Can B Corp 10-Q for FY2020 Q3
Can B Corp (NASC)
About this 10-Q
Can B Corp filed this 10-Q on November 16, 2020, covering the quarter ended September 30, 2020 (FY2020 Q3).
Headline figures
Quarter ended September 30, 2020, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $459.5K
- down 25.3% from $615.42K a year earlier
- Net loss
- $1.23M
- compared with a net loss of $941.1K a year earlier
- Diluted EPS
- -$0.31
- compared with -$0.32 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2020
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
COMMISSION FILE NUMBER: 000-55753
Can B̅ Corp.
(Exact name of registrant as specified in its charter)
| Florida | 20-3624118 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
960 South Broadway, Suite 120
Hicksville, NY 11801
(Address of principal executive offices)
516-595-9544
(Registrant’s telephone number, including area code)
Canbiola, Inc.
(Former name, former address and former fiscal, if changed since last report)
Securities Registered Pursuant to Section 12(b) of the Act:
| Tile of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Common Stock | CANB | N/A |
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. Yes [X] No [ ]
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). Yes [X] No [ ]
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 | [ ] |
| Non-accelerated filer | [X] | Smaller reporting company | [X] |
| Emerging Growth Company | [ ] | ||
| (Do not check if smaller reporting company) | |||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). [ ] Yes [X] No
The number of shares of the registrant’s only class of common stock issued and outstanding as of November 9, 2020 was 4,915,173 shares.
Can B Corp
FORM 10-Q
September 30, 2020
TABLE OF CONTENTS
| 2 |
PART 1 - FINANCIAL INFORMATION
Can B̅ Corp. and Subsidiary
(Unaudited) September 30, | December 31, | |||||||
| 2020 | 2019 | |||||||
| Assets | ||||||||
| Current assets: | ||||||||
| Cash and cash equivalents | $ | 45,506 | $ | 46,540 | ||||
| Accounts receivable, less allowance for doubtful accounts of $455,620 and $253,483, respectively | 1,740,147 | 1,251,609 | ||||||
| Inventory | 914,129 | 784,497 | ||||||
| Note Receivable | 22,787 | 24,268 | ||||||
| Prepaid expenses - current | 1,246,637 | 1,279,901 | ||||||
| Total current assets | 3,969,206 | 3,386,815 | ||||||
| Property and equipment, at cost less accumulated depreciation of $209,554 and $116,555, respectively | 1,025,859 | 1,075,242 | ||||||
| Other assets: | ||||||||
| Deposit - noncurrent | 21,287 | 21,287 | ||||||
| Prepaid expenses - noncurrent | 298,104 | 1,179,929 | ||||||
| Other receivable – noncurrent | 24,492 | 58,206 | ||||||
| Intangible assets, net of accumulated amortization of $649,077 and $202,521, respectively | 811,193 | 1,056,562 | ||||||
| Goodwill | 55,849 | 55,849 | ||||||
| Right-of-Use Asset, net of amortization of $35,024 and $6,280, respectively | 68,236 | 96,980 | ||||||
| Total other assets | 1,279,161 | 2,468,813 | ||||||
| Total assets | $ | 6,274,226 | $ | 6,930,870 | ||||
| Liabilities and Stockholders’ Deficiency | ||||||||
| Current liabilities: | ||||||||
| Accounts payable | 447,628 | 226,467 | ||||||
| Accrued officers’ compensation | 279,319 | 144,363 | ||||||
| Other accrued expenses payable | 91,113 | 61,557 | ||||||
| Notes and loans payable | 1,225,898 | 35,000 | ||||||
| Current portion of lease liability | 42,322 | 38,281 | ||||||
| Total current liabilities | 2,086,280 | 505,668 | ||||||
| Long-term liabilities: | ||||||||
| Non-current portion of lease liability | 26,778 | 58,998 | ||||||
| Notes and loans payable | 354,840 | - | ||||||
| Total long-term liabilities | 381,618 | 58,998 | ||||||
| Total liabilities | 2,467,898 | 564,666 | ||||||
| Commitments and contingencies (Notes 15) | ||||||||
| Stockholders’ equity: | ||||||||
| Preferred stock, authorized 5,000,000 shares: | ||||||||
| Series A Preferred stock, no par value: | ||||||||
| authorized 20 shares, issued and outstanding 20 shares, respectively | 5,539,174 | 5,539,174 | ||||||
| Common stock, no par value; authorized 1,500,000,000 shares, issued and outstanding 3,786,338 and 2,680,937 shares, respectively | 24,711,409 | 23,113,077 | ||||||
| Additional Paid-in capital | 872,976 | 872,976 | ||||||
| Additional Paid-in capital – Stock Options (Note 12) | 202,200 | 202,200 | ||||||
| Treasury stock | (560,000 | ) | - | |||||
| Accumulated deficit | (26,959,431 | ) | (23,361,223 | ) | ||||
| Total stockholders’ equity | 3,806,328 | 6,366,204 | ||||||
| Total liabilities and stockholders’ equity | $ | 6,274,226 | $ | 6,930,870 | ||||
See notes to consolidated financial statements.
| 3 |
Can B̅ Corp and Subsidiary
Consolidated Statements of Operations
(Unaudited)
Nine Months Ended September 30, | Three Months Ended September 30, | |||||||||||||||
| 2020 | 2019 | 2020 | 2019 | |||||||||||||
| Revenues | ||||||||||||||||
| Product Sales | $ | 1,233,287 | $ | 1,760,761 | $ | 459,196 | $ | 613,622 | ||||||||
| Service Revenue | 1,000 | 5,400 | 300 | 1,800 | ||||||||||||
| Total Revenues | 1,234,287 | 1,766,161 | 459,496 | 615,422 | ||||||||||||
| Cost of product sales | 239,975 | 703,607 | 70,381 | 141,850 | ||||||||||||
| Gross Profit | 994,312 | 1,062,554 | 389,115 | 473,572 | ||||||||||||
| Operating costs and expenses: | ||||||||||||||||
| Officers and director’s compensation (including stock-based compensation of $916,386, $1,018,786, $293,715 and $184,556, respectively) | 1,306,222 | 1,717,586 | 376,565 | 442,898 | ||||||||||||
| Consulting fees (including stock-based compensation of $457,377, $1,372,181, $104,261 and $418,267, respectively) | 559,483 | 1,540,441 | 136,461 | 449,355 | ||||||||||||
| Advertising expense | 350,334 | 220,373 | 90,299 | 66,611 | ||||||||||||
| Hosting expense | 17,587 | 11,389 | 5,451 | 3,472 | ||||||||||||
| Rent expense | 193,069 | 155,192 | 71,417 | 67,520 | ||||||||||||
| Professional fees | 401,419 | 194,468 | 76,283 | 82,452 | ||||||||||||
| Depreciation of property and equipment | 12,357 | 8,687 | 4,254 | 3,157 | ||||||||||||
| Amortization of intangible assets | 446,556 | 12,127 | 169,398 | 4,967 | ||||||||||||
| Reimbursed Expenses | 61,934 | 168,260 | 20,971 | 70,905 | ||||||||||||
| Other | 649,453 | 578,775 | 210,652 | 217,499 | ||||||||||||
| Total operating expenses | 3,998,414 | 4,607,298 | 1,161,751 | 1,408,836 | ||||||||||||
| Loss from operations | (3,004,102 | ) | (3,544,744 | ) | (772,636 | ) | (935,264 | ) | ||||||||
| Other income (expense): | ||||||||||||||||
| Interest income | 645 | 519 | 204 | 202 | ||||||||||||
| Gain (loss) on investment | (40,000 | ) | - | 10,000 | - | |||||||||||
| Interest expense (including amortized finance cost of $531,835, $0, $462,190 and $0, respectively) | (551,581 | ) | (6,879 | ) | (468,799 | ) | (6,037 | ) | ||||||||
| Other income (expense) - net | (590,936 | ) | (6,360 | ) | (458,595 | ) | (5,835 | ) | ||||||||
| Loss before provision for income taxes | (3,595,038 | ) | (3,551,104 | ) | (1,231,231 | ) | (941,099 | ) | ||||||||
| Provision for income taxes | 3,170 | - | 1,945 | - | ||||||||||||
| Net Loss | $ | (3,598,208 | ) | $ | (3,551,104 | ) | $ | (1,233,176 | ) | $ | (941,099 | ) | ||||
| Net loss per common share - basic | $ | 1.16 | ) | $ | (1,85 | ) | $ | (0.37 | ) | $ | (0.43 | ) | ||||
| Net loss per common share - diluted | $ | (0.96 | ) | $ | (1,30 | ) | $ | (0.31 | ) | $ | (0.32 | ) | ||||
| Weighted average common shares outstanding – | ||||||||||||||||
| Basic | 3,091,866 | 1,919,543 | 3,376,610 | 2,202,567 | ||||||||||||
| Diluted | 3,758,546 | 2,724,442 | 4,043,290 | 2,962,167 | ||||||||||||
See notes to consolidated financial statements.
| 4 |
Can B̅ Corp. and Subsidiary
Consolidated Statements of Stockholders’ Deficiency (Unaudited)
| Additional | ||||||||||||||||||||||||||||||||||||||||||||||||||||
| Preferred Stock A | Preferred Stock B | Preferred Stock C | Common Stock, no | Treasury | Paid-in | |||||||||||||||||||||||||||||||||||||||||||||||
| , no par value | , $0.001 par value | , $0.001 par value | par value | Stock | Accumulated | |||||||||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Capital | Deficit | Total | ||||||||||||||||||||||||||||||||||||||||
| Nine Months Ended September 30, 2020 | ||||||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, January 1, 2020 | 20 | $ | 5,539,174 | - | $ | - | - | $ | - | 2,680,937 | $ | 23,113,077 | - | $ | - | $ | 1,075,176 | ($ | 23,361,223 | ) | $ | 6,366,204 | ||||||||||||||||||||||||||||||
| Issuance of common stock in 2020 for services rendered | 435,888 | 401,059 | 401,059 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2020 for 300:1 reverse stock split rounding | 2,460 | - | - | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2020 pursuant to First Fire note agreement | 119,508 | 295,780 | 295,780 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2020 pursuant to Labrys Fund Equities note agreement | 142,545 | 80,182 | 80,182 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2020 pursuant to Eagle Equities note agreement | 20,000 | 8,745 | 8,745 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2020 for acquisition of intangible assets | 235,000 | 201,187 | 201,187 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2020 for compensation | 30,000 | 41,625 | 41,625 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2020 for interest | 185,000 | 77,775 | 77,775 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2020 for inventory | 478,715 | 491,979 | 491,979 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Treasury stock acquired in 2020 | (543,715 | ) | - | 543,715 | (560,000 | ) | (560,000 | ) | ||||||||||||||||||||||||||||||||||||||||||||
| Net Loss | (3,598,208 | ) | (3,598,208 | ) | ||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, September 30, 2020 | 20 | $ | 5,539,174 | - | $ | - | - | $ | - | 3,786,338 | $ | 24,711,409 | 543,715 | $ | (560,000 | ) | $ | 1,075,176 | $ | (26,959,431 | ) | $ | 3,806,328 | |||||||||||||||||||||||||||||
| Nine Months Ended September 30, 2019 | ||||||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, January 1, 2019 | 18 | $ | 4,557,424 | 499,958 | $ | 479 | - | $ | - | 1,468,554 | $ | 16,624,557 | - | $ | - | $ | 1,075,176 | $ | (18,768,753 | ) | $ | 3,488,883 | ||||||||||||||||||||||||||||||
| Issuance of common stock for retirement of Series A Preferred Stock | (1 | ) | (10,500 | ) | 33,333 | 10,500 | - | |||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock for retirement of Series B Preferred Stock | (157,105 | ) | (157 | ) | 67,405 | 157 | ||||||||||||||||||||||||||||||||||||||||||||||
| Sale of common stock in Q1 Q2 & Q3 2019 | 379,555 | 3,296,700 | 3,296,700 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2019 for acquisition of technology | 68,580 | 648,655 | 648,655 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2019 for satisfaction of accrued salaries | 2,227 | 54,340 | 54,340 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock in 2019 for compensation and services rendered | 212,131 | 1,552,755 | 1,552,755 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of Series A Preferred stock pursuant to employment agreement | 3 | 992,250 | 992,250 | |||||||||||||||||||||||||||||||||||||||||||||||||
| Net loss | (3,551,104 | ) | (3,551,104 | ) | ||||||||||||||||||||||||||||||||||||||||||||||||
| Balance, September 30, 2019 | 20 | $ | 5,539,174 | 342,853 | $ | 322 | - | $ | - | 2,231,785 | $ | 22,187,664 | - | $ | - | $ | 1,075,176 | $ | (22,319,857 | ) | $ | 6,482,479 | ||||||||||||||||||||||||||||||
See notes to consolidated financial statements.
| 5 |
Can B̅ Corp. and Subsidiary
Consolidated Statements of Cash Flows (Unaudited)
| Nine Months Ended September 30, | ||||||||
| 2020 | 2019 | |||||||
| Operating Activities: | ||||||||
| Net loss | $ | (3,598,208 | ) | $ | (3,551,104 | ) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
| Stock-based compensation, net of prepaid stock- based consulting fees | 1,373,763 | 2,390,967 | ||||||
| Stock-based interest expense | 390,430 | - | ||||||
| Depreciation of property and equipment-General | 12,357 | 8,687 | ||||||
| Depreciation of property and equipment-COGS | 80,642 | 49,390 | ||||||
| Amortization of intangible assets | 446,556 | 12,127 | ||||||
| Amortization of original-issue-discount | 141,404 | - | ||||||
| Bad debt expense | 202,137 | - | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | (690,675 | ) | (956,353 | ) | ||||
| Inventory | 362,348 | (14,095 | ) | |||||
| Prepaid expenses | (15,990 | ) | (6,226 | ) | ||||
| Security deposit | - | 28,940 | ||||||
| Other receivable | 33,714 | (31,225 | ) | |||||
| Right-of-use asset | 565 | 580 | ||||||
| Accounts payable | 221,161 | 9,482 | ||||||
| Accrued officer’s compensation | 134,956 | - | ||||||
| Other accrued expenses payable | 29,556 | 645 | ||||||
| Net cash used in operating activities | (875,284 | ) | (2,058,185 | ) | ||||
| Investing Activities: | ||||||||
| Note receivable | 1,481 | - | ||||||
| Fixed assets additions | (43,616 | ) | (1,017,300 | ) | ||||
| Intangible assets additions | - | (550,000 | ) | |||||
| Net cash used in investing activities | (42,135 | ) | (1,567,300 | ) | ||||
| Financing Activities: | ||||||||
| Proceeds received from notes and loans payable | 1,667,840 | 5,000 | ||||||
| Repayments of notes and loans payable | (90,000 | ) | (12,894 | ) | ||||
| Note payable finance cost | (101,455 | ) | - | |||||
| Acquisition of treasury stock | (560,000 | ) | - | |||||
| Proceeds from sale of common stock | - | 3,296,700 | ||||||
| Net cash provided by financing activities | 916,385 | 3,288,806 | ||||||
| Increase (Decrease) in cash and cash equivalents | (1,034 | ) | (336,679 | ) | ||||
| Cash and cash equivalents, beginning of period | 46,540 | 807,747 | ||||||
| Cash and cash equivalents, end of period | $ | 45,506 | $ | 471,068 | ||||
| SUPPLEMENTAL CASH FLOW INFORMATION: | ||||||||
| Income taxes paid | $ | 3,170 | $ | - | ||||
| Interest paid | $ | 19,746 | $ | 6,879 | ||||
| NON-CASH INVESTING AND FINANCING ACTIVITIES: | ||||||||
| Issuance of common stock in acquisition of note payable (interest expense) | $ | 390,430 | $ | - | ||||
| Issuance of common stock in acquisition of note payable (commitment shares) | $ | 72,052 | $ | - | ||||
| Amortization of prepaid issuance of common Stock for services rendered | $ | 931,079 | $ | 497,220 | ||||
| Issuance of common stock in acquisition of intangible assets | $ | 201,187 | $ | 648,655 | ||||
| Issuance of common stock in satisfaction of officer’s compensation | $ | - | $ | 54,340 | ||||
| Issuance of common stock in acquisition of inventory | $ | 491,980 | $ | - | ||||
See notes to consolidated financial statements
| 6 |
Can B̅ Corp. and Subsidiary
Notes to Consolidated Financial Statements
Nine Months Ended September 30, 2020 and 2019
NOTE 1 – Organization and Description of Business
Can B̅ Corp. was originally incorporated as WrapMail, Inc. (“WRAP”) in Florida on October 11, 2005. Effective January 5, 2015, WRAP acquired 100% ownership of Prosperity Systems, Inc. (“Prosperity”), a New York corporation incorporated on April 2, 2008. The Company is in the process of dissolving Prosperity. 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’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 DuramedNJ LLC (incorporated on May 29, 2019) (collectively, “Duramed”). Duramed began operating on or about February1, 2019. The Company’s hemp farming business is run through Green Grow Farms, Inc. (“Green Grow Farms”), which was acquired in August, 2019. The Company’s other subsidiary companies do not currently have operations.
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. Effective March 6, 2020 Can B̅ Corp effected a 300:1 reverse stock split of its common stock.
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”).
Can B̅ specializes in the production and sale of a variety of hemp-derived cannabidiol (“CBD”) products such as oils, creams, moisturizers, isolate, gel caps, spa products, and concentrates and non-hemp lifestyle products. Can B̅ is developing its own line of proprietary products as well as seeking synergistic value through acquisitions in the hemp industry. Can B̅ aims to be the premier provider of the highest quality hemp CBD products on the market through sourcing the very best raw material and developing a variety of products we believe will improve people’s lives in a variety of areas.
For the periods presented, the assets, liabilities, revenues, and expenses are those of CAN B and its operational subsidiaries. Financial information for PHP, Duramed and Green Grow Farms in the periods have been consolidated with the Company’s financials. Prosperity, Radical Tactical and NY Hemp Depot had no activity for the periods presented.
NOTE 2 – Going Concern Uncertainty
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 September 30, 2020, the Company had cash and cash equivalents of $45,506 and a working capital of $1,882,926. For the periods ended September 30, 2020 and 2019, the Company had net loss of $3,598,208 and $3,551,104, respectively. These factors raise substantial doubt as to the Company’s ability to continue as a going concern. The Company plans to improve its financial condition by raising capital through sales of shares of its common stock. Also, the Company plans to expand its operation of CBD products to increase its profitability. The consolidated financial statements do not include any adjustments that might be necessary should the Company be unable to continue as a going concern.
| 7 |
NOTE 3 – Summary of Significant Accounting Policies
(a) Principles of Consolidation
The consolidated financial statements include the accounts of CANB and its wholly-owned subsidiaries, Pure Health Products, Duramed, Prosperity Radical Tactical and Green Grow Farms. All intercompany balances and transactions have been eliminated in consolidation.
(b) Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the dates of the financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates.
(c) Fair Value of Financial Instruments
The Company’s financial instruments consist of cash and cash equivalents, accounts receivable, notes receivable, notes and loans payable, accounts payable, and accrued expenses payable. Except for the noncurrent note receivable, the fair value of these financial instruments approximate their carrying amounts reported in the balance sheets due to the short term maturity of these instruments. Based on comparable instruments with similar terms, the fair value of the noncurrent note receivable approximates its carrying value.
Pursuant to ASC 820, Fair Value Measurements and Disclosures, an entity is required to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. ASC 820 establishes a fair value hierarchy based on the level of independent, objective evidence surrounding the inputs used to measure fair value. A financial instrument’s categorization within the fair value hierarchy is based upon the lowest level of input that is significant to the fair value measurement. ASC 820 prioritizes the inputs into three levels that may be used to measure fair value:
Level 1 - applies to assets or liabilities for which there are quoted prices in active markets for identical assets or liabilities.
Level 2 - applies to assets or liabilities for which there are inputs other than quoted prices that are observable for the asset or liability such as quoted prices for similar assets or liabilities in active markets; quoted prices for identical assets or liabilities in markets with insufficient volume or infrequent transactions (less active markets); or model derived valuations in which significant inputs are observable or can be derived principally from, or corroborated by, observable market data.
Level 3 - applies to assets or liabilities for which there are unobservable inputs to the valuation methodology that are significant to the measurement of the fair value of the assets or liabilities.
(d) Cash and Cash Equivalents
The Company considers all liquid investments purchased with a maturity of three months or less to be cash equivalents.
(e) Accounts receivable
Accounts receivable are presented in the balance sheet net of the allowance for doubtful accounts. Accounts receivable are written off when they are determined to be uncollectible. The allowance for doubtful accounts is estimated based on the Company’s historical losses, the existing economic conditions in the industry, and the financial stability of its customers. Bad debt expense was $202,137 and $0 for the periods ended September 30, 2020 and 2019.
(f) Inventory
Inventories consist of raw materials and finished goods and are stated at the lower of cost or net realizable value. Cost is principally determined using the first-in, first-out (FIFO) method.
| 8 |
(g) Prepaid expenses
Prepaid expenses include stock-based officer, employee and consulting compensation of $1,225,887 and $2,784,450 at September 30, 2020 and 2019, respectively. The Company’s policy is to record stock-based compensation as prepaids and expense over the term of employment and consulting agreements.
(h) Property and Equipment, Net
Property and equipment, net, is stated at cost less accumulated depreciation. Depreciation is calculated using the straight-line method over the estimated useful lives of the respective assets. Maintenance and repairs are charged to operations as incurred.
(i) Intangible Assets, Net
Intangible assets, net, are stated at cost less accumulated amortization. Amortization is calculated using the straight-line method over the estimated economic lives of the respective assets.
(j) Goodwill
The Company does not amortize goodwill, but instead tests for impairment at least annually. When conducting the annual impairment test for goodwill, the Company compares the estimated fair value of a reporting unit containing goodwill to its carrying value. If the estimated fair value of the reporting unit is determined to be less than its carrying value, goodwill is reduced, and an impairment loss is recorded.
(k) Long-lived Assets
The Company reviews long-lived assets held and used, intangible assets with finite useful lives and assets held for sale for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If an evaluation of recoverability is required, the estimated undiscounted future cash flows associated with the asset is compared to the asset’s carrying amount to determine if a write-down is required. If the undiscounted cash flows are less than the carrying amount, an impairment loss is recorded to the extent that the carrying amount exceeds the fair value.
(l) Revenue Recognition
The Company recognizes revenue in accordance with the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“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, Global CBD, LLC and TZ Wholesale, 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.
| 9 |
(m) Cost of Product Sales
The cost of product sale is the total cost incurred to obtain a sale and the cost of the goods sold, and the Company’s policy is to recognize it in the same manner as, and in conjunction with, revenue recognition. Cost of product sale primarily consisted of the costs directly attributable to revenue recognized and includes expenses related to the production, packaging and labeling of our CBD products.
(n) Stock-Based Compensation
Stock-based compensation is accounted for at fair value in accordance with Accounting Standards Codification (“ASC”) Topic 718, “Compensation – Stock Compensation” (“ASC718”) and ASC 505-50, “Equity – Based Payments to Non-Employees.” In addition to requiring supplemental disclosures, ASC 718 addresses the accounting for share-based payment transactions in which a company receives goods or services in exchange for (a) equity instruments of the company or (b) liabilities that are based on the fair value of the company’s equity instruments or that may be settled by the issuance of such equity instruments. ASC 718 focuses primarily on accounting for transactions in which a company obtains employee services in share-based payment transactions.
In accordance with ASC 505-50, the Company determines the fair value of the stock-based payment as either the fair value of the consideration received or the fair value of the equity instruments issued, whichever is more reliably measurable. If the fair value of the equity instruments issued is used, it is measured using the stock price and other measurement assumptions as of the earlier of either (1) the date at which a commitment for performance by the counterparty to earn the equity instrument is reached, or (2) the date at which the counterparty’s performance is complete.
Options and warrants
The fair value of stock options and warrants is estimated on the measurement date using the Black-Scholes model with the following assumptions, which are determined at the beginning of each year and utilized in all calculations for that year:
Risk-Free Interest Rate.
We utilized the U.S. Treasury yield curve in effect at the time of grant with a term consistent with the expected term of our awards.
Expected Volatility.
We calculate the expected volatility based on a volatility index of peer companies as we did not have sufficient historical market information to estimate the volatility of our own stock.
Dividend Yield.
We have not declared a dividend on its common stock since its inception and have no intentions of declaring a dividend in the foreseeable future and therefore used a dividend yield of zero.
Expected Term.
The expected term of options granted represents the period of time that options are expected to be outstanding. We estimated the expected term of stock options by using the simplified method. For warrants, the expected term represents the actual term of the warrant.
Forfeitures.
Estimates of option forfeitures are based on our experience. We will adjust our estimate of forfeitures over the requisite service period based on the extent to which actual forfeitures differ, or are expected to differ, from such estimates. Changes in estimated forfeitures will be recognized through a cumulative catch-up adjustment in the period of change and will also impact the amount of compensation expense to be recognized in future periods.
| 10 |
(o) Advertising
Advertising costs are expensed as incurred and amounted to $350,334 and $220,373 for the periods ended September 30, 2020 and 2019, respectively.
(p) Research and Development
Research and development costs are expensed as incurred. In the period ended September 30, 2020 and 2019, the Company spent $80,000 and $45,000 in research and development which was expenses as spent, respectively.
(q) Income Taxes
Income taxes are accounted for under the assets and liability method. Current income taxes are provided in accordance with the laws of the respective taxing authorities. Deferred income taxes are provided for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is not more likely than not that some portion or all of the deferred tax assets will be realized.
The Company has adopted the provisions required by the Income Taxes topic of the FASB Accounting Standards Codification. The Codification Topic requires the recognition of potential liabilities as a result of management’s acceptance of potentially uncertain positions for income tax treatment on a “more-likely-than-not” probability of an assessment upon examination by a respective taxing authority. The Company believes that it has not taken any uncertain tax positions and thus has not recorded any liability.
(r) Net Income (Loss) per Common Share
Basic net income (loss) per common share is computed on the basis of the weighted average number of common shares outstanding during the period.
Diluted net income (loss) per common share is computed on the basis of the weighted average number of common shares and dilutive securities (such as stock options and convertible securities) outstanding. Dilutive securities having an anti-dilutive effect on diluted net income (loss) per share are excluded from the calculation. For the periods presented, the diluted net loss per share calculation excluded the effect of Series B preferred stocks and stock options outstanding (see Notes 10, 11 and 12).
(s) Reverse Stock-Split
On March 2, 2020, the Company filed an amendment to its Articles of Incorporation with the Florida Secretary of State to effect a 300-to-1 reverse stock split of its issued and outstanding, but not authorized, shares of Common Stock, as reported in the Company’s definitive Schedule 14C filed with the Securities and Exchange Commission on December 13, 2019.
All disclosures of common shares and per common share data in the accompanying financial statements and related notes reflect the reverse stock split for all periods presented.
(t) Recent Accounting Pronouncements
In 2016, the FASB issued ASU 2016-2 (Topic 842) which establishes a new lease accounting model for lessees. Under the new guidance, lessees will be required to recognize right of use assets and liabilities for most leases having terms of 12 months or more. Effective January 1, 2019, we adopted this new accounting guidance using the effective date transition method, which permits entities to apply the new lease standards using a modified retrospective transition approach at the date of adoption.
| 11 |
(u) Basis of presentation
The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with generally accepted accounting principles for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. Operating results for the six-month period ended September 30, 2020 are not necessarily indicative of the results that may be expected for the year ended December 31, 2020.
(v) Reclassifications
Certain amounts in the prior year consolidated financial statements have been reclassified to conform to the current year presentation. These reclassification adjustments had no effect on the Company’s previously reported net income.
NOTE 4 – Inventories
Inventories consist of:
| September 30, 2020 | December 31, 2019 | |||||||
| Raw materials | $ | 900,599 | $ | 708,239 | ||||
| Finished goods | 13,530 | 76,258 | ||||||
| Total | $ | 914,129 | $ | 784,497 | ||||
NOTE 5 – Notes Receivable
Notes receivable consist of:
| September 30, 2020 | December 31, 2019 | |||||||
| Note receivable dated November 30, 2015 from Stock Market Manager, Inc, interest at 3% per annum due November 30, 2020 | $ | 19,389 | $ | 19,389 | ||||
| Note receivable dated February 8, 2019 from an employee, weekly installments of $1,200 with interest at 8% per annum. | 2,898 | 4,879 | ||||||
| Note receivable dated March 3, 2020 from an employee, weekly installments of $125 with interest at 0% per annum. | 500 | - | ||||||
| Total | 22,787 | 24,268 | ||||||
| Current portion of notes receivable | (22,787 | ) | (24,268 | ) | ||||
| Noncurrent portion of notes receivable | $ | - | $ | - | ||||
NOTE 6 – Property and Equipment, Net
Property and Equipment, net, consist of:
| September 30, 2020 | December 31, 2019 | |||||||
| Furniture & Fixtures | $ | 21,724 | $ | 19,018 | ||||
| Office Equipment | 12,378 | 12,378 | ||||||
| Manufacturing Equipment | 390,627 | 355,016 | ||||||
| Medical Equipment | 783,782 | 783,782 | ||||||
| Leasehold Improvements | 26,902 | 21,603 | ||||||
| Total | 1,235,413 | 1,191,797 | ||||||
| Accumulated depreciation | (209,554 | ) | (116,555 | ) | ||||
| Net | $ | 1,025,859 | $ | 1,075,242 | ||||
| 12 |
NOTE 7 – Intangible Assets, Net
Intangible assets, net, consist of:
| September 30, | December 31, | |||||||
| 2020 | 2019 | |||||||
| Video conferencing software acquired by Prosperity in December 2009 | $ | 30,000 | $ | 30,000 | ||||
| Enterprise and audit software acquired by Prosperity in April 2008 | 20,000 | 20,000 | ||||||
| Patent costs incurred by WRAP | 6,880 | 6,880 | ||||||
| Hemp license and technology | 1,000,000 | 1,000,000 | ||||||
| CBD technology | 198,655 | 198,655 | ||||||
| Platform account contract | 131,812 | - | ||||||
| Hemp processing use | 69,375 | - | ||||||
| Other | 3,548 | 3,548 | ||||||
| Total | 1,460,270 | 1,259,083 | ||||||
| Accumulated amortization and Impairment | (649,077 | ) | (202,521 | ) | ||||
| Net | $ | 811,193 | $ | 1,056,562 | ||||
Estimated future amortization expense are as follows:
| September 31, | Amount | |||
| 2021 | $ | 616,837 | ||
| 2022 | 36,284 | |||
| 2023 | 36,284 | |||
| 2025 | 34,599 | |||
| 2026 | 19,868 | |||
| Thereafter | 67,321 | |||
| Total | $ | 811,193 | ||
The CBD related technology were purchased from Hudilab, Inc. (“HUDI”) and Seven Chakras, LLC (“Seven Chakras”) during the three months ended March 31, 2019. On January 14, 2019, the Company and PHP (collectively, the “buyer”) entered into a License and Acquisition Agreement (the “LAA”) with HUDI. Pursuant to the LAA, HUDI will sell the technology owned by it to the buyer in exchange for 25,000 shares of CANB common stock. On January 14, 2019, the shares were issued to the owner of HUDI and valued at $131,625. On January 31, 2019, PHP entered into an Asset Purchase Agreement (the “Chakras Agreement”) with Seven Chakras. Pursuant to the Chakras Agreement, PHP purchased the rights and title to (i) Seven Chakras’ proprietary formulas, methods, trade secrets, and know-how related to the production of Seven Chakras’ products containing cannabidiol (CBD), (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. On February 20, 2019, the Company issued 3,333 shares of CANB common stock valued at $17,030 to owners of Seven Chakras as additional consideration, along with the $50,000 cash payments, pursuant to the Chakras Agreement.
| 13 |
The hemp related license and technology was purchased from Shi Farms during the three months ended September 30, 2019. Hemp Depot has remained dormant since the Shi Farms deal was consummated and no activity is contemplated. The Company subsequently acquired Green Grow Farms, also a NY State Hemp License holder and intends to contract with farmers in New York to grow hemp under a controlled program of specific strains, cultured feminized seeds, proven technology, and access to processing for their crop. Grow Farms Inc. intends to amalgamate the cultivated off-take from the farmers, combine and fill “super-sacks” for shipping to a processing facility to produce high-grade isolate or distillate for use in Can B̅’s manufacturing facility in Lacey WA.
The hemp processing use agreement with Mediiusa Group, Inc. was entered during the three months ended June 30, 2020. On June 23, 2020, the Company issued 50,000 shares of CANB common stock valued at $69,375. Mediiusa Group, Inc. currently holds a valid Industrial Hemp Processor Registration in full force and effect with the State of New York under Registration: HEMP-P-000035 (the “Registration”) and is authorized to process Hemp, and has granted a five year agreement to processing of Hemp for oil, isolate, or crude for further use by the Company and/or for sale by the Company. During the Term of this Agreement, Mediiusa Group, Inc. agrees to allow CANB to process any and all of the subject Hemp under and/or in connection with the agreement under their above-mentioned Registration.
The platform account contract with SRAX, Inc. was entered during the three months ended June 30, 2020. On June 22, 2020, the Company issued 185,000 shares of CANB common stock valued at $131,812. The Platform Account is the SRAX Investors Relations platform to grant access to potential investors and customers via the SRAX website. SRAX grants Can B Corp a non-exclusive, non-transferable and non- sublicensable right to access and use the Platform during the Term, solely by the Authorized Users for User’s own internal business purposes, and in accordance with the terms and conditions of this Agreement. Company reserves all rights in or to the Platform not expressly granted to User in the Agreement. Can B will have previously unattainable access to its customer base for improved investor communication and development of sales opportunities of the Company’s products.
The other intangible assets relate to the document management and email marketing divisions. Since December 31, 2017, the Company do not expect any future positive cash flow from these divisions. Accordingly, the net carrying value of these intangible assets was reduced to $0.
NOTE 9 – Notes and Loans Payable
Notes and loans payable consist of:
| September 30, 2020 | December 31, 2019 | |||||||
| Note payable to brother of Marco Alfonsi, Chief Executive Officer of the Company, interest at 10% per annum, due August 22, 2016 (now past due). | $ | 5,000 | $ | 5,000 | ||||
| Note payable to FirstFire Global Opportunities Fund, LLC, net of original issue discount of $44,654, due September 1, 2020 (now past due). | 550,000 | - | ||||||
| Loan payable to Pasquale Ferro, interest at 12% per annum, due December 2020. | 138,000 | 30,000 | ||||||
| Note payable to Labrys Fund, LP, net of original issue discount of $21,041, due October 21, 2020 (now past due). | 225,000 | - | ||||||
| Note payable to EMA Financial, LLC, net of original issue discount of $10,522, due June 17, 2021. | 115,000 | - | ||||||
| Note payable to Eagle Equities, LLC, net of original issue discount of $27,645, due June 17, 2021. | 220,000 | - | ||||||
| Note payable to U.S. Small Business Administration (PPP), interest at 1% per annum. The note matures in January 2023. Payments are deferred for ten months after the end of the covered period. | 194,940 | - | ||||||
| Note payable to U.S. Small Business Administration (EIDL), interest at 3.75% per annum. The note matures in June 2050. Payments are deferred for twelve months. | 159,900 | - | ||||||
| Loan payable to Senior Management Solutions, interest at 12% per annum, due December 2020. | 5,000 | - | ||||||
| Total Notes and Loans Payable | 1,612,840 | 35,000 | ||||||
| Less: Unamortized Finance Cost | (32,102 | ) | - | |||||
| Total Notes and Loans Payable – Net | 1,580,738 | 35,000 | ||||||
| Less: Current Portion | (1,225,898 | ) | (35,000 | ) | ||||
| Long-term Portion | $ | 354,840 | $ | - | ||||
| 14 |
NOTE 10 – Preferred Stock
Each share of Series A Preferred Stock is convertible into 33,334 shares of CANB common stock and is entitled to 66,666 votes. All 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. In the event of a Liquidation Event, whether voluntary or involuntary, each holder may elect (i) to receive, in preference to the holders of Common Stock, a one-time liquidation preference on a per-share amount equal to the per-share value of preferred shares on the issuance date, as recorded in the Company’s financial records, or (ii) to participate pari passu with the Common Stock on an as-converted basis. Subject to any adjustments, the Series A holders shall be entitled to receive such dividends paid and distributions made to the holders of shares of Common Stock on an as converted basis.
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 shares of Series B Preferred Stock have no voting rights.
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 25,000 shares of common stock. The shares of Series C Preferred Stock have voting rights as if fully converted.
On January 28, 2019, the Company issued 33,333 shares of CANB common stock to a consultant of the Company in exchange for the retirement of 1 share of CANB Series A Preferred Stock.
From February 21, 2019 to March 12, 2019, the Company issued aggregately 67,405 shares of CANB common stock to RedDiamond in exchange for the retirement of 157,105 shares of CANB Series B Preferred Stock.
On May 28, 2019, the Company issued 3 shares of CANB Series A Preferred Stock to Stanley L. Teeple pursuant to the employment agreement with him. The fair value of the issuance totaled $1,203,000 and will be amortized over the vesting period of four years.
On April 26, 2019, the Company issued 6,436 shares of CANB common stock to RedDiamond in exchange for the retirement of 15,000 shares of CANB Series B Preferred Stock.
| 15 |
On May 1, 2019, the Company issued 8,581 shares of CANB common stock to RedDiamond in exchange for the retirement of 20,000 shares of CANB Series B Preferred Stock.
On May 9, 2019, the Company issued 23,710 shares of CANB common stock to RedDiamond in exchange for the retirement of 55,263 shares of CANB Series B Preferred Stock.
On June 7, 2019, the Company issued 10,726 shares of CANB common stock to RedDiamond in exchange for the retirement of 25,000 shares of CANB Series B Preferred Stock.
On August 13, 2019, the Company issued 97,607 shares of CANB common stock to RedDiamond in exchange for the retirement of 227,590 shares of CANB Series B Preferred Stock.
On December 16, 2019, the Company issued 35,666 shares of CANB common stock to RedDiamond as agreed for the early retirement of CANB Series B Preferred Stock converted in August 2019.
NOTE 11 – Common Stock
From January 4, 2019 to March 27, 2019, the Company issued aggregately 138,107 shares of CANB common stock to multiple investors pursuant to relative Stock Purchase Agreements dated on various dates, in exchange for total proceeds of $1,196,100.
On January 14, 2019, the Company issued 25,000 shares of CANB common stock to Hudilab, Inc. (“HUDI”), pursuant to a License and Acquisition Agreement for purchase of the technology owned by HUDI.
From January 18, 2019 to March 17, 2019, the Company issued aggregately 82,000 shares of CANB common stock to multiple consultants for services rendered.
From January 19, 2019 to March 27, 2019, the Company issued aggregately 3,893 shares of CANB common stock to employee and officers of the Company pursuant to employee agreement and in satisfaction of accrued compensation for the quarter ended March 31, 2019.
On February 5, 2019, the Company issued 6,667 shares to the owner of TZ Wholesale LLC, pursuant to a Memorandum of Understanding (the “MOU”) dated November 9, 2018.
On February 20, 2019, the Company issued 3,333 shares of CANB common stock to owners of Seven Chakras pursuant to the Chakras Agreement dated January 31, 2019.
From April 1, 2019 through June 30, 2019 the Company issued an aggregate of 51,706 shares of CANB Common Stock to multiple consultants for services rendered.
From April 1, 2019 through June 30, 2019, the Company issued an aggregate of 13,916 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From April 1, 2019 through June 30, 2019, the Company issued an aggregate of 4,615 shares of Common Stock under the terms of executive employment agreements.
From April 1, 2019 through June 30, 2019, the Company issued an aggregate of 86,207 shares of CANB shares under the terms of the Stock Purchase Agreements for total proceeds of $750,000.
From July 1, 2019 through September 30, 2019, the Company issued an aggregate of 18,061 shares of CANB Common Stock to multiple consultants for services rendered.
From July 1, 2019 through September 30, 2019, the Company issued an aggregate of 18,333 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From July 1, 2019 through September 30, 2019, the Company issued an aggregate of 16,000 shares of Common Stock under the terms of executive employment agreements.
| 16 |
From July 1, 2019 through September 30, 2019, the Company issued an aggregate of 155,241 shares of CANB shares under the terms of the Stock Purchase Agreements for total proceeds of $1,350,600.
From July 1, 2019 through September 30, 2019, the Company issued an aggregate of 40,247 shares of CANB shares under the terms of the Joint Venture Agreement.
From October 1, 2019 through December 31, 2019, the Company issued an aggregate of 122,258 shares of CANB Common Stock to multiple consultants for services rendered.
From October 1, 2019 through December 31, 2019, the Company issued an aggregate of 14,167 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From October 1, 2019 through December 31, 2019, the Company issued an aggregate of 5,000 shares of Common Stock under the terms of executive employment agreements.
From October 1, 2019 through December 31, 2019, the Company issued an aggregate of 125,000 shares of CANB Common Stock under the terms of an inventory purchase agreement for total proceeds of $487,500.
From January 1, 2020 through March 31, 2020, the Company issued an aggregate of 27,500 shares of CANB Common Stock to multiple consultants for services rendered.
From January 1, 2020 through March 31, 2020, the Company issued an aggregate of 31,335 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From January 1, 2020 through March 31, 2020, the Company issued an aggregate of 20,000 shares of CANB Common Stock to First Fire Global Opportunities Fund, LLC for a commitment fee pursuant to a junior convertible promissory note purchase agreement.
From January 1, 2020 through March 31, 2020, the Company issued an aggregate of 99,508 shares of CANB Common Stock to FirstFire Global Opportunities Fund, LLC for returnable shares pursuant to a junior convertible promissory note purchase agreement.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 111,734 shares of CANB Common Stock to multiple consultants for services rendered.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 20,319 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 30,000 shares of CANB Common Stock to an employee for services rendered.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 185,000 shares of CANB Common Stock to SRAX, Inc. according to a platform access agreement.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 50,000 shares of CANB Common Stock to Mediiusa Group, Inc. according to a hemp processing use agreement.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 24,545 shares of CANB Common Stock to Labrys Fund, L.P. for a commitment fee pursuant to a junior convertible promissory note purchase agreement.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 118,000 shares of CANB Common Stock to Labrys Fund, L.P. for returnable shares pursuant to a junior convertible promissory note purchase agreement.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 20,000 shares of CANB Common Stock to Eagle Equities, LLC for a commitment fee pursuant to a junior convertible promissory note purchase agreement.
| 17 |
From July 1, 2020 through September 30, 2020, the Company issued an aggregate of 145,000 shares of CANB Common Stock to multiple consultants for services rendered.
From July 1, 2020 through September 30, 2020, the Company issued an aggregate of 100,000 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From July 1, 2020 through September 30, 2020, the Company issued an aggregate of 478,715 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From July 1, 2020 through September 30, 2020, the Company received an aggregate of 543,715 shares of CANB Common Stock from an exchange agreement whereby shares of Iconic Brands, Inc. held by the Company were exchanged for shares of stock in the Company held by Iconic Brands, Inc.
From July 1, 2020 through September 30, 2020, the Company issued an aggregate of 478,715 shares of CANB Common Stock for the acquisition of inventory.
From July 1, 2020 through September 30, 2020, the Company issued an aggregate of 185,000 shares of CANB Common Stock to FirstFire Global Opportunities Fund, LLC pursuant to a junior convertible promissory note purchase agreement.
On July 29, 2020, CANB and Iconic Brands (ICNB) completed a share exchange whereby the one million shares of ICNB common stock held by CANB were exchanged for a fair value exchange of five hundred forty three thousand seven hundred fifteen shares of CANB in order to settle a contract valuation true-up with ICNB for the purchase of Green Grow Farms,. Inc.
NOTE 12 – Stock Options and Warrants
A summary of stock options and warrants activity follows:
| Shares of Common Stock Exercisable Into | ||||||||||||
| Stock | ||||||||||||
| Options | Warrants | Total | ||||||||||
| Balance, December 31, 2019 | 20,167 | 7,492 | 27,659 | |||||||||
| Granted in 2019 | 56,667 | - | 56,667 | |||||||||
| Cancelled in 2019 | (167 | ) | - | (167 | ) | |||||||
| Exercised in 2019 | - | - | - | |||||||||
| Balance, December 31, 2019 | 76,667 | 7,492 | 84,159 | |||||||||
| Granted in Q1, Q2 & Q3 2020 | - | - | - | |||||||||
| Cancelled in Q1, Q2 & Q3 2020 | - | - | - | |||||||||
| Exercised in Q1, Q2 & Q3 2020 | - | - | - | |||||||||
| Balance, September 30, 2020 | 76,667 | 7,492 | 84,159 | |||||||||
Issued and outstanding stock options as of September 30, 2020 consist of:
| Year | Number Outstanding | Exercise | Year of | |||||||||
| Granted | And Exercisable | Price | Expiration | |||||||||
| 2018 | 20,000 | $ | 0.3 | 2023 | ||||||||
| 2019 | 56,667 | $ | 0.3 | 2022 | ||||||||
| 76,667 | ||||||||||||
| 18 |
On June 11, 2018, the Company granted 10,000 options of CANB common stock to Carl Dilley, a former director of the Company, in exchange for the retirement of a total of 10,000 shares of CANB common stock from Carl Dilley. The options are exercisable for the purchase of one share of the Registrant’s Common Stock at an exercise price of $0.30 per share. The Options are fully vested and are exercisable as of the Grant Date and all shall expire June 11, 2023. The value of the Stock Options ($84,000) were calculated using the Black Scholes option pricing model and the following assumptions: (i) $8.40 share price, (ii) 5 years term, (iii) 262.00% expected volatility, (iv) 2.80% risk free interest rate and the difference between this value and the fair value of retired shares was expensed in the quarterly period ended June 30, 2018.
On October 21, 2018, the Company granted 10,000 options of CANB common stock to Stanley L. Teeple, an officer and Director of the Company. The options are exercisable for the purchase of one share of the Registrant’s Common Stock at an exercise price of $0.30 per share. The Options are fully vested and are exercisable as of the Grant Date and all shall expire October 1, 2023. The values of the Stock Options ($118,200) were calculated using the Black Scholes option pricing model and the following assumptions: (i) $11.82 share price, (ii) 5 years term, (iii) 221.96% expected volatility, (iv) 3.05% risk free interest rate and the fair value of options was expensed in the quarterly period ended December 31, 2018
On September 9, 2019, the Company granted 26,667 options of CANB common stock to Johnny Mack, a former officer of the Company. The options are exercisable for the purchase of one share of the Registrant’s Common Stock at an exercise price of $0.30 per share. The Options are fully vested and are exercisable as of the Grant Date and all shall expire September 9, 2022. The values of the Stock Options ($192,000) were calculated using the Black Scholes option pricing model and the following assumptions: (i) $7.20 share price, (ii) 3 years term, (iii) 242% expected volatility, (iv) 1.46% risk free interest rate and the fair value of options was expensed in the quarterly period ended September 30, 2019.
On October 15, 2019, the Company granted 10,000 options of CANB common stock each to Frederick Alger Boyer, Jr., Ronald A. Silver and James F. Murphy, directors of the Company. The options are exercisable for the purchase of one share of the Registrant’s Common Stock at an exercise price of $0.30 per share. The Options are fully vested and are exercisable as of the Grant Date and all shall expire October 15, 2022. The values of the Stock Options ($63,000 each) were calculated using the Black Scholes option pricing model and the following assumptions: (i) $6.30 share price, (ii) 3 years term, (iii) 242% expected volatility, (iv) 1.60% risk free interest rate and the fair value of options was expensed in the quarterly period ended December 31, 2019.
Issued and outstanding warrants as of September 30, 2020 consist of:
| Year | Number Outstanding | Exercise | Year of | |||||||||
| Granted | And Exercisable | Price | Expiration | |||||||||
| 2010 | 825 | $ | 300 | 2020 | ||||||||
| 2018 | 6,667 | $ | 13.034 | (a) | 2023 | |||||||
| Total | 7,492 | |||||||||||
(a) 110% of the closing price of the Company’s common stock on the date that the Holder funds the full purchase price of the Note.
NOTE 13 – Income Taxes
No provisions for income taxes were recorded for the periods presented since the Company incurred net losses in those periods.
The provisions for (benefits from) income taxes differ from the amounts determined by applying the U.S. Federal income tax rate of 21% to pretax income (loss) as follows:
| Nine Month Ended September 30, | ||||||||
| 2020 | 2019 | |||||||
| Expected income tax (benefit) at 21% | $ | (755,624 | ) | $ | (745,732 | ) | ||
| Non-deductible stock-based compensation | 288,490 | 502,103 | ||||||
| Non-deductible stock-based interest | 81,991 | - | ||||||
| Increase in deferred income tax assets | ||||||||
| valuation allowance | 385,143 | 243,629 | ||||||
| Provision for (benefit from) income taxes | $ | - | $ | - | ||||
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Deferred income tax assets consist of:
| September 30, | December 31, | |||||||
| 2020 | 2019 | |||||||
| Net operating loss carryforward | $ | 1,685,311 | $ | 1,300,168 | ||||
| Valuation allowance | (1,685,311 | ) | (1,300,168 | ) | ||||
| Net | $ | - | $ | - | ||||
Based on management’s present assessment, the Company has not yet determined it to be more likely than not that a deferred income tax asset of $1,685,311 attributable to the future utilization of the $8,025,288 net operating loss carryforward as of September 30, 2020 will be realized. Accordingly, the Company has maintained a 100% allowance against the deferred income tax asset in the financial statements at September 30, 2020. The Company will continue to review this valuation allowance and make adjustments as appropriate. The net operating loss carryforward expires in years 2025, 2026, 2027, 2028, 2029, 2030, 2031, 2032, 2033, 2034, 2035, 2036, 2037, 2038, 2039 and 2040 in the amount of $1,369, $518,390, $594,905, $686,775, $159,141, $151,874, $135,096, $166,911, $311,890, $25,511, $338,345, $381,638, $499,288, $716,858, $1,503,282, and $1,834,015, respectively.
Current tax laws limit the amount of loss available to be offset against future taxable income when a substantial change in ownership occurs. Therefore, the amount available to offset future taxable income may be limited.
The Company’s U.S. Federal and state income tax returns prior to 2016 are closed and management continually evaluates expiring statutes of limitations, audits, proposed settlements, changes in tax law and new authoritative rulings. The statute of limitations on the 2016 tax year returns expired in September 2020.
The Company recognizes interest and penalties associated with uncertain tax positions as part of the income tax provision and would include accrued interest and penalties with the related tax liability in the consolidated balance sheets. There were no interest or penalties paid during 2020 and 2019.
NOTE 14 – Segment Information
The Company has one reportable segment: Durable Equipment Products.
The accounting policies of the segment described above are the same as those described in Summary of Significant Accounting Policies in Note 3. The Company evaluates the performance of the Durable Equipment Products segment based on income (loss) before income taxes, which includes interest income.
Durable Equipment Products | ||||
| Six months ended June 30, 2020 | ||||
| Revenue from external customers | 527,942 | |||
| Revenue from other segments | - | |||
| Segment profit | 278,337 | |||
| Segment assets | 2,228,575 | |||
| Nine months ended September 30, 2020 | ||||
| Revenue from external customers | 808,547 | |||
| Revenue from other segments | - | |||
| Segment profit | 415,256 | |||
| Segment assets | 2,369,177 | |||
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| Three Months Ended September 30, 2020 | Nine Months Ended September 30, 2020 | |||||||
| Total profit for reportable segment | $ | 136,919 | $ | 416,109 | ||||
| Other income (expense) - net | - | (853 | ) | |||||
| Income before income taxes | $ | 136,919 | $ | 415,256 | ||||
NOTE 15 – Commitments and Contingencies
Employment Agreements
On October 3, 2017, the Company executed an Executive Employment Agreement with Marco Alfonsi (“Alfonsi”) for Alfonsi to serve as the Company’s chief executive officer and interim chief financial officer and secretary for cash compensation of $10,000 per month. Pursuant to the agreement, the Company issued a share of CANB Series A Preferred Stock to Alfonsi on October 4, 2017. Alfonsi may terminate his employment upon 30 days written notice to the Company. The Company may terminate Alfonsi’s employment upon written notice to Alfonsi by a vote of the Board of Directors. At October 21, 2018, this former agreement was terminated due to the execution of a new Employment Agreement with Marco Alfonsi for Alfonsi to serve as the Company’s chief executive officer and chairman of the board for cash compensation of $15,000 per month. Pursuant to the new agreement, three of the eight previously issued shares of CANB Series A Preferred Stock were returned to the Company and converted into 30,000,000 common shares. Alfonsi may terminate his employment upon 30 days written notice to the Company. The new agreement has an initial term of four years and can be terminated upon the resignation or death of Mr. Alfonsi, and also can be terminated by the Company due to the failure or neglect of Mr. Alfonsi to perform his duties, or due to the misconduct of Mr. Alfonsi in connection with the performance.
On February 12, 2018, the Company executed an Executive Service Agreement (“Posel Agreement”) with David Posel. The Posel Agreement provides that Mr. Posel services as the Company’s Chief Operating Officer for a term of 4 years. The Posel Agreement also provides for compensation to Mr. Posel of $5,000 cash per month and the issuance of 1 share of Series A Preferred Stock at the inception of the Posel Agreement. The Posel Agreement can be terminated upon the resignation or death of Mr. Posel, and also can be terminated by the Company due to the failure or neglect of Mr. Posel to perform his duties, or due to the misconduct of Mr. Posel in connection with the performance. On February 12, 2018, 1 share of CANB Series A Preferred Stock were issued to Mr. Posel. Since execution of the Posel Agreement, Mr. Posel has been re-assigned to COO for Pure Health Products, the Company’s subsidiary.
On February 16, 2018, the Company executed an Executive Service Agreement (“Holtmeyer Agreement”) with Andrew W. Holtmeyer. The Holtmeyer Agreement provides that Mr. Holtmeyer serves as the Company’s Executive Vice President Business for a term of 3 years. The Holtmeyer Agreement also provides for compensation to Mr. Holtmeyer of $10,000 cash per month and the issuance of 3, 2 and 1 share of Series A Preferred Stock at the beginning of each year. The Holtmeyer Agreement can be terminated upon the resignation or death of Mr. Holtmeyer, and also can be terminated by the Company due to the failure or neglect of Mr. Holtmeyer to perform his duties, or due to the misconduct of Mr. Holtmeyer in connection with the performance. At December 29, 2018, this Holtmeyer Agreement was terminated due to the execution of a new Employment Agreement with Andrew W Holtmeyer. The second agreement provides that Mr. Holtmeyer serves as the Company’s Executive Vice President Business for a term of 4 years. The second agreement also provides for compensation to Mr. Holtmeyer of $15,000 cash per month and the issuance of 829 shares of common stock upon signing of the agreement. Effective April 1, 2020, Mr. Holtmeyer’s compensation was changed to a straight commission on sales and collection based upon his efforts in lieu of any base compensation. He also will receive no further Company benefits but does retain his previously issued five shares of Series Preferred A Stock.
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On October 15, 2018, the Company executed an Employment Agreement (“Teeple Agreement”) with Stanley L. Teeple. The Teeple Agreement provides that Mr. Teeple services as the Company’s Chief Financial Officer and Secretary for a term of 4 years. The Teeple Agreement also provides for compensation to Mr. Teeple of $15,000 cash per month and the issuance of 1 share of Series A Preferred Stock proportionately vesting over four years beginning December 31, 2018 upon execution of the Teeple Agreement. The Teeple Agreement can be terminated upon the resignation or death of Mr. Teeple, and also can be terminated by the Company due to the failure or neglect of Mr. Teeple to perform his duties, or due to the misconduct of Mr. Teeple in connection with the performance. In May 2019 Mr. Teeple was granted an additional 3 shares of Series A Preferred.
On December 28, 2018, the Company executed an Employment Agreement (“Ferro Agreement”) with Pasquale Ferro for Mr. Ferro to serve as Pure Health Products’ president for cash compensation of $15,000 per month and the total issuance of 5 share of Series A Preferred Stock proportionately vesting at the beginning of each year for a term of 4 years. Mr. Ferro may terminate his employment upon 30 days written notice to the Company. The Ferro Agreement has an initial term of four years and can be terminated upon the resignation or death of Mr. Ferro, and also can be terminated by the Company due to the failure or neglect of Mr. Ferro to perform his duties, or due to the misconduct of Mr. Ferro in connection with the performance.
Effective September 6, 2019 (the “Effective Date”), Can B̅ Corp. (the “Company” or “CANB”) approved the appointment of Johnny J. Mack (“Mack”) as its President and Chief Operating Officer. Mack had been serving as the Company’s interim COO. The Company and Mack have entered into a new Employee Services Agreement (the “Mack Agreement”) to memorialize the terms of the foregoing. In consideration for Mack’s services, Mack would (i) receive a base salary of $15,000 per month, subject to increase after each yearly anniversary of the Agreement, (ii) be eligible to receive annual cash or stock bonuses, (iii) be entitled to four weeks’ vacation time and five paid days for illness in accordance with the Company’s policies, and (iv) receive a total of 106,667 options (“Mack Options”) to purchase shares of the Company’s common stock, with 26,667 Mack Options vesting on the effective date and additional tranches of 26,667 Mack Options vesting on each of the first, second, and third anniversaries of the Effective Date, assuming Mack’s continued employment. Each Option is exercisable at a price of $0.30 per share. The Company also agreed to hold harmless and indemnify Mack as authorized or permitted by law and the Company’s governing documents, as the same may be amended from time to time, except for acts constituting negligence or willful misconduct by Mack. The Company agreed to pay Mack a severance in the event the Mack Agreement is terminated by the Company without cause or by Mack for “good reason” or by reason of Mack’s death or disability. On October 4, 2019 Mack resigned from all of his officer and director positions and the Company settled his termination for payment of all accrued expenses, payout of all accrued time and base compensation of $13,315 and retention of his already earned 26,667 options. Mr. Mack has left the Company.
In addition, on October 10th, 2019 the Company appointed Philip Scala as its interim COO. Mr. Scala has acted as founder and CEO of Pathfinder Consultants International, Inc. (“Pathfinder”) since 2008. Pathfinder offers unique expertise and delivers the information you need to make informed decisions, whether in times of crisis or in the course of simply running your business. Prior to forming Pathfinder, Mr. Scala served the United States both as a Commissioned Officer in the US Army for five years followed by his 29 years of service with the FBI. Mr. Scala received his bachelor’s degree and Master of Business Administration in accounting from St. John’s University, he also earned a Master of Arts degree in Psychology from New York University. The Company has entered into an employment agreement with Mr. Scala. Pursuant to the agreement, Mr. Scala will receive a base salary of $2,500 per month. He will be entitled to incentive bonuses and pay increases in accordance with the Company’s normal policies and procedures. Mr. Scala will also receive options to buy 1,667 common shares of the Company at a price of $0.30 for a period of three years. The initial term of the agreement is for 90 days. The agreement renews for additional 90-day periods unless terminated by either party. The agreement otherwise contains standard covenants and conditions.
Consulting Agreements
On July 15, 2020, we engaged an advisor to provide consulting services under an Investor Relations and Advisory Agreement (the “Advisory Agreement”). Pursuant to the Advisory Agreement, we agreed to pay the Consulting Firm a restricted common stock monthly fee of $5,000 per month for the initial 3 months., $6,250 per month for months 4-6., $7,500 per month for month 7 and after. At CANB’s option, the monthly fee may be payable in part or in whole in cash. Monthly Fee, such amount shall be paid via issuance of restricted common shares of CANB. The shares are to be issued in the name of Tysadco Partners. The number of common shares earned each month shall be calculated and issued on a quarterly basis prior to each 90-day period and based on the value at the closing price on the last day of the preceding period. All common shares earned by the Consultant pursuant to this Agreement shall be issued by CANB on a quarterly basis. CT shall not have registration rights, and the shares may be sold subject to Rule 144.
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On December 8, 2019, the Company executed a Consulting Agreement with Seacore Capital, Inc. (“Seacore”) for Seacore to serve as the Company’s consultant for stock compensation of a total of 8,333 restricted shares each quarter from 4th quarter 2019 through 3rd quarter 2020. The shares shall not have registration rights, and the shares may be sold subject to Rule 144.
Lease Agreements
On December 1, 2014, Prosperity entered into a lease agreement with KLAM, Inc. for office space in Hicksville, New York for an initial term of one year commencing December 1, 2014. The lease provides for monthly rentals of $2,500 and provides Prosperity an option to renew the lease after the initial term. The Company has continued to occupy this space after November 30, 2015 under a month to month arrangement at $2,500 per month. This lease was terminated in January 2019.
On September 11, 2015, the Company executed a lease agreement with an unrelated third party for office space in Hicksville, New York for a term of 37 months. The lease provides for monthly rentals of $2,922 for lease year 1, $3,009 for lease year 2, and $3,100 for lease year 3. The lease also provides for additional rent based on increases in base year operating expenses and real estate taxes. On August 6, 2018, the Company renewed the lease agreement for a term of 36 months starting November 1, 2018. The lease provides for monthly rentals of $3,193 for lease year 1, $3,289 for lease year 2, and $3,388 for lease year 3. In October 2019, the Company modified and extended the lease agreement for a term of 30 months starting November 1, 2019. The lease provides for monthly rentals of $3,807 for year 1 and $3,921 for the remaining eighteen months. The original $100,681 right-of-use asset and $90,591 lease liability was adjusted to $103,260 with the modification.
The Company leases office space in numerous medical facilities under month-to-month agreements.
Rent expense for the period ended September 30, 2020 and 2019 was $193,069 and $155,192, respectively.
At September 30, 2020, the future minimum lease payments under non-cancellable operating leases were:
| Year ended December 31, 2020 | $ | 11,650 | ||
| Year ended December 31, 2021 | 47,055 | |||
| Year ended December 31, 2022 | 15,685 | |||
| Total | $ | 74,390 |
The lease liability of $69,100 at September 30, 2020 as presented in the Consolidated Balance Sheet represents the discounted (at our 10% estimated incremental borrowing rate) value of the future lease payments of 74,390 at September 30, 2020.
Major Customers
For the nine months ended September 30, 2020, there were no customers that accounted for more than 10% of total revenues.
For the nine months ended September 30, 2019, there were no customer accounted for more than 10% of total revenues.
NOTE 16 – Related Party Transactions
LI Accounting Associates, LLC (LIA), an entity controlled by a relative of the Managing Member PHP, is a vendor of CANB. At September 30, 2020, CANB has an account payable due to LIA totaling $9,500. For the nine months ended September 30, 2020, CANB had expenses to LIA of $54,500.
During the nine months ended September 30, 2020, we had products and service sales to related parties totaling $0.
NOTE 17 – Subsequent Events
In accordance with FASB ASC 855, Subsequent Events, the Company has evaluated subsequent events through November 9, 2020, the date on which these consolidated financial statements were available to be issued. There were no material subsequent events that required recognition or additional disclosure in these consolidated financial statements.
On November 3, 2020, Steve Apolant was terminated and his duties for Green Grow Farms, Inc. have been assumed directly by CANB CEO Marco Alfonsi.
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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
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, Inc. as a wholly-owned subsidiary. In May 2019, we formed DuramedNJ, LLC and Radical Tactical LLC, as wholly-owned subsidiaries. In July 2019, we formed NY Hemp Depot LLC, as a wholly-owned subsidiary. In August 2019, we acquired Green Grow Farms, Inc., as a wholly-owned subsidiary.
We manufacture and sell lifestyle health and wellness products, such as oils, creams, moisturizers, isolate, gel caps, spa products, and concentrates, both containing and void of CBD, which we sell directly and through distributors. Through our Duramed division, we supply medical devices for use via doctor prescriptions for post-surgery and accident patients. Our subsidiary, Green Grow Farms, intends to contract with farmers in New York to grow hemp under a controlled program of specific strains, cultured feminized seeds, proven technology, and access to processing for their crop. Green Grow Farms Inc. intends to amalgamate the cultivated off-take from the farmers, combine and fill “super-sacks” for shipping to a processing facility to produce high-grade isolate or distillate for use in Can B̅’s manufacturing facility in Lacey WA. We also have previously provided document, project, marketing and sales management systems to our residual business clients through our website and proprietary software, which operations are being wound down. The consolidated financial statements include the accounts of CANB and its wholly owned subsidiary Pure Health Products, wholly owned Green Grow Farms, Inc, and wholly owned Duramed subsidiaries.
Results of Operations
Three months ended September 30, 2020 compared with three months ended September 30, 2019.
Revenues decreased $155,926 from $615,422 in 2019 to $459,496 in 2020. The decrease was due to the impact of the COVID-19 outbreak.
Cost of product sales decreased $71,469 from $141,850 in 2019 to $70,381 in 2020 due to the reduction in sales caused by the COVID-19 outbreak.
Officers and director’s compensation and payroll taxes decreased $66,333 from $442,898 in 2019 to $376,565 in 2020. The 2019 expense amount ($442,898) includes additional stock-based compensation of ($184,556) pursuant to their respective employment agreements. The 2020 expense amount ($376,565) includes additional stock-based compensation of ($293,715) pursuant to their respective employment. The decrease was due to the impact of the COVID-19 outbreak.
Consulting fees decreased $312,894 from $449,355 in 2019 to $136,461 in 2020. The 2019 expense amount ($449,355) includes stock-based compensation of $418,267, resulting from stock issued for the service of consultants. The 2020 expense amount ($136,461) includes stock-based compensation of $104,261, resulting from stock issued for the service of consultants.
Advertising expense increased $23,688 from $66,611 in 2019 to $90,299 in 2020.
Hosting expense increased $1,979 from $3,472 in 2019 to $5,451 in 2020.
Rent expense increased $3,897 from $67,520 in 2019 to $71,417 in 2020.
Professional fees decreased $6,169 from $82,452 in 2019 to $76,283 in 2020.
Depreciation of property and equipment increased $1,097 from $3,157 in 2019 to $4,254 in 2020.
Amortization of intangible assets increased $164,431 from $4,967 in 2019 to $169,398 in 2020.
Reimbursed expenses decreased $49,934 from $70,905 in 2019 to $20,971 in 2020.
Other operating expenses decreased $6,847 from $217,499 in 2019 to $210,652 in 2020.
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Net loss increased $292,077 from $941,099 in 2019 to $1,233,176 in 2020. The decrease was due to the $247,085 decrease in total operating expenses offset by the $452,760 increase in other expense – net, the $1,945 increase in provision for income taxes and the $84,457 decrease in gross profit.
Nine months ended September 30, 2020 compared with nine months ended September 30, 2019.
Revenues decreased $531,874 from $1,766,161 in 2019 to $1,234,287 in 2020. The decrease was due to the impact of the COVID-19 outbreak.
Cost of product sales decreased $463,632 from $703,607 in 2019 to $239,975 in 2020 due to the reduction in sales caused by the COVID-19 outbreak.
Officers and director’s compensation and payroll taxes decreased $411,364 from $1,717,586 in 2019 to $1,306,222 in 2020. The 2019 expense amount ($1,717,586) includes additional stock-based compensation of ($1,018,786) pursuant to their respective employments. The 2020 expense amount ($1,306,222) includes additional stock-based compensation of ($916,386) pursuant to their respective employment agreements.
Consulting fees decreased $980,958 from $1,540,441 in 2019 to $559,483 in 2020. The 2019 expense amount ($1,540,441) includes stock-based compensation of $1,372,181, resulting from stock issued for the service of consultants. The 2020 expense amount ($559,483) includes stock-based compensation of $457,377, resulting from stock issued for the service of consultants.
Advertising expense increased $129,961 from $220,373 in 2019 to $350,334 in 2020.
Hosting expense increased $6,198 from $11,389 in 2019 to $17,587 in 2020.
Rent expense increased $37,877 from $155,192 in 2019 to $193,069 in 2020.
Professional fees increased $206,951 from $194,468 in 2019 to $401,419 in 2020.
Depreciation of property and equipment increased $3,670 from $8,687 in 2019 to $12,357 in 2020.
Amortization of intangible assets increased $434,429 from $12,127 in 2019 to $446,556 in 2020.
Reimbursed expenses decreased $106,326 from $168,260 in 2019 to $61,934 in 2020.
Other operating expenses increased $70,678 from $578,775 in 2019 to $649,453 in 2020.
Net loss increased $47,104 from $3,551,104 in 2019 to $3,598,208 in 2020. The decrease was due to the $608,884 decrease in total operating expenses offset by the $584,576, increase in other expense – net, the $3,170 increase in provision for income taxes and the $68,242 decrease in gross profit.
Liquidity and Capital Resources
At September 30, 2020, the Company had cash and cash equivalents of $45,506 and a working capital of $1,882,926. Cash and cash equivalents decreased $1,034 from $46,540 at December 31, 2019 to $45,506 at September 30, 2020. For the nine months ended September 30, 2020, $916,385 was provided by financing activities, $875,284 was used in operating activities, and $42,135 was used in investing 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 although it is in negotiations with a senior secured lender to replace all of the current convertible notes which expire prior to the end of the year..
We currently have no commitments with any person for any capital expenditures other than a 2021 commitment for marketing, sales, and royalty payments to Lifeguard Licensing in the amount of $360,000
We have no off-balance sheet arrangements.
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Trend Information
The novel coronavirus disease of 2019 (“COVID-19”) outbreak has affected the Company’s operations as set forth above. The full impact of the COVID-19 outbreak continues to evolve. 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, however, as a direct result of medical offices closure in our primary area of operations, our sales for third quarter are down approximately 60% year over year and quarter over quarter. During the course of the pandemic situation, the Company laid off 80% of its workforce in the CBD business and are just now recovering those operations. Our inventory increased to over $500,000 due to lack of sales, but fortunately, the product shelf life exceeds two years so as sales increase, we expect inventory levels to level off at close to $200,000. Our Duramed division was tasked with 90% of the affiliate doctors ceasing operations for period from 4-8 months and are just now recovering full operations. Presently, our Duramed operations are at 60% of pre-COVID operational level. Our expectation that as business open, and in particular medical offices, that our recovery will progress in sync with the speed of the business openings and expect to be back to pre-COVID operational level by end of the 1st quarter 2021.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
None.
ITEM 4. CONTROLS AND PROCEDURES
(A) EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
As of September 30, 2020, our principal executive officer and principal financial officer conducted an evaluation regarding the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) or 15d-15(e) under the Exchange Act). Based upon the evaluation of these controls and procedures, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures were not effective as of the end of the period covered by this report.
(B) CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
There were no changes in our internal control over financial reporting in our fiscal quarter for the period September 30, 2020 covered by this Quarterly Report on Form 10-Q, that have materially affected, or are reasonably likely to materially affect our internal control over financial reporting.
We are not currently a party to any legal proceedings.
As a smaller reporting company, we are not required to provide risk factors in this Form 10-Q, however The Company has been directly impacted and has experienced moderate interruption during this challenging COVID-19 pandemic. In accordance with applicable federal and state guidelines, the Company has implemented and prioritized strict social distancing measures, good manufacturing practices, proper sanitization measures, and new manufacturing guidelines. Although several Company customers have experienced business shutdowns during the last few weeks, this has dramatically impacted our online ordering and/or initiating new direct shipment orders. Additional COVID operating requirements to insure safety, handling requirements, sanitation requirements have placed a significant burden on order processing and fulfilment.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
Sales of unregistered securities during the nine months ended September 30, 2020 are as follows:
From January 1, 2020 through March 31, 2020, the company issued an aggregate of 27,500 shares of CANB Common Stock to multiple consultants for services rendered.
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From January 1, 2020 through March 31, 2020, the company issued an aggregate of 31,335 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From January 1, 2020 through March 31, 2020, the company issued an aggregate of 20,000 shares of CANB Common Stock to FirstFire Global Opportunities Fund, LLC for a commitment fee pursuant to a junior convertible promissory note purchase agreement.
From January 1, 2020 through March 31, 2020, the company issued an aggregate of 99,508 shares of CANB Common Stock to FirstFire Global Opportunities Fund, LLC for returnable shares pursuant to a junior convertible promissory note purchase agreement.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 111,734 shares of CANB Common Stock to multiple consultants for services rendered.
From April 1, 2020 through June 30, 2020, the company issued an aggregate of 20,319 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 30,000 shares of CANB Common Stock to an employee for services rendered.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 185,000 shares of CANB Common Stock to SRAX, Inc. according to a platform access agreement.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 50,000 shares of CANB Common Stock to Mediiusa Group, Inc. according to a hemp processing use agreement.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 24,545 shares of CANB Common Stock to Labrys Fund, L.P. for a commitment fee pursuant to a junior convertible promissory note purchase agreement.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 118,000 shares of CANB Common Stock to Labrys Fund, L.P. for returnable shares pursuant to a junior convertible promissory note purchase agreement.
From April 1, 2020 through June 30, 2020, the Company issued an aggregate of 20,000 shares of CANB Common Stock to Eagle Equities, LLC for a commitment fee pursuant to a junior convertible promissory note purchase agreement.
From July 1, 2020 through September 30, 2020, the Company issued an aggregate of 145,000 shares of CANB Common Stock to multiple consultants for services rendered.
From July 1, 2020 through September 30, 2020, the Company issued an aggregate of 100,000 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From July 1, 2020 through September 30, 2020, the Company issued an aggregate of 478,715 shares of CANB Common Stock to members of the Advisory Board, Medical Advisory Board, and Sports Advisory Board for services rendered.
From July 1, 2020 through September 30, 2020, the Company received an aggregate of 543,715 shares of CANB Common Stock from an exchange agreement whereby shares of Iconic Brands, Inc. held by the Company were exchanged for shares of stock in the Company held by Iconic Brands, Inc.
From July 1, 2020 through September 30, 2020, the Company issued an aggregate of 60,000 shares of CANB Common Stock for the acquisition of inventory.
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From July 1, 2020 through September 30, 2020, the Company issued an aggregate of 185,000 shares of CANB Common Stock to FirstFire Global Opportunities Fund, LLC pursuant to a junior convertible promissory note purchase agreement.
With respect to the transactions noted above, each of the recipients of securities of the Company was an accredited investor, or is considered by the Company to be a “sophisticated person”, inasmuch as each of them has such knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of receiving securities of the Company. No solicitation was made and no underwriting discounts were given or paid in connection with these transactions. The Company believes that the issuance of its securities as described above was exempt from registration with the Securities and Exchange Commission pursuant to Section 4(a)(2) and/or Regulation D of the Securities Act of 1933.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
None.
| (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 Quarterly Report on Form 10-Q filed with the SEC on August 19, 2020 and incorporated herein by reference. | |
| (4) | Filed with the Current Report on Form 8-K filed with the SEC on January 14, 2020 and incorporated herein by reference. | |
| (5) | Filed with the Current Report on Form 8-K filed with the SEC on June 24, 2020 and incorporated herein by reference. | |
| (6) | Filed with the Form 1-A/A Offering Statement filed with the SEC on July 17, 2020 and incorporated herein by reference. | |
| (7) | Filed with the Current Report on Form 8-K filed with the SEC on February 18, 2020 and incorporated herein by reference. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| Can B Corp. | ||
| Date: November 16, 2020 | By: | /s/ Marco Alfonsi |
| Marco Alfonsi, Chief Executive Officer | ||
| Date: November 16, 2020 | By: | /s/ Stanley L. Teeple |
| Stanley L. Teeple, Chief Financial Officer | ||
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Exhibit 10.1
HEMP PROCESSING USE AGREEMENT
This Hemp Processing Use Agreement (Agreement) is made and entered into as of the of day of _______, 2020 (the “Effective Date”) by and between Green Grow Farms, Inc. (the “Cultivator”), a wholly owned subsidiary of Can B Corp., a Florida corporation located at 960 S. Broadway, Ste 120, Hicksville, NY 11801 the “Company”) and Mediiusa Group Inc., A New York Corporation located at 580 Fifth Avenue, #1720, New York, NY 10036 (“Processor”). This Agreement is regarding the use of Processor’s NY Hemp Registration for the processing of lawful hemp under the Processor’s Hemp Registration with the State of New York. Processor and Cultivator may each be respectively referred to as a “Party” or, collectively, as the “Parties”. The effective date (“Effective Date”)
RECITALS
WHEREAS, Cultivator desires to provide lawful hemp (“Hemp”) that it cultivates pursuant to the laws and regulations of the state in which it was grown and to process that Hemp under the Processors Industrial Hemp Processor Registration with the State of New York under the express terms and conditions of this Agreement, and
WHEREAS, Processor is a corporation in good standing with the State of New York under the name of Mediiusa Group Inc. formed on August 5, 2019, and
WHEREAS, Processor currently holds a valid Industrial Hemp Processor Registration in full force and effect with the State of New York under Registration : HEMP-P-000035 (the “Registration”) and is authorized to process Hemp, and
WHEREAS, Cultivator is a corporation in good standing with the State of Florida and holds a Cultivation License to allow it to lawfully cultivate Hemp, which will result in the lawful Hemp being able to be processed into extract which is the subject of this Agreement, and
WHEREAS, Cultivator represents that it has the capacity, experience, and sophistication to cultivate industrial hemp to satisfy the quality and delivery provisions described in this Agreement for use under the Processor’s Processor Registration under the terms of this Agreement.
TERMS OF AGREEMENT
NOW THEREFORE, in consideration of the premises, preamble and recitals outlined above which are made a part of this Agreement and are true and correct, and the mutual terms, covenants and/ or covenants expressly contained in this Agreement, and acknowledging hereby the receipt of other good, sufficient and adequate consideration and intending to be legally bound hereby, the parties hereto mutually agree hereby as follows, to wit:
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1. Term. The Term of this Agreement shall be five (5) years (Term). This Agreement will be automatically extended for an additional 5-years, under the same terms and conditions, unless terminated by either Party within 30-days prior written notice to the initial Term of this Agreement. This Agreement may be terminated without cause by Cultivator at any time hereafter by giving the Processor thirty (30) days prior written notice of such cancellation. Upon such termination, neither party hereto shall have any further rights and/or obligations against the other party hereto except for any rights that actually accrued and/or otherwise vested hereunder prior to such termination of this Agreement
2. Scope. The Scope of this Agreement is:
| a. | The processing of Hemp for oil, isolate, or crude (“Hemp Product”) for further use by the Cultivator and/or for sale by the Cultivator. During the Term of this Agreement, Processor agrees hereby to allow Cultivator to process any and all of the subject Hemp under and/or in connection with this Agreement under Processor’s above-mentioned Registration. | |
| b. | In accordance with regulations, Cultivator shall identify a single New York location within 180 days of Effective Date. |
3. Material to Be Processed. The Hemp Product that is the subject of this Agreement shall be derived only from material that meets all of the following criteria, which shall be referred to as “the Material” in this Agreement:
a. It must have been lawfully cultivated under applicable state and federal law, must have been certified as lawful industrial hemp by the state of in which it was cultivated, and must have delta-9 tetrahydrocannabinol (THC) levels that do not exceed three tenths of one percent (0.3%) on a dry weight basis.
b. It must be free and clear of any liens, competing claims by third parties, or other legal encumbrances.
c. It must not contain any detectable levels of mildew, mold, fungus, pesticides, or heavy metals.
4. Delivery Schedule. During the Term of this Agreement, Cultivator may deliver and process Hemp at any time, grown under its own or third party legal cultivations, using any facility, at any location, using its own or any third party processing equipment.
5. Fees and Payment.
| a. | Price & Payment. Subject to and conditioned upon Cultivator being able to lawfully process during the Term of this Agreement Cultivator’s Hemp under the Processor’s above mentioned Registration, then, in such event, Cultivator shall pay Processor a one-time fee of one-hundred thousand (100,000) shares of common stock in the Company, subject to SEC Rule 144 Restrictions payable as: | ||
| i. | Fifty thousand (50,000) share payable within 10 days of the Effective Date, and | ||
| ii. | Fifty thousand (50,000) shares payable 6 months form the Effective Date. | ||
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| b. | Processing Fee. Subject to and conditioned upon Cultivator being able to lawfully process during the Term of this Agreement Cultivator’s Hemp under the Processor’s above mentioned Registration, then, in such event, Cultivator shall pay Processor a fee equal to five percent (5%) of : | ||
| i. | The net revenues (“Net Revenues”), if any, actually received and collected from processing fees charged to third parties, and | ||
| ii. | The net valuation (“Net Valuation”) of the Hemp processed, if any, for Cultivators own use. | ||
| iii. | Net Revenues are defined as gross payment/sales less any spoilage, returns, tax, freight, uncollectable fees. | ||
| iv. | Net Valuation is defined as the intercompany transfer/sales price from Green Grow Farms, Inc. to the Company’s manufacturing facility, such price shall be reasonably equal to similar valuations in the marketplace. | ||
| c. | Processing Fee Payment. Subject to and conditioned upon Cultivator being able to lawfully process during the Term of this Agreement Cultivator’s Hemp under the Processor’s above mentioned Registration, then, in such event, Cultivator shall pay Processors the Processing Fees: | ||
| i. | For third party fees, withing 10 days of collection, | ||
| ii. | For Cultivators use, within 10-days of use of product or shipping product to its own facility. | ||
| iii. | For Cultivators sale of processed product to third parties, within 10 days of receipt of funds. | ||
| d. | Minimum Annual Payment. Subject to and conditioned upon Cultivator being able to lawfully process during the Term of this Agreement Cultivator’s Hemp under the Processor’s above mentioned Registration, then, in such event, commencing with the first product to be processed by Cultivator under this Agreement, (“Start Date”), Cultivator shall hereafter reconcile payments to Processor for each annual twelve (12) months period from Start Date a minimum fee of $25,000 in the event that the Processing Fee under section 5(b) of this Agreement for any such twelve (12) month period is less than $25,000.00 in the aggregate . | ||
6. Delivery, Title, and Risk of Loss.
| (i) | Initial Delivery. Title of the Material shall not pass at any under this Agreement from Cultivator to Processor and risk of loss of the Material shall be with the Party who holds title to the Material at the time of loss. | |
| (ii) | Final Delivery. Final Delivery of the Hemp Product shall be made by Cultivator upon completion of the process. Title of the Hemp Product shall pass from Cultivator to owner of the Hemp. Risk of loss of the Hemp Product shall be with the Party who holds title at the time of loss. |
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7. Inspection. During the Term of this Agreement, Processor and its authorized agent(s) may inspect the Material at any commercially reasonable time between execution of this Agreement and Initial Delivery as set forth in paragraph 6. Processor shall have no further obligation to process Hemp beyond authorization of Processor to process hereunder the Hemp in Hemp Product under Processor’s Registration. The Cultivator may provide at its expense full panel certificates of analysis (COA) from a third-party analytical laboratory. In this Agreement a “full panel COA” means a document providing numerical data regarding cannabinoid concentrations, terpene concentrations, and concentrations of contaminants, including mold, mildew, fungus, mycotoxins, pesticides, and heavy metals.
8. Confidentiality and Non-circumvention.
| a. | Confidentiality. The Parties agree not to disclose any Confidential Information of the other party. The parties agree that “Confidential Information” includes a Party’s customer names, project names, product volumes, and product prices. | |
| b. | Non-Circumvention. Each Party expressly agrees and acknowledges that under no circumstances shall it or its Representatives solicit, engage, or contact any third party in circumvention of the other Party without first notifying and obtaining consent from the other Party. |
9. Duties and Obligations of the Parties. The Parties hereby each agree to the following duties and obligations with respect to the transaction which is the subject of this Agreement:
| a. | Cultivator. Cultivator shall timely and fully perform any other acts, reports, which are required of Processor under the State Of New York Industrial Hemp Processor Registration for product processed by Cultivator. | |
| b. | Processor. Processor shall timely and fully complete acts which are required of it in this Agreement to maintain the Industrial Hemp Processor Registration with the State of New Yorka swell as to process the lawful Hemp of Cultivator under and/or in connection with this Agreement under Processor’s Registration. |
10. Breach and Default. In the event that a Party fails to materially perform its duties and obligations under this Agreement, then, in such event, the aggrieved Party shall provide written notice to the breaching Party of the material breach and shall provide a reasonable opportunity to cure same within thirty (30) consecutive days of said notice. In the event that the breach is not timely cured within said thirty (30) days period, then, in such event, the aggrieved Party may, in its sole discretion, call the breaching Party in material default of this Agreement and exercise any of its legal rights and remedies as provided by applicable law. Failure of an aggrieved Party to call a breaching Party in material default and/or to exercise a legal right or remedy shall not be deemed a waiver of such aggrieved Party’s rights or remedies.
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11. Attorney Fees. The Parties acknowledge that this Agreement was prepared by the attorney for Cultivator at its expense. Notwithstanding that the attorney for Cultivator prepared this Agreement, the Parties each specifically and expressly acknowledge that they have had a full and fair opportunity to have this agreement reviewed by an attorney of their choice and that no provision of this Agreement shall be construed against Cultivator solely by virtue of the fact that it caused this Agreement to be drafted. Except as set forth in this paragraph the Parties shall be responsible for their own legal fees and costs which arise out of this Agreement. Notwithstanding the foregoing, in the event that a legal action is filed by a Party to enforce its rights under this Agreement then the prevailing Party in such legal action shall be paid its actual and necessary legal costs and fees incurred not to exceed in the aggregate $10,000.00 by the non-prevailing Party.
12. Warranties. Cultivator makes no warranties other than that the Hemp shall comply with the standards set forth in this Agreement, that it possesses all required registrations, permits, and authorizations to lawfully perform its obligations under this Agreement, and that it will perform its duties and obligations set forth in this Agreement. Processor makes no warranties to Cultivator other than: (i) that it possesses all required registrations, permits and authorizations to lawfully perform its obligations under this Agreement, (ii) that it will perform its duties and obligations set forth in this Agreement, and (iii) That Cultivator may legally process the subject Hemp under Processor’s above mentioned Registration and Cultivator hereby relies on such representation as being a material inducement to Cultivator in the making of this Agreement (including, but not limited to, the payment of any and all Fees under section 5 hereunder).
13. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing. All communications shall be sent to the Parties at the address set forth in below, or to such other address as may have been furnished in writing by the Parties pursuant to this paragraph. Notice to each party shall be as follows:
| Cultivator: | Can B Corp |
| Attn: Marco Alfonsi, CEO | |
| 960 S. Broadway, Ste 120 | |
| Hicksville, NY 11801 | |
| Email: | Marco@canbiola.com and Stan@canbiola.com |
| Processor: | Mediiusa Group Inc. |
| 1365 York Ave | |
| New York, NY 11021 | |
| Email: | Isaac Sutton suttglobal@gmail.com |
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14. Jurisdiction and Choice of Law. In the event of a dispute or default arising out of this Agreement the Parties agree that jurisdiction shall be with the courts of New York and that the laws of New York shall apply, except that any registration, license, approval, test, or determination regarding the legal status of the Cultivator and/or the Material by the state in which the industrial hemp was actually cultivated shall control. To the fullest extent permitted by law, in the event of any dispute arising out of, or relating to, the terms and conditions of this Agreement, the Parties hereto (a) consent and submit to the exclusive jurisdiction of the courts of the State of New York in the county of Nassau and/or of the U.S. District Court for the Eastern District of New York or (collectively, the “Courts”) and (b) agree not to commence any suit, action or proceeding relating thereto except in such Courts, and waives, to the fullest extent permitted by law, the right to move to dismiss or transfer any action brought in such Courts on the basis of any objection to personal jurisdiction, venue or inconvenient forum.
15. Entire Agreement. This Agreement (and any and all schedules, exhibits and/or attachments hereto) otherwise constitutes and contains the entire understanding and agreements between the parties hereto and supersedes and revokes any and all prior understandings and agreements, if any, relating to the subject matter hereof and transactions contemplated hereunder as well as fully discharges any and all prior and/or contemporaneous promises, representations, and/or other manifestations, oral or written, express and/or implied, of the parties hereto of any kind relating in any way to the subject matter and transactions (including all of such transactions elements reflected by this writing) contemplated by this Agreement. Further, no additional terms are implied by usage of trade, by course of dealing, and/or by course of performance and this Agreement is intended as a final expression of the parties’ Agreement. Furthermore, neither Party hereto has made any other representation and/or warranty to the other party hereto with respect to the subject matter hereof and transactions contemplated hereunder not expressly set forth in this Agreement. Moreover, except as expressly provided to the contrary in this Agreement, each party hereto hereby further warrant(s), covenant(s), represent(s) and state(s) that no person whatsoever nor any party hereto has made any representations, warranties, statements, and/or guarantees of any kind and/or nature whatsoever relating to and/or in connection with any past, present and/or future daily, weekly, monthly and/or annual gross income, net income, gross profits, net profits, gross receipts, net receipts, gross compensation, net compensation, expenses, value and/or volume of solicitations and/or referrals, if any, etc. of any party hereto and none of the same have been relied upon in any manner whatsoever by any party hereto. Hence, no oral agreements, statements, nor any parole evidence (extrinsic evidence) of any kind and/or nature whatsoever (whether made prior, contemporaneously and/or hereafter herewith) shall amend, modify, change and/or otherwise effect the terms of this Agreement.
16. Amendments. No change, modification, amendment, addition, or termination of this Agreement or any part of it shall be valid unless in writing and signed by all Parties.
17. No Assignment. Neither this Agreement nor any party’s rights, duties nor obligations hereunder may be assigned by any Party hereto without the prior written consent of the other Parties. Any assignment without such consent shall be null, void, unenforceable and of no force and effect resulting in no transfer of rights nor duties and/or obligations in and to such an assignee.
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18. Force Majeure. Neither Party hereto shall be obligated to perform nor otherwise be liable for any damages whatsoever to the other Party hereto caused and/or otherwise due to any delay and/or failure of any kind in a party’s respective performance under this Agreement resulting and/or otherwise arising from any one (1) or more of the following extreme and unforeseeable Force Majeure event(s) and/or impediment(s), which includes, but are not limited to, the following, to wit : (a) acts of God or public enemy or war (declared or undeclared); (b) acts of government (including, but not limited to, any martial law, quarantine orders, stay at home orders, shelter at home orders, or other similar orders); (c) fires, floods, earthquakes, hurricanes, tornados, blizzards, bombs, explosions and/or other catastrophes and/or natural disasters; (d) epidemics or quarantine restrictions (including, but not limited to, any quarantine orders, stay at home orders, shelter at home orders, or other similar orders); (e) strikes, slowdowns, lockouts, labor stoppages, and/or other substantial labor disputes of any kind; (f) freight, embargoes, or interruption of transportation; (g) shortages or inability to obtain labor, energy, components, raw materials, and/or supplies in the open market, (h) riot(s), insurrection(s), terrorism, sabotage, civil strife and/or other substantial acts of violence (i) global pandemic (including, but not limited to, coronavirus (COVID-19)), or (j) any other governmental action and/or other cause, similar or dissimilar, provided that any one (1) or more of the foregoing event(s) and/or impediment(s) listed in (a) through (j) herein was/were beyond the knowledge or control of the Party claiming benefit of such Force Majeure nor occurs without the fault and/or negligence of such Party concerned. A Force Majeure event and/or impediment shall also include any other uncontrollable and unforeseeable extreme event(s) and/or impediment(s) that: (i) renders a Party hereto incapable of performing under this Agreement, or (ii) so substantially impacts such Party’s ability to materially perform under this Agreement, or (iii) so substantially changes market conditions such that the parties’ bargains has been or will be materially and negatively impacted, or (iv) otherwise so materially and negatively changes the economics of the bargain that the Parties hereto originally agreed to. Notwithstanding the foregoing herein, the time for performance by such Party shall be extended by the period of any such delay and/or failure to perform, provided that the Party claiming benefit of such Force Majeure event(s) and/or impediment(s) shall notify the other Party hereto with reasonable promptness under the circumstances of the aforementioned event(s) and/or impediment(s). Moreover, any Party claiming the benefit of such Force Majeure shall hereby also have a duty hereunder to use reasonable efforts to prevent and/or otherwise mitigate within reason to the extent possible under the circumstances the material adverse consequences resulting from such aforementioned event(s) and/or impediment(s).
19. Survival. The provisions of this Agreement which by their sense and context should survive any termination of expiration of this Agreement.
20. Binding Agreement. Without limiting the foregoing, this Agreement shall be binding upon the Parties and their heirs, successors, and permitted assigns.
21. Severability. Every provision of this Agreement is intended to be severable, and, if any term or provision of this Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity or legality of the remainder of this Agreement.
22. No Waiver; Rights Cumulative. No failure or delay by any Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver unless in writing and signed by an authorized representative of such Party, nor shall any such waiver, failure, or delay be deemed a continuing waiver by such Party in respect of any subsequent breach or default, either of similar or different nature, unless expressly so stated in writing. The rights and remedies of the Parties provided in this Agreement shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
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23. Counterparts. This Agreement may be executed in counterparts by electronic transmission, each of which shall be deemed an original instrument, but all of which together shall constitute one and the same agreement. A fully executed facsimile, email and/or other copy of this Agreement shall hereby be deemed a legally binding and enforceable original hereof as well as shall be fully admissible for any and all usual and customary evidentiary purposes whatsoever in any court, arbitration and/or other legal proceeding of any kind and/or nature involving the parties hereto.
24. Independent Contractors. Each party hereto is and will remain an independent contractor with respect to its relationship with the other party hereto, and nothing contained in this Agreement shall be construed to constitute the parties as partners, joint ventures, co-owners or otherwise. Furthermore the Parties hereto fully intend to act and perform as independent contractors, and the provisions hereof are not intended to create any agency, partnership, joint venture, employment relationship and/or other fiduciary relationship of any kind and/or nature whatsoever between the parties hereto other than that of independent parties contracting with each other solely to carry out the provisions of this Agreement for the express purposes recited herein. Each party hereto shall be, and shall remain, the employer of its own respective agents, servants, employee and/or consultants. Such personnel shall at no time be deemed to be the agents, servants, employee and/or consultants of the other party hereto and shall not be entitled and/or be eligible to participate in any manner whatsoever in any benefits and/or privileges (including, but not limited to, health insurance, dental insurance, disability insurance, vacation pay, sick leave, retirement benefits, pension plans, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or other benefits etc., if any, on account of this Agreement) of any kind and/or nature whatsoever provided and/or extended by the other Party to such other party’s own members, officers, directors, agents, servants, employees and/or contractors in connection therewith. Each party hereto agrees to be solely and entirely responsible for its own acts and for paying any and all applicable taxes required by law such as payroll, income, withholding and social security taxes. Each party hereto hereby agrees that the other party hereto has not granted such party hereto any authority to make changes to the other party’s terms and conditions of sale, to extend the other party’s warranties or, in general, to enter into contracts or make quotations on behalf of or to bind the other party hereto in any transactions with such other party’s customers or any governmental agencies or third parties. No relationship of employment shall arise between the parties hereto or any employee or representative of the parties hereto. The other party hereto is at all times acting for its own account, and at its own expense.
27. Limitation of Liability. EXCEPT FOR LIABILITY ARISING UNDER SECTION 8 (CONFIDENTIALITY) AND A PARTY’S OBLIGATIONS UNDER SECTION 25 (INDEMNIFICATION) IN NO EVENT SHALL EITHER PARTY (NOR ANY OF THEIR RESPECTIVE SUCESSORS AND/OR ASSIGNS, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, MEMBERS, EMPLOYEES AND/OR AGENTS) BE LIABLE IN ANY MANNER WHATSOEVER AT ANY TIME TO THE OTHER PARTY HERETO FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ARISING FROM A COURSE OF DEALING PRACTICE, USAGE OF TRADE PRACTICE, COURSE OF PERFORMANCE PRACTICE, LOST PROFITS AND/OR REVENUES, COST OF CAPITAL OR THE EMPLOYMENT OF SUBSTITUTE SERVICES, BUSINESS INTERRUPTION, AND/OR LOSS OF PROGRAMS AND/OR INFORMATION) WHETHER SUCH AFOREMENTIONED DAMAGES ARE ACCRUED, ABSOLUTE, CONTINGENT, ACTUAL AND/OR IMPLIED, DIRECT AND/OR INDIRECT, AND/OR OTHERWISE, EVEN IF A PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR KNEW OF OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES, AND NOTWITHSTANDING THE FORM (E.G., CONTRACT, WARRANTY, INDEMNITY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, AND/OR OTHERWISE) IN WHICH ANY LEGAL AND/OR EQUITABLE ACTION MAY BE BROUGHT AGAINST SUCH PARTY. THE TERMS AND PROVISIONS OF THIS SECTION 27 SHALL THE EXPIRATION AND/OR THE OTHER TERMINATION OF THIS MEMORANDUM.
[The remainder of this page is left blank intentionally. The signature page follows.]
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****Signature Page for Hemp Processing Use Agreement****
WE AGREE:
| Cultivator: | ||||
| Can B. Corp | ||||
| By: | /s/ Marco Alfonsi | Dated: | 5/28/2020 | |
| Marco Alfonsi, CEO | ||||
| Green Grow Farms, Inc. | ||||
| By: | /s/ Marco Alfonsi | Dated: | 5/28/2020 | |
| Marco Alfonsi, CEO | ||||
| Processor: | ||||
| Mediiusa Group Inc. | ||||
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Exhibit 10.2
PLATFORM ACCOUNT CONTRACT
This Platform Account Contract (this “Agreement”) is a binding agreement between you (“User” or “you”) and SRAX, Inc., with an address at 456 Seaton St. Los Angeles, CA 90013 (“Company”). This Agreement governs your use of the Platform (as defined below) made available to you by the Company, including through the Website (as defined below), and is effective as of the date of presentation and acceptance by you as set forth in the following paragraph (including through the Website and/or Platform). Each of Company and User may be referred to herein as a “party” and collectively as the “Parties.”
AGREEMENT
| 1. | Definitions. |
Any terms not defined herein will have the meaning ascribed to them in the Standard Terms and Conditions for Internet Advertising for Media Buys of One Year or Less (Terms and Conditions), a copy of which are attached hereto as Exhibit A. Additionally, with regard to any inconsistent or contradictory terms or conditions contained in the Terms and Conditions or the IO, the terms contained in this Agreement will govern. All Capitalized terms defined herein shall have the following meanings:
(a) Access Exception means any failure or delay to provide access to or aspects of the Platform due to:
(a) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Company pursuant to this Agreement; (b) strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or loss and destruction of property; (c) User’s or any Authorized User’s negligence or breach of this Agreement; (d) regularly scheduled downtime for purposes of upgrading and maintaining the Platform and Website; and (e) any other causes beyond Company’s reasonable control.
(b) Authorized Users means those employees of the Company explicitly authorized by the Company to access and use the Platform in accordance with this Agreement.
(c) Commission means the United States Securities and Exchange Commission.
(d) Common Stock means the common stock of the User.
(e) Data User has the meaning set forth in Section 4(a).
(f) Effective Date shall mean the date on which the User accepts this Agreement as described herein.
(g) Fees means the following pursuant to this Agreement:
(i) Platform access: $18,000 for access to the Platform for a 12-month period from the Effective Date. This platform access fee is non-cancelable and will be deemed fully earned when paid.
(ii) Deliverables: User hereby agrees to a non-cancelable purchase of Deliverables from the Company in the amount of $130,000. The purchase price will be paid on the Effective Date of this Agreement and made pursuant to a valid IO.
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(iii) Additional Fees may be assessed if the Depository Trust Company (“DTC”) or Non-Objecting Beneficial Owner (“NOBO”) lists exceed 5,000 Stakeholders or the frequency of these imports exceeds once per calendar week for DTC and once per calendar month for NOBO. These assessments will represent the actual cost to SRAX, without markup.
(iv) Creative: Company will provide creative required to fulfill “Deliverables” as needed which may include: landing page, IAB standard display ad units, placements within various social media outlets and email composition. In addition, company will spend a reasonable amount of time in design consultation, development, edits and changes.
(h) IO means an Insertion Order, entered into by the User and the Company, in substantially the same form as attached hereto as Exhibit B.
(i) Legend Removal Date has the meaning set forth in Section 7(b).
(j) Permitted Use has the meaning set forth in Section 4(a).
(k) Platform means the SRAX IR platform that the user will utilize pursuant to the terms of this Agreement.
(l) Purchase Price means the closing price of User’s Common Stock on the Effective Date.
(m) Restricted Party means any third-party designated as such by User in writing from time-to-time.
(n) Revenue Share Data Sale has the meaning set forth in Section 4(a).
(o) Rule 144 means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as Rule 144.
(p) Securities Act means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(q) Stakeholder means a holder of a security issued by User.
(r) Stakeholder Information means aggregation of anonymous Stakeholder data derived from User’s use of the Platform but in no event will it include Personally Identifiable Information (“PPI”) unless Stakeholder specifically consent to the use of their PPI by [*].
(s) Term has the meaning set forth in Section 6(a).
(t) Terms of Use means the Terms of Use governing use of the Website and available at https://sraxir.com/Terms (or successor URL thereto) as the same may be updated from time-to-time in accordance with the terms thereof.
(u) Trading Day means a day on which the principal Trading Market is open for trading.
(v) Trading Market means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board (or any successors to any of the foregoing).
(w) User’s Revenue Share has the meaning set forth in Section 5(b).
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(x) VWAP means, for any date, the price determined by the first of the following clauses that applies:
(a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the OTC Bulletin Board is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the OTC Bulletin Board, (c) if the Common Stock is not then listed or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets” published by Pink OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Company and reasonably acceptable to the User, the fees and expenses of which appraiser shall be paid by the User.
(y) Website means the website and any web based applications and any content, functionality, and services offered on or through, available at: http://sraxir.com.
| 2. | Grant & Access. |
(a) Grant . Subject to and conditioned on User’s payment of the Fees and compliance with all other terms and conditions of this Agreement, Company hereby grants User a non-exclusive, non-transferable and non- sublicensable right to access and use the Platform during the Term, solely by the Authorized Users for User’s own internal business purposes, and in accordance with the terms and conditions of this Agreement. Company reserves all rights in or to the Platform not expressly granted to User in this Agreement.
(b) Online Access . The Platform is accessible through the Website (and may eventually be accessible through a mobile application) and User’s use of the Platform and Website is subject to and conditioned upon compliance with the Terms of Use, which are incorporated in and made part of this Agreement as if fully contained herein. Each reference to the “Agreement” shall be deemed to mean this Agreement, together with the incorporated Terms of Use. For clarification, any reference to the “Website” in the Terms of Use includes the Platform. In the event of a conflict between the terms of this Agreement and the Terms of Use, the terms of this Agreement shall prevail.
| 3. | Party Obligations. |
(a) Company Responsibilities.
(i) Subject to the terms of this Agreement, Company shall use commercially reasonable efforts to make access to the Platform available 24 hours per day and 7 days per week. If access to the Platform is available less than 99% of the time in any calendar month for reasons not constituting an Access Exception, then, following User’s written request, Company will provide User a credit equal to 10% of the Fees due for such month for each percentage point by which such uptime commitment is missed (for example, if access to the Platform was available 98% - 98.9% of the time in a month, the credit would be equal to 10%, and if access to the Platform was available 97% - 97.9% of the time, the credit would be equal to 20%), up to a maximum of the full amount of Fees due for such month. Any credit will be applied to the next month’s Fees due hereunder and, if this Agreement terminates prior to application of the applicable credit, such credit shall be treated as a reimbursement obligation by Company. This Agreement does not entitle User to any support for the Platform.
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(ii) Company may update or modify the Platform from time to time at Company’s sole discretion, and may require User to obtain and use the most recent version(s); provided, that if any such update materially decreases the functionality of the Platform, User may, at any time within 30 days of implementation of such updates and as its sole remedy, terminate this Agreement with 15 days prior written notice to Company.
(b) User Responsibilities.
(i) User is responsible and liable for all uses of the Platform resulting from access provided to User, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, User is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by User will be deemed a breach of this Agreement by User. User shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Platform, and shall cause Authorized Users to comply with such provisions.
(ii) User is responsible for supplying access to all data necessary to make use of the Platform, including NOBO and/or SPR data. User agrees to provide all the necessary documents requested by the Company to grant them access to said data.
(iii) User is responsible for complying with all federal, state, and local laws, ordinances, codes, rules, regulations, judgments, decrees, orders including securities laws related to the User’s securities and as applicable to User and its securities.
| 4. | Data Sales. |
(a) Revenue Share Data Sales. Subject to the terms of this Agreement, including Section 5(c), Company may grant third parties (“Data Users”) a right to use the Stakeholder Information for purposes of marketing products, services and opportunities to the Stakeholders identified in the Stakeholder Information (the “Permitted Use”) in exchange for consideration to be negotiated by Company in its sole discretion with any such Data Users (any such transaction, a “Revenue Share Data Sale”). As used herein, “Revenue Share Data Sale” means only the sale of the data underlying the Stakeholder Information, and not any related media sales.
(b) Restricted Parties. Notwithstanding the foregoing, if the Data User is a Restricted Party, Company shall not grant, or enter any agreement to grant, such Restricted Party any rights in or to the Stakeholder Information without the prior written consent of User. If the Data User is not a Restricted Party, no prior consent is required.
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(c) Notification of Data Sales. Upon entering a Revenue Share Data Sale, Company shall promptly notify User and provide User information regarding the identity of the applicable Data User and the consideration payable to Company (or how such consideration will be determined and calculated) in connection with the Revenue Share Data Sale.
(d) Company License. User hereby grants Company a right and license to use the Stakeholder Information for the Permitted Use and such right and license shall continue on a perpetual basis, notwithstanding any expiration or termination of this Agreement, until (i) User notifies Company in writing that it is terminating such right and license, and (ii) any agreement between Company and a Data User for Revenue Share Data Sales has expired.
(e) Rights Reserved. As between the parties, User shall remain the owner of the Stakeholder Information and reserves all rights therein except as explicitly set forth in this Agreement.
(f) User Authority. User represents and warrants that if applicable, it has the right, power and authority and has obtained all consents necessary to provide the Stakeholder Information and grant the rights contained in this Article 4, including granting Company the right to use, and grant use of, Stakeholder Information for the Permitted Use, and that use of the Stakeholder Information for the Permitted Use by Company and/or Data Users is permitted by applicable law. Provided however that in the event the Stakeholder Information contains PPI, User will provide the Company with copies of such consents. User shall indemnify, defend and hold harmless Company and its affiliates from any claims, actions, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) incurred by Company and related to a breach of the preceding sentence.
| 5. | Payment. |
(a) Fees. As payment for the Fees (excluding Additional Fees) User will issue the Company such number of shares of Common Stock equal to the aggregate amount of Fees divided the Purchase Price (“Shares”).
(b) Additional Fees. The Additional Fees, if any, will be billed to your credit card on file during that Term.
(c) Revenue Share. During the Term, Company shall pay User 50% of gross profits generated and actually received by Company from Data Users in connection with each Revenue Share Data Sale (the “User’s Revenue Share”). User’s Revenue Share shall be calculated by Company monthly and User’s Revenue Share for any particular month during the Term shall be paid by Company to User on or before the last day of the month following the month in which User’s Revenue Share is earned (e.g., User’s Revenue Share tied to gross profits generated and actually received by the Company in December will be paid by the Company on or before January 31).
(d) Taxes. User is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by or to User hereunder, other than any taxes imposed on Company’s income.
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| 6. | Term and Termination. |
(a) Term. The initial term of this Agreement begins on the Effective Date and continues as a one (1) year subscription from such date (the “Initial Term”). This Agreement will automatically renew on a month-to-month basis after the first year until either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current term “Renewal Term”. Collectively, the Initial Term and any subsequent Renewal Term will be referred to as the “Term.”
(b) Termination. In addition to any other express termination right set forth in this Agreement: either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement or the Terms of Use, and such breach is incapable of cure, or being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach. If User’s account is terminated pursuant to this Agreement or under the Terms of Use, User acknowledges that it will not be entitled to a refund of any Fees and that the Fees are deemed earned by the Company on the Effective Date. Upon termination of this Agreement, User shall immediately lose access to the Platform and any of User’s data derived from the Platform, including Stakeholder Data.
(c) Survival. The provisions set forth in Sections 1, 4(d)-(f), 5, 6, 7 and 8 of this Agreement, and any other right or obligation of the parties in this Agreement, by its nature, should survive termination or expiration of this Agreement (including any terms related to ownership of intellectual property, confidentiality or indemnification), will survive any expiration or termination of this Agreement.
| 7. | Other Agreements of the Parties |
(a) Pledge of Shares. User acknowledges and agrees that Company may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, the Company may transfer pledged or secured Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the User and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. User will execute and deliver such reasonable documentation as a pledgee or secured party of Shares may reasonably request in connection with a pledge or transfer of the Shares.
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(b) Removal of Restrictive Legend.
(i) Certificates evidencing the Shares shall not contain any legend, (i) while a registration statement covering the resale of such Shares is effective under the Securities Act, (ii) following any sale of such Shares pursuant to Rule 144, (iii) if such Shares are eligible for sale under Rule 144, without the requirement for the User to be in compliance with the current public information required under Rule 144 as to such Shares and without volume or manner-of-sale restrictions, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). The User shall cause its counsel to issue a legal opinion to its transfer agent promptly (and at no further cost to the Company) at any time after the Effective Date if the requirements of Rule 144 have been met, if required by the transfer agent to effect the removal of the legend contained on the Shares. The User agrees that at such time as a restrictive legend is no longer required pursuant to Rule 144, it will, no later than three Trading Days following the delivery by the Company to the User or the transfer agent of a certificate representing Shares issued with a restrictive legend (such third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to the Company a certificate representing such Shares that is free from all restrictive and other legends. Certificates for the Shares subject to legend removal hereunder shall be transmitted by the transfer agent to the Company by crediting the account of the Company’s prime broker with the Depository Trust Company System as directed by the Company.
(ii) Partial Liquidated Damages. In addition to the Company’s other available remedies, the User shall pay to the Company, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of value of Shares (based on the VWAP of the Common Stock on the date such Shares are submitted to the transfer agent) delivered for removal of the restrictive legend, $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate is delivered without a legend. Nothing herein shall limit Company’s right to pursue actual damages for the User’s failure to deliver certificates representing any Shares, and the Company shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.
(iii) Power of Attorney. User irrevocably appoints the Company as User’s attorney-in-fact, with full authority in the place and instead of such User and in the name of such User, from time to time in the Company’s discretion, to take any action and to execute any instrument in order to effectuate the removal of a restricted legend from any certificate evidencing the Shares, including providing the transfer agent an opinion of counsel, if required, and instructing the transfer agent to remove the restrictive legend from the Shares. This power of attorney is coupled with an interest and shall be irrevocable for the term of this Agreement and thereafter as long as the Company is the owner of the Shares
(iv) No Election of Remedies. User acknowledges that Company’s exercise of its Power of Attorney as provided for in 7(c)(iii) is not an election of remedies. The remedies contained in this Section 7 are intended to be cumulative.
| 8. | General. |
(a) Notices. Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by email (with confirmation of transmission), or by recognized overnight courier service, and addressed to the other party at the addresses set forth above (or to such other address that the receiving party may designate from time to time in accordance with this section).
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(b) Marketing Materials. Company may reference its relationship with User on Company’s website and in its marketing materials; provided, that, Company’s specific use of User’s name is subject to User’s prior written consent, which consent shall not be unreasonably withheld.
(c) Entire Agreement. This Agreement and the Exhibits hereto, including any terms incorporated herein, contains the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
(d) Assignment. Neither party may assign its rights or delegate its obligations without the express prior written consent of the other party, which consent may not be unreasonably withheld. Notwithstanding the foregoing, this Agreement may be assigned without consent of the other party if there is a sale, merger or acquisition of all or a majority of the assets of a party, or if there is a sale of a controlling interest of such Party. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and permitted assigns.
(e) No Amendment or Waiver. The parties may not amend this Agreement except by written instrument signed by the parties. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or of any other right, remedy, power or privilege. Notwithstanding the foregoing, nothing herein shall be deemed to limit Company’s ability to unilaterally update or modify the Terms of Use in accordance with the terms thereof, with such modification not being considered an amendment or waiver of any provision of this Agreement.
(f) Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized representatives as of the Effective Date.
| COMPANY | USER | |||
| SRAX, Inc. | Can B Corp. | |||
| By | By | |||
| Name: | Randy Clark | Name: | Marco Alfonsi | |
| Title: | EVP, Sales | Title: | CEO | |
| Date: | Date: | |||
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EXHIBIT A
http://www.iab.net/media/file/IAB_4As-tsandcs-FINAL.pdf
| 10 |
EXHIBIT B
“Company” shall not trade more than 15% of the “Users” current or previous days total volume on the same or following day.
“Company” recognizes that “User” is a cannabidiol (CBD) based company and may be in involved both manufacture and distribution of related products.
“User” will provide “Company” with DTC information. “Company” will not be purchasing DTC on behalf of “User”.
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Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
I, Marco Alfonsi, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Can B Corp.
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 quarterly 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 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 controls 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 quarterly 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; |
5. The registrant’s other certifying officer 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 function):
a) all significant deficiencies and material weaknesses in the design or operation of internal controls 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 controls over financial reporting.
| Dated: November 16, 2020 | By: | /s/ Marco Alfonsi |
| Marco Alfonsi, Chief Executive Officer (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
I, Stanley L. Teeple, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Can B Corp..;
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 quarterly 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 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 controls 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 quarterly 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; |
5. The registrant’s other certifying officer 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 function):
a) all significant deficiencies and material weaknesses in the design or operation of internal controls 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 controls over financial reporting.
| Dated: November 16, 2020 | By: | /s/ Stanley L. Teeple |
| Stanley L. Teeple, Chief Financial Officer (Principal Financial Officer) |
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Can B Corp. (the “Company”) on Form 10-Q for the period ended September 30, 2020 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Marco Alfonsi, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. section 1350 of the Sarbanes-Oxley Act of 2002, that:
| (1) | The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | |
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
| Date: November 16, 2020 | By: | /s/ Marco Alfonsi |
Marco Alfonsi Chief Executive Officer | ||
| (Principal Executive Officer) |
A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement 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 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Can B Corp. (the “Company”) on Form 10-Q for the period ended September 30, 2020 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Marco Alfonsi, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. section 1350 of the Sarbanes-Oxley Act of 2002, that:
| (3) | The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | |
| (4) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
| Date: November 16, 2020 | By: | /s/ Stanley L. Teeple |
Stanley L. Teeple, Chief Financial Officer (Principal Financial Officer) |
A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement 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.