Vertical Data Inc S-1/A, filed May 2, 2025
Vertical Data Inc. (VDTA)
As filed with the Securities and Exchange Commission on May 1, 2025
Registration No. 333-284187
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
| VERTICAL DATA INC. |
| (Exact name of registrant as specified in its charter) |
| Nevada |
| (State or other jurisdiction of incorporation or organization) |
| 8742 |
| (Primary Standard Industrial Classification Code Number) |
| 99-2841705 |
| (I.R.S. Employer Identification Number) |
1980 Festival Plaza Drive Suite 300 Las Vegas, NV 89135 (888) 462-3453 |
| (Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices) |
| REPUBLIC
REGISTERED AGENT LLC 930 S 4th St Ste 209, Las Vegas, NV 89101, USA, Telephone: (888) 462-3453 |
| (Name, address, including zip code, and telephone number, including area code, of agent for service) |
Please send copies of all communications to: |
Joseph M. Lucosky, Esq. Scott E. Linsky, Esq. Lucosky
Brookman LLP |
| As soon as practical after the effective date of this registration statement |
| Approximate date of commencement of proposed sale to the public) |
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☒
Indicate by check mark whether the registrant is a large, accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large, accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large, accelerated filer ☐ | Accelerated filer ☐ |
| Non-accelerated filer ☒ | Smaller reporting company ☒ |
| Emerging growth company ☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the U.S. Securities and Exchange Commission, acting pursuant to Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. The selling stockholders shall not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective.
This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any state or other jurisdiction where the offer or sale is not permitted. The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
THE INFORMATION CONTAINED IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES, AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
| PRELIMINARY PROSPECTUS | SUBJECT TO COMPLETION | DATED May 1, 2025 |
VERTICAL DATA INC.
41,193,052 SHARES OF COMMON STOCK
This prospectus covers the initial public offering and resale by certain stockholders of Vertical Data Inc., a Nevada corporation (“Vertical Data” “we,” “us”, “our” or the “Company”) identified in the “Selling Stockholders” section of this prospectus of up to an aggregate of 41,193,052 shares of our common stock, $0.0001 par value (the “shares”). We anticipate that the initial public offering price of our common stock will be an assumed price of $0.50 per share.
Each selling stockholder may sell all or a portion of the shares beneficially owned by it directly or through one or more underwriters, broker-dealers or agents. Please see the section entitled “Plan of Distribution” of this prospectus for more information. We will bear all fees and expenses incident to the registration of the shares. We will not receive any of the proceeds from the sale of the shares by the selling stockholders.
Prior to this offering, there is currently no public market established for our common stock. The selling stockholders will sell the shares being registered under this prospectus at $0.50 per share. We intend to apply to list our shares of common stock on the OTCQX® Best Market or the OTCQB® Venture Market, subject to official notice of issuance, under the symbol “VERT”. No assurance can be given that our applications will be approved. If our application is not approved, we will not continue with this offering. If we succeed in securing quotation of our common stock on the OTCQX® Best Market or the OTCQB® Venture Market and a market for our shares develops, the selling stockholders may sell their shares from time to time at the prevailing market price at the time of offer and sale, or at prices related to such prevailing market prices or in negotiated transactions or a combination of such methods of sale directly or through brokers.
We may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should read the entire prospectus and any amendments or supplements carefully before you make your investment decision.
We are an emerging growth company under the Jumpstart Our Business Startups Act of 2012 and a “smaller reporting company” as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended, and, as such, may elect to comply with certain reduced public company reporting requirements for this prospectus and future filings. Investing in our common stock involves a high degree of risk.
Investing in our common stock is highly speculative and involves a high degree of risk. See “Risk Factors” beginning on page 8 of this prospectus for a discussion of information that should be considered in connection with an investment in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is [ ], 2025
TABLE OF CONTENTS
| i |
You should rely only on information contained in this prospectus. We have not, and the underwriters have not, authorized anyone to provide you with additional information or information different from that contained in this prospectus. Neither the delivery of this prospectus nor the sale of our securities means that the information contained in this prospectus is correct after the date of this prospectus. This prospectus is not an offer to sell or the solicitation of an offer to buy our securities in any circumstances under which the offer or solicitation is unlawful or in any state or other jurisdiction where the offer is not permitted.
For investors outside the United States: Neither we nor the underwriters have taken any action that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the securities covered hereby and the distribution of this prospectus outside of the United States.
The information in this prospectus is accurate only as of the date on the front cover of this prospectus. Our business, financial condition, results of operations and prospects may have changed since those dates.
No person is authorized in connection with this prospectus to give any information or to make any representations about us, the securities offered hereby or any matter discussed in this prospectus, other than the information and representations contained in this prospectus. If any other information or representation is given or made, such information or representation may not be relied upon as having been authorized by us.
Neither we nor the underwriters have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than the United States. You are required to inform yourself about, and to observe any restrictions relating to, this offering and the distribution of this prospectus.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that involve substantial risks and uncertainties. The forward-looking statements are contained principally in the sections entitled “Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business,” but are also contained in this prospectus. In some cases, you can identify forward-looking statements by the words “may,” “might,” “will,” “could,” “would,” “should,” “expect,” “intend,” “plan,” “aim,” “objective,” “anticipate,” “believe,” “estimate,” “predict,” “project,” “potential,” “continue,” “ongoing,” “target,” “seek” or the negative of these terms, or other comparable terminology intended to identify statements about the future. Forward-looking statements contained in this prospectus include, but are not limited to, statements about:
| ● | our future financial performance, including our revenue, costs of revenue, operating expenses and profitability; |
| ● | the sufficiency of our cash and cash equivalents to meet our liquidity needs; |
| ● | the availability of financing for smaller publicly traded companies like us; |
| ● | our ability to effectively manage our growth and future expenses; |
| ● | changes adversely affecting the industry in which we operate; |
| ● | our ability to achieve our business strategies or to manage our growth; |
| ● | general economic conditions; |
| ● | changes in assumptions used to make industry forecasts; |
| ● | our ability to retain our key employees and executives; |
| ● | our future operating results and financial condition; |
| ii |
| ● | our business operations; |
| ● | changes in our business and investment strategy; |
| ● | availability, terms, and deployment of capital; |
| ● | changes in, or the failure or inability to comply with, governmental laws and regulations; |
| ● | the degree and nature of our competition; |
| ● | our leverage and debt service obligations; and |
| ● | additional factors discussed under the sections captioned “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Our Business.” |
These forward-looking statements reflect our management’s beliefs and views with respect to future events and are based on estimates and assumptions as of the date of this prospectus and are subject to risks and uncertainties. We discuss many of these risks in greater detail under “Risk Factors.” Moreover, we operate in a very competitive and rapidly changing environment. New risks emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. Given these uncertainties, you should not place undue reliance on these forward-looking statements.
You should read this prospectus and the documents that we reference in this prospectus and have filed as exhibits to the registration statement of which this prospectus forms a part with the understanding that our actual future results, levels of activity, performance and achievements may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
The forward-looking statements made in this prospectus relate only to events as of the date on which such statements are made. We undertake no obligation to update any forward-looking statements after the date of this prospectus or to conform such statements to actual results or revised expectations, except as required by law.
We caution you that the foregoing list may not contain all of the forward-looking statements made in this prospectus.
These statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to be materially different from the information expressed or implied by these forward-looking statements. Although we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus, we caution you that these statements are based on a combination of facts and factors currently known by us and our expectations of the future, about which we cannot be certain.
You should refer to the “Risk Factors” section of this prospectus for a discussion of important factors that may cause our actual results to differ materially from those expressed or implied by our forward-looking statements. As a result of these factors, we cannot assure you that the forward-looking statements in this prospectus will prove to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements, you should not regard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time frame, or at all. We undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by federal securities law.
You should read this prospectus and the documents that we reference in this prospectus and have filed as exhibits to the registration statement, of which this prospectus is a part, completely and with the understanding that our actual future results may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
| iii |
This summary highlights information contained elsewhere in this prospectus. This summary does not contain all of the information you should consider before investing in our common stock. Before investing in our securities, you should carefully read this entire prospectus, including our consolidated financial statements and the related notes thereto and the information set forth under the sections “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements and related notes thereto, in each case included in this prospectus. Some of the statements in this prospectus constitute forward-looking statements. See “Cautionary Note Regarding Forward-Looking Statements.” Except as otherwise indicated, references to “we”, “us”, “our”, and the “Company” refer to Vertical Data Inc., a Nevada corporation.
Corporate History and Organization
Vertical Data was incorporated as a corporation under the laws of the State of Nevada on May 3, 2024. Our principal business, executive and registered statutory office is located at 930 South 4th Street, Suite 209 4405, Las Vegas, NV, 89101.
We intend to be a leading provider of infrastructure hardware and services to data centers and enterprises looking to utilize high performance computing such as machine learning and inference. The Company is committed to expanding the availability of high-performance computing to the global landscape.
Business Overview
We are an early development-stage systems and solutions technology provider delivering high performance computer solutions to enterprise and data center clients. We distribute computer systems and information technology (“IT”) systems including graphics processing unit (“GPU”) servers, storage solutions, system components, software, networking and communications equipment, and related complementary products and services.
Our business model goes beyond traditional distribution by offering tailored product configurations, and early efforts to develop our own OEM hardware to meet specialized enterprise and data center needs. We work with current original equipment manufacturers (“OEMs”) as well as suppliers of next-generation technologies, including converged infrastructure, AI-optimized systems, and high-density compute solutions.
In addition to providing IT systems from a network of suppliers, the Company plans to increase its service offerings by collaborating with customers to customize specifications, ensuring optimal performance for AI, HPC, and enterprise workloads. Our future plans for in-house development of specialized OEM products will further enhance our ability to deliver solutions designed for high-performance computing, AI model training, and inference workloads—allowing customers to deploy cost-effective, scalable, and future-proofed infrastructure. As part of our business, we will also engage in the coordination and provision of colocation and other data center services and hosting services for our customers.
Our business is characterized by high volumes of sales and price sensitivity by our end users. The market for IT products and services is generally characterized by declining unit prices and short product life cycles. We set our sales price based on the market supply and demand characteristics for each particular product or bundle of products we distribute and services we provide. In addition, we try to provide just-in-time delivery of the IT products to avoid taking significant inventory which allows us to ensure positive working capital cycles and to ensure our product offerings tie with current market demands.
We are highly dependent on the end-market demand for IT products and services, and on our partners’ strategic initiatives and business models. This end market demand is influenced by many factors including the introduction of new IT products and software by OEMs, replacement cycles for existing IT products, trends toward AI computing, enterprise migration from cloud computing to colocation, overall economic growth and general business activity. A difficult and challenging economic environment may also lead to consolidation or decline in the IT industries and increased price-based competition.
As of the date of this Prospectus, we had one (1) full-time employee and fifteen (15) consultants, which includes five (5) sales representatives, three (3) business development specialists, and three (3) offshore operations and administrative staff. During our fiscal year ended September 30, 2024, we recognized revenue of approximately $6.9 million and had a net loss for the period of approximately $0.4 million. During our interim period ended December 31, 2024, we recognized revenue of approximately $3.7 million and had a net loss for the period of approximately $0.9 million. Our financial results reflect our investment in building out our business model and building our infrastructure for revenue-producing initiatives including but not limited to current customers.
| 1 |
Our Products and Suppliers
We offer a comprehensive and value-driven offering of high-performance computer products from a group of proprietary network suppliers, enabling us to offer tailored turnkey solutions to our enterprise and data center customers. The typical products we provide are Nvidia GPU-based servers used in training large language models (“LLM”) as well as systems that are used in LLM inference (or using these models to draw conclusions from an input). Our products typically come in the form of bare metal servers (or fully constructed servers that can be used for the above uses), or pre-configured systems with internally optimized software stacks for AI and HPC workloads. In addition to hardware, the Company plans to provide hardware financing solutions, a network of high-density colocation locations, AI enablement consulting, and data center management services—allowing enterprises to seamlessly launch high-density and AI computing workloads.
Our primary focus is to support demand for enterprise AI compute capability. This includes demand for storage, semiconductors, computer memory, peripherals, storage and subsystems as well as potential financing solutions, colocation offerings and professional services to empower our customers to uncover AI opportunities, prioritize, analyze and define them to ensure improved ROI and guarantee project success. The key to our success in meeting this demand is our ability to align and develop strong relationships with OEM suppliers, system integrators and expand our OEM and proprietary AI hardware and infrastructure offerings to support these objectives with our highly skilled technical team.
The Company does not distribute on behalf of any of its vendors, and thus does not have distribution agreements with any of our suppliers. As we establish a reputation as a strong and reliable value-added reseller, we intend to negotiate agreements with top suppliers—which we believe will improve our pricing and access to additional IT products. We currently do not have any vendor agreements with binding terms regarding price, volume or exclusivity, as our ongoing arrangements with vendors do not restrict us from selling similar products manufactured by competitors, nor do they require us to sell a specified quantity of product. As a result, we have the flexibility to terminate or curtail sales of one product line in favor of another due to technological change, pricing considerations, product availability and customer demand or vendor distribution policies.
Our Customers
Our target customers are comprised of direct end users as well as our own sales channel, which consists of internet service providers (“ISPs), data centers and system integrators, various vertical market enterprises (e.g. financial services, governments, retail, energy, manufacturing and more). We believe this approach will help us strike long-term contracts with high value customers while also expanding our market reach.
We have high customer concentration. Our revenues have been from two customers which accounted for 94% and 6% of our revenue for the three-month interim period ended December 31, 2024, and 77% and 23% of our revenue for the period May 3, 2024 (inception date) through September 30, 2024. We intend to increase our customer base with increased business development and sales and marketing activity.
Our Industry Background and Market Opportunity
According to published industry research1, as of March 2024 there were approximately 10,655 data centers globally, half (approximately 5,381) of which were in the United States. A key growth driver in the data center market is data center operators deciding between on-premises versus the cloud in determining the best way to host AI workloads. On premises data centers have advantages for hosting AI workloads including greater control over infrastructure for customization and optimization, leading to potential lower operational costs. On premises deployments can offer lower latency and higher bandwidth which are both critical for real-time processing of large data sets in addition to addressing data sovereignty and security concerns.
We believe that investment into digital infrastructure, including GPUs for AI computing, will be driven by its perception as a compelling and powerful technology for the economy and society in general. A recent report from CBRE (2024 Global Data Center Investor Intentions Survey) showed that 97% of respondents to its survey plan to increase their capital deployment in the data center sector, and that 92% of respondents are allocating more than $100 million to the data center sector, while 44% are allocating more than $500 million, in 2024.
1 Statista. (2023). Data Center Market in the United States - Statistics & Facts. Statista
| 2 |
Sales and Marketing
We serve our customers through sales representatives contracted as consultants, of which we have five (5). We market to Fortune 1,000 enterprises, top tier data centers, and cloud computing providers both directly and through a network of integration partners.
In addition, we have three (3) dedicated business development specialists that focus on the sale and promotion of products to specific customer types (such as cloud compute providers) and customers in specific regions (such as the middle east). Our sales and marketing professionals are supported by members of our executive management team that assist in identifying new customer opportunities, promoting sales growth and ensuring customer satisfaction. We attempt to ensure that we have sales and marketing professionals in close geographic proximity to our customers.
Our priorities are to (a) continue to invest in expanding suppliers and related product offerings, (b) extend our offerings in new jurisdictions, (c) onboard additional sales and business development representatives, and (d) expand our other product and services offerings.
Our Operations
Our primary business presence is in Las Vegas, Nevada. We intend to establish additional physical points of presence in the western United States to streamline shipping and fulfillment for our hardware business. Our distribution process is designed to ensure timely order fulfillment and enhance the efficiency of our operations and back-office administration. Our goal is to reduce delivery lead times to our customers through the strategic and proprietary use of a network of suppliers, encompassing our two vendors. Furthermore, we track several performance measurements such as order close rate, procurement times, and shipping times to continuously improve the efficiency and accuracy of our distribution operations.
Our workforce is comprised of a full-time employee and consultants, enabling us to respond to short-term changes in demand.
Our IT systems and processes are designed to enable us to automate many of our distribution operations—with a focus on streamlining and automating the quoting, fulfillment, shipping, and warranty processes via a unified technology stack that lets view the status of a customer and order at each stage of the sales process.
Our typical sales process for the hardware business originates with a customer request. An existing or prospective customer will reach out to one of our sales team members with a request for a quote on a hardware order. Or alternatively, a customer will respond to an outbound sales or marketing campaign initiated by our sales or marketing team. Our team will then review the request to ensure that the spec is one that meets the client’s needs from a functionality and performance perspective. Once the order and order timeline are validated, our procurement team will contact our two suppliers to identify the best pricing and delivery timeline for the order—and relay this information back to the client to make a final purchasing decision. Once the client confirms the order, we place our order with the supplier who readies the inventory for shipment. The Company will then contract with one of its shipping vendors to pick up the order from the supplier and deliver it directly to the customer. As the Company maintains control of the inventory throughout the shipping process, we retain risk of loss for the equipment until it is eventually delivered to the customer.
Our business operations are highly scalable with relatively minimal incremental spending required to expand supplier relationships and related product offerings. We will continue to manage our fixed-cost base in conjunction with our market entry plans and focus our variable spend on marketing, user experience and support, and regulatory compliance to become the product of choice for users and to maintain favorable relationships with regulators when necessary. We also expect to achieve and improve profitability over time as our revenue and gross profit expand as we add customers and expand selling opportunities, while our variable marketing expenses and fixed costs stabilize or grow at a slower rate.
Our path to profitability is based on the acceleration of positive contribution profit growth driven by increased revenue and gross profit generation from ongoing efficient customer acquisition enabled by establishing our reputation as a reliable and cost-effective value-added reseller to our target customers. In addition, key to achieving profitability is strong customer retention, improved monetization from increased frequency of customer orders, as well as scale benefits from expanding our supplier ecosystem and selling in greater quantities. On an adjusted EBITDA basis, we expect to achieve profitability when total contribution profit exceeds the fixed costs of our business, which depends, in part, on the amount of suppliers we work with, our negotiated prices for equipment and demand from our customers, and the other factors summarized in the section entitled “Cautionary Statement Regarding Forward-Looking Statements.”
| 3 |
Inventory Management
We manage shipping arrangements with our OEMs and wholesale distributors, which permit us to offer products to our customers and is expected to reduce the timeframe in which the customer receives the products and reduces the cash-to-cash gap of purchasing the products from suppliers and payment for the product from customers.
We believe competitive sources of supply are available in substantially all of the product categories that we offer. Product cost currently represents our single largest expense. Furthermore, product procurement from our OEM suppliers is a highly complex process that involves identifying and negotiating product specs, pricing, and delivery timelines. As we grow, we expect this process to become more complex as we manage incentive programs, rebate programs, volume and early payment discounts and other arrangements. Consequently, we believe that efficient and effective purchasing operations are critical to our success.
In order to promote efficiency and to maximize the best business procedures of potential product purchases, our purchasing group works closely with many areas of our organization, including our product managers, OEM suppliers, and our sales force. We may also rely on our receipt of good-faith, non-binding, customer forecasts. We maintain EDI connections with many of our OEM suppliers to facilitate the seamless exchange of information, such as sending purchase orders and receiving updates on order status. While we receive notifications when products are ready for shipment, the shipping process is fully managed and coordinated by our team in collaboration with our chosen vendors to ensure it aligns with our operational needs.
Due to the highly competitive market for our products and services, there may be limited supply of GPUs we use. Our ability to source this hard-to-find equipment is our competitive advantage. We do not believe that such constraints put our business at a disadvantage.
Information Technology
Our IT systems manage the entire order cycle, including tracking customer leads, processing customer orders, customer billing and payment tracking and warranty eligibility for the products we sell. These IT systems make our operations more efficient and provide visibility into our operations. We believe our IT infrastructure is scalable to support further growth. We continue to enhance and invest in our IT systems to improve product management, streamline order and fulfillment processes, and increase operational flexibility.
Competition
We operate in a highly competitive global environment. The IT product industry is characterized by intense competition, based primarily on product availability, credit terms and availability, price, speed and accuracy of delivery, effectiveness of sales and marketing programs, ability to tailor specific solutions to customer needs, quality and depth of product lines and training, pre- and post-sale technical support, flexibility and timely response to design changes, technological capabilities and product quality, service support, and the ability to provide turnkey solutions. We compete with a variety of regional, national and international IT product distributors and manufacturers.
We compete against several distributors in the Americas market including OEM distributors such as Supermicro, Hewlett Packard Enterprise and Dell Inc., and, to a lesser extent, regional distributors. We also face competition from our OEM suppliers that sell directly to retailers and end-users. The distribution industry has historically undergone, and continues to undergo, consolidation. Over the years, a number of providers within the IT distribution industry exited or merged with other providers.
| 4 |
As we enter new business areas, we may encounter increased competition from our current competitors and/or new competitors. Some of our competitors may have greater financial, operating, manufacturing and marketing resources than us. Some of our competitors may have broader geographic breadth and range of services than us. Some may also have more developed relationships with their existing customers.
We constantly seek to expand our business into areas primarily related to our core distribution as well as other support, logistics and related value-added services.
Recent Developments
During our 2024 fiscal year, we entered into a Subscription Agreement with investors. Pursuant to that agreement, we agreed to offer and sell an aggregate of $2,500,000 of our securities in a private placement (the “Private Placement”), consisting of 5,000,000 shares (“Shares”) of our common stock. As of the Filing Date, we have sold 4,690,052 shares at $0.50 per share for total gross proceeds of $2,345,026.
We intend to use these net proceeds for general working capital and general corporate purposes. The Subscription Agreement includes standard representations, warranties and covenants of the Company and Investors.
Human Capital Resources
As of the date of this Prospectus, we had one (1) full-time employee and fifteen (15) consultants which includes five (5) sales representatives, three (3) business development specialists, and three (3) offshore operations and administrative staff. Given the variability in our business and the quick response time required by customers, we believe that it is critical that we are able to rapidly ramp-up and ramp-down our operational capabilities to maximize efficiency. As a result, we actively leverage temporary and contract workers as well as a robust offshore team focused on operations, finance and administration. The above count of our employees and consultants accounts for all of the members described within this paragraph.
We are committed to fostering a diverse and inclusive workplace that attracts and retains exceptional talent. Through ongoing employee development, comprehensive compensation and benefits, and a focus on health, safety and employee wellbeing, we strive to help our employees in all aspects of their lives so they can do their best work.
Employee Engagement
We intend to regularly collect feedback to better understand and improve the co-worker experience and identify opportunities to continually strengthen our culture. We want to know what is working well, what we can do better and how well our co-workers understand and are practicing our cultural values.
Health, Safety and Wellness
The physical health, financial wellbeing, life balance and mental health of our employees is vital to our success. Throughout the year, we expect to encourage healthy behaviors through regular communications, educational sessions, voluntary progress tracking, wellness challenges, and other incentives. We take an integrated approach to helping our co-workers manage their work and personal responsibilities, with a strong focus on employee wellbeing, health and safety. We have successfully transitioned most of our workforce to a remote working environment and implemented a number of safety and social distancing measures within our premises to protect the health and safety of co-workers who are required to be on-premise to support our business.
Seasonality
We have a limited operating history, but we expect our operating results will be affected by the seasonality of the IT products industry which traditionally experiences slightly higher sales in the first and fourth calendar quarters due to patterns in capital budgeting and purchasing cycles of customers and end-users. These historical patterns may not be repeated in subsequent periods.
In addition, the advent of and demand for high performance computing may lead to a reduction in the seasonal effects we experience. For example, sales variability may be increasingly based on the upgrade cycles of top chip manufacturers like Nvidia Corporation and Advanced Micro Devices Inc. As these computing providers shrink their upgrade cycles to offer new chipsets to the market more rapidly, our end customers often anticipate these upgraded releases and time their buying behavior based on the announcements and availability of these new chipsets.
| 5 |
Revenue
We will primarily derive revenue from the sale of high-performance computing systems. We plan to expand our revenue channel to services including data center integration services and managed services. We plan to continue to invest in sales and marketing to retain and acquire customers. However, sales and marketing expenses may fluctuate as a percentage of revenue depending on the timing and efficiency of our marketing efforts.
Cost of Revenue
Cost of revenue for our current business lines is primarily comprised of costs of the hardware sold to our customers.
Our Business Strategy
Our business strategy is to continue to expand our product reach, expand supplier relationships which in turn provide depth to our overall product offerings, and to utilize the depth and performance of our product offerings to attract and build our customer base. Key to our strategy is that we increase order size per customer and provide world-class service and support that will enable us to maximize customer retention and move upstream from one-off hardware sales to long-term partnerships with top tier global customers. Additionally, we plan to expand our hardware sales from OEM products to products we develop and brand internally that meet specific use cases in a more cost efficient and performant manner.
Implications of Being an Emerging Growth Company
As a company with less than $1.235 billion in revenue during our last completed fiscal year, we qualify as an “emerging growth company” as defined in the federal securities laws. An emerging growth company may take advantage of specified reduced reporting requirements that are otherwise applicable generally to public companies. These reduced reporting requirements include:
| ● | an exemption from compliance with the auditor attestation requirement on the effectiveness of our internal control over financial reporting; |
| ● | an exemption from compliance with any requirement that the Public Company Accounting Oversight Board may adopt regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements; |
| ● | an exemption from the requirements to obtain a non-binding advisory vote on executive compensation or a stockholder approval of any golden parachute arrangements; |
| ● | extended transition periods for complying with new or revised accounting standards; |
| ● | being permitted to present only two years of audited financial statements and only two years of related “Management’s Discussion and Analysis of Financial Condition and Results of Operations”, in addition to any required unaudited interim financial statements in this prospectus; and |
| ● | reduced disclosures regarding executive compensation in our periodic reports, proxy statements and registration statements, including in this prospectus. |
We will remain an emerging growth company until the earliest to occur of: (i) the end of the first fiscal year in which our annual gross revenue is $1.235 billion or more; (ii) the end of the first fiscal year in which we are deemed to be a “large accelerated filer,” as defined in the Securities Exchange Act of 1934, as amended, (the “Exchange Act”); (iii) the date on which we have, during the previous three-year period, issued more than $1.0 billion in non-convertible debt securities; and (iv) the end of the fiscal year during which the fifth anniversary of this offering occurs. We may choose to take advantage of some, but not all, exemptions afforded to emerging growth companies. We currently intend to take advantage of the exemptions discussed above. Accordingly, the information contained herein may be different than the information you receive from other public companies in which you hold stock. The Company will take advantage of the extended transition period for complying with any new or revised financial account standards provided pursuant to Section 7(a)(2)(B).
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended. We may take advantage of certain of the scaled disclosures available to smaller reporting companies until the fiscal year following the determination that our voting and non-voting common stock held by non-affiliates is more than $250 million measured on the last business day of our second fiscal quarter, or our annual revenues are less than $100 million during the most recently completed fiscal year and our voting and non-voting common stock held by non-affiliates is less than $700 million measured on the last business day of our second fiscal quarter.
| 6 |
| Issuer: | ||
| Vertical Data Inc. | ||
| Common Stock Offered by Us | 41,193,052 shares of common stock | |
| Common Stock Outstanding Prior to This Offering | 41,193,052 shares of common stock | |
| Common Stock to Be Outstanding Immediately After Completion of This Offering (1) | 41,193,052 shares of common stock | |
| Offering Price | Selling stockholders will sell the shares being registered under this prospectus at $0.50 per share. If we succeed in securing quotation of our common stock on the OTCQX® Best Market or the OTCQB® Venture Market and a market for our shares develops, the selling stockholders may sell their shares from time to time at the prevailing market price at the time of offer and sale, or at prices related to such prevailing market prices or in negotiated transactions or a combination of such methods of sale directly or through brokers. | |
| Use of Proceeds | We will not receive any proceeds from the sale of shares by the selling stockholders in this offering. See “Use of Proceeds.” | |
| Plan of Distribution | The selling stockholders may sell all or a portion of the shares of common stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. Registration of the common stock covered by this prospectus does not mean, however, that such shares necessarily will be offered or sold. See “Plan of Distribution.” | |
| Listing | There is currently no public market established for our common stock. We intend to apply to list our shares of common stock on the OTCQX® Best Market or the OTCQB® Venture Market, subject to official notice of issuance, under the symbol “VERT”. No assurance can be given that our applications will be approved. If our application is not approved, we will not continue with this offering. If we succeed in securing quotation of our common stock on the OTCQX® Best Market or the OTCQB® Venture Market and a market for our shares develops, the selling stockholders may sell their shares from time to time at the prevailing market price at the time of offer and sale, or at prices related to such prevailing market prices or in negotiated transactions or a combination of such methods of sale directly or through brokers. | |
| Proposed Trading Symbol | “VERT” | |
| Risk Factors | Investing in our common stock is speculative and involves a high degree of risk. See “Risk Factors” beginning on page 8 and the other information in this prospectus for a discussion of the factors you should consider carefully before you decide to invest in our common stock. | |
| Lock-Up | In
connection with this offering, we, our executive officers, directors, and our existing stockholders holding five percent (5%) or more
of our common stock prior to this offering have agreed not to offer, issue, sell, contract to sell, encumber, grant any option for the
sale of or otherwise dispose of any of our securities for a period of six (6) months following the closing of this offering. In addition,
each existing stockholder of our company who holds less than five percent (5%) of our common stock prior to this offering will be subject
to leak-out agreement restricting sales of certain percentages of their common stock during a period ranging from 30 days to 150 days
following the closing of this offering.
The Founders (in the Selling Stockholders section), each of whom have received respective shares and have held since May 3, 2024, have a holding period of a total of thirty-six (36) months from the date of this offering. The holding period includes a twelve (12) month period with restrictions on the shares; following the first year, restrictions on the shares will be proportionately removed monthly thereafter, with the shares being completely unrestricted after thirty-six (36) months. | |
| Transfer Agent | The transfer agent and registrar for our common stock is Colonial Stock Transfer, 7840 S 700 E, Sandy, UT 84070, having a telephone number of 801-355-5740. |
| (1) | The number of shares of our common stock to be outstanding upon completion of this offering will be 41,193,052 as of the date of this prospectus. |
Unless otherwise indicated, this prospectus reflects and assumes (i) no exercise by the representative of the underwriters of its over-allotment option and (ii) no exercise of the outstanding stock options described above.
| 7 |
The following table sets forth summary financial and other data for the periods ended and at the dates indicated below. The summary consolidated financial data set forth below should be read together with our consolidated financial statements and the related notes to those statements, as well as the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of this prospectus. Our historical results are not necessarily indicative of the results that may be expected in the future. The accompanying notes are an integral part of these financial statements and should be read in conjunction with the financial statements, related notes thereto and other financial information included elsewhere in this prospectus.
| Balance Sheet Data: | December 31, 2024 | September 30, 2024 | ||||||
| Current assets | $ | 2,020,056 | $ | 1,121,711 | ||||
| Non-current assets | 1,262 | 1,329 | ||||||
| Total assets | $ | 2,021,318 | $ | 1,123,040 | ||||
| Current liabilities | $ | 545,333 | $ | 367,115 | ||||
| Total liabilities | $ | 545,333 | $ | 367,115 | ||||
| Shareholders’ equity (deficit) | $ | 1,475,985 | $ | 755,925 | ||||
| Operating Data: | For the period ended December 31, 2024 | For the period from May 3, 2024 (inception) through September 30, 2024 | ||||||
| Revenues | $ | 3,666,000 | $ | 6,866,558 | ||||
| Cost of revenue | $ | 3,598,000 | $ | 6,542,000 | ||||
| Operating expenses | $ | 905,458 | $ | 675,157 | ||||
| Net loss | $ | (837,458 | ) | $ | (350,599 | ) | ||
| Net loss per share per common share – basic and diluted | $ | (0.02 | ) | $ | (0.02 | ) | ||
| Weighted average number of shares outstanding – basic and diluted | 39,020,726 | 23,294,212 | ||||||
An investment in our securities is highly speculative and involves a high degree of risk. In determining whether to purchase the Company’s securities, an investor should carefully consider all of the material risks described below, together with the other information contained in this Prospectus, which we believe represent certain of the material risks to our business, together with the information contained elsewhere in this prospectus, before you make a decision to invest in our shares of common stock. Please note that the risks highlighted here are not the only ones that we may face. For example, additional risks presently unknown to us or that we currently consider immaterial or unlikely to occur could also impair our operations. If any of the following events occur or any additional risks presently unknown to us actually occur, our business, financial condition and operating results may be materially adversely affected. In that event, the trading price of our securities could decline and you could lose all or part of your investment.
This registration statement contains forward-looking statements which are speculative in nature.
This registration statement contains forward-looking statements. These statements relate to future events or our future financial performance. Forward-looking statements are speculative and uncertain and not based on historical facts. Because forward-looking statements involve risks and uncertainties, there are important factors that could cause actual results to differ materially from those expressed or implied by these forward-looking statements, including those discussed under “business description” and “corporate background” although the Company believes that the expectations reflected in the forward-looking statements are reasonable, future results, levels of activity, performance, or achievements cannot be guaranteed. The reader is advised to consult any further disclosures made on related subjects in our future sec filings. Additional risks and uncertainties not currently known to the Company, or that the Company currently deems immaterial, may also potentially materially and adversely affect its business.
| 8 |
RISKS RELATED TO OUR BUSINESS
We have a limited operating history that you can use to evaluate us, and the likelihood of our success must be considered in light of the problems, expenses, difficulties, complications and delays frequently encountered by a small developing company.
We were incorporated in Nevada on May 3, 2024. We have limited financial resources and only limited revenues to date. The likelihood of our success must be considered in light of the problems, expenses, difficulties, complications and delays frequently encountered by a small developing company starting a new business enterprise and the highly competitive environment in which we will operate. Since we have a limited operating history, we cannot assure you that our business will be profitable or that we will ever generate sufficient revenues to fully meet our expenses and totally support our anticipated activities.
All of our capital and assets have been provided by or acquired from our principal shareholders, revenues and through a Private Placement of the shares being registered. We estimate that we will have sufficient capital to operate for the next twelve (12) months and sufficient capital to develop and market our commercial services. We cannot assure you, however, that we will be able to sustain the business for the long term nor that we may not need to obtain additional capital in the future. We also cannot assure you that we will be able to obtain any required financing on a timely basis, or if obtainable, that the terms will not materially dilute the equity of our current stockholders. If we are unable to obtain financing on a timely basis, we may have to curtail our business objectives significantly or entirely, which could result in our having to discontinue some of our operations and plans.
The Company’s success also depends, in part, on the ability to attract and retain customers. There are many factors which could impact the Company’s ability to attract and retain customers, including but not limited to the ability of the Company to source inventory and deliver desirable and effective products and services, the successful implementation of customer-acquisition plans and continued growth in the aggregate number of customers. The failure to acquire and retain customers would have a material adverse effect on the Company’s business, operating results and financial condition.
Our future operating results may fluctuate significantly, which may result in volatility in the market price of our stock and could impact our ability to operate our business effectively.
We may experience significant variations in our future quarterly and/or annual results of operations. These fluctuations may cause the market price of our common stock to be volatile and may result from many factors, including the state of the technology industry in general, shifts in demand and pricing for hardware, software and services, the introduction of new products or upgrades. Further, if our customers’ businesses are adversely affected by global or regional economic conditions such as cost inflation or rising interest rates, they may delay or reduce purchases from us, which could adversely affect our results of operations.
Our operating results are also highly dependent on gross profit. Our gross profit fluctuates due to numerous factors, some of which may be outside of our control, including general macroeconomic conditions including inflation; pricing pressures; changes in product costs from our vendor partners; the availability of price protection, purchase discounts and incentive programs from our vendor partners; changes in product, order size and customer mix; the risk of some items in our inventory becoming obsolete; increases in product and delivery costs that we cannot pass on to customers; and general market and competitive conditions.
In addition, our cost structure is based, in part, on anticipated sales and gross margins. Therefore, we may not be able to adjust our cost structure quickly enough to compensate for any unexpected sales or gross margin shortfall, and any such inability could have an adverse effect on our business, results of operations or cash flows.
| 9 |
We are at a very early operational stage and our business is subject to the substantial risks inherent in the establishment of a new venture.
Our business strategy is in its early stages and as a new venture, we are subject to all the risks associated with establishing a new business. There is a risk that our intended business and operations may not be successful or may take a significant amount of time to achieve success.
The success of our business will depend on a multitude of factors, some of which may be beyond our control or cannot be predicted currently. These factors may include changes in market conditions, competition, regulatory changes, and general economic conditions. Any of these factors could have a material adverse effect on our financial condition, business prospects, operations, and the value of an investment in the Company.
We depend highly on our current CEO who has limited experience in running a public company.
We depend highly on Deven Soni, our CEO and Director, who may be difficult to replace. Mr. Soni at this has limited experience operating a public company and limited industry experience. Our plan of operations is dependent upon the continuing support and business expertise of Mr. Soni.
If we lose any of our key personnel, are unable to attract and retain the talent required for our business, our labor costs significantly increase or our approach to workforce management, inclusive of outsourcing, is ineffective, our business could be disrupted, and our financial performance could suffer.
Our success is heavily dependent upon our ability to attract, develop, engage and retain key personnel to manage, lead, innovate and grow our business, including our key executive, management, sales, services and technical coworkers. Additionally, we rely on outsource partners to execute and deliver on certain functions within the organization.
Our future success will depend to a significant extent on the efforts of our leadership team, as well as the effectiveness of our succession planning and efforts to develop and promote top talent. Our future success also will depend on our ability to retain and motivate our customer-facing coworkers, who have been given critical Vertical Data knowledge regarding, and the opportunity to develop strong relationships with, many of our customers. In addition, as we seek to expand our offerings of value-added services and solutions, our success will even more heavily depend on attracting and retaining highly skilled technology specialists and engineers, for whom the market is extremely competitive.
In order to attract, retain and motivate key personnel in a competitive marketplace, it is important to provide a competitive compensation package. If our compensation package is not viewed as being competitive, our ability to attract, retain and motivate key personnel could be adversely affected. Additionally, as minimum wage rates increase or related laws and regulations change, we have and may need to continue to increase not only the wage rates of our minimum wage coworkers, but also the wages paid to our other hourly or salaried coworkers.
We could experience work stoppages, strikes or performance issues with our outsource partners, which could adversely affect our business, results of operations or cash flows. In addition, a sustained labor shortage or increased turnover rates within our coworker base could lead to increased costs, such as increased overtime to meet demand and increased wage rates to attract and retain coworkers, and could adversely affect our business, results of operations or cash flows. Additionally, if we fail to effectively manage our workforce, we may need to terminate or reposition coworkers within our Company to eliminate an abundance of or to reconfigure resources, which could damage our coworker relations and our ability to attract and retain key personnel.
If we are unable to attract, develop, engage and retain key personnel, or if our approach to workforce management is ineffective, our relationships with our vendor partners and customers and our ability to expand our offerings of value-added services and solutions could be adversely affected. Moreover, if we are unable to continue to train our sales, services and technical personnel effectively to meet the rapidly changing technology needs of our customers, the overall quality and efficiency of such personnel could decrease. Such consequences could adversely affect our business, results of operations or cash flows.
| 10 |
We may not be able to hire and/or retain personnel that we need.
Competition for qualified sales personnel fluctuates depending on market conditions. We are currently experiencing a competitive labor market not only for our sales roles, but for all our roles including support and administrative positions, and as such are experiencing wage increases. New laws requiring public posting of compensation information may also contribute to wage increases. If we are unable to pass these increases to our customers, our financial results may be adversely affected. Wage inflation may adversely impact our ability to hire and retain personnel, which may impact our ability to acquire, retain and serve our customers.
We have suffered operating losses since inception, and we may not be able to achieve profitability.
It is possible that we will never be able to sustain or develop the revenue levels necessary to attain profitability. The Company’s revenue streams may not be sufficient to cover its operating expenses and make a profit, which may affect its ability to attract investors, raise capital, and sustain its business operations in the long term. In addition, the Company expects to continue to increase its operating expenses as it implements initiatives to continue to grow its business. If the Company’s revenues do not increase to offset its expected increases in costs and operating expenses, the Company will not be profitable.
Additionally, we may face challenges in developing and implementing effective business strategies, managing costs, and maintaining a competitive edge in our industry, which could impact our revenue growth and profitability. Moreover, changes in market conditions, economic downturns, and unforeseen events could also negatively impact the Company’s financial performance, making it difficult to achieve profitability.
There are increased costs and regulations associated with operating a public company and we will have limited internal accounting controls.
There are a number of expenses and costs associated with operating a public company including filing expenses, transfer agent, stock issuance and maintenance costs, accounting, legal and auditing expenses that will materially increase the Company’s operating expenses and make it more difficult for its business to produce operating profits. There will be an increase in projected costs for the next twelve (12) months due to the operating aspects of being a public company. Our Chief Executive Officer has limited experience managing a public company. With only three (3) officers and two (2) independent directors, both our Chief Executive Officer and Chief Financial Officer have internal oversight over financial reporting. As part of our quarterly and annual audit committee meetings, the independent Board members meet with Company management to ensure that they are aware of the operations of the Company. However, as a small company, the Company is aware of the lack of segregation of duties and the effect this may have on internal controls. Management is taking steps to ensure that adequate controls (to the extent possible) over financial reporting are put in place as the Company continues to scale. We also rely on our independent auditor to obtain reasonable assurance that our financial statements are free of material misstatement and are presented fairly.
Because of competitive pressures from competitors with more resources, the Company may fail to implement its business model profitably.
The value-added reseller industry is highly fragmented and extremely competitive. The market for customers is intensely competitive and such competition is expected to continue to increase (see “Competition”). We believe that our ability to compete depends upon many factors within and beyond our control, including the timing and market acceptance of new solutions and enhancements to existing businesses developed by us, our competitors, and their advisors.
We compete with hardware resellers, manufacturers who sell directly to customers, large service providers and system integrators, communications service providers, cloud providers, e-commerce companies and office supply retailers, among others. We expect the competitive landscape to continue to evolve as new technologies and consumption models emerge, such as cloud-based and other “as a service” solutions, hyper-converged infrastructure and embedded software solutions. Our continued competitiveness depends upon our ability to anticipate and evolve at pace and scale with new technologies, services and solutions through strategic and timely investments in innovation, expansion of offerings and the capabilities necessary to implement them. We may not be able to compete successfully against present or future competitors. We do not have the resources to compete with larger providers of similar products or services at this time. Competition from existing and future competitors could result in our inability to secure partnerships that we may need to expand our business in the future. If we are unable to compete, our business could be negatively affected which would have an adverse effect on the trading price of our Common Stock, which would harm our investors.
| 11 |
While innovation can help our business as it creates new offerings for us to sell, it can also disrupt our business model and create new and stronger competitors. For instance, while data center solutions present an opportunity for us, data center solutions and technology solutions as a service could increase the amount of sales directly to customers rather than through solutions providers like us, or could reduce the amount of hardware we sell. In addition, some of our hardware and software vendor partners sell, and could intensify their efforts to sell, their products directly to our customers. Moreover, traditional OEMs have increased their services capabilities through mergers and acquisitions with service providers, which could potentially increase competition in the market to provide comprehensive technology solutions to customers. If we are unable to effectively respond to the evolving competitive landscape or respond in a manner that is less effective than that of our competitors, our business, results of operations or cash flows could be adversely impacted.
We focus on providing high quality solutions to gain new customers and retain existing customers. To the extent we face increased competition to gain and retain customers, we may be required to reduce prices, increase advertising expenditure or take other actions which could adversely affect our business, results of operations or cash flows. Additionally, some of our competitors may reduce their prices in an attempt to stimulate sales, which may require us to reduce prices. This would require us to sell a greater number of products to achieve the same level of sales and gross profit. If such a reduction in prices occurs and we are unable to attract new customers and sell increased quantities of products, our sales growth and profitability could be adversely affected.
Additionally, there is potential that the industry will undergo consolidation, creating larger companies that may have increased geographic scope and other economies of scale. Increased competition by larger, better-financed competitors with geographic or other structural advantages could materially and adversely affect the business, financial condition and results of operations of the Company.
If we are unable to develop brand recognition, maintain or enhance our brand recognition, our business, results of operations and financial condition may be materially and adversely affected.
For our Company to differentiate service offering from our competitors and to compete effectively with them, we must maintain and enhance our brand’s recognition, image, and acceptance. Our brand image, however, could be jeopardized if we fail to maintain high product quality, pioneer and keep pace with evolving technology trends, or timely fulfill the orders for products and solutions our customers demand. If we fail to promote our brand or to maintain or enhance our brand recognition and awareness among our customers, or if we are subject to events or negative allegations affecting our brand image or the publicly perceived position of our brand, our business, the results of operations and financial condition could be adversely affected.
Adverse economic conditions could negatively impact our business, prospects, results of operations, financial condition, or cash flows.
Our business and operations are sensitive to economic conditions. These conditions include interest rates, energy costs, inflation, recession, and the general condition of the United States and world economies, including as a result of the effect of the COVID-19 pandemic or other such public health crisis. Increased inflation and a material decline in the economic conditions affecting consumers, which cause a reduction in disposable income for the average consumer, may change consumption patterns, and may result in a reduction in spending on our product offerings or a switch to cheaper products. As such, demand for our products may be particularly sensitive to economic conditions such as inflation, recession, high energy costs, unemployment, changes in interest rates and money supply, changes in the political environment, the ultimate effect on the economy of the COVID-19 pandemic and other factors beyond our control, any combination of which could result in a material adverse effect on our business, results of operations, and financial condition.
| 12 |
We currently have no distribution agreements in place, which may lead to limited marketing and sales capability. If we are unable to obtain additional distributors and our current and future distributors do not market our products successfully, we may not generate significant revenues or become profitable.
As of the date of this Prospectus, we do not have any distribution agreements in place. We have limited marketing and sales capability. We are dependent upon existing, and possibly future, marketing arrangements and third-party distribution agreements for our products in order to generate significant revenues and become profitable. As a result, any revenues received by us will be dependent in large part on the efforts of third parties, and there is no assurance that these efforts will be successful. If we lose our current distribution partners or cannot find replacements, it may impact our business, including generating any revenue.
We will have difficulty increasing our revenues if we experience delays, difficulties or unanticipated costs in establishing the sales, marketing and distribution capabilities necessary to successfully commercialize our solutions.
We plan to further enhance our sales, marketing and distribution capabilities globally. It will be expensive and time-consuming for us to develop and integrate our marketing and sales network and thus engage with distributors and/or providers of services and other solutions within our industry to incorporate use of our platform. We may not be able to provide adequate incentive to establish and maintain favorable distribution and marketing collaborations with others to promote our solutions. In addition, any third party with whom we have established a marketing and distribution relationship may not devote sufficient time to the marketing and sales of our solutions, thereby exposing us to potential expenses in exiting such distribution agreements. We, and any of our potential partners, must also market our services in compliance with federal, state, local and international laws relating to the provision of incentives and inducements. Violation of these laws can result in substantial penalties. Therefore, if we are unable to successfully motivate and expand our marketing and sales force and further develop our sales and marketing capabilities, or if we to promote our solutions, we will have difficulty increasing our revenues and the revenue may not offset the additional expense of expansion.
Regional government regulation could adversely affect our business, including limiting regions where our products can be shipped.
The Company may be subject to various regional legislation and regulation at the foreign, federal, and local levels and, in some instances, at the state level. We expect that court actions and regulatory proceedings will continue to refine our rights and obligations under applicable federal, state, and local laws, which cannot be predicted. Modifications to existing requirements or imposition of new requirements or limitations could adversely impact our business, including limitations on where our products and/or services can be shipped.
Our business is subject to a wide variety of extensive and evolving government laws and regulations. Changes in and/or failure to comply with such laws and regulations could have a material adverse effect on our business.
We are subject to new or changing international, federal, state, and local regulations, including laws relating to the design, developing, manufacturing, marketing, servicing, or sales of our products. Such laws and regulations may require us to pause sales and modify our products, which could result in a material adverse effect on our ability to generate revenues (or any future revenues) and our financial condition generally. Such laws and regulations can also give rise to liability such as fines and penalties, property damage, bodily injury, and cleanup costs. Failure to comply with such regulations could lead to withdrawal or recall of our products from the market, delay our projected revenues, increase cost, or make our business unviable if we are unable to modify our products to comply. Capital and operating expenses needed to comply with laws and regulations can be significant, and violations may result in substantial fines and penalties, third-party damages, suspension of production or a cessation of our operations. Any failure to comply with such laws or regulations could lead to withdrawal or recall of our products from the market.
Regulatory risk factors associated with our business also include our ability to obtain additional applicable approvals, licenses or certifications from regulatory agencies, if required, and to maintain current approvals, licenses or certifications. Any regulatory delays, delays imposed as a result of regulatory inspections and changing regulatory requirements, may impede our planned actions to be implemented or completed, many of which may be out of our control. Any natural disasters, changes in governmental regulations or in the status of our regulatory approvals or applications or other events that force us to cancel or reschedule our product development and production, could have an adverse impact on our business and financial condition.
Laws and regulations may change in ways that will require us to modify our business model and objectives or affect our returns on investments by restricting existing activities and products, subjecting them to escalating costs or prohibiting them outright.
In addition, our business is subject to an ever-growing number of laws and regulations addressing privacy and information security, including the use of AI. In particular, we face an increasingly complex global regulatory environment and patchwork of state laws in the U.S., increasing the risks addressing these regulatory requirements and in responding to potential security and data incidents.
| 13 |
We are subject to U.S. and foreign anti-corruption and anti-money laundering laws and regulations. We can face criminal liability and other serious consequences for violations, which can harm our business.
We are subject to the U.S. Foreign Corrupt Practices Act, the U.S. domestic bribery statute contained in 18 U.S.C. § 201, the U.S. Travel Act, the Money Laundering Control Act 18 U.S.C. §§ 1956 and 1957, and other anti-bribery and anti-money laundering laws in countries in which we conduct activities. Anti-corruption laws are interpreted broadly and prohibit companies and their employees, agents, contractors and other collaborators from authorizing, promising, offering or providing, directly or indirectly, improper payments or anything else of value to recipients in the public or private sector, and require that we keep accurate books and records and maintain internal accounting controls designed to prevent any such actions. We can be held liable for the corrupt or other illegal activities of our employees, agents, contractors and other collaborators, even if we do not explicitly authorize or have actual knowledge of such activities.
As we intend to conduct international cross-border business and expand our operations abroad, we may engage business partners and third-party intermediaries to market our products and to obtain necessary permits, licenses and other regulatory approvals overseas. In addition, we or our third-party intermediaries may have direct or indirect interactions with officials and employees of government agencies or state-owned or affiliated entities. We can be held liable for the corrupt or other illegal activities of these third-party intermediaries, our employees, representatives, contractors, partners and agents, even if we do not explicitly authorize such activities. We cannot assure you that all of our employees and agents will not take actions in violation of our policies and applicable law, for which we may be ultimately held responsible. As we intend to expand our international business, our risks under these laws may increase.
Detecting, investigating and resolving actual or alleged violations of anti-corruption laws can require a significant diversion of time, resources and attention from our management. In addition, non-compliance with anti- corruption or anti-bribery laws could subject us to whistleblower complaints, investigations, sanctions, settlements, prosecution, enforcement actions, fines, damages, other civil or criminal penalties, injunctions, suspension or debarment from contracting with certain persons, reputational harm, adverse media coverage and other collateral consequences. If any subpoenas are received or investigations are launched, or governmental or other sanctions are imposed, or if we do not prevail in any possible civil or criminal proceeding, our business, operating results and financial condition could be materially harmed.
Actual or anticipated epidemics, pandemics, outbreaks, or other public health crises may adversely affect our customers’ and suppliers’ financial condition and the operations of our business.
Our business could be materially and adversely affected by the impact of any epidemic, pandemic, outbreak, or other public health crisis. The risk of any epidemic, pandemic, outbreak, or other public health crisis could cause customers to delay or cancel orders and could cause temporary or long-term disruptions in our supply chains and/or delays in the delivery of our products and services to our customers. Quarantines or other cancellations of public events as well as governmental containment actions could also adversely affect our customers’ financial condition, resulting in reduced spending for the products and services we sell or uncollectible accounts receivable, leases or notes receivable or our customers’ ability to receive goods we ship to their locations. Moreover, any epidemic, pandemic, outbreak, or other public health crisis could adversely affect our ability to adequately staff and manage our businesses. Risks or regulations related to an epidemic, pandemic, or other health crisis may continue to lead to the complete or partial closure of one or more of our offices or the operations of our customers or our sourcing partners.
In the event we are unable to acquire additional financing, we may not be able to implement our business plan resulting in a loss of revenues and ultimately the loss of any shareholder’s investment.
Due to our limited operating history, we will have to use all of our existing resources to complete and market our solutions and develop our distribution channels. Following this offering we may need to raise additional funds to expand our operations. We will receive no proceeds from this offering. We may raise additional funds through private placements, registered offerings, debt financing or other sources to maintain and expand our operations. Adequate funds for this purpose on terms favorable to us may not be available, and if available, on terms significantly more adverse to us than are manageable. Without new funding, we may be only partially successful or completely unsuccessful in implementing our business plan, and our stockholders will lose part or all of their investment.
Unanticipated changes in our tax provisions, the adoption of new tax legislation or exposure to additional tax liabilities could affect our financial performance.
We are subject to income and other taxes in the United States and may expand to foreign jurisdictions. Our tax liabilities are affected by the amounts we charge in intercompany transactions for inventory, services, licenses, funding, and other items. We are subject to ongoing tax audits in jurisdictions. Tax authorities may disagree with our intercompany charges, cross-jurisdictional transfer pricing or other matters, and may assess additional taxes as a result. There can be no assurance that we will accurately predict the outcomes of these audits, and the amounts ultimately paid upon resolution of audits could be materially different from the amounts previously included in our income tax expense and therefore could have a material impact on our tax provision, net income and cash flows. In addition, our effective tax rate in the future could be adversely affected by acquisitions, changes to our operating structure, changes in the mix of earnings in countries with differing statutory tax rates, changes in the valuation of deferred tax assets and liabilities, changes in tax laws, and the discovery of new information in the course of our tax return preparation process. The carrying value of our deferred tax assets is dependent on our ability to generate future taxable income.
We may be unable to scale our operations successfully.
Our growth will place significant demands on our management and technology development on behalf of our suppliers and growth in the data center industry more generally, as well as our financial, administrative, and other resources. We cannot guarantee that any of the systems, procedures and controls we put in place will be adequate to support the commercialization of our operations. Our operating results will depend substantially on the ability of our officers and key employees to manage changing business conditions and to implement and improve our financial, administrative, and other resources. If we are unable to respond to and manage changing business conditions, or the scale of our products, services, and operations, then the quality of our services, our ability to retain key personnel and our business could be harmed.
| 14 |
The longevity of our business depends in part on our ability to enhance and sell the benefits of our current solutions to remain competitive and meet customer needs.
The longevity and sustained success of our business are contingent upon our ability to continuously enhance and effectively market the benefits of our solutions. The competitive landscape in which we operate is characterized by rapid technological advancements and evolving customer needs. Failure to adapt to these changes and deliver innovative and effective offerings may result in a loss of market share and competitiveness.
We rely on a few large customers for a majority of our business, and the loss of any of these customers, significant changes in the prices, marketing allowances or other important terms provided to any of these customers or adverse developments with respect to the financial condition of these customers could reduce our net income and operating results.
Our sales are concentrated among a small number of large customers. Sales to our two largest customers in the aggregate represented 100%, and sales to our largest customer represented 77% of our sales during the year ended September 30, 2024. We are under ongoing pressure from our major customers to offer lower prices, extended payment terms and other allowances and other terms more favorable to these customers because our sales to these customers are concentrated, and the market in which we operate is very competitive. These customer demands have put continued pressure on our operating margins and profitability. In addition, this customer concentration leaves us vulnerable to any adverse change in the financial condition of these customers. Changes in terms with, significant allowances for and collections from these customers could affect our operating results and cash flows. The loss of, or a significant decline in, sales to any of these customers could adversely affect our business, results of operations, and financial condition.
We rely on a small number of key vendors in our supply chain, and do not have long-term supply or guaranteed price agreements or assurance of inventory availability with our vendors.
A substantial portion of our revenue within our business depends on a small number of key vendors. The Company’s bulk of revenue is from two vendors, Amaara Networks and Circular Technology, which represent approximately 84% and 16% of sales for the year ended September 30, 2024. We may also be adversely affected by consolidation among our vendors. Manufacturing interruptions or delays, including as a result of the financial instability or bankruptcy of manufacturers, changes to or the addition of trade laws, duties or tariffs, currency fluctuations, significant labor disputes such as strikes, natural disasters, political or social unrest, international conflicts, pandemics, other public health crises, or other adverse events affecting any aspect of our vendors’ business, could disrupt our supply chain. We may experience product constraints due to the unavailability of raw materials or components, delays in shipping, failure of vendors to accurately forecast customer demand or to manufacture or otherwise obtain sufficient quantities of product or component parts to meet customer demand, among other reasons. If we experience significant supply chain disruptions, we may not be able to develop alternate sourcing quickly on favorable terms, if at all, which could result in increased costs, loss of sales and a loss of customers, and adversely impact our financial condition and results of operations. In addition, we are experiencing price increases from our suppliers as a result of an inflationary environment. Our intention is to pass along the price increases to our customers but that may not be possible for all cost increases. Some manufacturers and suppliers have instituted policies to disallow order cancellations. We may be at risk if a customer cancels an order with us, and we cannot cancel our corresponding order with the supplier.
| 15 |
We depend on third-party companies to perform certain of our obligations to our customers, which if not performed adequately could cause significant disruption to our business.
We rely on independent shipping companies to deliver products from us and our vendors to our customers. The failure or inability of these shipping companies to deliver products, or the lack of availability of their shipping services, even temporarily, could have an adverse effect on our business. We may also be adversely affected by an increase in freight surcharges that may result from economic, supply-chain, geopolitical, or other disruptions.
We rely on third party transportation.
The Company relies on third party transportation services to deliver its products and as such, it is exposed to the inherent risks associated with relying on third party transportation services providers, including logistical problems, delays, loss or theft of product and increased shipping costs. Any delay in transporting the product, breach of security or loss of product, could have a material adverse effect on the Company’s business, financial performance and results of operations.
The success of our business depends on the continuing development, maintenance and operation of our information technology systems.
Our success is dependent on the accuracy, proper utilization and continuing operation, maintenance and development of our information technology systems, including our business systems, such as our sales, customer management, financial and accounting, marketing, purchasing, warehouse management, e-commerce and mobile systems, as well as our operational platforms, including voice and data networks and power systems. The quality and our utilization of the information generated by our information technology systems, and our success in implementing new systems and upgrades, could adversely affect, among other things, our ability to:
| ● | conduct business with our customers, including delivering solutions to them; | |
| ● | provide the means to effectively manage global operations across time zones; | |
| ● | keep pace with changes and innovation and compete effectively; | |
| ● | effectuate comprehensive and reliable data collection, maintenance and governance; | |
| ● | manage our inventory, accounts receivable and accounts payable. | |
| ● | support planned growth in services and solutions and continued evolution of the business; | |
| ● | purchase, sell, ship and invoice our hardware and software products and provide and invoice our services efficiently and on a timely basis; and, | |
| ● | maintain our cost-efficient operating model while scaling our business. |
Our information technology systems are inherently exposed to varied technological threats beyond our control. While we have taken steps to protect our information technology systems from a variety of threats, both internal and external, and from human error, there can be no guarantee that those steps will be effective. Furthermore, although we have redundant systems at a separate location to back up our primary systems, there can be no assurance that these redundant systems will operate properly if and when required. Moreover, software vulnerabilities within the third-party information technology systems we use are discovered and reported on nearly a daily basis. When made public or otherwise known to us, we attempt to remediate or mitigate these vulnerabilities following guidance provided by the software vendor, and/or appropriate authorities, and before the vulnerability is successfully used in a cyberattack against our systems. If and when cyberattacks target and successfully exploit these vulnerabilities, we take steps designed to contain and limit the impact on our business. Any disruption to or infiltration of our information technology systems could significantly harm our reputation, business and results of operations due to failure to comply with customer, partner, legal or regulatory obligations.
| 16 |
Breaches of data security and the failure to protect our information technology systems and confidential information from cybersecurity threats, our inability to maintain compliance with data privacy laws and regulations, or misuse of our customers’ or employees’ information could adversely impact our business.
Our business involves the storage and/or transmission of proprietary information and sensitive or confidential data, including personal information of our employees, customers, and others. In addition, we rely on our vendors that provide goods and services to us to maintain appropriate security measures to protect our operations. Some of our employees also may have access to our customers’ confidential data and other information. We have privacy and data security policies in place that are designed to prevent security breaches; however, as newer technologies emerge, and the portfolio of the service providers with whom we share sensitive information grows, we could be exposed to increased risk of breaches in data security and other illegal or fraudulent acts, including ransomware attacks and other types of cyberattacks. The evolving nature of such threats, considering new and sophisticated methods used by criminals and cyberterrorists, including computer viruses, malware, phishing, social engineering, and forgery, are making it increasingly challenging to anticipate and adequately mitigate these risks.
If third-parties or our employees are able to maliciously penetrate our network security or otherwise misappropriate our customers’ information or employees’ personal information, or other information for which our customers may be responsible and for which we agree to be responsible in connection with contracts into which we may enter, or if we give third-parties or our employees improper access to certain information, we could be subject to liability. This liability could include claims for unauthorized access to devices on our network; unauthorized access to our customers’ or suppliers’ networks, hardware, applications, data, devices, or software; unauthorized purchases with credit card information; and identity theft or other similar fraud-related claims. This liability could also include claims for other misuses of or inappropriate access to personal information. Other liability could include claims alleging misrepresentation of our privacy and data security practices. Any such liability for misappropriation of this information could decrease our profitability. We could incur additional expenses when new laws or regulations regarding the use, safeguarding, or privacy of information are enacted, or interpreted if governmental agencies require us to substantially modify our privacy or security practices. We could fail to comply with international and domestic data privacy laws, the violation of which may result in audits, fines, penalties, litigation, or administrative enforcement actions with associated costs.
Third parties, such as hackers, could circumvent or sabotage the security practices or products used in our internal IT systems, which could result in disclosure of sensitive or personal information, unauthorized procurement, or other business interruptions that could damage our reputation and disrupt our business, as well as that of our customers. Attacks may range from random attempts to coordinated and targeted attacks, including sophisticated computer crime and advanced persistent threats.
Advances in technology, new discoveries in the field of cryptography, quantum computing, or artificial intelligence, other events or developments may result in a compromise or breach of the security practices we use to protect sensitive customer transaction information and employee information. A party that can circumvent our security measures could misappropriate proprietary information or cause interruptions in our operations. Further, third parties may attempt to fraudulently induce employees or customers into disclosing sensitive information such as usernames, passwords, or other information or otherwise compromise the security of our internal networks and/or our customers’ information. Since techniques used to obtain unauthorized access change frequently and the impact and severity of security breaches are increasing, we may be unable to implement adequate preventative measures or timely identify or stop security breaches while they are occurring.
We may be required to expend significant capital and other resources to protect against security breaches or to remediate the subsequent risks and issues caused by such breaches. Our security measures are designed to protect against security breaches, but our failure to prevent such security breaches could cause us to incur significant expense to investigate and respond to a security breach and remediate any problems caused by any breach, subject us to liability, damage our reputation, and diminish the value of our brand. There can be no assurance that the limitations of liability in our contracts would be enforceable or adequate or would otherwise protect us from any such liabilities or damages with respect to any claim. The successful assertion of one or more large claims against us that exceeds our available insurance coverage, or changes in our insurance policies, including additional exclusions, premium increases or the imposition of large deductible or co-insurance requirements, could have an adverse effect on our business, financial condition, and results of operations.
| 17 |
We have not voluntarily implemented various corporate governance measures, in the absence of which, shareholders may have more limited protections against interested director transactions, conflicts of interest and similar matters.
Recent federal legislation, including the Sarbanes-Oxley Act of 2002, has resulted in the adoption of various corporate governance measures designed to promote the integrity of the corporate management and the securities markets. Some of these measures have been adopted in response to legal requirements; others have been adopted by companies in response to the requirements of an over-the-counter market established, such as the OTC or the OTC Stock Market, on which their securities are listed. Among the corporate governance measures that are required under the rules of over-the-counter market exchanges and OTC, are those that address the board of Directors independence, audit committee oversight, and the adoption of a code of ethics. We have not yet adopted any of these corporate governance measures, and since our securities are not listed on a national securities exchange or OTC, we are not required to do so. It is possible that if we were to adopt some or all of these corporate governance measures, shareholders would benefit from somewhat greater assurances that internal corporate decisions were being made by disinterested directors and that policies had been implemented to define responsible conduct. For example, in the absence of audit, nominating and compensation committees comprised of at least a majority of independent directors, decisions concerning matters such as compensation packages to our senior officers and recommendations for director nominees, may be made by a majority of directors who have an interest in the outcome of the matters being decided. Prospective investors should bear in mind our current lack of corporate governance measures in formulating their investment decision.
An investor would likely find it less convenient to sell, or to obtain accurate quotations in seeking to buy, our common stock on an over-the-counter market, and many investors would likely not buy or sell our common stock due to difficulty in accessing over-the-counter markets, policies preventing them from trading in securities not listed on a national exchange or other reasons. In addition, as a delisted security, our common stock would be subject to SEC rules as a “penny stock,” which impose additional disclosure requirements on broker-dealers. The regulations relating to penny stocks, coupled with the typically higher cost per trade to the investor of penny stocks due to factors such as broker commissions generally representing a higher percentage of the price of a penny stock than of a higher-priced stock, would further limit the ability of investors to trade in our common stock. In addition, delisting could harm our ability to raise capital through alternative financing sources on terms acceptable to us, or at all, and may result in the potential loss of confidence by investors, suppliers, customers and employees and fewer business development opportunities. For these reasons and others, delisting would adversely affect the liquidity, trading volume and price of our common stock, causing the value of an investment in us to decrease and having an adverse effect on our business, financial condition and results of operations, including our ability to attract and retain qualified employees and to raise capital.
We may become involved in litigation.
The Company may become party to litigation, mediation and/or arbitration from time to time in the ordinary course of business which could adversely affect its business. Monitoring and defending against legal actions, whether or not meritorious, can be time-consuming, divert management’s attention and resources and cause the Company to incur significant expenses. In addition, legal fees and costs incurred in connection with such activities may be significant and the Company could, in the future, be subject to judgments or enter into settlements of claims for significant monetary damages.
While the Company has insurance that may cover the costs and awards of certain types of litigation, the amount of insurance may not be sufficient to cover any costs or awards. Substantial litigation costs or an adverse result in any litigation may adversely impact the Company’s business, operating results or financial condition.
We may not be able to get insurance.
The Company is looking to get insurance to protect its assets, operations and employees. While the Company believes its insurance coverage should address all material risks to which they are exposed and will be adequate and customary in its current state of operations, such insurance is subject to coverage limits and exclusions and may not be available for the risks and hazards to which the Company may be exposed. The Company may also be unable to maintain insurance at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon the Company’s financial performance and results of operations.
There can be no assurance that the Company will be able to obtain or maintain product liability insurance on acceptable terms or with adequate coverage against potential liabilities. Such insurance is expensive and may not be available in the future on acceptable terms, or at all. An inability to obtain sufficient insurance coverage on reasonable terms could prevent or inhibit the commercialization of the Company’s products.
| 18 |
We may have difficulty forecasting and relying on data we use for forecasting purposes.
The Company must rely largely on its own market research to forecast sales as detailed forecasts are not generally obtainable from other sources at this early stage of the industry. A failure in the demand for its products to materialize as a result of competition, technological change or other factors could have a material adverse effect on the business, results of operations, financial condition or prospects of the Company.
Market research and projections by the Company of estimated total sales, demographics, demand, and similar consumer research, may be based on assumptions from limited and unreliable market data. If there are issues with the data’s integrity or security, the data and research-based reports could be considered ineffective or unreliable.
We may have fraudulent or illegal activity by employees, contractors and consultants.
The Company is exposed to the risk that its employees, independent contractors, and consultants may engage in fraudulent or other illegal activity. Misconduct by these parties could include intentional, reckless and/or negligent conduct or disclosure of unauthorized activities to the Company that violates government regulations, manufacturing standards, federal and state fraud and abuse laws and regulations; or laws that require the true, complete, and accurate reporting of financial information or data. The precautions taken by the Company to detect and prevent this activity may not be effective in controlling unknown or unmanaged risks or losses or in protecting the Company from governmental investigations or other actions or lawsuits stemming from a failure to be in compliance with such laws or regulations. If any such actions are instituted against the Company, and it is not successful in defending itself or asserting its rights, those actions could have a significant impact on the Company’s business, including the imposition of civil, criminal, and administrative penalties, damages, monetary fines, contractual damages, reputational harm, diminished profits, and future earnings, and curtailment of the Company’s operations, any of which could have a material adverse effect on the Company’s business, financial condition, and results of operations.
We may have acquisition strategy risk.
The Company may pursue acquisition opportunities to advance its strategic plan. The successful integration of an acquired business typically requires the management of the pre-acquisition business strategy, including the retention and addition of customers, realization of identified synergies, retention of key staff and the development of a common corporate culture. Achieving the benefits of acquisitions depends in part on successfully consolidating functions and integrating operations and procedures in a timely and efficient manner, as well as the ability to realize anticipated growth opportunities and synergies from newly formed partnerships. Any failure to integrate an acquired business or realize the anticipated benefits of new partnerships may have a material adverse effect on the Company’s business, financial condition and results of operations, as well as its future prospect for acquisitions or partnerships. There is no assurance that the Company will be able to successfully integrate an acquired business in order to maximize or realize the benefits associated with an acquisition
We may have conflicts of interest.
Certain directors and officers of the Company are also, or may become, directors and officers of other entities, or are otherwise engaged, and will continue to be engaged, in activities that may put them in conflict with the business strategy of the Company. For example, our Chairman and Chief Executive Officer, Deven Soni, also serves as CEO and Chairman of Matador Gold Technologies, Inc. since January 2022 and Director of Snowball Industries Inc. since September 2020, and has served as director of Polymath Research Inc. since 2017. There is a risk that Mr. Soni will be in a position of conflict. Conflicts, if any, will be subject to the procedures and remedies available under the Nevada law.
| 19 |
RISKS RELATED TO OUR INDUSTRY
Supply chain issues, including a shortage of IT products, may increase our costs or cause a delay in fulfilling customer orders or purchasing IT products or services needed to support our internal infrastructure or operations, resulting in an adverse impact on our financial results.
We depend upon the supply of products available from our vendors to fulfill orders from our customers on a timely basis. We may experience supply constraints that could affect lead times and the predictability of lead times for delivery of products, the cost and availability of products, and our ability to meet customer demands. As a result of longer lead times, sales to customers may be delayed and we may carry more inventory which may result in higher warehouse and interest expenses. Delays in product shipments may delay the completion of related services as well. As a result, we may be at risk for customers’ cancelling orders due to delays and we may not be able to cancel our corresponding order with the supplier. If we are unable to mitigate these disruptions, our financial results may be adversely impacted.
Supply chain issues, including a shortage of IT products and available services, may increase our costs or cause a delay in purchasing IT products needed to support our internal infrastructure or operations, resulting in an impact on our technology operations and availability of our IT systems, which could result in an adverse effect on our operations and financial results.
The interruption of the flow of products from suppliers could disrupt our supply chain.
Our business depends on the timely supply of products in order to meet the demands of our customers. Although we do not currently face any major supply chain constraints, manufacturing interruptions or delays, including as a result of the financial instability or bankruptcy of manufacturers, significant labor disputes such as strikes, natural disasters (which may increase in number or severity as a result of climate change), political or social unrest, armed conflict, pandemics (such as the COVID-19 pandemic) or other public health crises, or other adverse occurrences affecting any of our suppliers’ facilities, may disrupt our supply chain. We may experience product constraints due to the failure of suppliers to accurately forecast customer demand, or to manufacture sufficient quantities of product to meet customer demand (including as a result of shortages of product components), among other reasons. Additionally, the relocation of key distributors utilized in our purchasing model could increase our need for, and the cost of, working capital and have an adverse effect on our business, results of operations or cash flows.
Moreover, supply chain disruptions may cause us to experience more volatility in our level of inventory and delays in completion of orders and installations for our customers and could further exacerbate current inflationary pressures. In the event that supply chain pressures ease, we may experience changes in average selling prices and our gross margins on certain products as customers become more price sensitive.
Our supply chain is also exposed to risks related to international operations. While we purchase our products primarily in the markets we serve (for example, products for US customers are sourced in the US), our vendor partners manufacture or purchase a significant portion of the products we sell outside of the US, primarily in Asia. Political, social or economic instability in Asia, or in other regions in which our vendor partners purchase or manufacture the products we sell, could cause disruptions in trade, including exports to the US. Other events related to international operations that could cause disruptions to our supply chain include:
| ● | the imposition of additional trade law provisions or regulations, including the adoption or expansion of trade restrictions; | |
| ● | the imposition of additional duties, tariffs and other charges on imports and exports, including any resulting retaliatory tariffs or charges and any reductions in the production of products subject to such tariffs and charges; | |
| ● | foreign currency fluctuations; and | |
| ● | restrictions on the transfer of funds. |
| 20 |
We cannot predict whether the countries in which the products we sell, or any components of those products, are purchased or manufactured will be subject to new or additional trade restrictions or sanctions imposed by the US or foreign governments, including the likelihood, type or effect of any such restrictions. Periods of intense diplomatic or armed conflict, may result in new and rapidly evolving trade restrictions and sanctions. Trade restrictions, including new or increased tariffs or quotas, embargoes, sanctions, safeguards and customs restrictions against the products we sell, could increase the cost or reduce the supply of product available to us and adversely affect our business, results of operations or cash flows. In addition, our exports are subject to regulations, some of which may be inconsistent, and noncompliance with these requirements could have a negative effect on our business, results of operations or cash flows.
General economic weakness may harm our operating results and financial condition.
Our results of operations are largely dependent upon the state of the economy. Global economic weakness, inflation, rising cost and interest rates, and other economic uncertainties may result in decreased sales, gross margin, earnings and/or growth rates from our US based customers and from customers outside the US. Actions taken by central banks to counter inflation or weakness in the global banking industry, sustained uncertainty about global political conditions, periods of intense diplomatic or armed conflict, government spending cuts and the impact of new government policies (including the introduction of new or increased taxes, the imposition of minimum taxes or new or increased limitations on deductions, credits or other tax benefits), or a tightening of credit markets, or rising interest rates, could cause our customers and potential customers to postpone or reduce spending on technology products or services which could have an adverse effect on our business, results of operations or cash flows.
Increases in the cost of commercial delivery services or disruptions of those services could materially adversely impact our business.
We generally ship hardware products to our customers by FedEx, United Parcel Service and other commercial delivery services and invoice customers for delivery charges. If we are unable to pass on to our customers future increases in the cost of commercial delivery services (including those that may result from an increase in fuel or personnel costs or a need to use higher cost delivery channels during periods of increased demand), our profitability could be adversely affected. Additionally, strikes, inclement weather, natural disasters or other service interruptions by such shippers or periods of increased demand on delivery services, such as those we have experienced during the COVID-19 pandemic, could materially adversely affect our ability to deliver or receive products on a timely basis.
We depend on continued innovations in hardware, software, and service offerings by our vendors, as well as the competitiveness of their offerings and our ability to partner with new and emerging technology providers.
The technology industry is characterized by rapid innovation and the frequent introduction of new and enhanced hardware, software, and service offerings, such as generative artificial intelligence, and cloud-based solutions, including IaaS, SaaS, and PaaS. We depend on innovations in hardware, software, and service offerings by our vendors, as well as the acceptance of those innovations by our customers for the offerings we sell. A decrease in the rate of innovation by our vendors, or the lack of acceptance of innovations by our customers, or a shift by customers to technology platforms that we do not sell could have an adverse effect on our business, results of operations or cash flows.
In addition, if we are unable to keep up with changes in technology and new hardware, software, and service offerings––for example by not providing the appropriate training to our account managers, sales technology specialists and engineers to enable them to effectively sell and deliver such new offerings to customers––our business, results of operations or cash flows could be adversely affected.
We also depend upon our vendors for the development and marketing of hardware, software, and services to compete effectively with hardware, software, and services of vendors whose products and services we do not currently offer or are not authorized to offer in one or more customer channels. In addition, our success depends on our ability to develop relationships with and sell hardware, software, and services from emerging vendors, as well as vendors that we have not historically represented in the marketplace. To the extent that a vendor’s offering that is highly in demand is not available to us for resale in one or more customer channels, and there is not a competitive offering from another vendor that we are authorized to sell in such customer channels, or we are unable to develop relationships with new technology providers or companies that we have not historically represented, or we partner with a vendor that is not in demand or the demand for whose products significantly decreases, our business, results of operations, or cash flows could be adversely impacted.
| 21 |
Our sales are dependent on continued innovations in technology by our vendor partners and the competitiveness of their offerings, and our ability to partner with new and emerging technology providers.
The technology and data center industries are characterized by rapid innovation and the frequent introduction of new and enhanced hardware, software and services. We have been and will continue to be dependent on innovations in technology, as well as the adoption of those innovations by customers. Also, customers may delay spending while they evaluate new technologies. A decrease in the rate of innovation, a lack of adoption of innovations by our customers or delays in technology spending by our customers could have an adverse effect on our business, results of operations or cash flows.
In addition, if we are unable to anticipate and expand our capabilities to keep pace with changes in technology and new hardware, software and services, for example by providing the appropriate training to our account managers, technology specialists and engineers to enable them to effectively sell and deliver such new offerings to customers, our business, results of operations or cash flows could be adversely affected.
We also are dependent upon our vendor partners for the development and marketing of hardware, software and services to compete effectively with hardware, software and services of vendors whose products and services we do not currently offer or that we are not authorized to offer in one or more customer channels. To the extent that a vendor’s offering that is in high demand is not available to us for resale in one or more customer channels, and there is not a competitive offering from another vendor that we are authorized to sell in such customer channels, our business, results of operations or cash flows could be adversely impacted.
RISKS RELATED TO OUR COMMON STOCK
As an “emerging growth company” under the JOBS Act, we are permitted to rely on exemptions from certain disclosure requirements.
As an “emerging growth company” under the JOBS Act, we have the privilege of utilizing exemptions from specific disclosure requirements. These exemptions include not being obligated to have an auditor report on our internal controls over financial reporting, provide an auditor attestation regarding the effectiveness of our internal controls, comply with certain requirements of the Public Company Accounting Oversight Board, submit certain executive compensation matters to shareholder votes, and disclose certain executive compensation-related items.
An emerging growth company can take advantage of the extended transition period for complying with new and revised accounting standards. As a result of this election, our financial statements may not be comparable to companies that comply with public company effective dates.
We will maintain the status of an emerging growth company for a period of up to five years, or until we surpass certain revenue thresholds or meet specific criteria.
During this period, we may not be subject to the same disclosure requirements as other public companies. However, we cannot predict how investors will perceive our Common Stock due to our reliance on these exemptions. It is possible that some investors may find our Common Stock less appealing, potentially leading to a less active trading market and increased stock price volatility.
| 22 |
As long as we continue to qualify as a smaller reporting company, we may still be eligible for reduced reporting requirements even if we cease to qualify under the JOBS Act as an emerging growth company
Even if we no longer qualify as an emerging growth company under the Jumpstart Our Business Startups Act (JOBS Act), there is a possibility that we may still be subject to reduced reporting requirements as long as we continue to qualify as a smaller reporting company. However, there can be no assurance that we will continue to meet the requirements for smaller reporting company status in the future. If we fail to maintain our smaller reporting company status, we would be subject to the full reporting requirements applicable to larger reporting companies, which could result in increased costs and administrative burdens.
Our earnings may fluctuate, which could adversely affect the price of our common stock.
Our earnings are susceptible to fluctuations for several reasons, including, but not limited to, variability in the timing of large transactions in our technology business segments and financing business segment, product constraints, inflation, and the risk factors discussed herein. In addition, our cost structure is based, in part, on expected sales and gross profit. Therefore, if we experience any unexpected sales or gross profit shortfall for any reason, we may not be able to adjust our cost structure rapidly, which could have an adverse effect on our business, results of operations or cash flows. In the event our sales or net earnings are less than the level expected by the market in general, such shortfall could have an immediate and significant adverse impact on the market price of our common stock.
Upon completion of the offering stockholders will own a minority percentage of the Company’s stock.
Deven Soni, our CEO and Trevor Koverko, a co-founder of the Company, own 25.5% and 24.8% of our outstanding common shares, respectively, or 50.3% on a combined basis, and will continue to do so after the filing of this Registration Statement. As a consequence of their stock ownership position, Mr. Soni and Mr. Koverko, collectively will retain the ability to elect a majority of our board of directors, and thereby control our management. Mr. Soni and Mr. Koverko also have the ability to control the outcome of corporate actions requiring stockholder approval, including mergers and other changes of corporate control, any private transactions, and other extraordinary transactions. The concentration of ownership by Mr. Soni and Mr. Koverko could discourage investments in our Company or prevent a potential takeover of our Company which will have a negative impact on the value of our securities.
We may never have a public market for our common stock or may never trade on a recognized exchange. Therefore, you may be unable to liquidate your investment in our stock.
There is no established public trading market for our securities. Our shares are not and have not been listed or quoted on any exchange or quotation system.
In order for our shares to be quoted, a market maker must agree to file an application with the Financial Industry Regulatory Authority (FINRA) to have our common stock quoted on the OTC Marketplace. In addition, it is possible that such application for quotation may not be approved and even if approved it is possible that a regular trading market will not develop or that if it did develop, will be sustained. In the absence of a trading market, an investor may be unable to liquidate their investment.
| 23 |
Risk of losing one’s investment.
If our securities are not eligible for initial quotation, or if quoted, are not eligible for continued quotation on the OTC Marketplace, or a public trading market does not develop, purchasers of the shares of common stock may have difficulty selling or be unable to sell their securities, rendering their shares effectively worthless and resulting in a partial or complete loss of their investment.
If our shares of common stock are actively traded on a public market, they will in all likelihood be penny stocks.
The securities enforcement and penny stock reform act of 1990 requires additional disclosure relating to the market for penny stocks in connection with trades in any stock defined as a penny stock. Sec regulations generally define a penny stock to be an equity security that has a market or exercise price of less than $5.00 per share, subject to certain exceptions. Such exceptions include any equity security listed on Nasdaq and any equity security issued by an issuer that has net tangible assets of at least $100,000, if that issuer has been in continuous operation for three years. Unless an exception is available, the regulations require delivery, prior to any transaction involving a penny stock, of a disclosure schedule explaining the penny stock market and the associated risks. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from the rules, to deliver a standardized risk disclosure document that provides information about penny stocks and the nature and level of risks in the penny stock market. The broker-dealer must also provide the customer with current bid and offer quotations for the penny stock, details of the compensation of the broker-dealer and its salesperson in the transaction, and monthly account statements showing the market value of each penny stock held in the customer’s account. The bid and offer quotations and broker-dealer and salesperson compensation information must be given to the customer orally or in writing prior to effecting the transaction and must be given in writing before or with the customer’s confirmation. In addition, the penny stock rules require that prior to a transaction in a penny stock not otherwise exempt from such rules, the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s written agreement to the transaction. These disclosure requirements may have the effect of reducing the level of trading activity in the secondary market for securities that become subject to the penny stock rules. Since our securities are highly likely to be subject to the penny stock rules, should a public market ever develop, any market for our shares of common stock may not be liquid.
Because our securities may be subject to penny stock rules, you may have difficulty reselling your shares.
Since our stock may be subject to penny stock rules, you may have difficulty reselling your shares. Penny stocks are covered by section 15(g) of the securities exchange act of 1934 which imposes additional sales practice requirements on broker/dealers who sell the Company’s securities including the delivery of a standardized disclosure document; disclosure and confirmation of quotation prices; disclosure of compensation the broker/dealer receives; and, furnishing monthly account statements. For sales of our securities, the broker/dealer may be required to make a special suitability determination and receive from its customer a written agreement prior to making a sale. The imposition of the foregoing additional sales practices could adversely affect a shareholder’s ability to dispose of his stock.
Our common stock price may be volatile and may decline regardless of our operating performance, and holders of our common stock could lose a significant portion of their investment.
The market price for our common stock may be volatile. Our stockholders may not be able to resell their shares of common stock at or above the price at which they purchased such shares, due to fluctuations in the market price of our common stock, which may be caused by several factors, many of which we cannot control, including the risk factors described in this registration statement and the following:
| ● | changes in financial estimates by any securities analysts who follow our common stock, and our failure to meet these estimates or failure of securities; | |
| ● | our failure to obtain our financial guidance estimates; | |
| ● | significant variations in our quarterly results of operations; | |
| ● | analysts to maintain coverage of our common stock; | |
| ● | downgrades by any securities analysts who follow our common stock; | |
| ● | future sales of our common stock by our officers, directors, and significant stockholders; | |
| ● | market conditions or trends in our industry or the economy as a whole including market expectations of changes in interest rates; | |
| ● | investors’ perceptions of our prospects; | |
| ● | announcements by us or our competitors of significant contracts, acquisitions, joint ventures, or capital commitments; and, | |
| ● | changes in key personnel. |
In addition, the stock markets have experienced extreme price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies, including companies in our industry. In the past, securities class action litigation has followed periods of market volatility. If we were involved in securities litigation, we could incur substantial costs, and our resources and the attention of management could be diverted from our business.
| 24 |
In the future, we may also issue our securities in connection with investments or acquisitions. The number of shares of our common stock issued in connection with an investment or acquisition could constitute a material portion of our then-outstanding shares of our common stock and depress our stock price.
Our management team may have broad discretion over the use of the net proceeds from our sale of shares of stock to the Selling Stockholders, if any, and you may not agree with how we use the proceeds and the proceeds may not be invested successfully.
Our management team has broad discretion as to the use of the net proceeds from the sale of our shares of Stock to the Selling Stockholders, if any, and we could use such proceeds for purposes other than those contemplated at the time of commencement of this offering. Accordingly, you will be relying on the judgment of our management team with regard to the use of those net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible that, pending their use, we may invest those net proceeds in a way that does not yield a favorable, or any, return for us. The failure of our management team to use such funds effectively could have a material adverse effect on our business, financial condition, operating results and cash flows.
Future offerings of debt or equity securities, which would rank senior to our common stock, may adversely affect the market price of our common stock.
If, in the future, we decide to issue debt or equity securities that rank senior to our common stock, it is likely that such securities will be governed by an indenture or other instrument containing covenants restricting our operating flexibility. Additionally, any convertible or exchangeable securities that we issue in the future may have rights, preferences, and privileges more favorable than those of our common stock and may result in dilution to owners of our common stock. We and, indirectly, our stockholders, will bear the cost of issuing and servicing such securities. Because our decision to issue debt or equity securities in any future offering will depend on market conditions and other factors beyond our control, we cannot predict or estimate the amount, timing, or nature of our future offerings, if any. Thus, holders of our common stock will bear the risk of our future offerings reducing the market price of our common stock and diluting the value of their holdings in our common stock.
You may have difficulty depositing your shares with a broker or selling shares of our common stock which you acquire in this offering.
Many securities brokers will not accept securities for deposits and will not sell securities which:
| ● | are considered penny stocks, and/or | |
| ● | trade in the over-the-counter market |
Further, for a securities broker which will, under certain circumstances, sell securities which fall under any or all of the categories listed above, the customer, before the securities broker will accept the shares for deposit, must often complete a questionnaire detailing how the customer acquired the shares, provide the securities broker with an opinion of an attorney concerning the ability of the shares to be sold in the public market, and pay a “legal review” fee which in some cases can exceed $1,000.
For these reasons, investors in this offering may have difficulty selling shares of our common stock.
| 25 |
We have not paid, and do not intend to pay, cash dividends in the foreseeable future.
We have not paid any cash dividends on our common stock and do not intend to pay cash dividends in the foreseeable future. We intend to retain future earnings, if any, for reinvestment in the development and expansion of our business. Dividend payments in the future may also be limited by other loan agreements or covenants contained in other securities that we may issue. Any future determination to pay cash dividends will be at the discretion of our board of directors and depend on our financial condition, results of operations, capital and legal requirements and such other factors as our board of directors deems relevant.
IN ADDITION TO THE RISKS LISTED ABOVE, BUSINESSES ARE OFTEN SUBJECT TO RISKS NOT FORESEEN OR FULLY APPRECIATED BY THE MANAGEMENT. IT IS NOT POSSIBLE TO FORESEE ALL RISKS THAT MAY AFFECT THE COMPANY. MOREOVER, THE COMPANY CANNOT PREDICT WHETHER THE COMPANY WILL SUCCESSFULLY EFFECTUATE THE COMPANY’S CURRENT BUSINESS PLAN. EACH PROSPECTIVE PURCHASER IS ENCOURAGED TO CAREFULLY ANALYZE THE RISKS AND MERITS OF AN INVESTMENT IN THE SECURITIES AND SHOULD TAKE INTO CONSIDERATION WHEN MAKING SUCH ANALYSIS, AMONG OTHER FACTORS, THE RISK FACTORS DISCUSSED ABOVE.
We will not receive any proceeds from the sale of our common stock offered by this prospectus. We have agreed to bear the expenses (other
than any underwriting discounts or selling commissions or any legal expenses incurred by any selling stockholder) in connection with
the registration of the shares of our common stock being offered for resale hereunder by the selling stockholders.
DETERMINATION OF OFFERING PRICE
The selling stockholders will sell the shares at a fixed price until our shares are quoted on an existing public trading market and thereafter at prevailing market prices or privately negotiated prices. The fixed selling price is $0.50. The fixed price of the shares has been arbitrarily determined and established by the Company. No independent accountant or appraiser has been retained to protect the interest of the investors. No assurance can be made that the offering price is in fact reflective of the underlying value of the shares. Each prospective investor is urged to consult with his or her counsel and/or accountant as to offering price and the terms and conditions of the shares. Factors to be considered in determining the price include the amount of capital expected to be required, the market for securities of entities in a new business venture, projected rates of return expected by prospective investors of speculative investments, the Company’s prospects for success and prices of similar entities.
Holders of common stock are entitled to receive ratably such dividends, if any, as may be declared by the Board of Directors out of funds legally available. We have not paid any dividends since our inception, and all earnings, if any, have been retained for the development of our business. Any future disposition of dividends will be at the discretion of our Board of Directors and will depend upon, among other things, our future earnings, operating and financial condition, capital requirements, and other factors. As a result, investors may not receive any return on investment in common shares unless they sell them for a share price that is greater than that at which such investors purchased them
There is no established public market for our common stock, and a public market may never develop. We intend to identify a market maker to file an application with FINRA so as to be able to quote the shares of our common stock on the OTC MARKETS. There can be no assurance as to whether we will identify a market marker that will be willing to file an application and, if we identify one and it agrees to file an application, whether such market maker’s application will be accepted by FINRA. We cannot estimate the time period that will be required for the application process. Even if our common stock is quoted on the OTC MARKETS, there may never be substantial activity in such market. If there is substantial activity, such activity may not be maintained, and no prediction can be made as to what prices may prevail in such market.
The following table sets forth the shares beneficially owned, as of the date of this prospectus, by the Selling Stockholder prior to the offering contemplated by this prospectus, the number of shares the Selling Stockholder is offering by this prospectus and the number of shares it would own beneficially if all such offered shares are sold.
| 26 |
Beneficial ownership is determined in accordance with rules of attribution as promulgated by the SEC. Under these rules, a person is deemed to be a beneficial owner of a security if that person has or shares voting power, which includes the power to vote or direct the voting of the security, or investment power, which includes the power to vote or direct the voting of the security. The person is also deemed to be a beneficial owner of any security of which that person has a right to acquire beneficial ownership within 60 days. Under SEC rules, more than one person may be deemed to be a beneficial owner of the same securities, and a person may be deemed to be a beneficial owner of securities as to which he or she may not have any pecuniary beneficial interest. Except as noted below, each person has sole voting and investment power.
Prior to this offering, there is currently no public market established for our common stock. The selling stockholders will sell the shares being registered under this prospectus at $0.50 per share. We intend to apply to list our shares of common stock on the OTCQX® Best Market or the OTCQB® Venture Market, subject to official notice of issuance, under the symbol “VERT”. No assurance can be given that our applications will be approved. If our application is not approved, we will not continue with this offering. If we succeed in securing quotation of our common stock on the OTCQX® Best Market or the OTCQB® Venture Market and a market for our shares develops, the selling stockholders may sell their shares from time to time at the prevailing market price at the time of offer and sale, or at prices related to such prevailing market prices or in negotiated transactions or a combination of such methods of sale directly or through brokers.
Except as otherwise indicated, the beneficial owners listed in the table below possess the sole voting and dispositive power in regard to such shares and have an address of c/o Vertical Data, Inc., 1980 Festival Plaza Drive, Suite 300, Las Vegas, NV 89135. As of March 19, 2025, there were 41,193,052 shares of our common stock outstanding.
| Name and Address of Beneficial Owners of Common Stock | Material Relationship | Ownership Prior to the Offering(1) | % Prior to the Offering(1) | Total Shares Offered for Sale | Total Shares Immediately After Offering(2) | % Owned After Offering | ||||||||||||||||
| Executive Officers & Directors | ||||||||||||||||||||||
| AASD Investments LLC (Deven Soni) - 1887 Whitney Mesa Dr #9810, Henderson, NV 89014, USA(3) | CEO, Chairman & Founder | 10,500,000 | 25.49 | % | - | 10,500,000 | 25.49 | % | ||||||||||||||
| TDK Cashflow Ltd. (Trevor Koverko) - 180 University Ave, Suite 6202, Toronto, ON, M5H 0A2, Canada | Founder | 10,200,000 | 24.76 | % | 200,000 | 10,000,000 | 24.28 | % | ||||||||||||||
| Christopher Johnson - 13217 Jamboree Road, Tustin, CA, USA, 92782 | CSO & Founder | 3,500,000 | 8.50 | % | - | 3,500,000 | 8.50 | % | ||||||||||||||
| Christopher Creatura - 993 Queen St. W, PH20, Toronto, Ontario, Canada, M6J 1H2 | CFO & Founder | 1,600,000 | 3.89 | % | - | 1,600,000 | 3.89 | % | ||||||||||||||
| David Hackett - 20 Astley Avenue, Toronto, ON, Canada, M4W 3B4 | Director & Founder | 1,000,000 | 2.43 | % | - | 1,000,000 | 2.43 | % | ||||||||||||||
| Jaime Leverton Ventures & Advisory Inc. (Jaime Leverton) - 114 Edgewood Avenue, Toronto, ON, M4L 3H1, CA | Director & Investor | 72,052 | 0.17 | % | 72,052 | - | % | |||||||||||||||
| Other Selling Stockholders | ||||||||||||||||||||||
| Alpha Nine Ventures LTD (Ryan McMillan) - 1461 Glenneyre St. Suite E, Laguna Beach, CA, 92651, USA | Founder | 1,700,000 | 4.13 | % | - | 1,700,000 | 4.13 | % | ||||||||||||||
| Robert Hackett - 320 Falcons Fire Ave, Las Vegas, NV, 89148, USA | Founder | 1,700,000 | 4.13 | % | - | 1,700,000 | 4.13 | % | ||||||||||||||
| Tiger Trout Capital Puerto Rico LLC - 1357 Ashford Ave, STE 2-267, San Juan, PR, 907, USA | Investor | 830,000 | 2.02 | % | 830,000 | - | % | |||||||||||||||
| Z List Media, Inc. (James Altucher) - 315 Longvue Ct, Duluth, GA, 30097, USA | Founder | 664,000 | 1.61 | % | - | 664,000 | 1.61 | % | ||||||||||||||
| Roth Hill, Inc. (Robert Douglas Hill) - 15219 Edgegrove Road, Hillsboro, VA, 20132, USA | Founder | 664,000 | 1.61 | % | - | 664,000 | 1.61 | % | ||||||||||||||
| Ambiguous Ventures, Inc. (Ty Neely) - 362 Plaza Estival, San Clemente, CA, 92672, USA | Founder | 664,000 | 1.61 | % | - | 664,000 | 1.61 | % | ||||||||||||||
| Timothy J Collins - 16801 Poppy Mallow Drive, Austin, TX, 78738, USA | Founder | 664,000 | 1.61 | % | - | 664,000 | 1.61 | % | ||||||||||||||
| McMillan Co. (Ryan McMillan) - 1461 Glenneyre St. Suite E, Laguna Beach, CA, 92651, USA | Founder | 664,000 | 1.61 | % | - | 664,000 | 1.61 | % | ||||||||||||||
| PC2ATX, LLC (Robert & Patricia Byrn) - 3731 Saddleback Rd, Park City, UT, 84098, USA | Founder | 664,000 | 1.61 | % | - | 664,000 | 1.61 | % | ||||||||||||||
| Huey Co. LLC (Caleb Huey) - 1313 4th Ave N, Nashville, TN, 37208, USA | Founder | 664,000 | 1.61 | % | - | 664,000 | 1.61 | % | ||||||||||||||
| Goal Capital Inc. (Danny Gravelle) - 34 Via Di Nola, Laguna Niguel, CA, 92677, USA | Founder | 600,000 | 1.45 | % | - | 600,000 | 1.45 | % | ||||||||||||||
| Jesse Nickel - 3-1182 Whites Road, Port Carling, ON, P0B 1J0, USA | Head of Business Development, Founder & Investor | 580,000 | 1.41 | % | 80,000 | 500,000 | 1.21 | % | ||||||||||||||
| 27 |
| Name and Address of Beneficial Owners of Common Stock | Material Relationship | Ownership Prior to the Offering(1) | % Prior to the Offering(1) | Total Shares Offered for Sale | Total Shares Immediately After Offering(2) | % Owned After Offering | ||||||||||||||||
| Surekha Kanakia - 43786 Greenhills Way, Las Vegas, NV, 89135, USA | Founder | 500,000 | 1.21 | % | - | 500,000 | 1.21 | % | ||||||||||||||
| Steve Hayes - 29 Wheeler Avenue, Springfield, MA, 1118, USA | Investor | 220,000 | 0.53 | % | 220,000 | - | % | |||||||||||||||
| Mark Flanagan - 2450 Elden Ave B, Costa Mesa, CA, 92627, USA | Investor | 185,000 | 0.45 | % | 185,000 | - | % | |||||||||||||||
| DC 2022 Trust (Danny Gravelle) - 34 Via Di Nola, Laguna Niguel, CA, 92677, USA | Investor | 180,000 | 0.44 | % | 180,000 | - | % | |||||||||||||||
| Christopher Jennings - 154 S. Layton Drive, Los Angeles, CA, 9004, USA | Investor | 150,000 | 0.36 | % | 150,000 | - | % | |||||||||||||||
| Phillip Roberts - 525 E. Seaside Way 507, Long Beach, CA, 90802, USA | Investor | 150,000 | 0.36 | % | 150,000 | - | % | |||||||||||||||
| Ignite Capital Partners, Inc. - 100 South Doheny Drive 313, Los Angeles, CA, 90048, USA | Investor | 140,000 | 0.34 | % | 140,000 | - | % | |||||||||||||||
| Bal Kishan Gupta - 3782 Hobstone Place, Dublin, CA 94568 | Investor | 140,000 | 0.34 | % | 140,000 | - | % | |||||||||||||||
| Robert Babbage - 9 Club Vista Drive, Henderson, NV, 89052, USA | Founder | 125,000 | 0.30 | % | - | 125,000 | 0.30 | % | ||||||||||||||
| James Burgess - 15 MacArthur Pl Unit102, Santa Ana, CA, 92707, USA | Investor | 120,000 | 0.29 | % | 120,000 | - | % | |||||||||||||||
| SunnySide Consulting - 180 Dundas St. West 1200, Toronto, ON, M5G 1C7, CA | Investor | 100,000 | 0.24 | % | 100,000 | - | % | |||||||||||||||
| Guy Johnson - 4525 Dean Martin Dr. Las Vegas, NV, 89103, USA | Investor | 100,000 | 0.24 | % | 100,000 | - | % | |||||||||||||||
| Sulaik Yousif - 11246 Lainai Dr, El Cajon, CA, 91941, USA | Investor | 100,000 | 0.24 | % | 100,000 | - | % | |||||||||||||||
| Michael Merino - 220 Newport Center Dr. Newport Beach, CA, 92660, USA | Investor | 100,000 | 0.24 | % | 100,000 | - | % | |||||||||||||||
| Joseph S Alcaraz - 1201 Puerta Del SoL, Suite 208, San Clemente, CA, 92673, USA | Investor | 100,000 | 0.24 | % | 100,000 | - | % | |||||||||||||||
| YT Research Inc - 75 Via Porras, Panama City, PAN | Investor | 100,000 | 0.24 | % | 100,000 | - | % | |||||||||||||||
| Lance Hall - 1968 S Coast Hwy set 439, Laguna Beach, CA, 92651, USA | Investor | 100,000 | 0.24 | % | 100,000 | - | % | |||||||||||||||
| Capital Preservation Insurance Services, Inc - 19744 Beach Blvd 444, Huntington Beach, CA, 92648, USA | Investor | 60,000 | 0.15 | % | 60,000 | - | % | |||||||||||||||
| Keith Ellis - 105 Hazelton Avenue, Toronto ON M5R 2E4 Canada | Business Development & Investor | 80,000 | 0.19 | % | 80,000 | - | % | |||||||||||||||
| Bob Babbage Sr. - 3013 Tates Creek Roa, Unit 104, Lexington, KY, 40502,USA | Founder | 50,000 | 0.12 | % | - | 50,000 | 0.12 | % | ||||||||||||||
| Amir Haboosheh - 2355 Westwood Blvd 758, Los Angeles, CA, 90064, USA | Founder | 50,000 | 0.12 | % | - | 50,000 | 0.12 | % | ||||||||||||||
| Barry Moores - Rancho Santa Fe, CA, 92067, USA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| Jason Knoblauch - 5064 Seon Crescent, Kelowna, BC, V5W 1G8, CA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| 28 |
| Name and Address of Beneficial Owners of Common Stock | Material Relationship | Ownership Prior to the Offering(1) | % Prior to the Offering(1) | Total Shares Offered for Sale | Total Shares Immediately After Offering(2) | % Owned After Offering | ||||||||||||||||
| Sean Clarke - 463 Plaza Estival, San Clemente, CA 92672, USA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| The Liljenquist Irrevocable Trust - 1073 Woodmoor Drive, Bountiful, UT, 84010, USA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| Kailyn White - 64 Hickory Hill Cir, Arnold MD, MD, 21012, USA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| Joe Grubb - 2817 Venetian Dr. Key West, FL, 33040, USA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| Sideways Frequency LLC - 506 Xanadu Pl, Jupiter, FL, 33477, USA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| Gold Standard Media LLC - 723 W University Ave 110 283, Georgetown, TX, 78626, USA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| Lane Edwin Harrison - 19744 Beach Blvd 444, Huntington Beach, CA, 92648, USA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| Ravish Ailinani LLC - 423 Mojave Arch St, Las Vegas, CA, 89138, USA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| Swell Holdings LLC (Ryan Neely) - 336 Plaza Estival, San Clemente CA 92672, USA | Investor | 50,000 | 0.12 | % | 50,000 | - | % | |||||||||||||||
| Patty Chan - 1747 Kelton Ave. Los Angeles CA 90024 USA | Investor | 40,000 | 0.10 | % | 40,000 | - | % | |||||||||||||||
| Thomas Boyer - 507 Aliso Ave Newport Beach CA 92663 USA | Investor | 40,000 | 0.10 | % | 40,000 | - | % | |||||||||||||||
| Lane E Harrison - Roth IRA - 19744 Beach Blvd 444 Huntington Beach CA 92648 USA | Investor | 40,000 | 0.10 | % | 40,000 | - | % | |||||||||||||||
| Westside Strategic Partners, LLC. (Robert Haag) | Investor | 40,000 | 0.10 | % | 40,000 | - | % | |||||||||||||||
| Olympus 3 Acquisitions, LLC - 1200 North Federal Hwy Boca Raton FL 33432 USA | Investor | 40,000 | 0.10 | % | 40,000 | - | % | |||||||||||||||
| Simon Bibeau - 615 Hartford Av Huntington Beach CA 92648 USA | Investor | 40,000 | 0.10 | % | 40,000 | - | % | |||||||||||||||
| Big Idea Group Advisors, Inc - 34072 El Contento Dr. Dana Point CA 92629 USA | Investor | 34,000 | 0.08 | % | 34,000 | - | % | |||||||||||||||
| Hamid Djam - 2893 Red Springs Dr. Las Vegas NV 89135 USA | Founder | 30,000 | 0.07 | % | - | 30,000 | 0.07 | % | ||||||||||||||
| Steve Simon - 3880 St James Way Boca Raton FL 33434 USA | Investor | 30,000 | 0.07 | % | 30,000 | - | % | |||||||||||||||
| Michael Speakman - 32 Via Pacifica San Clemente CA 92673 USA | Investor | 30,000 | 0.07 | % | 30,000 | - | % | |||||||||||||||
| Paris Balaouras - 212 Desert View St Las Vegas CA 89107 USA | Investor | 30,000 | 0.07 | % | 30,000 | - | % | |||||||||||||||
| KBROS, LLC (Shawn Kattoula) - 112 E Madison Ave El Cajon CA 92020 USA | Investor | 30,000 | 0.07 | % | 30,000 | - | % | |||||||||||||||
| Kelly Trippe - 3626 Caravelle St Sarasota FL 34240 USA | Investor | 26,000 | 0.06 | % | 26,000 | - | % | |||||||||||||||
| AJL Corporate Holdings LLC - 2087 Antigua Lane Naples FL 34120 USA | Investor | 24,000 | 0.06 | % | 24,000 | - | % | |||||||||||||||
| David Jonathan Levy - 1357 Dunford Court Henderson NV 89012 USA | Investor | 22,000 | 0.05 | % | 22,000 | - | % | |||||||||||||||
| PL Production Partners - 23 Rancho Circle Lake Forest CA 92630 USA | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| Charles Malette - 1550 West 35 Ave Vancouver BC V6M 1H2 CA | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| 29 |
| Name and Address of Beneficial Owners of Common Stock | Material Relationship | Ownership Prior to the Offering(1) | % Prior to the Offering(1) | Total Shares Offered for Sale | Total Shares Immediately After Offering(2) | % Owned After Offering | ||||||||||||||||
| Murtaza Hussain - 1995 Santa Ana Ave Costa Mesa CA 92627 USA | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| Timothy Nelligan - 484 Calle Amigo San Clemente CA 92673 USA | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| Riley Flanagan | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| Stephen Smolinski - 31103 Rancho Viejo road Unit D2158 San Juan Capistrano CA 92675 USA | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| Zouhair Soueidan - 3420 Stump Hall Rd Collegeville PA 19426 USA | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| Richard Maus - 7221 Las Casas Dr Sarasota FL 34243 USA | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| Layla Gravelle - 34 Via Di Nola Laguna Niguel CA 92677 USA | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| JF Jomphe Family Trust - 7293 Sea Boot Ct Las Vegas CA 89131 USA | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| Empire Ventures Holdings - 1300 S Miami Ave Unit 1805 Miami FL 33130 USA | Investor | 20,000 | 0.05 | % | 20,000 | - | % | |||||||||||||||
| MAINSTAR TRUST CUST FBO (Darin Shea) - 418 S Gibson Ct Burbank CA 91501 USA | Investor | 16,000 | 0.02 | % | 16,000 | - | % | |||||||||||||||
| Derek Cahill - 41940 Jojoba Hills CiR Aguanga CA 92536 USA | Investor | 15,000 | 0.02 | % | 15,000 | - | % | |||||||||||||||
| Ryan Hagy - 1128 Las Posas San Clemente CA 92673 USA | Investor | 10,000 | 0.02 | % | 10,000 | - | % | |||||||||||||||
| Byron Blanco - 439 Sunrise Way San Francisco CA 94134 USA | Investor | 10,000 | 0.02 | % | 10,000 | - | % | |||||||||||||||
| Scott Sherman - 57th Pl 33 Long Beach CA 90803 USA | Investor | 10,000 | 0.02 | % | 10,000 | - | % | |||||||||||||||
| Auston Forsythe - 21050 Lochlea Ln. Huntington Beach CA 92646 USA | Investor | 10,000 | 0.02 | % | 10,000 | - | % | |||||||||||||||
| Mark Cymerint - 1 Arado Rancho Santa Margarita CA 92688 USA | Investor | 10,000 | 0.02 | % | 10,000 | - | % | |||||||||||||||
| Scott St John - 3821 NE 16th terrace Oakland Park FL 33334 USA | Investor | 10,000 | 0.02 | % | 10,000 | - | % | |||||||||||||||
| Abraham Tawil - 2306 N. Kenneth Rd. Burbank CA 91504 USA | Investor | 6,000 | 0.01 | % | 6,000 | - | % | |||||||||||||||
| Jason Carter - 7840 S 700 E Sandy UT 84070 USA | Investor | 5,000 | 0.01 | % | 5,000 | - | % | |||||||||||||||
| Nick Creatura - 29 Rossmull Cres Woodbridge ON L4L 7C9 CA | Investor | 5,000 | 0.01 | % | 5,000 | - | % | |||||||||||||||
| Alessandra Mafalda Creatura - 29 Rossmull Cres Woodbridge ON L4L 7C9 CA | Investor | 5,000 | 0.01 | % | 5,000 | - | % | |||||||||||||||
| Loreta Creatura - 29 Rossmull Cres Woodbridge ON L4L 7C9 CA | Investor | 5,000 | 0.01 | % | 5,000 | - | % | |||||||||||||||
| Stefania Creatura - 29 Rossmull Cres Woodbridge ON L4L 7C9 CA | Investor | 5,000 | 0.01 | % | 5,000 | - | % | |||||||||||||||
| MAINSTAR TRUST CUST FBO (Scott Ozer) - 266 Camino Toluca Camarillo CA 93010 USA | Investor | 5,000 | 0.01 | % | 5,000 | - | % | |||||||||||||||
| William Donovan - 16611 Loie St Yorba Linda CA 92886 USA | Investor | 5,000 | 0.01 | % | 5,000 | - | % | |||||||||||||||
| Adrien Plavsic - Baumgartenweg 8 Birsfelden N/A CHE | Investor | 5,000 | 0.01 | % | 5,000 | - | % | |||||||||||||||
| Julie Payne - 104 E Ave San Antonio San Clemente CA 92672 USA | Investor | 4,000 | 0.01 | % | 4,000 | - | % | |||||||||||||||
| Angela Mynatt - 2260 Cork Oak St W Sarasota FL 34232 USA | Investor | 2,000 | 0.00 | % | 2,000 | - | % | |||||||||||||||
| Eric Mynatt - 2260 Cork Oak st w Sarasota FL 34232 USA | Investor | 2,000 | 0.00 | % | 2,000 | - | % | |||||||||||||||
| Damandip Sanghera - 11271 Winter Cottage Pl. Las Vegas NV 89135 USA | Investor | 1,000 | 0.00 | % | 1,000 | - | % | |||||||||||||||
| Diaine Pascale - 11271 Winter Cottage Pl. Las Vegas NV 89135 USA | Investor | 1,000 | 0.00 | % | 1,000 | - | % | |||||||||||||||
| TOTAL | 41,193,052 | 100 | % | 4,690,052 | 36,503,000 | 88.66 | % | |||||||||||||||
| 30 |
(1) Under applicable SEC rules, a person is deemed to beneficially own securities which the person has the right to acquire within 60 days through the exercise of any option or warrant or through the conversion of a convertible security. Also under applicable SEC rules, a person is deemed to be the “beneficial owner” of a security with regard to which the person directly or indirectly, has or shares (a) voting power, which includes the power to vote or direct the voting of the security, or (b) investment power, which includes the power to dispose, or direct the disposition, of the security, in each case, irrespective of the person’s economic interest in the security. Each listed selling stockholder has the sole investment and voting power with respect to all shares of common stock shown as beneficially owned by such selling stockholder, except as otherwise indicated in these footnotes.
(2) The Founders, each of whom have received respective shares and have held since May 3, 2024, have restrictions in place; there is a holding period of a total of thirty-six (36) months from the date of this offering. The holding period includes a twelve (12) month period with restrictions on the shares; following the first year, restrictions on the shares will be proportionately removed monthly thereafter, with the shares being completely unrestricted after thirty-six (36) months. We have assumed that the 36,503,000 restricted shares held by the Founders will continue to be held after this offering. We do not know when or in what amounts the unrestricted Selling Stockholders may offer shares for sale. The unrestricted Selling Stockholders may not sell any or all of the shares offered by this prospectus. However, because the unrestricted Selling Stockholders may offer all or some of the shares pursuant to this offering, we have assumed for illustrative purposes that all unrestricted shares are sold immediately after this offering.
(3) Mr. Deven Soni, our Chairman, President, Chief Executive Officer (Principal Executive Officer) and Director, is the controlling principal of AASD Capital LLC, with an address of 1887 Whitney Mesa Dr #9810, Henderson, NV 89014, USA. AASD Capital LLC owns 10,500,000 shares of common stock of the Company prior to this offering.
Except as pursuant to applicable community property laws, the persons named in this table have sole voting and investment power with respect to all shares of common stock.
As a group, the 98 selling stockholders are hereby registering 41,193,052 common shares. The price per share is $0.50 for the duration of the offering.
The shares owned by all of our shareholders, which includes the selling stockholders and our officers, director and founders, were acquired in several issuances as follows:
| ● | For a period from July 1, 2024 to the date of this Prospectus we issued 36,503,000 shares of common stock at par value to officers, directors and founders. | |
| ● | For a period from July 1, 2024 to the date of this Prospectus we issued 4,690,052 shares of common stock at a price of $0.50 per share and received $2,345,026 in cash. |
Pursuant to certain “lock-up” agreements, all Founders as disclosed above, which includes but is not limited to our executive officers, directors and certain existing stockholders, prior to this offering holding our common stock and securities exercisable for or convertible into our common stock outstanding immediately upon the closing of this offering, have agreed, subject to certain exceptions, not to offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of or announce the intention to otherwise dispose of, or enter into any swap, hedge or similar agreement or arrangement that transfers, in whole or in part, the economic risk of ownership of, directly or indirectly, engage in any short selling of any common stock or securities convertible into or exchangeable or exercisable for any common stock, whether currently owned or subsequently acquired, without the prior written consent of the representative of the underwriters, for a period of twelve (12) months following the closing of the offering. Shares will be fully transferable and unrestricted after thirty-six (36) months of the offering.
All of our share issuance were in reliance of Section 4(a)(2) of the Securities Act.
| 31 |
In the event the selling stockholders receive payment for the sale of their shares, we will not receive any of the proceeds from such sales. We are bearing all expenses in connection with the registration of the shares of the selling stockholders.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that involve substantial risks and uncertainties. The forward-looking statements are contained principally in the sections entitled “Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business,” but are also contained in this prospectus. In some cases, you can identify forward-looking statements by the words “may,” “might,” “will,” “could,” “would,” “should,” “expect,” “intend,” “plan,” “aim,” “objective,” “anticipate,” “believe,” “estimate,” “predict,” “project,” “potential,” “continue,” “ongoing,” “target,” “seek” or the negative of these terms, or other comparable terminology intended to identify statements about the future.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion and analysis of our financial condition and results of operations together with the section titled “Summary of Consolidated Financial Information” and our audited financial statements and related notes, each included elsewhere in this prospectus. Some of the information contained in this discussion and analysis constitutes forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those discussed in these forward-looking statements. Factors that could cause or contribute to these differences include, but are not limited to, those discussed below and elsewhere in this Prospectus, particularly under the sections titled “Risk Factors” and “Cautionary Statement Concerning Forward-Looking Statements.”
The results of operations for the interim period ended December 31, 2024 and fiscal year ended September 30, 2024, are not necessarily indicative of the results that may be expected for any other future period. The following discussion should be read in conjunction with the unaudited interim and annual financial statements and the notes thereto included in this prospectus. Further, the Company’s Management Discussion and Analysis of Financial Condition and Results of Operations has been prepared in accordance with Item 303 of Regulation S-K.
Overview
Vertical Data Inc. is a systems and solutions technology provider delivering high performance compute solutions to enterprise and data center clients. We distribute computer systems and information technology (“IT”) systems including graphics processing unit (“GPU”) servers, storage solutions, system components, software, networking and communications equipment, and related complementary products and services.
We distribute technology products from original equipment manufacturers (“OEMs”) as well as suppliers of next-generation technologies and delivery models such as converged and hyper-converged infrastructure. We purchase peripherals, IT systems, systems components, software, and networking equipment from a network of suppliers, consisting of mainly two vendors, and sell them to our data center and enterprise customers. The Company also engages in the coordination and provision of data center services and hosting services for our customers.
Our Company’s business model focuses on supporting the demand for enterprise AI compute capability. We are characterized by high volumes of sales and price sensitivity by our end users. The market for IT products is generally characterized by declining unit prices and short product life cycles. We set our sales price based on the market supply and demand characteristics for each particular product or bundle of products we distribute and services we provide. In addition, we try to provide just-in-time delivery of the IT products to avoid taking significant inventory in order to ensure positive working capital cycles and to ensure our product offerings tie with current market demands.
| 32 |
We are highly dependent on the end-market demand for IT products and on our partners’ strategic initiatives and business models. This end market demand is influenced by many factors including the introduction of new IT products and software by OEMs, replacement cycles for existing IT products, trends toward AI computing, overall economic growth and general business activity. A difficult and challenging economic environment may also lead to consolidation or decline in the IT industries and increased price-based competition
We are an early-stage company. Our financial results reflect our investment in building a direct sales force for revenue-producing initiatives and the development of a business development team for identifying target customers and key equipment and hardware suppliers.
We are a value-added reseller of best-in-class technology and computing solutions to data centers. Our mission is to expand the availability of high-performance computing to the global landscape. We accomplish this by providing infrastructure hardware and services to data centers and enterprises looking to utilize high performance compute such as machine learning and inference.
We intend to make deliberate and substantial investments in support of our mission and long-term growth. For example, we have invested in building a team of expert and experienced consultants and business development personnel that is responsible for development and expansion of our customer base and our technology supplier base. We also plan to make significant investments in sales and marketing and incentives to grow and retain our customer base.
Our priorities are to (a) continue to invest in identifying best-in-class technologies that will enable us to expand our product offerings, (b) establishing and extending our product offerings in new jurisdictions, and (c) expand our product and service offerings that are related to and complimentary of our existing product offerings.
Our current business is highly scalable with relatively minimal incremental spend in adding consulting resources to our sales and business development personnel. We will continue to manage our fixed-cost base in conjunction with our market entry plans and focus our variable spend on marketing, customer experience and support to become the value-added reseller of choice for customers and to maintain favorable relationships with suppliers. We also expect to improve our profitability over time as our revenue and gross profit expand as customer relationships mature and expand, and our variable marketing expenses and fixed costs stabilize or grow at a slower rate.
Our path to profitability is based on the acceleration of positive contribution profit growth driven by increased revenue and gross profit generation from ongoing customer acquisition, strong customer retention, improved monetization from increased sales volume, as well as scale benefits from investments in our general and administrative functions. On an adjusted EBITDA basis, we expect to achieve profitability when total contribution profit exceeds the fixed costs of our business, which depends, in part, on the number of customers that have access to our product offerings and the other factors summarized in the section entitled “Cautionary Statement Regarding Forward-Looking Statements”.
We distribute our products and technology solutions through direct sales channels managed by our team of consultants in addition to our own direct-to-customer platforms and web pages.
The Company was incorporated in Nevada on May 3, 2024, and our corporate office is currently located in Las Vegas, Nevada.
| 33 |
Liquidity and Capital Resources
The Company has funded its operations primarily through ongoing sales of equipment to its customers and through a private equity offering to investors resulting in gross proceeds of approximately $2.3 million (as of the date of the filing). As of December 31, 2024, the Company has not borrowed money to fund its business through either note payables or lines of credit. The Company plans to continue to fund its operations through private equity offerings as well as cash generated from its ongoing business operations.
The Company purchases equipment from certain suppliers to sell to its customers. However, as of December 31, 2024, the Company has not entered into any long-term commitments or contractual obligations with those suppliers to purchase equipment. Further, while the Company entered into a lease agreement during October of 2024, the agreement is on a month-to-month basis and we do not expect the agreement to have a material impact on our financial statements or results of operations.
Cash Flows
For the interim period ended December 31, 2024
The following table summarizes the Company’s cash flows for the interim period ended December 31, 2024:
| Net (loss) income | $ | (837,458 | ) | |
| Net cash from (used) in operating activities | $ | 74,248 | ||
| Net cash used in investing activities | $ | - | ||
| Net cash provided by financing activities | $ | 1,093,400 | ||
| Net change in cash and cash equivalents | $ | 1,167,648 | ||
| Cash and cash equivalents, beginning of period | $ | 427,722 | ||
| Cash and cash equivalents, end of period | $ | 1,595,370 |
Operating Activities
Net cash from operating activities for the period was approximately $0.1 million. The amount was primarily comprised of a net loss of $0.8 million offset by stock-based compensation expense of approximately $0.5 million and the net change in assets and liabilities of approximately $0.4 million.
Investing Activities
The Company did not engage in any investing activities during the period.
Financing Activities
Net cash provided from financing activities for the period consisted solely of a private equity offering resulting in net proceeds of approximately $1.1 million.
For the period ended September 30, 2024
The following table summarizes the Company’s cash flows for the period ended September 30, 2024:
| Fiscal
Period Ended September 30, 2024(1) | ||||
| Net (loss) income | $ | (350,599 | ) | |
| Net cash from (used) in operating activities | $ | (518,478 | ) | |
| Net cash used in investing activities | $ | (1,352 | ) | |
| Net cash provided by financing activities | $ | 947,552 | ||
| Net change in cash and cash equivalents | $ | 427,722 | ||
| Cash and cash equivalents, beginning of period | $ | - | ||
| Cash and cash equivalents, end of period | $ | 427,722 | ||
(1) Represents fiscal period from Company inception on May 3, 2024 through September 30, 2024
Operating Activities
Net cash used in operating activities for the period was approximately $0.5 million. The amount was primarily comprised of a net loss of $0.4 million and a change in other current assets of approximately $0.7 million offset by stock-based compensation expense of approximately $0.2 million and the change in accrued liabilities and other current liabilities of $0.1 million and $0.2 million, respectively.
Investing Activities
The Company’s investing activities for the period were not material and consisted solely of the purchase of computer equipment.
Financing Activities
Net cash provided from financing activities for the period consisted solely of a private equity offering resulting in net proceeds of approximately $0.9 million.
| 34 |
Going Concern
Pursuant to the guidance in ASC 205-40 Going Concern, for each annual and interim reporting period an entity’s management must evaluate whether there are conditions and events, considered in the aggregate, that raise substantial doubt about an entity’s ability to continue as a going concern within one year after the date that the financial statements are issued. To that extent, the Company incurred a net loss of approximately $0.9 million and $0.4 million during the three months ended December 31, 2024 and year ended September 30, 2024, respectively. Further, the Company had cash on hand of approximately $1.6 million as of December 31, 2024. With that said, the Company has participated in certain arrangements to raise additional capital. Specifically, as of December 31, 2024, the Company has raised approximately $2.0 million through private offerings. Further, for the interim period ended December 31, 2024, the company generated operating cash flow of $0.1 million. As such, the Company believes that the substantial doubt about our ability to continue as a going concern has been alleviated as a result of consideration of management’s plans.
Results of Operations
We are an early-stage company, and our historical results may not be indicative of our future results. Accordingly, the drivers of our future financial results, as well as the components of such results, may not be comparable to our historical or future results of operations. As noted above, the Company was incorporated on May 3, 2024. As such, no comparative period has been presented in the filing for either the period ended December 31, 2024 or September 30 ,2024.
For the period ended December 31, 2024
During its interim period ended December 31, 2024, the Company recognized revenue of approximately $3.7 million and had a net loss for the period of approximately $0.9 million. Revenue for the period was generated solely by equipment sales to the Company’s customers. Further, the net loss for the period was primarily driven by cost of revenue of approximately $3.6 million and general and administrative expense of $0.9 million.
For the period ended September 30, 2024
During its fiscal year ended September 30, 2024, the Company recognized revenue of approximately $6.9 million and had a net loss for the period of approximately $0.4 million. Revenue for the period was generated solely by equipment sales to the Company’s customers. Further, the net loss for the period was primarily driven by cost of revenue of approximately $6.5 million and general and administrative expense of $0.7 million.
Critical Accounting Estimates
Pursuant to Item 303(b)(3) of Regulation S-K, critical accounting estimates are “those estimates made in accordance with generally accepted accounting principles that involve a significant level of estimation uncertainty and have had or are reasonably likely to have a material impact on the financial condition or results of operations of the registrant”.
The Company’s financial statements included the following critical accounting estimates:
Revenue Recognition
The Company recognizes revenue from its contracts with customers in accordance with the core principle outlined in ASC 606 Revenue from Contracts with Customers. Specifically, the Company recognizes revenue “to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which we expect to be entitled in exchange for those goods or services”. To that extent, the Company recognizes revenue in accordance with the ASC Topic by applying the following five steps:
| ● | Step 1-Identify the contract(s) with a customer | |
| ● | Step 2-Identify the performance obligations in the contract | |
| ● | Step 3-Determine the transaction price | |
| ● | Step 4-Allocate the transaction price to the performance obligations in the contract | |
| ● | Step 5-Recognize revenue when (or as) the Company satisfies a performance obligation |
The Company’s contracts with its customers currently only contain a single performance obligation comprised of the sale of IT equipment. Further, as noted above, revenue is recognized at a point in time upon delivery of the equipment to the customer at the agreed upon location. The Company does not currently extend any form of payment terms to its customers and, as such, full payment for the equipment is received from the customer (via wire payment) immediately upon delivery of the equipment. As full payment is received only upon delivery, the Company typically does not have the need to recognize contract assets, contract liabilities or accounts receivable.
In determining the transaction price, the Company’s contracts with its customers do not include a significant financing component, noncash consideration or consideration payable to the customer. The Company’s contracts do include a refund option whereby the customer has the right to return the equipment to the Company for a full refund within a stated period after purchase. However, the Company noted that equipment returns were highly infrequent and were not material to our results of operations. As such, no refund liability has been recorded.
| 35 |
As it pertains to incremental costs of obtaining a contract, the Company, in accordance with the practical expedient provided in ASC 340-40, has elected to expense when incurred all sales commissions paid to its employees as the amortization period of the asset that the entity would have recognized would be one year or less.
Stock Based Compensation
The Company accounts for its stock-based compensation awards to employees and members of its Board of Directors (the “Board”) in accordance with ASC Topic 718, Compensation—Stock Compensation (“ASC 718”). ASC 718 requires all stock-based payments to employees and Board members, including grants of employee stock options, to be recognized in the statement of operations by measuring the fair value of the award on the date of grant and recognizing this fair value as stock-based compensation over the requisite service period, generally the vesting period. The Company determines the fair value of its underlying shares in accordance with the practical expedient for nonpublic entities provided in ASC 718-10-30.
The Company estimates the grant date fair value of stock option awards using the Black-Scholes option-pricing model. The use of the Black-Scholes option-pricing model requires management to make assumptions with respect to the fair value of our underlying shares, the expected term of the option, the expected volatility of the Common Stock consistent with the expected life of the option, risk-free interest rates and expected dividend yields of the Common Stock.
Recent Accounting Pronouncements
In November 2023, the FASB issued Accounting Standards Update (“ASU”) 2023-07, Segment Reporting—Improvements to Reportable Segment Disclosures (“ASU 2023-07”), which requires incremental disclosures related to a public entity’s reportable segments. Required disclosures include, on an annual and interim basis, significant segment expenses that are regularly provided to the CODM and included within each reported measure of segment profit or loss, an amount for other segment items (which is the difference between segment revenue less segment expenses and less segment profit or loss) and a description of its composition, the title and position of the CODM, and an explanation of how the CODM uses the reported measure(s) of segment profit or loss in assessing segment performance and deciding how to allocate resources. The standard also permits disclosure of more than one measure of segment profit. ASU 2023-07 is effective for fiscal years beginning after December 15, 2023, and interim periods within fiscal years beginning after December 15, 2024. The Company does not believe the adoption of ASU 2023-07 will have a material impact on its financial statements.
In December 2023, the FASB issued ASU 2023-09-Income Taxes (Topic 740)-Improvements to Income Tax Disclosures, which requires entities to provide additional information in the rate reconciliation and additional disclosures about income taxes paid. The guidance should be applied prospectively and is effective for annual periods beginning after December 15, 2024. The Company does not expect the issued standard to have a material impact on its financial statements.
In November 2024, the FASB issued ASU 2024-03, Income Statement—Reporting Comprehensive Income—Expense Disaggregation Disclosures (Subtopic 220-40). The amendments in this update require disclosure, in the notes to financial statements, of specified information about certain costs and expenses at each interim and annual reporting period. The amendments are effective for annual periods beginning after December 15, 2026, and reporting periods beginning after December 15, 2027, with early adoption permitted. The Company is currently evaluating the impact of the new ASU to its financial statements.
| 36 |
Growth Strategy
Our strategy is to continue to expand supplier relationships which in turn provide depth to our overall product offerings, and to utilize the depth and performance of our product offerings to attract and build our customer base. Key to our strategy is that we increase order size per customer and provide world-class service and support that will enable us to maximize customer retention and move upstream from one-off hardware sales to long-term partnerships with top tier global customers. Additionally, we plan to expand our hardware sales from OEM products to products we develop and brand internally that meet specific use cases in a more cost efficient and performant manner.
Our priorities are to (a) continue to invest in identifying best-in-class technologies that will enable us to expand our product offerings, (b) establishing and extending our product offerings in new jurisdictions, and (c) expand our product and service offerings that are related to and complimentary of our existing product offerings.
Description of Service Offerings
We offer a comprehensive offering of high-performance computer products from a group of proprietary network suppliers, enabling us to offer comprehensive solutions to our enterprise and data center customers. The typical products we provide are servers used in training large language (“LLM”) models as well as systems that are used in LLM inference (or using these models to draw conclusions from an input). Our products typically come in the form of bare metal servers (or fully constructed servers that can be used for the above uses), or pre-configured systems that have the software pre-installed.
Estimated Expenses for the Next Twelve Months
If we are able to successfully complete the above goals within the estimated timeframes set forth and are able to raise additional proceeds that may be needed to secure additional personnel and marketing funds, those funds would be allocated as follows:
Our management may hire full or part- time employees or independent contractors over the next six (6) months; however, at the present, the services provided by our officer and director appears sufficient at this time. We believe that our operations are currently on a small scale that is manageable by these individuals and can be supplemented by engaging independent contractors. Our management’s responsibilities are mainly administrative at this early stage. While we believe that the addition of employees is not required over the next six (6) months, the professionals we plan to utilize may be independent contractors. We do not intend to enter into any employment agreements with any of these professionals. We have entered into a one-year employment agreement with Mr. Soni. Thus, other than Mr. Soni, these persons are not intended to be employees of our Company.
Our management does not expect to incur any material research costs in the next twelve (12) months; we currently do not own any plants or equipment that we would seek to sell in the near future; we do not have any off-balance sheet arrangements; and we have not paid for expenses on behalf of our officer or directors. Additionally, we believe that this fact shall not materially change.
Available Working Capital, Trends, and Uncertainties
We currently have approximately $1.6M in cash available to fund our operations. The increase from $427,722 as of September 30, 2024 is driven by proceeds from our private placement. We intend to raise additional capital either in the form of equity and/or debt, or advances from our related parties, to provide us with the necessary capital to execute our business plan.
Financial Instruments and Risk Management
We have exposure to the following risks from our use of financial instruments. Our board of directors approves and monitors the risk management processes / Other.
Financial Instrument Classification and Measurement:
Financial instruments that are recorded at fair value on the annual statement of financial position are classified using a fair value hierarchy that reflects the significance of the inputs used in making the measurements.
The fair value of hierarchy has the following levels:
| - | Level 1 – quoted prices in active markets for identical financial instruments. | |
| - | Level 2 – quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in the markets that are not active; and model-derived valuations in which all significant inputs and significant value drivers are observable in active markets. | |
| - | Level 3 – valuations derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable. |
Cash, accounts payable and accrued liabilities, due to shareholders and due to related parties represent financial instruments for which the carrying amount approximates fair value due to their short-term maturities.
Market Risk
Market risk is the risk that changes in market prices will affect our earnings or the value of our financial instruments. The objective of market risk management is to manage and control exposures within acceptable limits, while maximizing returns.
Interest Rate Risk
Interest rate risk is the risk that changes in interest rates will impact our cash flows. As due from shareholders and due to related parties bare no interest rate, we are not exposed to any interest rate risk.
| 37 |
Credit Risk
Credit risk is the risk of an unexpected loss if a customer or third party to a financial instrument fails to meet its contractual obligations. We are not exposed to any credit risk. Management has mitigated the risk by using tier 1 financial institutions for managing our cash, selling products on credit card/cash basis, and establishing communication channels with the counterparties of the receivables for ongoing monitoring of their financial performance.
Liquidity Risk
Liquidity risk is the risk that we will not be able to meet our financial obligations associated with our financial liabilities. We manage liquidity risk through the management of our capital structure. Our approach to managing liquidity is to ensure that we will have sufficient liquidity to settle obligations and liabilities when due.
Foreign Exchange Risk
We are not exposed to such risk as all financial instruments are denominated in United States dollars.
COMMITMENTS
None.
RELATED PARTY TRANSACTIONS
None.
Plan of Operation
We are a value-added reseller specializing in sourcing and supplying information technology solutions to data centers. Our goal is to source best-in-class third-party technology and partner with the developers of that technology to commercialize and distribute it to a global network of data center and enterprise clients.
Plan of Operation – Milestones
We are at an early stage of our new business operations. Over the next twelve months, our primary target milestones include:
| 1. | Expanding our product and service offerings | |
| 2. | Securing a credit partner | |
| 3. | Establish additional industry partnerships |
We continue to evaluate opportunities which have synergies to our existing platforms and anticipate sustainable financial profitability in 2025.
Revenues
We will primarily derive revenue from the sale of high-performance computing systems. We plan to expand our revenue channel to services including data center integration services and managed services. We plan to invest in sales and marketing, as well as into the expansion of our sales force and business development personnel, to retain and acquire customers. However, sales and marketing expenses may fluctuate as a percentage of revenue depending on the timing and efficiency of our marketing efforts.
Cost of Revenue
Cost of revenue primarily includes costs of the hardware sold to our customers.
Financing Strategy
Our ability to increase our revenues and market our services will be dependent on additional outside financing, and reinvesting our profits. Primary responsibility for the overall planning and management of our services will rest with our management. For each product and service we plan to offer, management will need to assess the market and our needs to offer such consulting or advisory services at cost-effective prices to data center customers. All decisions will be subject to budgetary restrictions and our business control. We cannot provide any guarantee that we will be able to ever offer services on cost-effect terms.
| 38 |
Business Overview
We are an early development-stage systems and solutions technology provider delivering high performance computer solutions to enterprise and data center clients. We distribute computer systems and information technology (“IT”) systems including graphics processing unit (“GPU”) servers, storage solutions, system components, software, networking and communications equipment, and related complementary products and services.
Our business model entails distributing technology products from original equipment manufacturers (“OEMs”) as well as suppliers of next-generation technologies and delivery models such as converged and hyper-converged infrastructure. We purchase peripherals, IT systems, systems components, software, and networking equipment from a network of suppliers and sell them to our data center and enterprise customers.
As part of our business, we will also engage in the coordination and provision of data center services and hosting services for our customers. While providing the business services mentioned above to our clients, we are also continuing research and development in order to develop our own hardware devices and software to sell into our existing channels.
Our business is characterized by high volumes of sales and price sensitivity by our end users. The market for IT products is generally characterized by declining unit prices and short product life cycles. We set our sales price based on the market supply and demand characteristics for each particular product or bundle of products we distribute and services we provide. In addition, we try to provide just-in-time delivery of the IT products to avoid taking significant inventory which allows us to ensure positive working capital cycles and to ensure our product offerings tie with current market demands.
We are highly dependent on the end-market demand for IT products and on our partners’ strategic initiatives and business models. This end market demand is influenced by many factors including the introduction of new IT products and software by OEMs, replacement cycles for existing IT products, trends toward AI computing, overall economic growth and general business activity. A difficult and challenging economic environment may also lead to consolidation or decline in the IT industries and increased price-based competition.
Reliance on Management
Our success is dependent upon the ability, expertise, judgment, discretion and good faith of its senior management. While employment agreements are customarily used as a primary method of retaining the services of key employees, these agreements cannot assure the continued services of such employees. Any loss of the services of such individuals could have a material adverse effect on our business, operating results or financial condition.
As of the date of this Prospectus, we currently have one (1) full-time employee and fifteen (15) consultants. Our Chief Executive Officer, Deven Soni, is the only full-time employee of the Company. Our other senior officers, including our Chief Financial Officer and Chief Sales Officer, carry out their capacities through individual consulting agreements. The Company relies on its Chief Sales Officer to drive revenue, its head of technology for product development, and its head of supply chain for fulfillment purposes.
Competition
The mission-critical information technology solutions market is large, fragmented, and highly competitive. We compete for contracts based on the strength of our customer relationships, successful past performance, significant technical expertise, specialized knowledge, and broad service offerings. Our strength lies in our ability to deliver quality solutions on time and with high quality at a competitive price. These solutions can be complex or simple. We have gained traction by providing complex AI solutions utilizing GPU and advanced thermal management technology. We often compete against channel re-sellers and divisions of large information technology service and equipment providers. In some cases, because of diverse requirements, we collaborate with these and other competitors for projects. We respect competition in the information technology services sector, and we embrace what we need to do to compete and win to continue to increase in the future.
Certain competitors have more established relationships and greater financial resources and they can use their resources against the Company in a variety of competitive ways, including by making acquisitions, investing aggressively in research and development, and competing aggressively for strategic partners, advertisers, employees, technologies, digital media rights, websites and applications. These competitors also may spend more money and time on developing and testing products and services, undertake more extensive marketing campaigns, adopt more aggressive pricing or promotional policies, or otherwise develop more commercially successful products or services than the Company’s, which could negatively impact its business by affecting its ability to attract and retain existing and new sports betting customers.
With respect to competing for customers, we will compete primarily on the basis of our ability to timely fulfill customer technology and operating requirements, and to do so cost-effectively to the customer, in addition to brand and reputation as a high-quality and reliable provider of best-in-class technologies to our customers. We will seek to expand our relationships with new customers and technology suppliers.
Most of our competitors and our potential competitors have one or more advantages over us, including:
| ● | significantly greater financial and personnel resources; | |
| ● | stronger brand and customer recognition; | |
| ● | longer and larger customer histories; | |
| ● | lower labor, sales and marketing costs and better overall economies of scale; and | |
| ● | broader distribution and presence. |
| 39 |
We believe that our small size will provide us some amount of a competitive edge in the near term as we are able to make quick decisions to take advantage of customer preferences and emerging technologies. We are aware of the increasing role of Artificial Intelligence (AI) and the related increased demand for high performance computing solutions amongst data centers.
We believe that we can compete favorably in our market. Successful execution of our strategy depends on our ability to attract and retain customers, expand our customer base and their respective purchasing volumes, attract and supplier partners, and offer a strong level of service and expertise to our customers.
Intellectual Property Rights
We do not currently have any intellectual property rights other than common law trademark rights and copyrights.
Dependence on Customers
We have a limited number of customers. However, we intend to invest into business development and sales and marketing resources, which we believe will provide us with customers to execute on our business plan.
Trademarks and Patents
We do not have any registered trademarks or patents.
Need for any Government Approval of Principal Services
We are subject to federal, state and local laws and regulations generally applied to businesses, such as payroll taxes on the state and federal levels. Sales of the services we intend to provide to customers may be subject to U.S. and local government regulations.
Research and Development
We have not spent any money on research and development activities.
Employees
As of the date of this Prospectus, we have one (1) full-time employee and fifteen (15) consultants who devote their time as needed to our business.
Legal Proceedings
There are no material proceedings to which any director or officer, or any associate of any such director or officer, is a party that is adverse to our Company or any of our subsidiaries or has a material interest adverse to our Company or any of our subsidiaries. No director or executive officer has been a director or executive officer of any business which has filed a bankruptcy petition or had a bankruptcy petition filed against it during the past ten years. No current director or executive officer has been convicted of a criminal offense or is the subject of a pending criminal proceeding during the past ten years. No current director or executive officer has been the subject of any order, judgment or decree of any court permanently or temporarily enjoining, barring, suspending or otherwise limiting his involvement in any type of business, securities or banking activities during the past ten years. No current director or officer has been found by a court to have violated a federal or state securities or commodities law during the past ten years.
However, we may from time to time after the date of this prospectus become subject to claims and litigation arising in the ordinary course of business. One or more unfavorable outcomes in any claim or litigation against us could have a material adverse effect for the period in which such claim or litigation is resolved. In addition, regardless of their merits or their ultimate outcomes, such matters are costly, divert management’s attention, and may materially adversely affect our reputation, even if resolved in our favor.
| 40 |
Property
We hold no real property. We do not presently own any interest in real estate. Our executive, administrative and operating offices are currently located at 1980 Festival Plaza Drive, Suite 300, Las Vegas, NV 89135.
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
Executive Officers and Directors
The following table sets forth the name, age and position of each of our executive officers, key employees and directors.
| Name | Age | Position(s) | ||
| Deven Soni | 45 | Chairman, President, Chief Executive Officer (Principal Executive Officer) and Director | ||
| Christopher Creatura | 35 | Chief Financial Officer | ||
| Christopher Johnson | 51 | Chief Sales Officer | ||
| David Hackett | 60 | Director | ||
| Jaime Leverton | 45 | Director |
Biographical and certain other information concerning the Company’s officers and directors is set forth below. There are no familial relationships among any of our directors. Except as indicated below, none of our directors is a director in any other reporting companies. None of our directors has been affiliated with any company that has filed for bankruptcy within the last ten years. We are not aware of any proceedings to which any of our directors, or any associate of any such director is a party adverse to us or any of our subsidiaries or has a material interest adverse to us or any of our subsidiaries. Each executive officer serves at the pleasure of the Board of Directors.
Deven Soni is our Chairman, President, Chief Executive Officer and Director and has served in that capacity since May 3, 2024. Mr. Soni, age 45, combines over 20 years of experience in senior management within the investment and technology industries, following a 2-year career as an investment banker at Lazard (2002–2004). From 2006 to 2008, he was an Investment Professional at Goldman Sachs, focusing on technology buyouts and venture capital, and from 2008 to 2010, he held a similar role at Highland Capital Partners. Mr. Soni co-founded Wired Investors (2016–2022), a tech-focused buyout firm, and Acquira (2018–2022), a business acquisition vehicle. He served as Founding COO at Tokens.com (2021–2023), a blockchain infrastructure company, and co-founded Snowball Industries in 2020, an HVAC roll-up. Currently, Mr. Soni is Chairman of the Board at Matador Gold Technologies (2022–Present) and serves on the boards of Snowball Industries (2020–Present), and Polymath Research Inc. (2017–Present). He holds a Bachelor of Science degree in Business Administration from the University of California, Berkeley (1998–2001).
Christopher Creatura is our Chief Financial Officer and has served in that capacity since May 3, 2024. Mr. Creatura, age 35, is a finance professional and investor. He began his career as a consultant at Deloitte (2013–2015). He moved into investment banking at BofA Merrill Lynch (2015–2019) and then private equity at Enduring Ventures (2020–2021). He has since held executive roles at Bluefin Trading (VP of Growth, 2021–2022) and Live Patrol (CFO & CSO, 2022–2024). He has also advised on M&A transactions and capital raises through his firm Conway Merchants (2019–2024). Mr. Creatura serves on the board of The Fitting Room. He is a CPA.
| 41 |
Christopher Johnson, Chief Sales Officer, age 51, combines over 25 years of experience in senior management within the technology and enterprise hardware sectors. Previously, he had been involved in five companies in the enterprise technology industry, holding positions including Channel Sales Manager, Territory Sales Manager, Executive Vice President of Sales, and Director of Business Development. From 2004 through December 2011, Mr. Johnson was the Channel Sales Manager for SMART Modular Technologies, a company focused on high-performance computing and data center products. From February 2017 to May 2018, he was Executive Vice President of Sales for ID Private Equities, a company involved in enterprise hardware and software solutions. From May 2019 to July 2021, he was Director of Business Development at Fasetto, Inc., a technology company specializing in software and hardware solutions for connectivity. Mr. Johnson was also Co-Founder of Sur Technology from 2011 to May 2024, where he led an independent distributor of enterprise-level IT hardware, serving data centers, OEMs, and VARs across global markets. He is currently a Partner at Vertical Data, a technology infrastructure solutions provider that integrates the AI value chain, including GPUaaS, colocation, and next-gen platform deployment. He holds extensive expertise in enterprise technology strategy, global sales, and business development.
David Hackett serves on our Board of Directors and has served in that capacity since July 1, 2024. David Hackett, Director, age 60, combines over 20 years of experience in senior management as a Director and/or Chief Financial Officer. He was previously the CFO of 48North Cannabis Corp., a licensed cannabis producer (TSXV:NRTH); Mavencare Inc., providing personalized home care services to keep seniors safe and independent at home; Coupgon Inc, Canada’s first fully digital grocery coupon solution (sold to a joint venture between Yellow Pages and CGI), and Diversinet Corp., a Nasdaq and TSXV listed company, specializing in the infrastructure that wireless software applications need for secure, confidential and authenticated data exchanges. He is also currently a director of Ayurcann Holdings Corp., a licensed producer under the Cannabis Act (Canada); Polymath Research Inc., a software development company and Belmont House Foundation, a long-term care facility. Mr. Hackett is a CA, CPA and holds an MBA from the Ivey Business School at the Western University.
Jaime Leverton serves on our Board of Directors and has served in that capacity since July 1, 2024. Jaime Leverton, Director, age 47, combines over 24 years of experience in senior management within the technology and digital infrastructure industries. She has held leadership roles at prominent companies, including IBM (2000–2009), Bell Canada (2010–2014), BlackBerry (2014–2016), National Bank of Canada (2016–2017), Cogeco Peer 1 (2017–2019), and eStruxture Data Centers (2019–2020). Most recently, she served as CEO of Nasdaq-listed Hut 8 Mining Corp. (2020–2024), where she led strategic transformation and growth. Ms. Leverton is currently the CEO of Ulys Holdings (2024–Present) and Chairperson of Synteq Digital (2024–Present). She holds a Bachelor of Social Science from the University of Ottawa, an MBA from Dalhousie University, and an ICD.D designation from the Rotman School of Management.
Term of Office
All directors hold office until the next annual meeting of the stockholders of the company and until their successors have been duly elected and qualified. Officers are elected by and serve at the discretion of our Board.
Conflicts of Interest
At times, certain directors and officers of the Company are also, or may become, involved with additional, fiduciary, contractual or other obligations or duties to one or more other entities pursuant to which such officer or director is or will be required to present a business combination opportunity to such entities. In such event, the Company intends to ensure there is no direct conflict of interest.
Code of Business Conduct and Ethics
On September 12, 2024 the Board of Directors adopted a Code of Ethics and Business Conduct which is applicable to our future employees, and which also includes a Code of Ethics for our chief executive and principal financial officers and any persons performing similar functions. A code of ethics is a written standard designed to deter wrongdoing and to promote:
| ● | honest and ethical conduct, | |
| ● | full, fair, accurate, timely and understandable disclosure in regulatory filings and public statements, | |
| ● | compliance with applicable laws, rules and regulations, | |
| ● | the prompt reporting violation of the code, and | |
| ● | accountability for adherence to the code. |
| 42 |
Family Relationships
There are no family relationships among and between the issuer’s directors, officers, persons nominated or chosen by the issuer to become directors or officers, or beneficial owners of more than ten percent of any class of the issuer’s equity securities.
Involvement in Certain Legal Proceedings
From time to time, we may become involved in litigation relating to claims arising out of operations in the normal course of business. Currently there are no legal proceedings, government actions, administrative actions, investigations or claims are currently pending against us or that involve the Company or any of its affiliates which, in the opinion of the management, would require disclosure.
Committees of the Board of Directors
Concurrently with having sufficient members and resources, our directors will increase the number of directors for our board and will establish an audit committee and a compensation committee. We believe that we will need a minimum of five directors to have effective committee systems. The audit committee will review the results and scope of the audit and other services provided by the independent auditors and review and evaluate the system of internal controls. The compensation committee will manage any stock option plan we may establish and review and recommend compensation arrangements for the officers. No final determination has yet been made as to the memberships of these committees or when we will have sufficient members to establish committees. See “Executive Compensation” hereinafter.
We will reimburse all directors for any expenses incurred in attending directors’ meetings provided that we have the resources to pay these fees. We will consider applying for officers’ and directors’ liability insurance at such time when we have the resources to do so.
EXECUTIVE AND DIRECTOR COMPENSATION
The following table summarizes all compensation for fiscal year 2024 earned by our “Executive Officers”. Our Company was formed on May 3, 2024.
| Name and principal position | Year | Salary
($)(1) | Bonus ($) | Stock
Awards ($) | Option
Awards ($)(2) | Nonequity
incentive plan compensation ($) | Nonqualified
deferred compensation earnings ($) | All
Other Compensation ($) | Total ($) | |||||||||||||||||||||||||||
| Deven Soni-Chairman, President and Chief Executive Officer | 2024 | $ | 30,000 | - | 727,500 | - | - | - | 757,500 | |||||||||||||||||||||||||||
| Christopher Creatura-Chief Financial Officer | 2024 | $ | 30,000 | - | 363,750 | - | - | - | 393,750 | |||||||||||||||||||||||||||
| Christopher Johnson-Chief Sales Officer | 2024 | $ | 324,500 | - | 242,500 | - | - | - | 567,000 | |||||||||||||||||||||||||||
(1) Deven Soni and Christopher Creatura received consulting fees. Christopher Johson received commission on sales he originated.
(2) For information regarding the assumptions made in determining the fair value of the granted options please refer to the footnotes to the Company’s audited financial statements included in the filing.
On July 1, 2024, we entered into an employment agreement with Mr. Deven Soni for his services as our Chief Executive Officer and President. The agreement is for a period of 5 years and renews automatically thereafter for subsequent one-year terms. Pursuant to the agreement, Mr. Soni receives a base salary of $120,000 beginning January 1, 2025. He has an opportunity to receive performance-based compensation in the amount of 50% of his base salary, and in no event less than $40,000, based upon the achievement of annual performance goals established by the Board/Compensation
| 43 |
Committee of the Board (the “Compensation Committee”). In addition, Mr. Soni was also granted 1,500,000 options during July of 2024. The options vest ratably over a three-year period (with 1/3rd vesting at each anniversary of the grant date) and do not contain any provision that could cause the exercise price to be lowered. Further, he received a $30,000 consulting fee during the period ended September 30, 2024. He is also eligible to participate in any long-term incentive compensation programs that become available to our executive officers. Mr. Soni has 14 days of paid vacation per calendar year (prorated for partial years) in accordance with the Company’s vacation policies, as in effect from time to time. To the extent permitted under applicable law, Mr. Soni’s vacation time that accrues during any given year may not roll over to a subsequent year. Mr. Soni is further entitled to participate in other benefit plans made available to our employees and executive officers from time to time.
On July 1, 2024, we entered into a consultant agreement with Mr. Christopher Creatura for his services as our Chief Financial Officer. Pursuant to the agreement, Mr. Creatura receives a base fee of $120,000, of which $30,000 was paid during the period ended September 30, 2024. He has an opportunity to receive performance-based compensation in the amount of 50% of his base fee, and in no event less than $40,000, based upon the achievement of annual performance goals established by the Board/Compensation Committee of the Board (the “Compensation Committee”). In addition, Mr. Creatura was also granted 750,000 options during July of 2024. The options vest ratably over a three-year period (with 1/3rd vesting at each anniversary of the grant date) and do not contain any provision that could cause the exercise price to be lowered. He is also eligible to participate in any long-term incentive compensation programs that become available to our executive officers.
On July 1, 2024 we entered into a consultant agreement with Mr. Christopher Johnson for his services as Chief Sales Officer. Pursuant to the agreement, Mr. Johnson receives a base fee of $180,000 beginning January 1, 2025. Additionally, he receives a commission on sales he originates. He has an opportunity to receive performance-based compensation in cash or shares based on gross profit targets. During the period ended September 30, 2024, Mr. Johnson received a $324,000 commission for sales of equipment to customers. In addition, Mr. Johnson was also granted 500,000 options during July of 2024. The options vest ratably over a three-year period (with 1/3rd vesting at each anniversary of the grant date) and do not contain any provision that could cause the exercise price to be lowered. He is also eligible to participate in any long-term incentive compensation programs that become available to our executive officers.
Employment Agreements
The sole employment agreement is with Mr. Soni, our Chief Executive Officer.
Director Compensation
| Name | Year(1) | Fees earned or paid in cash ($) | Stock awards ($) | Option awards ($)(2) | Change in pension value and nonqualified deferred compensation earnings | All other compensation ($) | Total ($) | |||||||||||||||||||||
| David Hackett | 2024 | $ | - | - | 242,500 | - | - | $ | 242,500 | |||||||||||||||||||
| Jaime Leverton | 2024 | $ | - | - | 242,500 | - | - | $ | 242,500 | |||||||||||||||||||
(1) All of the options granted to the Company’s directors were still outstanding as of September 30, 2024.
(2) For information regarding the assumptions made in determining the fair value of the granted options please refer to the footnotes to the Company’s audited financial statements included in the filing.
Equity Compensation Plans
We believe that our ability to grant equity-based awards is a valuable compensation tool that enables us to attract, retain, and motivate our employees, consultants, and directors by aligning their financial interests with those of our stockholders.
On July 1, 2024, the Company’s board of directors approved the Company’s 2024 Equity Incentive Plan (the “Plan”), which was designed to attract, retain and motivate key employees, officers, consultants, and directors of the Company (collectively, the “Eligible Persons”) to promote the success of the Company’s business. The Plan authorizes the award to Eligible Persons of stock options, restricted stock, restricted stock units, or other stock-based awards granted under the Plan. Under the Plan, the Company reserved 7.8 million shares of its stock for issuance to eligible persons. However, no more than 500,000 shares of the Company’s stock may be issued or transferred upon the exercise or settlement of any incentive stock option within the meaning of Section 422 of the Internal Revenue Code.
| 44 |
Outstanding Equity Awards at Year-End
| Option awards | Stock awards | |||||||||||||||||||||||||||||||||
| Name | Number
of securities underlying unexercised options exercisable (#) | Number
of securities underlying unexercised options unexercisable (#) | Equity
incentive plan awards: Number of securities underlying unexercised unearned options (#)(1) | Option exercise price ($) | Option expiration date | Number
of shares or units of stock that have not vested (#) | Market
Value of shares or units of stock that have not vested ($) | Equity
incentive plan awards: Number of unearned shares, units or other rights that have not vested (#) | Equity
incentive plan awards: Market or payout value of unearned shares, units or other rights that have not vested ($) | |||||||||||||||||||||||||
| Deven Soni | - | - | 1,500,000 | $ | 0.05 | July 1, 2034 | - | - | - | - | ||||||||||||||||||||||||
| Christopher Creatura | - | - | 750,000 | $ | 0.05 | July 1, 2034 | - | - | - | - | ||||||||||||||||||||||||
| Christopher Johnson | - | - | 500,000 | $ | 0.05 | July 1, 2034 | - | - | - | - | ||||||||||||||||||||||||
(1) Deven Soni, Christopher Creatura and Christopher Johnson were granted 1,500,000, 750,000 and 500,000 options, respectively, during the fiscal period ended September 30, 2024. These shares vest ratably over a three-year period with each tranche vesting at the anniversary of the grant date.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT (ITEM 11M)
Pursuant to the requirements of Item 403 of Regulation S-K, the Company has provided the security ownership information of certain beneficial owners and management as of March 19, 2025 as follows:
| Title of class(1) | Name and address of beneficial owner | Amount
and nature of beneficial ownership | Percent of class(2) | |||||||
| Common Stock | AASD Capital LLC (Deven Soni) 1887 Whitney Mesa Dr. #9810 Henderson, NV 89014, USA | 10,500,000 | 26 | % | ||||||
| Common Stock | TDK Cashflow Ltd. (Trevor Koverko) 180 University Ave, Suite 6202, Toronto, ON, M5H OA2, Canada | 10,200,000 | 25 | % | ||||||
| Common Stock | Christopher Johnson 13217 Jamboree Road, Tustin, CA, USA 92782 | 3,500,000 | 9 | % | ||||||
(1) Based on a registered list of shareholders of the Company as of the date of the Prospectus.
(2) Beneficial ownership is determined in accordance with Securities and Exchange Commission rules and generally includes voting or investment power with respect to shares of common stock. Shares of common stock subject to options, warrants and convertible securities currently exercisable or convertible, or exercisable or convertible within 60 days, are counted as outstanding for computing the percentage of the person holding such options, warrants or convertible securities but are not counted as outstanding for computing the percentage of any other person. Based on 41,193,052 Common Shares issued and outstanding as of the date of the Prospectus.
SECURITY OWNERSHIP OF MANAGEMENT
| Title of class | Name of beneficial owner | Amount and nature of beneficial ownership | Percent of class(1) | |||||||
| Common Stock | AASD Capital LLC (Deven Soni) | 10,500,000 | 26 | % | ||||||
| Common Stock | Christopher Johnson | 3,500,000 | 9 | % | ||||||
| Common Stock | Christopher Creatura | 1,600,000 | 4 | % | ||||||
| Common Stock | David Hackett | 1,000,000 | 2 | % | ||||||
| Common Stock | Directors and Executive Officers as a group | 16,600,000 | 41 | % | ||||||
(1) Beneficial ownership is determined in accordance with Securities and Exchange Commission rules and generally includes voting or investment power with respect to shares of common stock. Shares of common stock subject to options, warrants and convertible securities currently exercisable or convertible, or exercisable or convertible within 60 days, are counted as outstanding for computing the percentage of the person holding such options, warrants or convertible securities but are not counted as outstanding for computing the percentage of any other person. Based on, 41,193,052 Common Shares issued and outstanding as of the date of the Prospectus.
| 45 |
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
We have not yet adopted written policies and procedures for the review of any transaction, arrangement or relationship between us and one of our executive officers, directors, director nominees or 5% or greater stockholders (or their immediate family members), each of whom we refer to as a “related person,” in which such related person has a direct or indirect material interest. However, Mr. Soni reports related party transactions to our legal counsel. We believe the terms obtained or consideration that we paid or received, as applicable, in connection with the transactions described below were comparable to or better than terms available or the amounts that would be paid or received, as applicable, in arm’s-length transactions.
Except as set forth below there have been no related party transactions since our inception and there are no currently proposed transaction, in which we were or are to be a participant and the amount involved exceeded or exceeds the lesser of $120,000 or one percent of the average of our total assets at year-end for the last two completed fiscal years and in which any related person had or will have a direct or indirect material interest (other than compensation described under “Executive Compensation”).
We intend to adopt a policy that calls for any proposed related party transaction to be reviewed and, if deemed appropriate, approved by a governance committee comprised of independent directors once we are in a position to expand our board of directors.
Our Chairman, President, and Chief Executive Officer is Mr. Soni.
Our principal office and mailing address is 1980 Festival Plaza Drive Suite 300, Las Vegas, NV, 89135.
Director Independence
Our board consists of three directors. We intend to expand the board, establish committees comprised of independent directors and maintain a majority of independent directors in the future.
The description below of our capital stock and provisions of our amended and restated certificate of incorporation and bylaws are summaries and are qualified by reference to the amended and restated certificate of incorporation and bylaws, which are filed as exhibits to the registration statement of which this prospectus is part. You should read the provisions of our certificate of incorporation, certificate of designations and our bylaws as currently in effect for provisions that may be important to you.
We were incorporated under the laws of the State of Nevada on May 3, 2024. We are authorized to issue 100,000,000 shares of common stock, $0.0001 par value per share.
Common Stock
Our articles of incorporation authorize the issuance of 100,000,000 shares of common stock, $0.0001 par value per share. As of the date of this registration statement, there are 41,193,052 shares of our common stock issued and outstanding held by 98 shareholders of record.
| 46 |
Each share of common stock entitles the holder to one vote, either in person or by proxy, at meetings of shareholders. The holders of our common stock:
| ● | have equal ratable rights to dividends from funds legally available if and when declared by our Board of Directors; |
| ● | are entitled to share ratably in all of our assets available for distribution to holders of common stock upon liquidation, dissolution or winding up of our affairs; |
| ● | do not have preemptive, subscription or conversion rights and there is no redemption or sinking fund provisions or rights; and |
| ● | are entitled to one non-cumulative vote per share on all matters on which stockholders may vote except for voting for the election of directors. |
Non-Cumulative Voting
Holders of our common stock do not have cumulative voting rights. In companies with cumulative voting rights holders of more than 50% of the outstanding shares, voting for the election of directors can elect all of the directors to be elected, if they so choose, and, in such event, the holders of the remaining shares will not be able to elect any directors.
We refer you to the Bylaws and our Articles of Incorporation and the applicable statutes of the State of Nevada for a more complete description of the rights and liabilities of holders of our securities.
Preemptive Rights
Holders of Common Stock have no preemptive, conversion or subscription rights and there is no redemption or sinking fund provisions applicable to the common stock. The rights, preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate in the future.
Cash Dividends
As of the date of this prospectus, we have not declared or paid any cash dividends to stockholders. The declaration of any future cash dividend will be at the discretion of our Board of Directors and will depend upon our earnings, if any, our capital requirements and financial position, our general economic conditions, and other pertinent conditions. It is our present intention not to pay any cash dividends in the foreseeable future, but rather to reinvest earnings, if any, in our business operations.
Stock Transfer Agent
Our transfer agent is Colonial Strock Transfer, 7840 S 700 E, Sandy, UT 84070, having a telephone number of 801-355-5740.
Anti-Takeover Effects of Various Provisions of Nevada Law, Our Articles of Incorporation and Our Bylaws
Provisions of the NRS and our articles of incorporation and bylaws could make it more difficult to acquire the Company by means of a tender offer, a proxy contest or otherwise, or to remove incumbent officers and directors. These provisions, which are summarized below, may discourage certain types of coercive takeover practices and takeover bids that our board of directors may consider inadequate and to encourage persons seeking to acquire control of the Company to first negotiate with our board of directors. The Company believes that the benefits of increased protection of our ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure it outweigh the disadvantages of discouraging takeover or acquisition proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.
| 47 |
Anti-Takeover Effects of Provisions of Nevada State Law
We may be, or in the future we may become, subject to Nevada’s control share laws. A corporation is subject to Nevada’s control share law if it has more than 200 stockholders, at least 100 of whom are stockholders of record and residents of Nevada, and if the corporation does business in Nevada, including through an affiliated corporation. This control share law may have the effect of discouraging corporate takeovers.
The control share law focuses on the acquisition of a “controlling interest,” which means the ownership of outstanding voting shares that would be sufficient, but for the operation of the control share law, to enable the acquiring person to exercise the following proportions of the voting power of the corporation in the election of directors: (i) one-fifth or more but less than one-third; (ii) one-third or more but less than a majority; or (iii) a majority or more. The ability to exercise this voting power may be direct or indirect, as well as individual or in association with others.
The effect of the control share law is that an acquiring person, and those acting in association with that person, will obtain only such voting rights in the control shares as are conferred by a resolution of the stockholders of the corporation, approved at a special or annual meeting of stockholders. The control share law contemplates that voting rights will be considered only once by the other stockholders. Thus, there is no authority to take away voting rights from the control shares of an acquiring person once those rights have been approved. If the stockholders do not grant voting rights to the control shares acquired by an acquiring person, those shares do not become permanent non-voting shares. The acquiring person is free to sell the shares to others. If the buyer or buyers of those shares themselves do not acquire a controlling interest, the shares are not governed by the control share law
If control shares are accorded full voting rights and the acquiring person has acquired control shares with a majority or more of the voting power, a stockholder of record, other than the acquiring person, who did not vote in favor of approval of voting rights, is entitled to demand fair value for such stockholder’s shares.
In addition to the control share law, Nevada has a business combination law, which prohibits certain business combinations between Nevada publicly traded corporations and “interested stockholders” for two years after the interested stockholder first becomes an interested stockholder, unless the corporation’s board of directors approves the combination in advance. For purposes of Nevada law, an interested stockholder is any person who is: (i) the beneficial owner, directly or indirectly, of 10% or more of the voting power of the outstanding voting shares of the corporation, or (ii) an affiliate or associate of the corporation and at any time within the previous two years was the beneficial owner, directly or indirectly, of 10% or more of the voting power of the then-outstanding shares of the corporation. The definition of “business combination” contained in the statute is sufficiently broad to cover virtually any kind of transaction that would allow a potential acquirer to use the corporation’s assets to finance the acquisition or otherwise to benefit its own interests rather than the interests of the corporation and its other stockholders.
The effect of Nevada’s business combination law is to potentially discourage parties interested in taking control of the Company from doing so if it cannot obtain the approval of our board of directors.
Prior to this offering, there has been no market for our common stock. Future sales of substantial amounts of our common stock in the public market or the perception that such sales might occur could adversely affect market prices prevailing from time to time. Furthermore, because only a limited number of shares will be available for sale shortly after this offering due to existing contractual and legal restrictions on resale as described below, there may be sales of substantial amounts of our common stock in the public market after the restrictions lapse. This may adversely affect the prevailing market price of our common stock and our ability to raise equity capital in the future.
| 48 |
The selling stockholders will sell the shares being registered under this prospectus at $0.50 per share. If we succeed in securing quotation of our common stock on the OTCQX® Best Market or the OTCQB® Venture Market and a market for our shares develops, the selling stockholders may sell their shares from time to time at the prevailing market price at the time of offer and sale, or at prices related to such prevailing market prices or in negotiated transactions or a combination of such methods of sale directly or through brokers. A selling stockholder may use any one or more of the following methods when selling the shares:
| ● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | |
| ● | block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; | |
| ● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; | |
| ● | an exchange distribution in accordance with the rules of the applicable exchange; | |
| ● | privately negotiated transactions; | |
| ● | settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part; | |
| ● | in transactions through broker-dealers that agree with the selling stockholders to sell a specified number of such securities at a stipulated price per security; | |
| ● | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; | |
| ● | a combination of any such methods of sale; or, | |
| ● | any other method permitted pursuant to applicable law. |
If the selling stockholders sell shares through underwriters, the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions.
The selling stockholders may also sell shares under Rule 144 of the Securities Act, if available, rather than under this prospectus. The selling stockholders shall have the sole and absolute discretion not to accept any purchase offer or make any sale of shares if it deems the purchase price to be unsatisfactory at any particular time.
The selling stockholders may also engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades.
The selling stockholders or their respective pledgees, donees, transferees or other successors in interest, may also sell the shares directly to market makers acting as principals and/or broker-dealers acting as agents for themselves or their customers. Such broker-dealers may receive compensation in the form of discounts, concessions or commissions from the selling stockholders and/or the purchasers of shares for whom such broker-dealers may act as agents or to whom they sell as principal or both, which compensation as to a particular broker-dealer might be in excess of customary commissions. Market makers and block purchasers purchasing the shares will do so for their own account and at their own risk. It is possible that a selling stockholder will attempt to sell shares in block transactions to market makers or other purchasers at a price per share which may be below the then existing market price. We cannot assure you that all or any of the shares offered in this prospectus will be issued to, or sold by, the selling stockholders.
Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling stockholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved. Any profits on the shares by a broker-dealer acting as principal might be deemed to be underwriting discounts or commissions under the Securities Act. Discounts, concessions, commissions and similar selling expenses, if any, attributable to the sale of the shares will be borne by a selling stockholder. The selling stockholders may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of the shares if liabilities are imposed on that person under the Securities Act.
| 49 |
In connection with the sale of the shares, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of our common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares short and deliver shares of our common stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or pledge the shares to broker-dealers that in turn may sell such shares.
The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus.
The selling stockholders also may transfer the shares in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgees, transferees or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The selling stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be an “underwriter” within the meaning of the Securities Act in connection with such sales. In such event, any commissions paid, or any discounts or concessions allowed to, such broker-dealers or agents and any profit realized on the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers. Under the securities laws of some states, the shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with. There can be no assurance that any selling stockholder will sell any or all of the shares registered pursuant to the registration statement, of which this prospectus forms a part.
Each selling stockholder has informed us that it does not have any agreement or understanding, directly or indirectly, with any person to distribute the shares. None of the selling stockholders who are affiliates of broker-dealers, other than the initial purchasers in private transactions, purchased the shares outside of the ordinary course of business or, at the time of the purchase of the shares, had any agreements, plans or understandings, directly or indirectly, with any person to distribute the securities.
We will pay all fees and expenses incident to the registration of the shares. We are not obligated to pay any of the expenses of any attorney or other advisor engaged by a selling stockholder.
If we are notified by any selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of the shares, we will file a post-effective amendment to the registration statement. If the selling stockholders use this prospectus for any sale of the shares, they will be subject to the prospectus delivery requirements of the Securities Act.
The anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of the shares and activities of the selling stockholders, which may limit the timing of purchases and sales of any of the shares by the selling stockholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares to engage in passive market-making activities with respect to the shares. Passive market making involves transactions in which a market maker acts as both our underwriter and as a purchaser of our common stock in the secondary market. All of the foregoing may affect the marketability of the shares and the ability of any person or entity to engage in market-making activities with respect to the shares.
Once sold under the registration statement, of which this prospectus forms a part, the shares will be freely tradable in the hands of persons other than our affiliates.
| 50 |
State Securities – Blue Sky Laws
There is no established public market for our common stock, and there can be no assurance that any market will develop in the foreseeable future. Transfer of our common stock may also be restricted under the securities or securities regulations laws promulgated by various states and foreign jurisdictions, commonly referred to as “Blue Sky” laws. Absent compliance with such individual state laws, the shares may not be traded in such jurisdictions. Because the securities registered hereunder have not been registered for resale under the blue-sky laws of any state, the holders of such shares and persons who desire to purchase them in any trading market that might develop in the future, should be aware that there may be significant state blue-sky law restrictions upon the ability of investors to sell the securities and of purchasers to purchase the securities. Accordingly, investors may not be able to liquidate their investments and should be prepared to hold the common stock for an indefinite period of time.
Rule 144
In general, under Rule 144 as currently in effect, once we have been subject to public company reporting requirements for at least 90 days, a person who is not deemed to have been one of our affiliates for purposes of the Securities Act at any time during the 90 days preceding a sale and who has beneficially owned the shares proposed to be sold for at least six months, including the holding period of any prior owner other than our affiliates, is entitled to sell those shares without complying with the manner of sale, volume limitation or notice provisions of Rule 144, subject to compliance with the public information requirements of Rule 144. If such a person has beneficially owned the shares proposed to be sold for at least one year, including the holding period of any prior owner other than our affiliates, then that person would be entitled to sell those shares without complying with any of the requirements of Rule 144.
In general, under Rule 144, as currently in effect, our affiliates or persons selling shares on behalf of our affiliates are entitled to sell upon expiration of the lock-up agreements described below, within any three-month period, a number of shares that does not exceed the greater of:
| ● | 1% of the number of shares of our common stock then outstanding, which will equal approximately shares immediately after this offering; or | |
| ● | the average weekly trading volume of our common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to that sale. |
Sales under Rule 144 by our affiliates or persons selling shares on behalf of our affiliates are also subject to certain manner of sale provisions and notice requirements and to the availability of current public information about us.
Regulation S
Regulation S under the Securities Act provides that securities owned by any person may be sold without registration in the United States, provided that the sale is affected in an “offshore transaction” and no “directed selling efforts” are made in the United States (as these terms are defined in Regulation S), subject to certain other conditions. In general, this means that our shares may be sold in some manner outside the United States without requiring registration in the United States.
| 51 |
Rule 701
Rule 701 generally allows a stockholder who purchased shares of our common stock pursuant to a written compensatory plan or contract and who is not deemed to have been an affiliate of our company during the immediately preceding 90 days to sell these shares in reliance upon Rule 144, but without being required to comply with the public information, holding period, volume limitation or notice provisions of Rule 144. Rule 701 also permits affiliates of our company to sell their Rule 701 shares under Rule 144 without complying with the holding period requirements of Rule 144. All holders of Rule 701 shares, however, are required by that rule to wait until 90 days after the date of this prospectus before selling those shares pursuant to Rule 701 and are subject to the lock-up agreements described below.
Lock-Up Agreements
Pursuant to certain “lock-up” agreements, our executive officers, directors and all of our existing stockholders and holders prior to this offering holding five percent (5%) or more of our common stock securities exercisable for or convertible into our common stock outstanding immediately upon the closing of this offering, have agreed, subject to certain exceptions, not to offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of or announce the intention to otherwise dispose of, or enter into any swap, hedge or similar agreement or arrangement that transfers, in whole or in part, the economic risk of ownership of, directly or indirectly, engage in any short selling of any common stock or securities convertible into or exchangeable or exercisable for any common stock, whether currently owned or subsequently acquired, without the prior written consent of the representative of the underwriters, for a period of six (6) months following the closing of this offering.
In addition, our company has agreed, subject to certain exceptions, not to offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of or announce the intention to otherwise dispose of, or enter into any swap, hedge or similar agreement or arrangement that transfers, in whole or in part, the economic risk of ownership of, directly or indirectly, engage in any short selling of any common stock or securities convertible into or exchangeable or exercisable for any common stock, whether currently owned or subsequently acquired, without the prior written consent of the representative of the underwriters, for a period of six (6) months following the closing of this offering.
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES TO U.S. AND NON-U.S. HOLDERS
The following is a summary of the material U.S. federal income tax considerations relating to the ownership and / or disposition of our Common Stock in this offering, which we refer to collectively as our securities, but is for general information purposes only and does not purport to be a complete analysis of all the potential tax considerations. This summary is based upon the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), final, temporary and proposed Treasury regulations promulgated thereunder, administrative rulings and pronouncements, and judicial decisions, all in effect as of the date hereof. These authorities may change, possibly retroactively, resulting in U.S. federal income and estate tax consequences different from those set forth below. There can be no assurance that the Internal Revenue Service (the “IRS”) will not challenge one or more of the tax consequences described herein, and we have not obtained, and do not intend to obtain, an opinion of counsel or ruling from the IRS with respect to the U.S. federal income tax considerations relating to the purchase, ownership or disposition of our securities.
This summary does not address any alternative minimum tax considerations, any considerations regarding the Medicare tax, any considerations regarding the tax on net investment income, or the tax considerations arising under the laws of any state, local or non-U.S. jurisdiction, or under any non-income tax laws, including U.S. federal gift and estate tax laws, except to the limited extent set forth below. In addition, this summary does not address all of the tax consequences that may be relevant to investors, nor does it address tax considerations applicable to an investor’s particular circumstances or to investors that may be subject to special tax rules, including, without limitation:
| ● | banks, insurance companies, or other financial institutions; | |
| ● | tax-exempt entities or governmental organizations, including agencies or instrumentalities thereof; | |
| ● | regulated investment companies and real estate investment trusts; | |
| ● | controlled foreign corporations, passive foreign investment companies, and corporations that accumulate; earnings to avoid U.S. federal income tax; | |
| ● | brokers or dealers in securities or currencies | |
| ● | traders in securities that elect to use a mark-to-market method of accounting for their securities holdings; | |
| ● | persons that own, or are deemed to own, more than five percent of our capital stock (except to the extent specifically set forth below); | |
| ● | tax-qualified retirement plans; | |
| ● | certain former citizens or long-term residents of the United States; | |
| ● | partnerships or entities or arrangements classified as partnerships for U.S. federal income tax purposes and other pass-through entities including S corporations and trusts (and any investors therein); | |
| ● | persons who hold our securities as a position in a hedging transaction, “straddle,” “conversion transaction” or other risk reduction transaction or integrated investment; | |
| ● | persons who do not hold our securities as a capital asset within the meaning of Section 1221 of the Code; or | |
| ● | persons deemed to sell our securities under the constructive sale provisions of the Code, or persons holding the securities as part of a “straddle,” hedge, conversion transaction, integrated transaction or other similar transaction. |
In addition, if a partnership (or entity or arrangement classified as a partnership for U.S. federal income tax purposes) holds our securities, the tax treatment of a partner generally will depend on the status of the partner and upon the activities of the partnership. Accordingly, partnerships that hold our securities, and partners in such partnerships, should consult their tax advisors.
| 52 |
You are urged to consult your own tax advisors with respect to the application of the U.S. federal income tax laws to your particular situation, as well as any tax consequences of the purchase, ownership and disposition of our securities arising under the U.S. federal estate or gift tax laws or under the laws of any state, local, non-U.S., or other taxing jurisdiction or under any applicable tax treaty.
Consequences to U.S. Holders
The following is a summary of the U.S. federal income tax consequences that will apply to a U.S. holder of our securities. For purposes of this discussion, you are a U.S. holder if, for U.S. federal income tax purposes, you are a beneficial owner of our securities, other than a partnership, that is:
| ● | an individual citizen or resident of the United States; | |
| ● | a corporation or other entity taxable as a corporation created or organized in the United States or under the laws of the United States, any State thereof or the District of Columbia; | |
| ● | an estate or trust whose income is subject to U.S. federal income tax regardless of its source; or | |
| ● | a trust (x) whose administration is subject to the primary supervision of a U.S. court, and which has one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code) who have the authority to control all substantial decisions of the trust or (y) which has made a valid election to be treated as a “United States person.” |
Dividends
As described in the section titled “Description of Securities,” we have never declared or paid cash dividends on our Common Stock and do not anticipate paying any dividends on our Common Stock in the foreseeable future. However, if we do make distributions in cash or other property on our Common Stock, those payments will constitute dividends for U.S. tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. To the extent our distributions exceed both our current and our accumulated earnings and profits, the excess will constitute a return of capital that will first reduce your basis in our Common Stock, but not below zero, and then will be treated as gain from the sale or other disposition of stock as described below under “Sale, Exchange or Other Taxable Disposition of Common Stock.”
Dividend income may be taxed to an individual U.S. holder at rates applicable to long-term capital gains, provided that a minimum holding period and other limitations and requirements are satisfied with certain exceptions. Any dividends that we pay to a U.S. holder that is a corporation will qualify for the dividends received deduction if the requisite holding period is satisfied, subject to certain limitations. U.S. holders should consult their own tax advisors regarding the holding period and other requirements that must be satisfied in order to qualify for the reduced tax rate on dividends or the dividends-received deduction.
Sale, Exchange, or Other Taxable Disposition of Common Stock
A U.S. holder will generally recognize capital gain or loss on the sale, exchange, or other taxable disposition of our Common Stock. The amount of gain or loss will equal the difference between the amount realized on the sale and such U.S. holder’s adjusted tax basis in such Common Stock. The amount realized will include the amount of any cash and the fair market value of any other property received in exchange for such Common Stock. A U.S. holder’s adjusted tax basis in its Common Stock will generally equal the U.S. holder’s acquisition cost or purchase price, less any prior distributions treated as a return of capital. Gain or loss will be long-term capital gain or loss if the U.S. holder has held the Common Stock for more than one year. Long-term capital gains of non-corporate U.S. holders are generally taxed at preferential rates. The deductibility of capital losses is subject to certain limitations.
| 53 |
Information Reporting and Backup Withholding
In general, information reporting requirements may apply to dividends paid to a U.S. holder and to the proceeds of the sale or other disposition of our Common Stock, unless the U.S. holder is an exempt recipient. Backup withholding may apply to such payments if the U.S. holder fails to provide a taxpayer identification number, a certification of exempt status or has been notified by the IRS that it is subject to backup withholding (and such notification has not been withdrawn).
Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a U.S. holder’s U.S. federal income tax liability provided the required information is timely furnished to the IRS.
Unearned Income Medicare Tax.
A 3.8% Medicare contribution tax will generally apply to all or some portion of the net investment income of a U.S. holder that is an individual with adjusted gross income that exceeds a threshold amount ($200,000, or $250,000 if married filing jointly).
Consequences to Non-U.S. Holders
The following is a summary of the U.S. federal income tax consequences that will apply to a non-U.S. holder of our securities. A “non-U.S. holder” is a beneficial owner of our securities (other than a partnership or an entity or arrangement treated as a partnership for U.S. federal income tax purposes) that, for U.S. federal income tax purposes, is not a U.S. holder. The term “non-U.S. holder” includes:
| ● | a non-resident alien individual (other than certain former citizens and residents of the U.S. subject to U.S. tax as expatriates); | |
| ● | a foreign corporation; | |
| ● | an estate or trust that is not a U.S. holder, or | |
| ● | any other Person that is not a U.S. holder. |
but generally does not include an individual who is present in the U.S. for 183 days or more or who is otherwise treated as a U.S. resident in the taxable year. If you are such an individual, you should consult your tax advisor regarding the U.S. federal income tax consequences of the acquisition, ownership or sale or other disposition of our securities.
Distributions
Subject to the discussion below regarding effectively connected income, any distribution paid to a non-U.S. holder, to the extent paid out of future earnings and profits (as determined under U.S. federal income tax principles) generally will constitute a dividend for U.S. federal income tax purposes and, provided such dividends are not effectively connected with the non-U.S. holder’s conduct of a trade or business within the U.S., will be subject to U.S. withholding tax either at a rate of 30% of the gross amount of the dividend or such lower rate as may be specified by an applicable income tax treaty. In order to receive a reduced treaty rate, a non-U.S. holder must provide us with an IRS Form W-8BEN, IRS Form W-8BEN-E or other applicable IRS Form W-8 properly certifying qualification for the reduced rate. These forms must be provided prior to the payment of dividends and must be updated periodically. A non-U.S. holder eligible for a reduced rate of U.S. withholding tax pursuant to an income tax treaty should consult with its individual tax advisor to determine if you may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. If a non-U.S. holder holds our securities through a financial institution or other agent acting on the non-U.S. holder’s behalf, the non-U.S. holder will be required to provide appropriate documentation to the agent, which then may be required to provide certification to us or our paying agent, either directly or through other intermediaries.
| 54 |
Dividends received by a non-U.S. holder that are effectively connected with its conduct of a U.S. trade or business (and, if required by an applicable income tax treaty, attributable to a permanent establishment or fixed base maintained by the non-U.S. holder in the United States) are generally exempt from such withholding tax if the non-U.S. holder satisfies certain certification and disclosure requirements. In order to obtain this exemption, the non-U.S. holder must provide us with an IRS Form W-8ECI or other applicable IRS Form W-8 properly certifying such exemption. Such effectively connected dividends, although not subject to withholding tax, are taxed at the same graduated U.S. federal income tax rates applicable to U.S. holders, net of certain deductions and credits. In addition, dividends received by a corporate non-U.S. holder that are effectively connected with its conduct of a U.S. trade or business may also be subject to a branch profits tax at a rate of 30% or such lower rate as may be specified by an applicable income tax treaty. Non-U.S. holders should consult their own tax advisors regarding any applicable tax treaties that may provide for different rules.
Any distribution not constituting a dividend will be treated first as reducing (but not below zero) the Non-U.S. holder’s adjusted tax basis in its Common Stock and, to the extent such distribution exceeds the Non-U.S. holder’s adjusted tax basis, as gain realized from the sale or other disposition of the Common Stock, which will be treated as described under “Non-U.S. Holders — Gain on Sale, Exchange or Other Taxable Disposition of Common Stock” below.
Gain on Sale, Exchange or Other Taxable Disposition of Common Stock
Subject to the discussion below regarding backup withholding and foreign accounts, a non-U.S. holder generally will not be required to pay U.S. federal income tax on any gain realized upon the sale, exchange or other taxable disposition of our Common Stock unless:
| ● | the gain is effectively connected with the non-U.S. holder’s conduct of a U.S. trade or business (and, if required by an applicable income tax treaty, the gain is attributable to a permanent establishment or fixed base maintained by the non-U.S. holder in the United States); or, | |
| ● | the non-U.S. holder is a non-resident alien individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met. |
If the non-U.S. holder is described in the first bullet above, it will be required to pay tax on the net gain derived from the sale, exchange or other taxable disposition under regular graduated U.S. federal income tax rates, and a corporate non-U.S. holder described in the first bullet above also may be subject to the branch profits tax at a rate of 30%, or (in each case) such lower rate as may be specified by an applicable income tax treaty. An individual non-U.S. holder described in the second bullet above will be required to pay a flat 30% tax (or such lower rate specified by an applicable income tax treaty) on the gain derived from the sale, exchange or other taxable disposition, which gain may be offset by U.S. source capital losses for the year (provided the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses). Non-U.S. holders should consult their own tax advisors regarding any applicable income tax or other treaties that may apply.
Federal Estate Tax
Common stock beneficially owned by an individual who is not a citizen or resident of the United States (as defined for U.S. federal estate tax purposes) at the time of their death will generally be includable in the decedent’s gross estate for U.S. federal estate tax purposes. Such shares, therefore, may be subject to U.S. federal estate tax, unless an applicable estate tax treaty provides otherwise.
Backup Withholding and Information Reporting
Generally, we must report annually to the IRS the amount of dividends paid to you, your name and address and the amount of tax withheld, if any. A similar report will be sent to you. Pursuant to applicable income tax treaties or other agreements, the IRS may make these reports available to tax authorities in your country of residence. A Non-U.S. holder may have to comply with certification procedures to establish that it is not a United States person in order to avoid information reporting and backup withholding requirements. The certification procedures required to claim a reduced rate of withholding under a treaty generally will satisfy the certification requirements necessary to avoid the backup withholding as well for example, by properly certifying your non-U.S. status on an IRS Form W-8BEN or IRS Form W-8BEN-E or other applicable IRS Form W-8. Notwithstanding the foregoing, backup withholding and information reporting may apply if either we or our paying agent has actual knowledge, or reason to know, that you are a U.S. person.
Backup withholding is not an additional tax; rather, the U.S. federal income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund or credit may generally be obtained from the IRS, provided that the required information is furnished to the IRS in a timely manner.
| 55 |
Foreign Account Tax Compliance
The Foreign Account Tax Compliance Act (“FATCA”) generally imposes withholding tax at a rate of 30% on dividends on and gross proceeds from the sale or other disposition of our securities paid to a “foreign financial institution” (as specially defined under these rules), unless any such institution (1) enters into, and complies with, an agreement with the IRS to report, on an annual basis, information with respect to interests in, and accounts maintained by, the institution that are owned by certain U.S. persons and by certain non-U.S. entities that are wholly or partially owned by U.S. persons and to withhold on certain payments, or (2) if required under an intergovernmental agreement between the United States and an applicable foreign country, reports such information to its local tax authority, which will exchange such information with the U.S. authorities. An intergovernmental agreement between the United States and an applicable foreign country may modify these requirements. Accordingly, the entity through which our securities are held will affect the determination of whether such withholding is required. Similarly, dividends in respect of our securities held by an investor that is a non-financial non-U.S. entity that does not qualify under certain exceptions will generally be subject to withholding at a rate of 30%, unless such entity either (1) certifies to us or the applicable withholding agent that such entity does not have any “substantial United States owners” or (2) provides certain information regarding the entity’s “substantial United States owners,” which will in turn be provided to the U.S. Department of Treasury. Non-U.S. holders should consult their own tax advisors regarding the possible implications of this legislation on their investment in our securities.
Each prospective shareholder should consult its own tax advisor regarding the particular U.S. federal, state and local and non-U.S. tax consequences of purchasing, owning and disposing of our securities, including the consequences of any proposed changes in applicable laws.
The validity of the Common Stock offered by us in this offering will be passed upon for us by Lucosky Brookman LLP, Woodbridge, New Jersey.
BCRG Group, Inc., an independent registered public accounting firm, has audited our financial statements as of and for the year ended September 30, 2024, as set forth in their report. We have included our financial statements in the prospectus and elsewhere in the registration statement in reliance on the report of BCRG Group, Inc., given on their authority as experts in accounting and auditing in giving said reports.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES LIABILITIES
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons, we have been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act of 1933, as amended and is, therefore, unenforceable. In addition, indemnification may be limited by state securities laws.
We have not previously been required to comply with the reporting requirements of the Exchange Act. We have filed with the SEC a registration statement on Form S-1 to register the securities offered by this prospectus. For future information about us and the securities offered under this prospectus, you may refer to the exhibits filed as part of the registration statement. In addition, after the effective date of this prospectus, we will be required to file annual, quarterly and current reports, or other information with the SEC as proved by the Securities Exchange Act. Our The SEC maintains a website that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC at the following address: http://www.sec.gov. Our SEC filings are available to the public through the SEC Internet site.
| 56 |
Part I – FINANCIAL INFORMATION
Item 1. Financial Statements
VERTICAL DATA INC.
INDEX TO UNAUDITED INTERIM FINANCIAL STATEMENTS
AS OF AND FOR THE QUARTER ENDED DECEMBER 31, 2024
| F-1 |
BALANCE SHEETS
(UNAUDITED AS OF DECEMBER 31, 2024 AND AUDITED AS OF SEPTEMBER 30, 2024)
| December 31, | September 30, | |||||||
| 2024 | 2024 | |||||||
| ASSETS | ||||||||
| Current assets: | ||||||||
| Cash | $ | 1,595,370 | $ | 427,722 | ||||
| Other current assets | 358,123 | 664,000 | ||||||
| Prepaid expenses | 66,563 | 29,989 | ||||||
| Total current assets | 2,020,056 | 1,121,711 | ||||||
| Property and equipment, net | 1,262 | 1,329 | ||||||
| Total assets | 2,021,318 | 1,123,040 | ||||||
| LIABILITIES AND EQUITY | ||||||||
| Current liabilities: | ||||||||
| Accrued liabilities | $ | 169,005 | $ | 143,115 | ||||
| Other Current Liabilities | 376,328 | 224,000 | ||||||
| Total current liabilities | 545,333 | 367,115 | ||||||
| Total liabilities | 545,333 | 367,115 | ||||||
| Equity: | ||||||||
| Common stock, $ 0.0001 par value, 100,000,000 shares authorized; 40,583,052 and 38,397,052 shares issued and outstanding at December 31, 2024 and September 30, 2024, respectively. | 4,058 | 3,839 | ||||||
| Additional paid in capital | 2,659,984 | 1,102,685 | ||||||
| Accumulated deficit | (1,188,057 | ) | (350,599 | ) | ||||
| Total equity (deficit) | 1,475,985 | 755,925 | ||||||
| Total liabilities and equity | $ | 2,021,318 | $ | 1,123,040 | ||||
The accompanying notes are an integral part of these unaudited financial statements.
| F-2 |
STATEMENT OF OPERATIONS
(UNAUDITED)
| Three Months Ended December 31, 2024 (1) | ||||
| Revenue | $ | 3,666,000 | ||
| Cost of revenue | 3,598,000 | |||
| Gross profit | 68,000 | |||
| Operating expenses: | ||||
| General and administrative | 905,458 | |||
| Total operating expenses | 905,458 | |||
| Loss from operations | (837,458 | ) | ||
| Net (loss) income | $ | (837,458 | ) | |
| Earnings (loss) per common share: | ||||
| Basic and diluted | $ | (0.02 | ) | |
| Weighted average common shares outstanding: | ||||
| Basic and diluted | 39,020,726 | |||
(1) The Company was incepted May 3, 2024 and therefore no comparable prior period information has been provided
The accompanying notes are an integral part of these financial statements.
| F-3 |
STATEMENT OF SHAREHOLDERS’ EQUITY
(UNAUDITED)
| Common Stock | Accumulated | |||||||||||||||||||
| # of Shares | Amount | APIC | Deficit | Total | ||||||||||||||||
| September 30, 2024 | 38,397,052 | 3,839 | 1,102,685 | (350,599 | ) | 755,925 | ||||||||||||||
| Issuance of common stock | 2,186,000 | 219 | 1,093,181 | - | 1,093,400 | |||||||||||||||
| Stock-based compensation | - | - | 464,118 | - | 464,118 | |||||||||||||||
| Net loss | - | - | - | (837,458 | ) | (837,458 | ) | |||||||||||||
| December 31, 2024 | 40,583,052 | 4,058 | 2,659,984 | (1,188,057 | ) | 1,475,985 | ||||||||||||||
The accompanying notes are an integral part of these unaudited financial statements.
| F-4 |
STATEMENT OF CASH FLOWS
(UNAUDITED)
| Three Months Ended December 31, 2024 (1) | ||||
| Cash flows from operating activities: | ||||
| Net (loss) income | (837,458 | ) | ||
| Adjustments to reconcile net (loss) income to net cash used in operating activities | ||||
| Stock based compensation | 464,118 | |||
| Depreciation expense | 67 | |||
| Changes in assets and liabilities: | ||||
| Prepaid expenses | (36,574 | ) | ||
| Other current assets | 305,877 | |||
| Accrued liabilities | 25,890 | |||
| Other current liabilities | 152,328 | |||
| Net cash from (used) in operating activities | 74,248 | |||
| Cash flows from investing activities: | ||||
| Purchase of property and equipment | - | |||
| Net cash used in investing activities | - | |||
| Cash flows from financing activities: | ||||
| Sale of common stock, net of fees and costs | 1,093,400 | |||
| Net cash provided by financing activities | 1,093,400 | |||
| Net change in cash and cash equivalents | 1,167,648 | |||
| Cash and cash equivalents, beginning of period | 427,722 | |||
| Cash and cash equivalents, end of period | 1,595,370 | |||
| Supplemental disclosures of cash flow information: | ||||
| Cash paid for interest | - | |||
| Cash paid for taxes | - | |||
(1) The Company was incepted May 3, 2024 and therefore no comparable prior period information has been provided
The accompanying notes are an integral part of these unaudited financial statements.
| F-5 |
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. NATURE OF OPERATIONS
Vertical Data Inc. (the “Company”) was incorporated in Nevada on May 3, 2024 and has a fiscal year-end of September 30. 2024. The Company’s current service to its customers is comprised of the sale of artificial intelligence related hardware. The Company plans to expand its service offerings in the future to include technology consulting, design and engineering, project management, systems integration, system installation and facilities management. The Company’s corporate office is located in Las Vegas, Nevada.
2.SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND NEW ACCOUNTING STANDARDS
The accompanying notes to the Company’s unaudited interim financial statements have been prepared in accordance with the requirements of ASC 270, Interim Reporting and Article 10 of Regulation S-X. To that extent, footnote disclosure which would substantially duplicate the disclosure contained in the Company’s latest audited financial statements (which has been included in this filing) has been omitted.
In the opinion of management, these unaudited interim consolidated financial statements include all adjustments and accruals, consisting only of normal, recurring adjustments that are necessary for a fair statement of the results of all interim periods reported herein. The results of the interim periods are not necessarily indicative of the results expected for the full fiscal year or any other interim period or any future year or period.
Basis of Presentation
The accompanying financial statements have been prepared using the accrual basis of accounting in accordance with generally accepted accounting principles (“GAAP”) promulgated in the United States of America. The financial statements include the results of operations of Vertical Data Inc. as of December 31, 2024 and for the three-month period ended December 31, 2024. The Company’s fiscal year-end is September 30.
Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires the Company’s 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 statement and the reported amounts of revenues and expenses during the reporting period. Making estimates requires management to exercise significant judgment. It is at least reasonably possible that the estimate of the effect of a condition, situation or set of circumstances that existed at the date of the financial statements, which management considered in formulating its estimate, could change in the near term due to one or more future confirming events. The Company bases its estimates on historical experience and on various assumptions that are believed to be reasonable, the results of which form the basis for the amounts recorded in the financial statements.
Sales and Marketing
The Company’s sales and marketing expenses primarily consist of costs incurred related to sales commissions and our various marketing endeavors. The Company incurred $9,451 of sales and marketing expenses for the three months ended December 31, 2024.
Net Loss Per Share
Net loss per share is computed by dividing net loss by the weighted average number of common shares outstanding during the reporting period. Diluted earnings per share is computed similar to basic earnings per share, except the denominator is increased to include the number of additional common shares that would have been outstanding if the dilutive potential common shares had been issued. As of December 31, 2024, the Company had 7,200,000 shares stemming from granted options that were not included in diluted EPS because to do so would have been antidilutive for the period presented.
| F-6 |
Stock-Based Compensation
The Company accounts for its stock-based compensation awards to employees and members of its Board of Directors (the “Board”) in accordance with ASC Topic 718, Compensation—Stock Compensation (“ASC 718”). ASC 718 requires all stock-based payments to employees and Board members, including grants of employee stock options, to be recognized in the statements of operations by measuring the fair value of the award on the date of grant and recognizing this fair value as stock-based compensation over the requisite service period, generally the vesting period. The Company determines the fair value of its underlying shares in accordance with the practical expedient for nonpublic entities provided in ASC 718-10-30.
The Company estimates the grant date fair value of stock option awards using the Black-Scholes option-pricing model. The use of the Black-Scholes option-pricing model requires management to make assumptions with respect to the fair value of our underlying shares, the expected term of the option, the expected volatility of our Common Stock, the risk-free interest rates and expected dividend yield of our Common Stock.
Recognition of Revenue from Contracts with Customers
The Company recognizes revenue from its contracts with customers in accordance with the core principle outlined in ASC 606 Revenue from Contracts with Customers. Specifically, the Company recognizes revenue “to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which we expect to be entitled in exchange for those goods or services”. To that extent, the Company recognizes revenue in accordance with the ASC Topic by applying the following five steps:
| ● | Step 1-Identify the contract(s) with a customer | |
| ● | Step 2-Identify the performance obligations in the contract | |
| ● | Step 3-Determing the transaction price | |
| ● | Step 4-Allocate the transaction price to the performance obligations in the contract | |
| ● | Step 5-Recognize revenue when (or as) the Company satisfies a performance obligation |
The Company’s contracts with its customers currently only contain a single performance obligation comprised solely of the sale of IT equipment. To that extent, the Company does not provide any installation or customization services at this time that might be considered a separate performance obligation. Further, as noted above, revenue is recognized at a point in time upon delivery of the equipment to the customer at the agreed upon location. The Company does not currently extend any form of payment terms to its customers and, as such, full payment for the equipment is received from the customer (via wire payment) immediately upon delivery of the equipment. As full payment is received only upon delivery, the Company typically does not have the need to recognize contract assets, contract liabilities or accounts receivable.
In determining the transaction price, the Company’s contracts with its customers do not include a significant financing component, noncash consideration or consideration payable to the customer. The Company’s contracts do include a refund option whereby the customer has the right to return the equipment to the Company for a full refund within a stated period after purchase. However, the Company noted that equipment returns were highly infrequent and were not material to our results of operations. As such, no refund liability has been recorded.
Finally, as it pertains to incremental costs of obtaining a contract, the Company, in accordance with the practical expedient provided in ASC 340-40, has elected to expense when incurred all sales commissions paid to its employees as the amortization period of the asset that the entity would have recognized would be one year or less.
Recent Accounting Pronouncements
Accounting standards that have been issued or proposed by the Financial Accounting Standards Board (“FASB”) that do not require adoption until a future date are not expected to have a material impact on the financial statements upon adoption. The Company does not discuss recent pronouncements that are not anticipated to have an impact on or are unrelated to its financial condition, results of operations, cash flows or disclosures.
| F-7 |
3. OTHER CURRENT ASSETS
Other current assets consisted of the following:
| December 31, 2024 | September 30, 2024 | |||||||
| Refunds due from suppliers | $ | 358,123 | $ | 664,000 | ||||
| Total other current assets | $ | 358,123 | $ | 664,000 | ||||
4. PREPAID EXPENSES
Prepaid expenses consisted of the following:
| December 31, 2024 | September 30, 2024 | |||||||
| Prepaid legal fees | $ | 25,257 | $ | 25,000 | ||||
| Prepaid commissions | 41,306 | 4,989 | ||||||
| Prepaid expenses | $ | 66,563 | $ | 29,989 | ||||
5. PROPERTY AND EQUIPMENT
Property and equipment consisted of the following:
| Description | December 31, 2024 | September 30, 2024 | ||||||
| Tools, machinery, and equipment | $ | 1,352 | $ | 1,352 | ||||
| Less – accumulated depreciation | (90 | ) | (23 | ) | ||||
| Total property and equipment, net | $ | 1,262 | $ | 1,329 | ||||
Total depreciation expense was $67 for three months ended December 31, 2024.
6. ACCRUED LIABILITIES
Accrued liabilities consisted of the following:
| December 31, 2024 | September 30, 2024 | |||||||
| Wages accrual | $ | 120,000 | $ | 99,400 | ||||
| Expenses accrual | 19,439 | 32,385 | ||||||
| Payroll tax accrual | 4,800 | 2,400 | ||||||
| Credit card accrual | 24,766 | 8,930 | ||||||
| Total accrued liabilities | $ | 169,005 | $ | 143,115 | ||||
7. OTHER CURRENT LIABILITIES
Other current liabilities consist of a customer deposit received during the period for which the order was subsequently cancelled. The full amount was repaid to the customer during January 2025.
| December 31, 2024 | September 30, 2024 | |||||||
| Customer deposit | 376,328 | 224,000 | ||||||
| Total other current liabilities | $ | 376,328 | $ | 224,000 | ||||
| F-8 |
8. STOCKHOLDERS’ EQUITY
Upon formation, the authorized capital of the Company was 100,000,000 shares consisting of 100,000,000 shares of common stock, par value $0.0001.
Ordinary Shares
The Company’s common shares do not include any dividend or liquidation preferences, participation rights, call prices or unusual voting rights.
Common Stock Issuances
Subsequent to our formation, the Company issued 36,503,000 founder shares to various individuals at par value. In accordance with Rule 5-02.30 of Regulation S-X and SAB Topic 4.E, the Company recognized the corresponding receivable for the issued shares, other than $586 in proceeds received as of the balance sheet date, as a deduction from equity.
During the three months ended December 31, 2024, the Company sold approximately 2,186,000 shares of Company stock in an unregistered offering for net proceeds of $1,093,400.
9. CONCENTERATION OF CUSTOMERS
Revenues from two customers of the Company represented $3.5 million and $0.2 million, or 94% and 6%, of the Company’s revenues for the three months ended December 31, 2024. The Company did not have any accounts receivable from these two customers as of December 31, 2024.
10. SHARE BASED COMPENSATION
During the three months ended December 31, 2024, the Company granted 3,175,000 stock options to various employees and contractors with a total fair value of $1,539,875 and a weighted average fair value per option of $0.49. These options will vest over a weighted average period of 1.6 years.
12. INCOME TAXES
The Company recognized pre-tax accounting losses for the three months ended December 31, 2024. As of December 31, 2024, any deferred tax assets, which have been recognized primarily as a result of loss carry forwards, have been fully offset by a valuation allowance. As such, for the three months ended December 31, 2024, there were no significant variations in the relationship between income tax expense and pretax accounting income.
13. SUBSEQUENT EVENTS
In accordance with ASC 855 Subsequent Events, the Company has evaluated events and transactions subsequent to December 31, 2024 through the date these financial statements were available to be issued, which was March 14, 2025. Other than the below, there are no subsequent events identified that would require disclosure in these consolidated financial statements.
Common Stock Issuances
From January 1, 2025 through March 14, 2025, the Company sold 609,320 shares of Company stock for gross proceeds of $304,660.
Refund from Supplier
During January of 2025, the Company received a refund from a supplier of $358,123.
| F-9 |
VERTICAL DATA INC.
INDEX TO FINANCIAL STATEMENTS
INDEX TO AUDITED FINANCIAL STATEMENTS
AS OF SEPTEMBER 30, 2024
AND FOR THE PERIOD FROM MAY 3, 2024
(DATE OF INCEPTION) TO SEPTEMBER 30, 2024
| F-10 |
 |
200 Spectrum Center Drive, Suite 300 Irvine, CA 92618 (714) 234-5980 www.bcrgcpas.com |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of Vertical Data Inc.
Opinion on the Financial Statements
We have audited the accompanying balance sheet of Vertical Data Inc. (the “Company”) as of September 30, 2024, the related statement of operations, stockholders’ equity (deficit), and cash flows for the period May 3, 2024 (date of formation) to September 30, 2024, 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 September 30, 2024, and the results of its operations and its cash flows for the period May 3, 2024 (date of formation) to September 30, 2024, 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. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provides a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing separate opinions on the critical audit matter or on the accounts or disclosures to which it relates. The Company did not have any critical audit matters
/s/ BCRG Group
BCRG Group (PCAOB ID 7158)
We have served as the Company’s auditor since 2024.
Irvine, CA
December 16, 2024
| F-11 |
BALANCE SHEET
| September 30, | Inception as of May 3, | |||||||
| 2024 | 2024 | |||||||
| ASSETS | ||||||||
| Current assets: | ||||||||
| Cash | $ | 427,722 | $ | - | ||||
| Other current assets | 664,000 | - | ||||||
| Prepaid expenses | 29,989 | - | ||||||
| Total current assets | 1,121,711 | - | ||||||
| Property and equipment, net | 1,329 | - | ||||||
| Total assets | $ | 1,123,040 | $ | - | ||||
| LIABILITIES AND EQUITY | ||||||||
| Current liabilities: | ||||||||
| Accrued liabilities | $ | 143,115 | $ | - | ||||
| Other Current Liabilities | 224,000 | - | ||||||
| Total current liabilities | 367,115 | - | ||||||
| Total liabilities | 367,115 | - | ||||||
| Equity: | ||||||||
| Common stock, $ 0.0001 par value, 100,000,000 shares authorized; 38,397,052 and 0 shares issued and outstanding at September 30, 2024 and May 3, 2024, respectively. | 3,839 | - | ||||||
| Additional paid in capital | 1,102,685 | - | ||||||
| Accumulated deficit | (350,599 | ) | - | |||||
| Total equity (deficit) | 755,925 | - | ||||||
| Total liabilities and equity | $ | 1,123,040 | $ | - | ||||
The accompanying notes are an integral part of these financial statements.
| F-12 |
STATEMENT OF OPERATIONS
Fiscal Period Ended September 30, 2024 (1) | ||||
| Revenue | $ | 6,866,558 | ||
| Cost of revenue | 6,542,000 | |||
| Gross profit | 324,558 | |||
| Operating expenses: | ||||
| General and administrative | 675,157 | |||
| Total operating expenses | 675,157 | |||
| Loss from operations | (350,599 | ) | ||
| Net (loss) income | $ | (350,599 | ) | |
| Earnings (loss) per common share: | ||||
| Basic and diluted | $ | (0.02 | ) | |
| Weighted average common shares outstanding: | ||||
| Basic and diluted | 23,294,212 | |||
(1) Represents fiscal period from Company inception on May 3, 2024 through September 30, 2024
The accompanying notes are an integral part of these financial statements.
| F-13 |
STATEMENT OF SHAREHOLDERS’ EQUITY
| Common Stock | Accumulated | |||||||||||||||||||
| # of Shares | Amount | APIC | Deficit | Total | ||||||||||||||||
| Inception as of May 3, 2024 | - | - | - | - | - | |||||||||||||||
| Issuance of founders shares | 36,503,000 | $ | 3,650 | $ | (3,064 | ) | $ | - | $ | 586 | ||||||||||
| Issuance of common stock | 1,894,052 | 189 | 946,777 | - | 946,966 | |||||||||||||||
| Stock-based compensation | - | - | 158,972 | - | 158,972 | |||||||||||||||
| Net loss | - | - | - | (350,599 | ) | $ | (350,599 | ) | ||||||||||||
| September 30, 2024 | 38,397,052 | $ | 3,839 | $ | 1,102,685 | $ | (350,599 | ) | $ | 755,925 | ||||||||||
The accompanying notes are an integral part of these financial statements.
| F-14 |
STATEMENTS OF CASH FLOWS
Fiscal Period Ended September 30, 2024 (1) | ||||
| Cash flows from operating activities: | ||||
| Net (loss) income | $ | (350,599 | ) | |
| Adjustments to reconcile net (loss) income to net cash used in operating activities | ||||
| Stock based compensation | 158,972 | |||
| Depreciation expense | 23 | |||
| Changes in assets and liabilities: | ||||
| Prepaid expenses | (29,989 | ) | ||
| Other current assets | (664,000 | ) | ||
| Accrued liabilities | 143,115 | |||
| Other current liabilities | 224,000 | |||
| Net cash from (used) in operating activities | $ | (518,478 | ) | |
| Cash flows from investing activities: | ||||
| Purchase of property and equipment | (1,352 | ) | ||
| Net cash used in investing activities | $ | (1,352 | ) | |
| Cash flows from financing activities: | ||||
| Sale of common stock, net of fees and costs | 946,966 | |||
| Cash received from issuance of founder shares | 586 | |||
| Net cash provided by financing activities | $ | 947,552 | ||
| Net change in cash and cash equivalents | $ | 427,722 | ||
| Cash and cash equivalents, beginning of period | - | |||
| Cash and cash equivalents, end of period | $ | 427,722 | ||
| Supplemental disclosures of cash flow information: | ||||
| Cash paid for interest | - | |||
| Cash paid for taxes | - | |||
(1) Represents fiscal period from Company inception on May 3, 2024 through September 30, 2024.
The accompanying notes are an integral part of these financial statements.
| F-15 |
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. NATURE OF OPERATIONS
Vertical Data Inc. (the “Company”) was incorporated in Nevada on May 3, 2024 and has a fiscal year-end of September 30. 2024. The Company’s current service to its customers is comprised of the sale of artificial intelligence related hardware. The Company plans to expand its service offerings in the future to include technology consulting, design and engineering, project management, systems integration, system installation and facilities management. The Company’s corporate office is located in Las Vegas, Nevada.
2.SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND NEW ACCOUNTING STANDARDS
Basis of Presentation
The accompanying financial statements have been prepared using the accrual basis of accounting in accordance with generally accepted accounting principles (“GAAP”) promulgated in the United States of America. The financial statements include Vertical Data Inc. as of September 30, 2024 and for the periods May 3, 2024 (date of formation) to September 30, 2024. The Company’s fiscal year-end is September 30.
Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires the Company’s 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 statement and the reported amounts of revenues and expenses during the reporting period. Making estimates requires management to exercise significant judgment. It is at least reasonably possible that the estimate of the effect of a condition, situation or set of circumstances that existed at the date of the financial statements, which management considered in formulating its estimate, could change in the near term due to one or more future confirming events. The Company bases its estimates on historical experience and on various assumptions that are believed to be reasonable, the results of which form the basis for the amounts recorded in the consolidated financial statements.
Segment Reporting
The Company currently operates in a single operating segment. Operating segments are reported in a manner consistent with the internal reporting provided to the Company’s chief operating decision maker (“the CODM”). The Company’s CODM, which is its Chief Executive Officer, views the Company’s operations and manages its business as a single operating segment, which is the sale of IT hardware.
Cash and Cash Equivalents
The Company considers all short-term investments with an original maturity of three months or less when purchased to be cash or cash equivalents. The Company had cash of $0.4 million as of September 30, 2024
Cost of Revenue
The Company’s cost of revenue is comprised of the cost of purchased IT equipment from our suppliers. The Company incurred $6,542,000 of cost of revenue for the period of May 3, 2024 (date of formation) to September 30, 2024.
Sales and Marketing
The Company’s sales and marketing expenses primarily consist of costs incurred related to sales commissions and our various marketing endeavors. The Company incurred $6,722 of sales and marketing expenses for the period of May 3, 2024 (date of formation) to September 30, 2024.
| F-16 |
Income Taxes
The Company follows the asset and liability method of accounting for income taxes under ASC 740, “Income Taxes.” Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. 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 income in the period that included the enactment date. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount expected to be realized. As of September 30, 2024, the Company had deferred tax assets related to certain net operating losses. A valuation allowance was established against these deferred tax assets at their full amount. Refer to note 10 for additional information.
ASC 740 prescribes a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more likely than not to be sustained upon examination by taxing authorities. The Company is currently not aware of any issues under review that could result in significant payments, accruals or material deviation from its position. The Company is subject to income tax examinations by major taxing authorities since inception.
Concentration of Credit Risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist of a cash account in a financial institution, which, at times, may exceed the Federal Depository Insurance Coverage of $250,000. As of September 30, 2024, the Company has not experienced losses on this account and management believes the Company is not exposed to significant risks on such account.
Fair Value Measurements
Fair value is defined as the price that would be received for sale of an asset or paid for transfer of a liability, in an orderly transaction between market participants at the measurement date. GAAP establishes a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurements) and the lowest priority to unobservable inputs (Level 3 measurements). These tiers include:
| ● | Level 1, defined as observable inputs such as quoted prices (unadjusted) for identical instruments in active markets; |
| ● | Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable such as quoted prices for similar instruments in active markets or quoted prices for identical or similar instruments in markets that are not active; and |
| ● | Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions, such as valuations derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable. |
The reporting amount of our cash represents fair value due to its liquid nature. As of September 30, 2024, the Company did not have any assets or liabilities measured at fair value on a recurring basis that would require disclosure based on the fair value hierarchy of valuation techniques.
| F-17 |
Net Loss Per Share
Net loss per share is computed by dividing net loss by the weighted average number of common shares outstanding during the reporting period. Diluted earnings per share is computed similar to basic earnings per share, except the denominator is increased to include the number of additional common shares that would have been outstanding if the dilutive potential common shares had been issued. As of September 30, 2024, the Company had 4,025,000 shares stemming from granted options that were not included in diluted EPS because to do so would have been antidilutive for the period presented.
Impairment of Long-Lived Assets
Long-lived assets are tested for recoverability whenever events or changes in circumstances indicate that its carrying amount may not be recoverable. Such circumstances may include a significant decrease in the market price of an asset, a significant adverse change in the manner in which the asset is being used or in its physical condition or a history of operating or cash flow losses associated with the use of an asset. An impairment loss is recognized when the carrying amount of an asset exceeds the anticipated future undiscounted cash flows expected to result from the use of the asset and its eventual disposition. The amount of the impairment loss is the excess of the asset’s carrying value over its fair value. There were no charges related to impairments of long-lived assets during our fiscal year ended September 30, 2024.
Stock-Based Compensation
The Company accounts for its stock-based compensation awards to employees and members of its Board of Directors (the “Board”) in accordance with ASC Topic 718, Compensation—Stock Compensation (“ASC 718”). ASC 718 requires all stock-based payments to employees and Board members, including grants of employee stock options, to be recognized in the statements of operations by measuring the fair value of the award on the date of grant and recognizing this fair value as stock-based compensation over the requisite service period, generally the vesting period. The Company determines the fair value of its underlying shares in accordance with the practical expedient for nonpublic entities provided in ASC 718-10-30.
The Company estimates the grant date fair value of stock option awards using the Black-Scholes option-pricing model. The use of the Black-Scholes option-pricing model requires management to make assumptions with respect to the fair value of our underlying shares, the expected term of the option, the expected volatility of our Common Stock, the risk-free interest rates and expected dividend yield of our Common Stock.
Recognition of Revenue from Contracts with Customers
The Company recognizes revenue from its contracts with customers in accordance with the core principle outlined in ASC 606 Revenue from Contracts with Customers. Specifically, the Company recognizes revenue “to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which we expect to be entitled in exchange for those goods or services”. To that extent, the Company recognizes revenue in accordance with the ASC Topic by applying the following five steps:
| ● | Step 1-Identify the contract(s) with a customer | |
| ● | Step 2-Identify the performance obligations in the contract | |
| ● | Step 3-Determing the transaction price | |
| ● | Step 4-Allocate the transaction price to the performance obligations in the contract | |
| ● | Step 5-Recognize revenue when (or as) the Company satisfies a performance obligation |
The Company’s contracts with its customers currently only contain a single performance obligation comprised solely of the sale of IT equipment. To that extent, the Company does not provide any installation or customization services at this time that might be considered a separate performance obligation. Further, as noted above, revenue is recognized at a point in time upon delivery of the equipment to the customer at the agreed upon location. The Company does not currently extend any form of payment terms to its customers and, as such, full payment for the equipment is received from the customer (via wire payment) immediately upon delivery of the equipment. As full payment is received only upon delivery, the Company typically does not have the need to recognize contract assets, contract liabilities or accounts receivable.
| F-18 |
In determining the transaction price, the Company’s contracts with its customers do not include a significant financing component, noncash consideration or consideration payable to the customer. The Company’s contracts do include a refund option whereby the customer has the right to return the equipment to the Company for a full refund within a stated period after purchase. However, the Company noted that equipment returns were highly infrequent and were not material to our results of operations. As such, no refund liability has been recorded.
Finally, as it pertains to incremental costs of obtaining a contract, the Company, in accordance with the practical expedient provided in ASC 340-40, has elected to expense when incurred all sales commissions paid to its employees as the amortization period of the asset that the entity would have recognized would be one year or less.
Property and Equipment
Property and equipment consists primarily of computer equipment, which is depreciated over an estimated three year life using the straight-line method. Expenditures for repairs and maintenance are expensed as incurred. When assets have been retired or sold, the cost and related accumulated depreciation are removed from the financial statements and any resulting gain or loss is recognized in our results of operations.
Leases
In accordance with ASC 842, Leases, the Company determines whether an arrangement contains a lease at inception. A lease is a contract that provides the right to control an identified asset for a period of time in exchange for consideration. For identified leases, the Company determines whether it should be classified as an operating or finance lease. Operating leases are recorded in the balance sheet as: right-of-use asset (“ROU asset”) and operating lease liability. ROU asset represents the Company’s right to use an underlying asset for the lease term and lease liability represents the Company’s obligation to make lease payments arising from the lease. ROU assets and operating lease liabilities are recognized at the commencement date of the lease and measured based on the present value of lease payments over the lease term. The ROU asset also includes deferred rent liabilities. The Company’s lease arrangement generally does not provide an implicit interest rate. As a result, in such situations the Company uses its incremental borrowing rate based on the information available at commencement date in determining the present value of lease payments. The Company includes options to extend or terminate the lease when it is reasonably certain that it will exercise that option in the measurement of its ROU asset and liability. Lease expense for the operating lease is recognized on a straight-line basis over the lease term. The Company did not have any leases under ASC 842 as of September 30, 2024.
Commitments and Contingencies
The Company accounts for contingencies in accordance with ASC 450-20, Contingencies. Certain conditions may exist as of the date the financial statements are issued, which may result in a loss to the Company, but which will only be resolved when one or more future events occur or fail to occur. The Company assesses such contingent liabilities, and such assessment inherently involves an exercise of judgment. In assessing loss contingencies related to legal proceedings that are pending against the Company or un-asserted claims that may result in such proceedings, the Company evaluates the perceived merits of any legal proceedings or un-asserted claims as well as the perceived merits of the amount of relief sought or expected to be sought therein.
If the assessment of a contingency indicates that it is probable that a material loss has been incurred and the amount of the liability can be estimated, then the estimated liability would be accrued in the Company’s financial statements. If the assessment indicates that a potentially material loss contingency is not probable but is reasonably possible, or is probable but cannot be estimated, then the nature of the contingent liability, and an estimate of the range of possible losses, if determinable and material, would be disclosed. The Company is not currently involved in any legal proceedings that could require either accrual or disclosure.
Subsequent Events
For events or transactions that occur after the balance sheet date but before financial statements are issued or are available to be issued the Company considers whether recognition or disclosure in the financial statements may be required based on the guidance in ASC 855 Subsequent Events. To that extent, the Company will recognize in its financial statements the effect of all subsequent events that provide additional evidence about conditions that existed at the date of the balance sheet. Further, the Company does not recognize subsequent events that provide evidence about conditions that did not exist at the date of the balance sheet but arose after the balance sheet date but before financial statements are issued or are available to be issued. However, certain nonrecognized subsequent events may still be disclosed in order to keep the financial statements from being misleading.
| F-19 |
Recent Accounting Pronouncements
Accounting standards that have been issued or proposed by the Financial Accounting Standards Board (“FASB”) that do not require adoption until a future date are not expected to have a material impact on the financial statements upon adoption. The Company does not discuss recent pronouncements that are not anticipated to have an impact on or are unrelated to its financial condition, results of operations, cash flows or disclosures.
3. OTHER CURRENT ASSETS
Other current assets consisted of the following:
| September 30, 2024 | Inception - May 3, 2024 | |||||||
| Refunds due from suppliers | $ | 664,000 | $ | - | ||||
| Total other current assets | $ | 664,000 | $ | - | ||||
4. PREPAID EXPENSES
Prepaid expenses consisted of the following:
| September 30, 2024 | Inception - May 3, 2024 | |||||||
| Prepaid legal fees | $ | 25,000 | $ | - | ||||
| Prepaid commissions | 4,989 | - | ||||||
| Prepaid expenses | $ | 29,989 | $ | - | ||||
5. PROPERTY AND EQUIPMENT
Property and equipment consisted of the following:
| Description | September 30, 2024 | Inception - May 3, 2024 | ||||||
| Tools, machinery, and equipment | $ | 1,352 | $ | - | ||||
| Less – accumulated depreciation | (23 | ) | - | |||||
| Total property and equipment, net | $ | 1,329 | $ | - | ||||
Total depreciation expense was $23 for the period May 3, 2024 (date of formation) to September 30, 2024.
6. ACCRUED LIABILITIES
Accrued liabilities consisted of the following:
| September 30, 2024 | Inception - May 3, 2024 | |||||||
| Wages accrual | $ | 99,400 | $ | - | ||||
| Expenses accrual | 32,385 | - | ||||||
| Payroll tax accrual | 2,400 | - | ||||||
| Credit card accrual | 8,930 | - | ||||||
| Total accrued liabilities | $ | 143,115 | $ | - | ||||
| F-20 |
7. OTHER CURRENT LIABILITIES
Other current liabilities consisted of a customer deposit received during the period for which the order was subsequently cancelled. Refund of the amount occurred in the subsequent period.
| September 30, 2024 | Inception - May 3, 2024 | |||||||
| Refund of initial customer deposit | $ | 224,000 | $ | - | ||||
| Total other current liabilities | $ | 224,000 | $ | - | ||||
8. STOCKHOLDERS’ EQUITY
Upon formation, the authorized capital of the Company was 100,000,000 shares consisting of 100,000,000 shares of common stock, par value $0.0001.
Ordinary Shares
The Company’s common shares do not include any dividend or liquidation preferences, participation rights, call prices or unusual voting rights.
Common Stock Issuances
Subsequent to our formation, the Company issued 36,503,000 founder shares to various individuals at par value. In accordance with Rule 5-02.30 of Regulation S-X and SAB Topic 4.E, the Company recognized the corresponding receivable for the issued shares, other than $586 in proceeds received as of the balance sheet date, as a deduction from equity.
During our fiscal year ended September 30, 2024, the Company sold approximately 1,894,052 shares of Company stock in an unregistered offering for net proceeds of $946,777.
9. SHARE BASED COMPENSATION
2024 Equity Incentive Plan
On July 1, 2024, the Company’s board of directors approved the Company’s 2024 Equity Incentive Plan (the “Plan”), which was designed to attract, retain and motivate key employees, officers, consultants, and directors of the Company (collectively, the “Eligible Persons”) to promote the success of the Company’s business. The Plan authorizes the award to Eligible Persons of stock options, restricted stock, restricted stock units, or other stock-based awards granted under the Plan. Under the Plan, the Company reserved 7.8 million shares of its stock for issuance to eligible persons. However, no more than 500,000 shares of the Company’s stock may be issued or transferred upon the exercise or settlement of any incentive stock option within the meaning of Section 422 of the Internal Revenue Code.
Stock Options
The stock options granted during the fourth quarter of 2024 vest over a three-year period and stock-based compensation expense is recognized on a straight-line basis over the requisite service period as services are performed throughout that vesting period. Stock option activity for the period was as follows:
| Number
of Share Options Granted | Weighted
Average Grant Date Fair Value | |||||||
| Nonvested at May 3, 2024 | - | |||||||
| Granted during the period | 4,025,000 | $ | 0.49 | |||||
| Vested during the period | - | |||||||
| Forfeited during the period | - | |||||||
| Nonvested at September 30, 2024 | 4,025,000 | $ | 0.49 | |||||
| Exercisable at September 30, 2024 | - | |||||||
| F-21 |
A description of the significant assumptions used during the year to estimate the fair value of share-based compensation awards was as follows:
| Fiscal
Period Ended September 30, 2024 | ||||
| Expected volatility | 90 | % | ||
| Risk free interest rate | 4.0 | % | ||
| Expected term | 10 years | |||
| Expected dividends | - | |||
| Current price input | 0.50 | |||
The Company utilized the practical expedient in ASC 718-10-30 to estimate the fair value of its underlying shares.
As of September 30, 2024, there was $2.0 million of total unrecognized compensation cost related to nonvested share-based compensation arrangements granted. That cost is expected to be recognized over a weighted-average period of 2.75 years. The Company recognized $158,972 of stock-based compensation during its fiscal year ended September 30, 2024.
10. INCOME TAXES
The Company accounts for income taxes under ASC 740 - Income Taxes (“ASC 740”), which provides for an asset and liability approach of accounting for income taxes. Under this approach, deferred tax assets and liabilities are recognized based on anticipated future tax consequences, using currently enacted tax laws, attributed to temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts calculated for income tax purposes. The Company did not recognize any current or deferred taxes for its fiscal year ended September 30, 2024.
The Company recognizes deferred tax assets to the extent that it believes that these assets are more likely than not to be realized. In making such a determination, the Company considers all available positive and negative evidence, including future reversals of existing taxable temporary differences, projected future taxable income, tax-planning strategies, and results of recent operations. The Company assessed the need for a valuation allowance against its net deferred tax assets and determined a full valuation allowance is required since the Company has no history of generating taxable income.
A reconciliation of the federal income tax rate to the Company’s effective tax rate at September 30, 2024 is as follows:
| September 30, 2024 | ||||
| Federal Statutory Rate | 21 | % | ||
| State tax, net of income tax benefit | 0 | % | ||
| Effect of permanent difference | -0.1 | % | ||
| Change in valuation allowance | -20.9 | % | ||
| - | ||||
| F-22 |
Further, the components of our deferred tax assets and liabilities, which were fully offset with a valuation allowance, were as follows as of September 30, 2024:
| Deferred Tax Assets: | September 30, 2024 | |||
| Operating loss carryforward | $ | 38,575 | ||
| Start-up costs | 1,103 | |||
| Total Deferred Tax Assets | $ | 39,678 | ||
| Deferred Tax Liabilities: | ||||
| Depreciation | $ | (225 | ) | |
| Total deferred tax liabilities | $ | (225 | ) | |
| Net deferred tax assets | $ | 39,453 | ||
| Valuation allowance | (39,453 | ) | ||
| Total net deferred tax assets | $ | - | ||
The Company’s ability to utilize net operating loss carryforwards will depend on its ability to generate adequate future taxable income. Future utilization of the net operating loss carry forwards is subject to certain limitations under Section 382 of the Internal Revenue Code. As of September 30, 2024, the Company had federal and state net operating loss carryforwards available to offset future taxable income in the amounts of approximately $183,688, which does not expire.
The Company has evaluated its income tax positions and has determined that it does not have any uncertain tax positions. The Company will recognize interest and penalties related to any uncertain tax positions through its income tax expense.
11. CONCENTERATION OF CUSTOMERS
Revenues from two customers of the Company represent $5.3 million and $1.6 million, or 77% and 23%, of the Company’s revenues for its fiscal year ended September 30, 2024. The Company did not have any accounts receivable from these two customers as of September 30, 2024.
12. SUBSEQUENT EVENTS
In accordance with ASC 855 Subsequent Events, the Company has evaluated events and transactions subsequent to September 30, 2024 through the date these financial statements were available to be issued, which was December 16, 2024. Other than the below, there are no subsequent events identified that would require disclosure in these consolidated financial statements.
Common Stock Issuances
Throughout the first quarter of fiscal year 2025, the Company sold approximately 1,297,000 shares of Company stock in an unregistered offering for gross proceeds of approximately $648,500.
| F-23 |
INFORMATION NOT REQUIRED IN PROSPECTUS
As used in this Part II, unless the context indicates or otherwise requires, the terms “we”, “us”, “our”, the “Company” and “Vertical Data” refer to Vertical Data Inc., a Nevada corporation.
Item 13. Other Expenses of Issuance and Distribution
Set forth below is an estimate (except for registration fees, which are actual) of the approximate amount of the types of fees and expenses listed below that were paid or are payable by us in connection with the issuance and distribution of the shares of common stock to be registered by this registration statement. None of the expenses listed below are to be borne by any of the selling stockholders named in the prospectus that forms a part of this registration statement.
| Expense | Amount | |||
| SEC Registration Fee | $ | * | ||
| Accounting Fees and Expenses | $ | * | ||
| Legal Fees and Expenses | $ | * | ||
| Transfer Agent Fees and Expenses | $ | * | ||
| Miscellaneous Fees and Expenses | $ | * | ||
| Total | $ | * | ||
* To be provided by amendment
Item 14. Indemnification of Directors and Officers.
Our Bylaws provide that every person who was or is a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or a person of whom he is the legal representative is or was a, director or officer of the corporation or is or was serving at the request of the corporation or for its benefit as a director or officer of another corporation, or as its representative a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless to the fullest extent legally permissible under the laws of the State of Nevada from time to time against all expenses, liability and loss (including attorneys’ fees, judgments, fines and amounts paid or to be paid in settlement) reasonably incurred or suffered by him in connection therewith. The expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding must be paid by the corporation as they are incurred and in advance of the final disposition of the action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that he is not entitled to be indemnified by the corporation. Such right of indemnification is a contractual right, which may be enforced in any manner desired by such person. Such right of indemnification shall not be exclusive of any other right which such directors, officers or representatives may have or hereafter acquire and, without limiting the generality of such statement, they shall be entitled to their respective rights of indemnification under any bylaws, agreement, vote of stockholders, provision of law or otherwise, as well as their rights under Article Eleven of our Bylaws. The Board of Directors may cause the Company to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred in any such capacity or arising out of such status, whether or not the corporation would have the power to indemnify such person. The Board of Directors may from time to time adopt further Bylaws with respect to indemnification and may amend the and such Bylaws to provide at all times the fullest indemnification permitted by the laws of the state of Nevada.
NRS 78.7502 permits a corporation to indemnify any director or officer of the corporation against expenses (including attorneys’ fees) and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such person (i) is not liable pursuant to NRS 78.138 and (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. In a derivative action (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or the suit if such person (i) is not liable pursuant to NRS 78.138 and (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought or some other court of competent jurisdiction determines that such person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
| II-1 |
We may enter into indemnification agreements with our directors and certain officers, in addition to the indemnification provided in the NRS and our Bylaws and intend to enter into indemnification agreements with current and any new directors and officers in the future.
We intend to purchase and maintain insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
The foregoing discussion of our Bylaws, indemnification agreements, indemnity agreement, and Nevada law is not intended to be exhaustive and is qualified in its entirety by such Bylaws, indemnification agreements, indemnity agreement, or law.
Item 15. Recent Sales of Unregistered Securities.
Except as set forth below, since its inception, the Registrant has not issued any securities that were not registered under the Securities Act of 1933, as amended (the “Securities Act”). All of the securities described below were issued in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act or Regulation D promulgated thereunder on the basis that there was no public offering.
| ● | From June 1, 2024 through September 30, 2024, the Company issued 36,503,000 founders shares of common stock at par value to various individuals. The Company received approximately $500 in consideration for the issued common shares. The following individuals received founder shares: |
| Founding Stockholders | Shares | |||
| AASD Investments LLC (Deven Soni) | 10,500,000 | |||
| TDK Cashflow Ltd. (Trevor Koverko) | 10,000,000 | |||
| Christopher W Johnson | 3,500,000 | |||
| Alpha Nine Ventures LTD (Ryan McMillan) | 1,700,000 | |||
| Robert Hackett | 1,700,000 | |||
| Christopher Creatura | 1,600,000 | |||
| David Hackett | 1,000,000 | |||
| Z List Media, Inc. (James Altucher) | 664,000 | |||
| Roth Hill, Inc. (Robert Douglas Hill) | 664,000 | |||
| Ambiguous Ventures, Inc. (Ty Neely) | 664,000 | |||
| Timothy J Collins | 664,000 | |||
| McMillan Co. (Ryan McMillan) | 664,000 | |||
| PC2ATX, LLC (Robert & Patricia Byrn) | 664,000 | |||
| Huey Co. LLC (Caleb Huey) | 664,000 | |||
| Goal Capital Inc. (Danny Gravelle) | 600,000 | |||
| Jesse Nickel | 500,000 | |||
| Surekha Kanakia | 500,000 | |||
| Robert Babbage | 125,000 | |||
| Bob Babbage Sr. | 50,000 | |||
| Amir Haboosheh | 50,000 | |||
| Hamid Djam | 30,000 | |||
| Total | 36,503,000 | |||
| ● | From July 1, 2024 through the Filing Date, the Company sold 4,690,052 shares of common stock to various accredited investors for total consideration received of $2,345,026. |
| ● | From July 1, 2024 through September 30, 2024 the Company granted an aggregate of 4,025,000 options to certain employees, consultants and directors. |
Subsequent to September 30, 2024, the Company granted an aggregate of 3,175,000 options to certain consultants.
Item 16. Exhibits and Financial Statements Schedules.
(a) Exhibits.
See the Exhibit Index immediately following the signature page hereto, which is incorporated into this Item 16 by reference.
(b) Financial Statements Schedules.
No financial statement schedules are provided because the information called for is not applicable or not required or is shown in the financial statements or the notes thereto.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended. | |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which is registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424 (b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. | |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
| II-2 |
2. That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
4. In so far as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
5. If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
| II-3 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of New York, State of New York, on May 1, 2025.
| VERTICAL DATA INC. | |
| /s/ Deven Soni | |
| Deven Soni | |
| Chairman, President, Chief Executive Officer, |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Deven Soni | Chairman, President, Chief Executive Officer (Principal Executive Officer) |
May 1, 2025 | ||
| Deven Soni | ||||
| /s/ Christopher Creatura | Chief Financial Officer | May 1, 2025 | ||
| Christopher Creatura | (Principal Financial and Accounting Officer) |
| II-4 |
EXHIBIT INDEX
| Exhibit Number | Name/Identification of Exhibit | |
| 3.1+ | Articles of Incorporation of Vertical Data, Inc. | |
| 3.2+ | Bylaws of Vertical Data, Inc. | |
| 5.1** | Opinion of Lucosky Brookman LLP | |
| 10.1* | Employment Agreement Between Vertical Data, Inc. and Deven Soni | |
| 10.2* | Consulting Agreement Between Vertical Data, Inc. and Christopher Creatura | |
| 10.3* | Consulting Agreement Between Vertical Data, Inc. and Christopher Johnson | |
| 10.4* | Form of Vertical Data, Inc.’s 2024 Equity and Incentive Plan | |
| 10.5* | Form of Subscription Agreement | |
| 14.1* | Form of Code of Ethics | |
| 23.1* | Consent of BCRG Group, Inc. | |
| 23.2** | Consent of Lucosky Brookman LLP (included in 5.1) | |
| 107+ | Filing Fee Table |
+ previously filed
* Filed herewith
** To be filed by amendment
| II-5 |
Exhibit 10.1
Executive Employment Agreement
This Executive Employment Agreement (the “Agreement”) is made and entered into as of July 1, 2024, by and between Deven Soni (the “Executive”) and Vertical Data, a Nevada corporation (the “Company”).
WHEREAS the Company desires to employ the Executive on the terms and conditions set forth herein; and
WHEREAS, the Executive desires to be employed by the Company on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants, promises and obligations set forth herein, the parties agree as follows:
1. Term. The Executive’s employment hereunder shall be effective as of July 1, 2024 (the “Effective Date”) and shall continue until the fifth anniversary thereof, unless terminated earlier pursuant to Section 5 of this Agreement; provided that, on such fifth anniversary of the Effective Date and each annual anniversary thereafter (such date and each annual anniversary thereof, a “Renewal Date”), the Agreement shall be deemed to be automatically extended, upon the same terms and conditions, for successive periods of one year, unless either party provides written notice of its intention not to extend the term of the Agreement at least 90 days prior to the applicable Renewal Date. The period during which the Executive is employed by the Company hereunder is hereinafter referred to as the “Employment Term.”
2. Position and Duties.
2.1 Position. During the Employment Term, the Executive shall serve as the Chief Executive Officer of the Company, reporting to the Company’s board of directors. In such position, the Executive shall have such duties, authority and responsibility as shall be determined from time to time by the Company’s board of directors, which duties, authority and responsibility are consistent with the Executive’s position. The Executive shall also serve as a Chairman of the board of directors of the Company (the “Board”).
2.2 Duties. During the Employment Term, the Executive shall devote substantially all of his business time and attention to the performance of the Executive’s duties hereunder and will not engage in any other business, profession, or occupation for compensation or otherwise which would conflict or interfere with the performance of such services either directly or indirectly without the prior written consent of the Board.
Notwithstanding the foregoing, the Executive may continue to hold any directorships, trustee positions, committee memberships, or similar roles that were in place prior to the effective date of this Agreement without requiring further Board approval. The Executive will be permitted to (a) with the prior written consent of the Board (which consent will not be unreasonably withheld or delayed), act or serve as a director, trustee, committee member, or principal of any type of business, civic, or charitable organization for any new roles acquired after the effective date of this Agreement, as long as such activities are disclosed in writing to the Company’s Secretary in accordance with the Company’s Conflict of Interest Policy, and
(b) purchase or own less than five percent (5%) of the publicly traded securities of any corporation; provided that such ownership represents a passive investment and that the Executive is not a controlling person of, or a member of a group that controls, such corporation; provided further that the activities described in clauses (a) and (b) do not interfere with the performance of the Executive’s duties and responsibilities to the Company as provided hereunder, including, but not limited to, the obligations set forth in Section 2 hereof.
3. Place of Performance. The principal place of the Executive’s employment shall be the Company’s principal executive office currently located in Las Vegas, Nevada; provided that, the Executive may be required to travel on Company business during the Employment Term.
4. Compensation.
4.1 Base Salary. The Company shall pay the Executive an annual rate of base salary of $120,000 in periodic installments in accordance with the Company’s customary payroll practices, but no less frequently than monthly. The Executive’s base salary shall be reviewed at least annually by the Board, and the Board may, but shall not be required to, increase (but not decrease) the base salary during the Employment Term. The Executive’s annual base salary, as in effect from time to time, is hereinafter referred to as “Base Salary.” From July 1, 2024, to December 31, 2024, the Executive will receive a consulting fee equal to the Base Salary amount. Effective January 1, 2025, the Base Salary shall increase to $180,000 per year. Additionally, the Executive shall receive a consulting fee equal to the Base Salary amount through March 2025.
4.2 Equity. The Company shall issue to Executive a Purchase Agreement to purchase 10,500,000 shares of the Company’s common stock at $0.0001 per share, or par value. Additionally, the Executive shall be granted an additional 1,500,000 options, subject to the terms and conditions set forth in the applicable equity incentive plan and grant agreement.
4.3 Annual Bonus.
(a) For each fiscal year of the Employment Term, the Executive shall be eligible to earn an annual bonus award (the “Annual Bonus”) of up to 50% of Base Salary (the “Target Bonus”), and in no event less than $40,000, based upon the achievement of annual performance goals established by the Board/Compensation Committee of the Board (the “Compensation Committee”). The Board, at its discretion, may determine whether the bonus is awarded in cash or stock.
(b) The Annual Bonus, if any, will be paid within two and a half (2 1/2) months after the end of the applicable fiscal year.
(c) Except as otherwise provided in Section 5, in order to be eligible to receive an Annual Bonus, the Executive must be employed by the Company on the last day of the applicable fiscal year/date that Annual Bonuses are paid.
4.4 Fringe Benefits and Perquisites. During the Employment Term, the Executive shall be entitled to fringe benefits and perquisites consistent with the practices of the Company, and to the extent the Company provides similar benefits or perquisites (or both) to similarly situated executives of the Company.
4.5 Employee Benefits. During the Employment Term, the Executive shall receive an executive insurance cash stipend of $2,500 per month (“Insurance Stipend”); however, the Company may, in its sole discretion and in lieu of providing such funds directly, apply all or part of the Insurance Stipend to the payment of the Executive’s insurance premiums under a plan that is at least comparable to or better than the coverage the Executive currently obtains through the Insurance Stipend. In addition, the Executive shall be entitled to participate in all employee benefit plans, practices, and programs maintained by the Company, as in effect from time to time (collectively, “Employee Benefit Plans”), on a basis no less favorable than that provided to other similarly situated executives of the Company, to the extent consistent with applicable law and the terms of the applicable Employee Benefit Plans. The Company reserves the right to amend or cancel any Employee Benefit Plans at any time in its sole discretion, subject to the terms of such Employee Benefit Plan and applicable law.
4.6 Vacation. During the Employment Term, the Executive shall be entitled to 15 of paid vacation days per calendar year (prorated for partial years) in accordance with the Company’s vacation policies, as in effect from time to time. Vacation days shall accrue without a cap.
4.7 Business Expenses. The Executive shall be entitled to reimbursement for all reasonable and necessary out-of-pocket business, entertainment and travel expenses incurred by the Executive in connection with the performance of the Executive’s duties hereunder in accordance with the Company’s expense reimbursement policies and procedures.
4.8 Indemnification.
(a) In the event that the Executive is made a party or threatened to be made a party to any action, suit, or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), other than any Proceeding initiated by the Executive or the Company related to any contest or dispute between the Executive and the Company or any of its affiliates with respect to this Agreement or the Executive’s employment hereunder, by reason of the fact that the Executive is or was a director or officer of the Company, or any affiliate of the Company, or is or was serving at the request of the Company as a director, officer, member, employee or agent of another corporation or a partnership, joint venture, trust or other enterprise, the Executive shall be indemnified and held harmless by the Company to the fullest extent applicable to any other officer or director of the Company/to the maximum extent permitted under applicable law from and against any liabilities, costs, claims and expenses, including all costs and expenses incurred in defense of any Proceeding (including attorneys’ fees). Costs and expenses incurred by the Executive in defense of such Proceeding (including attorneys’ fees) shall be paid by the Company in advance of the final disposition of such litigation upon receipt by the Company of: (i) a written request for payment; (ii) appropriate documentation evidencing the incurrence, amount and nature of the costs and expenses for which payment is being sought; and (iii) an undertaking adequate under applicable law made by or on behalf of the Executive to repay the amounts so paid if it shall ultimately be determined that the Executive is not entitled to be indemnified by the Company under this Agreement.
(b) During the Employment Term and for a period of six (6) years thereafter, the Company or any successor to the Company shall purchase and maintain, at its own expense, directors’ and officers’ liability insurance providing coverage to the Executive on terms that are no less favorable than the coverage provided to other directors and senior officers of the Company.
5. Termination of Employment. The Employment Term and the Executive’s employment hereunder may be terminated by either the Company or the Executive at any time and for any reason; provided that, unless otherwise provided herein, either party shall be required to give the other party at least 90 days advance written notice of any termination of the Executive’s employment. Upon termination of the Executive’s employment during the Employment Term, the Executive shall be entitled to the compensation and benefits described in this Section 5 and shall have no further rights to any compensation or any other benefits from the Company or any of its affiliates.
5.1 For Cause or Without Good Reason.
(a) The Executive’s employment hereunder may be terminated by the Company for Cause or by the Executive without Good Reason. If the Executive’s employment is terminated by the Company for Cause or by the Executive without Good Reason, the Executive shall be entitled to receive:
(i) any accrued but unpaid Base Salary and accrued but unused vacation which shall be paid on the Termination Date (as defined below)/within one (1) week following the Termination Date (as defined below)/on the pay date immediately following the Termination Date (as defined below) in accordance with the Company’s customary payroll procedures;
(ii) any earned but unpaid Annual Bonus with respect to any completed fiscal year immediately preceding the Termination Date, which shall be paid on the otherwise applicable payment date except to the extent payment is otherwise deferred pursuant to any applicable deferred compensation arrangement; provided that, if the Executive’s employment is terminated by the Company for Cause, then any such accrued but unpaid Annual Bonus shall be forfeited;
(iii) reimbursement for unreimbursed business expenses properly incurred by the Executive, which shall be subject to and paid in accordance with the Company’s expense reimbursement policy; and
(iv) such employee benefits (including equity compensation), if any, as to which the Executive may be entitled under the Company’s employee benefit plans as of the Termination Date; provided that, in no event shall the Executive be entitled to any payments in the nature of severance or termination payments except as specifically provided herein.
Items 5.1(a)(i) through 5.1(a)(iv) are referred to herein collectively as the “Accrued Amounts”.
(b) For purposes of this Agreement, “Cause” shall mean:
(i) the Executive’s willful failure to perform his duties (other than any such failure resulting from incapacity due to physical or mental illness);
(ii) the Executive’s willful failure to comply with any valid and legal directive of the Board;
(iii) the Executive’s willful engagement in dishonesty, illegal conduct or gross misconduct, which is, in each case, materially injurious to the Company or its affiliates;
(iv) the Executive’s embezzlement, misappropriation, or fraud, whether or not related to the Executive’s employment with the Company;
(v) the Executive’s conviction of or plea of guilty or nolo contendere to a crime that constitutes a felony (or state law equivalent) or a crime that constitutes a misdemeanor involving moral turpitude, if such felony or other crime is work-related, materially impairs the Executive’s ability to perform services for the Company or results in material harm to the Company or its affiliates;
(vi) the Executive’s violation of a material policy of the Company;
(vii) the Executive’s willful unauthorized disclosure of Confidential Information (as defined below);
(viii) the Executive’s material breach of any material obligation under this Agreement or any other written agreement between the Executive and the Company; or
(ix) any material failure by the Executive to comply with the Company’s written policies or rules, as they may be in effect from time to time during the Employment Term, if such failure causes material harm to the Company.
For purposes of this provision, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company.
Termination of the Executive’s employment shall not be deemed to be for Cause unless and until the Company delivers to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than a majority of the Board (after reasonable written notice is provided to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board), finding that the Executive is guilty of the conduct described in any of (i)-(ix) above. Except for a failure, breach or refusal which, by its nature, cannot reasonably be expected to be cured, the Executive shall have ten (10) business days from the delivery of written notice by the Company within which to cure any acts constituting Cause; provided however, that, if the Company reasonably expects irreparable injury from a delay of ten (10) business days, the Company may give the Executive notice of such shorter period within which to cure as is reasonable under the circumstances, which may include the termination of the Executive’s employment without notice and with immediate effect.
(c) For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following, in each case during the Employment Term without the Executive’s written consent:
(i) a material reduction in the Executive’s Base Salary;
(ii) a material reduction in the Executive’s Target Bonus opportunity;
(iii) any material breach by the Company of any material provision of this Agreement or any material provision of any other agreement between the Executive and the Company;
(iv) the Company’s failure to obtain an agreement from any successor to the Company to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no succession had taken place, except where such assumption occurs by operation of law;
(v) the Company’s failure to nominate the Executive for election to the Board and to use its best efforts to have him elected and re-elected, as applicable;
(vi) a material, adverse change in the Executive’s title, authority, duties or responsibilities (other than temporarily while the Executive is physically or mentally incapacitated or as required by applicable law) taking into account the Company’s size, status as a public company and capitalization as of the date of this Agreement; or
(viii) a material adverse change in the reporting structure applicable to the Executive.
The Executive cannot terminate his employment for Good Reason unless he has provided written notice to the Company of the existence of the circumstances providing grounds for termination for Good Reason within 30 days of the initial existence of such grounds and the Company has had at least 30 days from the date on which such notice is provided to cure such circumstances. If the Executive does not terminate his employment for Good Reason within 60 days after the first occurrence of the applicable grounds, then the Executive will be deemed to have waived his right to terminate for Good Reason with respect to such grounds.
Notwithstanding the foregoing, in the event that a Change in Control (as defined below) occurs during the Employment Term, the Executive may terminate his employment for any reason during the 60-day period following the Change in Control and such termination shall be deemed to be for Good Reason.
5.2 Without Cause or for Good Reason. The Employment Term and the Executive’s employment hereunder may be terminated by the Executive for Good Reason or by the Company without Cause. In the event of such termination, the Executive shall be entitled to receive the Accrued Amounts and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement and his execution of a release of claims in favor of the Company, its affiliates and their respective officers and directors in a form provided by the Company (the “Release”) and such Release becoming effective within 30 days following the Termination Date (such 30-day period, the “Release Execution Period”), the Executive shall be entitled to receive the following:
(a) a lump sum payment equal to the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within 30 days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year;
(b) a payment equal to the product of (i) the Annual Bonus, if any, that the Executive would have earned for the fiscal year in which the Date of Termination occurs based on achievement of the applicable performance goals for such year and (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”). This amount shall be paid on the date that annual bonuses are paid to similarly situated executives, but in no event later than two-and-a-half (2 1/2) months following the end of the fiscal year in which the Termination Date occurs;
(c) If the Executive timely and properly elects continuation coverage under the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”), the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 30th of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive receives substantially similar coverage from another employer.
(d) The treatment of any outstanding equity awards shall be determined in accordance with the terms of the 2024 Stock Incentive Plan and the applicable award agreements.
(e) Notwithstanding the terms of the 2024 Stock Incentive Plan or any applicable award agreements:
(i) all outstanding unvested stock options/stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term.
(ii) all outstanding equity-based compensation awards other than stock options/stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A of the Code (“Section 409A”) shall remain in effect; and
(iii) all outstanding equity-based compensation awards other than stock options/stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
5.3 Death or Disability.
(a) The Executive’s employment hereunder shall terminate automatically upon the Executive’s death during the Employment Term, and the Company may terminate the Executive’s employment on account of the Executive’s Disability.
(b) If the Executive’s employment is terminated during the Employment Term on account of the Executive’s death or Disability, the Executive (or the Executive’s estate and/or beneficiaries, as the case may be) shall be entitled to receive the following:
(i) the Accrued Amounts; and
(ii) a lump sum payment equal to the Annual Bonus, if any, that the Executive would have earned for the fiscal year in which the Termination Date occurs based on the achievement of applicable performance goals for such year, which shall be payable on the date that annual bonuses are paid to the Company’s similarly situated executives, but in no event later than two-and-a-half (2 1/2) months following the end of the fiscal year in which the Termination Date occurs.
Notwithstanding any other provision contained herein, all payments made in connection with the Executive’s Disability shall be provided in a manner which is consistent with federal and state law.
(c) For purposes of this Agreement, Disability shall mean the Executive’s inability, due to physical or mental incapacity, to substantially perform his duties and responsibilities under this Agreement for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty (120) consecutive days; provided however, in the event the Company temporarily replaces the Executive, or transfers the Executive’s duties or responsibilities to another individual on account of the Executive’s inability to perform such duties due to a mental or physical incapacity which is, or is reasonably expected to become, a Disability, then the Executive’s employment shall not be deemed terminated by the Company and the Executive shall not be able to resign with Good Reason as a result thereof. Any question as to the existence of the Executive’s Disability as to which the Executive and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to the Executive and the Company. If the Executive and the Company cannot agree as to a qualified independent physician, each shall appoint such a physician, and those two physicians shall select a third who shall make such determination in writing. The determination of Disability made in writing to the Company and the Executive shall be final and conclusive for all purposes of this Agreement.
5.4 Change in Control Termination.
(a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Company on account of its failure to renew the Agreement in accordance with Section 1 or without Cause (other than on account of the Executive’s death or Disability), in each case within twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement and his execution of a Release which becomes effective within 30 days following the Termination Date, the Executive shall be entitled to receive the following:
(i) a lump sum payment equal to the sum of the Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs (or if greater, the year immediately preceding the year in which the Change in Control occurs), which shall be paid within 30 days following the Termination Date: provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year;
(ii) a lump sum payment equal to the Executive’s Target Bonus for the fiscal year in which the Date of Termination occurs (or if greater, the year in which the Change in Control occurs), which shall be paid within sixty (60) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year;
(b) If the Executive timely and properly elects continuation coverage under COBRA, the Company shall reimburse the Executive for the monthly COBRA premium paid by the Executive for himself and his dependents. Such reimbursement shall be paid to the Executive on the 30th of the month immediately following the month in which the Executive timely remits the premium payment. The Executive shall be eligible to receive such reimbursement until the earliest of: (i) the eighteen-month anniversary of the Termination Date; (ii) the date the Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive receives substantially similar coverage from another employer.
(c) Notwithstanding the terms of any equity incentive plan or award agreements, as applicable:
(i) all outstanding unvested stock options/stock appreciation rights granted to the Executive during the Employment Term shall become fully vested and exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards other than stock options/stock appreciation rights that are not intended to qualify as performance-based compensation under Section 162(m)(4)(C) shall become fully vested and the restrictions thereon shall lapse; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award agreement and that are required under Section 409A shall remain in effect; and
(iii) all outstanding equity-based compensation awards other than stock options/stock appreciation rights that are intended to constitute performance-based compensation under Section 162(m)(4)(C) shall remain outstanding and shall vest or be forfeited in accordance with the terms of the applicable award agreements, if the applicable performance goals are satisfied.
(d) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following:
(i) one person (or more than one person acting as a group) acquires ownership of stock of the Company that, together with the stock held by such person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of such corporation; provided that, a Change in Control shall not occur if any person (or more than one person acting as a group) owns more than 50% of the total fair market value or total voting power of the Company’s stock and acquires additional stock;
(ii) one person (or more than one person acting as a group) acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) ownership of the Company’s stock possessing 30% or more of the total voting power of the stock of such corporation;
(iii) a majority of the members of the Board are replaced during any twelve-month period by directors whose appointment or election is not endorsed by a majority of the Board before the date of appointment or election; or
(iv) the sale of all or substantially all of the Company’s assets.
Notwithstanding the foregoing, a Change in Control shall not occur unless such transaction constitutes a change in the ownership of the Company, a change in effective control of the Company, or a change in the ownership of a substantial portion of the Company’s assets under Section 409A.
5.5 Notice of Termination. Any termination of the Executive’s employment hereunder by the Company or by the Executive during the Employment Term (other than termination pursuant to Section 5.3(a) on account of the Executive’s death) shall be communicated by written notice of termination (“Notice of Termination”) to the other party hereto in accordance with Section 27. The Notice of Termination shall specify:
(a) The termination provision of this Agreement relied upon;
(b) To the extent applicable, the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated; and
(c) The applicable Termination Date.
5.6 Termination Date. The Executive’s Termination Date shall be:
(a) If the Executive’s employment hereunder terminates on account of the Executive’s death, the date of the Executive’s death;
(b) If the Executive’s employment hereunder is terminated on account of the Executive’s Disability, the date that it is determined that the Executive has a Disability;
(c) If the Company terminates the Executive’s employment hereunder for Cause, the date the Notice of Termination is delivered to the Executive;
(d) If the Company terminates the Executive’s employment hereunder without Cause, the date specified in the Notice of Termination, which shall be no less than 60 days following the date on which the Notice of Termination is delivered; provided that, the Company shall have the option to provide the Executive with a lump sum payment equal to 365 days’ Base Salary in lieu of such notice, which shall be paid in a lump sum on the Executive’s Termination Date and for all purposes of this Agreement, the Executive’s Termination Date shall be the date on which such Notice of Termination is delivered;
(e) If the Executive terminates his employment hereunder with or without Good Reason, the date specified in the Executive’s Notice of Termination, which shall be no less than 60 days following the date on which the Notice of Termination is delivered; provided that, the Company may waive all or any part of the 60 day notice period for no consideration by giving written notice to the Executive and for all purposes of this Agreement, the Executive’s Termination Date shall be the date determined by the Company; and
(f) If the Executive’s employment hereunder terminates because either party provides notice of non-renewal pursuant to Section 1, the Renewal Date immediately following the date on which the applicable party delivers notice of non-renewal.
Notwithstanding anything contained herein, the Termination Date shall not occur until the date on which the Executive incurs a “separation from service” within the meaning of Section 409A.
5.7 Mitigation. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and except as provided in Section 5.2©, any amounts payable pursuant to this Section 5 shall not be reduced by compensation the Executive earns on account of employment with another employer.
5.8 Resignation of All Other Positions. Upon termination of the Executive’s employment hereunder for any reason, the Executive agrees to resign, effective on the Termination Date/shall be deemed to have resigned from all positions that the Executive holds as an officer or member of the board of directors (or a committee thereof) of the Company or any of its affiliates.
5.9 Section 280G.
(a) If any of the payments or benefits received or to be received by the Executive (including, without limitation, any payment or benefits received in connection with a Change in Control or the Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and will be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Company shall pay to the Executive, no later than the time such Excise Tax is required to be paid by the Executive or withheld by the Company, an additional amount equal to the sum of the Excise Tax payable by the Executive, plus the amount necessary to put the Executive in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest applicable rates on such 280G Payments and on any payments under this Section 5.9 or otherwise) as if no Excise Tax had been imposed.
(b) All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Company (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Company and the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.
6. Cooperation. The parties agree that certain matters in which the Executive will be involved during the Employment Term may necessitate the Executive’s cooperation in the future. Accordingly, following the termination of the Executive’s employment for any reason, to the extent reasonably requested by the Board, the Executive shall cooperate with the Company in connection with matters arising out of the Executive’s service to the Company; provided that, the Company shall make reasonable efforts to minimize disruption of the Executive’s other activities. The Company shall reimburse the Executive for reasonable expenses incurred in connection with such cooperation and, to the extent that the Executive is required to spend substantial time on such matters, the Company shall compensate the Executive at an hourly rate based on the Executive’s Base Salary on the Termination Date.
7. Confidential Information. The Executive understands and acknowledges that during the Employment Term, he will have access to and learn about Confidential Information, as defined below.
7.1 Confidential Information Defined.
(a) Definition.
For purposes of this Agreement, “Confidential Information” includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, manuals, records, articles, systems, material, sources of material, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, design information, payroll information, staffing information, personnel information, employee lists, supplier lists, vendor lists, developments, reports, internal controls, security procedures, graphics, drawings, sketches, market studies, sales information, revenue, costs, formulae, notes, communications, algorithms, product plans, designs, styles, models, ideas, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, customer lists, client information, client lists, manufacturing information, factory lists, distributor lists, and buyer lists of the Company or its businesses or any existing or prospective customer, supplier, investor or other associated third party, or of any other person or entity that has entrusted information to the Company in confidence.
The Executive understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used.
The Executive understands and agrees that Confidential Information includes information developed by him in the course of his employment by the Company as if the Company furnished the same Confidential Information to the Executive in the first instance. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to the Executive; provided that, such disclosure is through no direct or indirect fault of the Executive or person(s) acting on the Executive’s behalf.
(b) Company Creation and Use of Confidential Information.
The Executive understands and acknowledges that the Company has invested, and continues to invest, substantial time, money and specialized knowledge into developing its resources, creating a customer base, generating customer and potential customer lists, training its employees, and improving its offerings in the field of artificial intelligence, blockchain, web 3.0 and datacenters. The Executive understands and acknowledges that as a result of these efforts, the Company has created and continues to use and create Confidential Information. This Confidential Information provides the Company with a competitive advantage over others in the marketplace.
(c) Disclosure and Use Restrictions.
The Executive agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate or make available Confidential Information, or allow it to be disclosed, published, communicated or made available, in whole or part, to any entity or person whatsoever (including other employees of the Company) not having a need to know and authority to know and use the Confidential Information in connection with the business of the Company and, in any event, not to anyone outside of the direct employ of the Company except as required in the performance of the Executive’s authorized employment duties to the Company or with the prior consent of CEO acting on behalf of the Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent); and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media or other resources containing any Confidential Information, or remove any such documents, records, files, media or other resources from the premises or control of the Company, except as required in the performance of the Executive’s authorized employment duties to the Company or with the prior consent of CEO acting on behalf of the Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent). Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation or order. The Executive shall promptly provide written notice of any such order to CEO.
The Executive understands and acknowledges that his obligations under this Agreement with regard to any particular Confidential Information shall commence immediately upon the Executive first having access to such Confidential Information (whether before or after he begins employment by the Company) and shall continue during and after his employment by the Company until such time as such Confidential Information has become public knowledge other than as a result of the Executive’s breach of this Agreement or breach by those acting in concert with the Executive or on the Executive’s behalf.
8. Restrictive Covenants.
8.1 Acknowledgment. The Executive understands that the nature of the Executive’s position gives him/her access to and knowledge of Confidential Information and places him in a position of trust and confidence with the Company.
The Executive further understands and acknowledges that the Company’s ability to reserve these for the exclusive knowledge and use of the Company is of great competitive importance and commercial value to the Company, and that improper use or disclosure by the Executive is likely to result in unfair or unlawful competitive activity.
8.2 Non-competition. Because of the Company’s legitimate business interest as described herein and the good and valuable consideration offered to the Executive, during the Employment Term and for one year, to run consecutively, beginning on the last day of the Executive’s employment with the Company, for any reason or no reason and whether employment is terminated at the option of the Executive or the Company, the Executive agrees and covenants not to engage in Prohibited Activity within the cloud storage data center industry or industries.
For purposes of this Section 8, “Prohibited Activity” is activity in which the Executive contributes his knowledge, directly or indirectly, in whole or in part, as an employee, employer, owner, operator, manager, advisor, consultant, agent, employee, partner, director, stockholder, officer, volunteer, intern or any other similar capacity to an entity engaged in the same or similar business as the Company, including those engaged in the business of data center and storage industry. Prohibited Activity also includes activity that may require or inevitably requires disclosure of trade secrets, proprietary information or Confidential Information.
Nothing herein shall prohibit the Executive from purchasing or owning less than five percent (5%) of the publicly traded securities of any corporation, provided that such ownership represents a passive investment and that the Executive is not a controlling person of, or a member of a group that controls, such corporation.
This Section 8 does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation or order. The Executive shall promptly provide written notice of any such order to the Secretary of the Company.
8.3 Non-solicitation of Employees. The Executive agrees and covenants not to directly or indirectly solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment of any employee of the Company during 12 months, to run consecutively, beginning on the last day of the Executive’s employment with the Company.
8.4 Non-solicitation of Customers. The Executive understands and acknowledges that because of the Executive’s experience with and relationship to the Company, he will have access to and learn about much or all of the Company’s customer information. “Customer Information” includes, but is not limited to, names, phone numbers, addresses, e-mail addresses, order history, order preferences, chain of command, pricing information and other information identifying facts and circumstances specific to the customer and relevant to sales.
The Executive understands and acknowledges that loss of this customer relationship and/or goodwill will cause significant and irreparable harm.
The Executive agrees and covenants, during 12 months, to run consecutively, beginning on the last day of the Executive’s employment with the Company, not to directly or indirectly solicit, contact (including but not limited to e-mail, regular mail, express mail, telephone, fax, and instant message), attempt to contact or meet with the Company’s current customers for purposes of offering or accepting goods or services similar to or competitive with those offered by the Company.
This restriction shall only apply to:
(a) Customers or prospective customers the Executive contacted in any way during the past 12 months.
(b) Customers about whom the Executive has trade secret or confidential information.
(c) Customers who became customers during employment with the Company.
(d) Customers about whom the Executive has information that is not available publicly.
9. Non-disparagement. The Executive agrees and covenants that he will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning the Company or its businesses, or any of its employees, officers, and existing and prospective customers, suppliers, investors and other associated third parties.
This Section 9 does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation or order. The Executive shall promptly provide written notice of any such order to the Company’s Secretary.
10. Acknowledgement. The Executive acknowledges and agrees that the services to be rendered by him to the Company are of a special and unique character; that the Executive will obtain knowledge and skill relevant to the Company’s industry, methods of doing business and marketing strategies by virtue of the Executive’s employment; and that the restrictive covenants and other terms and conditions of this Agreement are reasonable and reasonably necessary to protect the legitimate business interest of the Company.
The Executive further acknowledges that the amount of his compensation reflects, in part, his obligations and the Company’s rights under Section 7, Section 8 and Section 9 of this Agreement; that he has no expectation of any additional compensation, royalties or other payment of any kind not otherwise referenced herein in connection herewith; that he will not be subject to undue hardship by reason of his full compliance with the terms and conditions of Section 7, Section 8 and Section 9 of this Agreement or the Company’s enforcement thereof.
11. Remedies. In the event of a breach or threatened breach by the Executive of Section 7, Section 8 or Section 9 of this Agreement, the Executive hereby consents and agrees that the Company shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief.
12. Arbitration. In the event of any dispute under or relating to the terms of this Agreement, or breach thereof. it is agreed that the same shall be submitted to arbitration to the American Arbitration Association, at Las Vegas, Nevada. The arbitration shall be conducted in accordance with the rules promulgated by that Association. Any judgment upon the award rendered by the arbitrator(s) may be entered in any court, state or federal, having jurisdiction thereof.
13. Proprietary Rights.
13.1 Work Product. The Executive acknowledges and agrees that all writings, works of authorship, technology, inventions, discoveries, ideas and other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived or reduced to practice by the Executive individually or jointly with others during the period of his employment by the Company and relating in any way to the business or contemplated business, research or development of the Company (regardless of when or where the Work Product is prepared or whose equipment or other resources is used in preparing the same) and all printed, physical and electronic copies, all improvements, rights and claims related to the foregoing, and other tangible embodiments thereof (collectively, “Work Product”), as well as any and all rights in and to copyrights, trade secrets, trademarks (and related goodwill), patents and other intellectual property rights therein arising in any jurisdiction throughout the world and all related rights of priority under international conventions with respect thereto, including all pending and future applications and registrations therefor, and continuations, divisions, continuations-in-part, reissues, extensions and renewals thereof (collectively, “Intellectual Property Rights”), shall be the sole and exclusive property of the Company.
For purposes of this Agreement, Work Product includes, but is not limited to, Company information, including plans, publications, research, strategies, techniques, agreements, documents, contracts, terms of agreements, negotiations, know-how, computer programs, computer applications, software design, web design, work in process, databases, manuals, results, developments, reports, graphics, drawings, sketches, market studies, formulae, notes, communications, algorithms, product plans, product designs, styles, models, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, client information, customer lists, client lists, manufacturing information, marketing information, advertising information, and sales information.
13.2 Work Made for Hire: Assignment. The Executive acknowledges that, by reason of being employed by the Company at the relevant times, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. § 101 and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, the Executive hereby irrevocably assigns to the Company, for no additional consideration, the Executive’s entire right, title and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim and recover for all past, present and future infringement, misappropriation or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Company would have had in the absence of this Agreement.
13.3 Further Assurances; Power of Attorney. During and after his employment, the Executive agrees to reasonably cooperate with the Company to (a) apply for, obtain, perfect and transfer to the Company the Work Product as well as an Intellectual Property Right in the Work Product in any jurisdiction in the world; and (b) maintain, protect and enforce the same, including, without limitation, executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments and other documents and instruments as shall be requested by the Company. The Executive hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on the Executive’s behalf in his name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer, issuance, prosecution and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if the Executive does not promptly cooperate with the Company’s request (without limiting the rights the Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by the Executive’s subsequent incapacity.
13.4 No License. The Executive understands that this Agreement does not, and shall not be construed to, grant the Executive any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software or other tools made available to him by the Company.
14. Security.
14.1 Security and Access. The Executive agrees and covenants (a) to comply with all Company security policies and procedures as in force from time to time including without limitation those regarding computer equipment, telephone systems, voicemail systems, facilities access, monitoring, key cards, access codes, Company intranet, internet, social media and instant messaging systems, computer systems, e-mail systems, computer networks, document storage systems, software, data security, encryption, firewalls, passwords and any and all other Company facilities, IT resources and communication technologies (“Facilities Information Technology and Access Resources”); (b) not to access or use any Facilities and Information Technology Resources except as authorized by the Company; and (iii) not to access or use any Facilities and Information Technology Resources in any manner after the termination of the Executive’s employment by the Company, whether termination is voluntary or involuntary. The Executive agrees to notify the Company promptly in the event he learns of any violation of the foregoing by others, or of any other misappropriation or unauthorized access, use, reproduction or reverse engineering of, or tampering with any Facilities and Information Technology Access Resources or other Company property or materials by others.
14.2 Exit Obligations. Upon (a) voluntary or involuntary termination of the Executive’s employment or (b) the Company’s request at any time during the Executive’s employment, the Executive shall (i) provide or return to the Company any and all Company property, including keys, key cards, access cards, identification cards, security devices, employer credit cards, network access devices, computers, cell phones, smartphones, PDAs, pagers, fax machines, equipment speakers, webcams, manuals, reports, files, books, compilations, work product, e-mail messages, recordings, tapes, disks, thumb drives or other removable information storage devices, hard drives, negatives and data and all Company documents and materials belonging to the Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information or Work Product, that are in the possession or control of the Executive, whether they were provided to the Executive by the Company or any of its business associates or created by the Executive in connection with his employment by the Company; and (ii) delete or destroy all copies of any such documents and materials not returned to the Company that remain in the Executive’s possession or control, including those stored on any non-Company devices, networks, storage locations and media in the Executive’s possession or control.
15. Publicity. The Executive hereby irrevocably consents to any and all uses and displays, by the Company and its agents, representatives and licensees, of the Executive’s name, voice, likeness, image, appearance and biographical information in, on or in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes and all other printed and electronic forms and media throughout the world, at any time during or after the period of his employment by the Company, for all legitimate commercial and business purposes of the Company (“Permitted Uses”). without further consent from or royalty, payment or other compensation to the Executive. The Executive hereby forever waives and releases the Company and its directors, officers, employees and agents from any and all claims, actions, damages, losses, costs, expenses and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the period of his employment by the Company, arising directly or indirectly from the Company’s and its agents’, representatives’ and licensees’ exercise of their rights in connection with any Permitted Uses.
16. Governing Law: Jurisdiction and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of Nevada without regard to conflicts of law principles. Any action or proceeding by either of the parties to enforce this Agreement shall be brought only in a state or federal court located in the state of Nevada, county of Clark. The parties hereby irrevocably submit to the non-exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
17. Entire Agreement. Unless specifically provided herein, this Agreement contains all of the understandings and representations between the Executive and the Company pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. The parties mutually agree that the Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement.
18. Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the Executive and by Secretary of the Company. No waiver by either of the parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the parties in exercising any right, power or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
19. Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement. The parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the maximum extent permitted by law. The parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been set forth herein.
20. Captions. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
21. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
22. Tolling. Should the Executive violate any of the terms of the restrictive covenant obligations articulated herein, the obligation at issue will run from the first date on which the Executive ceases to be in violation of such obligation.
23. Section 409A. This Agreement is intended to comply with Section 409A or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a “separation from service” under Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Executive on account of non- compliance with Section 409A.
Notwithstanding any other provision of this Agreement, if any payment or benefit provided to the Executive in connection with his termination of employment is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A and the Executive is determined to be a “specified employee” as defined in Section 409A(a)(2)(b)(i), then such payment or benefit shall not be paid until the first payroll date to occur following the six-month anniversary of the Termination Date (the “Specified Employee Payment Date”). The aggregate of any payments that would otherwise have been paid before the Specified Employee Payment Date shall be paid to the Executive in a lump sum on the Specified Employee Payment Date and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule.
24. Successors and Assigns. This Agreement is personal to the Executive and shall not be assigned by the Executive. Any purported assignment by the Executive shall be null and void from the initial date of the purported assignment. The Company may assign this Agreement to any successor or assign (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company. This Agreement shall inure to the benefit of the Company and permitted successors and assigns.
25. Notice. Notices and all other communications provided for in this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, or by overnight carrier to the parties at the addresses set forth below (or such other addresses as specified by the parties by like notice):
If to the Company:
VERTICAL DATA INC.
Attention: Christopher Creatura
1980 Festival Plaza Drive Summerlin 300
Las Vegas, NV 89135
chris@verticaldata.io
If to the Executive:
Attention: Deven Soni
d@deven.so
26. Representations of the Executive. The Executive represents and warrants to the Company that:
26.1 The Executive’s acceptance of employment with the Company and the performance of his duties hereunder will not conflict with or result in a violation of, a breach of, or a default under any contract, agreement or understanding to which he is a party or is otherwise bound.
26.2 The Executive’s acceptance of employment with the Company and the performance of his duties hereunder will not violate any non-solicitation, non-competition or other similar covenant or agreement of a prior employer.
27. Withholding. The Company shall have the right to withhold from any amount payable hereunder any Federal, state and local taxes in order for the Company to satisfy any withholding tax obligation it may have under any applicable law or regulation.
28. Survival. Upon the expiration or other termination of this Agreement, the respective rights and obligations of the parties hereto shall survive such expiration or other termination to the extent necessary to carry out the intentions of the parties under this Agreement.
29. Acknowledgment of Full Understanding. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT.
THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF HIS CHOICE BEFORE SIGNING THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above writt
| VERTICAL DATA INC. | EXECUTIVE | |||
| By: |  |
By: |  |
|
| Print Name: | Christopher Creatura | Print Name: | Deven Soni | |
| Title: | CFO | |||
| Address: | 1980 Festival Plaza Drive Summerlin 300 Las Vegas, NV 89135 | Address: | 3223 Turtle Head Peak Drive, Las Vegas, NV 89135 | |
| Email: | d@deven.so | |||
Exhibit 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (“Agreement”) is entered into as of July 1, 2024, (“Effective Date”) by and between Vertical Data Inc., a Nevada corporation (“Company”) and Conway Merchants Ltd, an entity (“Consultant”). The Company desires to retain Consultant as an independent contractor to perform consulting services for the Company, and Consultant is willing to perform such services, on the terms described below. In consideration of the mutual promises contained herein, the parties agree as follows:
1. Services and Compensation. Consultant agrees to perform for the Company the services described in Exhibit A ( “Services”), and the Company agrees to pay Consultant the compensation described in Exhibit A for Consultant’s performance of the Services.
2. Confidentiality.
A. Definition. “Confidential Information” means any non-public information that relates to the actual or anticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding Company’s products or services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted during the term of this Agreement), software, developments, inventions, processes, formulas, technology, designs, drawing, engineering, hardware configuration information, marketing, finances or other business information. Confidential Information does not include information that (i) is known to Consultant at the time of disclosure to Consultant by the Company as evidenced by written records of Consultant, (ii) has become publicly known and made generally available through no wrongful act of Consultant or (iii) has been rightfully received by Consultant from a third party who is authorized to make such disclosure.
B. Nonuse and Nondisclosure. Consultant will not, during or subsequent to the term of this Agreement, (i) use the Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of the Company or (ii) disclose the Confidential Information to any third party. Consultant agrees that all Confidential Information will remain the sole property of the Company. Consultant also agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information. Without the Company’s prior written approval, Consultant will not directly or indirectly disclose to anyone the existence of this Agreement or the fact that Consultant has this arrangement with the Company.
C. Former or Current Client Confidential Information. Consultant agrees that Consultant will not, during the term of this Agreement, improperly use or disclose any proprietary information or trade secrets of any former or current employer of Consultant or other person or entity with which Consultant has an agreement or duty to keep in confidence information acquired by Consultant, if any. Consultant also agrees that Consultant will not bring onto the Company’s premises any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entity.
D. Third Party Confidential Information. Consultant recognizes that the Company has received and, in the future, will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant agrees that, during the term of this Agreement and thereafter, Consultant owes the Company and such third parties a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out the Services for the Company consistent with the Company’s agreement with such third party.
E. Return of Materials. Upon the termination of this Agreement, or upon Company’s earlier request, Consultant will deliver to the Company all of the Company’s property, including but not limited to all electronically stored information and passwords to access such property, or Confidential Information that Consultant may have in Consultant’s possession or control.
3. Conflicting Obligations.
A. Conflicts. Consultant certifies that Consultant has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement or that would preclude Consultant from complying with the provisions of this Agreement. Consultant will not enter into any such conflicting agreement during the term of this Agreement. Consultant’s violation of this Section 3.A will be considered a material breach under Section 5.B.
B. Substantially Similar Designs. In view of Consultant’s access to the Company’s trade secrets and proprietary know-how, Consultant agrees that Consultant will not, without Company’s prior written approval, design identical or substantially similar designs as those developed under this Agreement for any third party during the term of this Agreement and for a period of 24 months after the termination of this Agreement. Consultant acknowledges that the obligations in this Section 3 are ancillary to Consultant’s nondisclosure obligations under Section 2.
| 1 |
C. Consultant’s Services to Others. The Company acknowledges that Consultant or its affiliates may provide services and consulting advice to others. Nothing herein contained shall be construed to limit or restrict Consultant in conducting such business with others, or in rendering such advice to others.
4. Reports. Consultant also agrees that Consultant will, from time to time during the term of this Agreement or any extension thereof, keep the Company advised as to Consultant’s progress in performing the Services under this Agreement. Consultant further agrees that Consultant will, as requested by the Company, prepare written reports with respect to such progress. The Company and Consultant agree that the time required to prepare such written reports will be considered time devoted to the performance of the Services.
5. Term and Termination.
A. Term. The term of this Agreement will begin on the date of this Agreement and will continue until the earlier of (i) final completion of the Services or (ii) termination as provided in Section 5.B. Regarding Confidential Information, the Consultant agrees to maintain confidentiality of all Confidential Information disclosed hereunder until the Confidential Information becomes publicly known and made generally available through no action or inaction of the Consultant, but in no event more than 3 years after the last disclosure of Confidential Information under this Agreement.
B. Termination. Either party may terminate this Agreement at any time upon giving the other party written notice of such termination pursuant to Section 10.F of this Agreement. The Company may terminate this Agreement immediately and without prior notice if Consultant refuses to or is unable to perform the Services or is in breach of any material provision of this Agreement, unless this Agreement has been terminated sooner (pursuant to the terms set forth in Section 5.A and 5.B. or unless both the Company and Consultant have mutually agreed in writing to extend the term of this Agreement.
C. Survival. Upon such termination, all rights and duties of the Company and Consultant toward each other shall cease except:
(1) The Company will pay, within 30 days after the effective date of termination, all amounts owing to Consultant for Services completed and accepted by the Company prior to the termination date and related expenses, if any, submitted in accordance with the Company’s policies and in accordance with the provisions of Section 1 of this Agreement; and
(2) Section 2 (Confidentiality), Section 3 (Conflicting Obligations), Section 6 (Independent Contractor; Benefits), Section 7 (Indemnification), Section 8 (Nonsolicitation) and Section 9 (Arbitration and Equitable Relief) will survive termination of this Agreement.
6. Independent Contractor; Benefits.
A. Independent Contractor. It is the express intention of the Company and Consultant that Consultant perform the Services as an independent contractor to the Company. Nothing in this Agreement shall in any way be construed to constitute Consultant as an agent, employee or representative of the Company. Without limiting the generality of the foregoing, Consultant is not authorized to bind the Company to any liability or obligation or to represent that Consultant has any such authority. Consultant agrees to furnish (or reimburse the Company for) all tools and materials necessary to accomplish this Agreement and shall incur all expenses associated with performance, except as expressly provided in Exhibit A. Consultant acknowledges and agrees that Consultant is obligated to report as income all compensation received by Consultant pursuant to this Agreement. Consultant agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income.
B. Benefits. The Company and Consultant agree that Consultant will receive no Company-sponsored benefits from the Company. If Consultant is reclassified by a state or federal agency or court as Company’s employee, Consultant will become a reclassified employee and will receive no benefits from the Company, except those mandated by state or federal law, even if by the terms of the Company’s benefit plans or programs of the Company in effect at the time of such reclassification, Consultant would otherwise be eligible for such benefits.
C. Taxes. Consultant acknowledges and agrees that it shall be the Consultant’s sole obligation to report as income all compensation received by the Consultant from the Company for the Consultant’s services as a consultant. Consultant will be liable for the payment of all income taxes upon the receipt of any funds from the Company. The Consultant will indemnify, keep indemnified and save the Company harmless of and from any and all liabilities, penalties, interest or other obligations which the Company may incur or become subject to in consequence of any monies which the Company may be called upon to pay in the future for or by reason of any other liability which it may have or which any appropriate governmental authority may claim to the Company has under the provisions of the Internal Revenue Service, Excise Tax Act (Canada), the Income Tax Act, or under any of the Regulations promulgated pursuant to any of those statutes.
| 2 |
7. Indemnification. Consultant agrees to indemnify and hold harmless the Company and its directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (i) any negligent, reckless or intentionally wrongful act of Consultant or Consultant’s assistants, employees or agents, (ii) a determination by a court or agency that the Consultant is not an independent contractor, (iii) any breach by the Consultant or Consultant’s assistants, employees or agents of any of the covenants contained in this Agreement,
(iv) any failure of Consultant to perform the Services in accordance with all applicable laws, rules and regulations, or (v) any violation or claimed violation of a third party’s rights resulting in whole or in part from the Company’s use of the work product of Consultant under this Agreement.
8. Nonsolicitation. From the date of this Agreement until 12 months after the termination of this Agreement (the “Restricted Period”), Consultant will not, without the Company’s prior written consent, directly or indirectly, solicit or encourage any employee or contractor of the Company or its affiliates to terminate employment with, or cease providing services to, the Company or its affiliates. During the Restricted Period, Consultant will not, whether for Consultant’s own account or for the account of any other person, firm, corporation or other business organization, intentionally interfere with any person who is or during the period of Consultant’s engagement by the Company was a partner, supplier, customer or client of the Company or its affiliates.
9. Arbitration. In the event of a dispute related to or arising from the terms of this Agreement such dispute shall be resolved before the American Arbitration Association in Clark County, Nevada.
10. Miscellaneous.
A. Governing Law. This Agreement shall be governed by the laws of Nevada without regard to Nevada’s conflicts of law rules.
B. Authorization. The parties hereby acknowledge that they are authorized to commit themselves and/or their corporation, partnership or group to the terms of this Agreement and do attest that there are no contracts, agreements, understanding or otherwise, either written or oral, that will make this Agreement void or unenforceable.
C. Assignability. The Consultant reserves the right to assign a portion of this Agreement to one or more sub- agents with respect to any services or Transaction, subject to the prior written consent of the Company. Any approved sub-agent shall be paid a portion of Transaction Fees as may be determined by the Consultant. The Company does acknowledge that the Consultant may pay other consultants or agents in connection with the services or Transaction(s).
D. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements between the parties regarding the subject matter of this Agreement.
E. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this Agreement.
F. Notices. Any notice or other communication required or permitted by this Agreement to be given to a party shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by U.S. registered or certified mail (return receipt requested), or sent via facsimile or electronic mail (with receipt of confirmation of complete transmission) to the party at the party’s address, facsimile or electronic mail written below or at such other address as the party may have previously specified by like notice. If by mail, delivery shall be deemed effective 3 business days after mailing in accordance with this Section 10(F).
(1) If to the Company, to:
VERTICAL DATA INC.
1980 Festival Plaza Drive Summerlin South, 300 Las Vegas, NV 89135
Attn: Deven Soni
Email: devensoni@gmail.com
(2) If to Consultant, to the address for notice on the signature page to this Agreement or, if no such address is provided, to the last address of Consultant provided by Consultant to the Company.
G. Attorneys’ Fees. In any court action at law or equity that is brought by one of the parties to this Agreement to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
H. Severability. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law.
| 3 |
I. Ownership of intellectual Property. Consultant acknowledges that every item of work product pertaining to or in any way related to the Company’s business created by the Consultant during their contract with the Company is and shall remain the sole and exclusive property of the Company. Work product shall include but not be limited to all intellectual property, including patents or patentable materials, as well as any marketing plans, analyses, studies, models, and other strategies, in each case, in whatever form or media, including the tangible media upon which they are recorded or printed, that is created, developed, conceived, made and/or reduced to practice by the Consultant, solely or in collaboration with others, in connection with the Services or that relates to any Proprietary Information. The Consultant hereby irrevocably fully assigns (and agrees to further assign in the future upon request) to the Company all rights, title and interest in and to all such work product, including, without limitation, any copyrights, patents rights, trade secret rights, trademark rights or other intellectual property or proprietary rights relating thereto of any sort throughout the world. If any such work product cannot be assigned under applicable law, the Consultant hereby grants to the Company an exclusive (even as to the Consultant), assignable, irrevocable, perpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, reproduce, distribute (through one or multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform and display, make, have made, sell, offer for sale and import such work product in any media now known or hereafter known. Outside the scope of the Services, the Consultant agrees not to: (a) modify, adapt, alter, translate, or create derivative works from any work product; or (b) merge any work product with other inventions or works of authorship. Consultant agrees to disclose to the Company any such ideas upon conception and to provide all assistance necessary to document such ideas and effectuate these provisions.
Consultant further waives for the benefit of the Company, in perpetuity throughout the world, their moral rights (including the moral rights of any of the Consultant’s employees or contractors in any work product, including without limitation, the rights to the integrity of the work product, the right to be associated with the work product, the right to modify the work product in any way, the right to prevent the use of the work product in association with any other product, service, cause or institution and the right to restrain the publication of the work product throughout the world (collectively, the “Moral Rights”). Without limiting the foregoing, the Consultant hereby grants to the Company the right to modify the work product, including without limitation, the right to produce or reproduce part of the work product or any derivative products based thereon and the right to use the work product in association with the product, service, cause or institution. The Consultant hereby agrees that anything which the Company may do with the work product, does not and will not constitute any prejudice to their honour or reputation. Further, the Consultant hereby transfers their right to restrain any violation of Moral Rights, including any distortion, mutilation or other modification of the work product, to Company or, failing the ability to transfer such right, the Consultant hereby irrevocably appoints the Company as their agent to enforce their rights to restrain any violation of the Moral Rights.
| 4 |
IN WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement as of the date first written above.
| COMPANY | CONSULTANT | |||
| VERTICAL DATA INC. | Conway Merchants Ltd | |||
| a Nevada corporation | ||||
| By: |  |
By: |  | |
| Deven Soni | Christopher Creatura | |||
| Address: | 993 Queen St. W, PH20 | |||
| Toronto, ON, M6J 1H2 | ||||
| Telephone: | 416-414-3874 | |||
| Email: | chris@conwaymerchants.com | |||
| 5 |
EXHIBIT A
Services and Compensation
| 1. | Services. Consultant will provide services as Chief Financial Officer, as determined by the Company’s Chief Executive Officer or other designated person by the Company’s Chief Executive Officer (the “Services”). Company shall determine the scope of the work to be performed, but Consultant shall have the ability to select the means, manner and method of performing these services. Consultant shall have the right to perform the projects in such manner as Consultant deems appropriate. Consultant further shall have the right to dictate his hours of work, his reporting time, as well as how much work to perform on-site. Consultant, however, agrees to use his best efforts to promote Company’s interests, and to give Company the benefit of his experience, knowledge, and skills. Consultant undertakes to perform services in a timely and professional manner and to devote such time, attention and skill to his duties under this Agreement as may reasonably be necessary to ensure the performance of the Services to the Company’s Chief Executive Officer’s satisfaction. |
Nothing herein shall be deemed to preclude Company from retaining the Services of other persons or entities undertaking the same or similar services as those undertaken by Consultant hereunder or from independently developing or acquiring materials or programs that are similar to, or competitive with, the services.
| 2. | Compensation. |
| a. | Fees and Commissions. |
| i. | The Company shall pay Consultant a monthly fee of $10,000, from July 1, 2024. This fee shall be reviewed at least annually by the Board, which may, but shall not be required to, adjust (but not decrease) the monthly fee during the term of the contract. Additionally, the Consultant is eligible to receive compensation for services rendered during May and June 2024 in the form of 121,677 shares. Of these, 100,000 shares will be founder shares, and the remaining 21,677 shares may be granted as stock options or RSUs. These shares are intended to be valued at $20,000, based on a $6 million company valuation. |
| b. | Equity. In consideration for providing the Services hereunder, the Consultant shall be allowed to purchase 1,600,000 shares of the Company’s common stock for the purchase price, and subject to the terms and conditions specified in a separate Restricted Stock Purchase Agreement. The Parties acknowledge that additional compensation may be paid to Consultant at the Board’s sole discretion. |
| c. | Options. Consultant shall receive a grant of stock options to purchase 750,000 shares of the Company’s common stock at an exercise price of $0.05 per share, and subject to the terms and conditions specified in a separate Stock Option Agreement. |
| d. | Bonus. For each fiscal year of the contract, the consultant shall be eligible to earn an annual bonus award (the “Annual Bonus”) of up to 50% of the yearly fee (the “Target Bonus”), and in no event less than $40,000, based upon the achievement of annual performance goals established by the Board/Compensation Committee of the Board (the “Compensation Committee”). The Board, at its discretion, may determine whether the bonus is awarded in cash or stock. |
| 6 |
Exhibit 10.3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (“Agreement”) is entered into as of July 1, 2024, (“Effective Date”) by and between Vertical Data Inc., a Nevada corporation (“Company”) and Sur Technology, an entity (“Consultant”). The Company desires to retain Consultant as an independent contractor to perform consulting services for the Company, and Consultant is willing to perform such services, on the terms described below. In consideration of the mutual promises contained herein, the parties agree as follows:
1. Services and Compensation. Consultant agrees to perform for the Company the services described in Exhibit A ( “Services”), and the Company agrees to pay Consultant the compensation described in Exhibit A for Consultant’s performance of the Services.
2. Confidentiality.
A. Definition. “Confidential Information” means any non-public information that relates to the actual or anticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding Company’s products or services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted during the term of this Agreement), software, developments, inventions, processes, formulas, technology, designs, drawing, engineering, hardware configuration information, marketing, finances or other business information. Confidential Information does not include information that (i) is known to Consultant at the time of disclosure to Consultant by the Company as evidenced by written records of Consultant, (ii) has become publicly known and made generally available through no wrongful act of Consultant or (iii) has been rightfully received by Consultant from a third party who is authorized to make such disclosure.
B. Nonuse and Nondisclosure. Consultant will not, during or subsequent to the term of this Agreement, (i) use the Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of the Company or (ii) disclose the Confidential Information to any third party. Consultant agrees that all Confidential Information will remain the sole property of the Company. Consultant also agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information. Without the Company’s prior written approval, Consultant will not directly or indirectly disclose to anyone the existence of this Agreement or the fact that Consultant has this arrangement with the Company.
C. Former or Current Client Confidential Information. Consultant agrees that Consultant will not, during the term of this Agreement, improperly use or disclose any proprietary information or trade secrets of any former or current employer of Consultant or other person or entity with which Consultant has an agreement or duty to keep in confidence information acquired by Consultant, if any. Consultant also agrees that Consultant will not bring onto the Company’s premises any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entity.
D. Third Party Confidential Information. Consultant recognizes that the Company has received and, in the future, will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant agrees that, during the term of this Agreement and thereafter, Consultant owes the Company and such third parties a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out the Services for the Company consistent with the Company’s agreement with such third party.
E. Return of Materials. Upon the termination of this Agreement, or upon Company’s earlier request, Consultant will deliver to the Company all of the Company’s property, including but not limited to all electronically stored information and passwords to access such property, or Confidential Information that Consultant may have in Consultant’s possession or control.
3. Conflicting Obligations.
A. Conflicts. Consultant certifies that Consultant has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement or that would preclude Consultant from complying with the provisions of this Agreement. Consultant will not enter into any such conflicting agreement during the term of this Agreement. Consultant’s violation of this Section 3.A will be considered a material breach under Section 5.B.
B. Substantially Similar Designs. In view of Consultant’s access to the Company’s trade secrets and proprietary know-how, Consultant agrees that Consultant will not, without Company’s prior written approval, design identical or substantially similar designs as those developed under this Agreement for any third party during the term of this Agreement and for a period of 24 months after the termination of this Agreement. Consultant acknowledges that the obligations in this Section 3 are ancillary to Consultant’s nondisclosure obligations under Section 2.
| 1 |
C. Consultant’s Services to Others. The Company acknowledges that Consultant or its affiliates may provide services and consulting advice to others. Nothing herein contained shall be construed to limit or restrict Consultant in conducting such business with others, or in rendering such advice to others.
4. Reports. Consultant also agrees that Consultant will, from time to time during the term of this Agreement or any extension thereof, keep the Company advised as to Consultant’s progress in performing the Services under this Agreement. Consultant further agrees that Consultant will, as requested by the Company, prepare written reports with respect to such progress. The Company and Consultant agree that the time required to prepare such written reports will be considered time devoted to the performance of the Services.
5. Term and Termination.
A. Term. The term of this Agreement will begin on the date of this Agreement and will continue until the earlier of (i) final completion of the Services or (ii) termination as provided in Section 5.B. Regarding Confidential Information, the Consultant agrees to maintain confidentiality of all Confidential Information disclosed hereunder until the Confidential Information becomes publicly known and made generally available through no action or inaction of the Consultant, but in no event more than 3 years after the last disclosure of Confidential Information under this Agreement.
B. Termination. Either party may terminate this Agreement at any time upon giving the other party written notice of such termination pursuant to Section 10.F of this Agreement. The Company may terminate this Agreement immediately and without prior notice if Consultant refuses to or is unable to perform the Services or is in breach of any material provision of this Agreement, unless this Agreement has been terminated sooner (pursuant to the terms set forth in Section 5.A and 5.B. or unless both the Company and Consultant have mutually agreed in writing to extend the term of this Agreement.
C. Survival. Upon such termination, all rights and duties of the Company and Consultant toward each other shall cease except:
(1) The Company will pay, within 30 days after the effective date of termination, all amounts owing to Consultant for Services completed and accepted by the Company prior to the termination date and related expenses, if any, submitted in accordance with the Company’s policies and in accordance with the provisions of Section 1 of this Agreement; and
(2) Section 2 (Confidentiality), Section 3 (Conflicting Obligations), Section 6 (Independent Contractor; Benefits), Section 7 (Indemnification), Section 8 (Nonsolicitation) and Section 9 (Arbitration and Equitable Relief) will survive termination of this Agreement.
6. Independent Contractor; Benefits.
A. Independent Contractor. It is the express intention of the Company and Consultant that Consultant perform the Services as an independent contractor to the Company. Nothing in this Agreement shall in any way be construed to constitute Consultant as an agent, employee or representative of the Company. Without limiting the generality of the foregoing, Consultant is not authorized to bind the Company to any liability or obligation or to represent that Consultant has any such authority. Consultant agrees to furnish (or reimburse the Company for) all tools and materials necessary to accomplish this Agreement and shall incur all expenses associated with performance, except as expressly provided in Exhibit A. Consultant acknowledges and agrees that Consultant is obligated to report as income all compensation received by Consultant pursuant to this Agreement. Consultant agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income.
B. Benefits. The Company and Consultant agree that Consultant will receive no Company-sponsored benefits from the Company. If Consultant is reclassified by a state or federal agency or court as Company’s employee, Consultant will become a reclassified employee and will receive no benefits from the Company, except those mandated by state or federal law, even if by the terms of the Company’s benefit plans or programs of the Company in effect at the time of such reclassification, Consultant would otherwise be eligible for such benefits.
C. Taxes. Consultant acknowledges and agrees that it shall be the Consultant’s sole obligation to report as income all compensation received by the Consultant from the Company for the Consultant’s services as a consultant. Consultant will be liable for the payment of all income taxes upon the receipt of any funds from the Company. The Consultant will indemnify, keep indemnified and save the Company harmless of and from any and all liabilities, penalties, interest or other obligations which the Company may incur or become subject to in consequence of any monies which the Company may be called upon to pay in the future for or by reason of any other liability which it may have or which any appropriate governmental authority may claim to the Company has under the provisions of the Internal Revenue Service, Excise Tax Act (Canada), the Income Tax Act, or under any of the Regulations promulgated pursuant to any of those statutes.
| 2 |
7. Indemnification. Consultant agrees to indemnify and hold harmless the Company and its directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (i) any negligent, reckless or intentionally wrongful act of Consultant or Consultant’s assistants, employees or agents, (ii) a determination by a court or agency that the Consultant is not an independent contractor, (iii) any breach by the Consultant or Consultant’s assistants, employees or agents of any of the covenants contained in this Agreement,
(iv) any failure of Consultant to perform the Services in accordance with all applicable laws, rules and regulations, or (v) any violation or claimed violation of a third party’s rights resulting in whole or in part from the Company’s use of the work product of Consultant under this Agreement.
8. Nonsolicitation. From the date of this Agreement until 12 months after the termination of this Agreement (the “Restricted Period”), Consultant will not, without the Company’s prior written consent, directly or indirectly, solicit or encourage any employee or contractor of the Company or its affiliates to terminate employment with, or cease providing services to, the Company or its affiliates. During the Restricted Period, Consultant will not, whether for Consultant’s own account or for the account of any other person, firm, corporation or other business organization, intentionally interfere with any person who is or during the period of Consultant’s engagement by the Company was a partner, supplier, customer or client of the Company or its affiliates.
9. Arbitration. In the event of a dispute related to or arising from the terms of this Agreement such dispute shall be resolved before the American Arbitration Association in Clark County, Nevada.
10. Miscellaneous.
A. Governing Law. This Agreement shall be governed by the laws of Nevada without regard to Nevada’s conflicts of law rules.
B. Authorization. The parties hereby acknowledge that they are authorized to commit themselves and/or their corporation, partnership or group to the terms of this Agreement and do attest that there are no contracts, agreements, understanding or otherwise, either written or oral, that will make this Agreement void or unenforceable.
C. Assignability. The Consultant reserves the right to assign a portion of this Agreement to one or more sub- agents with respect to any services or Transaction, subject to the prior written consent of the Company. Any approved sub-agent shall be paid a portion of Transaction Fees as may be determined by the Consultant. The Company does acknowledge that the Consultant may pay other consultants or agents in connection with the services or Transaction(s).
D. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements between the parties regarding the subject matter of this Agreement.
E. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this Agreement.
F. Notices. Any notice or other communication required or permitted by this Agreement to be given to a party shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by U.S. registered or certified mail (return receipt requested), or sent via facsimile or electronic mail (with receipt of confirmation of complete transmission) to the party at the party’s address, facsimile or electronic mail written below or at such other address as the party may have previously specified by like notice. If by mail, delivery shall be deemed effective 3 business days after mailing in accordance with this Section 10(F).
(1) If to the Company, to:
VERTICAL DATA INC.
1980 Festival Plaza Drive Summerlin South, 300 Las Vegas, NV 89135
Attn: Deven Soni
Email: devensoni@gmail.com
(2) If to Consultant, to the address for notice on the signature page to this Agreement or, if no such address is provided, to the last address of Consultant provided by Consultant to the Company.
G. Attorneys’ Fees. In any court action at law or equity that is brought by one of the parties to this Agreement to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
H. Severability. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law.
| 3 |
I. Ownership of intellectual Property. Consultant acknowledges that every item of work product pertaining to or in any way related to the Company’s business created by the Consultant during their contract with the Company is and shall remain the sole and exclusive property of the Company. Work product shall include but not be limited to all intellectual property, including patents or patentable materials, as well as any marketing plans, analyses, studies, models, and other strategies, in each case, in whatever form or media, including the tangible media upon which they are recorded or printed, that is created, developed, conceived, made and/or reduced to practice by the Consultant, solely or in collaboration with others, in connection with the Services or that relates to any Proprietary Information. The Consultant hereby irrevocably fully assigns (and agrees to further assign in the future upon request) to the Company all rights, title and interest in and to all such work product, including, without limitation, any copyrights, patents rights, trade secret rights, trademark rights or other intellectual property or proprietary rights relating thereto of any sort throughout the world. If any such work product cannot be assigned under applicable law, the Consultant hereby grants to the Company an exclusive (even as to the Consultant), assignable, irrevocable, perpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, reproduce, distribute (through one or multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform and display, make, have made, sell, offer for sale and import such work product in any media now known or hereafter known. Outside the scope of the Services, the Consultant agrees not to: (a) modify, adapt, alter, translate, or create derivative works from any work product; or (b) merge any work product with other inventions or works of authorship. Consultant agrees to disclose to the Company any such ideas upon conception and to provide all assistance necessary to document such ideas and effectuate these provisions.
Consultant further waives for the benefit of the Company, in perpetuity throughout the world, their moral rights (including the moral rights of any of the Consultant’s employees or contractors in any work product, including without limitation, the rights to the integrity of the work product, the right to be associated with the work product, the right to modify the work product in any way, the right to prevent the use of the work product in association with any other product, service, cause or institution and the right to restrain the publication of the work product throughout the world (collectively, the “Moral Rights”). Without limiting the foregoing, the Consultant hereby grants to the Company the right to modify the work product, including without limitation, the right to produce or reproduce part of the work product or any derivative products based thereon and the right to use the work product in association with the product, service, cause or institution. The Consultant hereby agrees that anything which the Company may do with the work product, does not and will not constitute any prejudice to their honour or reputation. Further, the Consultant hereby transfers their right to restrain any violation of Moral Rights, including any distortion, mutilation or other modification of the work product, to Company or, failing the ability to transfer such right, the Consultant hereby irrevocably appoints the Company as their agent to enforce their rights to restrain any violation of the Moral Rights.
| 4 |
IN WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement as of the date first written above.
| COMPANY | CONSULTANT | |||
| VERTICAL DATA INC. | Sur Technology | |||
| a Nevada corporation | ||||
| By: |  |
By: |  | |
| Deven Soni | Christopher W Johnson | |||
| Address: | 13217 Jamboree Rd #108 | |||
| Tustin, CA 92782 | ||||
| Telephone: | 714 654 8704 | |||
| Email: | chrisj@surtechno.com | |||
| 5 |
EXHIBIT A
Services and Compensation
| 1. | Services. Consultant will provide services as Head of Sales, as determined by the Company’s Chief Executive Officer or other designated person by the Company’s Chief Executive Officer (the “Services”). Company shall determine the scope of the work to be performed, but Consultant shall have the ability to select the means, manner and method of performing these services. Consultant shall have the right to perform the projects in such manner as Consultant deems appropriate. Consultant further shall have the right to dictate his hours of work, his reporting time, as well as how much work to perform on-site. Consultant, however, agrees to use his best efforts to promote Company’s interests, and to give Company the benefit of his experience, knowledge, and skills. Consultant undertakes to perform services in a timely and professional manner and to devote such time, attention and skill to his duties under this Agreement as may reasonably be necessary to ensure the performance of the Services to the Company’s Chief Executive Officer’s satisfaction. |
Nothing herein shall be deemed to preclude Company from retaining the Services of other persons or entities undertaking the same or similar services as those undertaken by Consultant hereunder or from independently developing or acquiring materials or programs that are similar to, or competitive with, the services.
| 2. | Compensation. |
| a. | Fees and Commissions. |
| i. | Fees. The Company shall pay Consultant a monthly fee of $15,000, from January 1, 2025, which shall be adjusted to $20,000 on a monthly basis upon the Company’s successful completion of an equity offering not less than $10 million in gross proceeds to the Company. |
| ii. | Commissions. Through December 31, 2024, Consultant will be paid commissions equal to 100% of gross profits on any and all sales originated and closed or booked by the Company through the direct efforts of Consultant. After January 1, 2025 and until the Company successfully completes an equity offering not less than $10 million in gross proceeds to the Company, Consultant will be paid commissions equal to 70% of gross profits on any and all sales originated and closed or booked by the Company through the direct efforts of Consultant. After the Company successfully completes an equity offering not less than $10 million in gross proceeds to the Company, Consultant will be paid commissions equal to 60% of gross profits on any and all sales originated and closed or booked by the Company through the direct efforts of Consultant. Each of the commission structures described above are collectively, “Commission Structure”. For any sales originated and closed or booked by the Company through the direct efforts of Consultant, which have been financed by the Company, the Company will discount the Commission Structure by 50%. |
| b. | Equity. In consideration for providing the Services hereunder, the Consultant shall be allowed to purchase 3,500,000 shares of the Company’s common stock for the purchase price, and subject to the terms and conditions specified in a separate Restricted Stock Purchase Agreement. The Parties acknowledge that additional compensation may be paid to Consultant at the Board’s sole discretion. |
| c. | Options. Consultant shall receive a grant of stock options to purchase 500,000 shares of the Company’s common stock at an exercise price of $0.05 per share, and subject to the terms and conditions specified in a separate Stock Option Agreement. |
| d. | Bonus. Bonus. Company shall pay Consultant a bonus on the achievement of the following: |
| i. | 200,000 Shares after the Company books the first One Million Dollars ($1,000,000) of gross profits from sales as a direct result of Consultant’s efforts; |
| ii. | At Consultant’s discretion, either $300,000 payable in U.S. dollars or 300,000 Shares after the Company books One Million Five Hundred Thousand Dollars ($1,500,000) of gross profits from sales as a direct result of Consultant’s efforts in the calendar year 2025. This amount includes and replaces the bonus described in Section 2(d)(i); and |
| iii. | At Consultant’s discretion, either $500,000 payable in U.S. dollars or 400,000 Shares after the Company books Two Million Dollars ($2,000,000) of gross profits from sales as a direct result of Consultant’s efforts in the calendar year 2025. This amount includes and replaces the bonuses described in Sections 2(d)(i) and 2(d)(ii). |
For avoidance of doubt, if Consultant achieves the milestone described in Section 2(d)(iii), Consultant will receive either $500,000 in U.S. dollars or 400,000 Shares in total—not cumulative amounts from Sections 2(d)(i) and 2(d)(ii).
| 6 |
Exhibit 10.4
VERTICAL DATA INC.
2024 INCENTIVE PLAN
1. Purpose. The purpose of the Plan is to assist the Company in attracting, retaining, motivating and rewarding certain employees, officers, directors, and consultants of the Company to promote the success of the Company’s business. The Plan authorizes the award of Stock-based and cash-based incentives to Eligible Persons.
2. Definitions. For purposes of the Plan, the following terms shall be defined as set forth below:
a. “Affiliate” means, with respect to a 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.
b. “Award” means any Option, award of Restricted Stock, Restricted Stock Unit, or other Stock-based or cash-based award granted a Participant under the Plan.
c. “Award Agreement” means an Option Agreement, a Restricted Stock Agreement, an RSU Agreement, or an agreement governing the grant of any other Award granted under the Plan.
d. “Board” means the Board of Directors of the Company.
i. “Cause” means, with respect to a Participant and in the absence of an Award Agreement or Participant Agreement otherwise defining Cause, (i) the Participant’s plea of guilty or nolo contendere to, conviction of, or indictment for, any crime (whether or not involving the Company or its Affiliates) (A) constituting a felony or (B) that has, or could reasonably be expected to result in, an adverse impact on the performance of the Participant’s duties to the Service Recipient, or otherwise has, or could reasonably be expected to result in, an adverse impact on the business or reputation of the Company or its Affiliates; (ii) conduct of the Participant, in connection with his or her employment or service, that has resulted, or could reasonably be expected to result, in injury to the business or reputation of the Company or its Affiliates; (iii) any material violation of the policies of the Service Recipient, including, but not limited to, those relating to sexual harassment, ethics, discrimination, or the disclosure or misuse of confidential information, or those set forth in the manuals, or statements of policy of the Service Recipient; (iv) the Participant’s act(s) of negligence or willful misconduct in the course of his or her employment or service with the Service Recipient; (v) misappropriation by the Participant of any assets or business opportunities of the Company or its Affiliates; (vi) embezzlement or fraud committed by the Participant, at the Participant’s direction, or with the Participant’s prior actual knowledge; or (vii) willful neglect in the performance of the Participant’s duties for the Service Recipient or willful or repeated failure or refusal to perform such duties. If, subsequent to the Termination of a Participant for any or no reason (other than a Termination by the Service Recipient for Cause), it is discovered that grounds to terminate the Participant’s employment or service for Cause existed, such Participant’s employment or service shall, at the discretion of the Committee, be deemed to have been terminated by the Service Recipient for Cause for all purposes under the Plan, and the Participant shall be required to repay or return to the Company all amounts and benefits received by him or her in respect of any Award following such Termination that would have been forfeited under the Plan had such Termination been by the Service Recipient for Cause. In the event that there is an Award Agreement or Participant Agreement defining Cause, “Cause” shall have the meaning provided in such agreement, and a Termination by the Service Recipient for Cause hereunder shall not be deemed to have occurred unless all applicable notice and cure periods in such Award Agreement or Participant Agreement are complied with.
| 1 |
e. “Change in Control” means:
i. a sale of all or substantially all of the Company’s assets other than to an Excluded Entity (as defined below);
ii. a merger, consolidation or other capital reorganization or business combination transaction of the Company with or into another corporation, limited liability company or other entity other than an Excluded Entity; or
iii. the consummation of a transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of all of the Company’s then outstanding voting securities.
Notwithstanding the foregoing, a transaction shall not constitute a Change of Control if its purpose is to (A) change the jurisdiction of the Company’s incorporation, (B) create a holding company that will be owned in substantially the same proportions by the persons who hold the Company’s securities immediately before such transaction, or (C) obtain funding for the Company in a financing that is approved by the Company’s Board. An “Excluded Entity” means a corporation or other entity of which the holders of voting capital stock of the Company outstanding immediately prior to such transaction are the direct or indirect holders of voting securities representing at least a majority of the votes entitled to be cast by all of such corporation’s or other entity’s voting securities outstanding immediately after such transaction.
f. “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, including the rules and regulations thereunder and any successor provisions, rules, and regulations thereto. Any reference in the Plan to any section of the Code shall be deemed to include reference to any rules, regulations, or other interpretative guidance under such section, and any amendments or successor provisions to such section, rules, regulations, or guidance.
g. “Committee” means the Board, the Compensation Committee of the Board, or such other committee consisting of two or more individuals appointed by the Board to administer the Plan and each other individual or committee of individuals designated to exercise authority under the Plan.
h. “Company” means Vertical Data, a Nevada corporation, and its successors by operation of law.
i. “Corporate Event” has the meaning set forth in Section 9(b) hereof.
j. “Data” has the meaning set forth in Section 19(g) hereof.
k. “Disability” means, in the absence of an Award Agreement or Participant Agreement otherwise defining Disability, the permanent and total disability of such Participant within the meaning of Section 22(e)(3) of the Code. In the event that there is an Award Agreement or Participant Agreement defining Disability, “Disability” shall have the meaning provided in such Award Agreement or Participant Agreement.
| 2 |
l. “Disqualifying Disposition” means any disposition (including any sale) of Stock acquired upon the exercise of an Incentive Stock Option made within the period that ends either (i) two (2) years after the date on which the Participant was granted the Incentive Stock Option or (ii) one (1) year after the date upon which the Participant acquired the Stock.
m. “Effective Date” means July 1, 2024, which is the date on which the Plan was approved by the Board.
n. “Eligible Person” means (i) each employee and officer of the Company or any of its Affiliates; (ii) each non-employee director of the Company or any of its Affiliates; (iii) each other natural Person who provides substantial services to the Company or any of its Affiliates as a consultant or advisor (or a wholly owned alter ego entity of the natural Person providing such services of which such Person is an employee, stockholder, or partner) and who is designated as eligible by the Committee; and (iv) each natural Person who has been offered employment by the Company or any of its Affiliates; provided that such prospective employee may not receive any payment or exercise any right relating to an Award until such Person has commenced employment or service with the Company or its Affiliates; provided, further, however, that (A) with respect to any Award that is intended to qualify as a “stock right” that does not provide for a “deferral of compensation” within the meaning of Section 409A of the Code, the term “Affiliate” as used in this Section 2(n) shall include only those corporations or other entities in the unbroken chain of corporations or other entities beginning with the Company where each of the corporations or other entities in the unbroken chain, other than the last corporation or other entity, owns stock possessing at least 50% or more of the total combined voting power of all classes of stock in one of the other corporations or other entities in the chain, and (B) with respect to any Award that is intended to be an Incentive Stock Option, the term “Affiliate” as used in this Section 2(n) shall include only those entities that qualify as a “subsidiary corporation” with respect to the Company within the meaning of Section 424(f) of the Code. An employee on an approved leave of absence may be considered as still in the employ of the Company or any of its Affiliates for purposes of eligibility for participation in the Plan.
o. “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time, including the rules and regulations thereunder and any successor provisions, rules, and regulations thereto.
p. “Expiration Date” means, with respect to an Option, the date on which the term of such Option expires, as determined under Section 5(b) hereof, as applicable.
q. “Fair Market Value” means, as of any date when the Stock is listed on one or more national securities exchange(s), the closing price reported on the principal national securities exchange on which such Stock is listed and traded on the date of determination or, if the closing price is not reported on such date of determination, the closing price reported on the most recent date prior to the date of determination. If the Stock is not listed on a national securities exchange, “Fair Market Value” shall mean the amount determined by the Board in good faith, and in a manner consistent with Section 409A of the Code, to be the fair market value per share of Stock.
| 3 |
r. “GAAP” means the U.S. Generally Accepted Accounting Principles, as in effect from time to time.
s. “Incentive Stock Option” means an Option intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code.
t. “Nonqualified Stock Option” means an Option not intended to be an Incentive Stock Option.
u. “Option” means a conditional right, granted to a Participant under Section 5 hereof, to purchase Stock at a specified price during a specified time period.
v. “Option Agreement” means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Option Award.
w. “Participant” means an Eligible Person who has been granted an Award under the Plan or, if applicable, such other Person who holds an Award.
x. “Participant Agreement” means an employment or other services agreement between a Participant and the Service Recipient that describes the terms and conditions of such Participant’s employment or service with the Service Recipient and is effective as of the date of determination.
y. “Person” means any individual, corporation, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, or other entity.
z. “Plan” means this Vertical Data Inc., 2024 Incentive Plan, as amended from time to time.
aa. “Qualified Member” means a member of the Committee who is a “Non-Employee Director” within the meaning of Rule 16b-3 under the Exchange Act and an “independent director” as defined under, as applicable, the NASDAQ Listing Rules, the NYSE Listed Company Manual, or other applicable stock exchange rules.
bb. “Qualifying Committee” has the meaning set forth in Section 3(b) hereof.
cc. “Restricted Stock” means Stock granted to a Participant under Section 6 hereof that is subject to certain restrictions and to a risk of forfeiture.
dd. “Restricted Stock Agreement” means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Restricted Stock Award.
ee. “Restricted Stock Unit” means a notional unit representing the right to receive one share of Stock (or the cash value of one share of Stock, if so determined by the Committee) on a specified settlement date.
ff. “RSU Agreement” means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Award of Restricted Stock Units.
| 4 |
gg. “Securities Act” means the U.S. Securities Act of 1933, as amended from time to time, including the rules and regulations thereunder and any successor provisions, rules, and regulations thereto.
hh. “Service Recipient” means, with respect to a Participant holding an Award, either the Company or an Affiliate of the Company by which the original recipient of such Award is, or following a Termination was most recently, principally employed or to which such original recipient provides, or following a Termination was most recently providing, services, as applicable.
ii. “Stock” means the common stock, par value $0.0001 per share, of the Company, and such other securities as may be substituted for such stock pursuant to Section 9 hereof.
jj. “Termination” means the termination of a Participant’s employment or service, as applicable, with the Service Recipient; provided, however, that, if so determined by the Committee at the time of any change in status in relation to the Service Recipient (e.g., a Participant ceases to be an employee and begins providing services as a consultant, or vice versa), such change in status will not be deemed a Termination hereunder. Unless otherwise determined by the Committee, in the event that the Service Recipient ceases to be an Affiliate of the Company (by reason of sale, divestiture, spin-off, or other similar transaction), unless a Participant’s employment or service is transferred to another entity that would constitute the Service Recipient immediately following such transaction, such Participant shall be deemed to have suffered a Termination hereunder as of the date of the consummation of such transaction. Notwithstanding anything herein to the contrary, a Participant’s change in status in relation to the Service Recipient (for example, a change from employee to consultant) shall not be deemed a Termination hereunder with respect to any Awards constituting “nonqualified deferred compensation” subject to Section 409A of the Code that are payable upon a Termination, unless such change in status constitutes a “separation from service” within the meaning of Section 409A of the Code. Any payments in respect of an Award constituting nonqualified deferred compensation subject to Section 409A of the Code that are payable upon a Termination shall be delayed for such period as may be necessary to meet the requirements of Section 409A(a)(2)(B)(i) of the Code. On the first (1st) business day following the expiration of such period, the Participant shall be paid, in a single lump sum without interest, an amount equal to the aggregate amount of all payments delayed pursuant to the preceding sentence, and any remaining payments not so delayed shall continue to be paid pursuant to the payment schedule applicable to such Award.
3. Administration.
a. Authority of the Committee. Except as otherwise provided below, the Plan shall be administered by the Committee. The Committee shall have full and final authority, in each case, subject to and consistent with the provisions of the Plan, to (i) select Eligible Persons to become Participants; (ii) grant Awards; (iii) determine the type, number, and type of shares of Stock subject to, other terms and conditions of, and all other matters relating to, Awards; (iv) prescribe Award Agreements (which need not be identical for each Participant) and rules and regulations for the administration of the Plan; (v) construe and interpret the Plan and Award Agreements and correct defects, supply omissions, and reconcile inconsistencies therein; (vi) suspend the right to exercise Awards during any period that the Committee deems appropriate to comply with applicable securities laws, and thereafter extend the exercise period of an Award by an equivalent period of time or such shorter period required by, or necessary to comply with, applicable law; and (vii) make all other decisions and determinations as the Committee may deem necessary or advisable for the administration of the Plan. Any action of the Committee shall be final, conclusive, and binding on all Persons, including, without limitation, the Company, its stockholders and Affiliates, Eligible Persons, Participants, and beneficiaries of Participants. Notwithstanding anything in the Plan to the contrary, the Committee shall have the ability to accelerate the vesting of any outstanding Award at any time and for any reason, including upon a Corporate Event, subject to Section 9(d), or in the event of a Participant’s Termination by the Service Recipient other than for Cause, or due to the Participant’s death, Disability, or retirement (as such term may be defined in an applicable Award Agreement or Participant Agreement or, if no such definition exists, in accordance with the Company’s then-current employment policies and guidelines). For the avoidance of doubt, the Board shall have the authority to take all actions under the Plan that the Committee is permitted to take.
| 5 |
b. Manner of Exercise of Committee Authority. At any time that a member of the Committee is not a Qualified Member, any action of the Committee relating to an Award granted or to be granted to a Participant who is then subject to Section 16 of the Exchange Act in respect of the Company must be taken by the remaining members of the Committee or a subcommittee, designated by the Committee or the Board, composed solely of two or more Qualified Members (a “Qualifying Committee”). Any action authorized by such a Qualifying Committee shall be deemed the action of the Committee for purposes of the Plan. The express grant of any specific power to a Qualifying Committee, and the taking of any action by such a Qualifying Committee, shall not be construed as limiting any power or authority of the Committee.
c. Delegation. To the extent permitted by applicable law, the Committee may delegate to officers or employees of the Company or any of its Affiliates, or committees thereof, the authority, subject to such terms as the Committee shall determine, to perform such functions under the Plan, including, but not limited to, administrative functions, as the Committee may determine appropriate. The Committee may appoint agents to assist it in administering the Plan. Any actions taken by an officer or employee delegated authority pursuant to this Section 3(c) within the scope of such delegation shall, for all purposes under the Plan, be deemed to be an action taken by the Committee. Notwithstanding the foregoing or any other provision of the Plan to the contrary, any Award granted under the Plan to any Eligible Person who is not an employee of the Company or any of its Affiliates (including any non-employee director of the Company or any Affiliate) or to any Eligible Person who is subject to Section 16 of the Exchange Act must be expressly approved by the Committee or Qualifying Committee in accordance with Section 3(b) above.
d. Sections 409A and 457A. The Committee shall take into account compliance with Sections 409A and 457A of the Code in connection with any grant of an Award under the Plan, to the extent applicable. While the Awards granted hereunder are intended to be structured in a manner to avoid the imposition of any penalty taxes under Sections 409A and 457A of the Code, in no event whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest, or penalties that may be imposed on a Participant as a result of Section 409A or Section 457A of the Code or any damages for failing to comply with Section 409A or Section 457A of the Code or any similar state or local laws (other than for withholding obligations or other obligations applicable to employers, if any, under Section 409A or Section 457A of the Code).
4. Shares Available Under the Plan; Other Limitations. Subject to adjustment as provided in Section 9 hereof, the total number of shares of Stock reserved and available for delivery in connection with Awards under the Plan shall equal 10,400,000 (the “Share Reserve”). The Committee may adopt reasonable counting procedures to ensure appropriate counting, avoid double-counting, and make adjustments if the number of shares of Stock actually delivered differs from the number of shares previously counted in connection with an Award. To the extent that an Award expires or is canceled, forfeited, settled in cash, or otherwise terminated without delivery to the Participant of the full number of shares of Stock to which the Award related, the undelivered shares of Stock will again be available for grant. Shares of Stock withheld or surrendered in payment of taxes or the exercise price relating to an Award shall not be deemed to constitute shares delivered to the Participant and shall be deemed to again be available for delivery under the Plan. No more than 2,000,000 shares of Stock (subject to adjustment as provided in Section 9 hereof) reserved for issuance hereunder may be issued or transferred upon exercise or settlement of Incentive Stock Options. Notwithstanding anything contained herein, the Committee shall have the right to increase the Share Reserve so long as the amount in reserve is not greater than twenty percent (20%) of the amount of shares outstanding.
| 6 |
5. Options.
a. General. Certain Options granted under the Plan may be intended to be Incentive Stock Options; however, no Incentive Stock Options may be granted hereunder following the tenth (10th) anniversary of the earlier of (i) the date the Plan is adopted by the Board, and (ii) the date the stockholders of the Company approve the Plan. Options may be granted to Eligible Persons in such form and having such terms and conditions as the Committee shall deem appropriate; provided, however, that Incentive Stock Options may be granted only to Eligible Persons who are employees of the Company or an Affiliate (as such definition is limited pursuant to Section 2(n) hereof) of the Company. The provisions of separate Options shall be set forth in separate Option Agreements, which agreements need not be identical. No dividends or dividend equivalents shall be paid on Options.
b. Term. The term of each Option shall be set by the Committee at the time of grant; provided, however, that no Option granted hereunder shall be exercisable after, and each Option shall expire on the tenth (10th) anniversary of the date it was granted.
c. Exercise Price. The exercise price per share of Stock for each Option shall be set by the Committee at the time of grant, subject to Section 5(g) hereof in the case of any Incentive Stock Option.
d. Payment for Stock. Payment for shares of Stock acquired pursuant to an Option granted hereunder shall be made in full upon exercise of the Option in a manner approved by the Committee, which may include any of the following payment methods: (i) in immediately available funds in U.S. dollars, or by certified or bank cashier’s check; (ii) by delivery of shares of Stock having a value equal to the exercise price; (iii) by a broker-assisted cashless exercise in accordance with procedures approved by the Committee, whereby payment of the Option exercise price or tax withholding obligations may be satisfied, in whole or in part, with shares of Stock subject to the Option by delivery of an irrevocable direction to a securities broker (on a form prescribed by the Committee) to sell shares of Stock and to deliver all or part of the sale proceeds to the Company in payment of the aggregate exercise price and, if applicable, the amount necessary to satisfy the Company’s withholding obligations; or (iv) by any other means approved by the Committee (including, by delivery of a notice of “net exercise” to the Company, pursuant to which the Participant shall receive (A) the number of shares of Stock underlying the Option so exercised, reduced by (B) the number of shares of Stock equal to (I) the aggregate exercise price of the Option divided by (II) the Fair Market Value on the date of exercise). Notwithstanding anything herein to the contrary, if the Committee determines that any form of payment available hereunder would be in violation of Section 402 of the Sarbanes-Oxley Act of 2002, such form of payment shall not be available.
e. Vesting. Options shall vest and become exercisable in such manner, on such date or dates, or upon the achievement of performance or other conditions, in each case, as may be determined by the Committee and set forth in an Option Agreement. Unless otherwise specifically determined by the Committee, the vesting of an Option shall occur only while the Participant is employed by or rendering services to the Service Recipient, and all vesting shall cease upon a Participant’s Termination for any or no reason. To the extent permitted by applicable law and unless otherwise determined by the Committee, vesting may be suspended during the period of any approved unpaid leave of absence by a Participant following which the Participant has a right to reinstatement and shall resume upon such Participant’s return to active employment. If an Option is exercisable in installments, such installments or portions thereof that become exercisable shall remain exercisable until the Option expires, is canceled, or otherwise terminates.
| 7 |
f. Termination of Employment or Service. Except as provided by the Committee in an Option Agreement, Participant Agreement, or otherwise:
i. In the event of a Participant’s Termination prior to the applicable Expiration Date for any reason other than (A) by the Service Recipient for Cause, or (B) by reason of the Participant’s death or Disability, (I) all vesting with respect to such Participant’s Options outstanding shall cease; (II) all of such Participant’s unvested Options outstanding shall terminate and be forfeited for no consideration as of the date of such Termination; and (III) all of such Participant’s vested Options outstanding shall terminate and be forfeited for no consideration on the earlier of (x) the applicable Expiration Date, and (y) the date that is ninety (90) days after the date of such Termination.
ii. In the event of a Participant’s Termination prior to the applicable Expiration Date by reason of such Participant’s death or Disability, (A) all vesting with respect to such Participant’s Options outstanding shall cease; (B) all of such Participant’s unvested Options outstanding shall terminate and be forfeited for no consideration as of the date of such Termination; and (C) all of such Participant’s vested Options outstanding shall terminate and be forfeited for no consideration on the earlier of (I) the applicable Expiration Date, and (II) the date that is twelve (12) months after the date of such Termination. In the event of a Participant’s death, such Participant’s outstanding Options shall remain exercisable by the Person or Persons to whom such Participant’s rights under the Options pass by will or by the applicable laws of descent and distribution until the applicable Expiration Date, but only to the extent that the Options were vested at the time of such Termination.
iii. In the event of a Participant’s Termination prior to the applicable Expiration Date by the Service Recipient for Cause, all of such Participant’s Options outstanding (whether or not vested) shall immediately terminate and be forfeited for no consideration as of the date of such Termination.
g. Special Provisions Applicable to Incentive Stock Options.
i. No Incentive Stock Option may be granted to any Eligible Person who, at the time the Option is granted, owns directly, or indirectly within the meaning of Section 424(d) of the Code, Stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or of any parent or subsidiary thereof, unless such Incentive Stock Option (A) has an exercise price of at least 110% of the Fair Market Value on the date of the grant of such Option, and (B) cannot be exercised more than five (5) years after the date it is granted.
ii. To the extent that the aggregate Fair Market Value (determined as of the date of grant) of Stock for which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company and its Affiliates) exceeds $100,000, such excess Incentive Stock Options shall be treated as Nonqualified Stock Options.
iii. Each Participant who receives an Incentive Stock Option must agree to notify the Company in writing immediately after the Participant makes a Disqualifying Disposition of any Stock acquired pursuant to the exercise of an Incentive Stock Option.
| 8 |
6. Restricted Stock.
a. General. Restricted Stock may be granted to Eligible Persons in such form and having such terms and conditions as the Committee shall deem appropriate. The provisions of separate Awards of Restricted Stock shall be set forth in separate Restricted Stock Agreements, which Restricted Stock Agreements need not be identical. Subject to the restrictions set forth in Section 6(b) hereof, and except as otherwise set forth in the applicable Restricted Stock Agreement, the Participant shall generally have the rights and privileges of a stockholder as to such Restricted Stock, including the right to vote such Restricted Stock. Unless otherwise set forth in a Participant’s Restricted Stock Agreement, cash dividends and stock dividends, if any, with respect to the Restricted Stock shall be withheld by the Company for the Participant’s account, and shall be subject to forfeiture to the same degree as the shares of Restricted Stock to which such dividends relate. Except as otherwise determined by the Committee, no interest will accrue or be paid on the amount of any cash dividends withheld.
b. Vesting and Restrictions on Transfer. Restricted Stock shall vest in such manner, on such date or dates, or upon the achievement of performance or other conditions, in each case, as may be determined by the Committee and set forth in a Restricted Stock Agreement. Unless otherwise specifically determined by the Committee, the vesting of an Award of Restricted Stock shall occur only while the Participant is employed by or rendering services to the Service Recipient, and all vesting shall cease upon a Participant’s Termination for any or no reason. To the extent permitted by applicable law and unless otherwise determined by the Committee, vesting may be suspended during the period of any approved unpaid leave of absence by a Participant following which the Participant has a right to reinstatement and shall resume upon such Participant’s return to active employment. In addition to any other restrictions set forth in a Participant’s Restricted Stock Agreement, the Participant shall not be permitted to sell, transfer, pledge, or otherwise encumber the Restricted Stock prior to the time the Restricted Stock has vested pursuant to the terms of the Restricted Stock Agreement.
c. Termination of Employment or Service. Except as provided by the Committee in a Restricted Stock Agreement, Participant Agreement, or otherwise, in the event of a Participant’s Termination for any or no reason prior to the time that such Participant’s Restricted Stock has vested, (i) all vesting with respect to such Participant’s Restricted Stock outstanding shall cease; and (ii) as soon as practicable following such Termination, the Company shall repurchase from the Participant, and the Participant shall sell, all of such Participant’s unvested shares of Restricted Stock at a purchase price equal to the lesser of (A) the original purchase price paid for the Restricted Stock (as adjusted for any subsequent changes in the outstanding Stock or in the capital structure of the Company), less any dividends or other distributions or bonus received (or to be received) by the Participant (or any transferee) in respect of such Restricted Stock prior to the date of repurchase, and (B) the Fair Market Value of the Stock on the date of such repurchase; provided, that, if the original purchase price paid for the Restricted Stock is equal to zero dollars ($0), such unvested shares of Restricted Stock shall be forfeited to the Company by the Participant for no consideration as of the date of such Termination.
| 9 |
7. Restricted Stock Units.
a. General. Restricted Stock Units may be granted to Eligible Persons in such form and having such terms and conditions as the Committee shall deem appropriate. The provisions of separate Restricted Stock Units shall be set forth in separate RSU Agreements, which RSU Agreements need not be identical.
b. Vesting. Restricted Stock Units shall vest in such manner, on such date or dates, or upon the achievement of performance or other conditions, in each case, as may be determined by the Committee and set forth in an RSU Agreement. Unless otherwise specifically determined by the Committee, the vesting of a Restricted Stock Unit shall occur only while the Participant is employed by or rendering services to the Service Recipient, and all vesting shall cease upon a Participant’s Termination for any or no reason. To the extent permitted by applicable law and unless otherwise determined by the Committee, vesting may be suspended during the period of any approved unpaid leave of absence by a Participant following which the Participant has a right to reinstatement and shall resume upon such Participant’s return to active employment.
c. Settlement. Restricted Stock Units shall be settled in Stock, cash, or property, as determined by the Committee, in its sole discretion, on the date or dates determined by the Committee and set forth in an RSU Agreement. Unless otherwise set forth in a Participant’s RSU Agreement, a Participant shall not be entitled to dividends, if any, or dividend equivalents with respect to Restricted Stock Units prior to settlement.
d. Termination of Employment or Service. Except as provided by the Committee in an RSU Agreement, Participant Agreement, or otherwise, in the event of a Participant’s Termination for any or no reason prior to the time that such Participant’s Restricted Stock Units have been settled, (i) all vesting with respect to such Participant’s Restricted Stock Units outstanding shall cease; (ii) all of such Participant’s unvested Restricted Stock Units outstanding shall be forfeited for no consideration as of the date of such Termination; and (iii) any shares remaining undelivered with respect to vested Restricted Stock Units then held by such Participant shall be delivered on the delivery date or dates specified in the RSU Agreement.
8. Other Stock-Based and Cash-Based Awards. The Committee is authorized, subject to limitations under applicable law, to grant to Participants such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based upon or related to Stock or cash, as deemed by the Committee to be consistent with the purposes of the Plan. The Committee may also grant Stock or cash as a bonus (whether or not subject to any vesting requirements or other restrictions on transfer) and may grant other Awards in lieu of obligations of the Company or an Affiliate to pay cash or deliver other property under the Plan or under other plans or compensatory arrangements, subject to such terms as shall be determined by the Committee. The terms and conditions applicable to such Awards shall be determined by the Committee and evidenced by Award Agreements, which agreements need not be identical.
| 10 |
9. Adjustment for Recapitalization, Merger, etc.
a. Capitalization Adjustments. The aggregate and numerical number of shares of Stock that may be delivered in connection with Awards (as set forth in Section 4 hereof), the number of shares of Stock covered by each outstanding Award, the price per share of Stock underlying each such Award and the applicable performance goal(s) with respect to an Award shall be equitably and proportionally adjusted or substituted, as determined by the Committee, in its sole discretion, as to the number, price, or kind of a share of Stock or other consideration subject to such Awards, (i) in the event of changes in the outstanding Stock or in the capital structure of the Company by reason of stock dividends, extraordinary cash dividends, stock splits, reverse stock splits, recapitalizations, reorganizations, mergers, amalgamations, consolidations, combinations, exchanges, or other relevant changes in capitalization occurring after the date of grant of any such Award (including any Corporate Event); (ii) in connection with any extraordinary dividend declared and paid in respect of shares of Stock, whether payable in the form of cash, stock, or any other form of consideration; or (iii) in the event of any change in applicable laws or circumstances that results in or could result in, in either case, as determined by the Committee in its sole discretion, any substantial dilution or enlargement of the rights intended to be granted to, or available for, Participants in the Plan. In lieu of or in addition to any adjustment pursuant to this Section 9, if deemed appropriate, the Committee may provide that an adjustment take the form of a cash payment to the holder of an outstanding Award with respect to all or part of an outstanding Award, which payment shall be subject to such terms and conditions (including timing of payment(s), vesting, and forfeiture conditions) as the Committee may determine in its sole discretion. The Committee will make such adjustments, substitutions, or payment, and its determination will be final, binding, and conclusive. The Committee need not take the same action or actions with respect to all Awards or portions thereof or with respect to all Participants. The Committee may take different actions with respect to the vested and unvested portions of an Award.
b. Corporate Events. Notwithstanding the foregoing, except as provided by the Committee in an Award Agreement, Participant Agreement, or otherwise, in connection with (1) a merger, amalgamation, or consolidation involving the Company in which the Company is not the surviving corporation; (2) a merger, amalgamation, or consolidation involving the Company in which the Company is the surviving corporation but the holders of shares of Stock receive securities of another corporation or other property or cash; (3) a Change in Control; or (4) the reorganization, dissolution, or liquidation of the Company (each, a “Corporate Event”), the Committee may provide for any one or more of the following:
i. The assumption or substitution of any or all Awards in connection with such Corporate Event, in which case the Awards shall be subject to the adjustment set forth in Section 9(a) hereof, and to the extent that such Awards vest subject to the achievement of performance criteria, such performance criteria shall be deemed earned at target level (or if no target is specified, the maximum level) and will be converted into solely service based vesting awards that will vest during the performance period, if any, during which the original performance criteria would have been measured;
ii. The acceleration of vesting of any or all Awards not assumed or substituted in connection with such Corporate Event, subject to the consummation of such Corporate Event; provided that unless otherwise set forth in an Award Agreement, any Awards that vest subject to the achievement of performance criteria will be deemed earned at target level (or if no target is specified, the maximum level), provided, further, that a Participant has not experienced a Termination prior to such Corporate Event;
iii. The cancellation of any or all Awards not assumed or substituted in connection with such Corporate Event (whether vested or unvested) as of the consummation of such Corporate Event, together with the payment to the Participants holding vested Awards (including any Awards that would vest upon the Corporate Event but for such cancellation) so canceled of an amount in respect of cancellation equal to an amount based upon the per-share consideration being paid for the Stock in connection with such Corporate Event, less, in the case of Options and other Awards subject to exercise, the applicable exercise or base price; provided, however, that holders of Options and other Awards subject to exercise shall be entitled to consideration in respect of cancellation of such Awards only if the per-share consideration less the applicable exercise or base price is greater than zero dollars ($0), and to the extent that the per-share consideration is less than or equal to the applicable exercise or base price, such Awards shall be canceled for no consideration;
| 11 |
iv. The cancellation of any or all Options and other Awards subject to exercise not assumed or substituted in connection with such Corporate Event (whether vested or unvested) as of the consummation of such Corporate Event; provided, that, all Options and other Awards to be so canceled pursuant to this paragraph (iv) shall first become exercisable for a period of at least ten (10) days prior to such Corporate Event, with any exercise during such period of any unvested Options or other Awards to be (A) contingent upon and subject to the occurrence of the Corporate Event, and (B) effectuated by such means as are approved by the Committee; and
v. The replacement of any or all Awards (other than Awards that are intended to qualify as “stock rights” that do not provide for a “deferral of compensation” within the meaning of Section 409A of the Code) with a cash incentive program that preserves the value of the Awards so replaced (determined as of the consummation of the Corporate Event), with subsequent payment of cash incentives subject to the same vesting conditions as applicable to the Awards so replaced and payment to be made within thirty (30) days of the applicable vesting date.
Payments to holders pursuant to paragraph (iii) above shall be made in cash or, in the sole discretion of the Committee, and to the extent applicable, in the form of such other consideration necessary for a Participant to receive property, cash, or securities (or a combination thereof) as such Participant would have been entitled to receive upon the occurrence of the transaction if the Participant had been, immediately prior to such transaction, the holder of the number of shares of Stock covered by the Award at such time (less any applicable exercise or base price). In addition, in connection with any Corporate Event, prior to any payment or adjustment contemplated under this Section 9(b), the Committee may require a Participant to (A) represent and warrant as to the unencumbered title to his or her Awards; (B) bear such Participant’s pro-rata share of any post-closing indemnity obligations, and be subject to the same post-closing purchase price adjustments, escrow terms, offset rights, holdback terms, and similar conditions as the other holders of Stock; and (C) deliver customary transfer documentation as reasonably determined by the Committee. The Committee need not take the same action or actions with respect to all Awards or portions thereof or with respect to all Participants. The Committee may take different actions with respect to the vested and unvested portions of an Award.
c. Fractional Shares. Any adjustment provided under this Section 9 may, in the Committee’s discretion, provide for the elimination of any fractional share that might otherwise become subject to an Award. No cash settlements shall be made with respect to fractional shares so eliminated.
10. Use of Proceeds. The proceeds received from the sale of Stock pursuant to the Plan shall be used for any purpose the Company deems reasonable.
11. Rights and Privileges as a Stockholder. Except as otherwise specifically provided in the Plan, no Person shall be entitled to the rights and privileges of Stock ownership in respect of shares of Stock that are subject to Awards hereunder until such shares have been issued to that Person.
| 12 |
12. Transferability of Awards. Awards may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the applicable laws of descent and distribution, and to the extent subject to exercise, Awards may not be exercised during the lifetime of the grantee other than by the grantee. Notwithstanding the foregoing, except with respect to Incentive Stock Options, Awards and a Participant’s rights under the Plan shall be transferable for no value to the extent provided in an Award Agreement or otherwise determined at any time by the Committee.
13. Employment or Service Rights. No individual shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for the grant of any other Award. Neither the Plan nor any action taken hereunder shall be construed as giving any individual any right to be retained in the employ or service of the Company or an Affiliate of the Company.
14. Compliance with Laws. The obligation of the Company to deliver Stock upon issuance, vesting, exercise, or settlement of any Award shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any shares of Stock pursuant to an Award, unless such shares have been properly registered for sale with the U.S. Securities and Exchange Commission pursuant to the Securities Act (or with a similar non-U.S. regulatory agency pursuant to a similar law or regulation), or unless the Company has received an opinion of counsel, satisfactory to the Company, that such shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale or resale under the Securities Act any of the shares of Stock to be offered or sold under the Plan or any shares of Stock to be issued upon exercise or settlement of Awards. If the shares of Stock offered for sale or sold under the Plan are offered or sold pursuant to an exemption from registration under the Securities Act, the Company may restrict the transfer of such shares and may legend the Stock certificates representing such shares in such manner as it deems advisable to ensure the availability of any such exemption.
15. Withholding Obligations. As a condition to the issuance, vesting, exercise, or settlement of any Award (or upon the making of an election under Section 83(b) of the Code), the Committee may require that a Participant satisfy, through deduction or withholding from any payment of any kind otherwise due to the Participant, or through such other arrangements as are satisfactory to the Committee, the amount of all federal, state, and local income and other taxes of any kind required or permitted to be withheld in connection with such issuance, vesting, exercise, or settlement (or election). The Committee, in its discretion, may permit shares of Stock to be used to satisfy tax withholding requirements, and such shares shall be valued at their Fair Market Value as of the issuance, vesting, exercise, or settlement date of the Award, as applicable. Depending on the withholding method, the Company may withhold by considering the applicable minimum statutorily required withholding rates or other applicable withholding rates in the applicable Participant’s jurisdiction, including maximum applicable rates that may be utilized without creating adverse accounting treatment under Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor pronouncement thereto) and is permitted under applicable withholding rules promulgated by the Internal Revenue Service or another applicable governmental entity.
| 13 |
16. Amendment of the Plan or Awards.
a. Amendment of Plan. The Board or the Committee may amend the Plan at any time and from time to time.
b. Amendment of Awards. The Board or the Committee may amend the terms of any one or more Awards at any time and from time to time.
c. Stockholder Approval; No Material Impairment. Notwithstanding anything herein to the contrary, no amendment to the Plan or any Award shall be effective without stockholder approval to the extent that such approval is required pursuant to applicable law or the applicable rules of each national securities exchange on which the Stock is listed. Additionally, no amendment to the Plan or any Award shall materially impair a Participant’s rights under any Award unless the Participant consents in writing (it being understood that no action taken by the Board or the Committee that is expressly permitted under the Plan, including, without limitation, any actions described in Section 9 hereof, shall constitute an amendment to the Plan or an Award for such purpose). Notwithstanding the foregoing, subject to the limitations of applicable law, if any, and without an affected Participant’s consent, the Board or the Committee may amend the terms of the Plan or any one or more Awards from time to time as necessary to bring such Awards into compliance with applicable law, including, without limitation, Section 409A of the Code.
d. No Repricing of Awards Without Stockholder Approval. Notwithstanding Sections 16(a) or 16(b) above, or any other provision of the Plan, the repricing of Awards shall not be permitted without stockholder approval. For this purpose, a “repricing” means any of the following (or any other action that has the same effect as any of the following): (i) changing the terms of an Award to lower its exercise or base price (other than on account of capital adjustments resulting from share splits, etc., as described in Section 9(a) hereof); (ii) any other action that is treated as a repricing under GAAP; and (iii) repurchasing for cash or canceling an Award in exchange for another Award at a time when its exercise or base price is greater than the Fair Market Value of the underlying Stock, unless the cancellation and exchange occurs in connection with an event set forth in Section 9(b) hereof.
17. Termination or Suspension of the Plan. The Board or the Committee may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate on the day before the tenth (10th) anniversary of the date the stockholders of the Company approve the Plan. No Awards may be granted under the Plan while the Plan is suspended or after it is terminated; provided, however, that following any suspension or termination of the Plan, the Plan shall remain in effect for the purpose of governing all Awards then outstanding hereunder until such time as all Awards under the Plan have been terminated, forfeited, or otherwise canceled, or earned, exercised, settled, or otherwise paid out, in accordance with their terms.
18. Effective Date of the Plan. The Plan is effective as of the Effective Date, subject to director approval in accordance with the By-Laws of the Company.
| 14 |
19. Miscellaneous.
a. Treatment of Dividends and Dividend Equivalents on Unvested Awards. Notwithstanding any other provision of the Plan to the contrary, with respect to any Award that provides for or includes a right to dividends or dividend equivalents, if dividends are declared during the period that an equity Award is outstanding, such dividends (or dividend equivalents) shall either (i) not be paid or credited with respect to such Award, or (ii) be accumulated but remain subject to vesting requirement(s) to the same extent as the applicable Award and shall only be paid at the time or times such vesting requirement(s) are satisfied. Except as otherwise determined by the Committee, no interest will accrue or be paid on the amount of any cash dividends withheld. No dividends or dividend equivalents shall be paid on Options.
b. Certificates. Stock acquired pursuant to Awards granted under the Plan may be evidenced in such a manner as the Committee shall determine. If certificates representing Stock are registered in the name of the Participant, the Committee may require that (i) such certificates bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Stock; (ii) the Company retain physical possession of the certificates; and (iii) the Participant deliver a stock power to the Company, endorsed in blank, relating to the Stock. Notwithstanding the foregoing or anything to the contrary, the Committee may determine, in its sole discretion, that the Stock shall be held in book-entry form rather than delivered to the Participant pending the release of any applicable restrictions.
c. Other Benefits. No Award granted or paid out under the Plan shall be deemed compensation for purposes of computing benefits under any retirement plan of the Company or its Affiliates nor affect any benefits under any other benefit plan now or subsequently in effect under which the availability or amount of benefits is related to the level of compensation.
d. Corporate Action Constituting Grant of Awards. Corporate action constituting a grant by the Company of an Award to any Participant will be deemed completed as of the date of such corporate action, unless otherwise determined by the Committee, regardless of when the instrument, certificate, or letter evidencing the Award is communicated to, or actually received or accepted by, the Participant. In the event that the corporate records (e.g., Committee consents, resolutions, or minutes) documenting the corporate action constituting the grant contain terms (e.g., exercise price, vesting schedule, or number of shares of Stock) that are inconsistent with those in the Award Agreement as a result of a clerical error in connection with the preparation of the Award Agreement, the corporate records will control, and the Participant will have no legally binding right to the incorrect term in the Award Agreement.
e. Clawback/Recoupment Policy. Notwithstanding anything contained herein to the contrary, all Awards granted under the Plan shall be and remain subject to any incentive compensation clawback or recoupment policy currently in effect or as may be adopted by the Board (or a committee or subcommittee of the Board) and, in each case, as may be amended from time to time. No such policy adoption or amendment shall in any event require the prior consent of any Participant. No recovery of compensation under such a clawback policy will be an event giving rise to a right to resign for “good reason” or “constructive termination” (or similar term) under any agreement with the Company or any of its Affiliates. In the event that an Award is subject to more than one such policy, the policy with the most restrictive clawback or recoupment provisions shall govern such Award, subject to applicable law.
| 15 |
f. Non-Exempt Employees. If an Option is granted to an employee of the Company or any of its Affiliates in the United States who is a non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as amended, the Option will not be first exercisable for any shares of Stock until at least six (6) months following the date of grant of the Option (although the Option may vest prior to such date). Consistent with the provisions of the Worker Economic Opportunity Act, (i) if such employee dies or suffers a Disability; (ii) upon a Corporate Event in which such Option is not assumed, continued, or substituted; (iii) upon a Change in Control; or (iv) upon the Participant’s retirement (as such term may be defined in the applicable Award Agreement or a Participant Agreement or, if no such definition exists, in accordance with the Company’s then current employment policies and guidelines), the vested portion of any Options held by such employee may be exercised earlier than six months following the date of grant. The foregoing provision is intended to operate so that any income derived by a non-exempt employee in connection with the exercise or vesting of an Option will be exempt from his or her regular rate of pay. To the extent permitted and/or required for compliance with the Worker Economic Opportunity Act to ensure that any income derived by a non-exempt employee in connection with the exercise, vesting, or issuance of any shares under any other Award will be exempt from such employee’s regular rate of pay, the provisions of this Section 19(f) will apply to all Awards.
g. Data Privacy. As a condition of receipt of any Award, each Participant explicitly and unambiguously consents to the collection, use, and transfer, in electronic or other form, of personal data as described in this Section 19(g) by and among, as applicable, the Company and its Affiliates, for the exclusive purpose of implementing, administering, and managing the Plan and Awards and the Participant’s participation in the Plan. In furtherance of such implementation, administration, and management, the Company and its Affiliates may hold certain personal information about a Participant, including, but not limited to, the Participant’s name, home address, telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title(s), information regarding any securities of the Company or any of its Affiliates, and details of all Awards (the “Data”). In addition to transferring the Data amongst themselves as necessary for the purpose of implementation, administration, and management of the Plan and Awards and the Participant’s participation in the Plan, the Company and its Affiliates may each transfer the Data to any third parties assisting the Company in the implementation, administration, and management of the Plan and Awards and the Participant’s participation in the Plan. Recipients of the Data may be located in the Participant’s country or elsewhere, and the Participant’s country and any given recipient’s country may have different data privacy laws and protections. By accepting an Award, each Participant authorizes such recipients to receive, possess, use, retain, and transfer the Data, in electronic or other form, for the purposes of assisting the Company in the implementation, administration, and management of the Plan and Awards and the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Company or the Participant may elect to deposit any shares of Stock. The Data related to a Participant will be held only as long as is necessary to implement, administer, and manage the Plan and Awards and the Participant’s participation in the Plan. A Participant may, at any time, view the Data held by the Company with respect to such Participant, request additional information about the storage and processing of the Data with respect to such Participant, recommend any necessary corrections to the Data with respect to the Participant, or refuse or withdraw the consents herein in writing, in any case without cost, by contacting his or her local human resources representative. The Company may cancel the Participant’s eligibility to participate in the Plan, and in the Committee’s discretion, the Participant may forfeit any outstanding Awards if the Participant refuses or withdraws the consents described herein. For more information on the consequences of refusal to consent or withdrawal of consent, Participants may contact their local human resources representative.
| 16 |
h. Participants Outside of the United States. The Committee may modify the terms of any Award under the Plan made to or held by a Participant who is then a resident, or is primarily employed or providing services, outside of the United States in any manner deemed by the Committee to be necessary or appropriate in order that such Award shall conform to laws, regulations, and customs of the country in which the Participant is then a resident or primarily employed or providing services, or so that the value and other benefits of the Award to the Participant, as affected by non-U.S. tax laws and other restrictions applicable as a result of the Participant’s residence, employment, or providing services abroad, shall be comparable to the value of such Award to a Participant who is a resident, or is primarily employed or providing services, in the United States. An Award may be modified under this Section 19(h) in a manner that is inconsistent with the express terms of the Plan, so long as such modifications will not contravene any applicable law or regulation or result in actual liability under Section 16(b) of the Exchange Act for the Participant whose Award is modified. Additionally, the Committee may adopt such procedures and sub- plans as are necessary or appropriate to permit participation in the Plan by Eligible Persons who are non-U.S. nationals or are primarily employed or providing services outside the United States.
i. Change in Time Commitment. In the event a Participant’s regular level of time commitment in the performance of his or her services for the Company or any of its Affiliates is reduced (for example, and without limitation, if the Participant is an employee of the Company and the employee has a change in status from a full-time employee to a part-time employee) after the date of grant of any Award to the Participant, the Committee has the right in its sole discretion to (i) make a corresponding reduction in the number of shares of Stock subject to any portion of such Award that is scheduled to vest or become payable after the date of such change in time commitment, and (ii) in lieu of or in combination with such a reduction, extend the vesting or payment schedule applicable to such Award. In the event of any such reduction, the Participant will have no right with respect to any portion of the Award that is so reduced or extended.
j. No Liability of Committee Members. Neither any member of the Committee nor any of the Committee’s permitted delegates shall be liable personally by reason of any contract or other instrument executed by such member or on his or her behalf in his or her capacity as a member of the Committee or for any mistake of judgment made in good faith, and the Company shall indemnify and hold harmless each member of the Committee and each other employee, officer, or director of the Company to whom any duty or power relating to the administration or interpretation of the Plan may be allocated or delegated, against all costs and expenses (including counsel fees) and liabilities (including sums paid in settlement of a claim) arising out of any act or omission to act in connection with the Plan, unless arising out of such Person’s own fraud or willful misconduct; provided, however, that approval of the Board shall be required for the payment of any amount in settlement of a claim against any such Person. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such Persons may be entitled under the Company’s certificate or articles of incorporation or by-laws, each as may be amended from time to time, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
k. Payments Following Accidents or Illness. If the Committee shall find that any Person to whom any amount is payable under the Plan is unable to care for his or her affairs because of illness or accident, or is a minor, or has died, then any payment due to such Person or his or her estate (unless a prior claim therefor has been made by a duly appointed legal representative) may, if the Committee so directs the Company, be paid to his or her spouse, child, relative, an institution maintaining or having custody of such Person, or any other Person deemed by the Committee to be a proper recipient on behalf of such Person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.
l. Governing Law. The Plan shall be governed exclusively by and construed in accordance with the laws of the State of Nevada, without reference to the principles of conflicts of laws thereof.
| 17 |
m. Electronic Delivery. Any reference herein to a “written” agreement or document or “writing” will include any agreement or document delivered electronically or posted on the Company’s intranet (or other shared electronic medium controlled or authorized by the Company to which the Participant has access) to the extent permitted by applicable law.
n. Arbitration. All disputes and claims of any nature that a Participant (or such Participant’s transferee or estate) may have against the Company arising out of or in any way related to the Plan or any Award Agreement shall be submitted to and resolved exclusively by binding arbitration conducted in the State of Nevada (or such other location as the parties thereto may agree) in accordance with the applicable rules of the American Arbitration Association then in effect, and the arbitration shall be heard and determined by a panel of three arbitrators in accordance with such rules (except that in the event of any inconsistency between such rules and this Section 19(n), the provisions of this Section 19(n) shall control). The arbitration panel may not modify the arbitration rules specified above without the prior written approval of all parties to the arbitration. Within ten (10) business days after the receipt of a written demand, each party shall designate one arbitrator, each of whom shall have experience involving complex business or legal matters, but shall not have any prior, existing, or potential material business relationship with any party to the arbitration. The two arbitrators so designated shall select a third arbitrator, who shall preside over the arbitration, shall be similarly qualified as the two arbitrators, and shall have no prior, existing or potential material business relationship with any party to the arbitration; provided, that, if the two arbitrators are unable to agree upon the selection of such third arbitrator, such third arbitrator shall be designated in accordance with the arbitration rules referred to above. The arbitrators will decide the dispute by majority decision, and the decision shall be rendered in writing and shall bear the signatures of the arbitrators and the party or parties who shall be charged therewith, or the allocation of the expenses among the parties in the discretion of the panel. The arbitration decision shall be rendered as soon as possible, but in any event not later than one hundred twenty (120) days after the constitution of the arbitration panel. The arbitration decision shall be final and binding upon all parties to the arbitration. The parties hereto agree that judgment upon any award rendered by the arbitration panel may be entered in any Nevada state court sitting in the State of Nevada. To the maximum extent permitted by law, the parties hereby irrevocably waive any right of appeal from any judgment rendered upon any such arbitration award in any such court. Notwithstanding the foregoing, any party may seek injunctive relief in any such court.
o. Statute of Limitations. A Participant or any other person filing a claim for benefits under the Plan must file the claim within one (1) year of the date the Participant or other person knew or should have known of the facts giving rise to the claim. This one (1)-year statute of limitations will apply in any forum where a Participant or any other person may file a claim and, unless the Company waives the time limits set forth above in its sole discretion, any claim not brought within the time periods specified shall be waived and forever barred.
p. Funding. No provision of the Plan shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company be required to maintain separate bank accounts, books, records, or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services, they shall have the same rights as other employees and service providers under general law.
q. Reliance on Reports. Each member of the Committee and each member of the Board shall be fully justified in relying, acting, or failing to act, and shall not be liable for having so relied, acted, or failed to act in good faith, upon any report made by the independent public accountant of the Company and its Affiliates and upon any other information furnished in connection with the Plan by any Person or Persons other than such member.
r. Titles and Headings. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control.
| ADOPTED BY THE BOARD OF DIRECTORS: | July 1, 2024 |
| APPROVED BY THE STOCKHOLDERS: | July 1, 2024 |
| TERMINATION DATE: | July 1, 2034 |
| 18 |
Exhibit 10.5
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (“Subscription Agreement”) made as of _____________________________, by and between Vertical Data, Inc., a Nevada corporation (the “Company”), and the undersigned (the “Subscriber”).
RECITALS
WHEREAS, subject to the terms and conditions set forth in this Agreement, and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), Rule 506 promulgated thereunder and/or Regulation S under the Securities Act, the Company desires to issue and sell to the Subscriber, and the Subscriber desires to purchase from the Company, that number of shares of the Company’s common stock, $0.0001 par value per share (“Shares”) set forth on the signature page hereto, to persons who are not U.S. persons under Regulation S and persons who are “accredited investors” (as defined in Rule 501 of Regulation D under the Securities Act), in a private placement (the “Offering”); and
WHEREAS, the Subscriber understands that the Offering is being made without registration of the Common Stock under the Securities Act of 1933, as amended (the “Securities Act”), or any securities law of any state of the United States or of any other jurisdiction and is being made only to “accredited investors” or non-U.S. persons.
NOW, THEREFORE, for and in consideration of the promises and the mutual covenants hereinafter set forth, the parties hereto do hereby agree as follows:
AGREEMENT
1. Subscription Procedure
1.1. Subject to the terms and conditions hereinafter set forth, the Subscriber hereby subscribes for and agrees to purchase from the Company the number of Shares as is set forth upon the signature page hereof at a price of $0.50 per Share (the “Purchase Price”). The Company agrees to sell such Shares to the Subscriber for the Purchase Price.
1.2. The subscription period will begin as of the date of this Subscription Agreement and will terminate at 5:00 PM Eastern Standard Time on August 31, 2024, unless extended on one or more occasions for up to an additional thirty (30) days by the Board of Directors of the Company (as defined below) in their joint discretion (the “Termination Date”). The Shares will be offered on a “best effort”. The minimum investment per subscription of the Offering is $1,000, subject to the Company’s right to accept a lesser amount. There is no minimum number of Shares that must be sold to close the Offering. The Company may conduct one or more closings (each, a “Closing”) prior to the receipt of the Maximum Offering Amount of $1,500,000. In the event the Offering is oversubscribed in excess of the Maximum Offering Amount, the Offering may be increased up to the Over-Subscription Amount in the discretion of the Company (the “Over-Subscription”).
1.3. The Purchase Price will be sent directly to the Company Bank Account for this Offering (the “Offering Bank Account”) described in 1.5 below. Funds will be returned promptly, without interest or offset if this Subscription Agreement is not accepted by the Company, or the Offering is terminated pursuant to its terms or by the Company prior to the any Closing.
1.4. Certificates representing the Shares bearing the name of the Subscriber will be delivered by the Company within a reasonable amount of time following the final Closing of the Offering. The Subscriber hereby authorizes and directs the Company to deliver the aforementioned certificates to be issued to such Subscriber pursuant to this Subscription Agreement to the residential or business address indicated in the Investor Questionnaire, a form of which is attached hereto as Exhibit A.
1.5. The Purchase Price for the Shares purchased hereunder shall be paid pursuant to the following instructions:
By wire transfer:
| Beneficiary: | Vertical Data, Inc. | |
| Choice Financial Group | ||
| Client (Beneficiary) Name: Vertical Data Inc. Client Contact: Deven Soni | ||
| Account Number: 202424389400 ACH Routing#: | ||
| Wire Routing#: 091311229 | ||
| Bank Address: 4501 23rd Avenue S, Fargo ND 58104 | ||
| Beneficiary Address: 930 South 4th Street STE 209 4405 Las Vegas NV 89101 |
All checks which are mailed must be sent by overnight express (DHL, UPS, United States Postal Service Express, or Federal Express) with tracking numbers provided to the Company.
1.6. The Company may, in their sole discretion, reject any subscription, in whole or in part. The Company may, in its sole discretion, terminate or withdraw the Offering in its entirety at any time prior to a Closing in relation thereto. If this subscription is rejected in whole or the Offering is terminated, all funds received from the Subscriber will be returned without interest or offset, and this Subscription Agreement shall thereafter be of no further force or effect. If this subscription is rejected in part, the funds for the rejected portion of this subscription will be returned without interest or offset, and this Subscription Agreement will continue in full force and effect to the extent this subscription was accepted. The Company shall not be required to allocate among investors on a pro rata basis in the event of an over-subscription.
2. Representations and Covenants of Subscriber
2.1. Subscriber understands that the Securities are being offered and sold in reliance upon specific exemptions from registration provided in the Securities Act, and upon exemptions from registration under State securities laws, and acknowledges that the Offering has not been reviewed by the Securities and Exchange Commission or any state agency because it is intended to be a nonpublic offering exempt from the registration requirements of the Securities Act and State securities laws. Subscriber understands that the Company is relying upon, and intends that the Company rely upon, the truth and accuracy of, and Subscriber’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of Subscriber set forth herein in order to determine the availability of such exemptions and the eligibility of Subscriber to acquire the Securities. The Company may only make offers to sell the Securities to persons outside the United States in this Offering and, if applicable, at the time any buy order is originated, the buyer is outside the United States. The undersigned has not received an offer to purchase Securities inside the United States and will not originate a buy order inside the United States.
2.2. The undersigned is either (i) an “accredited investor” if a U.S. investor, or (ii) not a U.S. person as defined under Rule 902 of Regulation S, and the Securities are being purchased for Subscriber’s own account, for investment purposes only and not for distribution or resale to others in contravention of the registration requirements of the Securities Act. Subscriber agrees that it will not sell or otherwise transfer the Securities unless they are registered under the Securities Act or unless an exemption from such registration is available under the Securities Act and permitted by the certificate of incorporation of the Company. Subscriber has no contract, undertaking, agreement, or arrangement with any person to sell, distribute, transfer, or pledge to such person or anyone else the Securities which Subscriber hereby subscribes to purchase, or any interest therein, and Subscriber has no present plans to enter into any such contract, undertaking, agreement, or arrangement. Subscriber agrees that the Company and its affiliates shall not be required to give effect to any purported transfer of such Securities except upon compliance with the foregoing restrictions.
2.3. The Subscriber recognizes that the purchase of the Shares involves a high degree of risk in that (i) the Company will need additional capital to operate its business but has no assurance of additional necessary capital; (ii) an investment in the Company is highly speculative and only investors who can afford the loss of their entire investment should consider investing in the Company and the Shares; (iii) an investor may not be able to liquidate his, her or its investment in the Shares; (iv) transferability of the Shares is extremely limited; (v) an investor could sustain the loss of his, her or its entire investment; and (vi) the Company is and will be subject to numerous other risks and uncertainties, including without limitation, significant and material risks relating to the Company’s business and operations, and the industries, markets and geographic regions in which the Company competes, as well as risks associated with the Offering.
2.4. The Subscriber represents that he, she or it is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Act, as indicated by his, her or its Investor Questionnaire, and that he, she or it is able to bear the economic risk of an investment in the Shares. The Subscriber must complete the applicable Investor Questionnaire to enable the Company to assess the Subscriber’s eligibility for the Offering.
2.5. The Subscriber represents that all information which the Subscriber has provided to the Company concerning the Subscriber or the Subscriber’s investor status, financial position, knowledge and experience in financial and business matters, or, in the case of a corporation, trust, partnership, limited liability company, or other entity, the knowledge and experience in financial and business matters of the person making the investment decision on behalf of such entity, including all information contained herein, is correct and complete as of the date of this Agreement, and if there should be any adverse change in such information prior to this subscription being accepted, the Subscriber will immediately provide the Company with such information.
2.6. The Subscriber acknowledges that he, she or it has prior investment experience, including without limitation, investment in non-listed and non-registered securities, or he, she or it has employed the services of an investment advisor, attorney or accountant to read all of the documents furnished or made available by the Company both to him, her or it and to all other prospective investors in the Shares and to evaluate the merits and risks of such an investment on his, her or its behalf, and that he, she or it recognizes the highly speculative nature of this investment.
2.7. The Subscriber acknowledges that he, she or it has not received an Offering Memorandum providing customary disclosures such as non-boilerplate risk factors, historical financial and operating performance, legal proceedings, management’s discussion and analysis of financial condition and results of operations, quantitative and qualitative disclosures about market risk, disclosure controls and procedures, internal controls, executive compensation, security ownership of certain beneficial owners and management, transactions with related persons, promoters and certain control persons, corporate governance and description of securities, amongst other things, and hereby represents that he, she or it has been furnished or given access by the Company during the course of the Offering with or to all information regarding the Company and its financial conditions and results of operations which he, she or it had requested or desired to know; that all documents which could be reasonably provided have been made available for his, her or its inspection and review; that he, she or it has been afforded the opportunity to ask questions of and receive answers from duly authorized representatives of the Company concerning the terms and conditions of the Offering, and any additional information which he, she or it had requested. The Subscriber further represents and acknowledges that the Subscriber has not seen or received any advertisement or general solicitation with respect to the sale of any of the securities of the Company, including, without limitation, the Shares.
2.8. The Subscriber acknowledges that the Offering of the Shares may involve tax consequences, and that the contents of marketing materials provided by the Company describing, amongst other things, the Offering (“Offering Materials”), do not contain tax advice or information. The Subscriber acknowledges that he, she or it must retain his, her or its own professional advisors to evaluate the tax and other consequences of an investment in the Shares.
2.9. The Subscriber understands that the Shares have not been registered under the Act by reason of a claimed exemption under the provisions of the Act which depends, in part, upon his, her or its investment intention. The Subscriber realizes that, in the view of the SEC, a purchase now with the intention to distribute would represent a purchase with an intention inconsistent with his, her or its representation to the Company, and the SEC might regard such a distribution as a deferred sale to which such exemption is not available.
2.10. The Subscriber understands that Rule 144 (the “Rule”) promulgated under the Act requires, among other conditions, a six (6) month holding period prior to the resale (in limited amounts) of securities acquired in a non- public offering, such as the Offering, without having to satisfy the registration requirements under the Act. The Subscriber understands that the Company makes no representation or warranty regarding its fulfillment in the future of any reporting requirements under the Exchange Act, or its dissemination to the public of any current financial or other information concerning the Company, as is required by Rule 144 as one of the conditions of its availability. The Subscriber consents that the Company may, if it desires, permit the transfer of the Shares out of his, her or its name only when his, her or its request for transfer is accompanied by an opinion of counsel reasonably satisfactory to the Company that neither the sale nor the proposed transfer results in a violation of the Act, any applicable state “blue sky” laws or any applicable securities laws of any other country, province or jurisdiction (collectively, “Securities Laws”). The Subscriber agrees to hold the Company and its directors, officers and controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all liabilities, costs and expenses incurred by them as a result of any misrepresentation made by him contained herein or in the Investor Questionnaire or any sale or distribution by the undersigned Subscriber in violation of any Securities Laws.
2.11. The Subscriber acknowledges and consents to the placement of one or more legends on any certificate or other document evidencing his, her or its Shares stating that they have not been registered under the Act, substantially in the form as set forth below, and are subject to the terms of this Subscription Agreement, and setting forth or referring to the restrictions on the transferability and sale thereof:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
and other legend language that may be determined by the Company and its counsel from time to time.
2.12. The Subscriber understands that the Company will review this Subscription Agreement and the Investor Questionnaire. The Subscriber further authorizes the Company to review his, her or its financial standing; and the Subscriber agrees that the Company reserves the unrestricted right to reject or limit any subscription and to close the Offering pursuant to the terms herein.
2.13. The Subscriber hereby represents that the address of Subscriber furnished by him, her or it at the end of this Subscription Agreement and in the Investor Questionnaire is the undersigned’s principal residence if he, she or it is an individual or its principal business address if it is a corporation or other entity.
2.14. The Subscriber acknowledges that if the Subscriber is a Registered Representative of a Financial Industry Regulatory Authority (“FINRA”) member firm, he, she or it must give such firm the notice required by the FINRA Conduct Rules, or any applicable successor rules of the FINRA, receipt of which must be acknowledged by such firm on the signature page hereof. The Subscriber shall also notify the Company if the Subscriber or any affiliate of Subscriber is a registered broker-dealer with the SEC, in which case the Subscriber represents that the Subscriber is purchasing the Shares in the ordinary course of business and, at the time of purchase of the Shares, has no agreements or understandings, directly or indirectly, with any person to distribute the Shares or any portion thereof.
2.15. The Subscriber hereby represents that no representations or warranties have been made to the Subscriber by either the Company or its agents, employees or affiliates and in entering into this transaction, the Subscriber is not relying on any information, other than that contained in the Offering Materials and the results of independent investigation by the Subscriber.
2.16. The Subscriber agrees that he, she or it will purchase the Shares in the Offering only if his, her or its intent at such time is to make such purchase for investment purposes and not with a view toward resale.
2.17. If the Subscriber is a partnership, corporation, trust or other entity, such partnership, corporation, trust or other entity further represents and warrants that: (i) it was not formed for the purpose of investing in the Company; (ii) it is authorized and otherwise duly qualified to purchase and hold the Shares; and (iii) that this Subscription Agreement has been duly and validly authorized, executed and delivered and constitutes the legal, binding and enforceable obligation of the Subscriber.
2.18. If the Subscriber is not a United States person, such Subscriber hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Shares or any use of this Subscription Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the Shares, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the Shares. Such Subscriber’s subscription and payment for, and his, her or its continued beneficial ownership of the Shares, will not violate any applicable securities or other laws of the Subscriber’s jurisdiction.
2.19. The Subscriber acknowledges that (i) the Offering Materials contains material, non-public information concerning the Company within the meaning of Regulation FD promulgated by the SEC, and (ii) the Subscriber is obtaining such material, non-public information solely for the purpose of considering whether to purchase the Shares pursuant to a private placement that is exempt from registration under the Act. In accordance with Regulation FD and other applicable provisions of the Securities Laws, the Subscriber agrees to keep such information confidential and not to disclose it to any other person or entity except the Subscriber’s legal counsel, advisors and other representatives who have agreed (i) to keep such information confidential, (ii) to use such information only for the purpose set forth above, and (iii) to comply with applicable securities laws with respect to such information. In addition, the Subscriber further acknowledges that the Subscriber and such legal counsel, advisors and other representatives are prohibited from trading in the Company’s securities while in possession of material, non-public information and agrees to refrain from purchasing or selling securities of the Company until such material, non-public information has been publicly disseminated by the Company. The Subscriber agrees to indemnify and hold harmless the Company and its officers, directors, employees and affiliates and each other person, if any, who controls any of the foregoing, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty by the Subscriber, or the Subscriber’s breach of, or failure to comply with, any covenant or agreement made by the Subscriber herein or in any other document furnished by the Subscriber to the Company or its respective officers, directors, employees or affiliates or each other person, if any, who controls any of the foregoing in connection with this transaction.
2.20. The Subscriber understands and acknowledges that (i) the Shares are being offered and sold to Subscriber without registration under the Act in a private placement that is exempt pursuant to Section 4(a)(2) of the Act and/or Rule 506(b) of Regulation D promulgated thereunder; and (ii) the availability of such exemption depends in part on, and that the Company will rely upon the accuracy and truthfulness of, the foregoing representations made by the Subscribers, and such Subscriber hereby consents to such reliance.
2.21. The Subscriber understands and acknowledges that he, she or it will at all times be in compliance with any and all state and federal securities and other laws, statutes and regulations regarding his, her or its ownership and/or any sale, transfer or hypothecation of the Shares including but not limited to those rules and regulations promulgated by the SEC, FINRA and any exchange on which the Company’s Common Stock is listed, if applicable, and those of federal and state governments and other agencies such as improper short selling of the Company’s Common Stock and failure to properly file all documents required by the SEC or otherwise.
2.22. The Subscriber agrees that it, he, she or it shall not, directly or indirectly sell, assign, exchange, distribute, offer to sell, contract to sell (including, without limitation, any short sale), hypothecate, pledge, grant any option to purchase or otherwise transfer or dispose of any Shares of the Company held by it, him or her and purchased further to this Subscription Agreement, at any time from the date hereof until that date that is six (6) months from the effective date of the Offering.
2.23. The undersigned understands and agrees that an investment in the Shares involves special risks, and the undersigned understands those risks, and the undersigned is expressly assuming such risks. The undersigned acknowledges and is aware that the Shares are speculative investments which involve a high degree of risk of loss by Subscriber of his, her or its entire investment in the Company. The undersigned agrees and acknowledges that it is the undersigned’s sole responsibility to conduct a “due diligence” investigation of the Company and the financial prospects of the Company.
2.24. Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, Subscriber maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Acquired Shares were legally derived.
3. Representations by the Company
The Company represents and warrants to the Subscriber that:
3.1. Organization and Authority. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Subscription Agreement being executed and delivered by it in connection herewith, and to consummate the transactions contemplated hereby and thereby.
3.2. Authorization. This Subscription Agreement, assuming due execution and delivery by the Subscriber, when the Subscription Agreement is executed and delivered by the Company, will be, valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as the enforceability hereof and thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and general principles of equity, regardless of whether enforcement is considered in a proceeding in equity or at law.
3.3. Non-Contravention. The execution and delivery of the Subscription Agreement by the Company, and the issuance of the Shares do not and will not, with or without the giving of notice or the lapse of time, or both, (i) result in any violation of any provision of the certificate of incorporation or by-laws or similar instruments of the Company or its subsidiaries, (ii) conflict with or result in a breach by the Company or its subsidiaries of any of the terms or provisions of, or constitute a default under, or result in the modification of, or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company or its subsidiaries, pursuant to any agreements, instruments or documents or any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which Company or any of its subsidiaries or any of its properties or assets are bound or affected, in any such case which would have a material adverse effect on the business, properties, operations, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole, or the validity or enforceability of, or the ability of the Company to perform any of its obligations, (iii) violate or contravene any applicable law, rule or regulation or any applicable decree, judgment or order of any court, United States federal or state regulatory body, administrative agency or other governmental body having jurisdiction over the Company or any of its subsidiaries or any of its respective properties or assets that would have a material adverse effect on the business, properties, operations, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole, or the validity or enforceability of, or the ability of the Company to perform any of its obligations, or (iv) have any material adverse effect on any permit, certification, registration, approval, consent, license or franchise necessary for the Company or its subsidiaries to own or lease and operate any of its properties and to conduct any of its business or the ability of the Company or its subsidiaries to make use thereof.
3.4. Absence of Certain Proceedings. The Company is not aware of any action, suit, proceeding, inquiry or investigation before or by any court, public board or body, or governmental agency pending or threatened against or affecting the Company or any of its subsidiaries, in any such case wherein an unfavorable decision, ruling or finding could adversely affect the validity or enforceability of, or the authority or ability of the Company to perform any of its obligations under.
4. Miscellaneous
4.1. Any notice or other communication given hereunder shall be deemed sufficient if in writing and sent by registered or certified mail, return receipt requested, addressed to the Company, at Vertical Data, Inc., 1887 Whitney Mesa Dr. #9810, Henderson Nevada, Attention: Deven Soni, and to the Subscriber at his, her or its address indicated on the signature page of this Subscription Agreement. Notices shall be deemed to have been given three (3) business days after the date of mailing, except notices of change of address, which shall be deemed to have been given when received.
4.2. This Subscription Agreement may be amended through a written instrument signed by both the Subscriber and the Company; provided, however, that the terms of Section 4 of this Subscription Agreement may be amended without the consent or approval of the Subscriber so long as such amendment applies in the same fashion to the subscription agreements of all of the other subscribers for the Shares in the Offering and at least holders of a majority of the Shares sold in the Offering have given their approval of such amendment, which approval shall be binding on all holders of the Shares.
4.3. This Subscription Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective heirs, legal representatives, successors and assigns. This Subscription Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of any and every nature among them.
4.4. Company shall indemnify, defend and hold Subscriber and its officers, directors, employees or agents harmless from and against any and all loss, cost, liability, damage and expense (including legal and other expenses incident thereto) of every kind, nature or description arising out of: (a) the breach of any representation or warranty of Company set forth in this Subscription Agreement or in any schedule or certificate delivered to Subscriber hereto; (b) the breach of any of the covenants or agreements by the Company containing in or arising out of this Agreement or the transactions contemplated hereby and the conduct of the business of the Company, including, but not limited to, any liability judgement or damages against the Company, its officers, directors, employees or agents, as a result of litigation involving the Company.
4.5. This Subscription Agreement shall be construed in accordance with the laws of the State of Nevada, without regard to principles of conflicts of law. The parties hereunder agree that any dispute arising out of or relating to an investment pursuant to this Subscription Agreement or concerning this Subscription Agreement, including but not limited to disputes as to arbitrability and all disputes with the Company, or any employee, agent, representative, officer, director or attorney of the Company shall be resolved through final, binding, non-appealable arbitration, before a single, neutral arbitrator, at JAMS, in Clark County, Nevada in accordance with the rules and regulations of the American Arbitration Association. Venue of all arbitration shall be JAMS Dispute Resolution Center, Clark County, Nevada. The Parties agree that each side will pay fifty percent (50%) of the cost of any arbitration proceedings. Judgment on any arbitration award may be entered in any court having jurisdiction. Any arbitration award shall be in United States Dollars and may be enforced in any jurisdiction in which the party against whom enforcement is sought maintains assets. The Parties agree to limit their respective testimony at any arbitration hearing to three hours per side. SUBSCRIBER HEREBY WAIVES ANY RIGHT TO SEEK ANY TYPE OF DAMAGES OTHER THAN COMPENSATORY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES AND PUNITIVE DAMAGES. SUBSCRIBER HEREBY FURTHER WAIVES THE RIGHT TO A TRIAL BY JURY, THE RIGHT TO BRING A CLASS ACTION SUIT, AND OTHER POTENTIAL REMEDIES THAT OTHERWISE MAY BE AFFORDED BY LAW. THIS IS A CLASS ACTION WAIVER THAT APPLIES TO ALL DISPUTES ARISING OUT OF THIS INVESTMENT, INCLUDING BUT NOT LIMITED TO ANY DISPUTES WITH THE COMPANY, AND ALL OF THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, OFFICERS, DIRECTORS, OR ATTORNEYS.
4.6. This Subscription Agreement may be executed in counterparts. It shall not be binding upon the Company unless and until it is accepted by the Company. Upon the execution and delivery of this Subscription Agreement by the Subscriber, this Subscription Agreement shall become a binding obligation of the Subscriber with respect to the purchase of Shares as herein provided; subject, however, to the right hereby reserved to the Company to enter into the same agreements with other subscribers and to add and/or to delete other persons as subscribers. This Subscription Agreement may be executed and delivered by facsimile or by email with scanned copy.
4.7. The holding of any provision of this Subscription Agreement to be invalid or unenforceable by a court of competent jurisdiction shall not affect any other provision of this Subscription Agreement, which shall remain in full force and effect.
4.8. It is agreed that a waiver by either party of a breach of any provision of this Subscription Agreement shall not operate, or be construed, as a waiver of any subsequent breach by that same party.
4.9. The parties agree to execute and deliver all such further documents, agreements and instruments and take such other and further action as may be necessary or appropriate to carry out the purposes and intent of this Subscription Agreement.
4.10. The Company agrees not to disclose the names, addresses or any other information about the Subscribers, except as required by law, provided that the Company may provide information relating to the Subscriber as required in any registration statement under the Act that may be filed by the Company pursuant to the requirements of this Subscription Agreement.
4.11. The obligation of the Subscriber hereunder is several and not joint with the obligations of any other subscribers for the purchase of Shares in the Offering (the “Other Subscribers”), and the Subscriber shall not be responsible in any way for the performance of the obligations of any other subscribers of the Offering. Nothing contained herein or in any other agreement or document delivered at the Closing, and no action taken by the Subscriber pursuant hereto, shall be deemed to constitute the Subscriber and the other subscribers of the Offering as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Subscriber and the other subscribers of the Offering are in any way acting in concert with respect to such obligations or the transactions contemplated by this Subscription Agreement. The Subscriber shall be entitled to protect and enforce the Subscriber’s rights, including without limitation the rights arising out of this Subscription Agreement, and it shall not be necessary for any other subscriber(s) of the Offering to be joined as an additional party in any proceeding for such purpose. The language used in this Subscription Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. The Subscriber is not acting as part of a “group” (as that term is used in Section 13(d) of the Exchange Act) in negotiating and entering into this Subscription Agreement or purchasing, disposing of or voting any of the Shares. The Company hereby confirms that it understands and agrees that the Subscriber is not acting as part of any such group.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Subscription Agreement as of the day and year first written above.
| Subscriber | ||
| Full Legal Name of Subscriber (Please print) | Full Legal Name of Co-Subscriber (if applicable) | |
| Signature of (or on behalf of) Subscriber | Signature of or on behalf of Co-Subscriber (if applicable) | |
| Name: | ||
| Title: | ||
| Address of Subscriber | Address of Co-Subscriber (if applicable) | |
| Social Security or Taxpayer Identification Number of Subscriber | Social Security or Taxpayer Identification Number of Co-Subscriber (if applicable) | |
| $ | ||
| Total Dollar Amount of Investment | ||
| Number of Shares: ________________________ |
_________________
Name of Subscriber
(Please Print or Type)
VERTICAL DATA INC.
SUBSCRIPTION AGREEMENT
COMPANY ACCEPTANCE PAGE
(To be completed by the Company)
Vertical Data Inc. hereby accepts the foregoing subscription either (a) for the Commitment Amount set forth below or (b) if the Commitment Amount below is left blank, then the Subscriber’s requested Commitment Amount set forth above the Subscriber’s signature on its signature page to the Subscription Agreement.
Commitment Amount: $___________________
Number of Shares:_______________________
Dated:____________________
| VERTICAL DATA INC. | ||
| By: | ||
| Name: | Deven Soni | |
| Title: | CEO | |
Exhibit 14.1
Vertical Data Inc. Code of Ethics & Conduct
Effective Date: May 3, 2024
Table of Contents
| 1. | Introduction | |
| 2. | Core Values | |
| 3. | Ethical Standards and Business Conduct | |
| 4. | Workplace Behavior and Expectations |
| ○ | Professional Conduct | |
| ○ | Remote Work Standards | |
| ○ | Communication and Collaboration | |
| ○ | Diversity, Equity, and Inclusion | |
| ○ | Harassment and Discrimination | |
| ○ | Substance Abuse and Workplace Safety |
| 5. | Protecting the Company |
| ○ | Use of Assets and Resources | |
| ○ | Confidential Information and Data Security | |
| ○ | Intellectual Property | |
| ○ | Accuracy and Integrity of Records |
| 6. | Compliance with Laws and Regulations |
| ○ | Anti-Bribery and Corruption | |
| ○ | Insider Trading and Securities Compliance | |
| ○ | Conflicts of Interest | |
| ○ | Gifts and Entertainment | |
| ○ | Antitrust and Fair Competition |
| 7. | Environmental and Social Responsibility | |
| 8. | Reporting Concerns and Whistleblower Protections | |
| 9. | Governance, Enforcement, and Accountability | |
| 10. | Updates and Acknowledgment |
1. Introduction
Vertical Data Inc. (“Vertical Data” or the “Company”) is committed to conducting its operations with the highest ethical standards, transparency, and professionalism. As we evolve into a public company, this Code of Conduct (“Code”) reflects our commitment to integrity, accountability, and long-term value creation for all stakeholders.
This Code applies to all employees, officers, directors, contractors, and business partners worldwide. It serves as a guide for ethical decision-making and outlines the behavior expected in all interactions.
2. Core Values
| 1. | Integrity: Acting with honesty and fairness in all business dealings. | |
| 2. | Customer Focus: Delivering value through innovative and reliable solutions. | |
| 3. | Collaboration: Building strong partnerships within and outside the organization. | |
| 4. | Accountability: Taking responsibility for actions and outcomes. | |
| 5. | Sustainability: Championing environmentally conscious practices. | |
| 6. | Respect: Promoting an inclusive and supportive work environment. |
| 1 |
3. Ethical Standards and Business Conduct
At the Company, all employees and stakeholders are expected to:
| ● | Act in compliance with all applicable laws and company policies. | |
| ● | Conduct business with honesty and transparency. | |
| ● | Avoid actions that could harm the Company’s reputation or relationships. | |
| ● | Promptly report any unethical behavior or policy violations. |
4. Workplace Behavior and Expectations
Professional Conduct
| ● | Employees and representatives of the Company are ambassadors of the Company, both professionally and personally. Actions or behaviors that may negatively impact the Company’s reputation should be avoided. | |
| ● | Treat colleagues, clients, and stakeholders with professionalism, courtesy, and respect. | |
| ● | Avoid inappropriate language, behavior, or actions that could disrupt workplace harmony. |
Remote Work Standards
| ● | Maintain a professional and productive workspace. | |
| ● | Use secure Company-approved tools for communication and data sharing. | |
| ● | Adhere to data security and confidentiality policies at all times. |
Communication and Collaboration
| ● | Foster open, honest, and constructive communication. | |
| ● | Be responsive to colleagues, partners, and clients. | |
| ● | Use respectful language in all written and verbal communications. |
Diversity, Equity, and Inclusion
| ● | The Company provides equal employment opportunities to all individuals regardless of age, gender, race, religion, disability, or other protected characteristics. Recruitment, promotions, and benefits will be free from any form of discrimination. | |
| ● | Embrace diverse perspectives, backgrounds, and ideas. | |
| ● | Promote equity and inclusion in hiring, teamwork, and leadership. |
Harassment and Discrimination
The Company has zero tolerance for harassment or discrimination in any form, including:
| ● | Unwelcome verbal, physical, or visual conduct. | |
| ● | Discrimination based on race, gender, age, disability, religion, or other protected categories. | |
| ● | Retaliation against those who report harassment or discrimination. |
Substance Abuse and Workplace Safety
| ● | Refrain from substance abuse, including illegal drugs or alcohol during work hours. | |
| ● | Prioritize health and safety in all work environments, physical and digital. |
| 2 |
Human Rights
| ● | The Company adheres to the principles of the United Nations Universal Declaration of Human Rights, promoting respect for fundamental human rights and freedoms in all aspects of our operations. |
5. Protecting the Company
Use of Assets and Resources
| ● | Use Company resources (e.g. laptops, software) responsibly and for legitimate purposes. | |
| ● | Avoid misuse, damage, or unauthorized access to company assets. | |
| ● | Employees must ensure that Company assets, including intellectual property and digital resources, are used responsibly and solely for legitimate business purposes. Safeguards must be implemented to prevent misuse or loss. |
Confidential Information and Data Security
| ● | Protect proprietary data, including financial records, customer information, and internal strategies. | |
| ● | Use strong passwords, secure devices, and follow all IT security protocols. | |
| ● | Report any data breaches or suspicious activities immediately. |
Intellectual Property
| ● | Safeguard the Company’s intellectual property, including trademarks, copyrights, and trade secrets. | |
| ● | Respect third-party intellectual property and avoid unauthorized use. |
Accuracy and Integrity of Records
| ● | Ensure that all financial records, reports, and submissions are truthful and accurate. | |
| ● | Comply with document retention policies and legal requirements. | |
| ● | Avoid falsifying or misrepresenting data under any circumstances. |
6. Compliance with Laws and Regulations
Anti-Bribery and Corruption
| ● | Do not offer, accept, or tolerate bribes, kickbacks, or illicit payments. | |
| ● | Ensure third-party partners comply with anti-corruption laws like the FCPA. |
Insider Trading and Securities Compliance
| ● | Refrain from using non-public information for personal financial gain. | |
| ● | Avoid sharing confidential information that could influence trading activities. |
For more details, refer to the Insider Trading Policy.
Conflicts of Interest
| ● | Disclose any personal, financial, or professional relationships that could conflict with company interests. | |
| ● | Refrain from engaging in external activities that may interfere with job responsibilities. |
| 3 |
Gifts and Entertainment
| ● | Gifts under $50 are acceptable; anything above must be reported to the audit committee. | |
| ● | Avoid giving or receiving gifts that may appear to influence business decisions. |
Antitrust and Fair Competition
| ● | Compete ethically and comply with antitrust laws. | |
| ● | Avoid collusion, price fixing, or other anti-competitive practices. |
7. Environmental and Social Responsibility
| ● | Sustainability: Minimize environmental impact through responsible operations and innovative practices. | |
| ● | Community Engagement: Support initiatives that improve local communities and foster inclusivity. | |
| ● | Diversity in Supply Chain: Partner with vendors and suppliers that align with the Company’s ethical and environmental standards. |
8. Reporting Concerns and Whistleblower Protections
The Company encourages open communication and the reporting of concerns:
| ● | Reporting Channels: Use the audit committee email, or direct reports to the Audit Committee. | |
| ● | Confidentiality: All reports will be handled with discretion and privacy. | |
| ● | Protection from Retaliation: Employees reporting concerns in good faith are protected under the Whistleblower Policy. | |
| ● | Anonymous Reporting: Anonymous submissions are accepted but may limit investigative ability. |
For more details, refer to the Whistleblower Policy.
9. Governance, Enforcement, and Accountability
| ● | Any exceptions to the Code must be approved by the Board of Directors and disclosed as required by applicable laws and regulations | |
| ● | Non-compliance with this Code may result in disciplinary actions, including termination of employment or contractor relationships. Severe violations may be referred to legal authorities for further action. | |
| ● | The Audit Committee oversees compliance and enforces corrective measures. | |
| ● | Annual reviews of this Code ensure alignment with evolving business and legal standards. | |
| ● | All employees, officers, contractors, and directors are required to certify annually their understanding of and compliance with this Code. The Audit Committee will ensure that certifications are collected and will report compliance status to the Audit Committee. |
10. Updates and Acknowledgment
The Code is subject to periodic updates. Employees will be notified of changes and must reaffirm their understanding and adherence annually.
| 4 |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the inclusion of our report dated December 16, 2024, with respect to our audit of Vertical Data Inc.’s (the “Company”) financial statements as of September 30, 2024 and for the period May 3, 2024 (date of formation) to September 30, 2024, in the Company’s Amendment No. 2 to the Form S-1.
We also consent to the reference to our Firm under the caption “Experts” in such Registration Statement.
BCRG Group
Irvine, California
May 1, 2025