RTB Digital, Inc 8-K, filed Jan 7, 2020
RTB Digital, Inc. (RTB)
About this 8-K
RTB Digital, Inc filed this 8-K on January 7, 2020, reporting on events of March 23, 2018.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.01: Completed an acquisition or sale of assets
- Item 2.03: New debt or off-balance-sheet obligation
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 23, 2018
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GREENBOX POS |
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(Exact name of registrant as specified in its charter) |
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Nevada |
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001-34294 |
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22-3962936 |
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(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
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8880 Rio San Diego Dr, Suite 102 San Diego, CA 92108 |
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(Address of principal executive offices) (Zip Code) |
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(619) 631-8261
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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. ☐
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Item 1.01 |
Entry into a Material Definitive Agreement. |
On January 4, 2020 (the “Agreement Date”), GreenBox POS, a Nevada corporation (the “Company”), entered into an Asset Purchase Agreement (the “Agreement”) with GreenBox POS LLC, a Washington limited liability company (“PrivCo”), in an effort to clarify and memorialize a verbal agreement (the “Verbal Agreement”) previously entered into on April 12, 2018, by and between the Company and PrivCo.
On March 23, 2018, the then controlling shareholder and then sole officer and sole director of the Company, Frank Yuan, along with his wife, Vicky PMW Yuan, entered into a Purchase Agreement with PrivCo (the “SPA”), whereby the Yuans agreed to sell 144,445,000 restricted shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), to PrivCo for a consideration of $500,000: $250,000 in cash, paid at closing, and $250,000 in restricted shares of Common Stock (the “Shares Due”).
On or about March 29, 2018, Frank Yuan converted a portion of a Line of Credit that Frank Yuan had previously issued to the Company, in exchange for 144,445,000 restricted shares of Common Stock, representing approximately 90% of the Company’s issued and outstanding shares of Common Stock (the “Control Block”).
Pursuant to the SPA, on April 12, 2018, Frank Yuan caused the Control Block to be transferred to PrivCo.
On April 12, 2018, all business being conducted at that time by the Company (the “ASAP Business”) was transferred from the Company to ASAP Property Holdings Inc., a company owned and operated by Mr. Yuan (“Holdings”). In consideration for the ASAP Business, Holdings assumed all liabilities related to the ASAP Business. On April 12, 2018, following the SPA being entered into and the ASAP Business being transferred to Holdings, Mr. Ben Errez and Mr. Fredi Nisan were the sole acting officers and sole acting directors of the Company. On May 3, 2018, Frank Yuan formally resigned, and Messrs. Errez and Nisan were formally appointed the sole officers and sole directors of the Company.
On April 12, 2018, the control person of PrivCo was Mr. Nisan.
On April 12, 2018, pursuant to the Verbal Agreement, the Company acquired PrivCo’s blockchain gateway and payment system business, point of sale system business, delivery business and kiosk business, and bank and merchant accounts, as well as all intellectual property related thereto (the “GreenBox Business”). As consideration for the GreenBox Business, on April 12, 2018, the Company assumed PrivCo’s liabilities that had been incurred in the normal course of the GreenBox Business (collectively, the “GreenBox Acquisition”).
On or about June 8, 2018, PrivCo paid the Shares Due, by transferring 609,756 restricted shares of Common Stock to Frank Yuan’s designees, Frank Yuan and his son, Jerome Yuan.
By virtue of the Verbal Agreement and the Agreement, the Company became a party to the Subscription and Stock Purchase Agreement (the “RB Cap SPA”) with RB Capital Partners (“RB Cap”) and PrivCo is no longer a party to the RB Cap SPA. RB Cap and PrivCo subsequently disputed the terms of the RB Cap SPA. Pursuant to the Agreement, the Company and PrivCo agreed that the Company shall pay all litigation expenses that may result from this dispute or any other disputes with RB Cap and that the Company shall not seek reimbursement of litigation expenses related to disputes with RB Cap that the Company has paid on behalf of PrivCo through the date of the Agreement.
By virtue of the Agreement, the Company is now the borrower pursuant to the $300,000 convertible promissory note issued by PrivCo to RB Cap, with an interest rate of 12% per annum (the “RB Cap 300K Note”). The principal balance assumed by the Company is $115,000. PrivCo is no longer a party to the RB Cap 300K Note.
An Asset Purchase Agreement was executed on September 20, 2018 by the Company and PrivCo (the “September 2018 APA”), however, the transactions agreed to in September 2018 APA were never consummated and the Company and PrivCo agreed in the Agreement that the September 2018 APA is null and void.
Pursuant to the Agreement, the Company agreed to pay all litigation expenses that may result from certain disputes involving parties that entered into transactions with PrivCo and that the Company shall not seek reimbursement of litigation expenses related to these disputes that the Company has paid on behalf of PrivCo through the date of the Agreement.
Pursuant to the Agreement, the Company agreed to pay all expenses related to the audit of PrivCo and related to the preparation of the 2018 tax returns of PrivCo and that the Company shall not seek reimbursement of expenses related to the audit and the 2018 tax returns that the Company has paid on behalf of PrivCo through the date of the Agreement.
Item 1.01 of this Current Report on Form 8-K contains only a brief description of the material terms of the Agreement and does not purport to be a complete description of the rights and obligations of the parties thereunder. Such description is qualified in its entirety by reference to the full text of the Agreement which is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
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Item 2.01 |
Completion of Acquisition or Disposition of Assets. |
The applicable information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.
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Item 2.03 |
Creation of Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The applicable information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this Item 2.03.
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Item 9.01 |
Financial Statements and Exhibits. |
(a) Financial Statements of Businesses Acquired.
In connection with the Agreement, the audited financial statements of GreenBox POS LLC as of December 31, 2017 are attached as Exhibit 99.1 to this Current Report on Form 8-K.
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(d) |
Exhibits. |
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Exhibit No. |
Description |
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10.1 |
Asset Purchase Agreement, dated January 4, 2020, by and between GreenBox POS and GreenBox POS LLC |
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99.1 |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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GREENBOX POS |
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Date: January 7, 2020 |
By: |
/s/ Ben Errez |
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Name: Ben Errez |
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Title: Executive Vice President |
Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into as of January 4, 2020 (the “Agreement Date”) to memorialize a verbal agreement (the “Verbal Agreement”) entered into on April 12, 2018, by and among (i) GreenBox POS, a Nevada corporation (“PubCo” and “Buyer”) and (ii) GreenBox POS LLC, a Washington limited liability company (“PrivCo” and “Seller”, and together with the Buyer, each a “Party”, and together the “Parties”).
Recitals
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A. |
PubCo was formed as ASAP Expo, Inc. on April 10, 2007. |
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B. |
PrivCo was formed on August 10, 2017. |
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C. |
As of the Agreement Date, the sole officers and sole directors of PubCo are Ben Errez and Fredi Nisan. |
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D. |
As of the Agreement Date, the control person of PrivCo is Mr. Nisan. |
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E. |
On March 23, 2018, the then controlling shareholder and then sole officer and sole director of PubCo, Frank Yuan, along with his wife, Vicky PMW Yuan, entered into a Purchase Agreement with PrivCo (the “SPA”). |
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F. |
Pursuant to the SPA, the Yuans agreed to sell 144,445,000 restricted shares of PubCo’s common stock, par value $0.001 per share (the “Common Stock”), to PrivCo for a consideration of $500,000: $250,000 in cash, paid at closing, and $250,000 in restricted shares of Common Stock (the “Shares Due”) to be issued within 30 days of the close of the SPA. |
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G. |
On or about March 29, 2018, Frank Yuan converted a portion of a Line of Credit that Frank Yuan had previously issued to PubCo, in exchange for 144,445,000 restricted shares of Common Stock, representing approximately 90% of PubCo’s issued and outstanding shares of Common Stock (the “Control Block”). |
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H. |
Pursuant to the SPA, on April 12, 2018, Frank Yuan caused the Control Block to be transferred to PrivCo. |
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I. |
On April 12, 2018, all business being conducted at that time by PubCo (the “ASAP Business”) was transferred from PubCo to ASAP Property Holdings Inc., a company owned and operated by Mr. Yuan (“Holdings”). In consideration for the ASAP Business, Holdings assumed all liabilities related to the ASAP Business. On April 12, 2018, following the SPA being entered into and the ASAP Business being transferred to Holdings, Messrs. Errez and Nisan were the sole acting officers and sole acting directors of PubCo. On May 3, 2018, Frank Yuan formally resigned, and Messrs. Errez and Nisan were formally appointed the sole officers and sole directors of PubCo. |
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J. |
On April 12, 2018, the control person of PrivCo was Mr. Nisan. |
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K. |
On April 12, 2018, pursuant to the Verbal Agreement, PubCo acquired PrivCo’s blockchain gateway and payment system business, point of sale system business, delivery business and kiosk business, and bank and merchant accounts, as well as all intellectual property related thereto (the “GreenBox Business”). As consideration for the GreenBox Business, on April 12, 2018, PubCo assumed PrivCo’s liabilities that had been incurred in the normal course of the GreenBox Business (collectively, the “GreenBox Acquisition”). |
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L. |
For accounting and reporting purposes, PubCo deemed the GreenBox Acquisition a “Reverse Acquisition” with PrivCo designated the “accounting acquirer” and PubCo designated the “accounting acquiree.” |
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M. |
On May 3, 2018, PubCo formally changed its name to GreenBox POS LLC, then subsequently changed its name to GreenBox POS on December 13, 2018. |
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N. |
On or about June 8, 2018, PrivCo paid the Shares Due, by transferring 609,756 restricted shares of Common Stock from the Control Block to Frank Yuan’s designees, Frank Yuan and his son, Jerome Yuan. |
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O. |
After April 12, 2018 and through the Agreement Date (the “In Between Period”), because there was ambiguity regarding the validity of the Verbal Agreement, PubCo filed required quarterly and annual reports with the Securities and Exchange Commission (the “Commission”) as if there had not been a Reverse Acquisition. During the In Between Period, PrivCo continued to operate as if it still owned the GreenBox Business, which included maintaining records of GreenBox Business financial transactions on PrivCo’s QuickBooks, and entering into contracts and agreements as PrivCo, while PubCo paid all expenses, including expenses related to PrivCo contracts entered into prior to April 12, 2018 and after April 12, 2018. During the In Between Period, PubCo paid all expenses incurred as a result of litigation resulting from disagreements between PrivCo and other parties. During the In Between Period, PubCo represented itself in press releases, as being the owner/operator of the GreenBox Business. Additionally, from April 12, 2018 through approximately December 31, 2018, PubCo and PrivCo shared control of PrivCo’s bank accounts, and on approximately January 1, 2019, PubCo assumed control of PrivCo’s bank accounts. By virtue of the payment of PrivCo’s litigation expenses by PubCo, by virtue of PubCo representing itself in press releases, as being the owner/operator of the GreenBox Business, and by virtue of the shared control of PrivCo’s bank accounts starting on April 12, 2018, it is the position of both PubCo and PrivCo that the Verbal Agreement was valid and the asset acquisition took place on April 12, 2018. |
The following Recitals summarize these PrivCo expenses which PubCo agreed to pay on behalf of PrivCo.
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P. |
On or about January 10, 2018, PrivCo entered into a Subscription and Stock Purchase Agreement (“RB Cap SPA”) with RB Capital Partners (“RB Cap”), wherein PrivCo agreed to sell 4% of PrivCo to RB Cap, for $1,000,000, payable by RB Cap in four installments from January through April 2018. The final $250,000 payment was received April 13, 2018. PubCo and PrivCo hereby agree that, by virtue of the Verbal Agreement and this Agreement, PubCo is now a party to the RB Cap SPA and PrivCo is no longer a party to the RB Cap SPA. RB Cap and PrivCo subsequently disputed the terms of the RB Cap SPA. PubCo and PrivCo hereby agree that PubCo shall pay all litigation expenses that may result from this dispute or any other disputes with RB Cap and that PubCo shall not seek reimbursement of litigation expenses related to disputes with RB Cap that PubCo has paid on behalf of PrivCo to date. |
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Q. |
On or about March 15, 2018, PrivCo issued a $300,000 convertible promissory note to RB Cap, with an interest rate of 12% per annum (“RB Cap 300K Note”). On or about June 8, 2018, PrivCo issued PubCo shares to a third party, which reduced the balance of the RB Cap 300K Note by $185,000, as described in Recital R. PubCo and PrivCo hereby agree that, by sole virtue of this Agreement, PubCo is now the borrower pursuant to the RB Cap 300K Note and that the principal balance assumed by PubCo is $115,000. PrivCo is no longer a party to the RB Cap 300K Note. |
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R. |
On or about June 8, 2018, PrivCo transferred 440,476 restricted shares of Common Stock from the Control Block, with a market value of $185,000, to Mellissa M. Dahan Living Trust (“Dahan”), a purported designee of RB Cap. PrivCo recorded the cost of the shares – at market value – as a reduction of principal owed to RB Cap for the RB Cap 300K Note. RB Cap subsequently disputed that it had authorized the payments to Dahan. PubCo and PrivCo hereby agree that PubCo shall pay all litigation expenses that may result from this dispute or any other disputes with RB Cap and that PubCo shall not seek reimbursement of litigation expenses related to disputes with RB Cap that PubCo has paid on behalf of PrivCo to date. |
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S. |
The following three share transactions summarized below, totaling 1,085,000 shares, were each inadvertently transferred from the Control Block rather than PubCo issuing new shares. Subsequently, on or about August 14, 2019, PubCo issued 1,085,000 shares to PrivCo, as reimbursement of the shares inadvertently transferred by PrivCo. |
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On or about December 27, 2018, PrivCo inadvertently transferred 1,000,000 restricted shares of Common Stock from the Control Block, with a market value of $150,000, which money was deposited into PrivCo’s bank accounts (control of which bank accounts, as described in Recital O to this Agreement, were shared by PubCo and PrivCo from April 12, 2018 through approximately December 31, 2018). |
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On or about January 4, 2019, PrivCo inadvertently transferred 50,000 restricted shares of Common Stock from the Control Block to a non-affiliated service provider to PubCo for services rendered to PubCo. |
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On or about January 4, 2019, PrivCo inadvertently transferred 35,000 restricted shares of Common Stock from the Control Block to a non-affiliated service provider to PubCo for services rendered to PubCo. |
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T. |
On or about October 30, 2018, each of Messrs. Nisan and Errez, as individuals, entered into Master Loan Agreements for a total possible loan of $5.7 million with America 2030 Capital Limited (“American 2030”) and Bentley Rothschild Capital Limited (“Bentley”). Of the $5.7 million maximum, no money ($0.00) has been lent to date. Collectively, Messrs. Nisan and Errez caused PrivCo to transfer 1,600,000 restricted shares of Common Stock from the Control Block to America 2030 and Bentley as Transferred Collateral. PubCo and PrivCo hereby agree that PubCo shall pay all litigation expenses that may result from any dispute with America 2030 and Bentley and that PubCo shall not seek reimbursement of litigation expenses related to disputes with America 2030 and Bentley that PubCo has paid on behalf of PrivCo to date, as of the Agreement Date. Notwithstanding the payment of litigation expenses, each of Messrs. Nisan and Errez, as individuals, hereby agree that all amounts owed pursuant to the Master Loan Agreements are the sole responsibility of Messrs. Nisan and Errez, as individuals, and, other than litigation expenses, PubCo has no obligations with regard to the Master Loan Agreements. |
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U. |
An Asset Purchase Agreement was executed on September 20, 2018 by PubCo and PrivCo (the “September 2018 APA”), however, the transactions agreed to in September 2018 APA were never consummated and PubCo and PrivCo hereby agree that the September 2018 APA is null and void. |
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V. |
PubCo specifically acknowledges that PrivCo’s corporate records, records of financial transactions and financial statements were not recorded, maintained nor brought up to date in a manner that would present the data and records as audit ready. PubCo and PrivCo hereby agree that PubCo shall pay all expenses related to a PCAOB level audit of PrivCo’s corporate records, financial transactions and financial statements from PrivCo’s formation in August 2017 through the Agreement Date including, but not limited to, expenses related to ensuring PrivCo’s corporate records, financial transaction records and financial statements become audit ready. PubCo and PrivCo hereby agree that PubCo shall not seek reimbursement of expenses related to such PCAOB level audit of PrivCo that PubCo has paid on behalf of PrivCo to date. PubCo and PrivCo hereby acknowledge that financial transactions for the GreenBox Business after April 12, 2018 were entered into PrivCo’s QuickBooks, and not recorded on PubCo’s QuickBooks. PubCo agrees to transfer all applicable financial data from PrivCo’s QuickBooks to PubCo’s QuickBooks. |
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W. |
PubCo specifically acknowledges that PrivCo’s corporate records, records of financial transactions and financial statements were not recorded, maintained nor brought up to date in a manner that would present the data and records as tax ready. PubCo and PrivCo hereby agree that PubCo shall pay all expenses related to PrivCo’s 2018 tax returns including, but not limited to, expenses related to ensuring PrivCo’s corporate records, financial transaction records and financial statements become tax ready. PubCo and PrivCo hereby agree that PubCo shall not seek reimbursement of expenses related to PrivCo’s 2018 tax returns that PubCo has paid on behalf of PrivCo to date |
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X. |
During November and December 2019, PrivCo and PubCo jointly entered into three transactions related to receivables: a Purchase Agreement signed November 12, 2019, Secured Merchant Agreement signed December 5, 2019, and Agreement for the Purchase and Sale of Future Receivables (collectively, the “Receivables Purchase Agreements”). Under the terms of the Receivables Purchase Agreements, PrivCo and PubCo agreed to sell financial buyers $1,202,600 of future incoming cashflow from the GreenBox Business for $860,000, from which $47,035 in fees was deducted, providing PubCo with net cash of $817,965. Pursuant to the Receivables Purchase Agreements, the amount of $860,000 along with interest of $342,600 is to be repaid in daily or weekly installments through April 2020. PubCo and PrivCo hereby agree that PubCo shall assume all liabilities related to the Receivables Purchase Agreements. Both Messrs. Nisan and Errez, as individuals, signed personal guarantees for each of the Receivables Purchase Agreements. These personal guarantees remain as stated within the Receivables Purchase Agreements. |
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Y. |
In accordance with the Verbal Agreement, each Party desires to memorialize the Verbal Agreement in which the Seller sold, conveyed, transferred, and assigned, and Buyer purchased the GreenBox Business, upon and subject to the terms herein. |
In consideration of the foregoing and the representations, warranties, covenants and agreements in this Agreement and other good and valuable consideration, the receipt of which is hereby acknowledged, each Party hereby agrees as follows:
ARTICLE 1
PURCHASE OF GREENBOX BUSINESS AND RELATED TERMS
1.1 Sale and Purchase of GreenBox Business. Under and subject to the terms of this Agreement, the Seller hereby confirms that, pursuant to the Verbal Agreement, it sold, conveyed, transferred and assigned to Buyer, and Buyer hereby confirms that, pursuant to the Verbal Agreement, it purchased from the Seller, all of the Seller’s right, title and interest in and to the GreenBox Business. The GreenBox Business were not subject to and were transferred free from any lien, security interest, pledge, option, title retention agreement, charge, claim, liability, judgment, license, restriction, encumbrance, or rights of others of any nature whatsoever.
1.2 Assumed Liabilities. Buyer, pursuant to the Verbal Agreement, assumed on April 12, 2018 and is obligated and liable for the liabilities related to the GreenBox Business in the sum of $589,078. Seller did not and will not assume or be obligated or liable for any liabilities related to the GreenBox Business incurred subsequent to April 12, 2018.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to Buyer as follows:
2.1 Organization and Good Standing. As of April 12, 2018, and as of the Agreement Date, the Seller was and is a duly organized and validly existing corporation in good standing under the laws of the State of Washington. As of April 12, 2018 and as of the Agreement Date, the Seller was and is duly qualified and in good standing to do business as a foreign corporation in each jurisdiction in which the ownership or leasing of its properties or assets or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing will not materially and adversely affect Buyer’s ability to consummate the transactions contemplated herein. The Seller, as of April 12, 2018, had full corporate power and authority to own and lease its properties and assets, including the GreenBox Business, and conduct its business. The Seller has delivered to Buyer a true, correct and complete copy of Seller’s Organizational Documents. The Seller is not in default under or in violation of any provision of its Organizational Documents.
2.2 Authority and Authorization; Conflicts.
(a) Authority and Authorization. The execution, delivery and performance of the Verbal Agreement and this Agreement and each Ancillary Document of the Seller or any of its Affiliates have been duly authorized and approved by all necessary corporate or limited liability company (if and as applicable) action with respect to the Seller and each such Affiliate, and each such authorization and approval remains in full force and effect. The Verbal Agreement was and assuming due authorization, execution and delivery by Buyer and its applicable Affiliates of this Agreement, this Agreement is, and each Ancillary Document of the Seller or any of its Affiliates at the Closing will be, the legal, valid and binding obligation of the Seller and each such applicable Affiliate, enforceable against the Seller and each such applicable Affiliate in accordance with its terms, except to the extent enforceability may be limited by any Enforcement Limitation. The Seller and each such applicable Affiliate had, as of April 12, 2018, and has, as of the Agreement Date, all requisite corporate or limited liability company (if and as applicable) power and authority to enter into this Agreement and each Ancillary Document to be executed and delivered by the Seller or each such applicable Affiliate and to consummate the transactions contemplated herein and therein to be consummated by the Seller and each such applicable Affiliate. PubCo and PrivCo hereby acknowledge that since April 12, 2018, PubCo and PrivCo have been and are Affiliates.
(b) Conflicts. Neither the Verbal Agreement nor the execution nor delivery by the Seller of this Agreement, the Seller or any Affiliate of the Seller of any Ancillary Document, nor consummation by the Seller or any Affiliate of the Seller of the transactions contemplated by such agreements and documents, did, does or will (with or without the passage of time or giving of notice): (1) constitute a breach of, violate, conflict with or give rise to or create any right or obligation under any Organizational Document of the Seller or any of its Affiliates; (2) violate any Applicable Law or Order; (3) constitute a breach or violation of or a default under, conflict with or give rise to or create any right of any Person other than the Seller to accelerate, increase, terminate, modify or cancel any right or obligation in a manner adverse to the GreenBox Business, or result in the creation of any Encumbrance under, any Contract to which the Seller is a party or by which any asset of the Seller is bound; (4) result in the creation of any lien on the GreenBox Business; or (5) give rise to any limitation, restriction or adverse effect on Buyer’s ability to conduct its business (including the Acquired Assets) after the Closing (including the revocation or other termination of any Permit). PubCo and PrivCo hereby (i) acknowledge the inherent conflict of interest in the transactions contemplated hereby and (ii) waive any claims or rights it may have in respect of such conflict of interest.
2.3 Litigation and Orders. PubCo specifically acknowledges that, as described in Recitals R and T to this Agreement, there are claims or other Proceeding pending or, to the Seller’s Knowledge, Threatened against the Seller or to which the Seller is a party or that is reasonably expected to adversely affect the GreenBox Business. Such claims or other Proceedings may have a Material Adverse Effect on the GreenBox Business.
2.4 Compliance with Law. At all times since its incorporation the Seller has operated and utilized the GreenBox Business in compliance in all material respects with all Applicable Laws (including those relating to (1) maintaining Permits required of the Seller to utilize the GreenBox Business, (2) pollution or protection of the environment and (3) occupational health, welfare and safety). No notice has been received by the Seller since its incorporation from any Governmental Authority alleging that the Seller is not or was not in compliance in any material respect with any Applicable Law. On April 12, 2018, the Seller possessed and was in compliance in all material respects with each Permit necessary for the Seller to own, operate and use its assets and conduct its business and utilize the GreenBox Business.
2.5 Blockchain Systems.
(a) Platform Description and Documentation. Schedule 2.6(a) lists all material Proprietary Information Technology Systems and other material Blockchain Systems that are being used to utilize by the Acquired Assets. “Proprietary Information Technology System” means a Blockchain System (or portion of Blockchain System) that the Seller (either directly or through or with any other Person) has developed, customized or enhanced or is in the process of developing, customizing or enhancing. “Blockchain System” means any of or combination of the software, hardware (whether general or special purpose), telecommunications capabilities (including voice, data or video networks) and other similar or related items of any automated, computerized or software system and any other network or system or related service that is used by or relied on by the Seller in utilizing the Acquired Assets.
(b) Protection. The Seller has taken all actions that a reasonably prudent Person in its business would take to protect against the existence of (1) any protective, encryption, security or lock-out device that reasonably could materially and adversely interrupt, discontinue, interfere with or otherwise affect its use of any of its Blockchain Systems and (2) any so-called computer virus, worm, trap or back door, Trojan horse or any other instruction, code, program, data or material (collectively, “Malicious Instructions”) that reasonably could materially and adversely interrupt, discontinue, interfere with or otherwise affect the operation or use by the Seller of any of its Blockchain Systems.
(c) Reliability. No Blockchain System has experienced any bug, failure, breakdown, continued substandard performance, data loss, data integrity problem, hacking attempt, security breach or other Malicious Instruction in the past 12 months that has caused any substantial disruption or interruption in or to the use of any Blockchain System.
2.6 Title. As of April 12, 2018, Seller was the sole and exclusive owner of all right, title and interest in and to the GreenBox Business, and had good title to the GreenBox Business, free and clear of all liens, including obligations to transfer or license such GreenBox Business, and there exists no material restriction on the use or transfer or licensing of such GreenBox Business. To Seller’s knowledge, the GreenBox Business and intellectual property rights related thereto are valid and enforceable and Seller did not, as of April 12, 2018 and does not, as of the Agreement Date, have any obligation to compensate any person or entity for its use of the GreenBox Business. Seller has not granted to any person or entity any license (whether oral, written, implied or otherwise) to use the GreenBox Business. To Seller’s knowledge, none of the GreenBox Business has been or is subject to any interference, cancellation, reexamination, reissue, opposition, or any other proceeding challenging priority, scope, validity, or ownership anywhere in the world.
2.7 Contracts. Other than any Contracts between Buyer and Seller, there are no Contracts related to the GreenBox Business.
2.8 No Undisclosed Liabilities. The Seller has disclosed to Buyer all known liabilities in connection with the GreenBox Business.
2.9 Shareholder Approval. The Verbal Agreement, this Agreement and the sale of the GreenBox Business by Seller to Buyer was approved by the managing members of Seller.
2.10 Full Disclosure. To the Seller’s Knowledge, as applicable, the representations and warranties contained in this Article 2 do not contain any untrue statement of a material fact or omit a material fact necessary to make the statements and information in this Article 2 not misleading.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Seller as follows:
3.1 Organization and Good Standing. As of April 12, 2018, and as of the Agreement Date, the Buyer was and is a duly organized and validly existing corporation in good standing under the laws of Nevada. Buyer is duly qualified and in good standing to do business as a foreign corporation in each jurisdiction in which the ownership and leasing of its properties and assets or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing will not materially and adversely affect Buyer’s ability to consummate the transactions contemplated herein. Buyer has full corporate power and authority to own and lease its properties and assets and conduct its business as now conducted and as proposed to be conducted, except where the failure to have such power or authority will not materially and adversely affect Buyer’s ability to consummate the transactions contemplated herein.
3.2 Authority and Authorization; Conflicts; Consents.
(a) Authority and Authorization. The execution, delivery and performance of the Verbal Agreement and this Agreement and each Ancillary Document of Buyer or any Affiliate of Buyer have been duly authorized and approved by all necessary corporate action with respect to Buyer and each such Affiliate, and each such authorization and approval remains in full force and effect. The Verbal Agreement was and assuming due authorization, execution and delivery by Seller and its applicable Affiliates of this Agreement, this Agreement is, and each Ancillary Document of the Buyer or any of its Affiliates at the Closing will be, the legal, valid and binding obligation of Buyer and each such applicable Affiliate, enforceable against Buyer and each such applicable Affiliate in accordance with its terms, except to the extent enforceability may be limited by any Enforcement Limitation. Buyer and each such applicable Affiliate had, as of April 12, 2018, and has, as of the Agreement Date, all requisite corporate power and authority to enter into this Agreement and each Ancillary Document to be executed and delivered by Buyer or such applicable Affiliate and to consummate the transactions contemplated herein and therein to be consummated by Buyer and each such applicable Affiliate.
(b) Conflicts. Neither the Verbal Agreement nor the execution nor delivery by Buyer of this Agreement or by Buyer or any Affiliate of Buyer of any Ancillary Document nor consummation by Buyer or any Affiliate of Buyer of the transactions contemplated herein or therein does or will (with or without the passage of time or giving of notice): (1) constitute a breach of, violate, conflict with or give rise to or create any right or obligation under any Organizational Document of Buyer or any such Affiliate of Buyer; (2) violate any Applicable Law or Order; or (3) constitute a breach or violation of or a default under, conflict with or give rise to or create any right of any Person other than Buyer to accelerate, increase, terminate, modify or cancel any right or obligation under, any Contract to which Buyer is a party, except where such breach, violation, default, conflict or right described in clause (2) or (3) above will not materially and adversely affect Buyer’s ability to consummate the transactions contemplated herein. PubCo and PrivCo hereby (i) acknowledge the inherent conflict of interest in the transactions contemplated hereby and (ii) waive any claims or rights it may have in respect of such conflict of interest.
(c) Consents. No consent or approval by, notification to or filing with any Person is required in connection with Buyer’s or any of its Affiliates’ execution, delivery or performance of this Agreement or any Ancillary Document of Buyer or of any of its Affiliates or Buyer’s or any of its Affiliates’ consummation of the transactions contemplated herein or therein, except for any consent, approval, notice or filing, the absence of which will not materially and adversely affect Buyer’s ability to consummate the transactions contemplated herein.
ARTICLE 4
CERTAIN COVENANTS
4.1 Certain Actions to Close Transactions. Subject to the terms of this Agreement, each Party will use its reasonable best efforts to fulfill, and to cause to be satisfied, the conditions in Article 5 (but with no obligation to waive any such condition) and to consummate and effect the transactions contemplated herein, including to cooperate with and assist each other in all reasonable respects in connection with the foregoing.
4.2 Further Assurances. If after Closing any further action is necessary, proper or desirable to carry out any purpose of this Agreement, then each Party will take such further action (including the execution and delivery of further documents) as any other Party reasonably requests to carry out such purpose (including that the Seller will, upon Buyer’s request, take all actions necessary to transfer the registration and control of all domain names to Buyer, including the transfer of all passwords and other means of access). PubCo and PrivCo hereby agree that the foregoing will be at the sole expense of PubCo.
4.3 Certain Tax and Unclaimed Property Matters.
(a) Cooperation. Each Party will, and each Party will cause its applicable Affiliates to, cooperate in all reasonable respects with respect to Tax and unclaimed property matters and provide one another with such information as is reasonably requested to enable the requesting Party to complete and file all Tax Returns it may be required to file (or cause to be filed) with respect to the Business, to respond to Tax audits, inquiries or other Tax Proceedings and to otherwise satisfy Tax requirements. Such cooperation also will include promptly forwarding copies (to the extent related thereto) of (1) relevant Tax notices, forms or other communications received from or sent to any Governmental Authority (whether or not requested), and (2) reasonably requested copies of all relevant Tax Returns together with accompanying schedules and related workpapers, documents relating to rulings, audits or other Tax determinations by any Governmental Authority and records concerning the ownership and Tax basis of property.
4.5 Items to Proper Party. After the Closing, each Party will promptly deliver to the proper Party any mail or other communications, monies, checks or other instruments of payment received by such Party that belong to such other Party or to which such other Party is entitled.
4.6 Bulk Sales Laws. Without implying any limitation on any Party’s other obligations hereunder, each Party hereby waives compliance with each Applicable Law relating to bulk sales or bulk transfer applicable to the GreenBox Business or transaction contemplated hereby.
4.7 Commission and National Securities Exchange Requirements. Each Party will cooperate with each other in all reasonable respects to fulfill any applicable requirement of the Commission or any national securities exchange in connection with the transactions contemplated herein. Each of PubCo and PrivCo hereby acknowledge that some of the transactions described herein or contemplated herein required filings to be made with the Commission and such filings were made. Notwithstanding anything to the contrary, each Party permits each other Party to disclose any information regarding this Agreement or any of the transactions contemplated herein in connection with such other Party’s filing obligations with the Commission, including the filing of a copy of this Agreement, as determined to be necessary or appropriate by such disclosing Party’s counsel.
ARTICLE 5
CLOSINGS AND CLOSING DELIVERIES
5.1 Closing. To the extent any of the transactions contemplated herein, as determined by the mutual agreement of each Party did not already take place on April 12, 2018, the Closing of the transactions contemplated herein (the “Closing”) will take place as provided herein. All actions to be taken and all documents to be executed or delivered at the Closing will be deemed to have been taken, executed and delivered simultaneously, and no action will be deemed taken and no document will be deemed executed or delivered until all have been taken, delivered and executed, except in each case to the extent otherwise stated in this Agreement or any such other document. To the extent the Parties agree, documents may be delivered at the Closing by facsimile or other electronic means, and (except as otherwise agreed) the receiving Party may rely on the receipt of such documents so delivered as if the original had been received.
5.2 Closing Deliveries by the Seller. Except as otherwise provided below, at the Closing, the Seller will deliver, or cause to be delivered, to Buyer (or as Buyer or this Agreement otherwise directs), the following:
(a) A Bill of Sale for the GreenBox Business in the form attached hereto as Exhibit 5.2(a) executed by the Seller;
(b) an officer’s certificate of a duly authorized officer of the Seller, in a form approved in advance by Buyer (such approval not to be unreasonably withheld), and executed by such officer, certifying (1) that attached thereto is a true, correct and complete certified copy of the Organizational Documents of the Seller, as are then in full force and effect, (2) that attached thereto is a true, correct and complete copy of the resolutions of the Managing Members of the Seller authorizing the execution, delivery and performance of this Agreement and each Ancillary Document of the Seller and the transactions contemplated herein and therein, as are then in full force and effect (such certificate, the “Officer’s Certificate”), and (3) that the representations and warranties of Seller set forth in Article 2 remain accurate and complete;
(c) a good standing certificate, from the Secretary of State of the State of Washington stating that the Seller is in good standing therein;
(d) all other documents as Buyer may reasonably request to facilitate the consummation of the transactions contemplated herein; and
(e) all other documents and items required by this Agreement to be delivered, or caused to be delivered, by the Seller at such Closing.
5.3 Closing Deliveries by Buyer. At Closing, Buyer will deliver, or cause to be delivered, to the Seller (or as the Seller or this Agreement otherwise directs), the following:
(a) a Bill of Sale in the form attached hereto as Exhibit 5.2(a), executed by Buyer;
(b) all other documents as the Seller may reasonably request to facilitate the consummation of the transactions contemplated herein; and
(c) all other documents and items required by this Agreement to be delivered, or caused to be delivered, by Buyer at Closing.
ARTICLE 6
INDEMNIFICATION AND RESOLUTION OF CERTAIN DISPUTES
6.1 Indemnification by the Seller. Subject to litigation expenses described in Recitals R and T to this Agreement along with the other terms of this Article 6, the Seller will indemnify, defend and hold harmless Buyer and each of Buyer’s Other Indemnified Persons from and against all Losses arising out of, relating to or resulting from, directly or indirectly, any:
(a) breach of any representation or warranty made by the Seller herein or in any Ancillary Document of the Seller;
(b) breach of any covenant or agreement of the Seller herein or in any Ancillary Document of the Seller;
(c) conduct, ownership, use, condition, possession or operation of the GreenBox Business before April 12, 2018;
(d) failure of any Party, in connection with the transactions contemplated herein, to comply with any Applicable Law relating to bulk sales or bulk transfer or any Tax law, rule or regulation relating to the obligations of a seller or buyer of assets in bulk transfer; or
(e) Proceeding arising out of, relating to or resulting from any of the foregoing.
The Seller’s indemnity obligation for breaches by the Seller of the representations and warranties made in this Agreement or any Ancillary Document of Seller, shall survive for a period of eighteen (18) months after the Closing, except that breaches by the Seller of representations and warranties relating to ownership of the GreenBox Business, due authority, and taxes relating to the GreenBox Business (collectively, “Special Representations”) shall survive until the expiration of the applicable statute of limitations.
6.2 Indemnification by Buyer. Subject to the other terms of this Article 6, Buyer will indemnify, defend and hold harmless the Seller and each of the Seller’s Other Indemnified Persons from and against all Losses arising out of, relating to or resulting from, directly or indirectly, any:
(a) breach of any representation or warranty made by Buyer herein or in any Ancillary Document of Buyer;
(b) breach of any covenant or agreement of Buyer herein or in any Ancillary Document of Buyer;
(c) use of the GreenBox Business by Buyer for any periods after April 12, 2018; or
(d) Proceeding arising out of, relating to or resulting from any of the foregoing.
6.3 Certain Survival Periods.
(a) Survival of Representations and Warranties. Subject to Section 6.3(b), each representation or warranty herein will survive the execution and delivery of this Agreement and remain in full force and effect until the date that is eighteen (18) months after the Closing, at which time such representation or warranty will expire and terminate and no indemnification obligation will be associated therewith or based thereon, except that each Special Representation will survive until all Liability hereunder relating thereto is barred by all applicable statutes of limitation.
(b) Survival of Representations and Warranties Until Final Determination. Notwithstanding Section 6.3(a), for each claim for indemnification hereunder regarding a representation or warranty that is made before expiration of such representation or warranty, such claim and associated right to indemnification (including any right to pursue such indemnification, including via any Proceeding) will not terminate before final determination and satisfaction of such claim.
(c) Survival of Covenants and Agreements. Each covenant and agreement (i.e., other than representations and warranties) herein, and all associated rights to indemnification, will survive Closing and will continue in full force thereafter for a period of five years, subject to any applicable limitation stated herein.
6.4 Notice of Claims and Procedures.
(a) Notice of Claims. A Party entitled to indemnification hereunder (the “Claiming Party”) will give the Party obligated to provide such indemnification (the “Indemnifying Party”) prompt notice of any claim, for which such Claiming Party proposes to demand indemnification, (1) by a Person that is not a Party nor an Other Indemnified Person (such a claim being a “Third-Party Claim” and such notice of such Third-Party Claim being the “Initial Claim Notice”) or (2) that does not involve a Third-Party Claim, in each case specifying the amount and nature of such claim (to the extent known). Thereafter, the Claiming Party will give the Indemnifying Party, promptly after the Claiming Party’s (or any of its applicable Other Indemnified Person’s) receipt or delivery thereof, copies of all documents (including court papers) received or delivered by the Claiming Party (or any such Other Indemnified Person) relating to any such Third-Party Claim. The failure to promptly give such notice or to promptly give such copies will not relieve the Indemnifying Party of any Liability hereunder, except if the Indemnifying Party was prejudiced thereby, but only to the extent that the Indemnifying Party demonstrates that it was prejudiced thereby.
(b) Access and Cooperation. Each Party will, and will cause its Other Indemnified Persons to, cooperate and assist in all reasonable respects regarding such Third-Party Claim, including by promptly making available to such other Party (and its legal counsel and other professional advisers with a reasonable need to know) all books and records of such Person relating to such Third-Party Claim, subject to reasonable confidentiality precautions.
(c) Defense and Participation Regarding Third-Party Claims. This Section 6.4(c) relates only to Third-Party Claims.
(1) Election to Conduct Defense. Promptly after receiving an Initial Claim Notice under Section 6.4(a), the Indemnifying Party will have the option to conduct the Defense of such Third-Party Claim, at the expense of the Indemnifying Party, except if (A) the aggregate amount of the potential obligations of the Claiming Party (or its Other Indemnified Persons) regarding such Third-Party Claim exceeds the maximum obligations of the Indemnifying Party under this Agreement regarding such Third-Party Claim, (B) it is reasonably likely that such Third-Party Claim will adversely affect the Claiming Party (or any of its Other Indemnified Persons), other than as a result of money damages, or (C) the Indemnifying Party fails to provide the Claiming Party with evidence reasonably satisfactory to the Claiming Party that the Indemnifying Party has the financial resources to actively and diligently conduct the Defense of such Third-Party Claim and fulfill the Indemnifying Party’s indemnification obligations hereunder with respect thereto. To elect to conduct such Defense, the Indemnifying Party must give written notice of such election to the Claiming Party within 10 days (or within the shorter period, if any, during which a Defense must be commenced for the preservation of rights) after the Claiming Party gives the corresponding Initial Claim Notice to the Indemnifying Party (otherwise, such right to conduct such Defense will be deemed waived). If the Indemnifying Party validly makes such election, it will nonetheless lose such right to conduct such Defense if it fails to continue to actively and diligently conduct such Defense.
(2) Conduct of Defense, Participation and Settlement. If the Indemnifying Party conducts the Defense of such Third-Party Claim, then (A) the Claiming Party may participate, at its own expense (except that the Indemnifying Party will be responsible for the fees and expenses of the Claiming Party’s counsel (but not more than one law firm per jurisdiction) if the Claiming Party reasonably concludes that counsel to the Indemnifying Party has a conflict of interest), in such Defense (including any Proceeding regarding such Third-Party Claim) and will have the right to receive copies of all notices, pleadings or other similar submissions regarding such Defense, (B) the Indemnifying Party will keep the Claiming Party reasonably informed of all matters material to such Defense and Third-Party Claim at all stages thereof, (C) the Claiming Party will not (and will cause its Other Indemnified Persons not to) admit Liability with respect to, or compromise or settle, such Third-Party Claim without the Indemnifying Party’s prior written consent (which consent will not be unreasonably withheld), (D) there will be no compromise or settlement of such Third-Party Claim without the consent of the Claiming Party (which consent will not be unreasonably withheld) and (E) the Indemnifying Party’s election to conduct the Defense of such Third-Party Claim will conclusively establish the Indemnifying Party’s obligation to indemnify the Claiming Party with respect to such Third-Party Claim hereunder.
(3) Indemnifying Party Does Not Conduct Defense. If the Indemnifying Party does not have the option to conduct the Defense of such Third-Party Claim or does not validly elect such option or does not preserve such option (including by failing to commence such Defense within 10 days following receipt of such Initial Claim Notice or within the shorter period, if any, during which a Defense must be commenced for the preservation of rights), then the Claiming Party may conduct the Defense of such Third-Party Claim in any manner that the Claiming Party reasonably deems appropriate, at the expense of the Indemnifying Party (subject to the other limitations of this Article 6), and the Claiming Party will have the right to compromise or settle such Third-Party Claim without the consent of the Indemnifying Party.
ARTICLE 7
CERTAIN GENERAL TERMS AND OTHER AGREEMENTS
7.1 Notices. All notices or other communications required or permitted to be given hereunder will be in writing and will be (a) delivered by hand, (b) sent by United States registered or certified mail or (c) sent by nationally recognized overnight delivery service for next Business Day delivery, in each case as follows:
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(1) if to Buyer, to:
GreenBox POS 8880 Rio San Diego Dr, Suite 102 San Diego, CA 92108 |
with a copy to:
Lucosky Brookman LLP 101 Wood Avenue South 5th Floor Iselin, New Jersey 08830 Attention: Joseph M Lucosky |
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(2) if to Seller, to:
GreenBox POS LLC 8880 Rio San Diego Dr, Suite 102 San Diego, CA 92108
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Such notices or communications will be deemed given (A) if so delivered by hand, when so delivered, (B) if so sent by mail, three Business Days after mailing, or (C) if so sent by overnight delivery service, one Business Day after delivery to such service. A Party may change the address to which such notices and other communications are to be given by giving each other Party notice in the foregoing manner.
7.3 Interpretation; Construction. In this Agreement:
(a) the table of contents and headings are for convenience of reference only and will not affect the meaning or interpretation of this Agreement;
(b) the words “herein,” “hereunder,” “hereby” and similar words refer to this Agreement as a whole (and not to the particular sentence, paragraph or Section where they appear);
(c) terms used in the plural include the singular, and vice versa, unless the context clearly requires otherwise;
(d) unless expressly stated herein to the contrary, reference to any document means such document as amended or modified and as in effect from time to time in accordance with the terms thereof;
(e) unless expressly stated herein to the contrary, reference to any Applicable Law means such Applicable Law as amended, modified, codified, replaced or reenacted, in whole or in part, and as in effect from time to time, including any rule or regulation promulgated thereunder;
(f) the words “including,” “include” and variations thereof are deemed to be followed by the words “without limitation”;
(g) “or” is used in the sense of “and/or”; “any” is used in the sense of “any or all”; and “with respect to” any item includes the concept “of,” “under” or “regarding” such item or any similar relationship regarding such item;
(h) unless expressly stated herein to the contrary, reference to a document, including this Agreement, will be deemed to also refer to each annex, addendum, exhibit, schedule or other attachment thereto;
(i) unless expressly stated herein to the contrary, reference to an Article, Section, Schedule or Exhibit is to an article, section, schedule or exhibit, respectively, of this Agreement;
(j) all dollar amounts are expressed in United States dollars and will be paid in cash (unless expressly stated herein to the contrary) in United States currency;
(k) when calculating a period of time, the day that is the initial reference day in calculating such period will be excluded and, if the last day of such period is not a Business Day, such period will end on the next day that is a Business Day;
(l) with respect to all dates and time periods in or referred to in this Agreement, time is of the essence; and
(m) the Parties participated jointly in the negotiation and drafting of this Agreement and the documents relating hereto, and each Party was (or had ample opportunity to be) represented by legal counsel in connection with this Agreement and such other documents and each Party and each Party’s counsel has reviewed and revised (or had ample opportunity to review and revise) this Agreement and such other documents; therefore, if an ambiguity or question of intent or interpretation arises, then this Agreement and such other documents will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the terms hereof or thereof.
7.4 Parties in Interest; No Third-Party Beneficiaries. There is no third-party beneficiary hereof and nothing in this Agreement (whether express or implied) will or is intended to confer any right or remedy under or by reason of this Agreement on any Person (including any employee), except each Party and their respective permitted successors and assigns.
7.5 Governing Law. This Agreement will be construed and enforced in accordance with the substantive laws of the State of Nevada without reference to principles of conflicts of law.
7.6 Jurisdiction, Venue and Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE STATE OF NEVADA, IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND TO THE RESPECTIVE COURT TO WHICH AN APPEAL OF THE DECISIONS OF ANY SUCH COURT MAY BE TAKEN, AND EACH PARTY AGREES NOT TO COMMENCE, OR COOPERATE IN OR ENCOURAGE THE COMMENCEMENT OF, ANY SUCH PROCEEDING, EXCEPT IN SUCH A COURT. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE THEREIN OF SUCH A PROCEEDING. EACH PARTY HEREBY AGREES THAT A FINAL JUDGMENT IN ANY SUCH PROCEEDING WILL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY JURISDICTION BY SUIT ON THE JUDGMENT OR BY ANY OTHER MANNER PROVIDED BY APPLICABLE LAW. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN ANY SUCH PROCEEDING.
7.7 Entire Agreement; Amendment; Waiver. This Agreement, including the Schedules, Exhibits and the Ancillary Documents, constitutes the entire Agreement between the Parties pertaining to the subject matter herein and supersedes any prior representation, warranty, covenant or agreement of any Party regarding such subject matter. No supplement, modification or amendment hereof will be binding unless expressed as such and executed in writing by each Party (except as contemplated in Section 7.9). Except to the extent as may otherwise be stated herein, no waiver of any term hereof will be binding unless expressed as such in a document executed by the Party making such waiver. No waiver of any term hereof will be a waiver of any other term hereof, whether or not similar, nor will any such waiver be a continuing waiver beyond its stated terms. Except to the extent as may otherwise be stated herein, failure to enforce strict compliance with any term hereof will not be a waiver of, or estoppel with respect to, any existing or subsequent failure to comply.
7.8 Assignment; Binding Effect. Neither this Agreement nor any right or obligation hereunder will be assigned, delegated or otherwise transferred (by operation of law or otherwise) by any Party without the prior written consent of each other Party (which consent will not be unreasonably withheld), except that each Party will have the right to assign or otherwise transfer this Agreement or any right hereunder or delegate any obligation hereunder to (a) a Person that does all of the following: (1) acquires or otherwise succeeds to all or substantially all of such Party’s business and assets; (2) assumes all of such Party’s obligations hereunder or such Party’s obligations hereunder that arise after such assignment, delegation or transfer; and (3) agrees to perform or cause performance of all such assumed obligations when due; or (b) any of its Affiliates; provided that no such assignment, delegation or transfer under clause (a) or (b) above will relieve the assigning, delegating or transferring Party of any obligation hereunder. This Agreement will be binding on and inure to the benefit of the respective permitted successors and assigns of the Parties. Any purported assignment, delegation or other transfer not permitted by this Section 7.8 is void.
7.9 Severability; Blue-Pencil. The terms of this Agreement will, where possible, be interpreted and enforced so as to sustain their legality and enforceability, read as if they cover only the specific situation to which they are being applied and enforced to the fullest extent permissible under Applicable Law. If any term of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced, then all other terms of this Agreement will nevertheless remain in full force and effect, and such term automatically will be amended so that it is valid, legal and enforceable to the maximum extent permitted by Applicable Law, but as close to the Parties’ original intent as is permissible.
7.10 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
7.11 Disclosure Schedules. Nothing in any Schedule will be adequate to disclose an exception to a representation or warranty in this Agreement, unless such Schedule identifies the specific representation or warranty to which it applies. Additionally, the mere listing (or inclusion of a copy) of an item is not adequate to disclose an exception or other response to a representation or warranty in this Agreement, except to the extent such representation or warranty only pertains to the existence of such item itself. Disclosure of any matter in and Schedule shall not constitute an expression of a view that such matter is material or is required to be disclosed pursuant to this Agreement. To the extent that any representation or warranty set forth in this Agreement is qualified by the materiality of the matter(s) to which the representation or warranty relates, the inclusion of any matter in any Schedule does not constitute a determination by the party delivering such disclosure that such matter is material.
ARTICLE 8
CERTAIN DEFINITIONS
“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such Person. For purposes of this definition, “control,” “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, by Contract or otherwise.
“Agreement” is defined in the first paragraph of this Agreement.
“Agreement Date” is defined in the first paragraph of this Agreement.
“Ancillary Document” means the Bill of Sale and the Officer’s Certificate.
“Applicable Law” means any applicable provision of any constitution, treaty, statute, law (including the common law), rule, regulation, ordinance, code or order enacted, adopted, issued or promulgated by any Governmental Authority.
“ASAP Business” is defined in Recital I.
“Bill of Sale” is defined in Section 5.2(a).
“Blockchain System” is defined in Section 2.7(a).
“Business Day” means any day, other than a Saturday or Sunday and other than a day that banks in the State of Nevada are generally authorized or required by Applicable Law to be closed.
“Buyer” is defined in the first paragraph of this Agreement.
“Claiming Party” is defined in Section 6.4(a).
“Closing” is defined in Section 5.1.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commission” means the U.S. Securities and Exchange Commission.
“Common Stock” is defined in Recital F.
“Contract” means any contract, agreement, purchase order, warranty or guarantee, license, use agreement, lease (whether for real estate, a capital lease, an operating lease or other), instrument or note, in each case that creates a legally binding obligation, and in each case whether oral or written.
“Control Block” is defined in Recital G.
“Dahan” is defined in Recital R.
“Defense” means legal defense (which may include related counterclaims) reasonably conducted by reputable legal counsel of good standing selected with the written consent of the Claiming Party (which consent will not be unreasonably withheld).
“Encumbrance” means any mortgage, claim, pledge, security interest, charge, lien, option or other right to purchase, restriction or reservation or any other encumbrance whatsoever.
“Enforcement Limitation” means any applicable bankruptcy, reorganization, insolvency, moratorium or other similar Applicable Law affecting creditors’ rights generally and principles governing the availability of equitable remedies.
“Environmental Law” means any applicable federal, state or local law or other legal requirement relating to pollution or protection of the environment, including any law relating to any emission, discharge, release or possible release of any pollutant, contaminant, hazardous or toxic material, substance or waste into air, surface water, groundwater or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of any pollutant, contaminant or hazardous or toxic material, substance or waste.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Governmental Authority” means any: (a) nation, state, county, city, district or other similar jurisdiction of any nature; (b) federal, state, local or foreign government; (c) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, commission, bureau, instrumentality, department, official, entity, court or tribunal); (d) multi-national organization or body; or (e) body or other Person entitled by Applicable Law (or by Contract with the Parties) to exercise any arbitrative, administrative, executive, judicial, legislative, police, regulatory or Taxing authority or power.
“GreenBox Acquisition” is defined in Recital K.
“GreenBox Business” is defined in Recital K.
“Holdings” is defined in Recital I.
“In Between Period” is defined in Recital O.
“Indemnifying Party” is defined in Section 6.4(a).
“Initial Claim Notice” is defined in Section 6.4(a).
“IRS” means the United States’ Internal Revenue Service.
“Knowledge” means, (a) with respect to an individual, the actual knowledge of such individual and what such individual should have known after a reasonable investigation; and (b) with respect to a Person other than an individual, the actual knowledge of any individual who is serving as a director or officer (or similar executive) of such Person and what any such individual should have known after a reasonable investigation.
“Liability” means any liability or obligation of any kind or nature (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due).
“Loss” means any claim, demand, loss, fine, interest, penalty, assessment, cost or expense (including reasonable attorneys’ fees or expenses), damage or any other Liability.
“Material Adverse Effect” means, with respect to any business or Person (as applicable), any incident, condition, change, effect or circumstance that, individually or when taken together with all such incidents, conditions, changes, effects or circumstances in the aggregate, (a) has had or would reasonably be expected to have a material adverse effect on such business or on the business, operations, condition (financial or otherwise), properties, Liabilities, results of operations or prospects of such Person and its Subsidiaries, or any of them taken individually (other than (1) changes in economic conditions generally in the United States or (2) conditions generally affecting any of the industries in which such business or such Person participates; provided that with respect to clauses (1) and (2), the changes or conditions do not have a materially disproportionate effect (relative to other participants in such industries)) or (b) materially and adversely affects the ability of the Seller to consummate the transactions contemplated herein.
“Officer’s Certificate” is defined in Section 5.2(b).
“Order” means any order, writ, injunction, decree, judgment, award or determination of or from, or Contract with, any Governmental Authority or similar binding decision of any arbitration (or similar Proceeding).
“Ordinary Course of Business” means, with respect to a Person, the ordinary and usual course of normal day-to-day operations of such Person, consistent with such Person’s past practice.
“Organizational Document” means, for any Person: (a) the articles or certificate of incorporation, formation or organization (as applicable) and the by-laws or similar governing document of such Person; (b) any limited liability company agreement, partnership agreement, operating agreement, stockholder agreement, voting agreement, voting trust agreement or similar document of or regarding such Person; (c) any other charter or similar document adopted or filed in connection with the incorporation, formation, organization or governance of such Person; (d) any Contract regarding the governance of such Person or the relations among any of its equity holders with respect to such Person; or (e) any amendment to any of the foregoing.
“Other Indemnified Person” means, for any Person, such Person’s Affiliates and each of such Person’s and each of such Affiliate’s stockholders, officers, directors, partners, members, governors, managers, and permitted successors and assigns.
“Party” means the Buyer and the Seller.
“Permit” means any license, permit, registration or similar authorization from a Governmental Authority.
“Permitted Encumbrance” means any: (a) Encumbrance for any Tax, assessment or other governmental charge that is not yet due and payable or that may thereafter be paid without penalty; or (b) mechanic’s, materialmen’s, landlord’s or similar Encumbrance arising or incurred in the Ordinary Course of Business of the applicable Person that secures any amount that is not overdue.
“Person” means any individual, partnership, corporation, limited liability company, association, joint stock company, trustee or trust, joint venture, unincorporated organization or any other business entity or association or any Government Authority.
“PrivCo” is defined in the first paragraph of this Agreement.
“Proceeding” means any action, arbitration, audit, examination, claim, demand, grievance, complaint, hearing, inquiry, investigation, litigation, proceeding or suit (whether civil, criminal or administrative), in each case that is commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator.
“Proprietary Information Technology System” is defined in Section 2.7(a).
“PubCo” is defined in the first paragraph of this Agreement.
“RB Cap” is defined in Recital P.
“RB Cap 300K Note” is defined in Recital P.
“RB Cap SPA” is defined in Recital P.
“Receivables Purchase Agreements” is defined in Recital X.
“Records” means books, records, manuals or other materials or similar information (including customer records, personnel or payroll records, accounting or Tax records, purchase or sale records, price lists, correspondence, quality control records or research or development files).
“Seller” is defined in the first paragraph of this Agreement.
“September 2018 APA” is defined in Recital U.
“Shares Due” is defined in Recital F.
“SPA” is defined in Recital E.
“Special Representation” is defined in Section 6.1(f).
“Subsidiary” means, with respect to any Person, any other Person of which at least a majority of the securities or other interests, having by their terms ordinary voting power to elect a majority of the board of directors of such other Person (or others performing similar functions with respect to such other Person), is directly or indirectly owned or controlled by such first Person or by any one or more of such first Person’s Subsidiaries.
“Tax” means any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under section 59A of the Code), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, including any interest, fine, penalty or similar addition thereto, whether disputed or not and including any obligations to indemnify or otherwise assume or succeed to the Tax Liability of any other Person.
“Tax Return” means any return, declaration, report, filing, claim for refund or information return or statement relating to any Tax, including any schedule or attachment thereto and including any amendment thereof.
“Third-Party Claim” is defined in Section 6.4(a).
“Threatened” means, with respect to any matter, that a demand, notice or statement has been made or given, in writing, that such matter is being or will be, or that circumstances exist that would lead a reasonably prudent Person to conclude that such matter could be asserted, commenced, taken or otherwise pursued, including if conditioned upon certain events occurring or not occurring.
“Transfer Tax” means any sales, use, value-added, business, goods and services, transfer (including any stamp duty or other similar tax chargeable in respect of any instrument transferring property, including motor vehicles), documentary, conveyancing or similar tax or expense or any recording fee, in each case that is imposed as a result of any transaction contemplated herein, together with any penalty, interest and addition to any such item with respect to such item.
“Verbal Agreement” is defined in the first paragraph of this Agreement.
* * * * *
IN WITNESS WHEREOF, each Party has executed this Asset Purchase Agreement effective as of the date first written above.
|
SELLER:
GREENBOX POS LLC
By: Name: Fredi Nisan Title: Chief Executive Officer and Managing Member |
BUYER:
GREENBOX POS
By: Name: Ben Errez Title: Executive Vice President |
Asset Purchase Agreement
SCHEDULES
Schedule 2.6(a) Blockchain Systems
EXHIBITS
Exhibit 5.2(a) – Form of Bill of Sale
Schedule 2.6(a)
Blockchain Systems
Description of assets acquired by PubCo:
|
1. |
Provisional Patents |
|
a. |
Application Number: 62595266 |
Title: BLOCKCHAIN ESCROW FOR AUTOMATED TELLER MACHINE (ATM)
Description: The ability to instantly display cash deposited in ATM machines on a Blockchain secured ledger.
|
b. |
Application Number: 62595312 |
Title: BLOCKCHAIN ESCROW PAYMENT APPLICATION
Description: The ability to exchange control of encrypted keys on Blockchain without any party having control of both keys at any point.
|
c. |
Application Number: 62595439 |
Title: BLOCKCHAIN DELIVERY SERVICE WITH INSTANT PAYMENT APPLICATION
Description: The ability to make instant payments, including tipping and upsales, in a remote settlement scenario, while being connected to the point-of-sale system and real time inventory management.
|
d. |
Application Number: 62595501 |
Title: BLOCKCHAIN POINT OF SALE SYSTEM WITH INSTANT PAYMENT APPLICATION
Description: The ability of a point of sale system to instantly record transactions on a Blockchain secured ledger, with real time inventory management, in such way that no installation or data maintenance is required and recovery from catastrophic events is done nearly instantly.
|
e. |
Application Number: 62597032 |
Title: BLOCKCHAIN DATA TRUST WITH INSTANT REVOCATION CAPABILITY
Description: The ability to revoke access to personal data after the authorized use of it is completed, so that identity theft and compromising personal data are minimized.
|
2. |
Products and Associated IP Rights |
|
a. |
KIOSK |
Blockchain implementation of equipment capable of accepting cash and converting (tokenizing) it to an encrypted Blockchain secured ledger entry instantly. The Machine is also capable of accepting debit and credit card payments and producing payment cards for use in GreenBox ecosystem. GreenBox owns both software and hardware development of this product.
|
b. |
DEL |
Complete delivery system with dispatcher backend and mobile applications for driver and consumer, available for iOS and Android. GreenBox own all related software for this product.
|
c. |
POS |
Complete point-of-sale system with integrated Blockchain connectivity for inventory management, payment and record keeping on secured Blockchain ledger. This system requires no installation, backup or restore functionality and recovers from catastrophic events nearly instantly. This system is also available with customized hardware. GreenBox owns both software and hardware development of this product.
|
d. |
PAY |
GreenBox core product. This system is capable of managing any amount of tokenized assets, including cash and data, on a secured Blockchain ledger. All patented technology from GreenBox is connected to this product. PAY is a combination of a settlement and transactional subsystems, and includes TrustKey, TrustGateway and Ledger Manager technologies operating over Blockchain substrate. GreenBox owns both software and hardware development of this product.
|
3. |
Website |
All title and interest in and to the Website and Internet Domain Name, greenboxpos.com and all of its respective contents (the "Website"), and any other rights associated with the Website, including, without limitation, any intellectual property rights, all related domains, logos, customer lists and agreements, email lists, passwords, usernames and trade names; and all of the related social media accounts including but not limited to, Instagram, Twitter, Facebook, Instagram and Pinterest at closing and associated other rights.
|
4. |
Services Agreements |
All of Sellers current and future point of sale agreements, payment gateway agreements and services agreements, as well as contracts including, but not limited to Merchant, Payment Services, Payment Processing, Agent and Referral agreements and contracts.
|
5. |
Locations |
|
a. |
Vancouver, British Columbia, Canada (virtual and physical offices). |
|
b. |
San Diego (headquarters, primary working office) |
|
c. |
Seattle (virtual office) |
|
d. |
Las Vegas (shared office space) |
|
6. |
Sky Financial & Intelligence LLC (“Sky”) |
Any and all rights to the benefit of Sky assets that have been deployed and/or are currently engaged in support of the GreenBox Business, which includes, but is not limited to:
|
a. |
Sky Book of Business: Sky’s entire book of business, capable of processing $1 billion annually; |
|
b. |
Sky Personnel: GreenBox’s acting Senior Vice President, who owns Sky; |
|
c. |
Sky Agent Network: Sky’s network of agents, which includes active agents, which now deliver new business for the GreenBox Business exclusively; |
|
d. |
Any and all additional rights agreed upon verbally by Sky and PrivCo regarding the use of Sky assets, as well a prospective acquisition of Sky and its subsidiary companies. |
Exhibit 6.2(a)
FORM OF BILL OF SALE
THIS AGREEMENT is entered into this as of January 4, 2020 (the “Agreement Date”) to memorialize the Verbal Agreement entered into on April 12, 2018 by and between GREENBOX POS LLC, a Washington limited liability company (the “Seller”) and GREENBOX POS, a Nevada corporation (the “Buyer”).
Capitalized terms used but not otherwise defined herein shall have the meanings set forth in that certain Asset Purchase Agreement dated January 4, 2020 (the “Agreement”), by and between Seller and Buyer.
On April 12, 2018, the Seller agreed to sell to the Buyer, and the Buyer agreed to buy, as of April 12, 2018, all of the Seller’s right, title and interest in and to the property described on Schedule A (collectively, the “Property”);
In consideration of the representations, warranties, covenants and agreements in the Agreement and other good and valuable consideration, the receipt of which is hereby acknowledged, each Party hereby agrees as follows:
|
1. |
As of April 12, 2018, the Seller sold, assigned, transferred and set over unto the Buyer all of the Seller’s right, title and interest in and to the Property. |
|
2. |
OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT AND THE VERBAL AGREEMENT, THE BUYER ACKNOWLEDGES THAT THE PURCHASE OF THE PROPERTY IS ON AN “AS IS, WHERE IS” BASIS AND THAT SUCH PURCHASE IS WITHOUT ANY WARRANTY, CONDITION OR REPRESENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, BY THE SELLER AS TO TITLE, QUALITY, QUANTITY, FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OF THE PROPERTY. |
|
3. |
The Seller agrees to take any and all additional actions and to execute, acknowledge and deliver any and all documents that the Buyer may reasonably request in order to effect the intent and purposes of the transactions contemplated hereby. |
|
4. |
This Bill of Sale and everything contained herein shall enure to the benefit of and be binding upon the each of the parties hereto and their respective successors and assigns. |
|
5. |
This Bill of Sale shall be construed and enforceable under and in accordance with the laws of the State of Nevada and each of the Buyer and the Seller hereby irrevocably attorns to the jurisdiction of the Nevada courts. |
[Signature Page Follows]
IN WITNESS WHEREOF the parties hereto have executed this Bill of Sale as of the date first above written.
|
GREENBOX POS LLC |
GREENBOX POS |
|||
|
|
By: |
|||
|
|
Name: Fredi Nisan |
Name: Ben Errez |
||
|
|
Title: Chief Executive Officer and Managing Member |
Title: Executive Vice President |
||
[Signature Page to Bill of Sale]
SCHEDULE A
PROPERTY
The following lists the Property purchased and the value of each Property class on April 12, 2018:
|
At April 12, 2018 |
||||
|
Cash and Cash Equivalents |
752,393 | |||
|
Customer Accounts |
83 | |||
|
Inventory |
56,988 | |||
|
Security Deposits |
3,990 | |||
|
Fixed Assets, net |
17,697 | |||
|
Prepaid Expense |
12,543 | |||
|
Assets Acquired |
$ | 843,694 | ||
|
Total Consideration – Liabilities Assumed |
$ | 589,078 | ||
|
Gain on Bargain Purchase |
254,616 | |||
|
Total Consideration and Gain on Bargain Purchase |
$ | 843,694 | ||
Exhibit 99.1
GreenBox POS LLC
a Washington Limited Liability Company
Financial Statements and Accompanying Notes
for the
Year Ended December 31, 2017
Financial Statements
GreenBox POS LLC
Year Ended December 31, 2017
|
Page |
|
|
Report of Independent Registered Public Accounting Firm |
2 |
|
Balance Sheet |
3 |
|
Statement of Operations |
4 |
|
Statement of Members’ Equity |
5 |
|
Statement of Cash Flows |
6 |
|
Notes to the Financial Statements |
7 |
Report of Independent Registered Public Accounting Firm
To the shareholders and the board of directors of GreenBox POS LLC
Opinion on the Financial Statements
We have audited the accompanying balance sheet of GreenBox POS LLC (the "Company") as of December 31, 2017, the related statement of operations, stockholders' equity (deficit), and cash flows for the year then ended, and the related notes (collectively referred to as the "financial statements"). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2017, and the results of its operations and its cash flows for the year then ended, in conformity with accounting principles generally accepted in the United States.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud.
Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provides a reasonable basis for our opinion.
Substantial Doubt about the Company’s Ability to Continue as a Going Concern
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 2 to the financial statements, the Company’s significant operating losses raise substantial doubt about its ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
/s BF Borgers CPA PC
BF Borgers CPA PC
We have served as the Company's auditor since 2019
Lakewood, CO
January 6, 2020
GreenBox POS LLC
Balance Sheet
As of December 31, 2017
|
Assets |
||||
|
Cash |
$ | 83,353 | ||
|
Inventory |
963 | |||
|
Prepaid Expense |
798 | |||
|
Security Deposit |
1,578 | |||
|
Total Current Assets |
86,692 | |||
|
Fixed Assets, net |
6,069 | |||
|
Total Assets |
$ | 92,761 | ||
|
Liabilities and Member Equity |
||||
|
Liabilities |
||||
|
Accounts Payable |
$ | 31,980 | ||
|
Total liabilities |
31,980 | |||
|
Member Equity |
||||
|
Owners’ Equity |
500,100 | |||
|
Receivable for Equity Purchase |
(300,000 | ) | ||
|
Accumulated Deficit |
(139,319 | ) | ||
|
Total Owner’s Equity |
60,781 | |||
|
Total Liabilities and Owner’s Equity |
$ | 92,761 |
The accompanying notes are an integral part of these consolidated financial statements.
GreenBox POS LLC
Statement of Operations
From Formation on August 10, 2017 to December 31, 2017
|
Expenses |
||||
|
Sales and Marketing |
$ | 633 | ||
|
General and Administrative |
92,457 | |||
|
Research and Development |
46,229 | |||
|
Total Expenses |
139,319 | |||
|
Loss from Operations |
(139,319 | ) | ||
|
Net loss |
$ | (139,319 | ) |
The accompanying notes are an integral part of these consolidated financial statements.
GreenBox POS LLC
Statement of Member Equity
For the Year Ended December 31, 2017
|
Owners’ |
Receivable for |
Accumulated |
Total |
|||||||||||||
|
Equity |
Equity Purchase | Deficit | Owners’ Equity | |||||||||||||
|
Balance at August 1, 2017 |
$ | - | $ | - | $ | - | $ | - | ||||||||
|
Contributions from Owners |
200,100 | - | - | 200,100 | ||||||||||||
|
Receivable for Equity Purchase |
300,000 | (300,000 | ) | - | - | |||||||||||
|
Net Loss |
- | - | (139,319 | ) | (139,319 | ) | ||||||||||
|
Balance at December 31, 2017 |
$ | 500,100 | $ | (300,000 | ) | $ | (139,319 | ) | $ | 60,781 | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
GreenBox POS LLC
Statement of Cash Flows
From Formation on August 10, 2017 to December 31, 2017
|
Operating Expenses |
||||
|
Net Loss |
$ | (139,319 | ) | |
|
Adjustments to reconcile net loss to net cash used in operating activities: |
||||
|
Depreciation |
209 | |||
|
Changes in operating assets and liabilities |
||||
|
(Increase) inventory |
(963 | ) | ||
|
(Increase) decrease in Prepaid Expenses and Other Current Assets |
(2,376 | ) | ||
|
Increase (decrease) in Accounts Payable |
31,980 | |||
|
Net cash used in Operating Activities |
(110,469 | ) | ||
|
Investing activities |
||||
|
Purchases of Fixed Assets |
(6,278 | ) | ||
|
Net cash used in Investing Activities |
(6,278 | ) | ||
|
Financing activities |
||||
|
Proceeds from Contributions from Owners |
200,100 | |||
|
Net cash provided by Financing Activities |
200,100 | |||
|
Net increase in Cash and Cash Equivalents |
83,353 | |||
|
Cash and Cash Equivalents at the beginning of the year |
- | |||
|
Cash and Cash Equivalents at the end of the year |
$ | 83,353 |
The accompanying notes are an integral part of these consolidated financial statements.
GreenBox POS LLC
Notes to Financial Statements
December 31, 2017
NOTE 1: ORGANIZATION AND BASIS OF PRESENTATION
Organization
GreenBox POS LLC is a limited liability company formed under the corporate laws of the State of Washington on August 10, 2017.
We are a tech company formed with the intent of developing, marketing and selling innovative blockchain-based payment solutions, which we believe will cause favorable disruption in the payment processing marketplace. Our core focus is to develop and monetize disruptive blockchain-based applications, integrated within an end-to-end suite of financial products, supporting a multitude of industries.
We’ve been awarded five provisional patents for our technology, each directly related to our core business focus. Subsequently, we filed non-provisional patent application 16/212,627 on December 6, 2018, under which we claimed the benefit of the five provisional patents.
We develop proprietary, blockchain-based software, which serves as the basis for our payment process solutions. With this software, our system can manage any amount of tokenized assets, including cash and data, on a secured, immutable blockchain ledger.
Our primary office is in San Diego, California. Our website is www.greenboxpos.com.
Unless the context otherwise requires, all references to “we,” “us,” “our,” “Private Company,” “PrivCo” or the “Company” are to GreenBox POS LLC, a limited liability company, registered in the state of Washington.
NOTE 2: SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
Our financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”) in the United States of America and are presented in U.S. dollars.
Going Concern
Our statements have been prepared on a going concern basis, which implies that the Company will continue to realize its assets and discharge its liabilities in the normal course of business. The continuation of the Company as a going concern is dependent upon our ability to identify prospects for capital procurement, and to obtain the necessary debt or equity financing needed to develop, sustain and grow our operations, until such time as we are able to generate sufficient cash flow from operation to support our operations, growth, research and development. These factors raise substantial doubt regarding the Company’s ability to continue as a going concern.
Use of Estimates and Assumptions
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the period. Actual results could differ from those estimates.
Due to the limited level of operations, the Company has not had to make material assumptions or estimates other than the assumption that the Company is a going concern.
Cash and Cash Equivalents
The Company considers all highly liquid instruments with a maturity of three months or less at the time of issuance to be cash equivalents.
Financial Instruments
Pursuant to ASC 820, Fair Value Measurements and Disclosures, an entity is required to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. ASC 820 establishes a fair value hierarchy based on the level of independent, objective evidence surrounding the inputs used to measure fair value. A financial instrument’s categorization within the fair value hierarchy is based upon the lowest level of input that is significant to the fair value measurement. ASC 820 prioritizes the inputs into three levels that may be used to measure fair value:
|
Level 1 |
Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities; |
|
Level 2 |
Quoted prices in markets that are not active, or inputs that are observable, either directly or indirectly, for substantially the full term of the asset or liability; and |
|
Level 3 |
Prices or valuation techniques that require inputs that are both significant to the fair value measurement and unobservable (supported by little or no market activity). |
The Company’s financial instruments consist principally of cash and prepaid expenses. Pursuant to ASC 820, the fair value of our cash is determined based on “Level 1” inputs, which consist of quoted prices in active markets for identical assets. We believe that the recorded values of all our other financial instruments approximate their current fair values because of their nature and respective maturity dates or durations.
Income (Loss) Per Common Share
At December 31, 2017, the Company was a privately held limited liability corporation and had not established common shares of stock. As such, income (loss) per common share is not applicable.
Comprehensive Loss
ASC 220, Comprehensive Income, establishes standards for the reporting and display of comprehensive loss and its components in the financial statements. As at December 31, 2017, the Company has no items that represent a comprehensive loss and, therefore, has not included a schedule of comprehensive loss in the financial statements.
Fixed Assets
Property and equipment are stated at cost. Depreciation is computed primarily using the straight-line method over the estimated useful lives of the assets, which range from three to eight years. Leasehold improvements are amortized over the shorter of the useful life of the related assets or the lease term. Expenditures for repairs and maintenance are charged to expense as incurred. For assets sold or otherwise disposed of, the cost and related accumulated depreciation are removed from the accounts, and any related gain or loss is reflected in income for the period.
Long-Lived Asset Impairments
The Company reviews long-lived assets, including property and equipment and intangible assets, for impairment when events or changes in business conditions indicate that their carrying value may not be recovered, and at least annually. The Company considers assets to be impaired and writes them down to estimated fair value if expected associated undiscounted cash flows are less than the carrying amounts. Fair value is the present value of the associated cash flows. There was no impairment of long-lived assets in 2017.
Leases
Lease for office space at our corporate headquarters is classified as an operating lease in accordance with ASC 840, Leases. Rent expense is recognized on a straight-line basis over the terms of the leases and, accordingly, we record the cumulative difference between cash rent payments and the recognition of rent expense as a deferred rent liability. When an operating lease includes lease incentives, such as a rent abatements or leasehold improvement allowances, or requires fixed escalations of the minimum lease payments, the aggregate rental expense, including such incentives or increases, is recognized on a straight-line basis over the term of the lease.
Revenue Recognition
Upon the Company’s commencement of sales, revenues will be recognized in accordance with FASB ASC Topic 605, Revenue Recognition, and with the guidelines of the Securities and Exchange Commission (“SEC”) Staff Accounting Bulletin (“SAB”) No. 104 “Revenue Recognition”.
Under SAB 104, four conditions must be met before revenue can be recognized: (i) there is persuasive evidence that an arrangement exists, (ii) delivery has occurred or service has been rendered, (iii) the price is fixed or determinable, and (iv) collection is reasonably assured.
For the year ended December 31, 2017, during which we were in a development stage, we did not generate revenue.
Advertising & Marketing Expense
Advertising & Marketing expenses are classified as general and administrative expenses and were $633 for the year ended December 31, 2017.
Income Taxes
We will use the asset and liability method of accounting for income taxes in accordance with ASC Topic 740, “Income Taxes.” Under this method, income tax expense is recognized for the amount of: (i) taxes payable or refundable for the current year and (ii) deferred tax consequences of temporary differences resulting from matters that have been recognized in an entity’s financial statements or tax returns. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the results of operations in the period that includes the enactment date. A valuation allowance is provided to reduce the deferred tax assets reported if based on the weight of the available positive and negative evidence, it is more likely than not some portion or all of the deferred tax assets will not be realized.
For the period ending December 31, 2017, we elected to file our tax return as an S Corporation. On January 10, 2018, we received an investment from RB Capital, Inc (see Note 4: Equity below), an ineligible shareholder (because it is a corporate entity) under the S corporation rules that terminated our “S” election on January 10, 2018, the date of the investment. Thus, while we remain a limited liability company, for tax purposes, from January 11, 2018 forward, we must file our tax returns as a C corporation.
Research and Development Costs
Research and development (“R&D”) costs, which are expensed as incurred, are primarily comprised of costs and expenses for salaries and benefits including expenses associated with research and development personnel, contract services, and costs of supplies. R&D costs were $46,229 for the year ended December 31, 2017.
Recent Accounting Pronouncements
On December 22, 2017, the Securities and Exchange Commission issued Staff Accounting Bulletin No. 118 (“SAB 118”) to address the application of U.S. GAAP in situations when a registrant does not have the necessary information available, prepared, or analyzed in reasonable detail to complete the accounting for certain income tax effects of the Tax Cuts and Jobs Act (“U.S. Tax Cuts and Jobs Act of 2017”). This new law did not have a significant impact on the Company’s financial statements for the year ended December 31, 2017 because the Company is organized as a limited liability company.
In July 2017, the Financial Accounting Standards Board (the “FASB”) issued Accounting Standards Update (“ASU”) 2017-11, Earnings Per Share (Topic 260), Distinguishing Liabilities from Equity (Topic 480), and Derivatives and Hedging (Topic 815) (“ASU 2017-11”). ASU 2017-11 changes the classification analysis of certain equity-linked financial instruments (or embedded features) with down round features. The amendments require entities that present earnings per share (“EPS”) in accordance with Topic 260 to recognize the effect of the down round feature when triggered with the effect treated as a dividend and as a reduction of income available to common shareholders in basic EPS. The new standard is effective for nonpublic business entities fiscal years beginning after December 15, 2019, and interim periods within fiscal years beginning after December 15, 2020. Early adoption is permitted for all entities, including adoption in an interim period. The new standard is effective for public business entities for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. The Company is currently evaluating the impact of the adoption of this accounting standard update.
In May 2017, the FASB issued ASU No. 2017-09, Compensation - Stock Compensation: Scope of Modification Accounting, which provides clarity and guidance around which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting in Topic 718. The standard is effective for annual reporting periods beginning after December 15, 2017, and interim periods within those annual reporting periods. The adoption of this guidance will have no impact on our financial statements as the Company currently does not offer share-based payment.
In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842), which requires lessees to recognize “right of use” assets and liabilities for all leases with lease terms of more than 12 months. The ASU requires additional quantitative and qualitative financial statement footnote disclosures about the leases, significant judgments made in accounting for those leases and amounts recognized in the financial statements about those leases. The effective date will be fiscal periods beginning after December 15, 2019. The Company is currently evaluating the impact of the adoption of this accounting standard update on its financial statements.
In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers (Topic 606). The ASU creates a single source of revenue guidance for companies in all industries. The new standard provides guidance for all revenue arising from contracts with customers and affects all entities that enter into contracts to provide goods or services to their customers, unless the contracts are within the scope of other accounting standards. It also provides a model for the measurement and recognition of gains and losses on the sale of certain nonfinancial assets. This guidance, as amended, must be adopted using either a full retrospective approach for all periods presented or a modified retrospective approach and will be effective for nonpublic business entities fiscal years beginning after December 15, 2018 with early adoption permitted. The Company is currently evaluating the impact of the adoption of this accounting standard update on its financial statements.
The Company has implemented all new accounting pronouncements that are in effect. These pronouncements did not have any material impact on the financial statements unless otherwise disclosed, and the Company does not believe that there are any other new accounting pronouncements that have been issued that might have a material impact on its financial position or results of operations.
NOTE 3: LEGAL MATTERS
During the reporting period ending December 31, 2017, there were no outstanding, nor known likely nor potential legal matters.
NOTE 4: EQUITY
|
Owners’ |
Receivable for |
Accumulated |
Total |
|||||||||||||
|
Equity |
Equity Purchase | Deficit | Owners’ Equity | |||||||||||||
|
Balance at August 1, 2017 |
$ | - | $ | - | $ | - | $ | - | ||||||||
|
Contributions from Owners |
200,100 | - | - | 200,100 | ||||||||||||
|
Receivable for Equity Purchase |
300,000 | (300,000 | ) | - | - | |||||||||||
|
Net loss |
- | - | (139,319 | ) | (139,319 | ) | ||||||||||
|
Balance at December 31, 2017 |
$ | 500,100 | $ | (300,000 | ) | $ | (139,319 | ) | $ | 60,781 | ||||||
Formation
Upon formation on August 10, 2017, the Company issued 100% of its membership interests to Fredi Nisan (“Nisan”). Subsequently, Nisan entered into a verbal agreement in October 2017 with Ben Errez (“Errez”) whereby Errez and Nisan would equally own the Company’s membership interests, and Errez would have equal rights in the operations of the Company, as one of the Company’s two managing members. This agreement was subsequently formalized in August 2019. At the end of 2017, Nisan and Errez owned and controlled 90% of the Company, with Bucciero (see next paragraph) owning and controlling the remaining 10%.
Bucciero
On October 10, 2017, we entered into a Memorandum of Understanding” (“MOU”) with Matthew Bucciero, Kellsi Booth, Chris Booth and Partners (“Bucciero”), wherein we agreed to sell Bucciero up to 22.5% of the Company, for cash and consideration of $1,250,000, which comprised cash payments due totaling $500,000 for 10%, payments in kind to include licenses and permits valued at $500,000 for 10%, and the remaining 2.5% for anticipated business development activities to be carried out by Bucciero. As of the execution of the MOU, Bucciero became a managing member of the Company on an “as if” ownership basis, assuming ownership of 10% of the Company effective with the execution of the MOU. We received capital contributions from Bucciero of $100,000 on October 10, 2017 and another $100,000 on December 22, 2017. On December 31, 2017, Bucciero held $500,000 in equity: $200,000 from capital contributions, and $300,000 on an “as if paid for” basis, with an expectation of receiving payment from Bucciero of $300,000. This remaining cash balance of $300,000 is stated in the Equity section of our Balance Sheet as a Receivable for Equity Purchase.
NOTE 5: EMPLOYEES AND CONSULTANTS
For the period ending December 31, 2017, we did not have employees. We had two consultants, to whom we paid a total of $80,000 in 2017, for consulting services rendered. The consultants are also our owners, who serve as managing members of the Company.
NOTE 6: PROPERTY AND EQUIPMENT
Property and equipment consisted of the following:
|
December 31, 2017 |
||||
|
Kiosks |
6,278 | |||
|
Total |
6,278 | |||
|
Less: accumulated depreciation |
(209 | ) | ||
|
Property and equipment, net |
$ | 6,069 | ||
Depreciation expense for the year ended December 31, 2017 was $209.
NOTE 7: COMMITMENTS & CONTINGENCIES
Operating Leases
During the reporting period ending December 31, 2017, the Company was leasing its office space under a contract that terminates October 31, 2018. Rent expense was $2,678 during the year ended December 31, 2017. At December 31, 2017, the future minimum annual obligations under the non-cancellable operating lease commitments are as follows:
|
2018 |
$ | 7,982 | ||
|
Total minimum payments required |
$ | 7,982 |
NOTE 8: SUBSEQUENT EVENTS
|
A. |
Reverse Acquisition |
Summary
On January 4, 2020, PrivCo and GreenBox POS, a Nevada corporation (“PubCo”) entered into an Asset Purchase Agreement (the “Agreement”), to memorialize a verbal agreement (the “Verbal Agreement”) entered into on April 12, 2018, by and among PubCo (the “Buyer”) and PrivCo (the “Seller”).
On April 12, 2018, pursuant to the Verbal Agreement, PubCo acquired PrivCo’s blockchain gateway and payment system business, point of sale system business, delivery business and kiosk business, and bank and merchant accounts, as well as all intellectual property related thereto (the “GreenBox Business”). As consideration for the GreenBox Business, on April 12, 2018, PubCo assumed PrivCo’s liabilities that had been incurred in the normal course of the GreenBox Business (collectively, the “GreenBox Acquisition”).
For accounting and reporting purposes, PubCo deemed the GreenBox Acquisition a “Reverse Acquisition” with PrivCo designated the “accounting acquirer” and PubCo designated the “accounting acquiree.”
On May 3, 2018, PubCo formally changed its name to GreenBox POS LLC, then subsequently changed its name to GreenBox POS on December 13, 2018. Prior to the name changes, PubCo was known as ASAP Expo, Inc (“ASAP”). ASAP was incorporated April 10, 2007 under the laws of the State of Nevada (collectively, “PubCo”).
Transactions
On March 23, 2018, the then controlling shareholder and then sole officer and sole director of PubCo, Frank Yuan, along with his wife, Vicky PMW Yuan, entered into a Purchase Agreement with PrivCo (the “SPA”).
Pursuant to the SPA, the Yuans agreed to sell 144,445,000 restricted shares of PubCo’s common stock, par value $0.001 per share (the “Common Stock”), to PrivCo for a consideration of $500,000: $250,000 in cash, paid at closing, and $250,000 in restricted shares of Common Stock (the “Shares Due”) to be issued within 30 days of the close of the SPA.
On or about March 29, 2018, Frank converted a portion of a Line of Credit that Frank had previously issued to PubCo, in exchange for 144,445,000 restricted shares of Common Stock, representing approximately 90% of PubCo’s issued and outstanding shares of Common Stock (the “Control Block”).
Pursuant to the SPA, on April 12, 2018, Frank caused the Control Block to be transferred to PrivCo.
On April 12, 2018, all business being conducted at that time by PubCo (the “ASAP Business”) was transferred from PubCo to ASAP Property Holdings Inc., a company owned and operated by Mr. Yuan (“Holdings”). In consideration for the ASAP Business, Holdings assumed all liabilities related to the ASAP Business. On April 12, 2018, following the SPA being entered into and the ASAP Business being transferred to Holdings, Errez and Nisan were the sole acting officers and sole acting directors of PubCo.
On May 3, 2018, Frank Yuan formally resigned, and Errez and Nisan were formally appointed the sole officers and sole directors of PubCo.
On April 12, 2018, pursuant to the Verbal Agreement, PubCo acquired the GreenBox Business and assumed PrivCo’s liabilities per the terms of the Agreement. The value of the assets acquired on April 12, 2018 was $843,694, which excluded the Control Shares, which remain a PrivCo asset. The value of PrivCo’s assumed liabilities on April 12 was $589,078. The difference between assets and liabilities was $254,616, which PubCo booked as a Gain on Bargain Purchase. However, because we are using Reverse Acquisition accounting, PubCo subsequently recorded the gain as Paid in Capital.
On or about June 8, 2018, PrivCo paid the Shares Due, by transferring 609,756 restricted shares of Common Stock from the Control Block to Frank’s designees, Frank Yuan and his son, Jerome Yuan.
Reverse Acquisition Reporting Requirements
We deemed PubCo’s acquisition of the GreenBox Business a Reverse Acquisition, subject to SEC Financial Reporting Manual, Topic 12 - Reverse Acquisitions and Reverse Recapitalizations, Section 12200 - Reporting Issues, Sub-section 12210.2 - Reverse Acquisition with a domestic registrant that is not a shell company.
From April 12, 2018 through the Agreement Date (the “In Between Period”), because there was ambiguity regarding the validity of the Verbal Agreement, PubCo filed required quarterly and annual reports with the Securities and Exchange Commission (the “Commission”) as if there had not been a Reverse Acquisition. During the In Between Period, PrivCo continued to operate as if it still owned the GreenBox Business, which included maintaining records of GreenBox Business financial transactions on PrivCo’s accounting software, and entering into contracts and agreements as PrivCo, while PubCo paid all expenses, including expenses related to PrivCo contracts entered into prior to April 12, 2018 and after April 12, 2018, as well as expenses incurred as a result of litigation resulting from disagreements between PrivCo and other parties. During the In Between Period, PubCo represented itself in press releases, as being the owner/operator of the GreenBox Business. Additionally, from April 12, 2018 through approximately December 31, 2018, PubCo and PrivCo shared control of PrivCo’s bank accounts, and on approximately January 1, 2019, PubCo assumed control of PrivCo’s bank accounts.
By virtue of the payment of PrivCo’s litigation expenses by PubCo, by virtue of PubCo representing itself in press releases, as being the owner/operator of the GreenBox Business, and by virtue of the shared control of PrivCo’s bank accounts starting on April 12, 2018, both PubCo and PrivCo concluded that the Verbal Agreement was valid and the GreenBox Business asset acquisition took place on April 12, 2018.
Given this conclusion, PubCo:
|
1) |
Executed an Agreement memorializing the April 12, 2018 Verbal Agreement, and expects to file a Form 8-K in January 2020 (the “January 8-K”) to disclose the Agreement; |
|
2) |
Expects to file these audited financials for PrivCo from its formation on August 10, 2017 through December 31, 2017 in the January 8-K; |
PubCo plans to:
|
3) |
Restate and refile PubCo’s 2018 financials with the Commission – on a combined basis with PrivCo, with PrivCo being the acquirer for accounting purposes, to include auditor reviewed, amended Form 10-Qs for the periods ending June 30, 2018 and September 30, 2018, and an audited, amended Form 10-K for the period ending December 31, 2018; |
|
4) |
File auditor reviewed, Form 10-Qs with the Commission, for the periods ending March 31, 2019, June 30, 2019 and September 30, 2019. |
PubCo plans to become compliant with the Securities and Exchange Commission quarterly filing requirements, including filing the Company’s Form 10-K for 2019, on or before March 30, 2020.
|
B. |
Product Development, Launch and Sales |
In March 2018, we formally announced DEL, PAY, QuickCard, POS and Loopz to an international audience, during a presentation at the Israel International Innovation Expo, in Tijuana, Mexico.
|
1) |
DEL is our Delivery App, which provides APIs to POS and PAY. |
|
2) |
PAY is our Payment App, which provides financial APIs to all our other software components. |
|
3) |
QuickCard is QuickCard Payment System, which is a comprehensive physical and virtual cash management system, including software that facilitates deposits, cash and e-wallet management. |
|
4) |
POS Solutions is our complete end-to-end Point of Sale solution, comprising both software and hardware. |
|
5) |
Loopz is Loopz Software Solution, which is a mobile delivery service operations management solution with automated dispatch functionality. |
In March 2018, our QuickCard Payment System was comprised of PAY, proprietary kiosks and e-wallet management. We introduced TrustGateway as an integrated component of QuickCard in July 2018.
In June 2018, we commenced a soft launch of our system, signed up our initial customers and began generating revenue. We continued to improve and build out our system throughout 2018, which allowed for an escalation in merchants using our system, as well as increasing revenues.
In 2019, we commenced a larger deployment of our blockchain-based, payment and ledger system, which we believe was enthusiastically received. As we increased our Independent Sales Organizations (“ISO”) relationships, we were able to on-board clients at an increasing pace, resulting in increasing revenues. As client acquisitions accelerated, we experienced significant growth in payment processing volume through the third quarter of 2019.
Servicing our quickly growing customer base required us to grow our “acquiring bandwidth” proportionally. Acquiring bandwidth is the technology nomenclature for the ability to push transactional volume to an accumulation account held by a commercial bank, sponsoring such activity for a company. We work with several acquiring banks, each of which provides this support to us, as well as setting support limits and/or transactional volume limits, for each account. Additionally, each account comes with policies for disbursements and reserves set by each sponsor bank, under which we operate. We then apply these policies, limits and reserve requirements to each of our client accounts. In some cases, we experienced challenging reserve policies from certain acquirers, which in turn created challenging situations for us. Where we weren’t able to negotiate more favorable conditions with an acquirer, we formed relations with new acquirers, which better suited our needs.
As we grew, it became apparent to us that market demand for our services could be substantial and that we would need to upgrade and reengineer certain technology modules of our acquiring engine. As a result, we scaled back our acquiring capabilities in the fourth quarter of 2019, which allowed us to focus on the technology upgrades. As anticipated, this shift in focus resulted in a reduction of revenues in the fourth quarter. However, we anticipate these upgrades will enable growth acceleration in 2020 and beyond.
|
C. |
RB Capital Partners, Inc. – Minority Owner, Affiliated Party, Lender, Plaintiff in Lawsuit |
|
1) |
On or about January 10, 2018, we signed a Subscription and Stock Purchase Agreement (“RB Cap SPA”) with RB Capital Partners, Inc. (“RB Cap”), wherein we agreed to sell RB Cap 4% of PrivCo, non-dilutive, for $1,000,000, payable in four installments due January 15, 2018, February 15, 2018, March 15, 2018 and April 15, 2018. By mid-April, we had received all payments. This transaction implied a post money valuation of $25,000,000. As of this filing, RB Cap remains a minority membership interest holder in PrivCo, with a claim to approximately six million PubCo shares, however the implications of this ownership and RB Cap’s claim to PubCo shares are in dispute, and are the subject of a lawsuit with RB Cap (see Section K. Legal Matters below). |
|
2) |
On or about March 15, 2018, we issued a twelve-month, $300,000 convertible promissory note to RB Cap, with an interest rate of 12% per annum (“RB Cap 300K Note”). The note’s convertibility feature commenced six months after the note’s issuance, at a conversion rate of $0.001 per share of the Company’s common stock. Under the terms of the Agreement, PrivCo agreed to pay $185,000 of the principal balance due on this note. On or about June 8, 2018, PrivCo transferred 440,476 restricted shares of Common Stock from the Control Block, with a market value of $185,000, to a purported designee of RB Cap, as a payment of principal of the note. Subsequently, RB Cap disputed the reduction in principal (see Section K. Legal Matters below). |
|
3) |
On or about October 23, 2018, PubCo issued 7,500,000 newly issued, restricted shares of Common Stock to RB Cap, in repayment of $7,500 of the RB Cap 300K Note Subsequently, we disputed whether these share should have been issued to RB Cap (see Section K. Legal Matters below). |
|
4) |
On or about March 13, 2019, we issued a final cash payment towards the RB Cap 300K Note of approximately $110,000 (the “Payoff Funds”). However, RB Cap contested the amount of the Payoff Funds (see Section K. Legal Matters below). |
|
5) |
On November 26, 2018, PubCo issued a convertible promissory note for $200,000 to RB Cap (the “RB Cap $200K Note”). The note incurs interest at 12% per year and the outstanding principal and accrued interest are due November 26, 2019. RB Cap may elect to convert the note at any time from six months from the date of issuance at a fixed price per share of $4.50. This note became part of a legal claim/counter claim with RB Cap (see Section K. Legal Matters below). |
|
D. |
QuickCitizen Acquisition / Related Party Transaction |
On or about January 18, 2018, we purchased QuickCitizen, a client interfacing charge card software platform, with certain properties deemed advantageous to products under development. After we acquired QuickCitizen, QuickCitizen’s code was integrated into QuickCard, our card processing technology, which was initially a standalone application (available on the digital distribution platforms Apple App Store and Google Play). QuickCard has since been integrated into the backend processing engine of the products embodying PrivCo’s blockchain payment and e-wallet technology.
We purchased QuickCitizen from Firmness, LLC (“Firmness”), an affiliated company, which was 50% owned by one of our two owners, Nisan, for a total of $75,000. Nisan believed there to be great long-term value in his involvement with GreenBox, therefore, Nisan and Firmness’s other owner, Marlena Chang Sharvit ("Sharvit"), agreed that Nisan would forgo any compensation contemplated or realized by the transaction, and that Sharvit would receive the entire consideration paid to Firmness.
We agreed to a payment plan with Sharvit, which was scheduled over approximately seven months, beginning December 2018, and paid during 2019, with the final payment remitted to Sharvit in July 2019. Firmness was dissolved in December 31, 2018.
|
E. |
MTrac |
Exclusive Licensing Agreement: MTrac JV
On or about February 1st, 2018, we signed a joint venture agreement (“MTrac JV”), with MTrac Tech Corporation (“MTrac”), a wholly owned subsidiary of Global Payout, Inc. (OTC:GOHE), by which we gave exclusive rights to MTrac to use our technology for merchants, that we are not servicing. The initial term of this agreement was one year, with automatic renewals in one-year increments, until such time as the agreement is restructured or cancelled, for which MTrac would pay a total of $360,000 annually. Additionally, as part of the MTrac JV, MTrac was to acquire 4% in membership interests in the Company for $1,000,000, representing a post-money valuation for the Company of $25,000,000. We received $360,000 on or about March 15, 2018 from MTrac and were to receive $1,000,000 on or before May 15, 2018.
New Exclusive Licensing Agreement: MTrac 5 Year License
On or about June 12, 2018, we agreed with MTrac to cancel the MTrac JV and replace it with a new exclusive licensing agreement (the “MTrac 5 Year License”) which granted MTrac exclusive use of our technology for high risk industries for a period of 5 years, while cancelling MTrac’s planned equity investment. We applied $270,000 of the $360,000 MTrac had paid us on March 15, 2018 to this MTrac 5 Year License, with the remaining $90,000 paid by MTrac on or about November 6, 2018.
New Exclusive Licensing Agreement: Unified Agreement
On or about October 2, 2018, we entered into a three-party agreement with MTrac and Cultivate Technologies, LLC (“Cultivate”) a Nevada Corporation, to redefine pricing and revenue sharing under a new agreement (the “Unified Agreement”). The Unified Agreement did not eliminate the licensing fees stated in the MTrac 5 Year License, but added and defined a profit sharing agreement on all accounts generated by the merchants and agents that MTrac procured for PubCo, as follows: 40% to MTrac, 40% to PubCo, and 20% to Cultivate, with profit defined as Earnings Before Interest Taxes Depreciation and Amortization (“EBITDA”), adjusted for non-cash long-term compensation, based upon publicly filed financial information. Under the terms of the Unified Agreement, MTrac was granted the exclusive right by Cultivate and us to market the GreenBox Business’ new blockchain ledger-based payment platform which combined our proprietary system with certain proprietary technologies owned by Cultivate, which in combination offer a payment platform that allows a much more user-friendly payment system (the “Current Platform”).
New Exclusive Licensing Agreement: Current Exclusive License
On or about December 17, 2018, all previous agreements with MTrac were revoked, at which point we entered into a new 5-year exclusive three-party Software License and Services Agreement with Exclusivity with MTrac and Cultivate (referred to as the “Current Exclusive License”). Under the terms of the Current Exclusive License, PubCo waived all future licensing fees for the remaining 4-year term (in recognition of MTrac’s introduction of Kenneth Haller to PubCo – see Section M. Kenneth Haller below) and gave MTrac the exclusive right to market the Current Platform to high risk cannabis merchants in North America and to license the Current Platform to non-high risk merchant on a nonexclusive basis. The parties’ revenue sharing agreement was newly defined as a split of revenue derived from the processing of the payments from merchants referred under the Current Exclusive License, distributed after deducting certain agreed upon costs, as follows: 50% to MTrac, 25% to PubCo and 25% to Cultivate.
In order for MTrac to maintain exclusivity rights under the Current Exclusive License, MTrac must meet certain merchant payment processing targets, subsequently modified under a verbal agreement, as follows: as of September 1, 2019, $10,000,000 in monthly processing volume (which MTrac achieved); as of January 1, 2020, $25,000,000; and as of June 1, 2020, $40,000,000 in monthly process volume.
Lawsuit
On November 25, 2019, five companies (the “Plaintiffs”) filed a complaint against us, MTrac, Global Payout, Inc. and Cultivate Technologies, LLC in the Superior Court of the State of California. The Plaintiffs filed suit to recover processed funds and processing fees alleged to be withheld illegally (see Section K. Legal Matters below).
|
F. |
Business Office in Canada |
On or about February 20, 2018, we secured a Canadian office, located at 885 West Georgia Street Suite 1500, Vancouver, British Columbia, V6C 3E8, under an Office Agreement with Regus Canada. Subsequently, on or around May 3, 2018 we added a physical office at the same location, on a month-to-month basis. We vacated the office in or about July 2019.
|
G. |
Pop N Pay, LLC / Dan Nusinovich / Related Party Transaction |
Dan Nusinovich (“Nusinovich”) is the brother of Nisan, who is one of PrivCo’s two owners and the CEO of PubCo. We hired Nusinovich, who has become a key member of the tech team, responsible for developing our blockchain-based systems. on or about February 19, 2018, for a monthly salary of $7,000. Additionally, during the late summer of 2018, when both market opportunity and demand necessitated opening additional bank accounts to support our payment processing products and services, we turned to Pop N Pay, LLC (“PNP”), a Delaware registered limited liability company, that was formed August 20, 2018 by Nusinovich, to open new accounts. From inception, PNP has been overseen and controlled by us, with one of our owners, Ben Errez, appointed as CEO of PNP shortly after PNP’s formation, and the transactions conducted through accounts opened by PNP are included within our financial records as a part of our business.
For his assistance, Nusinovich, through his ownership of PNP, received approximately $3,000 in addition to his salary, in early 2019, for services rendered in the fourth quarter of 2018. Additionally, Nusinovich entered into a Referral Commission Agreement with us in November 2018, which expires in November 2019, under which Nusinovich is to receive 10% for new business resulting from a Nusinovich introduction. To date, no new business has been generated by Nusinovich, thus Nusinovich has not been paid under the Referral Agreement.
On or about June 18, 2019, PubCo issued 160,000 restricted shares of Common Stock to Nusinovich, who was one of nine employees to receive a performance bonus in stock on this day. The shares were fully vested upon issuance and worth $16,000 at closing, on the day of issuance.
|
H. |
Liron Nusinovich / Related Party |
We hired Liron Nusinovich on or about July 16, 2018, for a monthly salary of $7,000 as our Risk Analyst. Liron is the brother of Nisan, PubCo’s CEO and Director. On or about June 18, 2019, PubCo issued 110,000 restricted shares of Common Stock to Liron, who was one of nine employees to receive a performance bonus in stock on this day. The shares were fully vested upon issuance and worth $11,000 at closing, on the day of issuance.
|
I. |
America 2030 Capital Limited and Bentley Rothschild Capital Limited / Related Party Transaction |
On or about July 30, 2018, Nisan and Errez, the sole officers and directors of PubCo, and the majority owners of PrivCo, each entered into a separate Master Loan Agreement (each an "MLA"): Errez with America 2030 Capital Limited (“American 2030”) and Nisan with Bentley Rothschild Capital Limited ("Bentley"), a company affiliated with American 2030, both located in Nevis, West Indies. Each MLA was for a $5,700,000 loan, at 5.85% interest, maturing in ten years.
Per the MLA’s terms, Nisan and Errez caused PrivCo to transfer 1,600,000 PubCo shares, valued at $2,144,000 at close of trading on the day of issuance, as "Transferred Collateral" from the Control Block (not a new issuance by PubCo) to Bentley (although both contracts acknowledge receipt of 1.6 million shares, there was only was transference of 1.6 million shares). The transfer occurred on or about August 1, 2018. To date, there has been no funding under either of the MLAs.
Subsequently, both Nisan and Errez received constitutive notice, regarding arbitration of an alleged breach of their respective MLAs. This arbitration is ongoing (see Section K. Legal Matters below).
|
J. |
Equity Transactions |
RB Cap
On or about January 10, 2018, we signed a Subscription and Stock Purchase Agreement ("RB Cap SPA") with RB Cap, wherein we agreed to sell RB Cap 4% of the Company, non-dilutive, for $1,000,000, payable by RB Cap in four installments during January through April 2018. By mid-April, we had received all four payments. This transaction implied a post money valuation of $25,000,000. As of this filing, RB Cap remains a minority membership interest holder in the limited liability company, however the implications of this ownership were disputed and the subject of a lawsuit with RB Cap (see Section K. Legal Matters below).
MTrac
On or about February 1, 2018 we signed a joint venture agreement (“MTrac JV”) with MTrac Tech Corporation (“MTrac”) a wholly owned subsidiary of Global Payout, Inc. (OTC:GOHE), in which, in addition to defining terms for business collaboration, MTrac was to acquire 4% of our membership interests for $1,000,000, representing a post-money valuation for the Company of $25,000,000, to be received by us on or before May 15, 2018. On or about June 12, 2018, we agreed with MTrac to nullify MTrac’s equity participation, cancel the MTrac JV, and to instead, enter into a subsequent licensing agreement (see Section E. MTrac above).
Bucciero
On or about April 5, 2018, we agreed to amicably part ways with Bucciero (see Note 4: Equity above). Under the terms of a Settlement Agreement and Mutual Release, we returned the $200,000 contributed capital, cancelled the $300,000 balance due to us, and paid Bucciero $100,000 as a breakup fee. In return, Bucciero relinquished any and all claims to ownership of any GreenBox equity, and no longer serves as a managing member.
|
K. |
Legal Matters |
Withholding Suit
On November 25, 2019, five companies (the “Plaintiffs”) filed a complaint against us, Global Payout, Inc., MTrac Tech Corporation and Cultivate Technologies, LLC (collectively the “Defendants”) in the Superior Court of the State of California. Plaintiffs filed suit to recover processed funds and processing fees alleged to be withheld illegally (collectively, the “Withholding Suit”).
We do not dispute the funds owed; however, we do believe it’s within our rights to hold the funds, per the terms of agreements signed by Plaintiffs. We disagree with any allegations of any wrongdoing and will aggressively defend ourselves against the Withholding Suit. Ideally, we will settle this claim in the near term. While the results of this matter cannot be predicted with certainty, especially at this early stage, we believe that losses, if any, resulting from resolution of this matter will not have a materially adverse effect on operations or cash flow. As of January 6, 2020 we were not yet required to respond to the Withholding Suit.
America 2030 Capital Limited and Bentley Rothschild Capital Limited
On or about October 31, 2018, Nisan and Errez received constitutive notice, regarding arbitration against Nisan, Errez, PrivCo and possibly PubCo, from Bentley Rothschild Capital Limited ("Bentley") and America 2030 Capital Limited (“American 2030”), both located in Nevis, West Indies, and both claiming breach of contract by Nisan and Errez of Nisan and Errez’s respective individual Master Loan Agreements (see Section I: America 2030 Capital Limited and Bentley Rothschild Capital Limited above) and seeking forfeiture of 1,600,000 PubCo shares that PrivCo had transferred, on or about August 1, 2018, from PrivCo’s Control Shares under the terms of the MLAs. To date, only informal conversational proceedings have ensued.
RB Capital Partners, Inc.
On April 24, 2019, RB Cap and related parties (the “RB Cap Parties”) filed a complaint in the San Diego Superior Court against PrivCo, PubCo, Ben Errez and Fredi Nisan (collectively, the “GreenBox Parties”); and on October 1, 2019, the RB Cap Parties filed an amended complaint against the GreenBox Parties alleging claims of fraud, breach of fiduciary duty, breach of contract and other, related claims.
The GreenBox Parties filed a cross-complaint against the RB Capital Parties, alleging claims of fraud, breach of contract, tortious interference, and other, related claims.
On or about December 15, 2019, the GreenBox Parties and RB Cap Parties resolved to negotiate a settlement and agreed in principal to settlements terms. The documentation of the settlement terms was underway as of January 6, 2020.
|
L. |
IPX Referral Payments, LLC / Affiliated Party Transactions |
Pouya Moghavem, our employee since August 1, 2018, owns 25% of IPX Referral Payments, LLC (“IPX”). In addition to the $5,000 monthly salary we pay Moghavem, we entered into a Referral Agreement with IPX wherein we agreed to compensate IPX for referrals, which subsequently become our customers. During 2018, IPX did not earn any commissions.
Additionally, in or about October 2018, IPX provided GreenBox with a merchant account in Mexico through Affinitas Bank, one of the Gateways that process payment transactions on our behalf. We did not pay IPX for this service, however, IPX reported that Affinitas paid IPX approximately $1,830.
|
M. |
Kenneth Haller and the Haller Companies / Affiliated Party Transactions |
Kenneth Haller (“Haller”) became our Senior Vice President of Payment Systems, a key member of our management team, in November 2018. We began working indirectly with Haller earlier in 2018, both individually and through our relationship with MTrac Tech Corporation (“MTrac”) (see Section E. MTrac above), which in turn has business relationships with Haller.
Haller brings considerable advantages to our platform’s development and our business development efforts and capabilities, including transactional business relations and a large network of agents, which we believe capable of processing $1 billion annually (the “Haller Network”). The Haller Network is an amalgamation of the collective networks of Haller and three companies owned or majority-owned by Haller: Sky Financial & Intelligence, LLC, Charge Savvy, LLC and Cultivate, LLC (collectively, the “Haller Companies”), each of which has formalized business relationships with us, as well as with some of our partners (for example, MTrac - see below), which we believe allows us to maximize and diversify our market penetration capabilities.
Sky Financial & Intelligence LLC
Haller owns 100% of Sky Financial & Intelligence LLC (“Sky”), a Wyoming limited liability company, and serves as its sole Managing Member. Sky is a strategic merchant services company that focuses on high risk merchants and international credit card processing solutions. In 2018, Sky was using GreenBox’s QuickCard payment system as its main payment processing infrastructure, through Sky’s relationship with MTrac (see Sky - MTrac Agreement below). It was through this successful relationship, that we came to know Haller and the Haller Network. Realizing that the Haller Network and Haller’s unique skill set was highly complementary to our business objectives, we commenced discussions to retain Haller through his consulting firm, Sky, for a senior role, directly responsible for growing GreenBox’s operations. Subsequently, in November 2018, Haller was appointed as our Senior Vice President of Payment Systems, for a monthly consulting fee of $10,000, paid to Sky, subsequently increased to $16,667 per month commencing September 2019 (“Haller Consulting Fee”). This relationship was referenced in press releases as GreenBox’s “acquisition of Sky MIDs Technologies” (see Sky MIDs below).
We accrued and/or paid Haller $55,365 in the quarter ending December 31, 2018, which included $30,000 in consulting fees and $23,365 in travel and relocation expense reimbursement. In 2019, we paid Sky consulting fees of $30,000 in the quarter ending March 31, $30,000 in the quarter ending June 30, $36,667 in consulting fees in the quarter ending September 30, and $124,150 in the quarter ending December 31, which included $50,000 in consulting fees and $74,150 in expense reimbursement.
In 2019, Sky facilitated $1,397,822 in payments (using our funds) on our behalf during the quarter ending September 30, and similarly $184,056 in the quarter ending December 31.
Non-Exclusivity
As our relationship with Haller / Sky is non-exclusive, Haller and the Haller Companies provide services to other companies, including those listed below. Any revenue generated by Haller and/or the Haller Companies through these other relationships is in addition to the Haller Consulting Fee.
Sky - MTrac Agreement
On or about May 4, 2018, Sky entered into a two year, Associate/Referral Agreement-E-Commerce with MTrac, wherein Sky agreed to promote MTrac’s solution payment platform (which is based on the GreenBox platform) and related services; to provide new sales, sales leads, introductions to merchants and Independent Sales Organizations (“ISO”), and other potential customers of MTrac’s services, for which Sky receives ongoing commissions from all credit card transactions processed as a result of new business generated by Sky for MTrac. Most services provided under this contract are executed by Sky’s majority owned subsidiary, Charge Savvy, LLC (see Charge Savvy, LLC below). The agreement noted MTrac’s license of GreenBox’s payment processing technology and contained terms whereby Sky could (but was not required to) refer certain customers to MTrac in exchange for various referral fees. Sky never referred customers to MTrac, and therefore, did not collect, and is not collecting, any referral fees from MTrac.
Haller, through Sky, owns controlling interests in Charge Savvy, LLC and Cultivate, LLC, with whom we do business indirectly, through their respective business relationship with MTrac. We also do business directly with Cultivate LLC, through a three-party agreement, which includes us, MTrac and Cultivate (see Cultivate, LLC below).
Charge Savvy, LLC
Sky owns 68.4% of Charge Savvy, LLC (“Charge Savvy”), an Illinois limited liability company. Haller serves as one of three Managing Members of Charge Savvy, along with Higher Ground Capital, LLC (owns 14%), and Jeff Nickel (owns 17.4%). It is through Charge Savvy, that the Haller Network is most visible as part of our operations, as Charge Savvy is the ISO through which revenue generated from Haller Network Agents is processed, under a contract between Sky and MTrac, who in turn, has a contract with us. The three managing members of Charge Savvy own the same percentages of Cultivate (see below), as they do Charge Savvy.
During the quarters ending June 30 and September 30 of 2019, Charge Savvy sold PubCo POS-related equipment totaling $22,450 and $16,000, respectively.
Cultivate, LLC
Sky owns 68.4% of Cultivate, LLC (“Cultivate”), an Illinois limited liability company, and serves as one of three Managing Members, along with Higher Ground Capital, LLC (owns 14%), and Jeff Nickel (owns 17.4%). When Cultivate was first formed, it was the licensor of certain proprietary point of sale software, retail point of sale operations, and complementary support of Cultivate’s software and related hardware for on-site credit and debit card processing. Subsequently, Cultivate the entity became exclusively a software provider, ceasing all service and support operations. Eventually certain beneficial aspects of the Cultivate software functionality were integrated into QuickCard, then upgraded and replaced with certain updates.
During 2018 and 2019, we did not pay Charge Savvy nor Cultivate any commissions.
In December 2018, Jeff Nickel, one of the Managing Members of Cultivate and Charge Savvy, was paid approximately $10,758 in commissions, separately from our agreements with Charge Savvy and Cultivate.
Cultivate - MTrac Agreement
On or about May 4, 2018, Cultivate entered into a two year, Associate/Referral Agreement-E-Commerce with MTrac, wherein Cultivate agreed to promote MTrac’s solution payment platform and related services; to provide new sales, leads, merchants, ISO Agents, and other potential customers of MTrac services, for which Cultivate receives ongoing commissions from all credit card transactions processed as a result of new business generated by Cultivate for MTrac, who in turn has a contract with us. The Associate/Referral Agreement-E-Commerce between Cultivate and MTrac noted MTrac’s license of GreenBox’s payment processing technology, and contained terms whereby Cultivate could (but was not required to) refer certain customers to MTrac in exchange for various referral fees. Cultivate never referred customers to MTrac, and therefore, did not collect, and is not collecting, any referral fees from MTrac.
Haller Commissions
Under a verbal agreement in Spring 2018, we offered Haller commissions on any referrals that resulted in new business for the Company (“Haller Commissions”). Under this agreement, Haller introduced us to three merchants who became three of the first merchants to use our system. Under the verbal agreement, we paid Haller commissions from transactions processed by these three merchants, summing to approximately $210 in June 2018, $8,396 in July 2018 and $321 in August 2018. In or about September 2018, we commenced discussions with Haller to join our management team and discontinued paying Haller commissions related to these three merchants.
GreenBox, Cultivate and MTrac Agreement
On or about December 17, 2018, PubCo entered into a 5-year exclusive three-party license agreement with MTrac and Cultivate (see Section E. MTrac above). The three Managing Members of Cultivate and Charge Savvy, owning the same percentages in each entity, subsequently decided to collect all revenue through Charge Savvy instead of Cultivate.
Sky Mids
Previous references in press releases issued by PubCo in or about August 2018 regarding a “Sky Mids Acquisition” are references to the non-exclusive working relationship between PrivCo (and subsequently, PubCo) and Sky / Haller. The designation “Sky MIDs” was a colloquial reference to Sky, based upon a Sky-owned and operated website, , which is no longer in use. While an acquisition of Sky has not formally been executed, nor have we (nor subsequently, PubCo) executed a formal engagement with Haller nor Sky, previous statements regarding the nature of our relationship with Sky Mids, which include our beliefs in the advantages of this relationship, accurately represent the working relationship between the Company and Sky / Haller.
Lawsuit
On November 25, 2019, five companies (the “Plaintiffs”) filed a complaint against us, Cultivate Technologies, LLC, Global Payout, Inc. and MTrac Tech Corporation in the Superior Court of the State of California. Plaintiffs filed suit to recover processed funds and processing fees alleged to be withheld illegally (see Section K. Legal Matters above).
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N. |
Share Transfers |
The following three share transactions summarized below, totaling 1,085,000 shares, were each inadvertently transferred from PrivCo’s Control Block rather than PubCo issuing new shares. Subsequently, on or about August 14, 2019, PubCo issued 1,085,000 shares to PrivCo, as reimbursement of the shares inadvertently transferred by PrivCo.
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1) |
On or about December 27, 2018, PrivCo inadvertently transferred 1,000,000 restricted shares of Common Stock from the Control Block, with a market value of $150,000, which money was deposited into PrivCo’s bank accounts (control of which bank accounts were shared by PubCo and PrivCo from April 12, 2018 through approximately December 31, 2018). |
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2) |
On or about January 4, 2019, PrivCo inadvertently transferred 50,000 restricted shares of Common Stock from the Control Block to a non-affiliated service provider to PubCo for services rendered to PubCo. |
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3) |
On or about January 4, 2019, PrivCo inadvertently transferred 35,000 restricted shares of Common Stock from the Control Block to a non-affiliated service provider to PubCo for services rendered to PubCo. |
As of January 6, 2020 PrivCo has not yet filed a Form 3 on the shares received April 12, 2018, nor for any subsequent transactions involving PubCo shares held by PrivCo.
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O. |
Promissory Notes |
Subsequent to PubCo’s acquisition of the GreenBox Business on April 12, 2018, PubCo issued Promissory Notes as follows:
Power Up Lending Ltd
On August 6, 2018, the we entered into a Securities Purchase Agreement with Power Up Lending Up Ltd (“PULG”) under which PULG with agreed to issue notes of up to $1,500,000 in aggregate over twelve months at the discretion of PULG (the “PULG SPA”). The first note under the PULG SPA, for $253,000 was issued simultaneous with the execution of the PULG SPA.
On August 6, 2018, PubCo issued a convertible promissory note for $253,000 to PULG, with a net $250,000 received by PubCo. The note incurs interest at 10% per year and the outstanding principal and accrued interest are due August 6, 2019. The note includes a conversion feature where, beginning 180 days after the issuance date, at which time the lender may convert all or a portion of the outstanding principal and accrued interest balance into shares of PubCo’s common stock at a discounted rate of 65%. PubCo incurred $3,000 in financing fees associated with the loan. PubCo chose to repay the note on January 30, 2019, at which time it repaid the principal, accrued interest and an early repayment penalty of $93,333, which PubCo recorded as interest expense.
On September 27, 2018, PubCo issued a convertible promissory note for $53,000 to PULG, with a net $50,000 received by PubCo. The note incurs interest at 10% per year and the outstanding principal and accrued interest are due September 27, 2019. The note includes a conversion feature where, beginning 180 days after the issuance date, at which time the lender may convert all or a portion of the outstanding principal and accrued interest balance into shares of the PubCo’s common stock at a discounted rate of 65%. PubCo incurred $3,000 in financing fees associated with the loan. PubCo chose to repay the note on March 13, 2019, at which time it repaid the principal, accrued interest and an early repayment penalty of $19,378, which PubCo recorded as interest expense.
On December 13, 2018, PubCo issued a convertible promissory note for $83,000 to PULG, with a net $80,000 received by PubCo. The note incurs interest at 10% per year and the outstanding principal and accrued interest are due December 13, 2019. The note includes a conversion feature where, beginning 180 days after the issuance date, at which time the lender may convert all or a portion of the outstanding principal and accrued interest balance into shares of PubCo’s common stock at a discounted rate of 65%. PubCo incurred $3,000 in financing fees associated with the loan. PubCo chose to repay the note on March 13, 2019, at which time it repaid the principal, accrued interest and an early repayment penalty of $17,005, which PubCo recorded as interest expense.
RB Capital Partners
On November 26, 2018, PubCo issued a convertible promissory note for $200,000 to RB Cap (the “RB Cap $200K Note”). The note incurs interest at 12% per year and the outstanding principal and accrued interest are due November 26, 2019. RB Cap may elect to convert the note at any time from six months from the date of issuance at a fixed price per share of $4.50. This note became part of a claim/counter claim with RB Capital. (See Section C. RB Capital Partners, Inc. above and Section K. Legal Matters above.)
Saskatchewan Ltd
On December 27, 2018, PubCo issued a convertible promissory note for $150,000 to Saskatchewan Ltd (“Sask”) (the “Sask Note”). The note incurs interest at 12% per year, paid quarterly, in advance. The outstanding principal and any remaining interest are due December 12, 2019. The note includes a conversion feature where, beginning six months after the issuance date, at which time the lender may convert all or a portion of the outstanding principal and any accrued interest balance into shares of PubCo’s common stock at a discounted rate of 50%.
Sask issued a notice of conversion to PubCo on June 27, 2019 to convert the outstanding principal into 2,307,692 shares of PubCo’s stock (the “Sask Conversion Shares”), which we recorded as “shares issuable” by PubCo for the period ending June 30, 2019. The shares were subsequently issued to Sask on August 14, 2019.
Vista Capital Investments, LLC
On January 3, 2011, PubCo issued a convertible promissory note for $500,000 to Vista Capital Investments, LLC (“Vista)”) (the “Vista Note”), due October 6, 2019. The note incurred a onetime interest charge of 8%, which was recorded at issuance, and due upon payback of the note. The note included an original issue discount of $125,000, netting the balance received by PubCo from Vista at $375,000. The Vista Transaction included commitment fees, which took the form of an obligation by PubCo to issue Vista 25,0000 shares and a four-year warrant to purchase 125,000 shares, with an exercise price of $2.50. Upon the occurrence of an event of default, the conversion price shall become equal to a fifty percent of the lowest traded price for the Company’s common stock in the 25 consecutive trading days preceding the notice of conversion (the “Default Provision”). The note’s principal and interest were due to be paid October 6, 2019. On or about October 16, 2019, Vista agreed to reduce the principal and interest due to $464,625, cancel the commitment shares, and extend the maturity date of the note to November 6, 2019. On or about December 11, 2019, Vista extended the note’s due date to January 15, 2020, changed the principal and interest balance due on or before January 15, 2020, to $487,858, and waived Vista’s default rights through January 15, 2020.
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P. |
Purchase Agreements |
West Coast Business Capital, LLC
On or about November 12, 2019, PubCo entered into a Purchase Agreement with West Coast Business Capital, LLC (“West Coast”). Under the terms of the Purchase Agreement, we agreed to sell West Coast $596,000 of future incoming cashflow from the GreenBox Business, to be delivered to West Coast in daily installments of $5,960, for $400,000, from which $16,000 in fees was deducted, providing us with net cash of $384,000. For accounting purposes, we recorded this transaction as a loan of $400,000, with interest of $196,000, which will be repaid over the following four months. Both Nisan and Errez, individually, signed personal guarantees for this Purchase Agreement.
Fox Capital Group, Inc.
On or about December 5, 2019, PubCo entered into a Secured Merchant Agreement with Fox Capital Group, Inc. (“Fox”). Under the terms of the Secured Merchant Agreement, we agreed to sell Fox $366,000 of future incoming cashflow from the GreenBox Business, to be delivered to Fox in daily installments of $4,073.33, for $260,000, from which $26,000 in fees was deducted, providing us with net cash of $234,000. For accounting purposes, we recorded this transaction as a loan of $260,000, with interest of $106,000, which will be repaid over the following four months. Both Nisan and Errez, individually, signed personal guarantees for this Secured Merchant Agreement.
Complete Business Solutions Group, Inc.
On or about December 9, 2019, PubCo entered into an Agreement for the Purchase and Sale of Future Receivables (the “Purchase and Sale Agreement”) with Complete Business Solutions Group Inc, (“CBSG”). Under the terms of the Purchase and Sale Agreement, we agreed to sell CBSG $240,000 of future incoming cashflow from the GreenBox Business, to be delivered to CBSG in weekly installments of $16,000, for $200,000, from which $35 in fees was deducted, providing us with net cash of $19,965. For accounting purposes, we recorded this transaction as a loan of $200,000, with interest of $40,000, which will be repaid over the following four months. Both Nisan and Errez, individually, signed personal guarantees for this Purchase and Sale Agreement.
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Q. |
Issuance of Unregistered Securities |
PubCo issued the following securities that were not registered under the Securities Act. Except where noted, all of the securities stated below were issued in reliance on the exemption under Section 4(a)(2) of the Securities Act.
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1) |
On or about March 29, 2018, PubCo issued 144,445,000 shares to Frank Yuan (“Frank”), when Frank converted $14,445 of a line of credit Frank had issued to PubCo. Frank was the former sole officer and director of PubCo. |
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2) |
On or about October 23, 2018, PubCo issued 7,500,000 shares to RB Capital Partners (“RB Cap”), in repayment of $7,500 of a $300,000 note issued by PrivCo to RB. |
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3) |
On or about May 10, 2019, PubCo issued 10,000 shares to a non-affiliated legal consultant for services rendered. |
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4) |
On or about June 18, 2019, PubCo issued a total of 850,000 shares to nine PubCo employees as performance bonuses. The shares were fully vested upon issuance and worth $0.10 per share, at closing, on the day of issuance. |
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5) |
On or about August 14, 2019, PubCo issued 2,307,692 shares to a lender, that chose to convert a $150,000 promissory note at a 50% discount into shares of PubCo. Subsequently, on October 18, 2019, PubCo agreed to repurchase the shares for $150,000. |
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6) |
On or about August 14, 2019, PubCo issued 1,085,000 shares to PrivCo, as repayment of shares inadvertently transferred by PrivCo to third parties on behalf of PubCo (see Section N. Share Transfers above). |
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R. |
Charitable Contributions / Related Party Transactions |
Nate Errez (“Nate”) is the son of Ben Errez. Nate is a competitive athlete and races Surf Skis for the US National Team. During 2018, PrivCo made $13,355 in charitable donations to organizations in which Nate is a member, including sponsorship of the San Diego Kayak Team (a 501(c)(3) no-profit organization).