND THE SECURITIES TO WHICH THEY CONVERT HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE “SECURITIES ACT”).
PROMISSORY NOTE
Principal Sum: $75,000.00
Actual Amount of Purchase Price $50,000.00
Effective Date: February 29, 2024
FOR VALUE RECEIVED, Can B Corp., a Florida corporation, its successors and assigns (the “Company) promises to pay to the order of ClearThink Capital Partners, LLC, a Delaware limited liability company, its successors and assigns (“Holder”), in immediately available funds, the aggregate principal amount set forth above (the “Purchase Price”), plus all accrued interest thereon, in accordance with the terms of this Promissory Note (“Note”).
1. Interest. The outstanding Purchase Price of this Note shall bear interest at an annual rate equal to 12% simple interest (“Interest”), payable upon the Maturity Date, unless earlier converted to shares of the Company in accordance herewith. Interest shall be calculated on the basis of a 360 day year, comprised of 12 equal months 30 days long each.
2. Maturity. This Note shall mature November 29, 2024 (“Maturity Date”), at which time the Purchase Price and all unpaid Interest shall become due and payable in full.
3. Payment. All payments (including prepayments) hereunder are to be applied first to the payment of fees due hereunder, then accrued Interest and then the remaining balance shall be applied to the payment of the Purchase Price. The Company may prepay this Note, in whole or in part, without premium or penalty; provided that, it gives Holder written notice of its intent to prepay at least five (5) days in advance, during which time Holder will be permitted to convert this Note in accordance with the below conversion terms. Payments shall be made to Holder at the address listed in Section 10, hereof. The company shall have a five (5) day grace period for all payments due hereunder.
4. Default. The Company’s failure to comply with any material term, obligation, covenant, or condition contained in this Note shall be considered an event of default. During an event of default, Interest under this note shall be increased to 15% per year and Holder shall have all remedies available under law and equity.
5. Conversion.
a. Conversion Terms. At any time prior to or after the Maturity Date, Holder may elect to convert the unpaid Purchase Price and Interest under this Note, or any portion thereof, into shares of common stock of the Company (“Shares”) in accordance with the terms hereof. Any amount so converted will be converted into common stock of the Company at a conversion price of $0.0772 per share.
| -1- |
b. Conversion Method. In order to affect the conversion of all or part of this Note, the Holder shall issue a notice of conversion substantially in the form attached hereto as Exhibit “A” (the “Conversion Notice”). The Company shall maintain records showing the amounts converted and the date of such conversions. Each conversion of this Note will be deemed to have been affected as of the close of business on the date on which such Conversion Notice is delivered to the principal office of the Company in accordance herewith. At such time, to the extent that any portion of the Note is converted, the rights of the Holder with respect to such portion of the Note shall cease and the Holder shall be deemed to have become the holder of record of the Shares so converted. Holder shall have no rights of a shareholder of the Company until conversion. Holder shall surrender this Note upon full conversion of the Purchase Price and unpaid Interest. The Company will have two (2) business days from receipt of the Conversion Notice to issue the Shares.
c. Ownership Limitations. Notwithstanding any other provision of this Note, Holder may not convert this Note if such conversion would cause Holder’s beneficial ownership (as defined by Section 13(d) of the Securities Exchange Act of 1934, as amended) of the Company to exceed 4.9% of its total issued and outstanding common or voting shares. Notwithstanding the foregoing, upon not less than sixty-one (61) days’ advance written notice, at any time or from time to time, the Holder, at its sole discretion, may waive this 4.9% conversion limit. However, the Holder may not, in any case, convert this Note if such conversion would cause Holder’s beneficial ownership (as defined by Section 13(d) of the Securities Exchange Act of 1934, as amended) of the Company to exceed 9.9% of its total issued and outstanding common or voting shares.
d. Fractional Shares. No fractional Shares shall be issued upon conversion of this Note. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall round up to the nearest whole Share of common stock.
e. Concerning the Shares. The Shares of common stock issuable upon conversion of this Note may not be sold or transferred unless (i) such shares are sold pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Act”) or (ii) the Company or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration or (iii) such shares are sold or transferred pursuant to Rule 144 under the Act (or a successor rule) (“Rule 144”) or (iv) such shares are transferred to an “affiliate” (as defined in Rule 144) of the Company who agrees to sell or otherwise transfer the shares only in accordance with this Section and who is an Accredited Investor (as defined in the Act). Until such time as the Shares of common stock issuable upon conversion of this Note have been registered under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold, each certificate for Shares issuable upon conversion of this Note that has not been so included in an effective registration statement or that has not been sold pursuant to an effective registration statement or an exemption that permits removal of the legend, shall bear a legend substantially in the following form, as appropriate:
“NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
| -2- |
The legend set forth above shall be removed and the Company shall issue to the Holder a new certificate therefore free of any transfer legend if (i) the Company or its transfer agent shall have received an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Common Stock may be made without registration under the Act, which opinion shall be reasonably accepted by the Company so that the sale or transfer is effected or (ii) in the case of the common stock issuable upon conversion of this Note, such security is registered for sale by the Holder under an effective registration statement filed under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold.
f. Adjustment for Reclassifications. In case, at any time prior to the Note being paid in full, the Company undertakes any capital reorganization, reclassification of its common stock, the consolidation or merger of the Company with or into another entity (other than when the Company is the surviving entity), or of the sale or other disposition of all or substantially all the properties and assets of the Company in its entirety to any other person, the Note shall, after such reorganization, reclassification, consolidation, merger, sale or other disposition (a “Reclassification”), be exercisable so that upon conversion the Holder shall procure, in lieu of each Share, the kind and amount of shares of stock, other securities, money, or property receivable upon such Reclassification by the holder of one share of common stock issuable upon conversion of the Note as if the Note had been converted immediately prior to such Reclassification. The provisions of this section, 5(f), shall similarly apply to successive Reclassifications.
g. Adjustments for Stock Dividends; Combinations, Etc. In case the Company shall do any of the following (an “Event”):
(i) declare a dividend or other distribution on its common stock payable in common stock of the Company,
(ii) subdivide or combine the outstanding common stock pursuant to a stock split or otherwise, or
(iii) reclassify its common stock,
then the number of Shares at the time issuable upon conversion of this Note and the Conversion Price shall be appropriately proportionately adjusted to reflect any such Event.
h. Reserve. The Company shall cause its transfer agent to initially reserve 100,000 Shares of common stock for issuance upon conversion of this Note. Such number will be proportionately reduced with each conversion of this Note.
i. Exchange of Note. The Holder may exchange the balance of Purchase Price and Interest under this Note into a future registered offering by the Company on form S-1, if any, pursuant to the terms of such offering as permitted by the Act and its rules and regulations.
6. Commitment Shares. Upon Holder fully funding the Purchase Price of this Note, the Company will issue Holder two hundred fifty thousand (250,000) Shares or restricted common stock. The transfer and sale of such stock shall be subject to the limitations set forth in Section (e) hereof.
| -3- |
7. No Waiver. No waiver of any provision under the Note shall be implied from any failure of Holder to take, or any delay by Holder in taking, action with respect to any such provision or from any previous waiver of any similar or unrelated provision. A waiver of any term of the Note must be made in writing and shall be limited to the written terms of such waiver.
8. Governing Law; Venue. The Note shall be governed by and construed in accordance with the laws of the State of New York, without resort to any conflict of laws principles, and the courts of the State of New York shall have sole and exclusive jurisdiction over any matter brought under, or by reason of, the Note.
9. Amendments in Writing. The Note may not be changed, modified or amended expect in writing signed by the parties.
10. Notice. Any notice or communication required or permitted hereunder shall be made in writing and given by facsimile, certified mail, hand delivery or overnight mail to the address provided below, unless an alternative address is provided in writing. Each party may change the address or addressee to receive notice from time to time by giving notice in the foregoing manner. The person entitled to notice may waive any notice required under this Agreement in writing. Simultaneous email verification of any notice issued under this Section is requested, but not required. Notices may be given on behalf of a party by its attorney:
If to the Company:
Can B Corp.
Attn: Marco Alfonsi
960 South Broadway, Suite 120
Hicksville, NY 11801
If to the Holder:
Clear Think Capital Partners LLC
Attn: Jeffrey Hart
10 Times Square
New York, NY 10018
11. Construction. Every covenant, term, and provision of this Note shall be construed simply according to its fair meaning and not strictly for or against the Company or Holder. Headings and numbers have been set forth for convenience only. Unless the contrary is compelled by the context, the language set forth in each section applies equally to the entire Note.
12. Severability. Any provision of this Note which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or thereof, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.
13. Successors and Assigns; Transfer. This Note is binding upon the successors and assigns of the Company and will inure to the benefit of the Holder and its respective successors and permitted assigns. The Holder may not assign, participate, pledge, grant a security interest in, or otherwise transfer all or any portion of its rights and obligations under this Note without the prior written consent of the Company, which will not be unreasonably withheld.
| -4- |
14. Entire Agreement. This Note and its attachments represent the final, entire agreement between the parties regarding the subject matter hereof and thereof and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.
15. Holder Representations. By accepting this Note, Holder represents and warrants that it is acquiring this Notes and the Shares into which it converts for its own account and not with a view towards distribution. Holder has had the opportunity to ask questions of and receive answers from the Company regarding this Note, the Shares and the Company’s business. Holder is an accredited investor, as such term is defined in Rule 501 under the Act.
16. Conformity with Law. It is the intention of the Company and of the Holder to conform strictly to applicable usury and similar laws. Accordingly, notwithstanding anything to the contrary in this Note, it is agreed that the aggregate of all charges which constitute interest under applicable usury and similar laws that are contracted for, chargeable or receivable under or in respect of this Note, shall under no circumstances exceed the maximum amount of interest permitted by such laws, and any excess, whether occasioned by acceleration or maturity of this Note or otherwise, shall be canceled automatically, and if theretofore paid, shall be either refunded to the Company or credited on the Principal Amount of this Note.
IN WITNESS WHEREOF, Company has caused this Note to be Made and executed as of February 29, 2024.
| Can B Corp. | |
| s/ Marco Alfonsi |
| -5- |
EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Registered Holder in order to Convert the Note)
The undersigned hereby irrevocably elects to convert $___________ of the above Note into _________ Shares of Common Stock of Can B Corp. (“Shares”) according to the conditions set forth in such Note, as of the date written below.
If Shares are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer and other taxes and charges payable with respect thereto.
Date of Conversion: ___________________________________________________________
Applicable Conversion Price: ____________________________________________________
Signature: ___________________________________________________________________
[Print Name of Holder and Title of Signer]
| Address: | _____________________________________________________________________ |
| _____________________________________________________________________ |
SSN or EIN: _______________________________
Shares are to be registered in the following name: ____________________________________________________
Name: ___________________________________________________________________________
Address: _________________________________________________________________________
Tel: ________________________________________
Fax: ________________________________________
SSN or EIN: __________________________________
Shares are to be sent or delivered to the following account:
Account Name: _____________________________________________________________________
Address: __________________________________________________________________________
| -6- |