Originclear, Inc 10-K for FY2020
Originclear, Inc. (OCLN)
About this 10-K
Originclear, Inc filed this 10-K on May 21, 2021, covering the fiscal year ended December 31, 2020 (FY2020).
Headline figures
Fiscal year ended December 31, 2020, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $4.1M
- up 14.3% from $3.59M a year earlier
- Net income
- $13.26M
- compared with a net loss of $27.47M a year earlier
- Diluted EPS
- $0.04
- compared with -$12.66 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
☒ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2020
Or
☐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: 333-147980
ORIGINCLEAR, INC.
(Exact name of registrant as specified in charter)
| Nevada | 26-0287664 | |
| (State or other jurisdiction
of incorporation or organization) |
(I.R.S. Employer Identification No.) |
13575 58th Street North, Suite 200, Clearwater, FL 33760
(Address of principal executive offices) (Zip Code)
Registrant’s telephone Number: (323) 939-6645
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: None
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| N/A | N/A | N/A |
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ☐ Yes ☒ No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. ☐ Yes ☒ No
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 ☐ No
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted 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 such files). ☒ Yes ☐ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “non-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 ☒ | Smaller Reporting Company ☒ |
| Emerging Growth Company ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ☐ Yes ☒ No
The aggregate market value of the voting stock held by non-affiliates of the registrant was approximately $1,211,011 based upon the closing sales price of the registrant’s common stock on June 30, 2020 of $0.105 per share.
At May 20, 2021, 151,606,607 shares of the registrant’s common stock, par value $0.0001 were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE: NONE
TABLE OF CONTENTS
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NOTE ABOUT FORWARD-LOOKING STATEMENTS
This Form 10-K contains forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond our control, which may include statements about our:
| ● | business strategy; | |
| ● | financial strategy; | |
| ● | intellectual property; | |
| ● | production; | |
| ● | future operating results; and | |
| ● | plans, objectives, expectations and intentions contained in this report that are not historical. |
All statements, other than statements of historical fact included in this report, regarding our strategy, intellectual property, future operations, financial position, estimated revenues and losses, projected costs, prospects, plans and objectives of management are forward-looking statements. When used in this report, the words “could,” “believe,” “anticipate,” “intend,” “estimate,” “expect,” “project” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain such identifying words. All forward-looking statements speak only as of the date of this report. You should not place undue reliance on these forward-looking statements. Although we believe that our plans, intentions and expectations reflected in or suggested by the forward-looking statements we make in this report are reasonable, we can give no assurance that these plans, intentions or expectations will be achieved. These statements may be found under “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and “Business,” as well as in this report generally. Actual events or results may differ materially from those discussed in forward-looking statements as a result of various factors, including, without limitation, the risks outlined under “Risk Factors” and matters described in this report generally. In light of these risks and uncertainties, there can be no assurance that the forward-looking statements contained in this filing will in fact occur.
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Organizational History
OriginClear, Inc. (“we”, “us”, “our”, the “Company” or “OriginClear”) was incorporated on June 1, 2007 under the laws of the State of Nevada. We have been engaged in business operations since June 2007. In 2015, we moved into the commercialization phase of our business plan having previously been primarily involved in research, development and licensing activities. Our principal offices are located at 13575 58th Street North, Suite 200, Clearwater, FL 33760. Our main telephone number is (323) 939-6645. Our website address is www.OriginClear.com. The information contained on, connected to or that can be accessed via our website is not part of this report.
Overview of Business
OriginClear is a water technology company which has developed in-depth capabilities over its 14-year lifespan. Those technology capabilities have now been organized under the umbrella of OriginClear Tech Group™ (www.originclear.tech).
These capabilities include:
| - | The Company’s original technology developments, known as Electro Water Separation™ and Advanced Oxidation(AOx™), which are not being pursued commercially at this time. | |
| - | The Intellectual Property of Daniel M. Early, consisting of five patents and related knowhow and trade secrets, which are intended to take the place of the applications for the company’s original technology developments. | |
| - | Progressive Water Treatment Inc. (“PWT”) a wholly-owned subsidiary based in Dallas Texas, which is responsible for the bulk of the company’s revenue, specializing in Engineered Solutions (custom treatment systems). | |
| - | Modular Water Systems (“MWS”), a division based at PWT, which implements the Daniel M. Early Intellectual Property. |
Water on Demand™: a new strategic direction.
OriginClear is planning a new business, which is outsourced water treatment, intending to offer private businesses the ability to pay for their water treatment and purification services on a pay-per-gallon basis. In the water industry, this is commonly known as Design-Build-Own-Operate or DBOO. On April 13, 2021, we announced formation of a wholly-owned subsidiary called Water On Demand #1, Inc. (WOD #1) to pursue capitalization of the equipment required.
At this time, the Company does not have the ability to carry out at scale the Operation & Maintenance (O&M) activities which are required to fulfill the service obligations of DBOO contracts. Our current plan is to pursue a first DBOO contract as a use case, and thereafter either develop, contract or acquire the O&M capability. The Company is currently in discussions with prospective clients for this test DBOO contract. However, no commitments have been made, and the talks may not succeed. The outsourcing program known as Water On Demand requires both funding for WOD #1, and such a first client, to launch commercially.
Outsourcing Risk
The Company believes water is a risk that smart managers will outsource, especially with worsening inflation. Outsourcing through what we call Water on Demand™ means that these companies do not have to worry about the problem, either financing it or managing it.
As an example, in Information Technology, few companies operate their own server in-house powering their website. Rather, such servers are typically managed by professionals through a service level agreement. In the water industry, when applied to outsourced water treatment, a service level agreement is known as Operation & Maintenance (O&M) Agreement. When the vendor retains ownership of the equipment, the concept is expanded to “Own and Operate”, an extension of the basic “Design and Build”, for a full offering known as DBOO, which is very similar to the solar energy programs known as Power Purchase Agreements (PPAs).
Under such a plan, a business can now outsource its wastewater treatment by simply signing on the dotted line; instantly avoiding most capital expense, and the trouble of managing something that is a distraction from their core business.
We believe this is financially and operationally attractive to industrial, agricultural and commercial water users, while OriginClear’s Water On Demand program can potentially drive speeded-up deals and many more revenue streams from providing water treatment as a service.
The scale of these systems is relatively small: a recent analysis showed that the 74 quotes that Modular Water Systems™ has at various stages of negotiation for 2021 average only $232,246 each. But capital is scarce for such private systems, and therefore a fully outsourced solution is attractive to these businesses.
Based on its analysis, the Company believes that half of its prospective clients for Modular Water Systems would approve its quotes if they could pay for their water as a monthly bill and not a capital expense.
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The Decentralization Megatrend
As municipalities continue to be underfunded (Figure 1) with rising water rates (Figure 2), businesses are increasingly choosing to treat and purify their own water, in a trend known as Decentralized Water, first described in the Lux Research presentation of June 28, 2016. (https://members.luxresearchinc.com/research/report/20060).
Figure 2
Small, modular systems as sold by our Modular Water Systems division meet the needs of this new segment. Indeed, an estimated two-thirds of the Modular Water Systems bidding backlog consists of such private (vs. municipal) customers.
A Company internal analysis has shown that as many as two-thirds of these prospective private customers (in other words, half of the overall backlog) could be candidates for outsourced water treatment which they would pay for by the gallon purified or treated, instead of paying for the capital expense up front. In other words, the Company believes such financing has the potential to increase the Company’s revenues substantially, with additional service fees potentially improving profits.
This is known in the water industry as Design/Build/Own/Operate (“DBOO”), or colloquially as water equipment as a service. The Company is working in this new direction under the branding Water on Demand™ (https://www.originclear.com/water-on-demand).
The bulk of such sales opportunities are in the small size systems, averaging $250,000 and larger. We believe that our ability to deliver modular systems gives us a competitive advantage over larger water companies when it comes to DBOO for smaller systems.
Also, the portable nature of these prefabricated, drop-in-place Modular Water Systems may provide a competitive benefit for a pure service model where the equipment remains the property of the Company, because their mobility enables repossession in the event the client fails to pay their monthly bill. We believe this is a key competitive advantage.
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Implementation of Water On Demand
We have taken initial steps in this new direction. On February 3, 2021, we announced that we agreed to acquire our first real estate asset which we are currently arranging to be sold for capital to finance water projects. There is no prospective date of sale. Ivan Anz, OriginClear advisor and founder of strategic partner Philanthroinvestors® Inc. agreed to personally invest certain real estate assets through an asset purchase agreement, and these assets have been transferred, subject to certain rights of rescission.
On February 25, 2021, the company announced that it had agreed to acquire more real estate assets to finance water projects. Alfredo Guatto, partner in a US-based real estate development company continued discussions with the company to finalize a definitive agreement under which OriginClear intends to acquire the developer or its assets.
Recently, OriginClear incorporated Water On Demand #1 Inc. (“WOD#1”) in Nevada. to offer private businesses the ability to pay for their water treatment and purification services on a pay-per-gallon basis. However, the Company cautions that efforts to obtain capital to underwrite WOD #1 may not succeed.
The Company is now actively evaluating potential clients for a test of water treatment and purification services on a pay-per-gallon basis, but a first agreement has not been reached.
Advisory Support for Water On Demand
In September, 2020 OriginClear announced that Philanthroinvestors had entered a strategic agreement with OriginClear and had listed the company on its new Water Philanthroinvestors program. At the same time, OriginClear appointed Philanthroinvestors Founder, Ivan Anz and CEO, Arte Maren to OriginClear's Board of Advisors.
Mr. Anz and Mr. Maren are actively advising the Company in its development of Water On Demand.
H2O
On May 10, 2021, OriginClear announced that it had filed “System And Method For Water Treatment Incentive”, a patent application for using blockchain technology and non-fungible tokens (NFT) to simplify the distribution of payments on outsourced water treatment and purification services billed on a pay-per-gallon basis ahead of inflation, or Water On Demand.
On May 16, 2021, the Company filed a trademark for the mark $H2O (also referred to as H2O) as the blockchain system representing this activity.
The basic intended use of the blockchain system is to streamline payments and eliminate human error. In this respect we believe it is very similar to J.P. Morgan’s JPM Coin:
“In 2019, J.P. Morgan became the first global bank to design a network to facilitate instantaneous payments using blockchain technology - enabling 24/7, business-to-business money movement by unveiling JPM Coin.” (https://www.jpmorgan.com/solutions/cib/news/digital-coin-payments).
Like JPM Coin, we plan to streamline the delivery of payment contracts that, in our case, could last for decades.
Our patent application is the first step in our development process for this blockchain system, which we expect to last at least several months. We are not currently a blockchain or cryptocurrency developer and would need to develop or contract for this capability. There is no guarantee that this effort would succeed.
Depending on the final for that H2O takes, we may encounter regulatory concerns that we cannot guarantee we will overcome. In that event, we would fall back on ordinary financial payment systems.
Future Potential of H2O
We believe $H2O could be a way to package continuous contractual profit-share income for that investor or stakeholder’s share of the life of the water equipment, adjusted for inflation. And to allow the holder to transfer or “swap” it anytime and ultimately, OriginClear could accept $H2O for the funding of new Water On Demand projects, with the potential for subsidized Impact Investment.
All these scenarios are highly speculative, and none may come about. In addition, there may be regulatory restrictions on the issuance and transfer of $H2O.
Prior to the commercialization of $H2O, we intend to fully address all regulatory requirements, and as covered above, this may not be possible; in which case we would use ordinary financial systems for payments to investments and stakeholders.
Water On Demand outsourced water treatment does not rely on any blockchain system for its operation, and can accomplish its operational goals using ordinary financial and currency channels.
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OriginClear Tech Group
As stated above, all of our technology and operations activities have been centralized under OriginClear Tech Group (“OTG”), enabling a total focus at the corporate level on the Water On Demand strategy.
The mission of OTG is to provide expertise and technology to help make clean water available for all. Specifically, OTG houses the following initiatives:
| 1. | We are building a network of customer-facing water brands to expand our global market presence and our technical expertise. These include the wholly-owned subsidiary, Progressive Water Treatment, and the Modular Water Systems brand. |
| 2. | We manage relationships with partners worldwide who are licensees and business partners. |
| 3. |
We develop new technology approaches and business models in the lab, such as Investor Water™ and WaterChain™, both of which are designed to help achieve funding for water treatment and management systems. Both projects are in a research and development phase. OTG also is actively working on the ability to deliver Operation & Maintenance (O&M) capability at scale, to support Water On Demand outsourced treatment and purification programs, and is evaluating a pilot program to achieve this. OTG intends to support the development of the $H2O blockchain system, which may replace WaterChain altogether. And in 2020, the Company also completed a pilot program with a rental program of a product known as Pool Preserver™, and developed a career-building program for entrepreneurs termed Waterpreneurs™. Water As A Career remains a pilot program and the Company does not plan to expand it at this time. |
Water is our most valuable resource, and the mission of OTG is to improve the quality of water and help return it to its original and clear condition.
Potential Acquisitions
Outsourcing is a fast-growing reality in water treatment. Tougher regulations, water scarcities and general outsourcing trends are driving industrial and agricultural water treatment users to delegate their water problem to service providers. As Global Water Intelligence pointed out in their report on October 30, 2015, “Water is often perceived as a secondary importance, with end-users increasingly wanting to focus solely on their own core business. This is driving a move away from internal water personnel towards external service experts to take control of water aspects.” External service experts are typically small–privately owned and locally operated. Consolidating these companies, and creating new players where appropriate, could lead to enormous economies of scale through sharing of best practices, technologies, and customers.
OTG seeks to incubate or acquire businesses that help industrial water users treat their water themselves, and often reuse it. We believe that assembling a group of such water treatment and water management businesses is an opportunity for significant growth and increased Company value for the stockholders.
We are particularly interested in companies which successfully execute on Design-Build-Own-Operate or DBOO.
The Company cautions that suitable acquisition candidates may not be identified and even if identified, the Company may not have adequate capital to complete the acquisition and/or definitive agreement may not be reached. Internally-incubated businesses, similarly, may not become commercial successes.
OTG Milestones
Daniel M. Early/Modular Water Systems™
On June 22, 2018, OriginClear signed an exclusive worldwide licensing agreement with Daniel “Dan” Early for his proprietary technology for prefabricated water transport and treatment systems. On July 19, 2018, the Company began incubating its Modular Water Treatment Division (MWS) around Mr. Early’s technology and perspective customers. The Company has funded the development of this division with internal cash flow. In Q1 of 2020, the Company fully integrated MWS with wholly-owned Progressive Water Treatment Inc. Mr. Early is titled Chief Engineer of OriginClear.
WaterChain, Inc.
WaterChain, Inc. was incorporated in December, 2017 and is today a research and development project of the Company.
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Progressive Water Treatment Inc.
On October 1, 2015, the Company completed its acquisition of Dallas-based Progressive Water Treatment Inc. (“PWT”), a designer, builder and service provider for a wide range of industrial water treatment applications.
With the PWT and future potential acquisitions, the creation of the Modular Water Systems division as an integral part of PWT, and integrating its proprietary technology, OTG aims to offer a complementary, end-to-end offering to serve growing corporate demand for outsourced water treatment.
PWT’s Business
Since 1995, PWT has been designing and manufacturing a complete line of water treatment systems for municipal, industrial and pure water applications. PWT designs and manufactures a complete line of water treatment systems for municipal, industrial and pure water applications. Its uniqueness is its ability to gain an in-depth understanding of customer’s needs and then to design and build an integrated water treatment system using multiple technologies to provide a complete, not partial solution.
To help address customer needs, PWT utilizes a wide range of technologies, including chemical injection, media filters, membrane, ion exchange and SCADA (supervisory control and data acquisition) technology in turnkey systems. The Company also offers a broad range of services including maintenance contracts, retrofits and replacement assistance. In addition, PWT rents equipment in contracts of varying duration. Customers are primarily served in the United States and Canada, with the company’s reach extending worldwide from Siberia to Argentina to the Middle East.
PWT Milestones
In the first quarter of 2019, the Company increased the number of the manufacturer’s representatives for its operating units, PWT and Modular Water Systems (“MWS”).
On Nov 7, 2019, OriginClear published a case study showing how its Modular Water System may help automotive dealership expand into rural land. The case study shows how point-of-use treatment solves lack of access to the public sewer system.
On March 5, 2020, OriginClear announced disruptive pump and lift station pricing, stating that its prefabricated modules with a lifespan of up to 100 years now compete with precast concrete.
On April 15, 2021, OriginClear announced that its Progressive Water Treatment division is now shipping BroncBoost™, its workhorse Booster Pump Station equipment line. Engineered and built in Texas, BroncBoost allows customers to control water flow rates and pressure for mission critical water distribution systems.
Modular Water Systems
On July 19, 2018, the Company launched its Modular Water Treatment Division, offering a unique product line of prefabricated water transport and treatment systems. Daniel “Dan” Early P.E. (Professional Engineer) heads the division and along with the intellectual property which the Company licensed exclusively worldwide for three years, brought a following of prospective customers. On July 25, 2018, MWS received its first order, for a brewery wastewater treatment plant.
With PWT and other companies as fabricators and assemblers, MWS designs, manufactures and delivers prefabricated water transport (pump stations) and wastewater treatment plant (“WWTP”) products to customers and end-users that have to clean their own wastewater. It uses Structurally Reinforced Thermoplastic (“SRTP”) materials to focus on patented developing water and wastewater collection, conveyance, and treatment systems that have high performance and sustainability. Typical customers may include schools, small communities, institutional facilities, real estate developments, factories, and industrial parks. Dan Early has pioneered the use of heavy reinforced plastic materials to create modular “water-systems-in-a-box”. Not only is reinforced thermoplastic faster and cheaper to build, but it can have three times the lifespan, or more, compared with concrete-and-steel construction. Mr. Early’s inventions have led to the patented Wastewater System & Method and four other patents, which OriginClear has licensed exclusively for the world.
Dan Early has been designing and building prepackaged pump stations and municipal wastewater treatment systems for over five years, with a career background of more than two decades of water engineering experience.
MWS designs, manufactures and implements advanced prepackaged wastewater treatment, pump stations and custom systems with primary focus on decentralized opportunities away from the very competitive large municipal wastewater treatment plants. These decentralized opportunities include: rural communities, housing developments, industrial sites, schools and many more.
Today, MWS is fully integrated with PWT in Texas.
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Patents
On May 10, 2021, OriginClear announced that it had filed “System And Method For Water Treatment Incentive”, a patent application for using blockchain technology and non-fungible tokens (NFT) to simplify the distribution of payments on outsourced water treatment and purification services billed on a pay-per-gallon basis ahead of inflation.
On June 25, 2018, Dan Early granted the Company a worldwide, exclusive non-transferable license to intellectual property consisting of five issued US patents, and design software, CAD, marketing, design and specification documents (“Early IP”).
On May 20, 2020, we agreed on a renewal of the license for an additional ten years, with three-year extensions. We also gained the right to sublicense, and, with approval, to create ISO-compliant manufacturing joint ventures. All royalties surviving the 2018 license were settled.
We may contract with distribution channels (equipment distributors, oil service companies, water treatment companies, system integrators and engineering companies) of our choice to act on our behalf for the purpose of selling and integrating the Early IP.
The Early IP consists of combined protection on the materials and configurations of complete packaged water treatment systems, built into containers. The parents consist of the following:
| # | Description | Patent No. | Date Patent Issued | Expiration Date | ||||
| 1 | Wastewater System & Method | US 8,372,274 B2 Applications: WIPO, Mexico |
02/12/13 | 07/16/31 | ||||
| 2 | Steel Reinforced HDPE Rainwater Harvesting | US 8,561,633 B2 | 10/22/13 | 05/16/32 | ||||
| 3 | Wastewater Treatment System CIP | US 8,871,089 B2 | 10/28/14 | 05/07/32 | ||||
| 4 | Scum Removal System for Liquids | US 9,205,353 B2 | 12/08/15 | 02/19/34 | ||||
| 5 | Portable, Steel Reinforced HDPE Pump Station CIP | US 9,217,244 B2 | 12/22/15 | 10/20/31 |
With the rising need for local, point-of-use or point-of-discharge water treatment solutions, the Modular Water Systems licensed IP family is the core to a portable, integrated, transportable, plug-and-play system that, unlike other packaged solutions, can be manufactured in series, have a longer life and are more respectful of the environment.
The common feature of this IP family is the use of a construction material (SRTP or Structural Reinforced ThermoPlastic), for the containers that is:
| ● | more durable: an estimated 75 to 100-year life cycle as opposed to a few decades for metal, or 40 to 50 years maximum for concrete; | |
| ● | easier to manufacture: vessels manufacturing process can be automated; and | |
| ● | recyclable and can be made out of biomaterials |
In addition, patents US 8,372,274 and US 8,871,089 (1 and 3) relate to the use of vessels or containers made out of this material combined with a configuration of functional modules, or process, for general water treatment.
Other subsequent patents, while keeping the original claims and therefore making them stronger, focus on more targeted applications. These patents outline a given combination of modules engineered inside the vessel to address a specific water treatment challenge.
Expansion of the PWT and MWS Business-Lines
Beginning with its first installation, PWT built MWS components. PWT and MWS are now fully integrated as a single profit and manufacturing center.
In April 2019, we completed the expansion of our manufacturer’s representative network to serve both PWT and MWS for customer lead generation.
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PRODUCTS, TECHNOLOGY AND SERVICES
OTG deploys advanced technologies at the point of use, with modular, prefabricated systems that create durable assets and water independence for industry, commerce and agriculture.
Failing infrastructure and the rising cost of water are driving businesses to treat their own water. OTG provides on-premise systems enabling very high purification and recycling levels that centralized systems cannot achieve.
Systems installed at the point of use become productive assets for businesses that also increase property values. And OTG helps corporations improve their environmental, social and governance (ESG) standings with water management services.
Operations & Markets
OTG focuses on meeting the needs of businesses looking for compact, advanced technologies that can be shipped to and installed at the point of use. The Company manufactures and distributes its professional-grade water treatment and conveyance products to commercial and industrial properties, fielding both direct and indirect sales channels to reach end-market clients such as hotels and resorts, real estate housing developments, office buildings, military installations, schools, farms, food and beverage manufacturers, industrial warehouse, oil and gas producers, and medical and pharmaceutical facilities.
From its Texas-based factory, OTG designs and prefabricates an entire line of plug-n-play containerized units called Modular Water Systems that enable water purification, recycling and wastewater management.
Industrial Pretreatment Waste Water Treatment Plant (WWTP) designed by Daniel M. Early for an earlier company, using reinforced thermoplastic modules.
These onsite modular products provide clients with water independence through ownership and operational control over water quality, enabling them to increase productivity while reducing environmental, health and safety risks from pollution, contamination and corrosion. Modular water products are trusted to balance performance with cost-effectiveness, enabling business users to go well beyond municipal standards for water quality, therefore achieving high levels of satisfaction for their own customers, and improved sustainability for their properties.
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OTG’s water treatment equipment can boost real estate asset value as a fundamental capital improvement, combined with long-lasting water savings for the corporate bottom line.
Product Portfolio
OTG groups its products into three main categories:
| ● | Water Treatment: achieving high grade purification; | |
| ● | Water Conveyance: water transportation and pumping; and | |
| ● | Advanced Technologies: commercialization of innovative technologies. | |
OTG’s complete line of compact, on-site, point-of-use products include: advanced purification systems that are skid, rack-mounted and containerized for reverse osmosis, ultrafiltration, media filtration, disinfection, water softening, ion exchange and electrodeionization (EDI), combined as needed in small to medium commercial and industrial applications, and custom-build projects. Water conveyance products include pump and lifting stations, modular storage tanks, and control monitoring panels.
OTG’s line of modular water products and systems create “instant infrastructure” – fully engineered, prefabricated and prepackaged systems that use durable, sophisticated materials. The units are available in standard capacities for onsite closed-loop systems at commercial business locations.
The company’s rugged wastewater treatment plants, highly reliable pump stations, and premium water purification units typically offer 25 percent lower initial costs over conventional systems, with greater quality and full connectivity. These pump stations and wastewater treatment products utilize high density thermo-plastics (HDPE) and proprietary, innovative prefabrication methods and materials that deliver the longest life and strongest products.
Original Technologies
Electro Water Separation™ (EWS) and Advanced Oxidation (AOx™) were the Company’s original, filterless technologies.
EWS is OriginClear’s breakthrough water cleanup technology which utilizes a catalytic process to concentrate and eliminate suspended solids in the worst commercial and industrial wastewater.
AOx is OriginClear’s proprietary advanced oxidation technology which generates a dense cloud of ozone, hydrogen peroxide and hydroxyl radicals, dramatically reducing or eliminating dissolved organic microtoxins, including bacteria and viruses, hormones, drugs, pesticides such as Roundup, and synthetics. AOx has also been shown to effectively reduce harmful chemicals such as ammonia and hydrogen sulfide – the “rotten egg” smell in crude oil that reduces its value.
At this time, the Company is strictly marketing the EWS/AOx technology in the context of turnkey integrators such as Spain’s Depuporc, and India’s Permionics. In addition, US-based Algeternal is our partner for the original algae-harvesting applications of this technology, and reportedly continues to use Company equipment for this purpose. The Company does not maintain an internal technical staff to manage this technology or its implementation and has no plans to do so.
Market Opportunity
Only 20 percent of all sewage, and 30 percent of all industrial waste, are ever treated. Water leakage results in the loss of 35 percent of all clean water across the planet; cutting that number in half would provide clean water for 100 million people. This is a situation of great danger, but also great potential.
We believe businesses can no longer rely on giant, centralized water utilities to meet the challenge. That is why more and more business users are doing their own water treatment and recycling. Whether by choice or necessity, those businesses that invest in onsite water systems gain a tangible asset on their business and real estate, and can enjoy better water quality at a lower cost.
We believe self-reliant businesses are quietly building Decentralized Water Wealth™ for themselves while also helping their communities. They know that environmental, social and governance (ESG) investing guidelines, which drive about a quarter of all professionally managed assets around the world, specifically include the key factor of how well corporations manage water.
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10,000 Gallon per Day Industrial Membrane Bioreactor Wastewater Treatment Plant designed by Daniel M. Early, PE for a previous company, using long-lived Structural Reinforced ThermoPlastic (SRTP)
OTG enables ESG water management for corporations that are increasingly responsible for what was once delegated to central utilities. For example, when a corporation manages its own water, and uses OriginClear’s proprietary hybrid treatment methods, it can significantly reduce both water use and nutrient footprints (carbon, nitrogen, and phosphorus) in one compact package.
These hybrid processes feature advanced blackwater treatment with advanced clean water processing. They can convert toxic nutrients to less harmful compounds, and even capture them for beneficial reuse purposes, as shown in OriginClear’s recent case study.
Integration of Operating Divisions
Since OriginClear acquired it in 2015, Progressive Water Treatment has evolved into the Fabrication and Manufacturing Division for the whole company. The team at Modular Water Systems, headed by OriginClear Chief Engineer Daniel M. Early, is responsible for overall design and high-level engineering, and is fully integrated with PWT. It relies on the Fabrication and Manufacturing Division to add incremental revenue for its modular product line, without requiring large increases in personnel.
OTG also seeks to acquire profitable water companies that can complement the synergy of its existing units and accelerate both revenues and profitability. However, there cannot be any assurance that the Company will be able to acquire such companies.
Supplier Relationship
PWT has been purchasing equipment from its many suppliers for over twenty years, with potential long-term benefits from the relationships.
MWS is positioned to take advantage of PWT’s supplier relationships, but certain components are unique to MWS’s product line. In particular, SRTP pipe is unique, for which MW has four manufacturers. MWS’s preferred SRTP supplier happens to be 40 miles south of PWT’s facility.
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CUSTOMERS AND MARKETS
Current water and wastewater treatment infrastructure faces a crisis. The prohibitive cost of repairing buried and ageing infrastructure and the need to decrease energy use and waste in the water industry offers an opportunity for a complete design rethink. New technologies, often utilizing membranes, can decentralize water and wastewater infrastructure while improving water reuse by treating to a high standard at a small scale close to the source of generation. Additionally, new automated analytics offer solutions for these more complex decentralized solutions. (Lux Research: The Future of Decentralized Water, June 28, 2016). PWT has designed and fabricated water treatment systems for over twenty years. Major markets include:
| ● | Potable Water for Small Communities | |
| ● | Recirculated and Makeup Boiler and Cooling Tower Water | |
| ● | Produced Water &FracFlowback Water | |
| ● | Food and Beverage Feed and Effluent Waters | |
| ● | Mining Effluent | |
| ● | Ground Water Recovery | |
| ● | Agriculture Effluent | |
| ● | Environmental Water Treatment for Reuse | |
MWS manages municipal water conveyance and municipal waste water treatment, describing the water and wastewater treatment market as a pyramid with the major cities at the top, medium size cities stacked below them depending upon size and then the smaller towns, counties, cities, townships, state agencies, federal agencies, private individuals, commercial entities, industrial facilities, agriculture facilities at the base of the pyramid.
We believe there are more opportunities at the base of the pyramid. The base of the pyramid is the decentralized market opportunity now being pursued. Focusing on the base of the pyramid also avoids the very competitive, low-profit and slow-growing market in the big city municipalities.
As stated in the Global Decentralized Packaged/Containerized Water and Wastewater Treatment Systems Market, Forecast to 2023, “The decentralized packaged/containerized water and wastewater treatment systems market, covering end users segments such as municipal, industrial, and commercial. The study forecasts the global market revenue to increase from $3.99 billion in 2016 to $6.08 billion in 2023, growing at a compound annual growth rate (CAGR) of 6.2%”.
(https://www.reportbuyer.com/product/4948731/global-decentralized-packaged-containerized-water-and-wastewater-treatment-systems-market-forecast-to-2023.html).
This is the market for MWS-engineered products and infrastructure solutions. As civil infrastructure ages and fails and as the costs for new and replacement infrastructure increase year over year, we believe engineers and end-users will search for new ways and methods of deploying water and wastewater systems that are less expensive to deliver and much less expensive to own and operate with the mission intent of substantially increasing the replacement intervals currently experienced by conventional materials of construction and conventional product delivery models.
SALES AND MARKETING
PWT’s sales strategy differs from MWS’s efforts. PWT sales are very dependent upon relationships with past end-use customers and certain manufacturers’ representatives who have relationships with their regional end use customers. On the other hand, MWS’s sales strategy is based on developing relationships with consulting engineers and general contractors as opposed to end-use customers.
As MWS sales strategies develop, PWT believes it will gain recognition with various consulting engineers and general contractors. PWT and MWS are currently developing a stronger national representatives network to take advantage of the relationship the sales representatives have gained with engineers, contractors and end use customers.
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Now operating as one integrated unit, PWT and MWS have substantial experience in the water & wastewater market and as well as: conventional technologies and their limitations, new technologies, the size and demand of the market and how products are specified and implemented. They also have a strong customer focus throughout the organization to discover and diagnose the customer needs, design and deliver comprehensive solutions.
We believe the keys to capitalizing on the market are visibility, relationships, market understanding, and direct access to the opportunities. Strong marketing programs are also essential, and include: websites with solutions & credibility, sales support tools like literature& webinars and trade show presence.
Water industry projects move slowly. Most product lines for each of PWT and MWS are considered “pipeline” products, and have a gestational period of 6 months to 3 years. We believe the best strategy to increase the pipeline of opportunities is to have more sales reps with relationships with engineers, contractors and end users.
Competition
PWT shares the market with a large number of suppliers which also provide system integration using multiple technologies. These include California’s PureAqua, Florida’s Harn RO, and Illinois’ Membrane Specialists. We believe PWT’s market share differs from those competitors in areas such as regional focus, customer loyalty, market focus, limited sales representation and other. For instance, 80%+ of PureAqua’s business in the Middle East, Harn RO focuses on drinking water systems for medium to large cities in the SE, Membrane Specialist focuses on tubular membranes and many more examples.
The Company is not aware of any direct competitors to MWS that are building complete water, wastewater treatment systems, and pump stations utilizing SRTP type materials. There are several manufacturers which build metal prepackaged systems, such as Georgia’s AdEdge; however, such companies do not offer the range of hybrid treatment processes available through MWS. The major indirect competition continues to be custom designed and on-site constructed concrete & steel systems. Some fiberglass is used but is very difficult to detail, is brittle and again, has a limited life compared to SRTP systems.
While manufacturers of SRTP pipe could be competitors, none of MWS’s suppliers, other than Contech, for a short period of time, has sold, or intends to sell, comparable systems to MWS’s. Their focus is simply to sell miles of pipe.
Growth Opportunities
National Sales Rep Network
In the first quarter of 2019, the Company worked to help PWT and MWS identify seasoned sales representatives across the country through recommendations from those with deep industry knowledge. Those particular representatives were contacted and meetings set to discuss the mutual opportunity. On February 5, 2019, the Company reported on initial positive results.
By early June of 2019, seven additional organizations had signed agreements, building on the eight that PWT and MWS had in place at the beginning of 2019. These additional organizations cover twenty-two additional states with about thirty new representatives. Training has been completed and new potential projects have been presented to PWT and MWS.
Additional sales managers, engineers and project managers will be needed for both PWT and MWS with additional production facilities necessary for PWT. The process of hiring additional personnel and obtaining additional facilities is underway.
Domestic versus International
The market opportunity for each of PWT and MWS is not limited to the United States. The US only represents 5% of the world’s population. In addition, a great deal of that population resides in undeveloped regions or regions with poor treatment systems. We believe implementing MWS’s and PWT’s decentralized technology throughout the world with joint ventures has the potential to have a significant effect on our revenue growth.
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Standardization
MWS is developing standardized designs and commoditized product engineering (eliminating the custom consulting engineering work reduces overall project costs), the goal being to design a single product once and use said design as a blueprint for future products. Our goal is to continue driving the standardization and completion of each product’s engineer technical package, using computer design algorithms and standard design approaches, so that engineering costs may potentially decrease to less than 1% for each unit sold, with a long-term goal of less than 0.1%.
Sharing Technology & Projects
PWT’s systems remove suspended solids, oils, metals, and dissolved chemicals & salts. MWS’s focus is on the removal of organic contaminants. It is not uncommon for a waste stream of water to be contaminated with both inorganics and organics, for example, many current animal farms with large amounts of waste effluent that currently is pumped to lagoons that are no longer meeting environmental standards. In the alternative, the water can be treated in-line with MWS products to remove the organics, then PWT’s systems used to remove dissolved inorganics to create water suitable for irrigation or drinking water for the animals. In addition, OriginClear’s proprietary technologies have been shown to successfully treat problems such as animal farm effluents.
By combining these technologies, the offering to customers becomes stronger and more effective. And both companies benefit from a new opportunity.
More Specific Opportunities for PWT
We are interested in exploring the following opportunities, but we have no timeline for their implementation:
| ● | Build and promote a fleet of rental treatment systems mounted on trailers or containers. It is very common for a rental to be purchased outright. As a result, PWT’s rental fleet must be continuously replenished. | |
| ● | Develop a standard digital product line through 3-D CAD programs and market it as virtual inventory, with components on hand and engineering already done. | |
| ● | Expand production capabilities with new equipment that would lower the labor cost of production. For instance, acquire tooling that would minimize the hand tool labor. | |
| ● | Develop more services business such as membrane cleaning or resin regeneration. |
More Specific Opportunities for MWS
MWS has developed a grey/black water treatment system for forward operating basis called Expeditionary Wastewater Recycling Systems (EWRS): Patent pending, US Army Human Health Command approved, fully automated, certified wastewater recycling solution which can be sold to all DOD divisions, FEMA and NGOs.
Another new product still being incubated is building manholes utilizing SRTP versus the current precast concrete approach.
ORGANIZATION
MWS is now fully integrated with PWT. MWS personnel are primarily located in New Castle, VA remote locations.
OTG supports the combined Texas organization with various administrative, accounting and marketing functions, from its headquarters in Florida.
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FACILITIES AND EQUIPMENT
Manufacturing
PWT currently leases its facility. The facility is located at 2535 E. University Drive, McKinney, Texas 75069. There are five buildings totaling 12,400 square feet on the 1.7 acres of land. There is additional expansion space for several more assembly buildings when and if needed.
PWT’s in-house engineers and designers utilize modern 3-D CAD programs to design all of the systems sold by PWT. They also design, program and build all of the control systems and the Internet-connected Process Logic Control (PLC) video screen interfaces.
PWT in-house craftsmen complete the metal and plastic machining, welding and assembly of PWT’s and MWS’s systems.
MWS engineering resources are provided both internally and externally. Daniel Early leads the engineering program and relies on support from engineering personnel and PWT to assist with Manufacturing Engineering. MWS subcontracts engineering support to PWT, which employs its own established and experienced engineering team. MWS also subcontracts 2D and 3D engineering design work to outside vendors to assist in the development of standardized drawings and proposals.
MWS’s specialized manufacturing is outsourced at present. PWT provides substantial critical manufacturing support to MWS; this support takes the form of various sub assembly fabrication (membrane modules, equipment skids, MWS equipment buildings, etc.). PWT is the sole source provider for MWS’s integrated control panels. In addition to PWT, heavy plastic and or custom plastic manufacturing is provided by a company in Roanoke, Virginia and another in Ontario, Canada. Additional sub-contract manufacturing is available through fabricators in Hopkins, MO, Corsicana, TX, and Vernon Hills, IL.
The Company plans to transition the plastic fabrication of MWS’s pump stations and wastewater treatment systems to PWT from subcontractors. There is no timeline for this, as it will require an additional 2,400 to 3,000 square foot building for assembly, engineers and project managers.
The components such as pumps, membranes and instruments will be acquired either through PWT’s or MWS’s normal vendors. The large diameter SRTP pipe will be acquired from the fabricator located about 40 miles south of Dallas.
The building blocks of all systems are metal reinforced or structural profile wall reinforced thermoplastics pipe (SRTP) available from one of over a half dozen pipe suppliers. Being pipes they are manufactured to be sold into high volume applications and are very economical for MWS’s high value applications. MWS purchases these plastic cylinders up to 11’ in diameter and are utilized as the vessel or housing part of the water treatment systems.
More efficient fabrication and assembly equipment are available at relatively little cost to expedite the fabrication time and improve the quality. Some of that equipment includes: CNC waterjet, large diameter core drills, fusion welders and roto molders.
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Technology Group Milestones
The following milestones were achieved in addition to the PWT and MWs milestones stated earlier.
On December 5, 2019, OriginClear announced that its Spanish partner Depuporc unveiled an integrated manure treatment system using OriginClear technology. The demonstration system processes 30 metric tons per day, with client-validated reduction of contaminants.
On January 22, 2020, OriginClear named India’s Permionics as Strategic Partner for Asia-Pacific Region in an expansion of the existing licensing partnership intended to better address regional opportunities. Permionics is also a key channel partner for PWT.
Acquisitions
OTG’s strategy is to grow incrementally by focusing on the water treatment services market, acquiring the hands-on service suppliers in this market. It intends to develop a network of these wholly-owned water treatment companies to meet the needs of end users from all industries with a full range of treatment technologies. Due to increased regulation, water treatment recycling challenges and a need to focus on their own core business, many water users today are outsourcing their water treatment needs to outside experts. In addition, we have identified a major trend in decentralization of water treatment, which we believe will cause small water service companies to grow. There will be significant synergies within OTG as technology, manufacturing expertise, market knowledge, projects and opportunities are shared. The target acquisitions must be accretive in nature with solid sales growth and profitability. The acquired companies must have a solid management team to accelerate their previous growth with excellent customer service. Initially, the acquisition focus is in the U.S. but will be expanded internationally in a few years.
OTG believes that the policy of building business units from internal cash flow can be productive. It did so with the Daniel Early/MWS project and is now beginning the process again with Water On Demand and the $H2O blockchain system.
Technology Licensing
We may grant non-exclusive licenses to OEMs (Original Equipment Manufacturers), and participate in joint ventures, contributing our technology and our commitment to each joint venture’s business focus.
We have limited licensing and joint venture activity and do not intend to expand this activity.
Water On Demand
Our planned water outsourcing program is known as DBOO in the industry. Typically, DBOO has been done for very large municipal and national projects.
If we achieve the capital required, we plan to deliver DBOO for smaller systems in the $250,000-$2,000,000 hardware range, or treating between 5,000 and 100,000 gallons per day. With a growing number of local businesses doing their own treatment, we see this as a promising and underserved market.
Competitors
A number of providers deliver very large DBOO systems, such as Suez Water and the former Aquaventure Holdings, now part of Culligan. We do not compete with these providers.
A growing number of DBOO providers serve the smaller systems segment, such as Cambrian Innovations and Surplus Water. It is too early to tell what our competitive strengths or weaknesses could be, as we are still in the test phase of our own program.
$H2O blockchain system
The use of the blockchain to streamline payments is new to industrial water, but it is a very common application of financial services, such as with J. P. Morgan’s JPMCoin.
Competitors
We know of no blockchain system in use in the water industry. It is too early to tell what competitors may appear during the prospective development period of $H2O.
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Intellectual Property
Status of Original Inventions:
Early developments of Intellectual Property focused on algae harvesting, beginning in 2008. Beginning in 2015, the company applied this knowledge to water treatment and began development of EWS.
In 2018, OriginClear reorganized its intellectual property portfolio to focus exclusively on its electrochemical water treatment solution, Electro Water Separation™ (EWS) with Advanced Oxidation (AOx™).
On May 25, 2019, in its Annual Report for the fiscal year ended December 31, 2018, the Company stated, “we have chosen to protect certain intellectual property with trade secrets rather than patents”.
Accordingly, OriginClear no longer actively maintains the patent applications and patents to its EWS and AOx technologies, willingly deeding them to the water industry as an open resource. The Company intends to reserve to itself and its partners the protected communication of further discoveries and trade secrets relative to the EWS and AOx technology domains.
At this time, the Company is not actively pursuing the development of the EWS or AOx technologies.
Patents:
| ● | On May 10, 2021, OriginClear announced that it filed “System And Method For Water Treatment Incentive”, a patent application for using blockchain technology and non-fungible tokens (NFT) to simplify the distribution of payments on outsourced water treatment and purification services billed on a pay-per-gallon basis ahead of inflation. The application status is provisional. |
Trademarks:
| ● | On April 2, 2015, we filed a trademark application with the USPTO to protect the intellectual property rights for our wordmark “OriginClear”. On August 16, 2016 the wordmark was registered with Registration Number 5023444. The registration is current. | |
| ● | On April 8, 2015, we filed a trademark application with the USPTO to protect the intellectual property rights for our current company logo “OriginClear” with the stylized “O”. On August 16, 2016 the mark was registered with Registration Number 5027992. The registration is current. | |
| ● | On January 17, 2021, we filed a trademark application with the USPTO to protect the intellectual property rights for “Waterpreneur”. The current filing basis is “Use in commerce” (under Trademark Act Section 1(a)). |
| ● | On May 16, 2021, we filed a trademark application with the USPTO for the mark “$H2O”. The current filing basis is “Intent-to-use basis” (under Trademark Act Section 1(b)). |
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Licensed Patents:
On June 25, 2018, Daniel Early granted us a worldwide, exclusive non-transferable license to intellectual property consisting of five issued US patents, and design software, CAD, marketing, design and specification documents. See “Products, Technology and Services—Patents”
Marketing Agreements:
In an Amendment dated December 2, 2019, the Company renewed the licensing agreement of Zaragoza, Spain-based Depuporc S.A. for an additional ten years, and agreed to remarket its DEPUPORC® brand animal manure treatment system worldwide, both directly and through channel partners, excluding geographical Europe and Europe-based customers. DEPUPORC, which integrates OriginClear technology under license, is protected by Spanish patent 2011311192 granted on December 12, 2013 with priority given on July 13, 2014 to MONTAJES LONGARES SL, the parent company of Depuporc.
Depuporc S.A. states that DEPUPORC is recognized by the Institute of Environmental Management of the Spanish Province of Aragon as a method of treatment and purification of liquid manure generated in pig farms in order to reduce nitrogen emissions linked to animal husbandry. DEPUPORC, likewise, has been recognized and selected by Spain’s Ministry of Agriculture, Food and Environment for CARBON FES-CO2 as a PILOT CLIMATE PROJECT in its 2012 program.
Abandonments and Transfers
Abandonment generally occurs when the Company believes it has better intellectual property in other applications, or when we have chosen to protect the IP with trade secrets instead of patents. As we disclosed in 2019, we have abandoned all patents and patent applications for our original technology, known as Electro Water Separation and Advanced Oxidation (AOx), and our policy for these inventions is to preserve our evolving knowhow through trade secrets.
Research and Development
During the years ended December 31, 2020 and 2019, we invested $110,338 and $107,351, respectively, on research and development of our technologies. Research and development costs include activities related to technology development and innovations, fabrication and scale-up of products based on this technology, development of firmware and process automation, development of new applications in industries such as aquaculture, technical support of customers, agents, joint venture partners and licensees, on-site consulting and training activities, and miscellaneous research.
Employees
As of May 20, 2021, we had 26 employees, all of whom are full-time.
OUR PROPERTY
Our principal corporate offices are located at 13575 58th Street North, Suite 200, Clearwater, FL 33760. Our Dallas based subsidiary, PWT, rents an approximately12,000 square foot facility located at 2535 E. University Drive, McKinney, TX 75069, with a current monthly rent of $7,000.
Currently, 9 employees also work from remote locations in Los Angeles, California; Pittsburgh, Pennsylvania; New Castle, Virginia; and Sarasota, Florida.
We believe these facilities are suitable and adequate to meet our current business requirements.
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Risks Relating to Our Business
We have not been profitable.
We were formed in June 2007 and are currently developing a new technology that has not yet gained market acceptance. Since we have not been profitable, there are substantial risks, uncertainties, expenses and difficulties that we are subject to. To address these risks and uncertainties, we must do among the following:
| ● | Successfully execute our business strategy; | |
| ● | Respond to competitive developments; and | |
| ● | Attract, integrate, retain and motivate qualified personnel. |
There can be no assurance we will operate profitably or that we will have adequate working capital to meet our obligations as they become due. Investors must consider the risks and difficulties frequently encountered by early stage companies, particularly in rapidly evolving markets. We cannot be certain that our business strategy will be successful or that we will successfully address these risks. In the event that we do not successfully address these risks, our business, prospects, financial condition, and results of operations could be materially and adversely affected.
We have a history of losses and can provide no assurance of our future operating results.
We have experienced net losses and negative cash flows from operating activities since inception and we expect such losses and negative cash flows to continue in the foreseeable future. As of December 31, 2020 and 2019, we had working capital (deficit) of $(21,699,304) and $(38,598,414), respectively, and shareholders’ (deficit) of $(29,645,300) and $(44,565,901), respectively. For the years ended December 31, 2020 and 2019, we incurred net income (losses) of $13,261,365 and $(27,473,678). During the year ended December 31, 2020, we had a loss from operations of $4,711,238. As of December 31, 2020, we had an aggregate accumulated deficit of $94,020,274. We may never achieve profitability. The opinion of our independent registered public accountants on our audited financial statements as of and for the year ended December 31, 2020 contains an explanatory paragraph regarding substantial doubt about our ability to continue as a going concern. Our ability to continue as a going concern is dependent upon raising capital from financing transactions and future sales.
We will need significant additional capital, which we may be unable to obtain.
Revenues generated from our operations are not presently sufficient to sustain our operations. Therefore, we will need to raise additional capital to continue our operations. There can be no assurance that additional funds will be available when needed from any source or, if available, will be available on terms that are acceptable to us. We may be required to pursue sources of additional capital through various means, including debt or equity financings. Future financings through equity investments are likely to be dilutive to existing stockholders. Also, the terms of securities we may issue in future capital transactions may be more favorable for new investors. Newly issued securities may include preferences, superior voting rights, the issuance of warrants or other derivative securities, and the issuances of incentive awards under equity employee incentive plans, which may have additional dilutive effects. Further, we may incur substantial costs in pursuing future capital and/or financing, including investment banking fees, legal fees, accounting fees, printing and distribution expenses and other costs. We may also be required to recognize non-cash expenses in connection with certain securities we may issue, such as convertible notes and warrants, which will adversely impact our financial condition. Our ability to obtain needed financing may be impaired by such factors as the capital markets and our history of losses, which could impact the availability or cost of future financings. If the amount of capital we are able to raise from financing activities, together with our revenues from operations, is not sufficient to satisfy our capital needs, even to the extent that we reduce our operations accordingly, we may be required to cease operations. In addition, we have outstanding convertible preferred stock that are convertible into common stock at variable conversion prices and in addition, in some cases entitle certain prior investors to certain make-good shares. Our issuance of common stock upon conversion of such preferred stock will result in further dilution to our stockholders.
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We have incurred substantial indebtedness.
As of December 31, 2020, we had outstanding convertible promissory notes in the amount of $3,100,503. All such debt is payable within the following thirty-six months and is convertible at a significant discount to our market price of stock. Our level of indebtedness and insufficient cash on hand increases the possibility that we may be unable to generate cash sufficient to pay, when due, the principal of, interest on or other amounts due in respect of the indebtedness. Our indebtedness, combined with other financial obligations and contractual commitments, could:
| ● | in the case of convertible debt that is converted into equity, result in a reduction in the overall percentage holdings of our stockholders, put downward pressure on the market price of our common stock, result in adjustments to conversion and exercise prices of outstanding notes and warrants and obligate us to issue additional shares of common stock to certain of our stockholders; | |
| ● | make it more difficult for us to satisfy our obligations with respect to the indebtedness and any failure to comply with the obligations under any of our debt instruments, including restrictive covenants, could result in events of default under the loan agreements and instruments governing the indebtedness; | |
| ● | require us to dedicate a substantial portion of our cash flow from operations to payments on indebtedness, thereby reducing funds available for working capital, capital expenditures, acquisitions, research and development and other corporate purposes; | |
| ● | increase our vulnerability to adverse economic and industry conditions, which could place us at a competitive disadvantage compared to competitors that have relatively less indebtedness; |
| ● | limit our flexibility in planning for, or reacting to, changes in business and the industry in which we operate; and | |
| ● | limit our ability to borrow additional funds, or to dispose of assets to raise funds, if needed, for working capital, capital expenditures, acquisitions, research and development and other corporate purposes. |
We may incur significant additional indebtedness in the future. If we incur a substantial amount of additional indebtedness, the related risks that we face could become more significant. Additionally, the terms of any future debt that we may incur may impose requirements or restrictions that further affect our financial and operating flexibility or subject us to other events of default.
Our revenues are dependent upon acceptance of our technology and products by the market; the failure of which would cause us to curtail or cease operations.
We believe that most of our future revenues will come from the sale or license of our technology and systems. As a result, we will continue to incur substantial operating losses until such time as we are able to generate revenues from the sale or license of our technology and systems. There can be no assurance that businesses and prospective customers will adopt our technology and systems, or that businesses and prospective customers will agree to pay for or license our technology and systems. In the event that we are not able to develop a customer base that purchases or licenses our technology and systems, or if we are unable to charge the necessary prices or license fees, our financial condition and results of operations will be materially and adversely affected.
We will need to increase the size of our organization, and may experience difficulties in managing growth.
We are a small company with a minimal number of employees. We expect to experience a period of significant expansion in headcount, facilities, infrastructure and overhead and anticipate that further expansion will be required to address potential growth and market opportunities. Future growth will impose significant added responsibilities on members of management, including the need to identify, recruit, maintain and integrate managers. Our future financial performance and our ability to compete effectively will depend, in part, on our ability to manage any future growth effectively.
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We may not be able to successfully license our technology and commercialize our products which would result in continued losses and may require us to curtail or cease operations.
We are currently commercializing our technology. We are unable to project when we will achieve profitability, if at all. As is the case with any new technology, we expect the research and development process to continue. We cannot assure that our engineering resources will be able to develop our technology and systems fast enough to meet market requirements. We can also not assure that our technology and systems will gain market acceptance and that we will be able to successfully commercialize the technologies. The failure to successfully develop and commercialize the technologies would result in continued losses and may require us to curtail or cease operations.
Our ability to clean-up oil and gas and waste water and aqua-feed on a commercially viable basis is unproven, which could have a detrimental effect on our ability to generate or sustain revenues.
The technologies we use to harvest algae, clean up oil and gas water, and waste water, have never been utilized on a full-scale commercial basis. Our EWS:AOx technology was only recently developed. All of the tests conducted to date by us with respect to the technology have been performed in a limited scale or small commercial scale environment and the same or similar results may not be obtainable at competitive costs on a large-scale commercial basis. We have never employed our technology under the conditions or in the volumes that will be required for us to be profitable and cannot predict all of the difficulties that may arise. Accordingly, our technology may not perform successfully on a commercial basis and may never generate any revenues or be profitable.
If a competitor were to achieve a technological breakthrough, our operations and business could be negatively impacted.
There currently exist a number of businesses that are pursuing novel processes to clean up waste water. Should a competitor achieve a research and development, technological or biological breakthrough where process costs are significantly reduced, efficiency greatly increased over ours, or if the costs of similar competing products were to fall substantially, we may have difficulty attracting customer licensees or sales. Furthermore, competitors may have access to larger resources (capital or otherwise) that provide them with an advantage in the marketplace, which could result in a negative impact on our business.
Any competing technology that cleans or purifies water, at a superior scale and more cost efficient than ours, could render our technology obsolete. In addition, because we are the master licensee of only five issued patents, we may not be able to preclude development of even directly competing technologies using the same methods, materials and procedures as we use to achieve our results. Any of these competitive forces may inhibit or materially adversely affect our ability to attract customer licensees, or to obtain royalties or other fees from our customer licensees. This could have a material adverse effect on our business, prospects, results of operation and financial condition.
Our long-term success depends on future royalties paid to us by licensees, and we face the risks inherent in a royalty-based business model.
We intend to generate revenue through the licensing of our technology and systems, and our long-term success depends on future royalties paid to us by prospective customer licensees. We expect that the amount of royalty payments we may receive will be based upon the revenues generated by our prospective customer licensees’ operations, and so we will be dependent on the successful operations of our prospective customer licensees for a significant portion of our revenues. We face risks inherent in a royalty-based business model, many of which are outside of our control, including those arising from our reliance on the management and operating capabilities of our customer licensees and the cyclicality of supply and demand for end-products produced using our technology. Should our prospective customer licensees fail to achieve sufficient profitability in their operations, our royalty payments would be diminished and our results of operations, cash flows and financial condition could be adversely affected, and any such effects could be material.
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We rely on strategic partners.
We rely on strategic partners to aid in the development and marketing of our technology and processes. Should our strategic partners not regard us as significant to their own businesses, they could reduce their commitment to us or terminate their relationship with us, pursue competing relationships or attempt to develop or acquire processes that compete with ours. Any such action could materially adversely affect our business.
A lack of government subsidies may hinder the usefulness of our technology.
We assemble and sell complete engineered solutions, and products, using the expertise and knowhow of PWT and MWS. Subsidies of any of the industries vary and may be reduced or eliminated, which could have a material adverse effect on our business. Likewise, regulations may become more onerous which also could have a material adverse effect on our business.
The industries in which we operate may endure deflationary cycles, affecting our ability to sell and license our systems.
It is possible that industry sector collapses and other deflationary events may impact our business materially and adversely.
If we lose key employees and consultants or are unable to attract or retain qualified personnel, our business could suffer.
Our success is highly dependent on our ability to attract and retain qualified scientific, engineering and management personnel. We are highly dependent on our management, including T. Riggs Eckelberry, who has been critical to the development of our technology and business. The loss of the services of Mr. Eckelberry would have a material adverse effect on our operations. We do not have an employment agreement with Mr. Eckelberry. Accordingly, there can be no assurance that he will remain associated with us. His efforts will be critical to us as we continue to develop our technology and as we attempt to transition to a company with profitable commercialized products and services. If we were to lose Mr. Eckelberry, or any other key employees or consultants, we may experience difficulties in competing effectively, developing our technology and implementing our business strategies.
Competition from other companies in our market may affect the market for our technology.
New companies are constantly entering the market, thus increasing the competition. Larger foreign owned and domestic companies which have been engaged in water cleanup and algae harvesting for substantially longer periods of time may have access to greater financial and other resources. These companies may have greater success in the recruitment and retention of qualified employees, as well as in conducting their own fuel manufacturing and marketing operations, which may give them a competitive advantage. In addition, actual or potential competitors may be strengthened through the acquisition of additional assets and interests. If we or our customers are unable to compete effectively or adequately respond to competitive pressures, this may materially adversely affect our results of operation and financial condition.
An occurrence of an uncontrollable event such as the COVID-19 pandemic may negatively affect our operations.
The occurrence of an uncontrollable event such as the COVID-19 pandemic may negatively affect our operations. A pandemic typically results in social distancing, travel bans and quarantine, and this may limit access to our facilities, customers, management, support staff and professional advisors. These factors, in turn, may not only impact our operations, financial condition and demand for our goods and services but our overall ability to react timely to mitigate the impact of this event. Also, it may hamper our efforts to comply with our filing obligations with the Securities and Exchange Commission.
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Risks Related to Our Intellectual Property
If we fail to establish, maintain and enforce intellectual property rights with respect to our technology, our financial condition, results of operations and business could be negatively impacted.
Our ability to establish, maintain and enforce intellectual property rights with respect to the technology that we intend to license will be a significant factor in determining our future financial and operating performance. We seek to protect our intellectual property rights by relying on a combination of trade secret and copyright laws, and the licensing of external patents. We also use confidentiality and other provisions in our agreements that restrict access to and disclosure of our confidential know-how and trade secrets.
Outside of licensed patents, we seek to protect our technology as trade secrets and technical know-how. However, trade secrets and technical know-how are difficult to maintain and do not provide the same legal protections provided by patents. In particular, only patents will allow us to prohibit others from using independently developed technology that is similar. If competitors develop knowledge substantially equivalent or superior to our trade secrets and technical know-how, or gain access to our knowledge through other means such as observation of our technology that embodies trade secrets at customer sites which we do not control, the value of our trade secrets and technical know-how would be diminished.
While we strive to maintain systems and procedures to protect the confidentiality and security of our trade secrets and technical know-how, these systems and procedures may fail to provide an adequate degree of protection. For example, although we generally enter into agreements with our employees, consultants, advisors, and strategic partners restricting the disclosure and use of trade secrets, technical know-how and confidential information, we cannot provide any assurance that these agreements will be sufficient to prevent unauthorized use or disclosure. In addition, some of the technology deployed at customer sites in the future, which we do not control, may be readily observable by third parties who are not under contractual obligations of non-disclosure, which may limit or compromise our ability to continue to protect such technology as a trade secret.
Monitoring and policing unauthorized use and disclosure of intellectual property is difficult. If we learned that a third party was in fact infringing or otherwise violating our intellectual property, we may need to enforce our intellectual property rights through litigation. Litigation relating to our intellectual property may not prove successful and might result in substantial costs and diversion of resources and management attention.
From our customer licensees’ standpoint, the strength of the intellectual property under which we intend to grant licenses can be a critical determinant of the value of these licenses. If we are unable to secure, protect and enforce our intellectual property, it may become more difficult for us to attract new licensees, and therefore customers. Any such development could have a material adverse effect on our business, prospects, financial condition and results of operations.
Although we have filed various patent applications for some of our original technologies, we have opted to abandon or transfer them, in favor of a trade secrets policy.
Even if we do pursue patent protection for our inventions, these patents may not provide meaningful protection or commercial advantage. In the US, patents only provide protection for a 20-year period starting from the filing date and the longer a patent application takes to issue the less time there is to enforce it. Further, the claims under any patents that issue from our applications may not be broad enough to prevent others from developing technologies that are similar or that achieve similar results. It is also possible that the intellectual property rights of others will bar us from licensing our technology and bar us or our future licensees from exploiting any patents that issue from our pending applications. Numerous U.S. and foreign issued patents and pending patent applications owned by others exist in the fields in which we have developed and are developing our technology. These patents and patent applications might have priority over our patent applications and could subject our patent applications to invalidation. Finally, in addition to those who may claim priority, any patents that issue from our applications may also be challenged by our competitors on the basis that they are otherwise invalid or unenforceable.
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We may face claims that we are violating the intellectual property rights of others.
We may face claims, including from direct competitors, other water companies, scientists or research universities, asserting that our technology or the commercial use of such technology infringes or otherwise violates the intellectual property rights of others. We have not conducted infringement, freedom to operate or landscape analyses, and as a result we cannot be certain that our technologies and processes do not violate the intellectual property rights of others. We expect that we may increasingly be subject to such claims as we begin to earn revenues and our market profile grows.
We may also face infringement claims from the employees, consultants, agents and outside organizations we have engaged to develop our technology. While we have sought to protect ourselves against such claims through contractual means, we cannot provide any assurance that such contractual provisions are adequate, and any of these parties might claim full or partial ownership of the intellectual property in the technology that they were engaged to develop.
If we were found to be infringing or otherwise violating the intellectual property rights of others, we could face significant costs to implement work-around methods, and we cannot provide any assurance that any such work-around would be available or technically equivalent to our current technology. In such cases, we might need to license a third party’s intellectual property, although any required license might not be available on acceptable terms, or at all. If we are unable to work around such infringement or obtain a license on acceptable terms, we might face substantial monetary judgments against us or an injunction against continuing to license our technology, which might cause us to cease operations.
In addition, even if we are not infringing or otherwise violating the intellectual property rights of others, we could nonetheless incur substantial costs in defending ourselves in suits brought against us for alleged infringement. Also, if any license agreements provide that we will defend and indemnify our customer licensees for claims against them relating to any alleged infringement of the intellectual property rights of third parties in connection with such customer licensees’ use of our technologies, we may incur substantial costs defending and indemnifying any customer licensees to the extent they are subject to these types of claims. Such suits, even if without merit, would likely require our management team to dedicate substantial time to addressing the issues presented. Any party bringing claims might have greater resources than we do, which could potentially lead to us settling claims against which we might otherwise prevail on the merits.
Any claims brought against us or any customer licensees alleging that we have violated the intellectual property of others could have negative consequences for our financial condition, results of operations and business, each of which could be materially adversely affected as a result.
Risks Related to Our Common Stock
Our common stock could be further diluted as the result of the issuance of additional shares of common stock, convertible securities, warrants or options.
We have issued common stock, convertible securities (such as convertible debentures, convertible preferred stock, and notes) and warrants in order to raise money, some of which have anti-dilution and other similar protections. We have also issued incentive compensation for our employees and directors. We have shares of common stock reserved for issuance upon the exercise of certain of these securities and may increase the shares reserved for these purposes in the future. Our issuance of additional common stock, convertible securities, options and warrants could affect the rights of our stockholders, result in a reduction in the overall percentage holdings of our stockholders, could put downward pressure on the market price of our common stock, could result in adjustments to conversion and exercise prices of outstanding notes and warrants, and could obligate us to issue additional shares of common stock to certain of our stockholders.
Our chief executive officer owns the majority of the voting power of our shareholders.
As the holder of our outstanding shares of Series C Preferred Stock, our chief executive officer, T. Riggs Eckelberry has 51% of the voting power of the Company’s shareholders. As a result, Mr. Eckelberry has the ability to control all matters submitted to shareholders, and his interests may differ from those of other shareholders.
We have created various series of preferred stock and our articles of incorporation allow for our board to create additional new series of preferred stock without further approval by our stockholders, which could adversely affect the rights of the holders of our common stock.
Our Board of Directors has the authority to fix and determine the relative rights and preferences of preferred stock. Our Board of Directors has the authority to issue additional shares of our preferred stock without further stockholder approval. Our board of directors has created various series of preferred stock and may create additional series in the future with various preferential rights over the common stock.
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Our issuance of common stock upon conversion of outstanding preferred stock will result in dilution to our stockholders.
We have outstanding various series of preferred stock that are convertible into common stock, including varies series that are convertible into common stock at variable conversion prices and which in some cases entitle certain prior investors to certain make-good shares (see Note 3 to the financial statements included in this report). Our issuance of common stock upon conversion of outstanding preferred stock will result in dilution to holders of our common stock, which may have a negative effect on the price of our common stock.
There is a limited public market for our common stock.
Our common stock is not listed on any national securities exchange. Accordingly, investors may find it more difficult to buy and sell our shares than if our common stock was traded on an exchange. Although our common stock is quoted on the OTC Pink, it is an unorganized, inter-dealer, over-the-counter market which provides significantly less liquidity than the NASDAQ Capital Market or other national securities exchange. These factors may have an adverse impact on the trading and price of our common stock. And our common stock may be less attractive for margin loans, for investment by financial institutions, as consideration in future capital raising transactions or other purposes.
The price of our common stock is volatile, which may cause investment losses for our stockholders.
The market for our common stock is highly volatile and subject to wide fluctuations in response to, among other things, quarterly variations in operating and financial results, and general economic and market conditions. In addition, statements or changes in opinions, ratings, or earnings estimates made by brokerage firms or industry analysts relating to our market or relating to us could result in an immediate and adverse effect on the market price of our common stock. The highly volatile nature of our stock price may cause investment losses for our shareholders. In the past, securities class action litigation has often been brought against companies following periods of volatility in the market price of their securities. If securities class action litigation is brought against us, such litigation could result in substantial costs while diverting management’s attention and resources.
Shares eligible for future sale may adversely affect the market.
From time to time, certain of our stockholders may be eligible to sell all or some of their shares of common stock by means of ordinary brokerage transactions in the open market pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), subject to certain limitations. In general, pursuant to Rule 144, non-affiliate stockholders may sell freely after six months subject only to the current public information requirement. Affiliates may sell after six months subject to the Rule 144 volume, manner of sale (for equity securities), and current public information and notice requirements. Any substantial sales of our common stock pursuant to Rule 144 may have a material adverse effect on the market price of our common stock.
Our stock is subject to the penny stock rules, which impose significant restrictions on broker-dealers and may affect the resale of our stock.
Our common stock has been subject to the provisions of Section 15(g) and Rule 15g-9 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), commonly referred to as the “penny stock” rule. Section 15(g) sets forth certain requirements for transactions in penny stocks and Rule 15g-9(d)(1) incorporates the definition of penny stock as that used in Rule 3a51-1 of the Exchange Act. The SEC generally defines penny stock to be any equity security that has a market price less than $5.00 per share, subject to certain exceptions. Rule 3a51-1 provides that any equity security is considered to be penny stock unless that security is: registered and traded on a national securities exchange meeting specified criteria set by the SEC; issued by a registered investment company; excluded from the definition on the basis of price (at least US$5.00 per share) or the registrant’s net tangible assets; or exempted from the definition by the Securities and Exchange Commission (“SEC”). Our common stock is considered to be a “penny stock.” The SEC has adopted rules that regulate broker-dealer practices in connection with transactions in “penny stocks.” As our common stock is considered to be “penny stock,” trading in our common stock is subject to additional sales practice requirements on broker-dealers who sell penny stock to persons other than established customers and accredited investors. This may reduce the liquidity and trading volume of our shares.
Financial Industry Regulatory Authority, Inc. (“FINRA”) sales practice requirements may limit a shareholder’s ability to buy and sell our common shares.
In addition to the “penny stock” rules described above, FINRA has adopted rules that require that in recommending an investment to a customer, a broker-dealer must have reasonable grounds for believing that the investment is suitable for that customer. Prior to recommending speculative low priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information about the customer’s financial status, tax status, investment objectives and other information. Under interpretations of these rules, FINRA believes that there is a high probability that speculative low priced securities will not be suitable for at least some customers. FINRA requirements make it more difficult for broker-dealers to recommend that their customers buy our common stock, which may limit your ability to buy and sell our stock and have an adverse effect on the market for our shares.
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If we fail to maintain effective internal controls over financial reporting, the price of our common stock may be adversely affected.
We are required to establish and maintain appropriate internal controls over financial reporting. During the year ended December 31, 2020, we carried out an evaluation, under the supervision and with the participation of our management, including the principal executive officer and the principal financial officer, of the effectiveness of the design and operation of our disclosure controls and procedures. Based on that evaluation and due to the lack of segregation of duties due to small Company staff size, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures were ineffective as of the end of the period covered by this report. Failure to establish those controls, or any failure of those controls once established, could adversely affect our public disclosures regarding our business, prospects, financial condition or results of operations. In addition, management’s assessment of internal controls over financial reporting may identify weaknesses and conditions that need to be addressed in our internal controls over financial reporting or other matters that may raise concerns for investors. Any actual or perceived weaknesses and conditions that need to be addressed in our internal control over financial reporting or disclosure of management’s assessment of our internal controls over financial reporting may have an adverse impact on the price of our common stock.
We are required to comply with certain provisions of Section 404 of the Sarbanes-Oxley Act of 2002 and if we fail to comply in a timely manner, our business could be harmed and our stock price could decline.
Rules adopted by the SEC pursuant to Section 404 of the Sarbanes-Oxley Act of 2002 require an annual assessment of internal controls over financial reporting, and for certain issuers an attestation of this assessment by the issuer’s independent registered public accounting firm. The standards that must be met for management to assess the internal controls over financial reporting as effective are evolving and complex, and require significant documentation, testing, and possible remediation to meet the detailed standards. We expect to incur significant expenses and to devote resources to Section 404 compliance on an ongoing basis. It is difficult for us to predict how long it will take or how costly it will be to complete the assessment of the effectiveness of our internal control over financial reporting for each year and to remediate any deficiencies, if any, in our internal controls over financial reporting. As a result, we may not be able to complete the assessment and remediation process on a timely basis. In addition, although attestation requirements by our independent registered public accounting firm are not presently applicable to us, we could become subject to these requirements in the future and we may encounter problems or delays in completing the implementation of any resulting changes to internal controls over financial reporting. In the event that our Chief Executive Officer or Chief Financial Officer determine that our internal controls over financial reporting is not effective as defined under Section 404, we cannot predict how regulators will react or how the market prices of our shares will be affected; however, we believe that there is a risk that investor confidence and share value may be negatively affected.
We do not intend to pay dividends on our common stock.
We do not anticipate paying cash dividends on our common stock in the foreseeable future. We may not have sufficient funds to legally pay dividends. Even if funds are legally available to pay dividends, we may nevertheless decide in our sole discretion not to pay dividends. The declaration, payment and amount of any future dividends will be made at the discretion of our board of directors, and will depend upon, among other things, the results of our operations, cash flows and financial condition, operating and capital requirements, and other factors our board of directors may consider relevant. In addition, we have outstanding various series of preferred stock that are entitled to dividends prior to payment of any dividends on our common stock.
ITEM 1B. UNRESOLVED STAFF COMMENTS.
Not applicable.
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Our principal corporate offices are located at 13575 58th Street North, Suite 200, Clearwater, FL 33760. Our Dallas based subsidiary, PWT, rents an approximately 12,000 square foot facility located at 2535 E. University Drive, McKinney, TX 75069, with a current monthly rent of $7,000.
In February 2019, a Complaint was filed in the Superior Court for the State of California, for breach of contract, common law counts for sums due for services allegedly performed, and fraud. The Complaint was filed by RDI Financial, LLC (“RDI”), an alleged assignee of Interdependence, Inc., and named the Company and its developmental subsidiary, WaterChain, Inc., as Defendants. RDI claimed that its assignor, Interdependence, Inc., entered into a contract with the Defendants for Interdependence to provide reputation and professional relationship management services. RDI claimed that Interdependence provided the services and that the Company was required to make certain payments of cash and our capital stock to Interdependence, but did not do so. RDI claimed to be entitled to enforce the contract as the assignee, and demanded monetary damages in the aggregate amount of $630,000.
The Company and WaterChain were unaware of the suit until September of 2019, when they received notice of a default judgment. Litigation counsel was engaged, and with the absence of prior notice or service of the suit, an improper default promptly challenged. In October 2019, the Court vacated the default and judgment, and granted the Company and WaterChain leave to file an Answer and Cross-Complaint against RDI and Interdependence. Through these filings, the Company and WaterChain, Inc. contested the allegations and claims in the Complaint, denied that Interdependence performed the required services, and contended that the Company overpaid Interdependence $40,000 for whatever limited work was done. More specifically, in November 2019, an Answer was filed by the Company and WaterChain denying the claims in the Complaint, along with a Cross-Complaint alleging fraudulent inducement to enter into the contract, negligent misrepresentations, breach of contract, and to rescind the underlying contract. The Company alleged that Interdependence misrepresented the nature and scope of the services which were to be provided and its ability to provide them, falsely promised and promoted the results it would obtain for the Company and WaterChain in providing such services, and also failed to provide the Company with the services as required by the contract such that Interdependence was overpaid based on what limited work it in fact did. For those reasons, and prior to any litigation, the Company terminated the contract for non-performance.
Following discovery and pleading activity, the Company and WaterChain entered into settlement negotiations with RDI to resolve this matter on a defense cost basis. The parties reached an amicable resolution and entered into a Settlement Agreement and Mutual and General Release on December 16, 2020 which provided for a less than defense cost resolution through a payment of $20,000 and stock transfers on a monthly basis through December 2021, with removal of restrictive legends occurring at six month intervals following each transfer. Notice of Settlement of Entire Case was filed with the Court in January 2021, and all Court dates vacated. Once the stock transfers and restriction removals are completed, the action will be dismissed with prejudice. All parties are fully and timely performing under the Settlement Agreement, and no further issues or proceedings, or fees and costs, are anticipated.
On January 12, 2021, OriginClear, Inc. Progressive Water Treatment, Inc. and T. Riggs Eckelberry, individually (collectively, the “iKAHN Plaintiffs”), filed a complaint in the Supreme Court for the State of New York in and for the County of Ontario against iKAHN Capital LLC (“iKAHN”). The case stems from the purported “Agreement for the Purchase and Sale of Future Receipts” that OriginClear and iKAHN Capital entered into on September 7, 2018 (the “iKAHN Agreement”). The iKAHN Plaintiffs are alleging that the iKAHN Agreement is, in fact, a loan, and not a merchant cash advance, and is in violation of New York’s usury laws, and requested that the Court declare the iKAHN Agreement void and unenforceable; that the Judgment that was entered against the iKAHN Plaintiffs on November 6, 2018 in the amount of $30,205 be vacated; attorneys’ fees and costs; court costs and fees; and all other relief to which the iKAHN Plaintiffs may be entitled.
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On April 22, 2021, the iKAHN Plaintiffs and iKAHN agreed to settle the dispute on the following terms: (i) vacatur of the judgment obtained by iKAHN against the iKAHN Plaintiffs; (ii) release of any and all bank levies, liens, security interests, powers of attorney, and other encumbrances iKAHN may have against the iKAHN Plaintiffs; and (iii) dismissal of the action filed by the iKAHN Plaintiffs against iKAHN with prejudice. Accordingly, the iKAHN Plaintiffs no longer owe any further amounts to iKAHN with respect to the iKAHN Agreement.
On November 16, 2020, Progressive Water Treatment, Inc., OriginClear, Inc. and T. Riggs Eckelberry, individually (collectively, the “Yellowstone Plaintiffs”), filed a complaint in the Supreme Court for the State of New York in and for the County of Erie against Yellowstone Capital, LLC (“Yellowstone”). The case stems from the purported “Secured Merchant Agreement” that OriginClear and Yellowstone entered into on July 19, 2018 (the “Yellowstone Agreement”). The Yellowstone Plaintiffs are alleging that the Yellowstone Agreement is, in fact, a loan, and not a merchant cash advance, and is in violation of New York’s usury laws, and requested that the Court declare the Yellowstone Agreement void and unenforceable; that the Judgment that was entered against the Yellowstone Plaintiffs on November 7, 2018 in the amount of $99,303 be vacated; attorneys’ fees and costs; court costs and fees; and all other relief to which the Yellowstone Plaintiffs may be entitled.
On December 4, 2020, Yellowstone filed a Motion to Dismiss the Yellowstone Plaintiffs’ Complaint. On January 5, 2021, Yellowstone’s Motion to Dismiss was granted.
On January 5, 2021, the Yellowstone Plaintiffs filed a Notice of Appeal to the Court’s Decision & Order granting Yellowstone’s Motion to Dismiss, and will be submitting a memoranda of law in support in the near future.
On October 12, 2020, OriginClear, Inc. Progressive Water Treatment, Inc. and T. Riggs Eckelberry, individually (collectively, the “GTR Plaintiffs”), filed a complaint in the Supreme Court for the State of New York in and for the County of Ontario against GTR Source (“GTR”). The case stems from the purported Merchant Agreements that OriginClear and GTR entered into on July 20, 2018 and August 28, 2018 (together, the “GTR Agreements”). The GTR Plaintiffs are alleging that the GTR Agreements are, in fact, loans, and not merchant cash advances, and are in violation of New York’s usury laws, and requested that the Court declare the GTR Agreements void and unenforceable; that the Judgment that was entered against the GTR Plaintiffs on March 20, 2019 in the amount of $143,083 be vacated; that the Settlement Agreement entered into by and between OriginClear and GTR, dated December 13, 2018, be declared void and unenforceable; restitution in the amount of $149,751; attorneys’ fees and costs; court costs and fees; and all other relief to which the GTR Plaintiffs may be entitled.
On October 16, 2020, the GTR Plaintiffs filed an Order to Show Cause seeking a Temporary Restraining Order and Preliminary Injunction. On October 23, 2020, the Court granted the GTR Plaintiffs’ request for a Temporary Restraining Order, which remains in effect as of the date hereof.
On November 25, 2020, the GTR Plaintiffs filed an Amended Complaint, which included one (1) defendant, Tzvi “Steve” Reich, the President and Manager of GTR (together with GTR, the “GTR Defendants”), and two (2) new causes of action: violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c), and Conspiracy, 18 U.S.C. § 1962(d). On December 1, 2021, the GTR Defendants removed the case to the United States District Court for the Western District of New York.
The GTR action is currently being litigated.
On September 21, 2020, OriginClear, Inc. Progressive Water Treatment, Inc. and T. Riggs Eckelberry, individually (collectively, the “C6 Plaintiffs”), filed a complaint in the Supreme Court for the State of New York in and for the County of Boome against C6 Capital LLC (“C6 Capital”). The case stems from the purported “Purchase Agreement for the Sale of Receipts” that OriginClear and C6 Capital entered into on July 17, 2018 (the “C6 Agreement”). The C6 Plaintiffs are alleging that the C6 Agreement is, in fact, a loan, and not a merchant cash advance, and is in violation of New York’s usury laws, and requested that the Court declare the C6 Agreement void and unenforceable; that the Judgment that was entered against the C6 Plaintiffs on November 7, 2018 in the amount of $64,337 be vacated; attorneys’ fees and costs; court costs and fees; and all other relief to which the C6 Plaintiffs may be entitled.
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On March 12, 2021, the C6 Plaintiffs and C6 Capital agreed to settle the dispute on the following terms: (i) vacatur of the judgment obtained by C6 Capital against the C6 Plaintiffs; (ii) release of any and all bank levies, liens, security interests, powers of attorney, and other encumbrances C6 Capital may have against the C6 Plaintiffs; and (iii) dismissal of the action filed by the C6 Plaintiffs against C6 Capital with prejudice. Accordingly, the C6 Plaintiffs no longer owe any further amounts to C6 Capital with respect to the C6 Agreement. Furthermore, the sister-state judgment C6 Capital obtained against the C6 Plaintiffs in California is currently in the process of being vacated by stipulation.
On September 18, 2019, Expansion Capital Group, LLC (“Expansion”) filed a complaint against Progressive Water Treatment, Inc., T. Riggs Eckelberry, individually, and Marc Stevens, individually (collectively, the “Expansion Defendants”) in the District Court for the 429th Judicial District, Collin County, Texas alleging breach of a Business Loan Agreement (the “Business Loan”), dated July 9, 2018, under which Expansion loaned $300,000 to Progressive Water Treatment, Inc., with an expectation of being repaid $408,000.
On December 30, 2019, Expansion and the Expansion Defendants entered into a Settlement Agreement (the “Expansion Settlement”), pursuant to which the Expansion Defendants agreed to pay Expansion $252,000 in $10,500 monthly installments over a 24-month period.
The Expansion Defendants have retained legal counsel who will assert that the Business Loan and the Expansion Settlement are usurious transactions that should be declared and unenforceable against the Expansion Defendants.
On February 12, 2019, Auctus Fund, LLC (“Auctus”) filed a complaint against OriginClear in the United States District Court for the District of Massachusetts for numerous claims arising from two convertible promissory notes and accompanying securities purchase agreements.
On March 13, 2019, Auctus and OriginClear entered into a Settlement Agreement and Mutual General Release, under which Auctus would be permitted to convert $570,000 into OriginClear securities pursuant to the terms set forth in the convertible promissory notes.
On February 2, 2021, OriginClear filed a Motion to Set Aside the Settlement Agreement as Void under Section 29(b) of the Securities Exchange Act of 1934 (the “Act”) for Auctus’ violation of Section 15(a) of the Act. If granted, the Settlement Agreement would be declared void and unenforceable.
As of the date hereof, the Motion to Set Aside the Settlement Agreement has been fully brief by the parties to the action; however, United States District Court for the District of Massachusetts has not yet established a schedule or issued a decision.
ITEM 4. MINE SAFETY DISCLOSURES.
Not applicable.
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ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS ISSUER PURCHASES OF EQUITY SECURITIES.
Our common stock is quoted on the OTC Markets Pink Open Market under the symbol “OCLN”.
The market price of our common stock, like that of other technology companies, is highly volatile and is subject to fluctuations in response to variations in operating results, announcements of technological innovations or new products, or other events or factors. Our stock price may also be affected by broader market trends unrelated to our performance.
Holders
As of May 20, 2021, we had approximately 521 holders of record of our common stock. This number does not include beneficial owners whose shares are held in the names of various security brokers, dealers, and registered clearing agencies.
Dividend Policy
We have never paid any cash dividends on our common stock and do not anticipate paying any cash dividends on our common stock in the foreseeable future. We intend to retain future earnings, if any, to fund ongoing operations and future capital requirements of our business. Any future determination to pay cash dividends will be at the discretion of the board of directors and will be dependent upon our financial condition, results of operations, capital requirements and such other factors as the board of directors deems relevant. In addition, we have outstanding various series of preferred stock that are entitled to dividends prior to any payment of dividends on the common stock.
Recent Sales of Unregistered Securities
There were no sales of unregistered securities during the fiscal year ended December 31, 2020 other than those transactions previously reported to the SEC on our quarterly reports on Form 10-Q and current reports on Form 8-K.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
None.
N/A
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATION.
The following discussion and analysis should be read together with our financial statements and the related notes appearing elsewhere in this Annual Report on Form 10-K. This discussion contains forward-looking statements reflecting our current expectations that involve risks and uncertainties. See “Forward-Looking Statements” for a discussion of the uncertainties, risks and assumptions associated with these statements. Actual results and the timing of events could differ materially from those discussed in our forward-looking statements as a result of many factors, including those set forth under “Risk Factors” and elsewhere in this Annual Report on Form 10-K.
Overview of Business
OriginClear is a water technology company which has developed in-depth capabilities over its 14-year lifespan. Today, those capabilities have been organized under the umbrella of OriginClear Tech Group™ (www.originclear.tech).
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These capabilities include:
| ● | The Company’s original technology developments, known as Electro Water Separation™ and Advanced Oxidation(AOx™), which are not being pursued commercially at this time. |
| ● | The Intellectual Property of Daniel M. Early, consisting of five patents and related knowhow and trade secrets, which may replace the intended applications for the company’s original technology developments. |
| ● | Progressive Water Treatment Inc. (“PWT”) a wholly-owned subsidiary based in Dallas Texas, which is responsible for the bulk of the company’s revenue, specializing in Engineered Solutions (custom treatment systems). |
| ● | Modular Water Systems (“MWS”), a division based at PWT, which implements the Daniel M. Early Intellectual Property. |
OriginClear Tech Group
As stated above, all of our technology and operations activities have been centralized under OriginClear Tech Group (“OTG”), enabling a total focus at the corporate level on the Water On Demand and $H2O blockchain system strategy.
The mission of OTG is to provide expertise and technology to help make clean water available for all. Specifically, OTG houses the following initiatives:
| 1. | We are building a network of customer-facing water brands to expand our global market presence and our technical expertise. These include the wholly-owned subsidiary, Progressive Water Treatment, and the Modular Water Systems brand. |
| 2. | We manage relationships with partners worldwide who are licensees and business partners. |
| 3. | We develop new technology approaches and business models in the lab, such as Investor Water™ and WaterChain™, both of which are designed to help achieve funding for water treatment and management systems. Both projects are in a research and development phase. OTG also is actively working on the ability to deliver Operation & Maintenance (O&M) capability at scale, to support Water On Demand outsourced treatment and purification programs, and is evaluating a pilot program to achieve this. OTG intends to support the development of the $H2O blockchain system, which may replace WaterChain altogether. And in 2020, the Company also completed a pilot program with a rental program of a product known as Pool Preserver™, and developed a career-building program for entrepreneurs termed Waterpreneurs™. Water As A Career remains a pilot program and the Company does not plan to expand it at this time. |
Water is our most valuable resource, and the mission of OTG is to improve the quality of water and help return it to its original and clear condition.
The Technology
OriginClear is the proprietary developer of EWS, the high-speed, primarily chemical-free technology to clean up large quantities of water. It removes oils, suspended solids, certain dissolved solids, and pathogens, in a continuous and energy-efficient process. The Company originally developed this technology to solve the challenge of removing microalgae from a highly dilute state. We believe EWS technology remains the most efficient non-chemical, continuous mechanism for the concentration of live algae cells from water.
The electro-chemical process was then extended, first to cleaning up oil and gas waste water and most recently, to industrial, agricultural and urban effluents. These water treatment applications are entirely electrochemical in nature and do not rely on algae for its cleaning capabilities, which is a separate application of the technology. EWS is designed to be an early step in removal of oils, solids and pathogens; reducing the work that more expensive, downstream processes such as Ultra Filtration or Reverse Osmosis must do, therefore enabling more cost-efficient and high-volume water cleanup overall.
In March of 2016, OriginClear announced that it had successfully developed and proved Advanced Oxidation for its breakthrough water cleanup system, EWS. University laboratory tests have shown that EWS with Advanced Oxidation (EWS:AOx™) can now extract dissolved contaminants, which are otherwise difficult to remove without chemicals such as chlorine. Overall, the system has shown a dramatic reduction in Total Organic Compounds which includes all forms of organic contamination, solids, miscible or dissolved, to meet new stringent global discharge requirements.
Today, we are capable of pairing the two technologies as EWS:AOx™, or separately, as the application requires. OriginClear believes that its technology is valuable to the industry because it has the potential to greatly extend the life of membranes and filters by effectively treating very dirty, oily water, while reducing chemical use significantly.
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OriginClear also believes that its Advanced Oxidation technology will help neutralize harmful micro-contaminants, such as industrial solvents, which is difficult or impossible to achieve with other technologies.
Overall, the system has shown a dramatic reduction in Total Organic Compounds which includes all forms of organic contamination, solids, miscible or dissolved, to meet new stringent global discharge requirements.
At this time, the Company is strictly marketing the EWS/AOx technology in the context of turnkey integrators such as Spain’s Depuporc, and India’s Permionics. The Company does not maintain an internal technical staff to manage this technology or its implementation.
Critical Accounting Policies
The Securities and Exchange Commission (“SEC”) defines “critical accounting policies” as those that require application of management’s most difficult, subjective or complex judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain and may change in subsequent periods. Not all of the accounting policies require management to make difficult, subjective or complex judgments or estimates. However, the following policies could be deemed to be critical within the SEC definition.
Revenue Recognition
We recognize revenue when services are performed, and at the time of shipment of products, provided that evidence of an arrangement exists, title and risk of loss have passed to the customer, fees are fixed or determinable, and collection of the related receivable is reasonably assured.
Revenues and related costs on construction contracts are recognized as the performance obligations for work are satisfied over time in accordance with Accounting Standards Codification (“ASC”) 606, Revenue from Contracts with Customers. Under ASC 606, revenue and associated profit, will be recognized as the customer obtains control of the goods and services promised in the contract (i.e., performance obligations). All un-allocable indirect costs and corporate general and administrative costs are charged to the periods as incurred. However, in the event a loss on a contract is foreseen, the Company will recognize the loss as it is determined. Revisions in cost and profit estimates during the course of the contract are reflected in the accounting period in which the facts for the revisions become known. Provisions for estimated losses on uncompleted contracts are made in the period in which such losses are determined. Changes in job performance, job conditions, and estimated profitability, including those arising from contract penalty provisions, and final contract settlements, may result in revisions to costs and income, which are recognized in the period the revisions are determined.
Use of Estimates
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant estimates include estimates used to review the Company’s goodwill, impairments and estimations of long-lived assets, revenue recognition on percentage of completion type contracts, allowances for uncollectible accounts, inventory valuation, valuations of non-cash capital stock issuances and the valuation allowance on deferred tax assets. The Company bases its estimates on historical experience and on various other assumptions that the Company believes to be reasonable in the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.
Fair Value of Financial Instruments
Fair value of financial instruments requires disclosure of the fair value information, whether or not recognized in the balance sheet, where it is practicable to estimate that value. As of December 31, 2020, the amounts reported for cash, prepaid expenses, accounts payable and accrued expenses approximate the fair value because of their short maturities.
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Recently Issued Accounting Pronouncements
Management adopted a recently issued accounting pronouncement during the year ended December 31, 2020, as disclosed in the Notes to the financial statements included in this report.
Results of Operations for the years ended December 31, 2020 and 2019.
| Year Ended | ||||||||
| December 31, 2020 | December 31, 2019 | |||||||
| Revenue | $ | 4,101,131 | $ | 3,587,894 | ||||
| Cost Of Goods Sold | 3,489,356 | 3,217,028 | ||||||
| Operating Expenses, Depreciation and Amortization | 5,323,013 | 4,279,104 | ||||||
| Loss from Operations before Other Income (Expense) | (4,711,238 | ) | (3,908,238 | ) | ||||
| Other Income (Expense) | 17,972,603 | (23,565,440 | ) | |||||
| Net Income (Loss) | $ | 13,261,365 | $ | (27,473,678 | ) | |||
Revenue and Cost of Sales
Revenue for the year ended December 31, 2020 and 2019 was $4,101,131 and $3,587,894, respectively. Cost of sales for the year ended December 31, 2020 and 2019, was $3,489,356 and $3,217,028, respectively. Revenue increased primarily due to our subsidiary’s increase in sales of its products.
Operating Expenses
Selling and Marketing Expenses
Selling and Marketing (“S&M”) expenses for the years ended December 31, 2020 and 2019, were $1,557,842 and $1,572,183, respectively. Selling and marketing expenses remained relatively unchanged.
General Administrative Expenses
General administrative (“G&A”) expenses for the years ended December 31, 2020 and 2019, were $3,602,586 and $2,556,201, respectively. The increase in general and administrative expenses was primarily due to an increase in legal fees and outside services.
Research and Development Cost
Research and development (“R&D”) costs for the years ended December 31, 2020 and 2019, were $110,338 and $107,351. Research and development costs remained relatively unchanged.
Depreciation Expense
Depreciation expense for the years ended December 31, 2020 and 2019, were $52,247 and $43,369, respectively.
Other Income and Expenses
Other income and (expenses) increased by $41,538,043 to $17,972,603 for the year ended December 31, 2020, compared to $(23,565,440) for the year ended December 31, 2019. The increase was predominantly the result of an increase in non-cash accounts associated with the fair value of the derivatives in the amount of $41,640,132, decrease in loss on settlement of convertible notes in the amount of $348,307, decrease in unrealized loss on investment securities in the amount of $11,600, decrease in other income in the amount of $16,459, with offset by an increase in loss on conversion of debt in the amount of $102,527 and increase in impairment expense of $133,879, decrease in settlement of payable in the amount of $28,428, and increase in interest expense of $533,681 which includes non-cash amortization of debt discount of $11,774.
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Net Loss
Our net income increased by $40,735,043 to $13,261,365 for the year ended December 31, 2020, compared to net loss of $(27,473,678) for the year ended December 31, 2019. The majority of the increase in net income was due primarily to an increase in other income and expenses associated with the net change in derivative instruments estimated each period. These estimates are based on multiple inputs, including the market price of our stock, interest rates, our stock price, volatility, variable conversion prices based on market prices defined in the respective agreements and probabilities of certain outcomes based on managements’ estimates. These inputs are subject to significant changes from period to period, therefore, the estimated fair value of the derivative liabilities will fluctuate from period to period, and the fluctuation may be material.
Liquidity and Capital Resources
Liquidity is the ability of a company to generate funds to support its current and future operations, satisfy its obligations, and otherwise operate on an ongoing basis. Significant factors in the management of liquidity are funds generated by operations, levels of accounts receivable and accounts payable and capital expenditures.
The financial statements have been prepared on a going concern basis of accounting, which contemplates continuity of operations, realization of assets and liabilities and commitments in the normal course of business. The accompanying consolidated financial statements do not reflect any adjustments that might result if we are unable to continue as a going concern. During the year ended December 31, 2020, total cash used in operations was $3,976,198. As of December 31, 2020, we had a working capital deficit of $21,699,304 and a shareholders’ deficit of $29,645,300. These factors, among others raise substantial doubt about our ability to continue as a going concern. Our independent auditors, in their report on our audited financial statements for the year ended December 31, 2020 expressed substantial doubt about our ability to continue as a going concern. The ability of us to continue as a going concern and appropriateness of using the going concern basis is dependent upon, among other things, additional cash infusion. We have obtained funds from investors in the year ended December 31, 2020, and have standing purchase orders and open invoices with customers and we are pursuing various financing alternatives to fund the Company’s operations so it can continue as a going concern in the medium to long term. Management believes this funding will continue from our current investors and new investors. There can be no assurance that such funding will be available to the Company in the amount required at any time or, if available, that it can be obtained on terms satisfactory to the Company. Management believes the existing shareholders, the prospective new investors and current and future revenue will provide the additional cash needed to meet our obligations as they become due, and will allow the development of our core business operations.
At December 31, 2020 and December 31, 2019, we had cash of $409,591 and $490,614, respectively, and working capital deficit of $21,699,304 and $38,598,414, respectively. The decrease in working capital deficit was due primarily to a decrease in non-cash derivative liabilities.
During the year ended December 31, 2020, we raised an aggregate of $3,433,067 in offerings of preferred stock. Our ability to continue as a going concern is dependent upon raising capital from financing transactions and future revenue, however, there cannot be any assurance that we will be able to raise additional capital from financings.
Net cash used in operating activities was $(3,976,198) for the year ended December 31, 2020, compared to $(3,221,393) for the year ended December 31, 2019. The increase of $754,905 in cash used in operating activities was due primarily to an increase in loss on conversion of debt and shares issued for services.
Net cash flows (used in) investing activities for the year ended December 31, 2020 and 2019 were $(13,884) and $(6,188), respectively. The net increase in cash provided in investing activities was mostly due to an increase in purchase of fixed assets.
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Net cash flows provided by financing activities was $3,915,589 for the year ended December 31, 2020, as compared to $3,108,951 for the prior year ended December 31, 2019. The increase in cash provided by financing activities was due to an increase in loans payable.
We do not have any material commitments for capital expenditures during the next twelve months. Although our proceeds from the issuance of convertible debt together with revenue from operations are currently sufficient to fund our operating expenses in the near future, we will need to raise additional funds in the future so that we can expand our operations. Therefore, our future operations are dependent on our ability to secure additional financing. Financing transactions may include the issuance of equity or debt securities, obtaining credit facilities, or other financing mechanisms. However, the trading price of our common stock and a downturn in the U.S. equity and debt markets could make it more difficult to obtain financing through the issuance of equity or debt securities. Even if we are able to raise the funds required, it is possible that we could incur unexpected costs and expenses, fail to collect significant amounts owed to us, or experience unexpected cash requirements that would force us to seek alternative financing. Furthermore, if we issue additional equity or debt securities, stockholders may experience additional dilution or the new equity securities may have rights, preferences or privileges senior to those of existing holders of our common stock. The inability to obtain additional capital may restrict our ability to grow and may reduce our ability to continue to conduct business operations. If we are unable to obtain additional financing, we may have to curtail our marketing and development plans and possibly cease our operations.
We have estimated our current average burn, and believe that we have assets to ensure that we can function without liquidation for a limited time, due to our cash on hand, growing revenue, and our ability to raise money from our investor base. Based on the aforesaid, we believe we have the ability to continue our operations for the immediate future and will be able to realize assets and discharge liabilities in the normal course of operations. However, there cannot be any assurance that any of the aforementioned assumptions will come to fruition and as such we may only be able to function for a short time.
Off-Balance Sheet Arrangements
We do not have any off balance sheet arrangements that are reasonably likely to have a current or future effect on our financial condition, revenues, and results of operations, liquidity or capital expenditures.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not required for smaller reporting companies.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
All financial information required by this Item is attached hereto at the end of this report beginning on page F-1 and is hereby incorporated by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE.
None
ITEM 9A. CONTROLS AND PROCEDURES.
Evaluation of Disclosure Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Pursuant to Rules 13a-15(b) and 15-d-15(b) under the Exchange Act, the Company carried out an evaluation, under the supervision and with the participation of the Company’s management, including the principal executive officer and principal financial officer of the effectiveness of the design and operation of our disclosure controls and procedures as of the end of the period covered by this report. The term “disclosure controls and procedures”, as defined under Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officer, as appropriate to allow timely decisions regarding required disclosure.
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Based on that evaluation and due to the lack of segregation of duties due to small Company staff size, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures were ineffective as of the end of the period covered by this report. To address the deficiency, we performed additional analysis and other post-closing procedures in an effort to ensure our consolidated financial statements included in this report have been prepared in accordance with generally accepted accounting principles. Accordingly, management believes that the financial statements included in this report fairly present in all material respects our financial condition, results of operations and cash flows for the periods presented.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) under the Exchange Act. Our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2020. In making this assessment, our management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control-Integrated Framework (2013). A significant deficiency is a deficiency, or a combination of deficiencies, in internal control over financial reporting that is less severe than a material weakness, yet important enough to merit attention by those responsible for oversight of the registrant’s financial reporting.
Management has identified control deficiencies regarding the lack of segregation of duties due to small staff size and the need for a stronger internal control environment. The small size of the Company’s staff may prevent adequate controls in the future, such as segregation of duties, due to the cost/benefit of such remediation. The Company intends to add additional resources and controls during 2021 to mitigate the above deficiency.
Changes in Internal Control Over Financial Reporting
There were no changes in the Company’s internal control over financial reporting (as defined in Rule 13a-15f of the Exchange Act) that occurred during the quarter ended December 31, 2020 that has materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Limitations on Internal Controls
In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives. In addition, the design of disclosure controls and procedures must reflect the fact that there are resource constraints and that management is required to apply its judgment in evaluating the benefits of possible controls and procedures relative to their costs.
No Attestation Report by Independent Registered Accountant
The effectiveness of our internal control over financial reporting as of December 31, 2020 has not been audited by our independent registered public accounting firm by virtue of our exemption from such requirement as a smaller reporting company.
None.
ITEM 9C. DISCLORES REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS.
Not applicable.
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ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE.
EXECUTIVE OFFICERS, DIRECTORS AND KEY EMPLOYEES
The following table sets forth the names and ages of the members of our board of directors and our executive officers and the positions held by each.
| Name | Age | Position | ||
| T. Riggs Eckelberry | 69 | Chief Executive Officer, Chairman of the Board of Directors, Secretary, Treasurer, President and acting Chief Financial Officer | ||
| Anthony Fidaleo | 62 | Director | ||
| Jean-Louis Kindler | 58 | Director | ||
| Byron Elton | 66 | Director | ||
| Tom Marchesello | 51 | Chief Operating Officer |
T. Riggs Eckelberry - Chief Executive Officer, Chairman of the Board of Directors, Secretary, Treasurer, President and acting Chief Financial Officer
Mr. Eckelberry has served as our Chief Executive Officer, Chairman, Secretary, Treasurer, President and acting Chief Financial Officer since our inception in June 2007. As co-founder, Mr. Eckelberry brings his veteran technology management skills to the Blue Technology sector. As President and COO of CyberDefender Corporation from 2005 to 2006, he was instrumental in building the company and its innovative product line, helping to achieve initial funding and a NASDAQ IPO. From 2001 to mid-2005, he helped launch and turn around technology companies as founder and President of TechTransform, a technology consulting firm. In 2004, he was a key member of the team that commercialized YellowPages.com, resulting in its sale for $100 million to SBC/BellSouth. In 2003, he helped make Panda Software a key player in the US market as the General Manager of its US unit. During the high-tech boom of the 1990s, he was responsible for the global brand success of the software product, CleanSweep; as Chief Operating Officer of MicroHouse Technologies, he helped to achieve a successful sale of the company to Earthweb; and he was a key member of the team that sale of venture-backed TriVida to what is now a division of ValueClick: (VCLK). During Mr. Eckelberry’s early career in the non-profit sector, he received a master’s license for oceangoing vessels. As one of the founders of the Company and a veteran executive, Mr. Eckelberry’s experience and qualifications are essential to the board of directors.
Anthony Fidaleo – Director
Mr. Fidaleo has served as our director since June 2012. Mr. Fidaleo has run his own accounting and consulting practice since 1992, primarily as an acting Chief Financial Officer or Senior Consultant for publicly traded companies ranging from start-ups to Fortune 500 companies. From November 2005 to February 2009 Mr. Fidaleo was the Chief Financial Officer, Chief Operating Officer, Executive Vice President and Member of the Board of Directors and Operating Committee for iMedia International, Inc. an early stage publicly traded interactive content solutions company. Mr. Fidaleo is a California CPA (inactive) and was in public accounting from 1982 through 1992, primarily with BDO Seidman, LLP where he attained the level of audit senior manager. Mr. Fidaleo holds a B.S. degree in Accounting from California State University at Long Beach. Mr. Fidaleo’s accounting and financial experience qualifies him to serve as a member of our board of directors.
Jean-Louis Kindler – Director
Mr. (“JL”) Kindler is a longtime Director of the Company. As President of OriginClear Technologies, he led the commercialization of OriginClear’s breakthrough water treatment technology. Since 2019, he has been the CEO of Clean Energy Enterprises Inc., established to commercialize the Blue Tower biomass-to-hydrogen system he helped develop two decades ago in Japan. Mr. Kindler is a veteran of 25 years as both a top executive and engineer in environmental technologies. Before OriginClear, JL was co-founder and Chief Technology Officer of Ennesys, the company’s French joint venture, where he designed its patent-pending waste-to-energy system. Earlier, as founding CEO of MHS Equipment, a French nanotechnologies equipment manufacturing firm (42 M€, 360 employees in 2008), he led the development of a breakthrough fuel cell process. And earlier still, his twenty-year career in Japan gave him unique insight into fast-growing Asian markets. There, as principal of technology incubator Pacific Junction, JL completed various assignments. These included technology sourcing for the French industrial group GEC-Altshom, building the first commercial unit of the Blue Tower (to which he has recently returned in its now-fourth generation), and market development for a fluids mixing technology that helped inspire early OriginClear inventions. Mr. Kindler holds a Master’s in Economics and Public Policy from the Institute of Political Science in Lyon, France, and an MBA in International Management in Paris. Mr. Kindler’s executive and management experience, and past involvement in the company’s technology and operations, qualifies him to serve as a member of our board of directors.
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Byron Elton – Director
Mr. Elton has served as our director since January 2014. Mr. Elton is an experienced media and marketing executive with a proven record in pioneering new business development strategies and building top-flight marketing organizations. Since June 2018, he has been President of Elton Enterprises, Inc., which is involved in the wellness, fitness and health sector. Elton is currently opening six StretchLab Studios in the Los Angeles and Seattle markets (stretchlab.com). He is a co-founder since June 2017 of Pardue Associates, operating monsho, a brand-centric, creative communications agency focused on delivering results. From 2013 to 2017, Mr. Elton was a partner of Clear Search, an executive search firm. Prior to that, from 2009 until 2013, Mr. Elton served as President and Chief Executive Officer of Carbon Sciences, Inc. (“Carbon Sciences”) (OTCBB: CABN) and has served as Chairman of Carbon Sciences since March 2009. Carbon Sciences is an early stage company developing a technology to convert earth destroying carbon dioxide into a useful form that will not contribute to greenhouse gas. Mr. Elton previously served as Senior Vice President of Sales for Univision Online from 2007 to 2008. Mr. Elton also served for eight years as an executive at AOL Media Networks from 2000 to 2007, where his assignments included Regional Vice President of Sales for AOL and Senior Vice President of E-Commerce for AOL Canada. His broadcast media experience includes leading the ABC affiliate in Santa Barbara, California in 1995 to 2000 and the CBS affiliate in Monterrey, California, from 1998 to 1999, in addition to serving as President of the Alaskan Television Network from 1995 to 1999. Mr. Elton studied Advertising and Marketing Communications at Brigham Young University. Mr. Elton’s executive and management experience qualifies him to serve as a member of our board of directors.
Tom Marchesello – Chief Operating Officer.
Mr. Marchesello was named COO in June 2019. For the five years prior to joining the Company, Mr. Marchesello operated as an executive-level Business Consultant, specializing in environmental, social and governance (ESG) corporate strategy, operations, & investor relations to private-equity funded portfolio companies in high technology & industrial manufacturing industries. Prior to that, he was Director of M&A with Bainbridge. Mr. Marchesello served in the U.S. Air Force as a Captain at Air Force Space Command headquarters, leading aerospace operations and strategic planning for satellite communications, earth science monitoring and Geographic Information (GIS) and Positioning (GPS) Systems. After leaving the service, Mr. Marchesello worked in finance and high technology operations for 20 years with such companies as Sony Electronics, Thompson Reuters, Morgan Stanley, Bainbridge and CME Group. Mr. Marchesello holds a BS in Finance from Pennsylvania State University and an MBA from San Diego State University and holds US Patent #7,613,634, for performing Electronic Retailing. He received two Air Force Achievement Medals, two Air Force Commendation Medals and a Gulf War Service Medal.
Family Relationships
There are no family relationships among any of our directors and executive officers.
Legal Proceedings
During the past ten years, none of our directors or executive officers has been:
| ● | the subject of any bankruptcy petition filed by or against any business of which such person was a general partner or executive officer either at the time of the bankruptcy or within two years prior to that time; |
| ● | convicted in a criminal proceeding or is subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); |
| ● | subject to any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction or any Federal or State authority, permanently or temporarily enjoining, barring, suspending or otherwise limiting his involvement in any type of business, securities or banking activities; |
| ● | found by a court of competent jurisdiction (in a civil action), the Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law; |
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| ● | the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of (a) any Federal or State securities or commodities law or regulation; (b) any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or (c) any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or |
| ● | the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act (7 U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member. |
Election of Directors
Our directors hold office until the expiration of the term for which he or she was elected and until a successor has been elected and qualified.
Board Independence
We currently have four directors serving on our board of directors. We are not a listed issuer and, as such, are not subject to any director independence standards. Using the definition of “independent director,” as defined by Section 5605(a)(2) of the rules of the NASDAQ Capital Market, Anthony Fidaleo, Jean-Louis Kindler and Byron Elton would be considered independent directors.
Board of Directors Meetings and Attendance
The Board of Directors held four meetings in 2020, as well as acted by unanimous written consent. All Board members were present at all of the meetings. We have no formal policy regarding director attendance at the annual meeting of stockholders.
Committees of the Board of Directors
We have established an audit committee and compensation committee however we have not yet nominated any members to such committees. To date, our entire board has performed all of the duties and responsibilities which might be contemplated by a committee.
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Code of Ethics
We have adopted a code of business conduct and ethics that applies to all our directors, officers (including our Chief Executive Officer, Chief Financial Officer and any person performing similar functions) and employees. We have made our Code of Ethics available on our website at www.originclear.com/investing.
Board Leadership Structure and Role in Risk Oversight
Although we have not adopted a formal policy on whether the Chairman and Chief Executive Officer positions should be separate or combined, we have traditionally determined that it is in our best interests and our shareholders to combine these roles. Mr. Eckelberry has served as our Chairman since our inception in 2007. Due to the small size of the Company, we believe it is currently most effective to have the Chairman and Chief Executive Officer positions combined. Our board of directors receives and reviews periodic reports from management, auditors, legal counsel, and others, as considered appropriate regarding our company’s assessment of risks.
Our board of directors focuses on the most significant risks facing us and our general risk management strategy, and also ensures that risks undertaken by us are consistent with the Board’s appetite for risk. While the Board oversees our risk management, management is responsible for day-to-day risk management processes. We believe this division of responsibilities is the most effective approach for addressing the risks facing us.
ITEM 11. EXECUTIVE COMPENSATION.
The following table sets forth the compensation to our Chief Executive Officer and Chief Operating Officer for the years ended 2020 and 2019:
| Name and | Salary | Bonus | Stock Awards | Option Awards | Non-Equity Incentive Plan Compensation | Non-qualified Deferred Compensation Earnings | All
Other Compensation | Total | ||||||||||||||||||||||||||||
| Principal Position | Year | ($) | ($) | ($) | ($) | ($) | ($) | ($) | ($) | |||||||||||||||||||||||||||
| T. Riggs Eckelberry, | 2020 | 360,000 | - | - | - | - | - | 3,000 | 363,000 | |||||||||||||||||||||||||||
| Chairman
of the Board, Acting CFO, Secretary & Treasurer, President and CEO | 2019 | 360,000 | 5,000 | - | - | - | - | 3,000 | 368,000 | |||||||||||||||||||||||||||
| Tom Marchesello (1) | 2020 | 150,000 | - | - | - | - | - | - | 150,000 | |||||||||||||||||||||||||||
| Chief Operating Officer | 2019 | 87,500 | - | - | - | - | - | - | 87,500 | |||||||||||||||||||||||||||
| (1) | Mr. Marchesello was appointed Chief Operating Officer in June 2019. |
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Outstanding Equity Awards at 2020 Fiscal Year-End
There were no stock option plans outstanding as of December 31, 2020.
Employment Agreements
We currently do not have an employment agreement with our Chief Executive Officer, Mr. Eckelberry, who is paid an annual salary of $360,000. Bonus payments, if any, are determined by the Board of Directors. For the year ended 2020, our Chief Executive Officer did not receive a bonus. We currently do not have an employment agreement with our Chief Operating Officer, Mr. Marchesello, who is paid an annual salary of $150,000.
Employee Benefit Plans
Beginning June 1, 2008, we implemented a company health plan for our employees.
Compensation of Directors
Our current directors presently do not receive monetary compensation for their service on the board of directors. Directors may receive compensation for their services in the future and reimbursement for their expenses as shall be determined from time to time by resolution of the board of directors.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.
The following table sets forth certain information regarding the beneficial ownership of our common stock as of May 20, 2021, by (i) each director, (ii) each named executive officer, (iii) all directors and executive officers as a group, and (iv) each person who beneficially owns more than five percent of our common stock. Beneficial ownership is determined in accordance with the rules of the SEC. The percentage ownership of each beneficial owner is based on 151,606,607 outstanding shares of common stock. Except as indicated, each person listed below has sole voting and investment power with respect to the shares set forth opposite such person’s name.
| Name and Title of Beneficial Owner (1) | Number of Shares Beneficially Owned | Percentage of Shares | ||||||
| T. Riggs Eckelberry, Chief Executive Officer, Chairman, Secretary, Treasurer, President and acting Chief Financial Officer (2) | 869,394 | * | ||||||
| Tom Marchesello, Chief Operating Officer | 3,471,396 | 2.3 | ||||||
| Anthony Fidaleo, Director | 168 | * | ||||||
| Byron Elton, Director | 166 | * | ||||||
| Jean-Louis Kindler, Director | 1 | * | ||||||
| Directors and executive officers as a group (5 persons) | 4,341,124 | 2.9 | ||||||
| W. J. Spiech & J. A. Spiech | 11,724,641 | 7.8 | ||||||
| * | Less than 1% |
| (1) | The address of each director and named executive officer listed above is c/o OriginClear, Inc., 13575 58th Street North, Suite 200, Clearwater, FL 33760. |
| (2) | Mr. Eckelberry also owns all 1,000 shares outstanding shares of our Series C Preferred Stock which entitles Mr. Eckelberry to 51% of the total voting power on all shareholder matters of the Company. The ownership of these shares is conditioned on the holder’s continued position as CEO. |
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On March 15, 2017, the Company filed a Certificate of Designation for its Series C Preferred Stock with the Secretary of State of Nevada (the “Certificate of Designation”) designating 1,000 shares of its authorized preferred stock as Series C Preferred Stock. The shares of Series C Preferred Stock have a par value of $0.0001 per share. The Series C Preferred Shares do not have a dividend rate or liquidation preference and are not convertible into shares of common stock.
For so long as any shares of the Series C Preferred Stock remain issued and outstanding, the holders thereof, voting separately as a class, shall have voting power equal to 51% of the total vote (representing a super majority voting power) on all shareholder matters of the Company. Such vote shall be determined by the holder(s) of a majority of the then issued and outstanding shares of Series C Preferred Stock.
The shares of the Series C Preferred Stock shall be automatically redeemed by the Company at their par value on the first to occur of the following triggering events: (i) on the date that Mr. Eckelberry ceases, for any reason, to serve as officer, director or consultant of the Company, or (ii) on the date that the Company’s shares of common stock first trade on any national securities exchange provided that the listing rules of any such exchange prohibit preferential voting rights of a class of securities of the Company, or listing on any such national securities exchange is conditioned upon the elimination of the preferential voting rights of the Series C Preferred Stock set forth in the Certificate of Designation.
Equity Compensation Plan Information
There were no stock option incentive plans outstanding as of December 31, 2020.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE.
Except as set forth in Item 11 under “Executive Compensation,” and Note 8 under “Loan Payable – Related Party”, since January 1, 2020 there has not been, nor is there any proposed transaction where we were or will be a party in which the amount involved exceeded or will exceed $120,000 and in which any director, executive officer, holder of more than 5% of any class of our voting securities, or any member of the immediate family of any of the foregoing persons had or will have a direct or indirect material interest.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES.
Audit Fees
The following table shows fees that were billed by our independent registered public accounting firm for professional services rendered in 2020 and 2019. Audit fees represent fees for professional services performed by M&K CPAS, PLLC (“M&K”) or Liggett & Webb, P.A. (“Liggett & Webb”), as applicable, for the audit of our financial statements and the review of our quarterly financial statements, as well as services that are normally provided in connection with statutory and regulatory filings or engagements. Liggett & Webb, P.A. served as our independent registered public accounting firm through September 30, 2019. We engaged M& K as our independent registered public accounting on September 30, 2019.
| Fiscal Year | Audit Fees | Audit-Related Fees | Tax Fees | All Other Fees | ||||||||||||
| 2020 – M&K CPAS, PLLC | $ | 71,500 | $ | - | $ | - | $ | - | ||||||||
| 2019 – M&K CPAS, PLLC | $ | 48,000 | $ | - | $ | - | $ | - | ||||||||
| 2020 – Liggett & Webb, P.A. | $ | 15,200 | $ | - | $ | - | $ | - | ||||||||
| 2019 – Liggett & Webb, P.A. | $ | 68,000 | $ | - | $ | - | $ | - | ||||||||
Audit-Related Fees
We did not incur assurance and audit-related fees during 2020 and 2019, to M&K or Liggett & Webb, as applicable, nor in connection with the audit of our financial statements for the reviews of registration statements and issuance of related consents and assistance with SEC comment letters except for fees incurred relating to Company’s regulation A offering included in Audit Fees above.
Tax Fees
We did not incur fees for tax compliance, tax advice, or tax planning for the fiscal years ended December 31, 2020 and 2019, respectively.
All Other Fees
There were no fees billed to us by M&K or Liggett& Webb, as applicable, for services rendered to us during the fiscal years ended December 31, 2020 and 2019, respectively, other than the services described above under “Audit Fees” and “Audit-Related Fees.”
As of the date of this filing, our current policy is to not engage our independent registered public accounting firm to provide, among other things, bookkeeping services, appraisal or valuation services, or international audit services. The policy provides that we engage our independent registered public accounting firm to provide audit and other assurance services, such as review of SEC reports or filings, as set forth above.
40
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES.
* Filed herewith
** Furnished herewith
*** Management compensation agreement
41
| (1) | Incorporated by reference to the Company’s Form SB-2 filed with the SEC on December 11, 2007. |
| (2) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on July 20, 2011. |
| (3) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on June 14, 2012. |
| (4) | Incorporated by reference to the Company’s Current Report on Form 10-Q filed with the SEC on August 14, 2014. |
| (5) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on April 16, 2015. |
| (6) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on October 6, 2015. |
| (7) | Incorporated by reference to the Company’s Annual Report on Form 10-K filed with the SEC on April 4, 2016. |
| (8) | Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the Quarter ended June 30, 2016 filed with the SEC on August 15, 2016. |
| (9) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on March 16, 2017. |
| (10) | Incorporated by reference to the Company’s Annual Report on Form 10-K filed with the SEC on March 31, 2017. |
| (11) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on April 12, 2017. |
| (12) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on June 30, 2017. |
| (13) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on December 6, 2017. |
| (14) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on March 2, 2021. |
| (15) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on March 29, 2021. |
| (16) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on May 4, 2021. |
| (17) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on January 8, 2016. |
| (18) | Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the Quarter ended March 31, 2016 filed with the SEC on May 16, 2016. |
| (19) | Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the Quarter ended June 30, 2016 filed with the SEC on August 15, 2016. |
| (20) | In accordance with Item 601of Regulation S-K, this Exhibit is hereby furnished to the SEC as an accompanying document and is not deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that Section, nor shall it be deemed incorporated by reference into any filing under the Securities Act of 1933. |
| (21) | Incorporated by reference to the Company’s Annual Report on Form 10-K filed for the Fiscal Year ended December 31, 2017 filed with the SEC on April 17, 2018. |
| (22) | Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the Quarter ended March 31, 2018 and filed with the SEC on May 21, 2018. |
| (23) | Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the Quarter ended June 30, 2018 and filed with the SEC on August 14, 2018. |
| (24) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on August 20, 2018. |
| (25) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on January 22, 2019. |
| (26) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on March 20, 2019. |
| (27) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on April 9, 2019. |
| (28) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on October 31, 2019. |
| (29) | Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the Quarter ended June 30, 2019 filed with the SEC on August 19, 2019. |
| (30) | Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the Quarter ended March 31, 2020 filed with the SEC on July 6, 2020. |
| (31) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on May 1, 2020. |
| (32) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on August 27, 2020. |
| (33) | Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the Quarter ended September 30, 2020 filed with the SEC on November 23, 2020. |
| (34) | Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on February 10, 2021. |
| (35) | Incorporated by reference to the Company’s Annual Report on Form 10-K for the Year ended December 31, 2018 filed with the SEC on April 25, 2019. |
42
Pursuant to the requirements of Section 13 or 15(d) 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.
| ORIGINCLEAR, INC. | ||
| By: | /s/ T Riggs Eckelberry | |
| T Riggs Eckelberry | ||
| Chief Executive Officer (Principal Executive Officer) | ||
| and Acting Chief Financial Officer | ||
| (Principal Accounting and Financial Officer) | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons in the capacities and on the dates indicated.
| Date: May 21, 2021 | By: | /s/ T Riggs Eckelberry |
| T Riggs Eckelberry | ||
| Director, Chief Executive Officer and Acting Chief Financial Officer | ||
| Date: May 21, 2021 | By: | /s/ Anthony Fidaleo |
| Anthony Fidaleo | ||
| Director | ||
| Date: May 21, 2021 | By: | /s/ Jean-Louis Kindler |
| Jean-Louis Kindler | ||
| Director |
| Date: May 21, 2021 | By: | /s/ Byron Elton |
| Byron Elton | ||
| Director |
43
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and
Stockholders of OriginClear, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of OriginClear, Inc. (the Company) as of December 31, 2020 and 2019, and the related consolidated statements of operations, stockholders’ deficit, and cash flows for each of the years in the two-year period ended December 31, 2020, and the related notes (collectively referred to as the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and 2019, and the results of its operations and its cash flows for each of the years in the two-year period ended December 31, 2020, in conformity with accounting principles generally accepted in the United States of America.
Going Concern
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the financial statements, the Company suffered a net loss from operations and has a net capital deficiency, which raises substantial doubt about its ability to continue as a going concern. Management's plans regarding those matters are also described in Note 1. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
As discussed in Note 3 and 4 to the financial statements, the Company had complex financing transactions due to the issuance of multiple series of preferred stock during the year, attached dividends and warrants, and differing terms on each class of stock, resulting in multiple placements of the different series throughout the balance sheet.
Auditing management’s evaluation of these transactions can be complex due to the unusual nature of these transactions.
To evaluate the appropriateness of the instrument’s classification, we examined and evaluated the agreement along with management’s evaluation of the key terms and management’s disclosure of the transactions.
| /s/ M&K CPAS, PLLC | |
| We have served as the Company’s auditor since 2019. | |
Houston, TX
May 21, 2021
F-1
ORIGINCLEAR,
INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
| December 31, 2020 | December 31, 2019 | |||||||
| ASSETS | ||||||||
| CURRENT ASSETS | ||||||||
| Cash | $ | 409,591 | $ | 490,614 | ||||
| Restricted cash - Preferred shares | 6,530 | - | ||||||
| Contracts receivable | 438,430 | 522,911 | ||||||
| Contract assets | 148,734 | 26,287 | ||||||
| Convertible note receivable | - | 117,879 | ||||||
| Other receivable | 3,799 | 2,500 | ||||||
| Prepaid expenses | 52,728 | 47,483 | ||||||
| TOTAL CURRENT ASSETS | 1,059,812 | 1,207,674 | ||||||
| NET PROPERTY AND EQUIPMENT | 258,206 | 117,069 | ||||||
| OTHER ASSETS | ||||||||
| Fair value investment-securities | 8,000 | 9,600 | ||||||
| Trademark | 4,467 | 4,467 | ||||||
| Security deposit | - | 3,500 | ||||||
| TOTAL OTHER ASSETS | 12,467 | 17,567 | ||||||
| TOTAL ASSETS | $ | 1,330,485 | $ | 1,342,310 | ||||
| LIABILITIES AND SHAREHOLDERS’ DEFICIT | ||||||||
| Current Liabilities | ||||||||
| Accounts payable and other payable | $ | 1,304,803 | $ | 1,144,545 | ||||
| Accrued expenses | 1,542,816 | 1,163,146 | ||||||
| Cumulative preferred stock dividends payable | 256,274 | 92,472 | ||||||
| Contract liabilities | 340,551 | 428,009 | ||||||
| Capital lease, current portion | 9,088 | 9,088 | ||||||
| Customer deposit | 146,453 | 136,765 | ||||||
| Warranty reserve | 20,000 | 20,000 | ||||||
| Loan payable, merchant cash advance, net of finance fees of $0 and $12,566 respectively | 342,896 | 427,214 | ||||||
| Loan payable, related party | 94,883 | 187,054 | ||||||
| Loans payable, SBA | 505,000 | - | ||||||
| Derivative liabilities | 12,310,307 | 31,640,470 | ||||||
| Series F 8% Preferred Stock, 175 shares and 1,678 issued and outstanding, redeemable value of $175,000 and $1,678,000 respectively | 175,000 | 1,678,000 | ||||||
| Series F 8% Preferred Stock, 100 and 0 shares issued and outstanding, redeemable value of $100,000 and 0 respectively | 100,000 | - | ||||||
| Series G 8% Preferred Stock, 430 and 530 shares issued and outstanding, respectively, redeemable value of $430,000 and $530,000, respectively | 430,000 | 530,000 | ||||||
| Series I 8% Preferred Stock, 797 and 797 shares issued and outstanding, respectively, redeemable value of $797,400 and $797,400, respectively | 797,400 | 797,400 | ||||||
| Series K 8% Preferred Stock, 3,160 and 2,001 shares issued and outstanding, respectively, redeemable value of $3,160,417 and $2,000,650, respectively | 3,160,417 | 2,000,650 | ||||||
| Convertible promissory notes, net of discount of $17,930 and $146,005, respectively | 1,223,228 | 2,879,325 | ||||||
| Total Current Liabilities | 22,759,116 | 43,134,138 | ||||||
| Long Term Liabilities | ||||||||
| Capital lease, long term portion | 7,985 | 17,073 | ||||||
| Convertible promissory notes, net of discount of $0 and $0, respectively | 1,877,275 | 552,975 | ||||||
| Total Long Term Liabilities | 1,885,260 | 570,048 | ||||||
| Total Liabilities | 24,644,376 | 43,704,186 | ||||||
| COMMITMENTS AND CONTINGENCIES (See Note 12) | ||||||||
| Series J Convertible Preferred Stock, 273 and 349 shares issued and outstanding, respectively, redeemable value of $272,500 and $348,700, respectively | 272,500 | 348,700 | ||||||
| Series L Convertible Preferred Stock, 1,132 and 1,000 shares issued and outstanding, respectively, redeemable value of $1,132,084 and $1,000,325, respectively | 1,132,084 | 1,000,325 | ||||||
| 42,213 and 34,200 shares of Series M Preferred Stock issued and outstanding, respectively, redeemable value of $1,060,325 and $855,000, respectively | 1,060,325 | 855,000 | ||||||
| Series O 8% Convertible Preferred Stock, 1,995 shares issued and outstanding, respectively, redeemable value of $1,995,000 and $0, respectively | 1,995,000 | - | ||||||
| Series P Convertible Preferred Stock, 357 and 0 issued and outstanding, respectively, redeemable value of $356,500 and 0, respectively | 356,500 | - | ||||||
| Series Q 12% Convertible Preferred Stock, 1,025 and 0 shares issued and outstanding, respectively, redeemable value of $1,025,000 and $0, respectively | 1,025,000 | - | ||||||
| Series R 10% Convertible Preferred Stock, 490 and 0 shares issued and outstanding, respectively, redeemable value of $490,000 and $0, respectively | 490,000 | - | ||||||
| 6,331,409 | 2,204,025 | |||||||
| SHAREHOLDERS’ DEFICIT | ||||||||
| Preferred stock, $0.0001 par value, 550,000,000 shares authorized | ||||||||
| 1,000 and 1,000 shares of Series C issued and outstanding, respectively | - | - | ||||||
| 32,500,000 and 38,500,000 shares of Series D-1 issued and outstanding, respectively | 3,250 | 3,850 | ||||||
| 1,537,213 and 2,139,649 shares of Series E issued and outstanding, respectively | 154 | 217 | ||||||
| Subscription payable to purchase | 100,000 | - | ||||||
| Preferred treasury stock,1,000 and 1,000 shares outstanding, respectively | - | - | ||||||
| Common stock, $0.0001 par value, 16,000,000,000 shares authorized 65,052,688 and 4,854,993 equity shares issued and outstanding, respectively | 6,505 | 486 | ||||||
| Additional paid in capital | 64,265,217 | 62,711,339 | ||||||
| Accumulated other comprehensive loss | (132 | ) | (134 | ) | ||||
| Accumulated deficit | (94,020,294 | ) | (107,281,659 | ) | ||||
| TOTAL SHAREHOLDERS’ DEFICIT | (29,645,300 | ) | (44,565,901 | ) | ||||
| TOTAL LIABILITIES AND SHAREHOLDERS’ DEFICIT | $ | 1,330,485 | $ | 1,342,310 | ||||
The accompanying notes are an integral part of these consolidated financial statements
F-2
ORIGINCLEAR,
INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 2020 AND 2019
| Year Ended | ||||||||
| December 31, 2020 | December 31, 2019 | |||||||
| Sales | $ | 4,101,131 | $ | 3,587,894 | ||||
| Cost of Goods Sold | 3,489,356 | 3,217,028 | ||||||
| Gross Profit | 611,775 | 370,866 | ||||||
| Operating Expenses | ||||||||
| Selling and marketing expenses | 1,557,842 | 1,572,183 | ||||||
| General and administrative expenses | 3,602,586 | 2,556,201 | ||||||
| Research and development | 110,338 | 107,351 | ||||||
| Depreciation expense | 52,247 | 43,369 | ||||||
| Total Operating Expenses | 5,323,013 | 4,279,104 | ||||||
| Loss from Operations | (4,711,238 | ) | (3,908,238 | ) | ||||
| OTHER INCOME (EXPENSE) | ||||||||
| Other income | 16,521 | 32,980 | ||||||
| Impairment expense | (133,879 | ) | - | |||||
| Unrealized gain(loss) on investment securities | (1,600 | ) | (13,200 | ) | ||||
| Gain (Loss) on settlement of payable | - | 28,428 | ||||||
| Amortization of finance fees and cost | - | (147,924 | ) | |||||
| Loss on settlement of convertible notes | - | (348,307 | ) | |||||
| Loss on conversion of debt | - | (102,527 | ) | |||||
| Gain (Loss) on net change in derivative liability and conversion of debt | 19,359,866 | (22,280,266 | ) | |||||
| Interest expense | (1,268,305 | ) | (734,624 | ) | ||||
| TOTAL OTHER INCOME (EXPENSE) | 17,972,603 | (23,565,440 | ) | |||||
| NET INCOME (LOSS) | $ | 13,261,365 | $ | (27,473,678 | ) | |||
| BASIC EARNINGS (LOSS) PER SHARE ATTRIBUTABLE TO SHAREHOLDERS’ | $ | 0.64 | $ | (12.66 | ) | |||
| DILUTED EARNINGS (LOSS) PER SHARE ATTRIBUTABLE TO SHAREHOLDERS’ | $ | 0.04 | $ | (12.66 | ) | |||
| WEIGHTED-AVERAGE COMMON SHARES OUTSTANDING, | ||||||||
| BASIC | 20,651,668 | 2,170,270 | ||||||
| DILUTED | 312,352,351 | 2,170,270 | ||||||
The accompanying notes are an integral part of these consolidated financial statements
F-3
ORIGINCLEAR,
INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ DEFICIT
FOR THE YEARS ENDED DECEMBER 31, 2020 AND 2019
| YEARS ENDED DECEMBER 31, 2020 AND 2019 | ||||||||||||||||||||||||||||||||||||||||
| Accumulated | ||||||||||||||||||||||||||||||||||||||||
| Preferred stock | Common stock | Additional Paid-in- |
Subscription | Other Comprehensive | Accumulated | Mezzanine | ||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Capital | Payable | loss | Deficit | Total | Equity | |||||||||||||||||||||||||||||||
| Balance at December 31, 2018 | 40,640,649 | $ | 4,064 | 875,244 | $ | 88 | $ | 63,179,433 | $ | - | $ | (134 | ) | $ | (79,807,981 | ) | $ | (16,624,530 | ) | |||||||||||||||||||||
| Reclassification of equity to mezzanine | - | - | - | - | (2,204,025) | - | - | - | (2,204,025) | 2,204,025 | ||||||||||||||||||||||||||||||
| Common stock issuance for conversion of debt and accrued interest | - | - | 2,647,017 | 265 | 729,001 | - | - | - | 729,266 | |||||||||||||||||||||||||||||||
| Common stock issued at fair value for services | - | - | 1,070,855 | 107 | 706,155 | - | - | - | 706,262 | |||||||||||||||||||||||||||||||
| Common stock issued through a private placement for purchase of Series G Preferred stock | - | - | 82,799 | 8 | (8 | ) | - | - | - | - | ||||||||||||||||||||||||||||||
| Series J preferred stock converted into common stock | - | - | 171,176 | 17 | (17 | ) | - | - | - | - | ||||||||||||||||||||||||||||||
| Issuance of Series M Preferred stock in exchange for convertible note | - | 3 | - | - | 171,257 | - | - | - | 171,260 | |||||||||||||||||||||||||||||||
| Cumulative preferred stock dividend | - | - | - | - | 27,017 | - | - | - | 27,017 | |||||||||||||||||||||||||||||||
| Common stock reverse split share adjustment | - | - | 7,902 | 1 | (1 | ) | - | - | - | - | ||||||||||||||||||||||||||||||
| Loss on conversion of debt | - | - | - | - | 102,527 | - | - | - | 102,527 | |||||||||||||||||||||||||||||||
| Net loss | - | - | - | - | - | - | - | (27,473,678 | ) | (27,473,678 | ) | |||||||||||||||||||||||||||||
| Balance at December 31, 2019 | 40,640,649 | 4,067 | 4,854,993 | 486 | 62,711,339 | - | (134 | ) | (107,281,659 | ) | (44,565,901 | ) | $ | 2,204,025 | ||||||||||||||||||||||||||
| Rounding | (3) | (1 | ) | (1) | - | - | - | (5) | - | |||||||||||||||||||||||||||||||
| Common stock issuance for conversion of debt and accrued interest | - | - | 19,276,917 | 1,928 | 390,922 | - | - | - | 392,850 | - | ||||||||||||||||||||||||||||||
| Common stock issued at fair value for services | - | - | 7,750,037 | 774 | 414,262 | - | - | - | 415,036 | - | ||||||||||||||||||||||||||||||
| Common stock issued for conversion of Series D-1 Preferred stock | (6,000,000 | ) | (600 | ) | 295,141 | 30 | 24,348 | - | - | - | 23,778 | - | ||||||||||||||||||||||||||||
| Common stock issued for conversion of Series E Preferred stock | (602,436 | ) | (60 | ) | 30,124 | 3 | 57 | - | - | - | - | - | ||||||||||||||||||||||||||||
| Common stock issued for conversion of Series J Preferred stock | - | - | 2,313,689 | 231 | 75,969 | - | - | - | 76,200 | (76,200 | ) | |||||||||||||||||||||||||||||
| Common stock issued for conversion of Series L Preferred stock | - | 18,486,913 | 1,849 | 446,276 | - | - | - | 448,125 | (448,125 | ) | ||||||||||||||||||||||||||||||
| Common stock issued for conversion of Series M Preferred stock | - | - | 137,052 | 14 | 7,986 | - | - | 8,000 | (8,000 | ) | ||||||||||||||||||||||||||||||
| Common stock issued for Series O Preferred stock dividends | - | - | 688,205 | 69 | (69 | ) | - | - | - | - | 1,670,000 | |||||||||||||||||||||||||||||
| Common stock issued for conversion of Series P Preferred stock | - | - | 8,079,477 | 808 | 141,442 | - | - | - | 142,250 | (142,250 | ) | |||||||||||||||||||||||||||||
| Common stock issued for conversion of Series Q Preferred stock | - | - | 3,140,140 | 314 | 52,686 | - | - | - | 53,000 | (53,000 | ) | |||||||||||||||||||||||||||||
| Issuance of Series M Preferred stock through a private placement | - | - | - | - | - | - | - | - | - | 213,300 | ||||||||||||||||||||||||||||||
| Issuance of Series K preferred stock with issuance of Series L through a private placement | - | - | - | - | - | - | - | - | - | 580,000 | ||||||||||||||||||||||||||||||
| Issuance of Series P preferred stock with issuance of Series O through a private placement | - | - | - | - | - | - | - | - | - | 417,500 | ||||||||||||||||||||||||||||||
| Issuance of Series R preferred stock through a private placement | - | - | - | - | - | - | - | - | - | 490,000 | ||||||||||||||||||||||||||||||
| Exchange of Series F Preferred Stock for Series Q Preferred stock | - | - | - | - | - | - | - | - | - | 1,278,000 | ||||||||||||||||||||||||||||||
| Exchange of Series F Preferred Stock for Series O/P Preferred stock | - | - | - | - | - | - | - | - | - | 206,159 | ||||||||||||||||||||||||||||||
| Subscription payable - common stock | - | - | - | - | - | 100,000 | - | - | 100,000 | - | ||||||||||||||||||||||||||||||
| Comprehensive gain | - | - | - | - | - | 2 | - | 2 | - | |||||||||||||||||||||||||||||||
| Net Income | - | - | - | - | - | - | 13,261,365 | 13,261,365 | - | |||||||||||||||||||||||||||||||
| Balance at December 31, 2020 | 34,038,213 | $ | 3,404 | 65,052,688 | $ | 6,505 | $ | 64,265,217 | $ | 100,000 | $ | (132 | ) | $ | (94,020,294 | ) | $ | (29,645,300 | ) | 6,331,409 | ||||||||||||||||||||
The accompany notes are an integral part of these consolidated financial statements
F-4
ORIGINCLEAR,
INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 2020 AND 2019
| Years Ended | ||||||||
| December 31, 2020 | December 31, 2019 | |||||||
| CASH FLOWS FROM OPERATING ACTIVITIES: | ||||||||
| Net Income (loss) | $ | 13,261,365 | $ | (27,473,678 | ) | |||
| Adjustment to reconcile net loss to net cash used in operating activities | ||||||||
| Depreciation | 52,247 | 43,369 | ||||||
| Interest expense associated with preferred stock issuance | 1,078,659 | - | ||||||
| Preferred stock issued for services | 23,778 | - | ||||||
| Common stock issued for services | 415,036 | 706,262 | ||||||
| (Gain) Loss on net change in valuation of derivative liability | (19,359,866 | ) | 22,280,266 | |||||
| Loss on conversion of preferred stock | - | 102,527 | ||||||
| Loss on settlement of debt | - | 348,307 | ||||||
| Debt discount amortization | 11,774 | 146,005 | ||||||
| Accrued interest on note receivable | - | (32,979 | ) | |||||
| Net unrealized (gain)loss on fair value of security | 1,600 | 13,200 | ||||||
| Interest receivable on convertible note receivable | (16,000 | ) | - | |||||
| Impairment expense for convertible note receivable | 133,879 | - | ||||||
| Amortization of financing fees and cost | - | 165,552 | ||||||
| Gain on settlement of payable | - | (28,428 | ) | |||||
| Change in Assets (Increase) Decrease in: | ||||||||
| Contracts receivable | 84,481 | (213,688 | ) | |||||
| Contract asset | (122,447 | ) | 84,714 | |||||
| Prepaid expenses and other assets | (1,745 | ) | 12,837 | |||||
| Other receivable | (1,299 | ) | (2,500 | ) | ||||
| Change in Liabilities Increase (Decrease) in: | ||||||||
| Accounts payable | 82,758 | 167,821 | ||||||
| Accrued expenses | 457,352 | 127,928 | ||||||
| Contract liabilities | (87,458 | ) | 315,115 | |||||
| Customer deposit | 9,688 | 16,077 | ||||||
| NET CASH USED IN OPERATING ACTIVITIES | (3,976,198 | ) | (3,221,293 | ) | ||||
| CASH FLOWS USED FROM INVESTING ACTIVITIES: | ||||||||
| Purchase of fixed assets | (13,884 | ) | (6,188 | ) | ||||
| CASH USED IN INVESTING ACTIVITIES | (13,884 | ) | (6,188 | ) | ||||
| CASH FLOWS FROM FINANCING ACTIVITIES: | ||||||||
| Payments on capital lease | (9,088 | ) | (9,845 | ) | ||||
| Loan payable financing, net | (84,318 | ) | (184,625 | ) | ||||
| Loan payable, related party, net | (92,170 | ) | - | |||||
| Loan payable, PPP | 505,000 | - | ||||||
| Net cumulative preferred stock dividends payable | 163,802 | 40,371 | ||||||
| Payment on redemption of preferred stock | - | (65,000 | ) | |||||
| Net proceeds for issuance of convertible notes | (704 | ) | - | |||||
| Net proceeds for issuance of preferred stock for cash - equity | 2,373,300 | - | ||||||
| Net proceeds for issuance of preferred stock for cash - liability | 1,059,767 | 3,328,050 | ||||||
| NET CASH PROVIDED BY FINANCING ACTIVITIES | 3,915,589 | 3,108,951 | ||||||
| NET (DECREASE) INCREASE IN CASH | (74,493 | ) | (118,530 | ) | ||||
| CASH BEGINNING OF YEAR | 490,614 | 609,144 | ||||||
| CASH END OF YEAR | $ | 416,121 | $ | 490,614 | ||||
| SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION | ||||||||
| Interest paid | $ | 23,186 | $ | 59,528 | ||||
| Taxes paid | $ | - | $ | - | ||||
| SUPPLEMENTAL DISCLOSURES OF NON CASH TRANSACTIONS | ||||||||
| Common stock issued at fair value for conversion of debt, plus accrued interest, and other fees | $ | 392,850 | $ | 729,266 | ||||
| Other payable for fixed asset with common stock subscription | $ | 179,500 | $ | - | ||||
| Issuance of Series O dividends | $ | 69 | $ | - | ||||
| Issuance of Series M for debt settlement | $ | - | $ | 171,260 | ||||
| Preferred stock converted to common stock | $ | 727,635 | $ | 17 | ||||
| Stock issued through private placement | $ | - | $ | 8 | ||||
The accompanying notes are an integral part of these consolidated financial statements
F-5
ORIGINCLEAR, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - AUDITED
DECEMBER 31, 2020 AND 2019
| 1. | ORGANIZATION AND LINE OF BUSINESS |
Organization
OriginClear, Inc. (the “Company”) was incorporated in the state of Nevada on June 1, 2007. The Company, based in Los Angeles, California, began operations on June 1, 2007. The Company began its planned principal operations in December, 2010, at which time it exited the development stage.
In December 2014, the Company formed a wholly owned subsidiary, OriginClear Technologies Limited (OCT), formerly OriginClear (HK) Limited in Hong Kong, China. The Company granted OCT a master license for the People’s Republic of China. In turn, OCT is expected to license regional joint ventures for water treatment. As of December 31, 2020, OCT has limited assets and operations.
On October 1, 2015, the Company completed the acquisition of 100% of the total issued and outstanding stock of Progressive Water Treatment, Inc. (“PWT”) and is included in these consolidated financial statements as a wholly owned subsidiary.
On July 19, 2018, the Company announced the launch of its Modular Water Treatment Division. MWS designs, manufactures and implements advanced prepackaged wastewater treatment, pump stations and custom systems with primary focus on decentralized opportunities away from the very competitive large municipal wastewater treatment plants. These decentralized opportunities include: rural communities, housing developments, industrial sites, schools and many more.
On April 13, 2021, OriginClear announced that it had created a wholly-owned subsidiary called Water On Demand #1, Inc. (WOD #1), to offer private businesses the ability to pay for their water treatment and purification services on a pay-per-gallon basis. The Company is in the process of selecting a use case for delivering such services, commonly-known as Design-Build-Own-Operate or DBOO. The program cannot move forward without capital invested into WOD #1.
On May 10, 2021, OriginClear announced that it had recently filed “System And Method For Water Treatment Incentive”, a patent application for using blockchain technology and non-fungible tokens (NFT) to simplify the distribution of payments on outsourced water treatment and purification services billed on a pay-per-gallon basis ahead of inflation. The Company is currently developing this blockchain technology and NFT under the name $H2O, and applied for a trademark for this name on May 16, 2021. The Company is aware of a high level of regulatory oversight in this area, and if implementation of $H20 is delayed or terminated altogether by reason of regulatory issues, it will employ traditional payment systems.
Line of Business
OriginClear is a provider of water treatment solutions and master licensee of a breakthrough water equipment technology. This technology enables the Company to offer prefabricated, modular water systems, which are suited for local businesses. The Company also plans to deploy this technology for outsourced water treatment programs in which the customer pays by the gallon, without capital expenditure. Blockchain technology may be employed to streamline payments. Through the acquisition of Progressive Water Treatment Inc., the Company is primarily engaged in providing water treatment systems and services for a wide variety of applications and component sales.
Going Concern
The accompanying financial statements have been prepared on a going concern basis of accounting, which contemplates continuity of operations, realization of assets and liabilities and commitments in the normal course of business. The accompanying financial statements do not reflect any adjustments that might result if the Company is unable to continue as a going concern. These factors, among others raise substantial doubt about the Company’s ability to continue as a going concern. Our independent auditors, in their report on our audited financial statements for the year ended December 31, 2020 expressed substantial doubt about our ability to continue as a going concern.
The ability of the Company to continue as a going concern and appropriateness of using the going concern basis is dependent upon, among other things, achieving a level of profitable operations and receiving additional cash infusions. During the year ended December 31, 2020, the Company obtained funds from the issuance of convertible note agreements and from sales of its preferred stock. Management believes this funding will continue from its’ current investors and from new investors. The Company also generated revenue of $4,101,131 and has standing purchase orders and open invoices with customers which will provide funds for operations. Management believes the existing shareholders, the prospective new investors and future sales will provide the additional cash needed to meet the Company’s obligations as they become due and will allow the development of its core business operations. No assurance can be given that any future financing will be available or, if available, that it will be on terms that are satisfactory to the Company. Even if the Company is able to obtain additional financing, it may contain restrictions on our operations, in the case of debt financing or cause substantial dilution for our stockholders, in case of equity financing.
Reverse Stock Split
On October 25, 2019, the Company effected a one-for-two thousand (1 for 2,000) reverse stock split of its common stock (the “Reverse Split”). All shares, options, warrants and per share information throughout these consolidated financial statements have been retroactively restated to reflect the Reverse Split.
F-6
| 2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICES |
This summary of significant accounting policies of the Company is presented to assist in understanding the Company’s financial statements. The financial statements and notes are representations of the Company’s management, which is responsible for their integrity and objectivity. These accounting policies conform to accounting principles generally accepted in the United States of America and have been consistently applied in the preparation of the financial statements.
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of OriginClear, Inc. and its wholly owned operating subsidiaries, Progressive Water Treatment, Inc., and OriginClear Technologies, Ltd. All material intercompany transactions have been eliminated upon consolidation of these entities.
Cash and Cash Equivalent
The Company considers all highly liquid investments with an original maturity of three months or less to be cash equivalents.
Concentration Risk
Cash includes amounts deposited in financial institutions in excess of insurable Federal Deposit Insurance Company (FDIC) limits. At times throughout the year, the Company may maintain cash balances in certain bank accounts in excess of FDIC limits. As of December 31, 2020, the cash balance in excess of the FDIC limits was $159,591. The Company has not experienced any losses in such accounts and believes it is not exposed to any significant credit risk in these accounts.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant estimates include estimates used to review the Company’s impairments and estimations of long-lived assets, revenue recognition on percentage of completion type contracts, allowances for uncollectible accounts, warranty reserves, inventory valuation, derivative liabilities and other conversion features, fair value investments, valuations of non-cash capital stock issuances and the valuation allowance on deferred tax assets. The Company bases its estimates on historical experience and on various other assumptions that are believed to be reasonable in the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.
Net Earnings (Loss) per Share Calculations
Basic loss per share calculations are computed by dividing income (loss) available to common shareholders by the weighted-average number of common shares available. Diluted earnings per share is computed similar to basic earnings per share except that the denominator is increased to include securities or other contracts to issue common stock that would have been outstanding if the potential common shares had been issued and if the additional common shares were dilutive. The Company’s diluted loss per share is the same as the basic loss per share for the years ended December 31, 2020 and 2019, respectively, as the inclusion of any potential shares would have had an anti-dilutive effect due to the Company generating a loss.
| For the Years Ended | ||||||||
| 2020 | 2019 | |||||||
| Income (Loss) to common shareholders (Numerator) | $ | 13,261,365 | $ | (27,473,678 | ) | |||
| Basic weighted average number of common shares outstanding (Denominator) | 20,651,668 | 2,170,270 | ||||||
| Diluted weighted average number of common shares outstanding (Denominator) | 312,352,351 | 2,170,270 | ||||||
F-7
Year ended December 31, 2020
The Company has included 15,800,000 warrants to purchase common shares, shares issuable from convertible debt of $3,100,503 and shares issuable from convertible preferred stock for the year ended December 31, 2020, because their impact on the earnings per share is dilutive.
Year ended December 31, 2019
The Company has excluded 122,044 warrants, shares issuable from convertible debt of $3,432,300 and shares issuable from convertible preferred stock for the year ended December 31, 2019, because their impact on the loss per share is anti-dilutive.
Revenue Recognition
We recognize revenue when services are performed, and at the time of shipment of products, provided that evidence of an arrangement exists, title and risk of loss have passed to the customer, fees are fixed or determinable, and collection of the related receivable is reasonably assured.
Revenues and related costs on construction contracts are recognized as the performance obligations for work are satisfied over time in accordance with Accounting Standards Codification (“ASC”) 606, Revenue from Contracts with Customers. Under ASC 606, revenue and associated profit, will be recognized as the customer obtains control of the goods and services promised in the contract (i.e., performance obligations). All un-allocable indirect costs and corporate general and administrative costs are charged to the periods as incurred. However, in the event a loss on a contract is foreseen, the Company will recognize the loss as it is determined.
Revisions in cost and profit estimates during the course of the contract are reflected in the accounting period in which the facts for the revisions become known. Provisions for estimated losses on uncompleted contracts are made in the period in which such losses are determined. Changes in job performance, job conditions, and estimated profitability, including those arising from contract penalty provisions, and final contract settlements, may result in revisions to costs and income, which are recognized in the period the revisions are determined.
Contract receivables are recorded on contracts for amounts currently due based upon progress billings, as well as retention, which are collectible upon completion of the contracts. Accounts payable to material suppliers and subcontractors are recorded for amounts currently due based upon work completed or materials received, as are retention due subcontractors, which are payable upon completion of the contract. General and administrative expenses are charged to operations as incurred and are not allocated to contract costs.
Contract Receivable
The Company bills its customers in accordance with contractual agreements. The agreements generally require billing to be on a progressive basis as work is completed. Credit is extended based on evaluation of clients financial condition and collateral is not required. The Company maintains an allowance for doubtful accounts for estimated losses that may arise if any customer is unable to make required payments. Management performs a quantitative and qualitative review of the receivables past due from customers on a monthly basis. The Company records an allowance against uncollectible items for each customer after all reasonable means of collection have been exhausted, and the potential for recovery is considered remote. The allowance for doubtful accounts were $0 and $0 as of December 31, 2020 and 2019, respectively. The net contract receivable balance was $438,430 and $522,911 at December 31, 2020 and 2019, respectively.
Indefinite Lived Intangibles and Goodwill Assets
The Company accounts for business combinations under the acquisition method of accounting in accordance with ASC 805, “Business Combinations,” where the total purchase price is allocated to the tangible and identified intangible assets acquired and liabilities assumed based on their estimated fair values. The purchase price is allocated using the information currently available, and may be adjusted, up to one year from acquisition date, after obtaining more information regarding, among other things, asset valuations, liabilities assumed and revisions to preliminary estimates. The purchase price in excess of the fair value of the tangible and identified intangible assets acquired less liabilities assumed is recognized as goodwill.
F-8
The Company tests for indefinite lived intangibles and goodwill impairment in the fourth quarter of each year and whenever events or circumstances indicate that the carrying amount of the asset exceeds its fair value and may not be recoverable. In accordance with its policies, the Company performed a qualitative assessment of indefinite lived intangibles and goodwill at December 31, 2020 and 2019, and determined there was no impairment of indefinite lived intangibles and goodwill.
Research and Development
Research and development costs are expensed as incurred. Total research and development costs were $110,338 and $107,351 for the years ended December 31, 2020 and 2019, respectively.
Advertising Costs
The Company expenses the cost of advertising and promotional materials when incurred. The advertising costs were $211,296 and $48,594 for the years ended December 31, 2020 and 2019, respectively.
Property and Equipment
Property and equipment are stated at cost. Gain or loss is recognized upon disposal of property and equipment, and the asset and related accumulated depreciation are removed from the accounts. Expenditures for maintenance and repairs are charged to expense as incurred, while expenditures for addition and betterment are capitalized. Furniture and equipment are depreciated on the straight-line method and include the following categories:
| Estimated Life | ||||
| Machinery and equipment | 5-10 years | |||
| Furniture, fixtures and computer equipment | 5-7 years | |||
| Vehicles | 3-5 years | |||
| Leasehold improvements | 2-5 years |
| December 31, | ||||||||
| 2020 | 2019 | |||||||
| Machinery and Equipment | $ | 383,569 | $ | 193,570 | ||||
| Computer Equipment | 62,854 | 59,468 | ||||||
| Furniture | 29,810 | 29,810 | ||||||
| Leasehold Improvements | 26,725 | 26,725 | ||||||
| Vehicles | 64,276 | 64,276 | ||||||
| Demo Units | 36,139 | 36,139 | ||||||
| 603,373 | 409,988 | |||||||
| Less accumulated depreciation | (345,167 | ) | (292,919 | ) | ||||
| Net Property and Equipment | $ | 258,206 | $ | 117,069 | ||||
Long-lived assets held and used by the Company are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. In the event that facts and circumstances indicate that the cost of any long-lived assets may be impaired, an evaluation of recoverability would be performed following generally accepted accounting principles.
Depreciation expense during the year ended December 31, 2020 and 2019, was $52,247 and $43,369, respectively.
F-9
Stock-Based Compensation
The Company periodically issues stock options and warrants to employees and non-employees in non-capital raising transactions for services and for financing costs. The Company accounts for stock option and warrant grants issued and vesting to employees based on the authoritative guidance provided by the Financial Accounting Standards Board whereas the value of the award is measured on the date of grant and recognized over the vesting period. The Company accounts for stock option and warrant grants issued and vesting to non-employees in accordance with the authoritative guidance of the Financial Accounting Standards Board whereas the value of the stock compensation is based upon the measurement date as determined at either a) the date at which a performance commitment is reached, or b) at the date at which the necessary performance to earn the equity instruments is complete. Non-employee stock-based compensation charges generally are amortized over the vesting period on a straight-line basis. In certain circumstances where there are no future performance requirements by the non-employee, option grants are immediately vested and the total stock-based compensation charge is recorded in the period of the measurement date.
Accounting for Derivatives
The Company evaluates all of its financial instruments to determine if such instruments are derivatives or contain features that qualify as embedded derivatives. For derivative financial instruments that are accounted for as liabilities, the derivative instrument is initially recorded at its fair value and is then re-valued at each reporting date, with changes in the fair value reported in the statements of operations. For stock-based derivative financial instruments, the Company uses a probability weighted average series Binomial lattice option pricing models to value the derivative instruments at inception and on subsequent valuation dates.
The classification of derivative instruments, including whether such instruments should be recorded as liabilities or as equity, is evaluated at the end of each reporting period. Derivative instrument liabilities are classified in the balance sheet as current or non-current based on whether or not net-cash settlement of the derivative instrument could be required within 12 months of the balance sheet date.
Fair Value of Financial Instruments
Fair Value of Financial Instruments, requires disclosure of the fair value information, whether or not recognized in the balance sheet, where it is practicable to estimate that value. As of December 31, 2020, the balances reported for cash, contract receivables, cost in excess of billing, prepaid expenses, accounts payable, billing in excess of cost, and accrued expenses approximate the fair value because of their short maturities.
We adopted ASC Topic 820 for financial instruments measured as fair value on a recurring basis. ASC Topic 820 defines fair value, established a framework for measuring fair value in accordance with accounting principles generally accepted in the United States and expands disclosures about fair value measurements.
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. ASC Topic 820 established a three-tier fair value hierarchy which prioritizes the inputs used in measuring fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (level 1 measurements) and the lowest priority to unobservable inputs (level 3 measurements). These tiers include:
| ● | Level 1, defined as observable inputs such as quoted prices for identical instruments in active markets; | |
| ● | Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable such as quoted prices for similar instruments in active markets or quoted prices for identical or similar instruments in markets that are not active; and | |
| ● | Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions, such as valuations derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable. |
F-10
The following table presents certain investments and liabilities of the Company’s financial assets measured and recorded at fair value on the Company’s balance sheets on a recurring basis and their level within the fair value hierarchy as of December 31, 2020 and 2019.
| Total | (Level 1) | (Level 2) | (Level 3) | |||||||||||||
| Investment at fair value-securities, December 31, 2020 | $ | 8,000 | $ | 8,000 | $ | - | $ | - | ||||||||
| Investment at fair value-securities, December 31, 2019 | $ | 9,600 | $ | 9,600 | $ | - | $ | - | ||||||||
| Total | (Level 1) | (Level 2) | (Level 3) | |||||||||||||
| Derivative Liability, December 31, 2020 | $ | 12,310,307 | $ | - | $ | - | $ | 12,310,307 | ||||||||
| Derivative Liability, December 31, 2019 | $ | 31,640,470 | $ | - | $ | - | $ | 31,640,470 | ||||||||
The following is a reconciliation of the derivative liability for which level 3 inputs were used in determining the approximate fair value:
| Balance as of January 1, 2019 | $ | 9,360,204 | ||
| Loss on conversion of debt and change in derivative liability | 22,280,266 | |||
| Balance as of December 31, 2019 | 31,640,470 | |||
| Fair Value of derivative liabilities issued | 29,703 | |||
| Loss on conversion of debt and change in derivative liability | (19,359,866 | ) | ||
| Balance as of December 31, 2020 | $ | 12,310,307 |
For purpose of determining the fair market value of the derivative liability, the Company used Binomial lattice formula valuation model. The significant assumptions used in the Binomial lattice formula valuation of the derivative are as follows:
| 12/31/2020 | 12/31/2019 | |||||
| Risk free interest rate | 0.08% - 0.13 % | 1.48% - 1.69% | ||||
| Stock volatility factor | 127.0% - 249.0 % | 116.0% - 338.0% | ||||
| Weighted average expected option life | 6 months - 5 years | 6 months - 5 years | ||||
| Expected dividend yield | None | None |
Segment Reporting
The Company’s business currently operates in one segment based upon the Company’s organizational structure and the way in which the operations are managed and evaluated.
Marketable Securities
The Company adopted ASU 2016-01, “Financial Instruments – Recognition and Measurement of Financial Assets and Financial Liabilities.” ASU 2016-01 requires investments (except those accounted for under the equity method of accounting, or those that result in consolidation of the investee) to be measured at fair value with changes in fair value recognized in net income. It requires public business entities to use the exit price notion when measuring the fair value of financial instruments for disclosure purpose, and separate presentation of financial assets and financial liabilities by measurement category and form of financial asset. It eliminates the requirement for public business entities to disclose the method(s) and significant assumptions used to estimate the fair value that is required to be disclosed for financial instruments measured at amortized cost. The Company has evaluated the potential impact this standard may have on the condensed consolidated financial statements and determined that it had a significant impact on the condensed consolidated financial statements. The Company accounts for its investment in Water Technologies International, Inc. as available-for-sale securities, and the unrealized gain on the available-for-sale securities is recognized in net income.
F-11
Licensing agreement
The Company analyzed the licensing agreement using ASU 606 to determine the timing of revenue recognition. The licensing of the intellectual property (IP) is distinct from the non-license goods or services and has significant standalone functionality that provides a benefit or value. The functionality will not change during the license period due to the licensor’s activities. Because the significant standalone functionality is delivered immediately, the revenue is generally recognized when the license is delivered.
Reclassification
Certain
prior period accounts and balances have been reclassified to current period presentation for comparative purposes.
Recently Issued Accounting Pronouncements
In February 2016, the FASB established ASC Topic 842, Leases (Topic 842), by issuing ASU No. 2016-02, which requires lessees to recognize leases on-balance sheet and disclose key information about leasing arrangements. Topic 842 was subsequently amended by ASU No. 2018-01, Land Easement Practical Expedient for Transition to Topic 842; ASU No. 2018-10, Codification Improvements to Topic 842, Leases; and ASU No. 2018-11, Targeted Improvements. The new standard establishes a right-of-use (ROU) model that requires a lessee to recognize a ROU asset and lease liability on the balance sheet. Leases will be classified as finance or operating, with classification affecting the pattern and classification of expense recognition in the statement of operations. The Company adopted the new standard on January 1, 2019.
The new standard provides a number of optional practical expedients in transition. The Company has elected the ‘package of practical expedients’, which permit it not to reassess under the new standard its prior conclusions about lease identification, lease classification and initial direct costs. The Company did not elect the use-of-hindsight or the practical expedient pertaining to land easements; the latter is not applicable to the Company.
The new standard did not have a material impact on the Company’s audited consolidated financial statements.
In August 2017, FASB issued accounting standards update ASU-2017-12, “D” (Topic 815) – “Targeted Improvements to Accounting for Hedging Activities”, to require an entity to present the earnings effect of the hedging instrument in the same statement line item in which the earnings effect of the hedged item is reported. The amendments in this update are effective for fiscal years beginning after December 15, 2018, and interim periods within those fiscal years. For all other entities, the amendments are effective for fiscal years beginning after December 15, 2019, and interim periods with the fiscal years beginning after December 15, 2020. Early adoption is permitted in any interim period after issuance of the update. The Company has evaluated the impact of the adoption of ASU 2017-12 on the Company’s audited consolidated financial statements, which had no material impact.
In June 2018, FASB issued accounting standards update ASU 2018-07, (Topic 505) – “Shared-Based Payment Arrangements with Nonemployees”, which simplifies the accounting for share-based payments granted to nonemployees for goods and services. Under the ASU, most of the guidance on such payments to nonemployees will be aligned with the requirements for share-based payments granted to employees. Under the ASU 2018-07, the measurement of equity-classified nonemployee share-based payments will be fixed on the grant date, as defined in ASC 718, and will use the term nonemployee vesting period, rather than requisite service period. The amendments in this update are effective for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. For all other entities, the amendments are effective for fiscal years beginning after December 15, 2019, and interim periods within fiscal years beginning after December 15, 2020. Early adoption is permitted if financial statements have not yet been issued. The Company adopted ASU 2018-07 on the January 1, 2019. The adoption of the new standard did not have a material impact on the Company’s audited consolidated financial statements.
Management reviewed currently issued pronouncements and does not believe that any other recently issued, but not yet effective, accounting standards, if currently adopted, would have a material effect on the accompanying condensed financial statements.
F-12
| 3. | CAPITAL STOCK |
Preferred Stock
Series C
On March 14, 2017, the Board of Directors authorized the issuance of 1,000 shares of Series C preferred stock, par value $0.0001 per share, to T. Riggs Eckelberry in exchange for his continued employment with the Company. The holder of Series C preferred stock is not entitled to receive dividends, is not entitled to any liquidation preference and shares of Series C preferred stock does not have any conversion rights. The Series C Preferred Stock entitles the holder to 51% of the total voting power of our stockholders. The purchase price of the Series C preferred stock was $0.0001 per share representing a total purchase price of $0.10 for 1,000 shares. As of December 31, 2020, there were 1,000 shares of Series C preferred stock outstanding held by Mr. Eckelberry.
Series D-1
On April 13, 2018, the Company designated 50,000,000 shares of its authorized preferred stock as Series D-1 preferred stock. The shares of Series D-1 preferred stock are not entitled to dividends and do not have a liquidation preference. Each share of Series D-1 preferred stock is convertible into 0.0005 of one share of common stock. The Series D-1 preferred stock may not be converted to common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of our outstanding common stock, which amount may be increased to 9.99% at the holders discretion upon 61 days’ written notice. During the year ended December 31, 2020, the Company issued 295,141 shares of common stock upon conversion of 6,000,000 shares of Series D-1 preferred stock with a value of $23,778 using the closing stock price on grant date. The Company did not recognize any gain or loss on conversion, as the shares were converted within the terms of the agreement. As of December 31, 2020, there were 32,500,000 shares of Series D-1 preferred stock issued and outstanding.
Series E
On August 14, 2018, the Company designated 4,000,000 shares of its authorized preferred stock as Series E preferred stock. The shares of Series E preferred stock are not entitled to dividends and not have a liquidation preference. Each share of Series E preferred stock is convertible into 0.05 shares of common stock. The shares of Series E preferred stock do not carry any voting rights. The Series E preferred stock may not be converted to common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of our outstanding common stock which amount may be increased to 9.99% at the holders discretion. During the year ended December 31, 2020, the Company issued 30,124 shares of common stock upon conversion of 602,436 shares of Series E preferred stock. The Company did not recognize any gain or loss on conversion, as the shares were converted within the terms of the agreement. As of December 31, 2020, there were 1,537,213 shares of Series E preferred stock issued and outstanding.
Series F
On August 14, 2018, the Company designated 6,000 shares as Series F preferred stock. The shares of Series F preferred stock have a liquidation preference equal to the stated value of $1,000 per share plus any accrued but unpaid dividends. The Series F preferred stock is not convertible into common stock. The holders of outstanding shares of Series F preferred stock are entitled to quarterly dividends at the annual rate of 8% of the stated value, in preference to any dividends on the common stock. The shares of Series F preferred stock do not carry any voting rights. The Company may, in its sole discretion, at any time while the Series F preferred stock is outstanding, redeem all or any portion of the outstanding Series preferred stock at a price equal to the stated value, plus any accrued but unpaid dividends. The Company was required to redeem all outstanding shares of Series F preferred stock on September 1, 2020. During the year ended December 31, 2020, the Company exchanged 1,278 shares of Series F preferred stock for 1,278 shares of Series Q preferred stock. As of December 31, 2020, there were 275 shares of Series F preferred stock issued and outstanding. As of December 31, 2020, a holder of 100 of such outstanding shares of Series F preferred stock, agreed that the Company would have no obligation to redeem such holder’s shares of Series F preferred stock prior to September 1, 2022, and the Company agreed to pay such holder, in addition to any dividends payable on such holder’s Series F preferred stock, an annual fee of 4% of the stated value of such holder’s shares of Series F preferred stock. Excluding such 100 shares, as of December 31, 2020, the Company had 175 outstanding shares of Series F preferred stock which the Company was required to, and failed to redeem on September 1, 2020, and was in default for an aggregate redemption price (equal to the stated value) of $175,000.
F-13
Series G
On January 16, 2019, the Company designated 6,000 shares as Series G preferred stock, each share having a stated value of $1,000 per share and holders of Series G preferred stock are entitled to cumulative dividends at the annual rate of 8% of the stated value, payable quarterly. The Series G preferred stock does not have voting rights, except as required by law and is not convertible into common stock. The Company may, in its sole discretion, at any time while the Series G preferred stock is outstanding, redeem all or any portion of the outstanding Series G preferred stock at a price equal to the stated value plus any accrued but unpaid dividends. The Company is required to redeem such shares of Series G preferred stock on April 30, 2021, at a price equal to the stated value plus any accrued but unpaid dividends. Pursuant to certain subscription agreements entered into with purchasers of the Series G preferred stock, each purchaser received shares of the Company’s common stock equal to an amount of, for each share of Series G preferred stock purchased, five hundred dollars ($500) divided by the closing price on the date the Company receives the executed subscription documents and purchase price from such investor. Between January 16, 2019 and March 20, 2019, the Company entered into subscription agreements with certain accredited investors pursuant to which the Company sold an aggregate of 530 shares of the Company’s Series G preferred stock for an aggregate purchase price of $530,000, which is recognized as a long-term liability. As of December 31, 2019, the Company issued an aggregate of 82,799 shares of its common stock to certain holders of its Series G preferred stock. During the year ended December 31, 2020, 100 shares of Series G preferred stock were exchanged for Series K preferred stock. The shares were issued and exchanged within the terms of the agreement and no gain or loss was recognized. As of December 31, 2020, there were 430 shares of Series G preferred stock issued and outstanding.
Series I
On April 3, 2019, the Company designated 4,000 shares of preferred stock as Series I. The Series I has a stated value of $1,000 per share. Series I holders are entitled to cumulative dividends at the annual rate of 8% of the stated value, payable quarterly within 60 days from the end of each fiscal quarter. The Series I are not entitled to any voting rights except as may be required by applicable law, and are not convertible into common stock. The Company will have the right to redeem the Series I at any time while the Series I are outstanding at a price equal to the stated value plus any accrued but unpaid dividends. The Company will be required to redeem the Series I two years following the date that is the later of the (i) final closing of the tranche (as designated in the applicable subscription agreement) or (ii) the expiration date of the tranche that such shares to be redeemed were a part of. The Company is required to redeem such shares of Series I between May 2, 2021 and June 10, 2021, at a price equal to the stated value plus any accrued but unpaid dividends. The issuance of the shares were accounted for under ASC 480-10-25-4, which requires liability treatment for certain mandatorily redeemable financial instruments, and the cumulative dividends are recorded as interest expense. During the year ended December 31, 2019, the Company issued an aggregate of 797 shares of its Series I preferred stock for an aggregate purchase price of $797,400. As of December 31, 2020, there were 797 shares of Series I preferred stock issued and outstanding.
Series J
On April 3, 2019, the Company designated 100,000 shares of preferred stock as Series J. The Series J has a stated value of $1,000 per share and holders are entitled to receive dividends on an as-converted basis with the Company’s common stock. The Series J preferred stock is convertible into shares of the Company’s common stock, on the terms and conditions set forth in the Series J COD, which includes certain Make-Good Shares for certain prior investors. During the year ended December 31, 2020 and 2019, the Company issued 2,484,865 shares of common stock upon the conversion of 127 shares of Series J preferred stock. As of December 31, 2020, there were 273 shares of Series J preferred stock issued and outstanding.
Series K
On June 3, 2019, the Company designated 4,000 shares of preferred stock as Series K. The Series K has a stated value of $1,000 per share. Series K holders are entitled to cumulative dividends at the annual rate of 8% of the stated value, payable quarterly within 60 days from the end of each fiscal quarter. The Series K is not be entitled to any voting rights except as may be required by applicable law, and is not convertible into common stock. The Company will have the right to redeem the Series K at any time while the Series K are outstanding at a price equal to the stated value plus any accrued but unpaid dividends. The Company will be required to redeem the Series K two years following the date that is the later of the (i) final closing of the tranche (as designated in the applicable subscription agreement) or (ii) the expiration date of the tranche that such shares to be redeemed were a part of. The Company is required to redeem such shares of Series K between August 5, 2021 and April 24, 2022, at a price equal to the stated value plus any accrued but unpaid dividends. The issuance of the shares were accounted for under ASC 480-10-25-4, which requires liability treatment for certain mandatorily redeemable financial instruments, and the cumulative dividends are recorded as interest expense. During the year ended December 31, 2020, the Company issued an aggregate of 1,160 shares of Series K preferred stock for an aggregate purchase price of $1,159,767. As of December 31, 2020, there were 3,160 shares of Series K preferred stock issued and outstanding.
F-14
Series L
On June 3, 2019, the Company designated 100,000 shares of preferred stock as Series L. The Series L has a stated value of $1,000 per share and holders are entitled to receive dividends on an as-converted basis with the Company’s common stock. The Series L preferred stock is convertible into shares of the Company’s common stock, on the terms and conditions set forth in the Series L COD, which includes certain Make-Good Shares for certain prior investors. During the year ended December 31, 2020, the Company issued an aggregate of 580 shares of Series L preferred stock and issued an aggregate of 18,486,913 shares of common stock upon conversion of 450 shares of Series L preferred stock. As of December 31, 2020, there were 1,132 shares of Series L preferred stock issued and outstanding.
Series M
Pursuant to the Amended and Restated Certificate of Designation of Series M Preferred Stock filed with the Secretary of State of Nevada on July 1, 2020, the Company designated 800,000 shares of its preferred stock as Series M Preferred Stock. Each share of Series M Preferred Stock has a stated value of $25. The Series M Preferred Stock is not convertible into common stock. The holders of outstanding shares of Series M Preferred Stock are entitled to receive dividends, at the annual rate of 10%, payable monthly, payable in preference and priority to any payment of any dividend on the common stock. The Series M Preferred Stock is entitled to a liquidation preference in an amount equal to $25 per share plus any declared but unpaid dividends, before any payments to holders of common stock. The Series M Preferred Stock have no pre-emptive or subscription rights, and there are no sinking fund provisions applicable to the Series M Preferred Stock. The Series M Preferred Stock does not have voting rights, except as required by law and with respect to certain protective provisions set forth in the Certificate of Designation of Series M Preferred Stock. To the extent it may lawfully do so, the Company may, in its sole discretion, at any time when there are outstanding shares of Series M Preferred Stock, redeem any or all of the then outstanding shares of Series M Preferred Stock at a redemption price of $37.50 per share (150% of the stated value) plus any accrued but unpaid dividends. During the year ended December 31, 2020, prior to the terms of the Series M preferred stock being amended, holders of Series M preferred stock converted an aggregate of 320 Series M shares into an aggregate of 137,052 shares of the Company’s common stock. The Company did not recognize a gain or loss since the shares were converted within the terms of the agreement. During the year ended December 31, 2020, the Company issued an aggregate of 8,532 shares of Series M preferred stock for an aggregate purchase price of $213,300. As of December 31, 2020 there were 42,213 shares of Series M Preferred Stock issued and outstanding.
Pursuant to an exchange agreement, on December 11, 2019, the Company issued 34,200 shares of Series M Preferred Stock of the Company to a note holder in exchange for an outstanding convertible note of the Company in the amount of $171,260 (including accrued interest thereon). No gain or loss was recognized on the exchange of the note.
Series O
On April 27, 2020, the Company designated 2,000 shares of preferred stock as Series O Preferred Stock. The Series O Preferred Stock has a stated value of $1,000 per share, and entitles holders to receive cumulative dividends (i) in cash at an annual rate of 8% of the stated value, and (ii) in shares of common stock of the Company (valued based on the conversion price as in effect on the last trading day of the applicable fiscal quarter) at an annual rate of 4% of the stated value, payable quarterly within 60 days from the end of such fiscal quarter. The Series O Preferred Stock has a liquidation preference equal to the stated value plus any accrued but unpaid dividends, in preference to the common stock. The Series O Preferred Stock has no preemptive or subscription rights, and there is no sinking fund provision applicable to the Series O Preferred Stock. The Series O Preferred Stock does not have voting rights except as required by law. The Series O Preferred Stock is convertible into common stock of the Company in an amount determined by dividing 200% of the stated value of the Series O Preferred Stock being converted by the conversion price, provided that, the Series O may not be converted into common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of the Company’s outstanding common stock (which may be increased up to 9.99% upon 61 days’ written notice). The conversion price is equal to the average closing sale price of the common stock for the five trading days prior to the conversion date. The Company has the right (but no obligation) to redeem the Series O Preferred Stock at any time while the Series O Preferred Stock are outstanding at a redemption price equal to the stated value plus any accrued but unpaid dividends. The cumulative dividends are recorded as interest expense. During the year ended December 31, 2020, the Company issued an aggregate of 1,995 shares of Series O Preferred Stock for an aggregate purchase price of $1,775,000, plus a rollover from Series F in the amount of $125,000 and a rollover from Series Q in the amount of $200,000. As of December 31, 2020, there were 1,995 shares of Series O preferred stock issued and outstanding, the Company issued an aggregate of 688,205 shares of common stock in prorated 4% annualized dividends.
F-15
Series P
On April 27, 2020, the Company designated 500 shares of preferred stock as Series P Preferred Stock. The Series P Preferred Stock has a stated value of $1,000 per share, and entitles holders to receive dividends on an as-converted basis with the Company’s common stock. The Series P Preferred Stock is convertible into shares of the Company’s common stock, on the terms and conditions set forth in the Certificate of Designation of Series P Preferred Stock, which includes certain make-good shares for certain prior investors, and provided that, the Series P Preferred Stock may not be converted into common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of the Company’s outstanding common stock (which may be increased up to 9.99% upon 61 days’ written notice). The Series P Preferred Stock entitles the holders to a payment on an as-converted and pari passu basis with the common stock upon any liquidation. The Series P Preferred Stock has no preemptive or subscription rights, and there is no sinking fund or redemption provisions applicable to the Series P Preferred Stock. The Series P Preferred Stock votes on an as-converted basis with the common stock, subject to the beneficial ownership limitation. During the year ended December 31, 2020, the Company issued an aggregate of 417 shares of Series P Preferred Stock for proceeds of $417,500. Also, the Company received a rollover from Series F of 31 preferred stock and a rollover from Series Q of 50 shares of preferred stock for an increase of 81 shares of Series P Preferred Stock. During the year ended December 31, 2020, the Company issued 8,079,477 shares of common stock for conversion of 143 shares of Series P Preferred stock. As of December 31, 2020, there were 357 shares of Series P preferred stock issued and outstanding.
Series Q
On August 21, 2020, the Company designated 2,000 shares of preferred stock as Series Q Preferred Stock. The Series Q Preferred Stock has a stated value of $1,000 per share, and entitles holders to receive cumulative dividends in cash at an annual rate of 12% of the stated value, payable quarterly within 60 days from the end of such fiscal quarter. The Series Q Preferred Stock has a liquidation preference equal to the stated value plus any accrued but unpaid dividends, in preference to the common stock. The Series Q Preferred Stock has no preemptive or subscription rights, and there is no sinking fund provision applicable to the Series Q Preferred Stock. The Series Q Preferred Stock does not have voting rights except as required by law. The Series Q Preferred Stock is convertible into common stock of the Company in an amount determined by dividing 200% of the stated value of the Series Q Preferred Stock being converted by the conversion price, provided that, the Series Q may not be converted into common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of the Company’s outstanding common stock (which may be increased up to 9.99% upon 61 days’ written notice). The conversion price will be equal to the average closing sale price of the common stock for the five trading days prior to the conversion date. The Company will have the right (but no obligation) to redeem the Series Q Preferred Stock at any time while the Series Q Preferred Stock are outstanding at a redemption price equal to the stated value plus any accrued but unpaid dividends. The cumulative dividends are recorded as interest expense. During the year ended December 31, 2020, the Company issued an aggregate of 1,278 shares of Series Q Preferred Stock in exchange for 1,278 shares of Series F Preferred Stock. During the year ended December 31, 2020, 53 shares of Series Q preferred stock were converted into 3,140,140 shares of common stock. Also, there was a rollover from Series F preferred stock of 90 shares, plus a rollover from Series Q to Series O preferred stock for 200 shares. For the year ended December 31, 2020, the Company recognized a gain on conversion of Series Q preferred stock in the amount of $5,226. As of December 31, 2020, there were 1,025 shares of Series Q preferred stock issued and outstanding.
Series R
On November 16, 2020, the Company designated 5,000 shares of preferred stock as Series R Preferred Stock. The Series R has a stated value of $1,000 per share, and entitles holders to receive cumulative dividends in cash at an annual rate of 10% of the stated value, payable quarterly within 60 days from the end of such fiscal quarter. The Series R Preferred Stock holders are not entitled to any voting rights except as may be required by applicable law. The Series R Preferred Stock are convertible into common stock of the Company in an amount determined by dividing 200% of the stated value of the Series R being converted by the conversion price; certain prior investors will also be entitled to certain make-good shares; provided that, the Series R may not be converted into common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of the Company’s outstanding common stock (which may be increased up to 9.99% upon 61 days’ written notice). The conversion price will be equal to the average closing sale price of the common stock for the five trading days prior to the conversion date. The Company will have the right (but no obligation) to redeem the Series R at any time while the Series R are outstanding at a redemption price equal to, if paid in cash, the stated value plus any accrued but unpaid cash dividends, or, if paid in shares of common stock, in an amount of shares determined by dividing the stated value being redeemed by the conversion price. The subscribers were offered warrants with the purchase of Series R. During the year ended December 31, 2020, the Company issued an aggregate of 490 shares of Series R preferred stock for an aggregate purchase price of $490,000. As of December 31, 2020, there were 490 shares of Series R preferred stock along with 9,800,000 A warrants and 6,000,000 B warrants issued and outstanding with a fair value of $299,605. The warrants were valued using the Black Scholes model (see additional information under warrants footnote).
As of December 31, 2020, the Company accrued aggregate dividends in the amount of $256,274 for all series of preferred stock.
The Series J, Series L, Series M, Series O, Series P, Series Q and Series R preferred stock are accounted for outside of permanent equity due to the terms of conversion at a market component or stated value of the preferred stock.
F-16
Common Stock
On April 23, 2019, the Company filed a certificate of amendment to its articles of incorporation, with the Secretary of the State of Nevada effectuate an increase to the number of authorized shares of common stock of the Company from 8,000,000,000 shares from 16,000,000,000.
Year ended December 31, 2020
The Company issued 19,276,917 shares of common stock for the settlement of convertible promissory notes in an aggregate principal amount of $137,262, plus interest in the amount of $51,186, and a default settlement of $204,402, based upon conversion prices of $0.00955 to $0.0394.
The Company issued 7,750,037 shares of common stock for services at fair value of $415,036.
The Company issued 688,205 shares of common stock for preferred stock dividends payable.
The Company issued 32,482,536 shares of common stock upon conversion of 6,603,479 shares of preferred stock.
Year ended December 31, 2019
The Company issued 2,647,017 shares of common stock for the settlement of convertible promissory notes in an aggregate principal in the amount of $535,035, plus interest in the amount of $116,306, and a default settlement of $77,925, with an aggregate fair value loss on conversion of debt in the amount of $102,527, based upon conversion prices of $0.05 to $1.84.
The Company issued 1,070,855 shares of common stock for services at fair value of $706,262.
The Company issued 82,799 shares of common stock in a private placement as additional consideration for the purchase of Series G preferred stock.
The Company issued 171,176 shares of common stock upon conversion of 50 shares of Series J preferred stock.
| 4. | OPTIONS AND WARRANTS |
Restricted Stock to CEO
Between May 12, 2016, and August 14, 2019, the Company entered into Restricted Stock Grant Agreements (“the RSGAs”) with its Chief Executive Officer, Riggs Eckelberry, to create management incentives to improve the economic performance of the Company and to increase its value and stock price. All shares issuable under the RSGAs are performance based shares and none have yet vested nor have any been issued. The RSGAs provides for the issuance of up to an aggregate of 109,214 shares of the Company’s common stock to Mr. Eckelberry provided certain milestones are met in certain stages; a) If the Company’s consolidated gross revenue, calculated in accordance with generally accepted accounting principles, consistently applied, equals or exceeds $15,000,000 for the trailing twelve month period as reported in the Company’s quarterly or annual financial statements, the Company will issue up to an aggregate of 54,607 shares of its common stock; b) If the Company’s consolidated operating profit (Operating Profit = Operating Revenue - Cost of Goods Sold - Operating Expenses - Depreciation & Amortization), calculated in accordance with generally accepted accounting principles, equals or exceeds $1,500,000 for the trailing twelve month period as reported as reported in the Company’s SEC Reports, the Company will issue up to an aggregate of 54,607 shares of its common stock. The Company has not recognized any costs associated with the milestones, because achievement is not probable. As the performance goals are achieved, the shares shall become eligible for vesting and issuance.
F-17
Restricted Stock to Employees and Consultants
Between May 12, 2016, and August 14, 2019, the Company entered into Restricted Stock Grant Agreements (“the E&C RSGAs”) with its employees and consultants, to create management incentives to improve the economic performance of the Company and to increase its value and stock price. All shares issuable under the E&C RSGAs are performance based shares and none have yet vested nor have any been issued. The E&C RSGAs provide for the issuance of up to 378,750 shares of the Company’s common stock to employees and consultants provided certain milestones are met in certain stages; a) If the Company’s consolidated gross revenue, calculated in accordance with generally accepted accounting principles, consistently applied, equals or exceeds $15,000,000 for the trailing twelve month period as reported in the Company’s quarterly or annual financial statements, the Company will issue up to an aggregate of 189,375 shares of its common stock; b) If the Company’s consolidated operating profit Operating Profit = Operating Revenue - Cost of Goods Sold - Operating Expenses - Depreciation & Amortization), calculated in accordance with generally accepted accounting principles, equals or exceeds $1,500,000 for the trailing twelve month period as reported as reported in the Company’s SEC reports, the Company will issue up to an aggregate of 189,375 shares of its common stock. As of December 31, 2019, an aggregate of 30,250 shares issuable under the E&C RSGAs have been cancelled. The Company has not recognized any costs associated with the milestones, because achievement is not probable. As the performance goals are achieved, the shares shall become eligible for vesting and issuance.
On August 14, 2019, the Board of Directors approved an amendment to the RSGAs and E&C RSGAs to include an alternative vesting schedule for the Grantees. The Grantees can elect to participate in the alternate vesting schedule for grants received at least two years prior to the date requested. On the first day of each calendar month, an aggregate dollar amount of restricted stock equal to an aggregate of 5% of the total dollar amount of the Company’s common stock that traded during the prior calendar month, will vest, divided equally among all RSGAs and E&C RSGAs that have duly elected to participate in the alternate vesting schedule, with value based on the fair market value under the respective RSGAs and E&C RSGAs. The fair market value shall equal the average of the trailing ten (10) closing trade prices of the Company’s common stock on the last ten (10) trading days of the month immediately prior to the date of determination as quoted on the public securities trading market on which the Company’s common stock is then traded. If the fair market value of the Company’s common stock on the date the shares are vested is less than the fair market value of the Company’s common stock on the effective date of the RSGA or E&C RSGA, then the number of vested shares issuable (assuming all conditions are satisfied) shall be increased so that the aggregate fair market value of vested shares issuable on the vesting date equals the aggregate fair market value that such number of shares would have had on the effective date. Upon the occurrence of a Company performance goal, the right to participate in the alternate vesting schedule will terminate, and the vesting of the remaining unvested shares will be as set forth under the restricted stock award agreement.
On May 18, 2020, the Company entered into Restricted Stock Grant Agreements (the “May RSGAs”) with its Chief Executive Officer, T. Riggs Eckelberry, members of the Board, employees and consultants to create management incentives to improve the economic performance of the Company and to increase its value and stock price. All shares issuable under the May RSGAs are performance-based shares and none have yet vested nor have any been issued. The May RSGAs provide for the issuance of up to an aggregate of 10,500,000 shares of the Company’s common stock as follows: 2,000,000 to Mr. Eckelberry, 500,000 to each of the other three members of the Board, and an aggregate of 7,000,000 to employees and consultants provided certain milestones are met in certain stages; a) If the Company’s consolidated gross revenue, calculated in accordance with generally accepted accounting principles, consistently applied, equals or exceeds $15,000,000 for the trailing twelve month period, the Company will issue up to an aggregate of 5,250,000 shares of its common stock; b) If the Company’s consolidated operating profit (Operating Profit = Operating Revenue - Cost of Goods Sold - Operating Expenses - Depreciation & Amortization), calculated in accordance with generally accepted accounting principles, equals or exceeds $1,500,000 for the trailing twelve month period as reported as reported in the Company’s SEC reports, the Company will issue up to an aggregate of 5,250,000 shares of its common stock. As the performance goals are achieved or if alternate vesting is qualified and selected, the shares shall become eligible for vesting and issuance.
During the year ended December 31, 2020, per electing and qualifying for the Restricted Stock Grant Agreement alternate vesting schedule, the Company issued to Mr. T. Riggs Eckelberry, one employee and one consultant an aggregate of 1,181,123 shares of the Company’s common stock with a value of $40,019, calculated using the closing share prices on the dates of the vesting agreements.
F-18
Warrants
During the year ended December 31, 2020, the Company issued 15,800,000 purchase warrants, associated with the Series R preferred stocks. A summary of the Company’s warrant activity and related information follows for the years ended December 31, 2020 and 2019:
| 2020 | 2019 | |||||||||||||||
| Weighted | Weighted | |||||||||||||||
| Number | average | Number | average | |||||||||||||
| of | exercise | of | exercise | |||||||||||||
| Warrants | price | Warrants | price | |||||||||||||
| Outstanding - beginning of year | $ | 122,044 | $ | 500.00 | $ | 125,456 | $ | 740 | ||||||||
| Granted | 15,800,000 | $ | 0.03 | - | $ | - | ||||||||||
| Exercised | $ | - | $ | - | ||||||||||||
| Forfeited | $ | (3,412 | ) | $ | 240 | |||||||||||
| Outstanding - end of year | 15,922,044 | $ | 500.03 | $ | 122,044 | $ | 500 | |||||||||
At December 31, 2020 and 2019, the weighted average remaining contractual life of warrants outstanding:
| 2020 | 2019 | |||||||||||||||||||||||||
| Weighted Average | Weighted Average | |||||||||||||||||||||||||
| Remaining | Remaining | |||||||||||||||||||||||||
| Exercisable | Warrants | Warrants | Contractual | Warrants | Warrants | Contractual | ||||||||||||||||||||
| Prices | Outstanding | Exercisable | Life (years) | Outstanding | Exercisable | Life (years) | ||||||||||||||||||||
| $ | 0.05 | 9,800,000 | - | - | - | |||||||||||||||||||||
| $ | 0.10 | 6,000,000 | ||||||||||||||||||||||||
| $ | 500.00 | 122,044 | 122,044 | 1.37 | 122,044 | 122,044 | 1.62 | |||||||||||||||||||
| 15,922,044 | 122,044 | 122,044 | ||||||||||||||||||||||||
At December 31, 2020, the aggregate intrinsic value of the warrants outstanding was $0.
| 5. | CONVERTIBLE PROMISSORY NOTES |
As of December 31, 2020, the outstanding convertible promissory notes are summarized as follows:
| Convertible Promissory Notes | $ | 3,100,503 | ||
| Less current portion | 1,223,228 | |||
| Total long-term liabilities | $ | 1,877,275 |
Maturities of long-term debt for the next four years are as follows:
| Year Ending December 31, | Amount | |||
| 2021 | 1,241,158 | |||
| 2022 | 1,815,000 | |||
| 2023 | 62,275 | |||
| $ | 3,118,433 | |||
At December 31, 2020, the $3,118,433 in convertible promissory notes and has a remaining debt discount $17,930, leaving a net balance of $3,100,503.
F-19
On various dates from 2014 through May 2015, the Company issued unsecured convertible promissory notes (the “2014-2015 Notes”), that matured on various dates and were extended sixty (60) months from the effective date of each Note. The 2014-2015 Notes bear interest at 10% per year. The 2014-2015 Notes may be converted into shares of the Company’s common stock at conversion prices ranging from the lesser of $4,200 to $9,800 (subject to adjustment for stock splits, dividends, combinations and other similar transactions) or 50% of the lowest trade price on any trade day following issuance of the 2014-2015 Notes. In addition, for as long as the 2014-2015 Notes or other convertible notes in effect between the purchaser and the Company are outstanding, if the Company issues any security with terms more favorable than the terms of the 2014-2015 Notes or such other convertible notes or a term was not similarly provided to the purchaser of the 2014-2015 Notes or such other convertible notes, then such more favorable or additional term shall, at the purchaser’s option, become part of the 2014-2015 Notes and such other convertible notes. The conversion feature of the 2014-2015 Notes was considered a derivative in accordance with current accounting guidelines because of the reset conversion features of the 2014-2015 Notes. During the year ended December 31, 2020, the Company issued 6,709,160 shares of common stock, upon conversion of $89,400 in principal, plus accrued interest of $51,186. As of December 31, 2020, the 2014-2015 Notes had an aggregate remaining balance of $1,011,150, of which $615,000 is long term.
The unsecured convertible promissory notes (the “OID Notes”) had an aggregate remaining balance of $184,124, plus accrued interest of $13,334. The OID Notes included an original issue discount and one-time interest, which has been fully amortized. The OID Notes matured on December 31, 2017, which were extended to June 30, 2018. The OID Notes were convertible into shares of the Company’s common stock at a conversion price initially of $30,620. After the amendment, the conversion price changed to the lesser of $5,600 per share, or b) fifty percent (50%) of the lowest trade price of common stock recorded since the original effective date of this note, or c) the lowest effective price per share granted to any person or entity after the effective date. The conversion feature of the notes was considered a derivative in accordance with current accounting guidelines, because of the reset conversion features of the notes. During the year ended December 31, 2020, the Company issued 130,711 shares of common stock upon conversion of principal in the amount of $5,150. As of December 31, 2020, the remaining balance was $62,275, which is long term.
The Company issued various, unsecured convertible promissory notes (the “2015-2016 Notes”), on various dates ending on May 19, 2016. The 2015-2016 Notes matured and were extended from the date of each tranche through maturity dates ending on May 19, 2020. The 2015-2016 Notes bear interest at 10% per year. The 2015-2016 Notes may be converted into shares of the Company’s common stock at conversion prices ranging from the lesser of $1,400 to $5,600 (subject to adjustment for stock splits, dividends, combinations and other similar transactions) or 50% of the lowest trade price on any trade day following issuance of the 2015-2016 Notes. The conversion feature of the 2015-2016 Notes was considered a derivative in accordance with current accounting guidelines because of the reset conversion features of the 2015-2016 Notes. As of December 31, 2020, the remaining balance of the 2015-2016 Notes was $1,200,000, which is long term.
The Company issued a convertible note (the “Dec 2015 Note”) in exchange for accounts payable in the amount of $432,048, which could be converted into shares of the Company’s common stock after December 31, 2015. The Dec 2015 Note was accounted for under ASC 470, whereby, a beneficial conversion feature was recorded at time of issuance. The Dec 2015 Note did not meet the criteria of a derivative, and was accounted for as a beneficial conversion feature, which was amortized over the life of the Dec 2015 Note and recognized as interest expense in the financial statements. On January 1, 2016, the Dec 2015 Note met the criteria of a derivative and was accounted for under ASC 815. The Dec 2015 Note has zero stated interest rate, and the conversion price shall be equal to 75% of the average three lowest last sale prices traded during the 25 trading days immediately prior to conversion. As of December 31, 2020, the remaining balance on the Dec 2015 Note was $167,048, which is short term.
The Company issued a convertible note (the “Sep 2016 Note”) in exchange for accounts payable in the amount of $430,896, which could be converted into shares of the Company’s common stock after September 15, 2016. The Sep 2016 Note was accounted for under ASC 470, whereby, a beneficial conversion feature was recorded at time of issuance. The Sep 2016 Note met the criteria of a derivative and was accounted for under ASC 815. The Sep 2016 Note has zero stated interest rate, and the conversion price shall be equal to 75% of the average three lowest last sale prices traded during the 25 trading days immediately prior to conversion. The Sep 2016 Note did not meet the criteria of a derivative at the date of the issuance, and was accounted for as a beneficial conversion feature, which was amortized over the life of the Sep 2016 Note and recognized as interest expense in the financial statements. The conversion feature of the Sep 2016 Note was considered a derivative in accordance with current accounting guidelines because of the reset conversion feature of the Sep 2016 Note. As of December 31, 2020, the remaining balance on the Sep 2016 Note was $430,896, which is short term.
F-20
The Company issued two (2) unsecured convertible promissory notes (the “Apr & May 2018 Notes”), in the aggregate amount of $300,000 on April 2, 2018 and May 31, 2018. The Apr & May 2018 Notes had maturity dates of April 2, 2019 and May 31, 2019, respectively. The Apr & May 2018 Notes bear interest at 10% per year. The Apr & May 2018 Notes may be converted into shares of the Company’s common stock at a variable conversion price of 50% of the lesser of the lowest trading price twenty-five (25) trading days prior to conversion. The conversion feature of the Apr & May 2018 Notes was considered a derivative in accordance with current accounting guidelines because of the reset conversion features of the Notes. During the nine months ended September 30, 2019, the Company issued 12,500 shares of common stock upon conversion of principal in the amount of $6,523, plus accrued interest of $4,727, with a fair value loss on conversion of $16,250. On March 13, 2019, the Company entered into a settlement agreement with the investor in the amount of $570,000, based on the outstanding balance due and payable under the Apr & May 2018 Notes. The Company set up a reserve of 2,630,769 shares of common stock of the Company for issuance upon conversion by the investor of the amounts owed under the Notes, in accordance with the terms of the Notes, including, but not limited to the beneficial ownership limitations contained in the Notes. In addition to the foregoing, upon the sale by the investor of the settlement shares as delivered to the investor by the Company, resulting in total net proceeds less than the settlement value, the investor is entitled to additional settlement shares of the Company’s common stock. If after the investor has sold all settlement shares, the investor delivers a written notice to the Company certifying that the investor is entitled to additional settlement shares of the Company’s common stock (the “Make-Whole Shares”). The number of make-whole shares being equal to the greater of ((i) zero and (ii) the quotient of (1) the difference of (x) the settlement value with respect to each sale of shares by the Investor after the delivery of the Settlement Shares, minus (y) the aggregate net consideration received by the Investor from the resale of all shares of common stock issued by the Company, divided by (2) the average trailing closing price for ten (10) trading days for the shares immediately preceding the date of delivery of the make-whole shares. During the year ended December 31, 2020, the Company issued 11,407,847 shares of common stock upon conversion of principal in the amount of $42,712, plus default settlement fees of $205,604. As of December 31, 2020, the remaining balance on the May 2018 Note was $218,064, which is short term.
The Company entered into an unsecured convertible promissory note (the “Oct 20 Note”), on October 2, 2020 in the amount of $5,000. The Company received additional funds in the aggregate amount of $15,000. The Oct 2 Note matures on October 2, 2021, twelve months from the effective date of the Note. The Note may be extended sixty (60) months from the maturity date. The Oct 2 Note bears interest at 10% per year. The Oct 2 Note may be converted into shares of the Company’s common stock at a lesser price of $0.05 per share or (b) fifty percent (50%) of the lowest trade price of common stock recorded on any trade after the effective date, or (c) the lowest effective price per share granted. In addition, for each conversion, in event that shares are not delivered by the fourth business day (inclusive of the day of conversion), a penalty of $2,000 per day shall be assessed for each day after the third business day until the shares are delivered. The conversion feature of the Oct 2 Note was considered a derivative in accordance with current accounting guidelines because of the reset conversion features of the Note. During the year ended the Company paid off the $20,000 in cash, of the Oct 2 Note. As of December 31, 2020, the remaining balance of the Oct 2 Note was $0.
The Company entered into an unsecured convertible promissory note (the “Nov 20 Note”), on November 19, 2020 in the amount of $50,000. The Company received funds in the amount of $50,000. The Nov 20 Note matures on November 19, 2021, twelve months from the effective date of the Note. The Note may be extended sixty (60) months from the maturity date. The Nov 20 Note bears interest at 10% per year. The Nov 20 Note may be converted into shares of the Company’s common stock at a lesser price of $0.05 per share or (b) fifty percent (50%) of the lowest trade price of common stock recorded on any trade after the effective date, or (c) the lowest effective price per share granted. In addition, for each conversion, in event that shares are not delivered by the fourth business day (inclusive of the day of conversion), a penalty of $2,000 per day shall be assessed for each day after the third business day until the shares are delivered. The conversion feature of the Nov 20 Note was considered a derivative in accordance with current accounting guidelines because of the reset conversion features of the Note. During the year ended the Company paid off $21,000 in cash, of the Nov 20 Note. As of December 31, 2020, the remaining balance of the Nov 20 Note was $29,000, which is short term.
We evaluated the financing transactions in accordance with ASC Topic 815, Derivatives and Hedging, and determined that the conversion feature of the convertible promissory notes was not afforded the exemption for conventional convertible instruments due to its variable conversion rate. The note has no explicit limit on the number of shares issuable, so they did not meet the conditions set forth in current accounting standards for equity classification. The Company elected to recognize the note under paragraph 815-15-25-4, whereby, there would be a separation into a host contract and derivative instrument. The Company elected to initially and subsequently measure the note in its entirety at fair value, with changes in fair value recognized in earnings. The Company recorded a derivative liability representing the imputed interest associated with the embedded derivative. The derivative liability is adjusted periodically according to the stock price fluctuations.
The derivative liability recognized in the financial statements as of December 31, 2020 was $12,310,307.
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| 6. | REVENUE FROM CONTRACTS WITH CUSTOMERS |
Equipment Contracts
Revenues and related costs on equipment contracts are recognized as the performance obligations for work are satisfied over time in accordance with Accounting Standards Codification (“ASC”) 606, Revenue from Contracts with Customers. Under ASC 606, revenue and associated profit will be recognized as the customer obtains control of the goods and services promised in the contract (i.e., performance obligations). All un-allocable indirect costs and corporate general and administrative costs are charged to the periods as incurred. However, in the event a loss on a contract is foreseen, the Company will recognize the loss as it is determined.
The following table represents a disaggregation of revenue by type of good or service from contracts with customers for the year ended December 31, 2020 and 2019.
| Years Ended | ||||||||
| December 31, | ||||||||
| 2020 | 2019 | |||||||
| Equipment Contracts | $ | 2,393,815 | $ | 2,130,625 | ||||
| Component Sales | 1,441,251 | 959,080 | ||||||
| Waste Water Treatment Systems | - | 291,156 | ||||||
| Pump Stations | 144,755 | 100,763 | ||||||
| Services Sales | 121,310 | 86,270 | ||||||
| Licensing Fees | 20,000 | |||||||
| $ | 4,101,131 | $ | 3,587,894 | |||||
Revenue recognition for other sales arrangements, such as sales for components, service and licensing fees will remain materially consistent.
Contract assets represents revenues recognized in excess of amounts billed on contracts in progress. Contract liabilities represents billings in excess of revenues recognized on contracts in progress. Assets and liabilities related to long-term contracts are included in current assets and current liabilities in the accompanying balance sheets, as they will be liquidated in the normal course of the contract completion. The contract asset for the years ending December 31, 2020 and 2019, was $148,734 and $26,287, respectively. The contract liability for the years ended December 31, 2020 and 2019, was $340,551 and $428,009, respectively.
| 7. | FINANCIAL ASSETS |
Convertible Note Receivable
The Company purchased a 10% convertible note in the amount of $80,000, through a private placement with Water Technologies International, Inc (“WTII”). The Note is convertible into common stock of WTII at a price of 65% of the lowest trading price for the ten (10) trading days immediately prior to the conversion date. The conversion price shall not be lower than a price of $0.0001 per share. As of December 31, 2020, the note included principal of $80,000 plus accrued interest of $16,000 for a total of $133,879. The Note was considered impaired as of December 31, 2020, and an allowance was recognized in the financials in the amount of $133,879.
Fair value investment in Securities
On May 15, 2018, the Company received 4,000 shares of WTII Series C convertible preferred stock for the use of OriginClear, Inc. technology associated with their proprietary electro water separation system. Each share of Series C convertible preferred stock is convertible into one thousand (1,000) shares of WTII common stock. The stock was valued at fair market value of $0.0075 for a price of $30,000 on the date of issuance. The Company analyzed the licensing agreement using ASU 606 to determine the timing of revenue recognition. The licensing of the intellectual property (IP) is distinct from the non-license goods or services and has significant standalone functionality that provides a benefit or value. The functionality will not change during the license period due to the licensor’s activities. Because the significant standalone functionality was delivered immediately, the revenue was recognized in the financial statements as of June 30, 2018. As of December 31, 2020, the fair value of the preferred shares was $8,000.
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| 8. | LOANS PAYABLE |
Secured Loans Payable
The Company entered into short term loans with various lenders for capital expansion secured by the Company’s assets in the amount of $1,749,970, which included finance cost of $624,810. The finance cost was amortized over the terms of the loans, which have various maturity dates ranging from October 2018 through February 2019. As of December 31, 2019, the finance cost was fully amortized. The term of the loans ranged from two months to six months. The net balance as of December 31, 2020 and 2019 was $342,896 and $427,214, respectively.
Loan Payable-Related Party
The Company’s CEO loaned the Company $248,870 as of June 28, 2018. The loans bear interest at various rates to be repaid over a period of three (3) years at various maturity dates. The funds were used for operating expenses. During the period ended December 31, 2020, principal payments were made in the amount of $92,171 and the Company recorded interest of $21,019, leaving a balance of $94,883 as of December 31, 2020.
Paycheck Protection Program Loan
Between May 4, 2020 and May 5, 2020, the Company received loan proceeds in the aggregate amount of $505,000 (the “PPP Loan”) under the Paycheck Protection Program (the “PPP”) under the Coronavirus Aid, Relief and Economic Security Act. The principal and accrued interest under the Note is forgivable if the Company uses the PPP Loan proceeds for eligible purposes, including payroll, benefits, rent and utilities, and otherwise complies with PPP requirements. In order to obtain forgiveness of the PPP Loan, the Company must submit a request and provide satisfactory documentation regarding its compliance with applicable requirements. The Company must repay any unforgiven principal amount of the Note, with interest, on a monthly basis following the deferral period. The Company used the proceeds of the PPP Loan specifically for eligible purposes and will pursue forgiveness, although no assurance is provided that forgiveness for all or any portion of the PPP Loan will be obtained.
| 9. | CAPITAL LEASES |
The Company entered into a capital lease for the purchase of equipment during the year ended December 31, 2019. The lease is for a sixty (60) month term, with monthly payments of $757 per month, and a purchase option at the end of the lease for $1.00.
As of December 31, 2020, the maturities are summarized as follows:
| Capital lease | $ | 17,073 | ||
| Less current portion | 9,088 | |||
| Total long-term liabilities | $ | 7,985 |
Long term maturities for the next two years are as follows:
| Period Ending December 31, | ||||
| 2021 | 9,088 | |||
| 2022 | 7,985 | |||
| $ | 17,073 | |||
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| 10. | INCOME TAXES |
On December 22, 2017, the U.S. enacted the Tax Cuts and Jobs Act (the “Act”), which significantly changed U.S. tax law. The Act lowered the Company’s U.S. statutory federal income tax rate from 35% to 21% effective January 1, 2018.
The Company files income tax returns in the U.S. Federal jurisdiction, and the state of California. With few exceptions, the Company is no longer subject to U.S. federal, state and local, or non-U.S. income tax examinations by tax authorities for years before 2016.
Included in the balance at December 31, 2020, are no tax positions for which the ultimate deductibility is highly certain, but for which there is uncertainty about the timing of such deductibility. Because of the impact of deferred tax accounting, other than interest and penalties, the disallowance of the shorter deductibility period would not affect the annual effective tax rate but would accelerate the payment of cash to the taxing authority to an earlier period.
The Company’s policy is to recognize interest accrued related to unrecognized tax benefits in interest expense and penalties in operating expenses. During the periods ended December 31, 2020 and 2019, the Company did not recognize interest and penalties.
At December 31, 2020, the Company had net operating loss carry-forwards of approximately $46,795,341, which expire at dates that have not been determined. No tax benefit has been reported in the December 31, 2020 financial statements since the potential tax benefit is offset by a valuation allowance of the same amount.
The income tax provision differs from the amount of income tax determined by applying the U.S. federal and state income tax rate to pretax income from continuing operations for the years ended December 31, 2020 and 2019 due to the following:
| 2020 | 2019 | |||||||
| Book income (loss) | $ | 2,784,887 | $ | (5,764,730 | ) | |||
| Tax to book differences for deductible expenses | 9,574 | 11,360 | ||||||
| Tax non-deductible expenses | (3,845,607 | ) | 4,870,700 | |||||
| Valuation Allowance | 1,051,146 | 882,680 | ||||||
| Income tax expense | $ | - | $ | - | ||||
Deferred taxes are provided on a liability method whereby deferred tax assets are recognized for deductible differences and operating loss and tax credit carry-forwards and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the difference between the reported amounts of assets and liabilities and their tax bases. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Deferred tax assets and liabilities are adjusted for the effects of changes in tax laws and rates on the date of enactment.
Net deferred tax liabilities consist of the following components as of December 31,
| 2020 | 2019 | |||||||
| Deferred tax assets: | ||||||||
| NOL carryover | $ | 9,827,022 | $ | 8,778,350 | ||||
| Other carryovers | 749,475 | 728,905 | ||||||
| Deferred tax liabilities: | ||||||||
| Depreciation | (102,841 | ) | (73,755 | ) | ||||
| Less Valuation Allowance | (10,473,656 | (9,433,500 | ) | |||||
| Net deferred tax asset | $ | - | $ | - | ||||
Due to the change in ownership provisions of the Tax Reform Act of 1986, net operating loss carry-forwards for Federal income tax reporting purposes are subject to annual limitations. Should a change in ownership occur, net operating loss carry-forwards may be limited as to use in future years.
F-24
| 11. | FOREIGN SUBSIDIARY |
On December 31, 2014, the Company formed a wholly owned subsidiary, OriginClear Technologies Limited (OTG), in Hong Kong, China. The Company granted OTG a master license for the People’s Republic of China. In turn, OTG is expected to license regional joint ventures for water treatment.
| 12. | COMMITMENTS AND CONTINGENCIES |
Facility Rental – Related Party
The Company rents from its subsidiary on a month-to-month basis a 12,000 square foot facility in McKinney, Texas at a base rent of $7,000 per month.
Warranty Reserve
Generally, a PWT project is guaranteed against defects in material and workmanship for one year from the date of completion, while certain areas of construction and materials may have guarantees extending beyond one year. The Company has various insurance policies relating to the guarantee of completed work, which in the opinion of management will adequately cover any potential claims. A warranty reserve has been provided under PWT based on the opinion of management and based on Company history in the amount of $20,000 for the year ending December 31, 2020.
Litigation
In February 2019, a Complaint was filed in the Superior Court for the State of California, for breach of contract, common law counts for sums due for services allegedly performed, and fraud. The Complaint was filed by RDI Financial, LLC (“RDI”), an alleged assignee of Interdependence, Inc., and named the Company and its developmental subsidiary, WaterChain, Inc., as Defendants. RDI claimed that its assignor, Interdependence, Inc., entered into a contract with the Defendants for Interdependence to provide reputation and professional relationship management services. RDI claimed that Interdependence provided the services and that the Company was required to make certain payments of cash and our capital stock to Interdependence, but did not do so. RDI claimed to be entitled to enforce the contract as the assignee, and demanded monetary damages in the aggregate amount of $630,000.
The Company and WaterChain were unaware of the suit until September of 2019, when they received notice of a default judgment. Litigation counsel was engaged, and with the absence of prior notice or service of the suit, an improper default promptly challenged. In October 2019 the Court vacated the default and judgment, and granted the Company and WaterChain leave to file an Answer and Cross-Complaint against RDI and Interdependence. Through these filings, the Company and WaterChain, Inc. contested the allegations and claims in the Complaint, denied that Interdependence performed the required services, and contended that the Company overpaid Interdependence $40,000 for whatever limited work was done. More specifically, in November, 2019, an Answer was filed by the Company and WaterChain denying the claims in the Complaint, along with a Cross-Complaint alleging fraudulent inducement to enter into the contract, negligent misrepresentations, breach of contract, and to rescind the underlying contract. The Company alleged that Interdependence misrepresented the nature and scope of the services which were to be provided and its ability to provide them, falsely promised and promoted the results it would obtain for the Company and WaterChain in providing such services, and also failed to provide the Company with the services as required by the contract such that Interdependence was overpaid based on what limited work it in fact did. For those reasons, and prior to any litigation, the Company terminated the contract for non-performance.
Following discovery and pleading activity, the Company and WaterChain entered into settlement negotiations with RDI to resolve this matter on a defense cost basis. The parties reached an amicable resolution and entered into a Settlement Agreement and Mutual and General Release on December 16, 2020 which provided for a less than defense cost resolution through a small payment of $20,000 and stock transfers on a monthly basis through December, 2021, with removal of restrictive legends occurring at six month intervals following each transfer. Notice of Settlement of Entire Case was filed with the Court in January, 2021, and all Court dates vacated. Once the stock transfers and restriction removals are completed, the action will be dismissed with prejudice. All parties are fully and timely performing under the Settlement Agreement, and no further issues or proceedings, or fees and costs, are anticipated.
F-25
On January 12, 2021, OriginClear, Inc. Progressive Water Treatment, Inc. and T. Riggs Eckelberry, individually (collectively, the “iKAHN Plaintiffs”), filed a complaint in the Supreme Court for the State of New York in the County of Ontario against iKAHN Capital LLC (“iKAHN”). The case stems from the purported “Agreement for the Purchase and Sale of Future Receipts” that OriginClear and iKAHN Capital entered into on September 7, 2018 (the “iKAHN Agreement”). The iKAHN Plaintiffs are alleging that the iKAHN Agreement is, in fact, a loan, and not a merchant cash advance, and is in violation of New York’s usury laws, and requesting that the Court declare the iKAHN Agreement void and unenforceable; that the Judgment that was entered against the iKAHN Plaintiffs on November 6, 2018 in the amount of $30,205 be vacated; attorneys’ fees and costs; court costs and fees; and all other relief to which the iKAHN Plaintiffs may be entitled.
On April 22, 2021, the iKAHN Plaintiffs and iKAHN agreed to settle the dispute on the following terms: (i) vacatur of the judgment obtained by iKAHN against the iKAHN Plaintiffs; (ii) release of any and all bank levies, liens, security interests, powers of attorney, and other encumbrances iKAHN may have against the iKAHN Plaintiffs; and (iii) dismissal of the action filed by the iKAHN Plaintiffs against iKAHN with prejudice. Accordingly, the iKAHN Plaintiffs no longer owe any further amounts to iKAHN with respect to the iKAHN Agreement.
On November 16, 2020, Progressive Water Treatment, Inc., OriginClear, Inc. and T. Riggs Eckelberry, individually (collectively, the “Yellowstone Plaintiffs”), filed a complaint in the Supreme Court for the State of New York in and for the County of Erie against Yellowstone Capital, LLC (“Yellowstone”). The case stems from the purported “Secured Merchant Agreement” that OriginClear and Yellowstone entered into on July 19, 2018 (the “Yellowstone Agreement”). The Yellowstone Plaintiffs are alleging that the Yellowstone Agreement is, in fact, a loan, and not a merchant cash advance, and is in violation of New York’s usury laws, and requesting that the Court declare the iKAHN Agreement void and unenforceable; that the Judgment that was entered against the Yellowstone Plaintiffs on November 7, 2018 in the amount of $99,303 be vacated; attorneys’ fees and costs; court costs and fees; and all other relief to which the Yellowstone Plaintiffs may be entitled.
On December 4, 2020, Yellowstone filed a Motion to Dismiss the Yellowstone Plaintiffs’ Complaint. On January 5, 2021, Yellowstone’s Motion to Dismiss was granted.
On January 5, 2021, the Yellowstone Plaintiffs filed a Notice of Appeal to the Court’s Decision & Order granting Yellowstone’s Motion to Dismiss, and will be submitting a memoranda of law in support in the near future.
On October 12, 2020, OriginClear, Inc. Progressive Water Treatment, Inc. and T. Riggs Eckelberry, individually (collectively, the “GTR Plaintiffs”), filed a complaint in the Supreme Court for the State of New York in and for the County of Ontario against GTR Source (“GTR”). The case stems from the purported Merchant Agreements that OriginClear and GTR entered into on July 20, 2018 and August 28, 2018 (together, the “GTR Agreements”). The GTR Plaintiffs are alleging that the GTR Agreements are, in fact, loans, and not merchant cash advances, and are in violation of New York’s usury laws, and requesting that the Court declare the GTR Agreements void and unenforceable; that the Judgment that was entered against the GTR Plaintiffs on March 20, 2019 in the amount of $143,083 be vacated; that the Settlement Agreement entered into by and between OriginClear and GTR, dated December 13, 2018, be declared void and unenforceable; restitution in the amount of $149,751; attorneys’ fees and costs; court costs and fees; and all other relief to which the GTR Plaintiffs may be entitled.
On October 16, 2020, the GTR Plaintiffs filed an Order to Show Cause seeking a Temporary Restraining Order and Preliminary Injunction. On October 23, 2020, the Court granted the GTR Plaintiffs’ request for a Temporary Restraining Order, which remains in effect as of the date hereof.
On November 25, 2020, the GTR Plaintiffs filed an Amended Complaint, which included 1 defendant, Tzvi “Steve” Reich, the President and Manager of GTR (together with GTR, the “GTR Defendants”), and 2 new causes of action: violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c), and Conspiracy, 18 U.S.C. § 1962(d). On December 1, 2021, the GTR Defendants removed the case to the United States District Court for the Western District of New York.
The GTR action is currently being litigated.
F-26
On September 21, 2020, OriginClear, Inc. Progressive Water Treatment, Inc. and T. Riggs Eckelberry, individually (collectively, the “C6 Plaintiffs”), filed a complaint in the Supreme Court for the State of New York in and for the County of Boome against C6 Capital LLC (“C6 Capital”). The case stems from the purported “Purchase Agreement for the Sale of Receipts” that OriginClear and C6 Capital entered into on July 17, 2018 (the “C6 Agreement”). The C6 Plaintiffs are alleging that the C6 Agreement is, in fact, a loan, and not a merchant cash advance, and is in violation of New York’s usury laws, and requesting that the Court declare the C6 Agreement void and unenforceable; that the Judgment that was entered against the C6 Plaintiffs on November 7, 2018 in the amount of $64,337 be vacated; attorneys’ fees and costs; court costs and fees; and all other relief to which the C6 Plaintiffs may be entitled.
On March 12, 2021, the C6 Plaintiffs and C6 Capital agreed to settle the dispute on the following terms: (i) vacatur of the judgment obtained by C6 Capital against the C6 Plaintiffs; (ii) release of any and all bank levies, liens, security interests, powers of attorney, and other encumbrances C6 Capital may have against the C6 Plaintiffs; and (iii) dismissal of the action filed by the C6 Plaintiffs against C6 Capital with prejudice. Accordingly, the C6 Plaintiffs no longer owe any further amounts to C6 Capital with respect to the C6 Agreement. Furthermore, the sister-state judgment C6 Capital obtained against the C6 Plaintiffs in California is currently in the process of being vacated by stipulation.
On September 18, 2019, Expansion Capital Group, LLC (“Expansion”) filed a complaint against Progressive Water Treatment, Inc., Tener Riggs Eckelberry Jr., individually, and Marc Stevens, individually (collectively, the “Expansion Defendants”) in the District Court for the 429th Judicial District, Collin County, Texas alleging breach of a Business Loan Agreement (the “Business Loan”), dated July 9, 2018, under which Expansion loaned $300,000 to Progressive Water Treatment, Inc., with an expectation of being repaid $408,000.
On December 30, 2019, Expansion and the Expansion Defendants entered into a Settlement Agreement (the “Expansion Settlement”), pursuant to which the Expansion Defendants agreed to pay Expansion $252,000 in $10,500 monthly installments over a 24-month period.
The Expansion Defendants have retained legal counsel who will assert that the Business Loan and the Expansion Settlement are usurious transactions that should be declared and unenforceable against the Expansion Defendants.
On February 12, 2019, Auctus Fund, LLC (“Auctus”) filed a complaint against OriginClear in the United States District Court for the District of Massachusetts for numerous claims arising from two convertible promissory notes and accompanying securities purchase agreements.
On March 13, 2019, Auctus and OriginClear entered into a Settlement Agreement and Mutual General Release, under which Auctus would be permitted to convert $570,000 into OriginClear securities pursuant to the terms set forth in the convertible promissory notes.
On February 2, 2021, OriginClear filed a Motion to Set Aside the Settlement Agreement as Void under Section 29(b) of the Securities Exchange Act of 1934 (the “Act”) for Auctus’ violation of Section 15(a) of the Act. If granted, the Settlement Agreement would be declared void and unenforceable.
As of the date hereof, the Motion to Set Aside the Settlement Agreement has been fully briefed by the parties to the action; however, United States District Court for the District of Massachusetts has not yet established a schedule or issued a decision.
| 13. | CONCENTRATIONS |
Major Customers
PWT had two major customers for the year ended December 31, 2020. The customers represented 34% of billings for the year ending December 31, 2020. The contract receivable balance for the customers was $149,070 at December 31, 2020.
PWT had four major customers for the year ended December 31, 2019. The customers represented 56% of billings for the year ending December 31, 2019. The contract receivable balance for the customers was $174,803 at December 31, 2019.
F-27
Major Suppliers
PWT had three major vendors for the year ended December 31, 2020. The vendors represented 45.2% of total expenses in the year ending December 31, 2020. The accounts payable balance due to the vendors was $170,963 at December 31, 2020. Management believes no risk is present with the vendors due to other suppliers being readily available.
PWT had three major vendors for the year ended December 31, 2019. The vendors represented 36.34% of total expenses in the year ending December 31, 2019. The accounts payable balance due to the vendors was $198,733 at December 31, 2019. Management believes no risk is present with the vendors due to other suppliers being readily available.
| 14. | SUBSEQUENT EVENTS |
Management has evaluated subsequent events according to the requirements of ASC TOPIC 855 and has determined that there are the following subsequent events:
Between January 4, 2021 and March 15, 2021, per electing and qualifying for the Restricted Stock Grant Agreement alternate vesting schedule, the Company issued to Mr. T. Riggs Eckelberry, one employee and one consultant an aggregate of 2,003,875 shares of the Company’s common stock.
Between January 5, 2021 and February 5, 2021, holders of convertible promissory notes converted an aggregate principal and interest amount of $61,007 into an aggregate of 6,354,895 shares of the Company’s common stock.
Between January 6, 2021 and March 15, 2021, the Company sold an aggregate of 1,471 shares of the Company’s Series M preferred stock for an aggregate purchase price of $29,425.
Between January 7, 2021 and May 10, 2021, the Company entered into subscription agreements with certain accredited investors pursuant to which the Company sold an aggregate of 2,396 shares of the Company’s Series R preferred stock for an aggregate purchase price of $2,395,750. The Company also issued an aggregate of 47,915,000 Series A warrants and 9,125,000 Series B warrants to the investors.
Between January 28, 2021 and April 30, 2021, the Company issued to consultants and one employee an aggregate of 9,894,429 shares of the Company’s common stock for services including an aggregate of 698,328 shares of common stock for settlement of prior consulting agreement.
Between February 11, 2021 and April 20, 2021, holders of Series J Preferred Stock converted an aggregate of 37.5 Series J shares into an aggregate of 1,097,991 shares, including make-good shares, of the Company’s common stock.
Between January 5, 2021 and April 20, 2021, holders of Series L Preferred Stock converted an aggregate of 465 Series L shares into an aggregate of 15,966,567 shares, including make-good shares, of the Company’s common stock.
Between January 13, 2021 and April 20, 2021, holders of Series O Preferred Stock converted an aggregate of 915 Series O shares into an aggregate of 23,879,570 shares of the Company’s common stock.
Between January 8, 2021 and April 20, 2021, holders of Series P Preferred Stock converted an aggregate of 234 Series P shares into an aggregate of 8,182,992 shares, including make-good shares, of the Company’s common stock.
Between January 8, 2021 and April 20, 2021, holders of Series Q Preferred Stock converted an aggregate of 160 Series Q shares into an aggregate of 4,120,832 shares of the Company’s common stock.
Between January 20, 2021 and April 20, 2021, holders of Series R Preferred Stock converted an aggregate of 451 Series R shares into an aggregate of 13,478,690 shares, including make-good shares, of the Company’s common stock.
Between February 11, 2021 and April 20, 2021, holders of Series S Preferred Stock converted an aggregate of 50 Series S shares into an aggregate of 1,269,302 shares of the Company’s common stock.
F-28
Between February 10 and April 15, 2021, the Company entered into exchange agreements with holders of the Company’s Series G Preferred Stock pursuant to which such holders exchanged an aggregate of 245 shares of Series G Preferred Stock for 245 shares of the Company’s Series S Preferred Stock.
Between March 17, 2021 and April 15, 2021, the Company issued an aggregate of 1,769 shares of the Company’s Series R Preferred Stock in exchange for an aggregate of 232 shares of Series I Preferred Stock, an aggregate of 1,297 Series K Preferred Stock, an aggregate of 120 Series M Preferred Stock and an aggregate of 120 Series O Preferred Stock.
On March 31, 2021, the Company issued an aggregate of 236,205 shares of the Company’s common stock as dividends to certain holders of Series O Preferred Stock.
On April 15, 2021, the Company issued an aggregate of 68,571 shares of the Company’s common stock in exchange for Series D-1 preferred stock.
On April 30, 2021, the Company was required to redeem 185 outstanding shares of Series G Preferred Stock but has not done so.
On February 5, 2021, the Company filed a certificate of designation (the “Series S COD”) of Series S Preferred Stock (the “Series S”) with the Secretary of State of Nevada. Pursuant to the Series S COD, the Company designated 430 shares of preferred stock as Series S. The Series S has a stated value of $1,000 per share, and will be entitled to cumulative dividends in cash at an annual rate of 12% of the stated value, payable quarterly within 60 days from the end of such fiscal quarter. The Series S will not be entitled to any voting rights except as may be required by applicable law. The Series S will be convertible into common stock of the Company in an amount determined by dividing 200% of the stated value of the Series S being converted by the conversion price, provided that, the Series S may not be converted into common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of the Company’s outstanding common stock (which may be increased up to 9.99% upon 61 days’ written notice). The conversion price will be equal to the average closing sale price of the common stock for the five trading days prior to the conversion date. The Company will have the right (but no obligation) to redeem the Series S at any time while the Series S are outstanding at a redemption price equal to the stated value plus any accrued but unpaid dividends
On February 24, 2021, the Company filed a certificate of designation (the “Series T COD”) of Series T Preferred Stock (the “Series T”) with the Secretary of State of Nevada. Pursuant to the Series T COD, the Company designated 630 shares of preferred stock as Series T. The Series T has a stated value of $1,000 per share, and will be entitled to cumulative dividends in cash at an annual rate of 10% of the stated value, payable monthly. The Series T will not be entitled to any voting rights except as may be required by applicable law. The Series T will be convertible into common stock of the Company pursuant to the Series T COD, provided that, the Series T may not be converted into common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of the Company’s outstanding common stock (which may be increased up to 9.99% upon 61 days’ written notice). The Company will have the right (but no obligation) to redeem the Series T at any time while the Series T are outstanding at a redemption price equal to the stated value plus any accrued but unpaid dividends. On March 1, 2021, the Company issued an aggregate of 630 shares of Series T Preferred Stock.
On March 23, 2021, the Company filed a certificate of designation (the “Series U COD”) of Series U Preferred Stock (the “Series U”) with the Secretary of State of Nevada. Pursuant to the Series U COD, the Company designated 5,000 shares of preferred stock as Series U. The Series U a stated value of $1,000 per share, and will be entitled to cumulative dividends in cash at an annual rate of 10% of the stated value, payable quarterly. The Series U will not be entitled to any voting rights except as may be required by applicable law. The Series U will be convertible into common stock of the Company in an amount determined by dividing 100% of the stated value of the Series U being converted by the conversion price; certain prior investors will also be entitled to certain make-good shares; provided that, the Series U may not be converted into common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of the Company’s outstanding common stock. The conversion price will be equal to the average closing sale price of the common stock for the five trading days prior to the conversion date. The Company will have the right (but no obligation) to redeem the Series U at any time at a redemption price equal to, if paid in cash, the stated value plus any accrued but unpaid dividends, or, if paid in shares of common stock, in an amount of shares determined by dividing the stated value being redeemed by the conversion price.
F-29
On April 19, 2021, the Company filed a certificate of designation (the “Series V COD”) of Series V Preferred Stock (the “Series V”) with the Secretary of State of Nevada. Pursuant to the Series V COD, the Company designated 40,000 shares of preferred stock as Series V. The Series V Preferred Stock has a stated value of $500 per share, and will be entitled to an annual distribution of 25% of annual net profits of a newly established, Company wholly-owned subsidiary, Water On Demand, Inc., paid within 3 months of subsidiary’s accounting year-end. The Series V will not be entitled to any voting rights except as may be required by applicable law. The Series V will be convertible into common stock of the Company pursuant to the Series V COD, provided that, the Series V may not be converted into common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of the Company’s outstanding common stock (which may be increased up to 9.99% upon 61 days’ written notice). The Company will have the right (but no obligation) to redeem the Series V Stock at any time at a redemption price equal to, if paid in cash, the stated value plus any accrued but unpaid distributions of 25% of Subsidiary’s annual net profits.
On April 28, 2021, the Company filed a certificate of designation (the “Series W COD”) of Series W Preferred Stock (the “Series W”) with the Secretary of State of Nevada. Pursuant to the Series W COD, the Company designated 3,390 shares of preferred stock as Series W. The Series W has a stated value of $1,000 per share, and will be entitled to cumulative dividends in cash at an annual rate of 12% of the stated value, payable quarterly. The Series W will not be entitled to any voting rights except as may be required by applicable law. The Series W will be convertible into common stock of the Company in an amount determined by dividing 200% of the stated value of the Series W being converted by the conversion price; provided that, the Series W may not be converted into common stock to the extent such conversion would result in the holder beneficially owning more than 4.99% of the Company’s outstanding common stock (which may be increased up to 9.99% upon 61 days’ written notice). The conversion price will be equal to the average closing sale price of the common stock for the five trading days prior to the conversion date. The Company will have the right (but no obligation) to redeem the Series W at any time at a redemption price equal to the stated value plus any accrued but unpaid dividends.
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Exhibit 3.37
CERTIFICATE OF DESIGNATION OF RIGHTS, POWERS,
PREFERENCES, PRIVILEGES AND RESTRICTIONS OF THE
SERIES V CONVERTIBLE STOCK OF
ORIGINCLEAR, INC.
I, T. Riggs Eckelberry, hereby certify that I am the Chief Executive Officer of OriginClear, Inc. (the “Company”), a corporation organized and existing under the Nevada Revised Statutes (the “NRS”), and further do hereby certify:
That, pursuant to the authority expressly conferred upon the Board of Directors of the Company (the “Board”) by the Company’s Articles of Incorporation, as amended (the “Articles of Incorporation”), the Board on April 16, 2021 adopted the following resolutions creating a series of shares of Preferred Stock designated as Series V Convertible Preferred Stock, none of which shares has been issued:
RESOLVED, that the Board designates the Series V Convertible Preferred Stock and the number of shares constituting such series, and fixes the rights, powers, preferences, privileges and restrictions relating to such series in addition to any set forth in the Articles of Incorporation as follows:
SECTION 1. DESIGNATION OF SERIES. There shall hereby be created and established by this Certificate of Designation of Rights, Powers, Preferences, Privileges and Restrictions (this “Certificate of Designation”) a series of preferred stock of the Company designated as “Series V Convertible Preferred Stock” (the “Preferred Shares”). The authorized number of Preferred Shares initially constituting such series shall be Forty Thousand (40,000). Each share of the Series V shall have a stated face value of $500 (the “Stated Value”). Each share of Series V Preferred Stock is convertible into shares of Common Stock of the Corporation at the conversion rate set forth in Section 5(a)(i) below, as adjusted in accordance with Section 5 and Section 6 below. Capitalized terms not defined herein shall have the meaning as set forth in Section 21. The Series V Preferred Stock shall have the rights, preferences and privileges set forth below:
SECTION 2. DIVIDENDS. The holders of Series V Preferred Stock (the “Holders”) shall not be entitled to receive dividends on any outstanding shares of Series V Preferred Stock.
SECTION 3. DISTRIBUTION OF NET PROFITS FROM SUBSIDIARY. The Holders shall be entitled to receive, on a pro rata and pari passu basis, an annual distribution of twenty-five percent (25%) of the annual net profits of the Company’s wholly-owned subsidiary, Water On Demand #1, Inc. (“Subsidiary”), paid within three (3) months of Subsidiary’s accounting year-end. In the event the Company causes Subsidiary’s business operations to be terminated, or sells Subsidiary or substantially all of its assets, in addition to the distribution of net profits of Subsidiary for the period of Subsidiary’s accounting year prior to such termination or sale, the Holders shall be entitled to receive the distribution of, on a pro rata, pari passu basis, 25% of the proceeds, net of the subsidiary’s liabilities, from the liquidation of Subsidiary’s assets following such termination, or 25% of the proceeds, net of the subsidiary’s liabilities, derived from any such sale of Subsidiary or substantially all of its assets.
SECTION 4. LIQUIDATION PREFERENCE. In the event of any liquidation, dissolution or winding up of the Company, wither voluntary or involuntary, the holder of each outstanding share of the Series V Preferred Stock shall be entitled to receive, out of the assets of the Company legally available for distribution to its shareholders upon such liquidation, whether such assets are capital or surplus of any nature, for each share of Series V Preferred Stock an amount equal to the Stated Value per share (as adjusted for any combinations, consolidations, stock distributions or stock dividends with respect to such shares), plus any accrued but unpaid distributions of the annual net profits of Subsidiary as provided in Section 3 above, before any distribution or payment may be made to the holders of any Common Stock.
SECTION 5. VOTING. The Series V Preferred Stock will not entitle the Holders to any voting rights except as required under applicable law.
SECTION 6. CONVERSION. Each Preferred Share shall be convertible into validly issued, fully paid and non-assessable shares of Common Stock on the terms and conditions set forth in this Section 6.
(a) Holder’s Conversion Right. At any time or times on or after the Initial Issuance Date, each Holder shall be entitled to convert any whole number of Series V Preferred Shares into validly issued, fully paid and non-assessable shares of Common Stock at the Conversion Rate (as defined below).
(i) Conversion Rate. The number of validly issued, fully paid and non-assessable shares of Common Stock issuable upon conversion of each Preferred Share pursuant to Section 6(a) shall be calculated by dividing that number that is the Stated Value of a share of Series V Preferred Stock multiplied by the number of shares of Series V Preferred Stock being converted, divided by the Closing Price of the Company’s Common Shares (as defined below) (the “Conversion Rate”). The Conversion Rate is represented by this equation:
(Stated Value) x (Number of Preferred Shares being Converted)
(Closing Price)
(A) Closing Price. The Closing Price (“Closing Price”), for any date, shall be calculated as follows: (i) if the Company’s shares of common stock are listed or quoted on the OTCQB or a registered national securities exchange, the most recent bid price per share of the Company’s common stock as reported by Bloomberg Financial L.P. (based on a Trading Day from 9:30 a.m. Eastern Time to 4:02 p.m. Eastern Time); (ii) if the Company’s common stock is not then listed or quoted on the OTCQB and if prices for the Company’s common stock are then reported by the OTC Pink tier of the OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Company’s common stock so reported; or (iii) in all other cases, the fair market value of a share of the Company’s common stock as determined by an independent appraiser selected in good faith by the Holder and reasonably acceptable to the Company.
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(ii) Fractional Shares. No fractional shares of Common Stock are to be issued upon the conversion of any Preferred Shares. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock up to the nearest whole share.
(b) Mechanics of Conversion. The conversion of each Preferred Share shall be conducted in the following manner:
(i) Holder’s Conversion. To convert a Preferred Share into validly issued, fully paid and non-assessable shares of Common Stock on any date (a “Conversion Date”), a Holder shall deliver (whether via facsimile or otherwise), for receipt on or prior to 11:59 p.m., New York time, on such date, a copy of an executed notice of conversion of the share(s) of Preferred Shares subject to such conversion in the form attached hereto as Exhibit I (the “Conversion Notice”) to the Company. If required under any provision of this Section 5, within five (5) Trading Days following a conversion of any such Preferred Shares as aforesaid, such Holder shall surrender to a nationally recognized overnight delivery service for delivery to the Company the original certificates representing the share(s) of Preferred Shares so converted as aforesaid.
(ii) Company’s Response. On or before the second (2nd) Trading Day following the date of receipt of a Conversion Notice, the Company shall transmit by facsimile an acknowledgment of confirmation, in the form attached hereto as Exhibit II, of receipt of such Conversion Notice to such Holder and the transfer agent for the Company’s Common Stock (the “Transfer Agent”), which confirmation shall constitute an instruction to the Transfer Agent to process such Conversion Notice in accordance with the terms herein. On or before the second (2nd) Trading Day following the date of receipt by the Company of such Conversion Notice, the Company shall (1) provided that the Transfer Agent is participating in DTC Fast Automated Securities Transfer Program, credit such aggregate number of shares of Common Stock to which such Holder shall be entitled to such Holder’s or its designee’s balance account with DTC through its Deposit and Withdrawal at Custodian system, or (2) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver (via reputable overnight courier) to the address as specified in such Conversion Notice, a certificate, registered in the name of such Holder or its designee, for the number of shares of Common Stock to which such Holder shall be entitled. If the number of Preferred Shares represented by the Preferred Share Certificate(s) submitted for conversion is greater than the number of Preferred Shares being converted, then the Company shall, if requested by such Holder, as soon as practicable and in no event later than three (3) Trading Days after receipt of the Preferred Share Certificate(s) and at its own expense, issue and deliver to such Holder (or its designee) a new Preferred Share Certificate representing the number of Preferred Shares not converted.
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(iii) Record Holder. The Person or Persons entitled to receive the shares of Common Stock issuable upon a conversion of Preferred Shares shall be treated for all purposes as the record holder or holders of such shares of Common Stock on the Conversion Date.
(iv) Company’s Failure to Timely Convert. If the Company shall fail, for any reason or for no reason, except in the case that the relevant Preferred Share Certificate is required to be and shall not have been timely received by the Transfer Agent, to issue to a Holder within three (3) Trading Days after the Company’s receipt of a Conversion Notice (whether via facsimile or otherwise) (the “Share Delivery Deadline”), a certificate for the number of shares of Common Stock to which such Holder is entitled and register such shares of Common Stock on the Company’s share register or to credit such Holder’s or its designee’s balance account with DTC for such number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion of any Preferred Shares (as the case may be) (a “Conversion Failure”), then, in addition to all other remedies available to such Holder, such Holder, upon written notice to the Company, (x) may void its Conversion Notice with respect to, and retain or have returned (as the case may be) any Preferred Shares that have not been converted pursuant to such Holder’s Conversion Notice, provided that the voiding of a Conversion Notice shall not affect the Company’s obligations to make any payments that have accrued prior to the date of such notice pursuant to the terms of this Certificate of Designation or otherwise and (y) the Company shall pay in cash to such Holder on each day after such second (2nd) Trading Day that the issuance of such shares of Common Stock is not timely effected an amount equal to 1.0 % of the product of (A) the aggregate number of shares of Common Stock not issued to such Holder on a timely basis and to which the Holder is entitled and the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the last possible date on which the Company could have issued such shares of Common Stock to the Holder. In addition to the foregoing, if within three (3) Trading Days after the Company’s receipt of a Conversion Notice (whether via facsimile or otherwise), the Company shall fail to issue and deliver a certificate to such Holder and register such shares of Common Stock on the Company’s share register or credit such Holder’s or its designee’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion hereunder (as the case may be), and, if on or after such second (2nd) Trading Day, such Holder (or any other Person in respect, or on behalf, of such Holder) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Holder of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, issuable upon such conversion that such Holder so anticipated receiving from the Company, then, in addition to all other remedies available to such Holder, the Company shall, within three (3) Business Days after such Holder’s request and in such Holder’s discretion, either pay cash to such Holder in an amount equal to such Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including, without limitation, by any other Person in respect, or on behalf, of such Holder) (the “Buy-In Price”), at which point the Company’s obligation to so issue and deliver such certificate or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion hereunder (as the case may be) (and to issue such shares of Common Stock) shall terminate, or (ii) promptly honor its obligation to so issue and deliver to such Holder a certificate or certificates representing such shares of Common Stock or credit such Holder’s balance account with DTC for the number of shares of Common Stock to which such Holder is entitled upon such Holder’s conversion hereunder (as the case may be) and pay cash to such Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock multiplied by (B) the lowest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date of the applicable Conversion Notice and ending on the date of such issuance and payment under this clause (ii).
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(v) Pro Rata Conversion; Disputes. In the event the Company receives a Conversion Notice from more than one Holder for the same Conversion Date and the Company can convert some, but not all, of such Preferred Shares submitted for conversion, the Company shall convert from each Holder electing to have Preferred Shares converted on such date a pro rata amount of such Holder’s Preferred Shares submitted for conversion on such date based on the number of Preferred Shares submitted for conversion on such date by such Holder relative to the aggregate number of Preferred Shares submitted for conversion on such date.
(vi) Book-Entry. Notwithstanding anything to the contrary set forth in this Section 6, upon conversion of any Preferred Shares in accordance with the terms hereof, no Holder thereof shall be required to physically surrender the certificate representing the Preferred Shares to the Company following conversion thereof unless (A) the full or remaining number of Preferred Shares represented by the certificate are being converted (in which event such certificate(s) shall be delivered to the Company as contemplated by this 6(b)(vi)) or (B) such Holder has provided the Company with prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of Preferred Shares upon physical surrender of any Preferred Shares. Each Holder and the Company shall maintain records showing the number of Preferred Shares so converted by such Holder and the dates of such conversions or shall use such other method, reasonably satisfactory to such Holder and the Company, so as not to require physical surrender of the certificate representing the Preferred Shares upon each such conversion. In the event of any dispute or discrepancy, such records of the Company establishing the number of Preferred Shares to which the record holder is entitled shall be controlling and determinative in the absence of manifest error. A Holder and any transferee or assignee, by acceptance of a certificate, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of any Preferred Shares, the number of Preferred Shares represented by such certificate may be less than the number of Preferred Shares stated on the face thereof. Each certificate for Preferred Shares shall bear the following legend:
ANY TRANSFEREE OR ASSIGNEE OF THIS CERTIFICATE SHOULD CAREFULLY REVIEW THE TERMS OF THE CORPORATION’S CERTIFICATE OF DESIGNATION RELATING TO THE SHARES OF SERIES V PREFERRED STOCK THAT MAY BE REPRESENTED BY THIS CERTIFICATE, INCLUDING SECTION 6(b)(vi) THEREOF. THE NUMBER OF SHARES OF SERIES V PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE MAY BE LESS THAN THE NUMBER OF SHARES OF SERIES V PREFERRED STOCK STATED ON THE FACE HEREOF PURSUANT TO SECTION 5(b)(vi) OF THE CERTIFICATE OF DESIGNATION RELATING TO THE SHARES OF SERIES V PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE.
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(c) Taxes. The Company shall pay any and all documentary, stamp, transfer (but only in respect of the registered holder thereof), issuance and other similar taxes that may be payable with respect to the issuance and delivery of shares of Common Stock upon the conversion of Preferred Shares.
(d) Limitation on Beneficial Ownership. Notwithstanding anything to the contrary set forth in this Certificate of Designation, at no time may all or a portion of the Series V Preferred Stock be converted if the number of shares of Common Stock to be issued pursuant to such conversion would exceed, when aggregated with all other shares of Common Stock owned by the Holder at such time, the number of shares of Common Stock that would result in the Holder beneficially owning (as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules thereunder) more than 4.99% of all of the Common Stock outstanding at such time (the “4.99% Beneficial Ownership Limitation”); provided, however, that, upon the Holder providing the Corporation with sixty-one (61) days’ advance notice (the “4.99% Waiver Notice”) that the Holder would like to waive this Section 6(d) with regard to any or all shares of Common Stock issuable upon conversion of the Series V Preferred Stock, this Section 6(d) will be of no force or effect with regard to all or a portion of the Series V Preferred Stock referenced in the 4.99% Waiver Notice but shall in no event waive the 9.99% Beneficial Ownership Limitation described below. Notwithstanding anything to the contrary set forth in this Certificate of Designation, at no time may all or a portion of the Series V Preferred Stock be converted if the number of shares of Common Stock to be issued pursuant to such conversion, when aggregated with all other shares of Common Stock owned by the Holder at such time, would result in the Holder beneficially owning (as determined in accordance with Section 13(d) of the 1934 Act and the rules thereunder) in excess of 9.99% of the then-issued and outstanding shares of Common Stock outstanding at such time (the “9.99% Beneficial Ownership Limitation” and the lower of the 9.99% Beneficial Ownership Limitation and the 4.99% Beneficial Ownership Limitation then in effect, the “Maximum Percentage”). By written notice to the Company, a holder of Series V Preferred Stock may from time to time decrease the Maximum Percentage to any other percentage specified in such notice. For purposes hereof, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Annual Report on Form I 0-K, Quarterly Report on Form l0-Q, Current Report on Form 8-K or other public filing wi1h the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of a holder of Series V Preferred Stock, the Company shall within three (3) Business Days confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Series V Preferred Stock, by the Holder and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported, that in any event are convertible or exercisable, as the case may be, into shares of the Company’s Common Stock within 60 days’ of such calculation and that are not subject to a limitation on conversion or exercise analogous to the limitation contained herein. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(d) to correct this paragraph (or any portion hereof) that may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.
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SECTION 7. REDEMPTION RIGHTS. The Company may, in its sole discretion, at any time while the Series V Preferred Stock is outstanding, redeem all or any portion of the outstanding Series V Preferred Stock upon the issuance to the Holders of such number of the Company’s common shares, valued at the Closing Price on the effective date of such redemption (as calculated in Section 6(a)(i)(A) herein), as shall equal the Stated Value (as adjusted for any combinations, consolidations, stock distributions or stock dividends with respect to such shares) plus any accrued but unpaid distributions of 25% of Subsidiary’s annual net profits. In the event the Company exercises such redemption right for less than all of the then outstanding shares of Series V Preferred Stock, the Company shall redeem the outstanding shares of the Holders on a pro rata basis.
SECTION 8. AUTHORIZED COMMON SHARES. So long as any of the Preferred Shares are outstanding, the Company shall take all action necessary to keep available out of its authorized and unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, as of any given date, 100% of the number of shares of Common Stock as shall from time to time be necessary to effect the conversion of all of the Preferred Shares.
SECTION 9. NOTICES. Any notice required hereby to be given to the Holders shall be deemed given if deposited in the United States mail, postage prepaid, or provided by fax or e-mail, to each Holder of record at his, her or its address appearing on the books of the Company.
SECTION 10. SHAREHOLDER MATTERS; AMENDMENT.
(a) Shareholder Matters. Any shareholder action, approval or consent required, desired or otherwise sought by the Company pursuant to the NRS, the Articles of Incorporation, this Certificate of Designation or otherwise with respect to the issuance of Preferred Shares may be effected by written consent of the Company’s shareholders or at a duly called meeting of the Company’s shareholders, all in accordance with the applicable rules and regulations of the NRS. This provision is intended to comply with the applicable sections of the NRS permitting shareholder action, approval and consent affected by written consent in lieu of a meeting.
(b) Amendment. This Certificate of Designation or any provision hereof may be amended by obtaining the affirmative vote at a meeting duly called for such purpose, or written consent without a meeting in accordance with the NRS, of the Holders owning a majority of the Preferred Shares remaining at the time of the vote, voting separate as a single class, and with such other shareholder approval, if any, as may then be required pursuant to the NRS and the Articles of Incorporation.
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SECTION 11. CERTAIN DEFINED TERMS. For purposes of this Certificate of Designation, the following terms shall have the following meanings:
(a) “1934 Act” means the Securities Exchange Act of 1934, as amended.
(b) “Affiliate” as applied to any Person, means any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise. For purposes of this definition, a Person shall be deemed to be “controlled by” a Person if such latter Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors of such former Person.
(c) “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
(d) “Common Stock” means (i) the Company’s shares of common stock, par value $0.0001 per share, and (ii) any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.
(e) “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or a government or any department or agency thereof.
(f) “Principal Market” means The OTCQB, OTCQX, Pink Sheets, the Nasdaq National Market, the Nasdaq SmallCap Market, the New York Stock Exchange or NYSE American.
(g) “Subscription Agreement” means that certain Subscription Agreement by and among the Company and the initial holders of Preferred Shares, dated as of the Initial Issuance Date, as may be amended from time in accordance with the terms thereof.
(h) “Subsidiaries” shall have the meaning as set forth in the Subscription Agreement.
(i) “Successor Entity” means the Person or Entity formed by, resulting from or surviving any Fundamental Transaction or the Person or Entity with which such Fundamental Transaction shall have been entered into.
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(j) “Trading Day” means, as applicable, (i) with respect to all price determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) or (ii) with respect to all determinations other than price determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(k) “Transaction Document” means the Subscription Agreement and any other document related thereto.
(l) “Voting Stock” of a Person means capital stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power to elect, or the general power to appoint, at least a majority of the board of directors, managers, trustees or other similar governing body of such Person (irrespective of whether or not at the time capital stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
SECTION 12. MISCELLANEOUS.
(a) The headings of the various sections and subsections of this Certificate of Designation are for convenience of reference only and shall not affect the interpretation of any of the provisions of this Certificate of Designation.
(b) Whenever possible, each provision of this Certificate of Designation shall be interpreted in a manner as to be effective and valid under applicable law and public policy. If any provision set forth herein is held to be invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions of this Certificate of Designation. No provision herein set forth shall be deemed dependent upon any other provision unless so expressed herein. If a court of competent jurisdiction should determine that a provision of this Certificate of Designation would be valid or enforceable if a period of time were provision in question effective and valid under applicable law.
(c) Except as may otherwise be required by law, the shares of the Series V Preferred Stock shall not have any powers, designations, preferences or other special rights, other than those specifically set forth in this Certificate of Designation.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation of Series V Convertible Preferred Stock of OriginClear, Inc. to be signed by its Chief Financial Officer on this 16th day of April, 2021.
| OriginClear, Inc. | ||
| By: | T. Riggs Eckelberry | |
| Chairman & CEO | ||
9
EXHIBIT I
ORIGINCLEAR,
INC.
CONVERSION NOTICE
Reference is made to the Certificate of Designation of Rights, Powers, Preferences, Privileges and Restrictions of the Series V Convertible Preferred Stock of OriginClear, Inc. (the “Certificate of Designation”). In accordance with and pursuant to the Certificate of Designation, the undersigned hereby elects to convert the number of shares of Series V Convertible Preferred Stock, $0.0001 par value per share (the “Preferred Shares”), of OriginClear, Inc., a Nevada corporation (the “Company”), indicated below into shares of common stock, $0.0001 par value per share (the “Common Stock”), of the Company, as of the date specified below.
Date of Conversion: ___________________________________________________________________________
Number of Preferred Shares to be converted: _____________________________________________________
Share certificate no(s). of Preferred Shares to be converted: __________________________________________
Tax ID Number (If applicable): ________________________________________________________________
Conversion Rate: ____________________________________________________________________
Number of shares of Common Stock to be issued: _________________________________________________
Please issue the shares of Common Stock into which the Preferred Shares are being converted in the following name and to the following address:
Issue to: ____________________________________________
________________________________________________
Address:____________________________________________
Telephone Number: ____________________________________
Facsimile Number: _____________________________________
Holder:______________________________________________
By: _________________________________________________
Title:________________________________________________
Dated: _______________________________________________
Account Number (if electronic book entry transfer): _______________________________________________
Transaction Code Number (if electronic book entry transfer): ________________________________________
10
EXHIBIT II
ACKNOWLEDGMENT
The Company hereby acknowledges this Conversion Notice and hereby directs_______________ to issue the above indicated number of shares of Common Stock in accordance with the Irrevocable Transfer Agent Instructions dated __________, 20___ from the Company and acknowledged and agreed to by ______________.
| ORIGINCLEAR, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
11
Exhibit 10.4
SUBSCRIPTION AGREEMENT
Subscription Agreement between the Company, and purchaser identified on the signature page to this Agreement (the “Subscriber”), and is being delivered to the Subscriber in connection with its investment in OriginClear, Inc., a Nevada corporation (the “Company”). The Company is conducting a private placement (the “Offering”) for an amount of up to $5,000,000 of Units, each Unit consisting of 100 shares (the “Series R Preferred Shares”) of the Company’s newly created Series R Preferred Stock, having the rights set forth in the Certificate of Designation of Series R Preferred Stock substantially in the form of Exhibit A hereto (the “Series R Certificate of Designation”), (i) Series A warrants to purchase 1,000,000 shares of common stock, with an exercise price of $0.05 per share and a term of one year, substantially in the form of Exhibit B hereto (the “Series A Warrants”); (ii) solely for those Subscribers who have purchased an aggregate of $200,000 of (a) Units in this offering, together with (b) units sold in the Company’s offering of shares of the Company’s O Preferred Stock and Series P Preferred Stock (the “Combined Subscription Amount”), Series B warrants to purchase (x) 1,000,000 shares of common stock, for those Subscribers with a Combined Subscription Amount of between $200,000 and $299,999 or (y) 2,000,000 shares of common stock, for those Subscribers with a Combined Subscription Amount of at least $300,000, with an exercise price of $0.10, and a term of one year (the “Series B Warrants”), and (iii), solely for those Subscribers with a Combined Subscription Amount of at least $500,000, Series C warrants to purchase 1,000,000 shares of common stock, with an exercise price of $0.25, exercisable for a period commencing when the common stock is listed on a National Securities Exchange (as defined therein) and expiring five years from the date of initial issuance (the “Series C Warrants,” and collectively with the Series A Warrants and the Series B Warrants, the “Warrants”; the Series R Preferred Shares, the Warrants, and the shares of common stock issuable upon conversion of the Series R Preferred Shares and upon exercise of the Warrants are referred to collectively herein as the “Securities”) at a purchase price of $100,000 per Unit. For the avoidance of doubt, the amount of Series R Preferred Shares and Warrants received by Subscriber will be determined on a pro rata basis with respect to any partial Units purchased, provided that, a Subscriber may subscribe for Units in increments of not less than hundredths of a Unit, such that no partial shares of Series R Preferred Stock will be issued.
Solely by way of illustration, in the event a Subscriber hereunder purchases $500,000 of Units (and did not purchase any units of Series O Preferred Stock and Series Preferred Stock, such that the Subscriber’s Combined Subscription Amount is also equal to $500,000), such Subscriber would receive 500 shares of Series R Preferred Stock, 5,000,000 Series A Warrants, 10,000,000 Series B Warrants, and 5,000,000 Series C Warrants.
The Offering hereunder will terminate on the earlier of (i) October 31, 2021, or (ii) the sale of $5,000,000 of Units, subject however, to the right of the Company to terminate or extend this Offering at any time in its discretion and the Company’s right to reject any subscription in whole or in part.
IMPORTANT INVESTOR NOTICES
NO OFFERING LITERATURE OR ADVERTISEMENT IN ANY FORM MAY BE RELIED UPON IN THE OFFERING OF THE UNITS EXCEPT FOR THIS SUBSCRIPTION AGREEMENT AND ANY SUPPLEMENTS HERETO (THE “AGREEMENT”), AND NO PERSON HAS BEEN AUTHORIZED TO MAKE ANY REPRESENTATIONS EXCEPT THOSE CONTAINED HEREIN.
THIS AGREEMENT IS CONFIDENTIAL AND THE CONTENTS HEREOF MAY NOT BE REPRODUCED, DISTRIBUTED OR DIVULGED BY OR TO ANY PERSONS OTHER THAN THE RECIPIENT OR ITS REPRESENTATIVE, ACCOUNTANT OR LEGAL COUNSEL, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY. EACH PERSON WHO ACCEPTS DELIVERY OF THIS AGREEMENT ACKNOWLEDGES AND AGREES TO THE FOREGOING RESTRICTIONS.
THIS AGREEMENT DOES NOT PURPORT TO BE ALL-INCLUSIVE OR TO CONTAIN ALL OF THE INFORMATION THAT YOU MAY DESIRE IN EVALUATING THE COMPANY, OR AN INVESTMENT IN THE OFFERING. THIS AGREEMENT DOES NOT CONTAIN ALL OF THE INFORMATION THAT WOULD NORMALLY APPEAR IN A PROSPECTUS FOR AN OFFERING REGISTERED UNDER THE SECURITIES ACT. YOU MUST CONDUCT AND RELY ON YOUR OWN EVALUATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED, IN DECIDING WHETHER TO INVEST IN THE OFFERING.
THIS AGREEMENT DOES NOT CONSTITUTE AN OFFER OR SOLICITATION OF AN OFFER TO ANY PERSON OR IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION IS UNLAWFUL OR NOT AUTHORIZED. EACH PERSON WHO ACCEPTS DELIVERY OF THIS AGREEMENT AGREES TO RETURN IT AND ALL RELATED DOCUMENTS IF SUCH PERSON DOES NOT PURCHASE ANY OF THE UNITS DESCRIBED HEREIN.
NEITHER THE DELIVERY OF THIS AGREEMENT AT ANY TIME NOR ANY SALE OF UNITS HEREUNDER SHALL IMPLY THAT INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THE COMPANY WILL EXTEND TO EACH PROSPECTIVE INVESTOR (AND TO ITS REPRESENTATIVE, ACCOUNTANT OR LEGAL COUNSEL, IF ANY) THE OPPORTUNITY, PRIOR TO ITS PURCHASE OF UNITS, TO ASK QUESTIONS OF AND RECEIVE ANSWERS FROM THE COMPANY CONCERNING THE OFFERING AND TO OBTAIN ADDITIONAL INFORMATION, TO THE EXTENT THE COMPANY POSSESSES THE SAME OR CAN ACQUIRE IT WITHOUT UNREASONABLE EFFORT OR EXPENSE, IN ORDER TO VERIFY THE ACCURACY OF THE INFORMATION SET FORTH HEREIN. ALL SUCH ADDITIONAL INFORMATION SHALL ONLY BE PROVIDED IN WRITING AND IDENTIFIED AS SUCH BY THE COMPANY THROUGH ITS DULY AUTHORIZED OFFICERS AND/OR DIRECTORS ALONE; NO ORAL INFORMATION OR INFORMATION PROVIDED BY ANY BROKER OR THIRD PARTY MAY BE RELIED UPON.
NO REPRESENTATIONS, WARRANTIES OR ASSURANCES OF ANY KIND ARE MADE OR SHOULD BE INFERRED WITH RESPECT TO THE ECONOMIC RETURN, IF ANY, THAT MAY ACCRUE TO AN INVESTOR IN THE COMPANY.
THIS AGREEMENT CONTAINS FORWARD-LOOKING STATEMENTS REGARDING THE COMPANY’S PERFORMANCE, STRATEGY, PLANS, OBJECTIVES, EXPECTATIONS, BELIEFS AND INTENTIONS. THE OUTCOME OF THE EVENTS DESCRIBED IN THESE FORWARD-LOOKING STATEMENTS IS SUBJECT TO SUBSTANTIAL RISKS, AND ACTUAL RESULTS COULD DIFFER MATERIALLY.
THE OFFERING PRICE OF THE UNITS HAS BEEN DETERMINED ARBITRARILY. THE PRICE OF THE UNITS DOES NOT NECESSARILY BEAR ANY RELATIONSHIP TO THE ASSETS, EARNINGS OR BOOK VALUE OF THE COMPANY, OR TO POTENTIAL ASSETS, EARNINGS, OR BOOK VALUE OF THE COMPANY. THERE IS NO PUBLIC MARKET FOR THE COMPANY’S SERIES R PREFERRED STOCK OR WARRANTS AND A LIMITED MARKET IN THE COMPANY’S COMMON STOCK AND THERE CAN BE NO ASSURANCE THAT AN ACTIVE TRADING MARKET IN ANY OF THE COMPANY’S SECURITIES WILL DEVELOP OR BE MAINTAINED. THE PRICE OF SHARES OF COMMON STOCK QUOTED ON THE OTC MARKETS OR TRADED ON ANY EXCHANGE MAY BE IMPACTED BY A LACK OF LIQUIDITY OR AVAILABILITY OF SUCH SHARES FOR PUBLIC SALE AND ALSO WILL NOT NECESSARILY BEAR ANY RELATIONSHIP TO THE ASSETS, EARNINGS, BOOK VALUE OR POTENTIAL PROSPECTS OF THE COMPANY. SUCH PRICES SHOULD NOT BE CONSIDERED ACCURATE INDICATORS OF FUTURE QUOTED OR TRADING PRICES THAT MAY SUBSEQUENTLY EXIST FOLLOWING THIS OFFERING.
THE COMPANY RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO REJECT ANY SUBSCRIPTION IN WHOLE OR IN PART FOR ANY REASON OR FOR NO REASON. THE COMPANY IS NOT OBLIGATED TO NOTIFY RECIPIENTS OF THIS AGREEMENT WHETHER ALL OF THE UNITS OFFERED HEREBY HAVE BEEN SOLD.
FOR RESIDENTS OF ALL STATES
THIS OFFERING IS BEING MADE SOLELY TO “ACCREDITED INVESTORS” (IN THE UNITED STATES), AS SUCH TERM IS DEFINED IN RULE 501 OF REGULATION D UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE AND WILL BE OFFERED AND SOLD IN RELIANCE UPON THE EXEMPTION FROM REGISTRATION AFFORDED BY SECTION 4(a)(2) THEREUNDER AND REGULATION D (RULE 506) OF THE SECURITIES ACT AND CORRESPONDING PROVISIONS OF STATE SECURITIES LAWS.
THE SECURITIES OFFERED HEREBY ARE SUBJECT TO RESTRICTION ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
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THE SECURITIES OFFERED HEREBY HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (“SEC”), ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THIS AGREEMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
PROSPECTIVE INVESTORS SHOULD NOT CONSTRUE THE CONTENTS OF THIS AGREEMENT AS INVESTMENT, LEGAL, BUSINESS, OR TAX ADVICE. EACH INVESTOR SHOULD CONTACT HIS, HER OR ITS OWN ADVISORS REGARDING THE APPROPRIATENESS OF THIS INVESTMENT AND THE TAX CONSEQUENCES THEREOF, WHICH MAY DIFFER DEPENDING ON AN INVESTOR’S PARTICULAR FINANCIAL SITUATION. IN NO EVENT SHOULD THIS AGREEMENT BE DEEMED OR CONSIDERED TO BE TAX ADVICE PROVIDED BY THE COMPANY.
FOR FLORIDA RESIDENTS ONLY
THE SECURITIES REFERRED TO HEREIN WILL BE SOLD TO, AND ACQUIRED BY, THE HOLDER IN A TRANSACTION EXEMPT UNDER § 517.061 OF THE FLORIDA SECURITIES ACT. THE SECURITIES HAVE NOT BEEN REGISTERED UNDER SAID ACT IN THE STATE OF FLORIDA. IN ADDITION, ALL FLORIDA RESIDENTS SHALL HAVE THE PRIVILEGE OF VOIDING THE PURCHASE WITHIN THREE (3) DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH SUBSCRIBER TO THE COMPANY, AN AGENT OF THE COMPANY, OR WITHIN THREE DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH SUBSCRIBER, WHICHEVER OCCURS LATER.
| 1. | SUBSCRIPTION AND PURCHASE PRICE |
(a) Subscription. Subject to the conditions set forth in Section 2 hereof, the Subscriber hereby subscribes for and agrees to purchase the number of Units indicated on the Subscriber’s signature pages hereof on the terms and conditions described herein.
(b) Purchase of Units. The Subscriber understands and acknowledges that the Purchase Price to be remitted to the Company in exchange for the Units shall be set at $100,000 per Unit, for an aggregate purchase price as set forth on the signature page hereof (the “Aggregate Purchase Price”). The Subscriber shall concurrently with delivery of this Agreement to the Company pay the Purchase Price for the Units subscribed for hereunder, payable in United States Dollars, by wire transfer of immediately available funds to the Company in accordance with the wire instructions provided on Annex A, or by remitting a check using the Company’s Federal Express account and address which are also provided on Annex A. The Subscriber understands and agrees that, subject to Section 2 and applicable laws, by executing this Agreement, it is entering into a binding agreement.
| 2. | ACCEPTANCE, OFFERING TERM AND CLOSING PROCEDURES |
(a) Acceptance or Rejection. Subject to full, faithful and punctual performance and discharge by the Company of all of its duties, obligations and responsibilities as set forth in this Agreement and any other agreement entered into between the Subscriber and the Company relating to this subscription (collectively, the “Transaction Documents”), the Subscriber shall be legally bound to purchase the Units pursuant to the terms and conditions set forth in this Agreement. For the avoidance of doubt, upon the occurrence of the failure by the Company to fully, faithfully and punctually perform and discharge any of its duties, obligations and responsibilities as set forth in any of the Transaction Documents, which shall have been performed or otherwise discharged prior to the Closing, the Subscriber may, on or prior to the Closing (as defined below), at its sole and absolute discretion, elect not to purchase the Units and provide instructions to the Company to receive the full and immediate refund of the Aggregate Purchase Price. The Subscriber understands and agrees that the Company reserves the right to reject this subscription for Units in whole or part in any order at any time prior to the Closing for any reason or for no reason, notwithstanding the Subscriber’s prior receipt of notice of acceptance of the Subscriber’s subscription. In the event the Closing does not take place for any reason or no reason (including, without limitation, because the Company has terminated the Offering, which the Company may do at any time in its discretion), this Agreement and any other Transaction Documents shall thereafter be terminated and have no force or effect, and the parties shall take all steps, to ensure that the Aggregate Purchase Price shall promptly be returned or caused to be returned to the Subscriber without interest thereon or deduction therefrom.
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(b) Closing. The closing of the purchase and sale of the Units hereunder (the “Closing”) shall take place at the offices of the Company or such other place as determined by the Company and may take place in one of more closings. Closings shall take place on a Business Day promptly following the satisfaction of the conditions set forth in Section 5 below, as determined by the Company (the “Closing Date”). “Business Day” shall mean from the hours of 9:00 a.m. (Eastern Time) through 5:00 p.m. (Eastern Time) of a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required to be closed. The Series R Preferred Shares and Warrants comprising the Units purchased by the Subscriber will be delivered by the Company within 15 Business Days following the Closing Date.
(c) Following Acceptance or Rejection. The Subscriber acknowledges and agrees that this Agreement and any other documents delivered in connection herewith will be held by the Company. In the event that this Agreement is not accepted by the Company for whatever reason, which the Company expressly reserves the right to do, this Agreement, the Aggregate Purchase Price received (without interest thereon) and any other documents delivered in connection herewith will be returned to the Subscriber at the address of the Subscriber as set forth in this Agreement. If this Agreement is accepted by the Company, the Company is entitled to treat the Aggregate Purchase Price received as an interest free loan to the Company until such time as the Subscription is accepted.
| 3. | THE SUBSCRIBER’S REPRESENTATIONS, WARRANTIES AND COVENANTS |
The Subscriber hereby acknowledges, agrees with and represents, warrants and covenants to the Company, as follows:
(a) The Subscriber has full power and authority to enter into this Agreement, the execution and delivery of which has been duly authorized by all the necessary corporate actions, and no other acts or proceedings on the part of the Subscriber are necessary to authorize the execution, delivery or performance by the Subscriber of this Agreement, if applicable, and this Agreement constitutes a valid and legally binding obligation of the Subscriber, except as may be limited by bankruptcy, reorganization, insolvency, moratorium and similar laws of general application relating to or affecting the enforcement of rights of creditors, and except as enforceability of the obligations hereunder are subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law).
(b) The Subscriber acknowledges its understanding that the Offering and sale of the Securities is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(a)(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the Subscriber represents and warrants to the Company and its affiliates as follows:
(i) The Subscriber realizes that the basis for the exemption from registration may not be available if, notwithstanding the Subscriber’s representations contained herein, the Subscriber is merely acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Subscriber does not have any such intention.
(ii) The Subscriber realizes that the basis for exemption would not be available if the Offering is part of a plan or scheme to evade registration provisions of the Securities Act or any applicable state or federal securities laws.
(iii) The Subscriber is acquiring the Securities solely for investment purposes, and not with a view towards, or resale in connection with, any distribution of the Securities
(iv) The Subscriber has the financial ability to bear the economic risk of the Subscriber’s investment, has adequate means for providing for its current needs and contingencies, and has no need for liquidity with respect to an investment in the Company.
(v) The Subscriber and the Subscriber’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, the “Advisors”) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of a prospective investment in the Securities. If other than an individual, the Subscriber also represents it has not been organized solely for the purpose of acquiring the Securities.
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(vi) The Subscriber has carefully reviewed and understands this Agreement in its entirety, including without limitation all Exhibits hereto (including the Series R Certificate of Designation, the form of Series A Warrant, the form of Series B Warrant, and the form of Series C Warrant included in Annex B) and including the Risk Factors set forth in Annex C. Without limiting the generality of the foregoing, the Subscriber is aware that, pursuant to the Series R Certificate of Designation, upon conversion of shares of Series R Preferred Stock, a Subscriber that holds securities of the Company that such Subscriber purchased in certain prior offerings of the Company will be entitled to Make-Good Shares (as defined therein), subject to the terms and conditions set forth therein, that a Subscriber that does not hold such securities purchased in such prior offerings of the Company will not be entitled to.
(vii) The Subscriber (together with its Advisors, if any) has received all documents requested by the Subscriber or its agents (including that which is attached hereto forming Annex B and Annex C), has carefully reviewed them and understands the information contained therein, prior to the execution of this Agreement.
(c) The Subscriber is not relying on the Company or any of its employees, agents, sub-agents or advisors with respect to the legal, tax, economic and related considerations involved in this investment. The Subscriber has relied on the advice of, or has consulted with, only its Advisors.
(d) The Subscriber has carefully considered the potential risks relating to the Company and a purchase of the Securities, and fully understands that the Securities are a speculative investment that involves a high degree of risk of loss of the Subscriber’s entire investment. Among other things, the Subscriber has carefully considered each of the risks as described on Annex C, attached hereto.
(e) The Subscriber will not sell or otherwise transfer any Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the Subscriber must bear the economic risk of its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the Subscriber is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The Subscriber understands that any sales or transfers of the Securities are further restricted by state securities laws.
(f) No oral or written representations or warranties have been made, or information furnished, to the Subscriber or its Advisors, if any, by the Company or any of its officers, employees, agents, sub-agents, affiliates, advisors or subsidiaries in connection with the Offering, other than any representations of the Company contained herein, and in subscribing for the Units, the Subscriber is not relying upon any representations other than those contained herein.
(g) The Subscriber’s overall commitment to investments that are not readily marketable is not disproportionate to the Subscriber’s net worth, and an investment in the Securities will not cause such overall commitment to become excessive.
(h) The Subscriber understands and agrees that the certificates for the Securities shall bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel acceptable to the Company, such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws:
“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SHARES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SHARES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
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(i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the Offering. There is no government or other insurance covering any of the Securities.
(j) The Subscriber and its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the Offering, the Securities, and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the Subscriber and its Advisors, if any.
(k) In making the decision to invest in the Securities the Subscriber has relied solely upon the information provided by the Company in the Transaction Documents. To the extent necessary, the Subscriber has retained, at its own expense, and relied upon appropriate professional advice regarding the investment, tax and legal merits and consequences of this Agreement and the purchase of the Securities hereunder. The Subscriber disclaims reliance on any statements made or information provided by any person or entity in the course of Subscriber’s consideration of an investment in the Securities other than the Transaction Documents.
(l) The Subscriber has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
(m) The Subscriber is not relying on the Company or any of its employees, agents, or advisors with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the Subscriber has relied on the advice of, or has consulted with, only its own Advisors.
(n) The Subscriber acknowledges that any estimates or forward-looking statements or projections furnished by the Company to the Subscriber were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon.
(o) No oral or written representations have been made, or oral or written information furnished, to the Subscriber or its Advisors, if any, in connection with the Offering that are in any way inconsistent with the information contained herein.
(p) (For ERISA plans only) The fiduciary of the ERISA plan (the “Plan”) represents that such fiduciary has been informed of and understands the Company’s investment objectives, policies and strategies, and that the decision to invest “plan assets” (as such term is defined in ERISA) in the Company is consistent with the provisions of ERISA that require diversification of plan assets and impose other fiduciary responsibilities. The Subscriber or Plan fiduciary (i) is responsible for the decision to invest in the Company; (ii) is independent of the Company and any of its affiliates; (iii) is qualified to make such investment decision; and (iv) in making such decision, the Subscriber or Plan fiduciary has not relied primarily on any advice or recommendation of the Company or any of its affiliates.
(q) This Agreement is not enforceable by the Subscriber unless it has been accepted by the Company, and the Subscriber acknowledges and agrees that the Company reserves the right to reject any subscription for any reason or for no reason.
(r) The Subscriber will indemnify and hold harmless the Company and, where applicable, its directors, officers, employees, agents, advisors, affiliates and shareholders, and each other person, if any, who controls any of the foregoing from and against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) (a “Loss”) arising out of or based upon any representation or warranty of the Subscriber contained herein or in any document furnished by the Subscriber to the Company in connection herewith being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber herein or therein.
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(s) The Subscriber is, and on each date on which the Subscriber acquires restricted Securities will be, (i) an “Accredited Investor” as defined in Rule 501(a) under the Securities Act (in general, an “Accredited Investor” is deemed to be an institution with assets in excess of $5,000,000 or individuals with a net worth in excess of $1,000,000 (excluding such person’s principal residence) or annual income exceeding $200,000 or $300,000 jointly with his or her spouse and/or (ii) if the Subscriber is not a resident of the United States:
(a) the Subscriber is not in the United States and is not a “U.S. Person” as defined in Rule 902 of Regulation S promulgated under the Securities Act (a “U.S. Person”);
(b) the Securities were not offered to the Subscriber in the United States;
(c) this Agreement was delivered to, completed, executed and delivered by, the Subscriber (or its authorized signatory) outside the United States;
(d) the Subscriber is not a “distributor” of securities, as that term is defined in Regulation S under the Securities Act, nor a dealer in securities, and is not purchasing the Securities for the account or benefit of, directly or indirectly, any U.S. Person; and
(e) Subscriber has not purchased the Securities as a result of any form of “directed selling efforts” (as such term is used in Regulation S under the Securities Act)
(t) The Subscriber, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the Offering, and has so evaluated the merits and risks of such investment. The Subscriber has not authorized any person or entity to act as its Purchaser Representative (as that term is defined in Regulation D of the General Rules and Regulations under the Securities Act) in connection with the Offering. The Subscriber is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
(u) The Subscriber has reviewed, or had an opportunity to review, the Company’s most Annual Report on Form 10-K filed with the SEC as well as all of the Company’s filings with the SEC since January 1, 2019 (the “SEC Filings”), all of which are deemed incorporated herein by reference, including, without limitation, all “Risk Factors” and “Forward Looking Statements” disclaimers contained in the SEC Filings.
| 4. | THE COMPANY’S REPRESENTATIONS, WARRANTIES AND COVENANTS |
The Company hereby acknowledges, agrees with and represents, warrants and covenants to the Subscriber, as follows:
(a) The Company is a corporation, validly existing and in good standing under the laws of Nevada, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.
(b) The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company.
(c) The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby party do not and will not conflict with or violate any provision of the Company’s articles of incorporation or other organizational or charter documents.
| 5. | CONDITIONS TO ACCEPTANCE OF SUBSCRIPTION |
The Company’s right to accept the subscription of the Subscriber is conditioned upon satisfaction of the following conditions precedent on or before the date the Company accepts such subscription:
(a) As of the Closing, no legal action, suit or proceeding shall be pending that seeks to restrain or prohibit the transactions contemplated by this Agreement.
(b) The representations and warranties of the Company contained in this Agreement shall have been true and correct in all material respects on the date of this Agreement and shall be true and correct in all material respects as of the Closing as if made on the Closing Date (except for any such representations and warranties which are as of a different specific date).
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| 6. | MISCELLANEOUS PROVISIONS |
(a) No inference shall be drawn in favor of or against any party by virtue of the fact that such party’s counsel was or was not the principal draftsman of this Agreement.
(b) Each of the parties hereto shall be responsible to pay the costs and expenses of its own legal counsel in connection with the preparation and review of this Agreement and related documentation.
(c) Neither this Agreement, nor any provisions hereof, shall be waived, modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, modification, discharge or termination is sought.
(d) The representations, warranties and agreement of the Subscriber and the Company made in this Agreement shall survive the execution and delivery of this Agreement and the delivery of the Securities.
(e) Any party may send any notice, request, demand, claim or other communication hereunder to the Subscriber at the address set forth on the signature page of this Agreement or to the Company at its primary office (including personal delivery, expedited courier, messenger service, fax, ordinary mail or electronic mail), but no such notice, request, demand, claim or other communication will be deemed to have been duly given unless and until it actually is received by the intended recipient. Any party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other parties written notice in the manner herein set forth.
(f) Except as otherwise provided herein, this Agreement shall be binding upon, and inure to the benefit of, the parties to this Agreement and their heirs, executors, administrators, successors, legal representatives and assigns. If the Subscriber is more than one person or entity, the obligation of the Subscriber shall be joint and several and the agreements, representations, warranties and acknowledgments contained herein shall be deemed to be made by, and be binding upon, each such person or entity and its heirs, executors, administrators, successors, legal representatives and assigns. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of any and every nature among them.
(g) This Agreement is not transferable or assignable by the Subscriber.
(h) Except as otherwise provided herein, this Agreement shall not be changed, modified or amended except by a writing signed by both (a) the Company and (b) the Subscribers.
(i) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to conflicts of law principles.
(j) The Company and the Subscriber hereby agree that any dispute that may arise between them arising out of or in connection with this Agreement shall be adjudicated before a court located in New York County, New York, and they hereby submit to the exclusive jurisdiction of the federal and state courts of the State of New York located in New York County with respect to any action or legal proceeding commenced by any party, and irrevocably waive any objection they now or hereafter may have respecting the venue of any such action or proceeding brought in such a court or respecting the fact that such court is an inconvenient forum, relating to or arising out of this Agreement or any acts or omissions relating to the sale of the Securities hereunder, and consent to the service of process in any such action or legal proceeding by means of registered or certified mail, return receipt requested, postage prepaid, in care of the address set forth herein or such other address as either party shall furnish in writing to the other.
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(k) WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(l) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
| 7. | LEAK OUT. |
The Subscriber hereby agrees that, for a period commencing on the date of this Agreement, and expiring on the date that the Subscriber does not beneficially own any Securities (the “Restricted Period”), Subscriber will not sell, dispose or otherwise transfer, directly or indirectly, (including, without limitation, any sales, short sales, swaps or any derivative transactions that would be equivalent to any sales or short positions) in any 90 day period more than 1% of the total outstanding shares of common stock of the Company as of the end of such 90 day period. The Subscriber agrees that the Company may have stop transfer instructions placed with the Company’s transfer agent against transfer of shares held by Subscriber except in compliance with this Section 7. The Company may waive the limitations set forth in this Section 7 at any time in its sole discretion.
[Signature Pages Follow]
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SUBSCRIBER MUST COMPLETE THIS PAGE
IN WITNESS WHEREOF, the Subscriber has executed this Agreement on the____ day of _________ , 20___.
| __________________________________ | x $100,000 for each Unit = | __________________________________ |
| Units subscribed for | Aggregate Purchase Price |
Manner in which Title is to be held (Please Check One):
| 1. | ____ | Individual | 7. | ____ | Trust/Estate/Pension or Profit sharing Plan | |
| Date Opened:_________ | ||||||
|
2. |
____ | Joint Tenants with Right of Survivorship |
8. |
____ |
As a Custodian for | |
| __________________________________ | ||||||
| Under the Uniform Gift to Minors Act of the State of | ||||||
| 3. | ____ | Community Property | 9. | ____ | Married with Separate Property | |
| 4. | ____ | Tenants in Common | 10. | ____ | Keogh | |
| 5. | ____ | Corporation/Partnership/ Limited Liability | 11. | ____ | Tenants by the Entirety | |
| Company | ||||||
| 6. | ____ | IRA |
ALTERNATIVE DISTRIBUTION INFORMATION
To direct distribution to a party other than the registered owner, complete the information below.
YOU MUST COMPLETE THIS SECTION IF THIS IS AN IRA INVESTMENT.
Name of Firm (Bank, Brokerage, Custodian):
Account Name: ________________________________________________________________________________
Account Number: ______________________________________________________________________________
Representative Name: ___________________________________________________________________________
Representative Phone Number: ____________________________________________________________________
Address: _____________________________________________________________________________________
City, State, Zip: ________________________________________________________________________________
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IF MORE THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN.
INDIVIDUAL SUBSCRIBERS MUST COMPLETE THIS PAGE.
SUBSCRIBERS WHICH ARE ENTITIES MUST COMPLETE FOLLOWING PAGE.
EXECUTION BY NATURAL PERSONS
Exact Name in Which Title is to be Held
| Name (Please Print) | Name of Additional Subscriber | |
| Residence: Number and Street | Address of Additional Subscriber | |
| City, State and Zip Code | City, State and Zip Code | |
| Social Security Number | Social Security Number | |
| Telephone Number | Telephone Number | |
| Fax Number (if available) | Fax Number (if available) | |
| E-Mail (if available) | E-Mail (if available) | |
| (Signature) | (Signature of Additional Subscriber) |
ACCEPTED this day of ________ , 20__, on behalf of the Company.
| ORIGINCLEAR, INC. | ||
| By: | ||
| Name: | T. Riggs Eckelberry | |
| Title: | Chief Executive Officer | |
[SIGNATURE PAGE FOR SUBSCRIPTION AGREEMENT]
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EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, LLC, Trust, Etc.)
_____________________________________________________
Name of Entity (Please Print)
| Date of Incorporation or Organization: | |
|
State/Country of Principal Office: |
|
Federal Taxpayer Identification Number (or foreign equivalent): |
|
| ||||
| Office Address | ||||
|
| ||||
| City, State and Zip Code | ||||
|
|
||||
| Telephone Number | ||||
|
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| Fax Number (if available) | ||||
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| E-Mail (if available) | ||||
| By: | ||
| Name: | ||
| Title: |
ACCEPTED this day of ________ , 20__, on behalf of the Company.
| ORIGINCLEAR, INC. | ||
| By: | ||
| Name: | T. Riggs Eckelberry | |
| Title: | Chief Executive Officer | |
[SIGNATURE PAGE FOR SUBSCRIPTION AGREEMENT]
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ANNEX A
SENDING OPTIONS
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ANNEX B
DOCUMENTATION PROVIDED TO SUBSCRIBER
(See Attached)
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ANNEX C
RISK FACTORS
An investment in the Securities of the Company involves a high degree of risk and should be considered only by persons who can afford to lose their entire investment and who have no need for liquidity in their investment. You should carefully consider the risk factors described below, and discussed in the section titled “Risk Factors” in our most recent Annual Report on Form 10-K, as well as the risks, uncertainties and additional information set forth in our SEC Filings incorporated by reference herein. Our business, financial condition or results of operations could be materially adversely affected by any of these risks. The trading price of our common stock could decline due to any of these risks, and you may lose all or part of your investment.
Risks Related to the Securities and This Offering
There is no public market for the Series R Preferred Shares or Warrants and a limited public market for the common stock.
There is no public market for the Series R Preferred Shares or the Warrants, and we not intend to have such securities quoted or listed on any market. In addition, our common stock is quoted on the OTC Pink which is an unorganized, inter-dealer, over-the-counter market which provides significantly less liquidity than the NASDAQ Capital Market or other national securities exchange. These factors may have an adverse impact on the trading and price of our common stock.
The Securities will be subject to restrictions on resale.
We have not registered the sale of any of the Securities under the Securities Act or any state securities laws. The securities offered hereby are highly illiquid, and are not transferable except in accordance with the Securities Act. Consequently, the Securities may not be resold or otherwise transferred unless they are subsequently registered under applicable securities laws or an exemption therefrom is available. In view of these and other limitations to the transfer of the Securities as described herein, the Securities should be considered an illiquid investment which may need to be held indefinitely. Limitations on the transfer of the Securities may also adversely affect the price that a Subscriber might be able to obtain for such securities in a private sale.
The price of the Units has been determined without a third party valuation or fairness opinion.
We have set the price of Units without the benefit of any third party valuation or fairness opinion or review. You must make your own determination as to the accuracy, fairness or reasonableness of the price of the Units and the other terms of the Offering.
We will have significant discretion over the use of the gross proceeds.
The Company intends to use the net proceeds of this Offering for general corporate purposes and to meet working capital needs. Accordingly, Company management will have broad discretion as to the application of such proceeds. There can be no assurance that management’s use of proceeds generated through this Offering will prove optimal or translate into revenue or profitability for the Company.
There is no investor counsel.
The Company has not retained any independent professionals to review or comment on this Offering or otherwise protect the interests of Subscribers. Although the Company has retained its own counsel, neither such firm nor any other firm has made any independent examination of any factual matters represented by management herein, and purchasers of the Securities offered hereby should not rely on any such firms so retained with respect to any matters herein described.
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No governmental entity has evaluated our securities.
No federal or state commission, department or agency has made any evaluation, finding, recommendation or endorsement with respect to the Securities.
Additional stock offerings in the future may dilute then-existing shareholders’ percentage ownership of the Company.
Given our plans and expectations that we will need additional capital and personnel, we anticipate that we will need to issue additional shares of common stock or securities convertible or exercisable for shares of common stock, including convertible preferred stock, convertible notes, stock options or warrants. The issuance of additional securities in the future will dilute the percentage ownership of then current stockholders. Without limiting the generality of the foregoing, the Company may conduct other offerings concurrent with this offering.
Subscribers in this Offering who do not hold securities of the Company purchased in certain prior offerings of the Company will be subject to additional dilution.
Pursuant to the Series R Certificate of Designation, subscribers in this Offering who hold securities of the Company that such subscribers purchased in certain prior offerings of the Company, at such time as they convert Series R Preferred Stock to common stock, will be entitled to additional shares of common stock, pursuant to the formula and subject to the terms and conditions set forth therein, that holders of Series R Preferred Stock who convert shares to common stock will not otherwise be entitled to. This will result in additional dilution to subscribers in this Offering who do not hold such securities purchased in such prior offerings of the Company and will thus not be entitled to such additional shares.
We may be unable to pay dividends on the Series R Preferred Stock
Under Nevada law, the Company may not pay cash dividends to holders of Series R Preferred Stock if the Company would not be able to pay its debts as they become due in the usual course of business. This may limit our ability to pay dividends on the Series R Preferred Stock. In addition, the Company has certain other series of preferred stock that are entitled to dividends, as further described in the SEC Filings. This may also adversely affect our ability to pay dividends on the Series R Preferred Stock.
The Series R Preferred Shares will not have voting rights.
Holders of the Series R Preferred Shares, by virtue of holding such shares, will not have any voting rights, except as may be required under applicable law. Thus, the holders of the Series R Preferred Shares, by virtue of holding such shares, will have no right to participate in the election of directors of the Company or any other matter that may be brought to the vote of the shareholders of the Company.
The Series R Preferred Shares will be subject to the Company’s right of redemption.
Pursuant to the Series R Certificate of Designation, the Company will have the right (but no obligation) to redeem outstanding shares of Series R Preferred Stock, in the Company’s discretion, subject to the terms and conditions set forth therein. Such redemption, if it occurs, may reduce the return on Series R Preferred Shares for Subscribers, as redeemed shares will no longer be entitled to further dividends.
The Warrants are speculative in nature.
The Warrants do not confer any rights of common stock ownership on their holders, such as voting rights, but rather merely represent the right to acquire shares of common stock at a fixed price for a limited period of time. The market price of the common stock may never equal or exceed the respective exercise prices of the Warrants, and consequently, it may never be profitable for holders of the Warrants to exercise the Warrants. In addition, the Series C Warrants will not be exercisable until such time as the common stock is traded on a national securities exchange, which may not occur prior to such Warrants expiring.
Investors should consult their own tax advisers regarding tax consequences of this Offering, the Series R Preferred Shares, and the Warrants.
The Company makes no representations regarding the tax treatment that will apply to the Series R Preferred Shares, the Warrants, or this Offering, including, without limitation, with respect to any dividend or redemption payments under the Series R Preferred Shares. Subscribers should consult their own tax advisers regarding such tax consequences.
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Exhibit A
Form of Certificate of Designation of Series R Preferred Stock
Exhibit B
Form of Series A Warrant
Exhibit C
Form of Series B Warrant
Exhibit D
Form of Series C Warrant
Exhibit 10.5
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM.
| Warrant to purchase ____ shares of Common Stock | __________________, 202_ |
ORIGINCLEar, INC.
Series A Warrant Agreement
OriginClear, Inc., a Nevada corporation (the “Company”), certifies that, for value received, ________, or his successors or assigns (each person or entity holding all or a part of this Warrant being referred to as a “Holder”) is the registered holder of this Warrant (the “Warrant”) to subscribe for the purchase of ____ shares (the “Warrant Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”).The Warrant entitles the Holder to purchase from the Company at any time prior to the Expiration Date (as defined below) the Warrant Shares for $0.05 per Warrant Share (the “Exercise Price”), on the terms and conditions hereinafter provided, including without limitation, the limitations set forth in Section 1.3. The Exercise Price and the number of Warrant Shares purchasable upon exercise hereof are subject to adjustment as provided herein.
1. Expiration Date; Exercise
1.1 Expiration Date. The Warrant shall expire at 5:30 pm New York time on _______________ [one year from closing date under sub agreement], 20___ (the “Expiration Date”).
1.2 Manner of Exercise. (a) Cash Exercise
The Warrants are exercisable by delivery to the Company of the following (the “Exercise Documents”):
(a) this Warrant, (b) a written notice of election to exercise the Warrant as set forth on Exhibit A hereto; and (c) payment of the Exercise Price in cash by wire transfer or certified check. Within three (3) business days following receipt of the foregoing, the Company shall execute and deliver to the Holder: (a) a certificate or certificates representing the aggregate number of Warrant Shares purchased by the Holder, and (b) if less than all of the Warrant Shares evidenced by this Warrant are purchased, the original Warrant is returned to the Company, and a new warrant is requested by the Holder, a new warrant in form substantially identical hereto evidencing the right to purchase the remaining Warrant Shares not so acquired by the Holder.
(b) Cashless Exercise
In lieu of an exercise for cash in accordance with Section 1.2(a), at the election of the Holder this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive the number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = will be equal to the average closing sale price of the Common Stock for the five trading days prior to the date of receipt by the Company of the Exercise Notice (subject in all cases for adjustment for stock splits, stock dividends, and similar transactions).
(B) = the Exercise Price of this Warrant, as adjusted hereunder; and
(X) = the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.
If Warrant Shares are issued in such a “cashless exercise,” the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised, and the holding period of the Warrants being exercised may be tacked on to the holding period of the Warrant Shares. The Company agrees not to take any position contrary to this Section 1.2(b).
1.3 Limitation on Beneficial Ownership. Notwithstanding anything to the contrary set forth in this Warrant, at no time may all or a portion of the Warrants be exercised if the number of shares of Common Stock to be issued pursuant to such exercise would exceed, when aggregated with all other shares of Common Stock owned by the Holder at such time, the number of shares of Common Stock that would result in the Holder beneficially owning (as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules thereunder) more than 4.99% of all of the Common Stock outstanding at such time (the “4.99% Beneficial Ownership Limitation”); provided, however, that, upon the Holder providing the Company with sixty-one (61) days’ advance notice (the “4.99% Waiver Notice”) that the Holder would like to waive this Section 1.3 with regard to any or all shares of Common Stock issuable upon exercise of these Warrants, this Section 1.3 will be of no force or effect with regard to all or a portion of the Warrants referenced in the 4.99% Waiver Notice but shall in no event waive the 9.99% Beneficial Ownership Limitation described below. Notwithstanding anything to the contrary set forth in this Warrant, at no time may all or a portion of the Warrants be exercised if the number of shares of Common Stock to be issued pursuant to such exercise, when aggregated with all other shares of Common Stock owned by the Holder at such time, would result in the Holder beneficially owning (as determined in accordance with Section 13(d) of the 1934 Act and the rules thereunder) in excess of 9.99% of the then-issued and outstanding shares of Common Stock outstanding at such time (the “9.99% Beneficial Ownership Limitation” and the lower of the 9.99% Beneficial Ownership Limitation and the 4.99% Beneficial Ownership Limitation then in effect, the “Maximum Percentage”). By written notice to the Company, a holder of Warrants may from time to time decrease the Maximum Percentage to any other percentage specified in such notice. For purposes hereof, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of a holder of Warrants, the Company shall within three (3) Business Days confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Warrants, by the Holder and its Affiliates (as defined under the Securities Act) since the date as of which such number of outstanding shares of Common Stock was reported, that in any event are convertible or exercisable, as the case may be, into shares of the Company’s Common Stock within 60 days’ of such calculation and that are not subject to a limitation on conversion or exercise analogous to the limitation contained herein. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1.3 to correct this paragraph (or any portion hereof) that may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.
2. Adjustments of Exercise Price and Number and Kind of Warrant Shares
2.1 Stock Dividends, Stock Splits, Combinations. In the event that the Company shall at any time hereafter (a) pay a dividend in Common Stock or securities convertible into Common Stock; (b) subdivide or split its outstanding Common Stock; (c) combine its outstanding Common Stock into a smaller number of shares; then the number of Warrant Shares exercisable pursuant hereto immediately after the occurrence of any such event shall be adjusted so that the Holder thereafter may receive the number of Warrant Shares it would have owned immediately following such action if it had exercised the Warrant immediately prior to such action and the Exercise Price shall be adjusted to reflect such proportionate increases or decreases in the number of shares.
2
2.2 Reclassifications. In case of any reclassification of the outstanding shares of Common Stock (other than a change covered by Section 2.1 hereof or a change which solely affects the par value of such shares) or in the case of any merger or consolidation or merger in which the Company is not the continuing corporation and which results in any reclassification or capital reorganization of the outstanding shares), the Holder shall have the right thereafter (until the Expiration Date) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property receivable upon such reclassification, capital reorganization, merger or consolidation, by a Holder of the number of shares of Common Stock obtainable upon the exercise of the Warrant immediately prior to such event; and if any reclassification also results in a change in shares covered by Section 2.1, then such adjustment shall be made pursuant to both this Section 2.2 and Section 2.1 (without duplication). The provisions of this Section 2.2 shall similarly apply to successive reclassifications, capital reorganizations and mergers or consolidations, sales or other transfers.
3. Loss or Mutilation. Upon receipt of evidence reasonably satisfactory to the Company of the ownership of and the loss, theft, destruction or mutilation of this Warrant, and of an indemnity reasonably satisfactory to it, and (in the case of mutilation) upon surrender and cancellation of these Warrants, the Company will execute and deliver in lieu thereof a new Warrant of like tenor as the lost, stolen, destroyed or mutilated Warrant.
4. Severability. If any term, provision, covenant or restriction of this Warrant is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Warrant shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
5. Notices. All notices, requests, consents and other communications required hereunder shall be in writing and shall be effective when delivered or, if delivered by registered or certified mail, postage prepaid, return receipt requested, shall be effective on the third day following deposit in United States mail: to the Holder, at the Holder’s address of record initially on the register of holders of warrants maintained by the Company and if addressed to the Company, at its principal executive offices.
6. No Rights as Shareholder. The Holder shall have no rights as a shareholder of the Company with respect to the Warrant Shares issuable upon exercise of the Warrant until the receipt by the Company of all of the Exercise Documents.
| ORIGINCLEAR, INC. | ||
| By: | T. Riggs Eckelberry | |
| Its: | Chief Executive Officer | |
3
EXHIBIT A
NOTICE OF EXERCISE
(To be signed only upon exercise of the Warrants)
| To: | OriginClear, Inc. (the “Company”) |
The undersigned hereby elects to purchase shares of Common Stock (the “Warrant Shares”) of OriginClear, Inc. (the “Company”), pursuant to the terms of the enclosed warrant (the “Warrant”).
The undersigned:
___ (i) tenders herewith payment of the exercise price in cash for ___ Warrant Shares pursuant to the terms of the Warrant; or
____ or (ii) elect a cashless exercise pursuant to the terms of the Warrant pursuant to which the Holder will receive ____ shares of common stock for the exercise of ________ Warrants, calculated as follows:
__________________
The undersigned hereby represents and warrants to, and agrees with, the Company as follows:
1. Holder is acquiring the Warrant Shares for its own account, for investment purposes only.
2. Holder understands that an investment in the Warrant Shares involves a high degree of risk, and Holder has the financial ability to bear the economic risk of this investment in the Warrant Shares, including a complete loss of such investment. Holder has adequate means for providing for its current financial needs and has no need for liquidity with respect to this investment.
3. Holder has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Warrant Shares and in protecting its own interest in connection with this transaction.
4. Holder understands that the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act“) or under any state securities laws. Holder is familiar with the provisions of the Securities Act and Rule 144 thereunder and understands that the restrictions on transfer on the Warrant Shares may result in Holder being required to hold the Warrant Shares for an indefinite period of time.
5. Holder agrees not to sell, transfer, assign, gift, create a security interest in, or otherwise dispose of, with or without consideration (collectively, “Transfer”) any of the Warrant Shares except pursuant to an effective registration statement under the Securities Act or an exemption from registration.
Each certificate evidencing the Warrant Shares will bear the following legend:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE EXERCISED, SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.”
Dated: ____________________
By: _____________________
Exhibit 10.6
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM.
| Warrant to purchase ____ shares of Common Stock | __________________, 202_ |
ORIGINCLEar, INC.
Series B Warrant Agreement
OriginClear, Inc., a Nevada corporation (the “Company”), certifies that, for value received, ________, or his successors or assigns (each person or entity holding all or a part of this Warrant being referred to as a “Holder”) is the registered holder of this Warrant (the “Warrant”) to subscribe for the purchase of ____ shares (the “Warrant Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”).The Warrant entitles the Holder to purchase from the Company at any time prior to the Expiration Date (as defined below) the Warrant Shares for $0.10 per Warrant Share (the “Exercise Price”), on the terms and conditions hereinafter provided, including without limitation, the limitations set forth in Section 1.3. The Exercise Price and the number of Warrant Shares purchasable upon exercise hereof are subject to adjustment as provided herein.
1. Expiration Date; Exercise
1.1 Expiration Date. The Warrant shall expire at 5:30 pm New York time on _______________ [one year from closing date under sub agreement], 20___ (the “Expiration Date”).
1.2 Manner of Exercise. The Warrants are exercisable by delivery to the Company of the following (the “Exercise Documents”): (a) this Warrant, (b) a written notice of election to exercise the Warrant as set forth on Exhibit A hereto; and (c) payment of the Exercise Price in cash by wire transfer or certified check. Within three (3) business days following receipt of the foregoing, the Company shall execute and deliver to the Holder: (a) a certificate or certificates representing the aggregate number of Warrant Shares purchased by the Holder, and (b) if less than all of the Warrant Shares evidenced by this Warrant are purchased, the original Warrant is returned to the Company, and a new warrant is requested by the Holder, a new warrant in form substantially identical hereto evidencing the right to purchase the remaining Warrant Shares not so acquired by the Holder.
1.3 Limitation on Beneficial Ownership. Notwithstanding anything to the contrary set forth in this Warrant, at no time may all or a portion of the Warrants be exercised if the number of shares of Common Stock to be issued pursuant to such exercise would exceed, when aggregated with all other shares of Common Stock owned by the Holder at such time, the number of shares of Common Stock that would result in the Holder beneficially owning (as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules thereunder) more than 4.99% of all of the Common Stock outstanding at such time (the “4.99% Beneficial Ownership Limitation”); provided, however, that, upon the Holder providing the Company with sixty-one (61) days’ advance notice (the “4.99% Waiver Notice”) that the Holder would like to waive this Section 1.3 with regard to any or all shares of Common Stock issuable upon exercise of these Warrants, this Section 1.3 will be of no force or effect with regard to all or a portion of the Warrants referenced in the 4.99% Waiver Notice but shall in no event waive the 9.99% Beneficial Ownership Limitation described below. Notwithstanding anything to the contrary set forth in this Warrant, at no time may all or a portion of the Warrants be exercised if the number of shares of Common Stock to be issued pursuant to such exercise, when aggregated with all other shares of Common Stock owned by the Holder at such time, would result in the Holder beneficially owning (as determined in accordance with Section 13(d) of the 1934 Act and the rules thereunder) in excess of 9.99% of the then-issued and outstanding shares of Common Stock outstanding at such time (the “9.99% Beneficial Ownership Limitation” and the lower of the 9.99% Beneficial Ownership Limitation and the 4.99% Beneficial Ownership Limitation then in effect, the “Maximum Percentage”). By written notice to the Company, a holder of Warrants may from time to time decrease the Maximum Percentage to any other percentage specified in such notice. For purposes hereof, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of a holder of Warrants, the Company shall within three (3) Business Days confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Warrants, by the Holder and its Affiliates (as defined under the Securities Act) since the date as of which such number of outstanding shares of Common Stock was reported, that in any event are convertible or exercisable, as the case may be, into shares of the Company’s Common Stock within 60 days’ of such calculation and that are not subject to a limitation on conversion or exercise analogous to the limitation contained herein. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1.3 to correct this paragraph (or any portion hereof) that may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.
2. Adjustments of Exercise Price and Number and Kind of Warrant Shares
2.1 Stock Dividends, Stock Splits, Combinations. In the event that the Company shall at any time hereafter (a) pay a dividend in Common Stock or securities convertible into Common Stock; (b) subdivide or split its outstanding Common Stock; (c) combine its outstanding Common Stock into a smaller number of shares; then the number of Warrant Shares exercisable pursuant hereto immediately after the occurrence of any such event shall be adjusted so that the Holder thereafter may receive the number of Warrant Shares it would have owned immediately following such action if it had exercised the Warrant immediately prior to such action and the Exercise Price shall be adjusted to reflect such proportionate increases or decreases in the number of shares.
2.2 Reclassifications. In case of any reclassification of the outstanding shares of Common Stock (other than a change covered by Section 2.1 hereof or a change which solely affects the par value of such shares) or in the case of any merger or consolidation or merger in which the Company is not the continuing corporation and which results in any reclassification or capital reorganization of the outstanding shares), the Holder shall have the right thereafter (until the Expiration Date) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property receivable upon such reclassification, capital reorganization, merger or consolidation, by a Holder of the number of shares of Common Stock obtainable upon the exercise of the Warrant immediately prior to such event; and if any reclassification also results in a change in shares covered by Section 2.1, then such adjustment shall be made pursuant to both this Section 2.2 and Section 2.1 (without duplication). The provisions of this Section 2.2 shall similarly apply to successive reclassifications, capital reorganizations and mergers or consolidations, sales or other transfers.
2
3. Loss or Mutilation. Upon receipt of evidence reasonably satisfactory to the Company of the ownership of and the loss, theft, destruction or mutilation of this Warrant, and of an indemnity reasonably satisfactory to it, and (in the case of mutilation) upon surrender and cancellation of these Warrants, the Company will execute and deliver in lieu thereof a new Warrant of like tenor as the lost, stolen, destroyed or mutilated Warrant.
4. Severability. If any term, provision, covenant or restriction of this Warrant is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Warrant shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
5. Notices. All notices, requests, consents and other communications required hereunder shall be in writing and shall be effective when delivered or, if delivered by registered or certified mail, postage prepaid, return receipt requested, shall be effective on the third day following deposit in United States mail: to the Holder, at the Holder’s address of record initially on the register of holders of warrants maintained by the Company and if addressed to the Company, at its principal executive offices.
6. No Rights as Shareholder. The Holder shall have no rights as a shareholder of the Company with respect to the Warrant Shares issuable upon exercise of the Warrant until the receipt by the Company of all of the Exercise Documents.
| ORIGINCLEAR, INC. | ||
| By: | T. Riggs Eckelberry | |
| Its: | Chief Executive Officer | |
3
EXHIBIT A
NOTICE OF EXERCISE
(To be signed only upon exercise of the Warrants)
| To: | OriginClear, Inc. (the “Company”) |
The undersigned hereby elects to purchase shares of Common Stock (the “Warrant Shares”) of OriginClear, Inc. (the “Company”), pursuant to the terms of the enclosed warrant (the “Warrant”). The undersigned tenders herewith payment of the exercise price pursuant to the terms of the Warrant.
The undersigned hereby represents and warrants to, and agrees with, the Company as follows:
1. Holder is acquiring the Warrant Shares for its own account, for investment purposes only.
2. Holder understands that an investment in the Warrant Shares involves a high degree of risk, and Holder has the financial ability to bear the economic risk of this investment in the Warrant Shares, including a complete loss of such investment. Holder has adequate means for providing for its current financial needs and has no need for liquidity with respect to this investment.
3. Holder has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Warrant Shares and in protecting its own interest in connection with this transaction.
4. Holder understands that the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act“) or under any state securities laws. Holder is familiar with the provisions of the Securities Act and Rule 144 thereunder and understands that the restrictions on transfer on the Warrant Shares may result in Holder being required to hold the Warrant Shares for an indefinite period of time.
5. Holder agrees not to sell, transfer, assign, gift, create a security interest in, or otherwise dispose of, with or without consideration (collectively, “Transfer”) any of the Warrant Shares except pursuant to an effective registration statement under the Securities Act or an exemption from registration.
Each certificate evidencing the Warrant Shares will bear the following legend:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE EXERCISED, SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.”
Number of Warrants Exercised: ______________
Dated: ____________________
By: _____________________
Exhibit 10.7
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM.
| Warrant to purchase ____ shares of Common Stock | __________________, 202_ |
ORIGINCLEar, INC.
Series C Warrant Agreement
OriginClear, Inc., a Nevada corporation (the “Company”), certifies that, for value received, ________, or his successors or assigns (each person or entity holding all or a part of this Warrant being referred to as a “Holder”) is the registered holder of this Warrant (the “Warrant”) to subscribe for the purchase of ____ shares (the “Warrant Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”).The Warrant entitles the Holder to purchase from the Company at any time for the period commencing on such date the Common Stock is listed on a National Securities Exchange (defined below), and terminating on the Expiration Date (as defined below) the Warrant Shares for $0.25 per Warrant Share (the “Exercise Price”), on the terms and conditions hereinafter provided, including without limitation, the limitations set forth in Section 1.3. The Exercise Price and the number of Warrant Shares purchasable upon exercise hereof are subject to adjustment as provided herein. “National Securities Exchange” means the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any successors to any of the foregoing)
1. Expiration Date; Exercise
1.1 Expiration Date. The Warrant shall expire at 5:30 pm New York time on _______________ [five years from closing date under sub agreement], 20___ (the “Expiration Date”).
1.2 Manner of Exercise. (a) Cash Exercise
The Warrants are exercisable by delivery to the Company of the following (the “Exercise Documents”): (a) this Warrant, (b) a written notice of election to exercise the Warrant as set forth on Exhibit A hereto; and (c) payment of the Exercise Price in cash by wire transfer or certified check. Within three (3) business days following receipt of the foregoing, the Company shall execute and deliver to the Holder: (a) a certificate or certificates representing the aggregate number of Warrant Shares purchased by the Holder, and (b) if less than all of the Warrant Shares evidenced by this Warrant are purchased, the original Warrant is returned to the Company, and a new warrant is requested by the Holder, a new warrant in form substantially identical hereto evidencing the right to purchase the remaining Warrant Shares not so acquired by the Holder.
(b) Cashless Exercise
In lieu of an exercise for cash in accordance with Section 1.2(a), at the election of the Holder this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive the number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = will be equal to the average closing sale price of the Common Stock for the five trading days prior to the date of receipt by the Company of the Exercise Notice (subject in all cases for adjustment for stock splits, stock dividends, and similar transactions).
(B) = the Exercise Price of this Warrant, as adjusted hereunder; and
(X) = the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.
If Warrant Shares are issued in such a “cashless exercise,” the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised, and the holding period of the Warrants being exercised may be tacked on to the holding period of the Warrant Shares. The Company agrees not to take any position contrary to this Section 1.2(b).
1.3 Limitation on Beneficial Ownership. Notwithstanding anything to the contrary set forth in this Warrant, at no time may all or a portion of the Warrants be exercised if the number of shares of Common Stock to be issued pursuant to such exercise would exceed, when aggregated with all other shares of Common Stock owned by the Holder at such time, the number of shares of Common Stock that would result in the Holder beneficially owning (as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules thereunder) more than 4.99% of all of the Common Stock outstanding at such time (the “4.99% Beneficial Ownership Limitation”); provided, however, that, upon the Holder providing the Company with sixty-one (61) days’ advance notice (the “4.99% Waiver Notice”) that the Holder would like to waive this Section 1.3 with regard to any or all shares of Common Stock issuable upon exercise of these Warrants, this Section 1.3 will be of no force or effect with regard to all or a portion of the Warrants referenced in the 4.99% Waiver Notice but shall in no event waive the 9.99% Beneficial Ownership Limitation described below. Notwithstanding anything to the contrary set forth in this Warrant, at no time may all or a portion of the Warrants be exercised if the number of shares of Common Stock to be issued pursuant to such exercise, when aggregated with all other shares of Common Stock owned by the Holder at such time, would result in the Holder beneficially owning (as determined in accordance with Section 13(d) of the 1934 Act and the rules thereunder) in excess of 9.99% of the then-issued and outstanding shares of Common Stock outstanding at such time (the “9.99% Beneficial Ownership Limitation” and the lower of the 9.99% Beneficial Ownership Limitation and the 4.99% Beneficial Ownership Limitation then in effect, the “Maximum Percentage”). By written notice to the Company, a holder of Warrants may from time to time decrease the Maximum Percentage to any other percentage specified in such notice. For purposes hereof, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of a holder of Warrants, the Company shall within three (3) Business Days confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Warrants, by the Holder and its Affiliates (as defined under the Securities Act) since the date as of which such number of outstanding shares of Common Stock was reported, that in any event are convertible or exercisable, as the case may be, into shares of the Company’s Common Stock within 60 days’ of such calculation and that are not subject to a limitation on conversion or exercise analogous to the limitation contained herein. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1.3 to correct this paragraph (or any portion hereof) that may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.
2
2. Adjustments of Exercise Price and Number and Kind of Warrant Shares
2.1 Stock Dividends, Stock Splits, Combinations. In the event that the Company shall at any time hereafter (a) pay a dividend in Common Stock or securities convertible into Common Stock; (b) subdivide or split its outstanding Common Stock; (c) combine its outstanding Common Stock into a smaller number of shares; then the number of Warrant Shares exercisable pursuant hereto immediately after the occurrence of any such event shall be adjusted so that the Holder thereafter may receive the number of Warrant Shares it would have owned immediately following such action if it had exercised the Warrant immediately prior to such action and the Exercise Price shall be adjusted to reflect such proportionate increases or decreases in the number of shares.
2.2 Reclassifications. In case of any reclassification of the outstanding shares of Common Stock (other than a change covered by Section 2.1 hereof or a change which solely affects the par value of such shares) or in the case of any merger or consolidation or merger in which the Company is not the continuing corporation and which results in any reclassification or capital reorganization of the outstanding shares), the Holder shall have the right thereafter (until the Expiration Date) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property receivable upon such reclassification, capital reorganization, merger or consolidation, by a Holder of the number of shares of Common Stock obtainable upon the exercise of the Warrant immediately prior to such event; and if any reclassification also results in a change in shares covered by Section 2.1, then such adjustment shall be made pursuant to both this Section 2.2 and Section 2.1 (without duplication). The provisions of this Section 2.2 shall similarly apply to successive reclassifications, capital reorganizations and mergers or consolidations, sales or other transfers.
3. Loss or Mutilation. Upon receipt of evidence reasonably satisfactory to the Company of the ownership of and the loss, theft, destruction or mutilation of this Warrant, and of an indemnity reasonably satisfactory to it, and (in the case of mutilation) upon surrender and cancellation of these Warrants, the Company will execute and deliver in lieu thereof a new Warrant of like tenor as the lost, stolen, destroyed or mutilated Warrant.
4. Severability. If any term, provision, covenant or restriction of this Warrant is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Warrant shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
5. Notices. All notices, requests, consents and other communications required hereunder shall be in writing and shall be effective when delivered or, if delivered by registered or certified mail, postage prepaid, return receipt requested, shall be effective on the third day following deposit in United States mail: to the Holder, at the Holder’s address of record initially on the register of holders of warrants maintained by the Company and if addressed to the Company, at its principal executive offices.
6. No Rights as Shareholder. The Holder shall have no rights as a shareholder of the Company with respect to the Warrant Shares issuable upon exercise of the Warrant until the receipt by the Company of all of the Exercise Documents.
| ORIGINCLEAR, INC. | ||
| By: | T. Riggs Eckelberry | |
| Its: | Chief Executive Officer | |
3
EXHIBIT A
NOTICE OF EXERCISE
(To be signed only upon exercise of the Warrants)
| To: | OriginClear, Inc. (the “Company”) |
The undersigned hereby elects to purchase shares of Common Stock (the “Warrant Shares”) of OriginClear, Inc. (the “Company”), pursuant to the terms of the enclosed warrant (the “Warrant”).
The undersigned:
___ (i) tenders herewith payment of the exercise price in cash for ___ Warrant Shares pursuant to the terms of the Warrant; or
____ or (ii) elect a cashless exercise pursuant to the terms of the Warrant pursuant to which the Holder will receive ____ shares of common stock for the exercise of ________ Warrants, calculated as follows:
__________________
The undersigned hereby represents and warrants to, and agrees with, the Company as follows:
1. Holder is acquiring the Warrant Shares for its own account, for investment purposes only.
2. Holder understands that an investment in the Warrant Shares involves a high degree of risk, and Holder has the financial ability to bear the economic risk of this investment in the Warrant Shares, including a complete loss of such investment. Holder has adequate means for providing for its current financial needs and has no need for liquidity with respect to this investment.
3. Holder has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Warrant Shares and in protecting its own interest in connection with this transaction.
4. Holder understands that the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or under any state securities laws. Holder is familiar with the provisions of the Securities Act and Rule 144 thereunder and understands that the restrictions on transfer on the Warrant Shares may result in Holder being required to hold the Warrant Shares for an indefinite period of time.
5. Holder agrees not to sell, transfer, assign, gift, create a security interest in, or otherwise dispose of, with or without consideration (collectively, “Transfer”) any of the Warrant Shares except pursuant to an effective registration statement under the Securities Act or an exemption from registration.
Each certificate evidencing the Warrant Shares will bear the following legend:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE EXERCISED, SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.”
| Dated: | ____________________ | |
| By: | ____________________ |
4
Exhibit 14.1
Code of Ethics
CODE OF BUSINESS CONDUCT AND ETHICS
(Adopted by the Board of Directors on March 22, 2011)
A. INTRODUCTION
This Code of Business Conduct and Ethics covers a wide range of business practices and procedures. It does not cover every issue that may arise but it sets out basic principles to guide all employees of OriginClear, Inc. (the “Company”). All of our officers, directors and employees must conduct themselves accordingly and seek to avoid even the appearance of improper behavior. The code should also be provided to and followed by the Company’s agents and representatives, including consultants.
Those who violate standards in this Code will be subject to disciplinary action, up to and including termination of employment. If you are in a situation that you believe may violate or lead to a violation of this Code, follow the guidelines described in Section 13 of this Code.
1. COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Obey the law, both in letter and in spirit. All employees must respect and obey the laws of the cities, states and countries in which we operate. Although not all employees are expected to know the details of these laws, it is important to know enough about them to determine when to seek advice from supervisors, managers or other appropriate personnel.
2. CONFLICTS OF INTEREST. A “conflict of interest” exists when a person’s private interests interferes in any way with the interests of the Company. A conflict situation can arise when an employee, officer or director takes actions or has interests that may make it difficult to perform his or her Company work objectively and efficiently. Conflicts of interest may also arise when an employee, officer or director, or members of his or her family, receives improper personal benefits as a result of his or her position in the Company. Loans to, or guarantees of obligations of, employees and their family members may create conflicts of interest.
It is almost always a conflict of interest for a Company employee to work simultaneously for a competitor, customer or supplier. You are not allowed to work for a competitor as a consultant or board member. The best policy is to avoid any direct or indirect business connection with our customers, suppliers or competitors, except on our behalf. Conflicts of interest are prohibited as a matter of Company policy, except under guidelines approved by our Board of Directors. Conflicts of interest may not always be clear-cut, so if you have a question, you should consult with higher levels of management. Any employee, officer or director who becomes aware of a conflict or potential conflict should bring it to the attention of a supervisor, manager or other appropriate personnel or consult with the procedures described in Section 14 of this Code.
3. INSIDER TRADING. Employees who have access to confidential information are not permitted to use or share that information for stock trading purposes or for any other purpose except the conduct of our business. All non-public information about the Company should be considered confidential information. To use non-public information for personal financial benefit or to “tip” others who might make an investment decision on the basis of this information is not only unethical but also illegal.
4. CORPORATE OPPORTUNITIES. Employees, officer and directors are prohibited from taking for themselves personally, opportunities that are discovered through the use of corporate property, information or position without the consent of the Board of Directors. No employee may use corporate property, information or position for improper personal gain and no employee may compete with the Company, directly or indirectly.
5. COMPETITION AND FAIR DEALING. We seek to outperform our competition fairly and honestly. Stealing proprietary information, possessing trade secret information that was obtained without the owner’s consent, or inducing such disclosures by past or present employees of other companies is prohibited. Each officer, director and employee should respect the rights of and deal fairly with the Company’s customers, suppliers, competitors and employees. No employee should take unfair advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts, or any other intentional unfair-dealing practice.
The purpose of business entertainment and gifts in a commercial setting is to create good will and sound working relationships, not to gain unfair advantage with customers. No gift, or entertainment should ever be offered, given, provided or accepted by any Company employee, family member of an employee or agent, unless it (a) is not in cash, (b) is consistent with customary business practices, (c) is not excessive in value, (d) cannot be construed as a bribe or payoff and (e) does not violate any laws or regulations. Please discuss with your supervisor any gifts or proposed gifts that you are not certain are appropriate.
6. DISCRIMINATION AND HARASSMENT. The diversity of the Company’s employees is a tremendous asset. We are firmly committed to providing equal opportunity in all respects aspects of employment and will not tolerate illegal discrimination or harassment of any kind. Examples include derogatory comments based on racial or ethnic characteristics and unwelcome sexual advances.
7. HEALTH AND SAFETY. The Company strives to provide each employee with a safe and healthy work environment. Each employee has responsibility for maintaining a safe and healthy workplace for all employees by following safety and health rules and practices and reporting accidents, injuries and unsafe equipment, practices or conditions.
Violence and threatening behavior are not permitted. Employees should report to work in condition to perform their duties, free from the influence of illegal drugs or alcohol. The use of alcohol and/or illegal drugs in the workplace will not be tolerated.
8. RECORD-KEEPING. The Company requires honest and accurate recording and reporting of information in order to make responsible business decisions. All of the Company’s books, records, accounts and financial statements must be maintained in reasonable detail, must appropriately reflect the Company’s transactions and must conform to both applicable legal requirements and to the Company’s systems of accounting and internal controls. Unrecorded or “off the books” funds or assets should not be maintained unless permitted by applicable laws or regulations.
Records should always be retained or destroyed according to the Company’s record retention policies. In accordance with these policies, in the event of litigation or governmental investigation please consultant your supervisor. All e-mail communications are the property of the Company and employees, officers and directors should not expect that Company or personal e-mail communications are private. All e-mails are the property of the Company. No employee, officer or director shall use Company computers, including access to the internet, for personal or non-Company business.
9. CONFIDENTIALITY. Employees must maintain the confidentiality of confidential information entrusted to them by the Company or its customers, except when disclosure is required by laws or regulations. Confidential information includes all non-public information that might be of use to competitors, or harmful to the Company or its customers, if disclosed. It also includes information that suppliers and customers have entrusted to us. The obligation to preserve confidential information continues even after employment ends. In connection with this obligation, employees, officers and directors may be required to execute confidentiality agreements confirming their agreement to be bound not to disclose confidential information. If you are uncertain whether particular information is confidential or non-public, please consult your supervisor.
10. PROTECTION AND PROPER USE OF COMPANY ASSETS. All officers, directors and employees should endeavor to protect the Company’s assets and ensure their efficient use. Theft, carelessness and waste have a direct impact on the Company’s profitability. Any suspected incident of fraud or theft should be immediately reported for investigation. Company equipment should not be used for non-Company business.
The obligation of officers, directors and employees to protect the Company’s assets includes it proprietary information. Proprietary information includes intellectual property such as trade secrets, patents, trademarks and copyrights, as well as business, marketing and service plans, engineering and manufacturing ideas, designs, databases, records, salary information and any unpublished financial data and reports. Unauthorized use or distribution of this information would violate Company policy. It could also be illegal and result in civil or even criminal penalties.
11. PAYMENTS TO GOVERNMENT PERSONNEL. The Unites States Foreign Corrupt Practices Act prohibits giving anything of value, directly or indirectly, to officials of foreign governments or foreign political candidates in order to obtain or retain business. It is strictly prohibited to make illegal payments to government officials of any country.
In addition, the U. S. government has a number of laws and regulations regarding business gratuities that may be accepted by U. S. government personnel. The promise, offer or delivery to an official or employee of the U. S. government of a gist, favor or other gratuity in violation of these rules would not only violate Company policy, but could also be a criminal offense. State and local governments, as well as foreign governments, may have similar rules.
12. WAIVERS OF THE CODE OF BUSINESS CONDUCT AND ETHICS. Any waiver of the provisions of this Code may be made only by the Board of Directors and will be promptly disclosed as required by law or stock exchange rule or regulation.
13. REPORTING ANY ILLEGAL OR UNETHICAL BEHAVIOR. Employees are encouraged to talk with supervisors, managers or Company officials about observed illegal or unethical behavior, and when in doubt about the best course of action in a particular situation. It is the Company’s policy not to allow retaliation for reports of misconduct by others made in good faith by employees. Employees are expected to cooperate in internal investigations of misconduct, and the failure to do so could serve as grounds for termination.
Any employee may submit a good faith concern regarding questionable accounting or auditing matters without fear of dismissal or retaliation of any kind.
B. CODE OF ETHICS FOR THE CHIEF EXECUTIVE OFFICER AND SENIOR FINANCIAL OFFICERS
The Company’s Code of Business Conduct and Ethics is applicable to all employees, officers and directors of the Company. The Chief Executive Officer (CEO) and senior financial officers of the Company, including its chief financial officer and principal accounting officer, are bound by the provisions set forth therein relating to ethical conduct, conflicts of interest and compliance with law. However, in addition to the Code of Business Conduct and Ethics, the CEO and senior financial officers of the Company are also subject to the following specific policies:
The CEO and senior financial officers are responsible for full, fair, accurate, timely and understandable disclosure in the periodic reports and other filings required to be made by the Company with the Securities and Exchange Commission. Accordingly, it is the responsibility of the CEO and each senior financial officer promptly to bring to the attention of the Board of Directors any material information of which he or she may become aware that affects the disclosures made by the Company in its public filings or otherwise impairs the ability of the Company to make full, fair, accurate, timely and understandable public disclosures.
The CEO and each senior financial officer shall promptly bring to the attention of the Company’s Audit Committee and/or the full Board of Directors any information he or she may have concerning (a) significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize and report financial data or (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s financial reporting, disclosures or internal controls.
The CEO and each senior financial officer shall promptly bring to the attention of the Board of Directors and/or the Audit Committee any information he or she may have concerning any violation of the Company’s Code of Business Conduct and Ethics, including any actual or apparent conflicts of interest between personal and professional relationships, involving management or other employees who have a significant role in the Company’s financial reporting, disclosures or internal controls.
The CEO and each senior financial officer shall promptly bring to the attention of the Board of Directors and/or Audit Committee any information he or she may have concerning evidence of a material violation of the securities or other laws, rules or regulations applicable to the Company and the operation of its business, by the Company or any agent thereof, or of violation of the Code of Business Conduct and Ethics or of these additional procedures.
The Board of Directors shall determine, or designate appropriate persons to determine appropriate actions to be taken in the event of violations of the Code of Business Conduct and Ethics of these additional procedures by the CEO and the Company’s senior financial officers. Such actions shall be reasonably designed to deter wrongdoing and to promote accountability for adherence to the Code of Business Conduct and Ethics and to these additional procedures, and shall include written notices to the individual involved that the Board has determined that there has been a violation, censure by the Board, demotion or reassignment of the individual involved, suspension with or without pay or benefits (as determined by the Board) and termination of the individual’s employment. In determining what action is appropriate in a particular case, the Board of Directors or such designee shall take into account all relevant information, including the nature and severity of the violation, whether the violation was a single occurrence or repeated occurrences, whether the violation appears to have been intentional or inadvertent, whether the individual in question had been advised prior to the violation as to the proper course of action and whether or not the individual in question had committed other violations in the past.
Exhibit 21.1
Subsidiaries of the Registrant
| Name | Jurisdiction of Organization |
| Progressive Water Treatment, Inc. | Texas |
| Water On Demand #1, Inc. | Nevada |
Exhibit 31
Certifications
I, T Riggs Eckelberry, certify that:
1. I have reviewed this Annual Report on Form 10-K of OriginClear, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. I am responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: May 21, 2021 | /s/ T Riggs Eckelberry |
| T Riggs Eckelberry | |
| Chief Executive Officer (Principal Executive Officer), Acting Chief Financial Officer | |
| (Principal Accounting and Financial Officer) |
Exhibit 32
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 this Annual Report of OriginClear, Inc. (the “Company”) on Form 10-K filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, T Riggs Eckelberry, Chairman, Chief Executive Officer and Acting Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 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: May 21, 2021 | /s/ T Riggs Eckelberry |
| T Riggs Eckelberry | |
|
Chief Executive Officer Acting Chief Financial Officer (Principal Accounting and Financial Officer) |