Quarterly Report (10-q)

Date : 05/09/2017 @ 4:40PM
Source : Edgar (US Regulatory)
Stock : Cv Sciences, Inc. (QB) (CVSI)
Quote : 0.2755  0.0 (0.00%) @ 7:08AM

Quarterly Report (10-q)

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-Q

 

x Quarterly Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
  For the quarterly period ended March 31, 2017
   
o Transition Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
  For the transition period from _________ to ________

 

Commission File Number: 000-54677

 

CV Sciences, Inc.

(Exact name of registrant as specified in its charter)

 

DELAWARE
(State or other jurisdiction of incorporation or organization)
80-0944870
(I.R.S. Employer Identification No.)

 

2688 South Rainbow Boulevard, Suite B, Las Vegas, NV 89146

(Address number of principal executive offices) (Zip Code)

 

(866) 290-2157

(Registrant’s telephone number, including area code)

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x  No o

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x  No o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company”, and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one)

 

  Large accelerated filer  o Accelerated filer  o
  Non-accelerated filer  o Smaller reporting company  x
  Emerging growth company  o  

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x

  

Indicate the number of shares outstanding of each of the registrant’s classes of common stock, as of the latest practicable date. As of May 3, 2017, the issuer had 88,951,086 shares of issued and outstanding common stock, par value $0.0001.

 

DOCUMENTS INCORPORATED BY REFERENCE . None

 

 

 
 

CV SCIENCES, INC.

FORM 10-Q

FOR THE THREE MONTHS ENDED MARCH 31, 2017

TABLE OF CONTENTS

 

    PAGE
PART I – FINANCIAL INFORMATION  
     
Item 1. Financial Statements (unaudited) 1
  Condensed Consolidated Balance Sheets as of March 31, 2017 (unaudited) and December 31, 2016 (audited) 1
  Condensed Consolidated Statements of Operations (unaudited) for the three months ended March 31, 2017 and 2016 2
  Condensed Consolidated Statement of Changes in Stockholders’ Equity (unaudited) for the three months ended March 31, 2017 3
  Condensed Consolidated Statements of Cash Flows (unaudited) for the three months ended March 31, 2017 and 2016 4
  Notes to Condensed Consolidated Financial Statements (unaudited) 5
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 23
Item 3. Quantitative and Qualitative Disclosure About Market Risk 27
Item 4. Controls and Procedures 27
   
PART II – OTHER INFORMATION  
     
Item 1. Legal Proceedings 28
Item 1A. Risk Factors 28
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 28
Item 3. Defaults Upon Senior Securities 28
Item 4. Mine Safety Disclosure 28
Item 5. Other Information 29
Item 6. Exhibits 30
   
  SIGNATURES 31

 

 

 

 

 

 

 

 

 

 

 

  i  

 

WHERE YOU CAN FIND MORE INFORMATION

 

We file annual, quarterly and current reports, proxy statements and other information required by the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with the Securities and Exchange Commission (the “SEC”). You may read and copy any document we file with the SEC at the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549, U.S.A. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Our SEC filings are also available to the public from the SEC’s internet site at http://www.sec.gov.

 

On our Internet website,  http://www.cvsciences.com , we post the following recent filings as soon as reasonably practicable after they are electronically filed with or furnished to the SEC: our annual reports on Form 10-K, our quarterly reports on Form 10-Q, our current reports on Form 8-K, and any amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act.

 

When we use the terms “CV Sciences”, “Company”, “we”, “our” and “us” we mean CV Sciences, Inc., a Delaware corporation, and its consolidated subsidiaries, taken as a whole, as well as any predecessor entities, unless the context otherwise indicates.

 

 

FORWARD LOOKING STATEMENTS

 

This Quarterly Report on Form 10-Q, the other reports, statements, and information that the Company has previously filed with or furnished to, or that we may subsequently file with or furnish to, the SEC and public announcements that we have previously made or may subsequently make include, may include, or may incorporate by reference certain statements that may be deemed to be “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, as amended, and that are intended to enjoy the protection of the safe harbor for forward-looking statements provided by that Act. To the extent that any statements made in this report contain information that is not historical, these statements are essentially forward-looking. Forward-looking statements can be identified by the use of words such as “anticipate”, “estimate”, “plan”, “project”, “continuing”, “ongoing”, “expect”, “believe”, “intend”, “may”, “will”, “should”, “could”, and other words of similar meaning. These statements are subject to risks and uncertainties that cannot be predicted or quantified and, consequently, actual results may differ materially from those expressed or implied by such forward-looking statements. Such risks and uncertainties include, without limitation, marketability of our products; legal and regulatory risks associated with the OTC: QB; our ability to raise additional capital to finance our activities; the future trading of our common stock; our ability to operate as a public company; our ability to protect our proprietary information; general economic and business conditions; the volatility of our operating results and financial condition; our ability to attract or retain qualified senior management personnel and research and development staff; and other risks detailed from time to time in our filings with the SEC, or otherwise.

 

Information regarding market and industry statistics contained in this report is included based on information available to us that we believe is accurate. It is generally based on industry and other publications that are not produced for purposes of securities offerings or economic analysis. Forecasts and other forward-looking information obtained from these sources are subject to the same qualifications and the additional uncertainties accompanying any estimates of future market size, revenue and market acceptance of products and services. We do not undertake any obligation to publicly update any forward-looking statements. As a result, investors should not place undue reliance on these forward-looking statements.

 

 

 

 

 

 

  ii  

 

PART I – FINANCIAL INFORMATION

 

Item 1. Financial Statements

 

CV SCIENCES, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

 

    (Unaudited)     (Audited)  
    March 31,     December 31,  
    2017     2016  
Assets                
Current assets                
Cash (Note 2)   $ 663,378     $ 781,857  
Restricted cash (Note 2)     1,117,115       275,611  
Accounts receivable, net (Note 2)     871,048       360,475  
Inventory (Note 3)     2,867,387       2,851,772  
Prepaid expenses and other current assets     661,773       551,395  
Total current assets     6,180,701       4,821,110  
                 
Accounts receivable (Note 2)     371,723       389,723  
Inventory, net (Note 3)     5,775,345       6,478,727  
Property & equipment, net (Note 2)     195,177       242,702  
Intangibles, net (Note 5)     3,862,750       3,871,600  
Goodwill     2,788,300       2,788,300  
Total other assets     12,993,295       13,771,052  
                 
Total assets   $ 19,173,996     $ 18,592,162  
                 
Liabilities and stockholders' equity                
Current liabilities                
Accounts payable   $ 496,370     $ 523,581  
Accrued expenses (Note 4)     2,920,691       378,218  
Secured convertible promissory notes payable, net (Note 7)     901,533       1,897,976  
Unsecured note payable, net (Note 7)     718,595        
Unsecured note payable (Note 7)     73,402       125,964  
Derivative liabilities (Note 7)     41,500       222,800  
Total current liabilities     5,152,091       3,148,539  
                 
Non-current liabilities                
Secured convertible promissory notes payable, net (Note 7)     730,942        
Unsecured note payable, net (Note 7)           679,174  
Deferred tax liability     1,556,300       1,556,300  
Total liabilities     7,439,333       5,384,013  
                 
Commitments and contingencies (Note 10)                
                 
Stockholders' equity (Notes 8 and 9)                
Preferred stock, par value $0.0001; 10,000,000 shares authorized; no shares issued and outstanding            
Common stock, par value $0.0001; 190,000,000 shares authorized; 62,146,773 and 57,617,545 shares issued and outstanding as of March 31,2017 and December 31, 2016, respectively     6,215       5,762   
Additional paid-in capital     45,644,014       43,333,176  
Accumulated deficit     (33,915,566 )     (30,130,789 )
Total stockholders' equity     11,734,663       13,208,149  
                 
Total liabilities and stockholders' equity   $ 19,173,996     $ 18,592,162  

 

See accompanying notes to the condensed consolidated financial statements.

 

 

 

  1  

 

CV SCIENCES, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

UNAUDITED

 

    For the three months ended March 31,  
    2017     2016  
             
Product sales, net   $ 3,764,191     $ 2,422,678  
Cost of goods sold     1,331,188       797,043  
Gross Profit     2,433,003       1,625,635  
                 
Operating Expenses:                
Selling, general and administrative     (3,676,710 )     (2,689,245 )
Research and development     (188,716 )     (141,813 )
      (3,865,426 )     (2,831,058 )
                 
Gain on changes in derivative liabilities     210,600        
Royalty buy-out     (2,432,000 )      
      (6,086,826 )     (2,831,058 )
                 
Operating Loss     (3,653,823 )     (1,205,423 )
                 
Other (expense) income:                
Interest income           27,655  
Interest expense     (130,954 )     (355,349 )
Total Other (Expense) Income     (130,954 )     (327,694 )
                 
Loss before provision for income taxes     (3,784,777 )     (1,533,117 )
Provision for income taxes            
Net Loss   $ (3,784,777 )   $ (1,533,117 )
                 
Weighted average common shares outstanding                
Basic & diluted     60,098,648       49,931,919  
Net loss per common share                
Basic & diluted   $ (0.06 )   $ (0.03 )

 

See accompanying notes to the condensed consolidated financial statements.

 

 

 

  2  

 

 

C V SCIENCES, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY

For the three months ended March 31, 2017

UNAUDITED

 

 

  Common Stock   Additional
Paid-In
  Accumulated      
  Shares   Amount   Capital   Deficit   Total  
                     
Balance - December 31, 2016   57,617,545   $ 5,762   $ 43,333,176   $ (30,130,789 ) $ 13,208,149  
                               
Shares issued pursuant to conversion of senior convertible promissory notes and accrued interest (Notes 7 and 8)   4,131,175     413     1,049,587         1,050,000  
Stock redemptions (Notes 7 and 8)   398,053     40     74,960         75,000  
Stock-based compensation (Note 9)           1,186,291         1,186,291  
Net loss               (3,784,777 )   (3,784,777 )
Balance - March 31, 2017   62,146,773   $ 6,215   $ 45,644,014   $ (33,915,566 ) $ 11,734,663  

 

See accompanying notes to the condensed consolidated financial statements.

 

 

 

  3  

 

 

 

CV SCIENCES, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

UNAUDITED

 

 

    For the three months ended March 31,  
    2017     2016  
OPERATING ACTIVITIES                
Net loss   $ (3,784,777 )   $ (1,533,117 )
Adjustments to reconcile net loss to net cash flows provided by (used in) operating activities:                
Depreciation and amortization     56,375       263,375  
Amortization of debt issuance costs     59,312       126,086  
Amortization of beneficial conversion feature of convertible debts           38,392  
Amortization of derivative liability discounts     3,663        
Common stock issued for professional services           175,000  
Stock-based compensation     1,186,291       405,151  
Royalty buy-out     2,432,000        
Accrued interest payable     40,245        
Gain on changes in derivative liabilities     (210,600 )      
Change in operating assets and liabilities:                
Accounts receivable     (492,573 )     2,133  
Inventory     687,767       321,293  
Prepaid expenses and other current assets     (110,378 )     (15,508 )
Accounts payable and accrued expenses     158,262       104,937  
Net cash provided by (used in) operating activities     25,587       (112,258 )
                 
INVESTING ACTIVITIES                
Net cash flows provided by investing activities            
                 
FINANCING ACTIVITIES                
Borrowings from secured convertible debt, net of costs     750,000        
Borrowing from issuance of unsecured note payable, net of costs           801,430  
Repayment of convertible debt           (612,000 )
Repayment of unsecured notes payable     (52,562 )     (59,493 )
Net cash flows provided by financing activities     697,438       129,937  
                 
Net increase in cash and restricted cash     723,025       17,679  
Cash and restricted cash, beginning of period     1,057,468       518,462  
Cash and restricted cash, end of period   $ 1,780,493     $ 536,141  
                 
                 
Supplemental disclosures of non-cash transactions:                
Conversion of convertible promissory notes and accrued interest to common stock   $ 1,050,000     $ 408,000  
Value of warrants issued with unsecured promissory note           266,800  
Inventory returned in satisfaction of note receivable           61,897  
Value of embedded derivative at inception     29,300        
Stock redemptions     75,000        
                 
Supplemental cash flow disclosures:                
Interest paid   $ 27,735     $ 259,934  
Taxes paid            

 

See accompanying notes to the condensed consolidated financial statements.

 

 

 

  4  

 

 

CV SCIENCES, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

UNAUDITED

 

  1. ORGANIZATION AND BUSINESS

 

CV Sciences, Inc. (the “Company,” “we,” “our” or “us”) was incorporated under the name Foreclosure Solutions, Inc. in the State of Texas on December 9, 2010. On July 25, 2013, the Company’s predecessor, CannaVest Corp., a Texas corporation (“CannaVest Texas”), merged with the Company, a wholly-owned Delaware subsidiary of CannaVest Texas, to effectuate a change in the Company’s state of incorporation from Texas to Delaware. On January 4, 2016, the Company filed a Certificate of Amendment of Certificate of Incorporation reflecting its corporate name change to “CV Sciences, Inc.”, effective on January 5, 2016. In addition, on January 4, 2016, the Company amended its Bylaws to reflect its corporate name change to “CV Sciences, Inc.” The Company previously operated under the corporate name of CannaVest Corp. The change in corporate name was undertaken in connection with the acquisition of CanX Inc., a Florida-based, specialty pharmaceutical corporation (the “CanX Acquisition”) as more fully set forth in our Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on January 4, 2016 (the “January 2016 8-K”). On June 8, 2016, the Company announced that the Financial Industry Regulatory Authority (“FINRA”) had approved a change in the trading symbol for the Company’s common stock to “CVSI.” The Company’s common stock formerly traded under the symbol “CANV.”

 

The Company operates two distinct business segments: a consumer product segment in manufacturing, marketing and selling plant-based Cannabidiol (“CBD”) products to a range of market sectors; and, a specialty pharmaceutical segment focused on developing and commercializing novel therapeutics utilizing synthetic CBD. The specialty pharmaceutical segment began development activities during the second quarter of 2016.

 

  2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Basis of Presentation – The condensed consolidated financial statements include the accounts of CV Sciences, Inc. and its wholly-owned subsidiaries US Hemp Oil, LLC, CannaVest Laboratories, LLC, Plus CBD, LLC and CANNAVEST Acquisition, LLC; and the accounts of a 70% interest in CannaVest Europe, GmbH (collectively, the “Company”). All intercompany accounts and transactions have been eliminated in consolidation. The Company commenced commercial operations for its current business model on January 29, 2013. On May 2, 2016, the Company filed Articles of Dissolution for its wholly-owned subsidiaries US Hemp Oil, LLC and CannaVEST Laboratories, LLC, with the Secretary of State of Nevada, effective as of April 29, 2016. On January 20, 2017, the Company filed for dissolution of CannaVest Europe, GmbH, an entity that prior to dissolution, the Company had a 70% interest in, with the District Court, Dusseldorf Germany, effective December 31, 2016. None of US Hemp Oil, LLC, CannaVest Laboratories, LLC, or CannaVest Europe, GmbH entities had any assets or liabilities at the time of their respective dissolutions.

 

The unaudited condensed consolidated interim financial statements have been prepared by the Company pursuant to the rules and regulations of the SEC. The information furnished herein reflects all adjustments (consisting of normal recurring accruals and adjustments) which are, in the opinion of management, necessary to fairly present the operating results for the respective periods. Certain information and footnote disclosures normally present in annual financial statements prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) have been omitted pursuant to such rules and regulations. These unaudited condensed consolidated financial statements should be read in conjunction with the audited financial statements and notes for the year ended December 31, 2016, filed with the SEC on the Company’s Annual Report on Form 10-K filed on March 31, 2017. The results for the three months ended March 31, 2017, are not necessarily indicative of the results to be expected for the full year ending December 31, 2017.

 

Certain prior year amounts have been reclassified for consistency with the current year presentation. These reclassifications had no impact on net sales, operating loss, net loss or net loss per share.

 

Liquidity – For the three months ended March 31, 2017 and 2016, the Company had net losses of $3,784,777 and $1,533,117, respectively. In addition, for the three months ended March 31, 2017, the Company had positive cash flows from operations of $25,587 compared with negative cash flows from operations of $112,258 for the three months ended March 31, 2016. Management believes the Company has the funds needed to continue its consumer product business segment and meet its other obligations over the next year solely from current revenues and cash flow due to increased sales and because our current inventory levels are sufficient to support sales for the next 12 month period through May 9, 2018, resulting in reduced cash outflow for inventory purchases. In addition, we do not intend to purchase raw inventory from our supply chain arrangements from the 2017 crop and/or 2018 crop. Management believes that it will be able to obtain such financing on terms acceptable to the Company, however, there can be no assurances that the Company will be successful. If the Company is unable to raise additional capital, the Company would likely be forced to curtail pharmaceutical development.

 

 

 

  5  

 

 

Derivative Financial Instruments   Derivative financial instruments are initially recognized at fair value on the date a derivative contract is entered into and subsequently remeasured at fair value on a quarter-end reporting basis. Changes in the fair value of derivative financial instruments are recognized as a gain or loss in the Company’s Condensed Consolidated Statements of Operations.

 

Business Combinations We apply the provisions of the Accounting Standards Codification (“ASC”) Topic 805, Business Combinations (“ASC 805”), in the accounting for our acquisitions, including without limitation, the CanX Acquisition. ASC 805 establishes principles and requirements for recognizing and measuring the total consideration transferred to and the assets acquired, liabilities assumed and any non-controlling interests in the acquired target in an asset purchase. ASC 805 requires us to recognize separately from goodwill the assets acquired and the liabilities assumed at the acquisition date fair values. Goodwill as of the acquisition date is measured as the excess of consideration transferred over the net of the acquisition date fair values of the assets acquired and the liabilities assumed. While we use our best estimates and assumptions to accurately value assets acquired and liabilities assumed at the acquisition date as well as contingent consideration, where applicable, our estimates are inherently uncertain and subject to refinement. As a result, during the measurement period, we record adjustments to the assets acquired and liabilities assumed with the corresponding offset to goodwill. Upon the conclusion of the measurement period or final determination of the values of assets acquired or liabilities assumed, whichever comes first, any subsequent adjustments are recorded in our condensed consolidated statements of operations.

 

Accounting for business combinations requires our management to make significant estimates and assumptions, especially at the acquisition date, including our estimates for intangible assets, contractual obligations assumed, pre-acquisition contingencies and contingent consideration, where applicable. Although we believe the assumptions and estimates we have made in the past have been reasonable and appropriate, they are based in part on historical experience and information obtained from the management of the acquired companies and are inherently uncertain.

 

Examples of critical estimates in valuing certain of the intangible assets we have acquired include but are not limited to:

 

  · future expected cash flows from supply chain relationships with growers and processors of our hemp extracted CBD oil;
  · expected costs to develop the in-process research and development (“IPR&D”) into commercially viable pharmaceutical products and estimated cash flows from the projects when completed;
  · the acquired company’s brand, trade names and competitive position, as well as assumptions about the period of time the acquired brand will continue to be used in the combined Company’s product portfolio; and
  · discount rates.

 

Goodwill and Intangible Assets – The Company evaluates the carrying value of goodwill and intangible assets annually during the fourth quarter in accordance with ASC Topic 350, Intangibles Goodwill and Other and between annual evaluations if events occur or circumstances change that would more likely than not reduce the fair value of the reporting unit below its carrying amount. Such circumstances could include, but are not limited to (1) a significant adverse change in legal factors or in business climate, (2) unanticipated competition, or (3) an adverse action or assessment by a regulator. When evaluating whether goodwill is impaired, the Company compares the fair value of the reporting unit to which the goodwill is assigned to the reporting unit’s carrying amount, including goodwill. The fair value of the reporting unit is estimated using a combination of the income, or discounted cash flows, approach and the market approach, which utilizes comparable companies’ data. If the carrying amount of a reporting unit exceeds its fair value, then the amount of the impairment loss must be measured. The impairment loss would be calculated by comparing the implied fair value of a reporting unit’s goodwill to its carrying amount. In calculating the implied fair value of a reporting unit’s goodwill, the fair value of the reporting unit is allocated to all of the other assets and liabilities of that unit based on their fair values. The excess of the fair value of a reporting unit over the amount assigned to its other assets and liabilities is the implied fair value of goodwill.

 

We make critical assumptions and estimates in completing impairment assessments of goodwill and other intangible assets. Our cash flow projections look several years into the future and include assumptions on variables such as future sales and operating margin growth rates, economic conditions, market competition, inflation and discount rates.

 

We classify intangible assets into three categories: (1) intangible assets with definite lives subject to amortization; (2) intangible assets with indefinite lives not subject to amortization; and (3) goodwill. We determine the useful lives of our identifiable intangible assets after considering the specific facts and circumstances related to each intangible asset. Factors we consider when determining useful lives include the contractual term of any agreement related to the asset, the historical performance of the asset, our long-term strategy for using the asset, any laws or regulations which could impact the useful life of the asset and other economic factors, including competition and specific market conditions. Intangible assets that are deemed to have definite lives are amortized, primarily on a straight-line basis, over their useful lives to their estimated residual values, generally five years. IPR&D has an indefinite life and is not amortized until completion and development of the project, at which time the IPR&D becomes an amortizable asset. If the related project is not completed in a timely manner or the project is terminated or abandoned, the Company may have an impairment related to the IPR&D, calculated as the excess of the asset’s carrying value over its fair value. This method of amortization approximates the expected future cash flow generated from their use. During the three months ended March 31, 2017 and 2016, there were no impairments.

 

 

 

  6  

 

 

Use of Estimates – The Company’s condensed consolidated financial statements have been prepared in accordance with GAAP. The preparation of these condensed consolidated financial statements requires us to make significant estimates and judgments that affect the reported amounts of assets, liabilities, revenues, expenses and related disclosures of contingent assets and liabilities. We evaluate our estimates, including those related to contingencies, on an ongoing basis. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions. Significant estimates include the valuation of intangible assets, the amortization lives of intangible assets, valuation of contingent consideration, inputs for valuing derivative financial instruments, inputs for valuing warrants, inputs for valuing notes payable beneficial conversion features and stock-based compensation, valuation of inventory, classification of current and non-current receivables, classification of current and non-current inventory amounts and the allowance for doubtful accounts.

 

Reportable Segments – The Company has two business segments; consumer products and specialty pharmaceutical. Our consumer products segment develops, manufactures and markets products based on plant-based CBD, including under the name PlusCBD™ in a variety of market sectors including nutraceutical, beauty care, specialty foods and vape. Our specialty pharmaceutical segment is newly established to develop a variety of drug candidates which use synthetic CBD as a primary active ingredient. The specialty pharmaceutical segment began development activities during the second quarter of 2016.

 

Cash and Cash Equivalents – For purposes of the condensed consolidated statements of cash flows, the Company considers amounts held by financial institutions and short-term investments with an original maturity of three months or less when purchased to be cash and cash equivalents. At each of March 31, 2017 and December 31, 2016, the Company had no cash equivalents.

 

Restricted Cash – The Company’s current and past arrangements with its credit card processors require that its credit card processors withhold a cash reserve balance from the Company’s credit card receipt transactions for a period of time not to exceed 270 days, for which the credit card processors will refund the Company the entire amounts withheld at its sole discretion. As of March 31, 2017, the Company had $1,117,115 in restricted cash withheld by its current and past credit card processors. The following table provides a reconciliation of cash and restricted cash reported within the condensed consolidated balance sheets to the total of the same amounts shown in the statement of cash flows:

 

    March 31, 2017     December 31, 2016  
             
Cash   $ 663,378     $ 781,857  
Restricted cash     1,117,115       275,611  
Total cash and restricted cash shown in the statement of cash flows   $ 1,780,493     $ 1,057,468  

 

Concentrations of Credit Risk – As of March 31, 2017, the Federal Deposit Insurance Corporation (“FDIC”) provided insurance coverage of up to $250,000 per depositor per bank. The Company has not experienced any losses in such accounts and does not believe that the Company is exposed to significant risks from excess deposits. The Company’s cash balance in excess of FDIC limits totaled $308,399 as of March 31, 2017.

 

One customer represented 35% and 58% of our accounts receivable balance as of March 31, 2017 and December 31, 2016, respectively.

 

Accounts Receivable – Generally, the Company requires payment prior to shipment. However, in certain circumstances, the Company extends credit to companies located throughout the U.S. Accounts receivable consists of trade accounts arising in the normal course of business. Accounts receivable for large accounts are generally secured by substantially all assets of the customer. Smaller accounts receivable, generally less than $10,000, are unsecured and no interest is charged on past due accounts. Accounts for which no payments have been received after 30 days are considered delinquent and customary collection efforts are initiated. Accounts receivable are carried at original invoice amount less a reserve made for doubtful receivables based on a review of all outstanding amounts on a quarterly basis.

 

Management has determined the allowance for doubtful accounts by regularly evaluating individual customer receivables and considering a customer’s financial condition and credit history, and current economic conditions. As of March 31, 2017 and December 31, 2016, respectively, the Company maintained an allowance for doubtful accounts related to accounts receivable in the amount of $100,000.

 

 

 

  7  

 

 

Revenue Recognition - The Company recognizes revenue in accordance with the ASC Topic 605, Revenue Recognition which requires persuasive evidence of an arrangement, delivery of a product or service, a fixed or determinable price and assurance of collection within a reasonable period of time. The Company records revenue when goods are delivered to the carrier and the rights of ownership have transferred from the Company to the customer.

 

In the normal course of business, the Company may offer discounts or promotions for various products to incentivize sales growth and brand awareness. Such discounts or promotions are recorded as a reduction to sales revenue.

 

Sales Tax – The Company is responsible for collecting tax on sales to end customers and remitting these taxes to applicable jurisdictions. These taxes are assessed based on the location of the end customer and the laws of the jurisdiction in which they reside. Such taxes are accounted for on a net basis, and not included in revenues.

 

Shipping and Handling – Shipping and handling costs totaled $157,359 and $86,291 for the three months ended March 31, 2017 and 2016, respectively, and are recorded in cost of goods sold.

 

Returns Finished Products – Within ten (10) days of a customer’s receipt of the Company’s finished products, the customer may return (i) finished products that do not conform to the Company’s product specifications or, (ii) finished products which are defective, provided that notice of condition is given within five (5) days of the customer’s receipt of the finished products. The failure to comply with the foregoing time requirements shall be deemed a waiver of customer’s claim for incorrect or defective shipments. In the event of the existence of one or more material defects in any finished product upon delivery to the customer, the Company shall, at its sole option and cost, either (a) take such measures as are required to cure the defect(s) designated in the notice, or (b) replace such defective finished product(s). The Company may, at its sole option, require the return or destruction of the defective finished products. The customer shall afford the Company the opportunity to verify that such defects existed prior to shipment and were not, for purposes of example and not limitation, the result of improper transport, handling, storage, product rotation or misuse by the customer.

 

Bulk Oil Products – Sales of bulk oil products are generally final and the Company does not accept returns under any circumstances.

 

There was no allowance for customer returns as of March 31, 2017 or December 31, 2016 due to insignificant return amounts experienced during the three months ended March 31, 2017 and the year ended December 31, 2016, respectively. 

 

Compensation and Benefits – The Company records compensation and benefits expense for all cash and deferred compensation, benefits, and related taxes as earned by its employees. Compensation and benefits expense also includes compensation earned by temporary employees and contractors who perform similar services to those performed by the Company’s employees, primarily information technology and project management activities.

 

Stock-Based Compensation – Certain employees, officers, directors, and consultants of the Company participate in various long-term incentive plans that provide for granting stock options, restricted stock awards, restricted stock units, stock bonus awards and performance-based awards. Stock options generally vest in equal increments over a two- to four-year period and expire on the tenth anniversary following the date of grant. Performance-based stock options vest once the applicable performance condition is satisfied. Restricted stock awards generally vest 100% at the grant date.

 

The Company recognizes stock-based compensation for equity awards granted to employees, officers, directors and consultants as compensation and benefits expense in the condensed consolidated statements of operations. The fair value of stock options is estimated using a Black-Scholes valuation model on the date of grant. The fair value of restricted stock awards is equal to the closing price of the Company’s stock on the date of grant. Stock-based compensation is recognized over the requisite service period of the individual awards, which generally equals the vesting period. For performance-based stock options, compensation is recognized once the applicable performance condition is satisfied.

 

The Company recognizes stock-based compensation for equity awards granted to consultants as selling, general and administrative expense in the condensed consolidated statements of operations.

 

The fair value of stock options is estimated using a Black-Scholes valuation model on the date of grant and unvested awards are revalued at each reporting period. The fair value of restricted stock awards is equal to the closing price of the Company’s stock on the date of grant multiplied by the number of shares awarded. Stock-based compensation is recognized over the requisite service period of the individual awards, which generally equals the vesting period. 

 

 

 

  8  

 

 

Inventory – Inventory is stated at lower of cost or net realizable value, with cost being determined on an average cost basis. As of March 31, 2017, the Company had $680,515 of inventory in Germany and The Netherlands.

 

Property & Equipment – Equipment is stated at cost less accumulated depreciation. Cost represents the purchase price of the asset and other costs incurred to bring the asset into its existing use. Depreciation is provided on a straight-line basis over the assets’ estimated useful lives. Tenant improvements are amortized on a straight-line basis over the remaining life of the related lease. Maintenance or repairs are charged to expense as incurred. Upon sale or disposition, the historically-recorded asset cost and accumulated depreciation are removed from the accounts and the net amount less proceeds from disposal is charged or credited to other income (expense).

 

Property and equipment, net, as of March 31, 2017 and December 31, 2016 were as follows:

 

    Useful Lives   March 31, 2017     December 31, 2016  
                 
Office furniture and equipment   3 years   $ 340,472     $ 340,472  
Laboratory and other equipment   5 years     321,071       321,071  
Tenant improvements   14 to 39 months     70,592       70,592  
          732,135       732,135  
Less: accumulated depreciation         (536,958 )     (489,433 )
        $ 195,177     $ 242,702  

 

Depreciation expense for the three months ended March 31, 2017 and 2016 was $47,525 and $49,025, respectively.

 

Fair Value of Financial Instruments – In accordance with ASC Topic 825, Financial Instruments , the Company calculates the fair value of its assets and liabilities which qualify as financial instruments and includes this additional information in the notes to its financial statements when the fair value is different than the carrying value of those financial instruments. The estimated fair value of the Company’s current assets and current liabilities approximates their carrying amount due to their readily available nature and short maturity.

   

Long-Lived Assets – In accordance with ASC Topic 360, Accounting for the Impairment or Disposal of Long-Lived Assets , the Company reviews property and equipment for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of property and equipment is measured by comparing its carrying value to the undiscounted projected future cash flows that the asset(s) are expected to generate. If the carrying amount of an asset is not recoverable, we recognize an impairment loss based on the excess of the carrying amount of the long-lived asset over its respective fair value, which is generally determined as the present value of estimated future cash flows or at the appraised value. The impairment analysis is based on significant assumptions of future results made by management, including revenue and cash flow projections. Circumstances that may lead to impairment of property and equipment include a significant decrease in the market price of a long-lived asset, a significant adverse change in the extent or manner in which a long-lived asset is being used or in its physical condition and a significant adverse change in legal factors or in the business climate that could affect the value of a long-lived asset including an adverse action or assessment by a regulator.

 

Debt Issuance Costs – Debt issuance costs have been capitalized as a discount to secured convertible promissory notes payable and are being amortized to interest expense using the interest method over the expected terms of the related debt agreements.

 

Loss per Share – The Company calculates earning or loss per share (“EPS”) in accordance with ASC Topic 260, Earnings per Share , which requires the computation and disclosure of two EPS amounts, basic and diluted. Basic EPS is computed based on the weighted average number of shares of common stock outstanding during the period. Diluted EPS is computed based on the weighted average number of shares of common stock outstanding plus all potentially dilutive shares of common stock outstanding during the period. The Company had 16,475,222 stock options and restricted stock units (“RSU’s”) outstanding that were anti-dilutive as of March 31, 2017. Subsequent to March 31, 2017, the Company issued 21,400,000 in restricted common stock to the former shareholders of CanX (See Note 8) and an aggregate of 2,000,000 stock options to two members of senior management (See Note 12). In addition, the Company may be required to issue 16,000,000 shares of common stock related to certain performance-based stock options outstanding. As of March 31, 2017, the Company may also be required to issue 4,000,000 shares of restricted stock units for performance-based consulting services. As of March 31, 2017, there were also warrants outstanding to purchase up to 2,100,000 shares of common stock. Furthermore, the Company may be required to issue a variable amount of shares of common stock related to the potential conversion features of the Iliad Notes (as defined below) (See Note 7).

 

 

 

  9  

 

 

Research and Development Expense – Research and development costs are charged to expense as incurred and include, but are not limited to, employee salaries and benefits, cost of inventory used in product development, consulting service fees, the cost of renting and maintaining our laboratory facility and depreciation of laboratory equipment. Research and development expense for the consumer products segment was $49,033 and $141,813 for the three months ended March 31, 2017 and 2016, respectively. Research and development expense for the specialty pharmaceutical segment was $139,683 and $0 for the three months ended March 31, 2017 and 2016, respectively.

 

Advertising – The Company supports its products with advertising to build brand awareness of the Company’s various products in addition to other marketing programs executed by the Company’s marketing team. The Company believes the continual investment in advertising is critical to the development and sale of its PlusCBD™ brand products. Advertising costs of $66,900 and $67,821 were expensed as incurred during the three months ended March 31, 2017 and 2016, respectively.

 

Income Taxes – Income taxes are accounted for under the asset and liability method. 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 the related 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 when the rate change is enacted. Valuation allowances are recorded to reduce deferred tax assets to the amount that will more likely than not be realized. In accordance with ASC Topic 740, Income Taxes , the Company recognizes the effect of uncertain income tax positions only if the positions are more likely than not of being sustained in an audit, based on the technical merits of the position. Recognized uncertain income tax positions are measured at the largest amount that is greater than 50% likely of being realized. Changes in recognition or measurement are reflected in the period in which those changes in judgment occur. The Company recognizes both interest and penalties related to uncertain tax positions as part of the income tax provision. As of March 31, 2017 and December 31, 2016, the Company did not have a liability for unrecognized tax uncertainties. The Company is subject to routine audits by taxing jurisdictions. Management believes the Company is no longer subject to tax examinations for the years prior to 2013.

 

Recent Issued and Newly Adopted Accounting Pronouncements

 

In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) ASU 2014-09, Revenue from Contracts with Customers (Topic 606) (“ASU 2014-09”), as amended by ASU 2015-14, Revenue from Contracts with Customers (Topic 606) , ASU 2016-08, Revenue from Contracts with Customers (Topic 606), ASU 2016-10, Revenue from Contracts with Customers (Topic 606), ASU 2016-12, Revenue from Contracts with Customers (Topic 606) and ASU 2016-20, Technical Corrections and Improvements to Topic 606, Revenue from Contracts with Customers, which completes the joint effort by the FASB and the International Accounting Standards Board to improve financial reporting by creating common revenue recognition guidance for GAAP and the International Financial Reporting Standards. ASU 2014-09 will become effective for the Company beginning January 1, 2018 and early adoption is not permitted. The Company is currently evaluating the potential impact of ASU 2014-09 on the Company’s consolidated financial statements but does not expect it to have a significant impact.

 

In July 2015, the FASB issued ASU 2015-11, Inventory: Simplifying the Measurement of Inventory (“ASU 2015-11”), which requires inventory measured using any method other than last-in, first out or the retail inventory method to be subsequently measured at the lower of cost or net realizable value, rather than at the lower of cost or market. ASU 2015-11 is effective for annual reporting periods beginning after December 15, 2016 and for interim periods within such annual periods. Early application is permitted. The Company implemented ASU 2015-11 for the interim and annual reporting periods of 2017.

 

In November 2015, the FASB issued ASU 2015-17, Balance Sheet Classification of Deferred Taxes (“ASU 2015-17) which requires that deferred tax liabilities be classified as noncurrent in a classified statement of financial position. ASU 2015-17 is effective for annual reporting periods beginning after December 15, 2016 and for interim periods within such periods. Early application is permitted. The Company implemented ASU 2015-17 during the annual reporting period of 2016.

 

In February 2016, the FASB issued ASU 2016-02, Leases (“ASU 2016-02”), which, for operating leases, requires a lessee to recognize a right-of-use asset and a lease liability, initially measured at the present value of the lease payments, in its balance sheet. ASU 2016-02 also requires a lessee to recognize a single lease cost, calculated so that the cost of the lease is allocated over the lease term, on a generally straight-line basis. ASU 2016-02 is effective for public companies for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. Early adoption is permitted. The Company is evaluating the potential impact of ASU 2016-02 on the Company’s consolidated financial statements and does expect it to potentially have a significant impact on the Company’s future consolidated balance sheets depending on the terms and duration of the Company’s future lease agreements. As such, the Company currently does not intend on early adoption of this update for the benefit of investor comparison analysis.

 

In March 2016, the FASB issued ASU 2016-09, Compensation – Stock Compensation (“ASU 2015-09”), which involve multiple aspects of the accounting for share-based transactions, including income tax consequences, classification of awards as either equity or liabilities, and classification on the statement of cash flows. ASU 2016-09 is effective for public companies for fiscal years beginning after December 15, 2016, including interim periods within those fiscal years. Early adoption is permitted. The Company implemented ASU 2015-09 for the interim and annual reporting periods of 2017.

 

 

  10  

 

 

In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments (A Consensus of the FASB Emerging Issues Task Force) (“ASU 2016-15”), which provides amendments to specific statement of cash flows classification issues. ASU 2016-15 is effective for public companies for fiscal years beginning after December 15, 2017, including interim periods within those fiscal years. Early adoption is permitted. The Company is evaluating the potential impact of ASU 2016-15 on the Company’s consolidated financial statements but does not expect it to have a significant impact.

 

In November 2016, the FASB issued ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash (“ASU 2016-18”), which requires that a statement of cash flows explain the change during the period in the total of cash, cash equivalents and amounts generally described as restricted cash and restricted cash equivalents should be included with cash and cash equivalents when reconciling the beginning-of-period and end-of-period total amounts shown on the statement of cash flows. ASU 2016-18 is effective for public business entities for fiscal years beginning after December 15, 2017 and interim periods within those fiscal years. Early adoption is permitted, including adoption in an interim period. If an entity early adopts the amendments in an interim period, any adjustments should be reflected as of the beginning of the fiscal year that includes that interim period. In addition, ASU 2016-18 should be applied using a retrospective transition method to each period presented. The Company implemented ASU 2016-18 during the annual reporting period of 2016.

 

In January 2017, the FASB issued ASU 2017-01, Business Combinations (Topic 805): Clarifying the Definition of a Business (“ASU 2017-01”), which revises the definition of a business. ASU 2017-01 requires that for an acquisition to be considered a business, the business would have to include an input and a substantive process that together significantly contribute to the ability to create outputs. ASU 2017-01 also narrows the definition of the term “outputs,” which are now considered the result of inputs and substantive processes that provide goods and services to customers, other revenue, or investment income, such as dividends and interest. ASU 2017-01 is effective for public companies for annual periods beginning after December 15, 2017. Early adoption is permitted. The Company is evaluating the potential impact of ASU 2017-01 on the Company’s consolidated financial statements but does not expect it to have a significant impact.

 

In January 2017, the FASB issued ASU 2017-04, Intangibles – Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment (“ASU 2017-04”), which eliminates Step 2 from the goodwill impairment test. Instead, an entity should perform its annual or interim goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount. An entity should then recognize an impairment charge for the amount by which the carrying amount exceeds the reporting unit’s fair value; however, the loss recognized should not exceed the total amount of goodwill allocated to that reporting unit. Additionally, an entity should consider income tax effects from any tax deductible goodwill on the carrying amount of the reporting unit when measuring the goodwill impairment loss, if applicable. ASU 2017-04 requires the entity to apply these amendments on a prospective basis for which it is required to disclose the nature of and reason for the change in accounting upon transition. This disclosure shall be provided in the first annual period and in the interim period within the first annual period when the entity initially adopts the amendments. The Company shall adopt these amendments for its annual or any interim goodwill impairment tests in fiscal years beginning after December 15, 2019. Early adoption is permitted for interim or annual goodwill impairment tests performed on testing dates after January 1, 2017. The Company implemented ASU 2017-04 for the interim and annual reporting periods of 2017.

 

Other recent accounting pronouncements issued by the FASB (including its Emerging Issues Task Force), the American Institute of Certified Public Accountants, and the SEC did not, or are not believed by management to have a material impact on the Company’s present or future financial statements.

  

  3. INVENTORY

 

Inventory as of March 31, 2017 and December 31, 2016 was comprised of the following:

 

    March 31, 2017     December 31, 2016  
             
Raw materials   $ 7,217,545     $ 7,699,057  
Finished goods     1,425,187       1,631,442  
    $ 8,642,732     $ 9,330,499  

 

  4. ACCRUED EXPENSES

 

Accrued expenses as of March 31, 2017 and December 31, 2016 were as follows:

 

    March 31, 2017     December 31, 2016  
             
Royalty buy-out   $ 2,432,000     $  
Accrued payroll expenses     266,090       208,126  
Other accrued liabilities     222,601       170,092  
    $ 2,920,691     $ 378,218  

 

 

 

  11  

 

 

  5. INTANGIBLE ASSETS, NET

 

Intangible assets consisted of the following at March 31, 2017 and December 31, 2016:

 

    Original Fair Market Value     Accumulated Amortization     Net     Useful Life
(Years)
                       
Balance - March 31, 2017:                            
In-process research and development   $ 3,730,000     $     $ 3,730,000    
Trade names     100,000       25,000       75,000     5
Non-compete agreements     77,000       19,250       57,750     5
    $ 3,907,000     $ 44,250     $ 3,862,750      
Balance - December 31, 2016:                            
In-process research and development   $ 3,730,000     $     $ 3,730,000     -
Trade names     100,000       20,000       80,000     5
Non-compete agreements     77,000       15,400       61,600     5
    $ 3,907,000     $ 35,400     $ 3,871,600      

 

Amortization expense for the three months ended March 31, 2017 and 2016 totaled $8,850 and $214,350, respectively.

 

  6. RELATED PARTIES

    

During the three months ended March 31, 2017 and 2016, the Company paid $9,060 and $2,977, respectively, to a stockholder of the Company who is a supplier of hemp oil and hemp to the Company.

 

  7. NOTES PAYABLE

 

Iliad Secured Convertible Promissory Notes Payable

 

On May 25, 2016 (the “Purchase Price Date”), the Company entered into a Securities Purchase Agreement (“Iliad SPA”) with Iliad Research and Trading, L.P. (the “Lender” or “Iliad”) pursuant to which the Lender loaned the Company $2,000,000. On the Purchase Price Date, the Company issued to Lender a Secured Convertible Promissory Note (the “Iliad Note”) in the principal amount of $2,055,000 in exchange for payment by Lender of $2,000,000. The principal sum of the Iliad Note reflects the amount invested, plus a 2.25% “Original Issue Discount” (“OID”) and a $10,000 reimbursement of Lender’s legal fees. Out of the proceeds from the Iliad Note, the Company paid the sum of $25,000 to its placement agent, Myers & Associates, L.P., which is a registered broker-dealer. The Company received net proceeds of $1,975,000 in exchange for the Iliad Note. The Iliad Note requires the repayment of all principal and any interest, fees, charges and late fees on the date that is thirteen months after the Purchase Price Date (the “Maturity Date”). Interest is to be paid on the outstanding balance at a rate of ten percent (10%) per annum from the Purchase Price Date until the Iliad Note is paid in full. Interest is accrued during the term of the Iliad Note and all interest calculations shall be computed on the basis of a 360-day year comprised of twelve (12) thirty (30)-day months and shall compound daily. Subject to adjustment as set forth in the Iliad Note, the conversion price for each Lender conversion shall be $0.50 (the “Lender Conversion Price”), convertible into shares of fully paid and non-assessable common stock. Beginning on the date that is six months after the Purchase Price Date and continuing until the Maturity Date, Iliad shall have the right to redeem a portion of the Iliad Note in any amount up to the Maximum Monthly Redemption Amount ($275,000, which is the maximum aggregate redemption amount that may be redeemed in any calendar month), for which payments may be made in cash or by converting the redemption amount into shares of Company common stock at a conversion price which is the lesser of (a) the Lender Conversion Price of $0.50 and (b) the Market Price, defined as 70% (“the Conversion Factor”), subject to adjustment as follows: if at any time (1) the average of the three lowest closing bid prices in the previous twenty (20) trading days is below $0.25 per share then the Conversion Factor will be reduced by 10%, (2) the Company is not Deposit/Withdrawal At Custodian eligible, then the Conversion Factor will be reduced by an additional 5%, or (3) there has occurred a “Major Default” then the Conversion Factor will be reduced by an additional 5%. The Company may prepay the Iliad Note at any time by payment to Lender of 125% of the principal, interest and other amounts then due under the Note. The Company may prepay the Iliad Note notwithstanding an earlier notice of conversion from the Lender, provided that in such event the Lender may convert an amount not to exceed $300,000 under the Iliad Note. In connection with the Iliad Note, as set forth above, the Company incurred an original issue discount of $45,000 and $35,000 of other debt issuance costs, which will be amortized over the Iliad Note term. The Iliad Note is securitized by the Company’s accounts receivable, inventory and equipment.

 

  12  

 

 

In November 2016, the Company entered into an Amendment to the Iliad Note (the “Iliad Amendment”), whereby the Lender and the Company agreed that the Maximum Monthly Redemption Amount for the period from November 2016 to January 2017 (the “Reduction Period”) be reduced from $275,000 to $166,667 (the “Reduced Maximum Monthly Redemption Amount”). In addition, if the Lender fails to convert the full Reduced Maximum Monthly Redemption Amount during any month in the Reduction Period, then any such unconverted amount shall increase the Reduced Maximum Monthly Redemption Amount in the following month or months. Furthermore, the Company shall not be allowed to pay any of the Reduced Maximum Monthly Reduction Amounts in cash. As such, all amounts converted must be converted into Redemption Conversion Shares of the Company’s common stock. Also, as part of the Iliad Amendment, the Lender agrees that, with respect to any Redemption Conversion Shares received during the Reduction Period, in any given calendar week its Net Sales of such Redemption Conversion Shares shall not exceed the greater of (a) 10% of the Company’s weekly dollar trading volume in such week or (b) $50,000 (the “Volume Limitation”). However, if the Lender’s Net Sales are less than the Volume Limitation for any given week, then in the following week or weeks, the Lender shall be allowed to sell an additional amount of Redemption Conversion Shares equal to the difference between the amount the Lender was allowed to sell and the amount the Lender actually sold. For the purpose of the Iliad Amendment, Net Sales is defined as the gross proceeds from sales of the Redemption Conversion Shares sold in a calendar week during the Reduction Period minus any trading commissions or costs associated with clearing and selling such Redemption Conversion Shares minus the purchase price paid for any shares of the Company’s common stock purchased in the open market during such week. The Lender and the Company both agree that in the event the Lender breaches the Volume Limitation where its Net Sales of Redemption Conversion Shares during any week during the Reduction Period exceeds the dollar volume the Lender is permitted to sell during such week pursuant to the Volume Limitation (the “Excess Sales”), then the Company’s sole and exclusive remedy for such breach shall be the reduction of the outstanding balance of the Iliad Note by an amount equal to 200% of the Excess Sales upon delivery of written notice to the Lender setting forth its basis for such reduction.

 

In January 2017, the Company entered into Amendment #2 to the Iliad Note (the “Iliad Amendment 2”). In accordance with the Iliad Amendment 2, during the period between January 27, 2017 and February 24, 2017, the Company agreed to allow the Lender to convert up to $500,000 (the “Additional Redemption Amount”) in Redemption Conversions under the Note, provided that the Lender shall not effectuate a Redemption Conversion of any Maximum Monthly Redemption Amount between January 27, 2017 and March 1, 2017. During this time period, the Company was not allowed to pay any of the Additional Redemption Amount in cash and all such amounts had to be converted into Redemption Conversion Shares of the Company’s common stock. In addition, the Lender agreed that the sale of any Redemption Conversion Shares between January 27, 2017 and April 30, 2017 (the “Limitation Period”) was subject to the Volume Limitation. Immediately following the expiration of the Volume Period, the Volume Limitation will be cancelled.

 

In March 2017, the Company entered into Amendment #3 to the Iliad Note (the “Iliad Amendment 3”). In accordance with the Iliad Amendment 3, during the period from March 1, 2017 to March 31, 2017, the Company agreed to allow the Lender to convert up to $500,000 (the “Additional Redemption Amount 2”) in Redemption (the “Additional Redemption Amount 2”) in Redemption Conversions under the Note, provided that the Lender not effectuate a Redemption Conversion of any Maximum Monthly Redemption Amount from March 1, 2017 until April 1, 2017. During this time period, the Company was not allowed to pay any of the Additional Redemption Amount 2 in cash and all such amounts had to be converted into Redemption Conversion Shares of the Company’s common stock. In addition, the Lender agreed that the sale of any Redemption Conversion Shares between March 1, 2017 and May 31, 2017 (the “Limitation Period 2”) shall be subject to the Volume Limitation. Immediately following the expiration of the Volume Period, the Volume Limitation will be cancelled.

 

During the three months ended March 31, 2017, the Company issued 4,131,175 shares of its common stock to Iliad in connection with the conversions of the Iliad Note in the aggregate principal amount of $1,014,060 and $35,940 of accrued interest. The total of $1,050,000 was allocated to common stock and additional paid-in capital.

 

 

 

  13  

 

 

The Company’s borrowings and conversions under the Iliad SPA for the three months ended March 31, 2017 and for the year ended December 31, 2016 is summarized in the table below:

 

    Maturity     March 31,
2017
    December 31,
2016
    Interest
Rate
                       
Secured promissory note payable   June 24, 2017     $ 2,055,000     $ 2,055,000     10%
Interest accrued             163,406       128,311      
Unamortized original issue discount and debt issuance costs             (16,873 )     (35,335 )    
Conversion of convertible promissory notes and accrued interest to common stock             (1,300,000 )     (175,000 )    
Conversion of convertible promissory notes and accrued interest to accrued liabilities                   (75,000 )    
                             
Net carrying amount of debt             901,533       1,897,976      
Less current portion             (901,533 )     (1,897,976 )    
Long-term borrowings - net of current portion           $     $      

 

On the Purchase Price Date, the Company recorded a beneficial conversion feature of $370,000 (the “Iliad Instrument”), which was originally recorded in additional paid-in capital (“APIC”) and was scheduled for amortization over six months. The Company determined in 2016 that the Iliad Instrument qualifies for derivative accounting treatment. The $370,000 fair value of the Iliad Instrument at the Purchase Price Date is unchanged as a result of the change in derivative accounting treatment, however, in 2016 we reclassified the Iliad Instrument from APIC to a liability in accordance with derivative accounting treatment. During the three months ended March 31, 2017, the Company recorded a gain of $206,500 for the change in fair value of the Iliad Instrument as part of a separate line item in the Company’s Condensed Consolidated Statement of Operations. The assumptions used by the Company for calculating the fair value of the Iliad Instrument at the Purchase Price Date using the Binomial Lattice valuation model were: (i) Volatility of 74.0%; (ii) Risk-Free Interest Rate of 0.44%; and (iii) Expected Term of five months; and at March 31, 2017 were (i) Volatility of 61%, (ii) Risk-Free Interest Rate of 0.74%; and (iii) Expected Term of 1 month.

 

In March 2017, the Company entered into another Securities Purchase Agreement (“Iliad SPA 2”) with Iliad pursuant to which the Lender loaned the Company $750,000. On March 1, 2017 (the “Subsequent Purchase Price Date”), the Company issued to Lender a Secured Convertible Promissory Note (the “Iliad Note 2”) in the principal amount of $770,000 in exchange for payment by Lender of $750,000. The principal sum of the Iliad Note reflects the amount invested, plus a $15,000 OID and a $5,000 reimbursement of Lender’s legal fees. The Company received net proceeds of $750,000 in exchange for the Iliad Note 2. The Iliad Note 2 requires the repayment of all principal and any interest, fees, charges and late fees on the date that is fourteen months after the Subsequent Purchase Price Date (the “Maturity Date”). Interest is to be paid on the outstanding balance at a rate of eight percent (8%) per annum from the Subsequent Purchase Price Date until the Iliad Note 2 is paid in full. Interest is accrued during the term of the Iliad Note 2 and all interest calculations shall be computed on the basis of a 360-day year comprised of twelve (12) thirty (30)-day months and shall compound daily. Subject to adjustment as set forth in the Iliad Note 2, the conversion price for each Lender conversion shall be the Lender Conversion Price, convertible into shares of fully paid and non-assessable common stock. Beginning on the date that is six months after the Subsequent Purchase Price Date and continuing until the Maturity Date, Iliad shall have the right to redeem a portion of the Iliad Note 2 in an amount not to exceed $100,000. Provided the Company has not suffered an “Event of Default” and is in compliance with certain “Equity Conditions” (unless waived by Iliad, in either case), the Company may make payments on such redemptions in cash or by converting the redemption amount into shares of Company common stock at a conversion price which is the lesser of (a) $0.50 per share and (b) 70% (“the Conversion Factor”) of the average of the three (3) lowest closing bid prices in the previous 20 trading days, subject to adjustment as follows: if at any time (1) the average of the three lowest closing bid prices in the previous twenty (20) trading days is below $0.25 per share then the Conversion Factor will be reduced by 10%, (2) the Company is not Deposit/Withdrawal At Custodian eligible, then the Conversion Factor will be reduced by 5%, (3) the Company is not DTC eligible, then the Conversion Factor will be reduced by an additional 5% or (4) there has occurred a “Major Default” then the Conversion Factor will be reduced by an additional 5% for each of the first three Major Defaults that occur after the effective date. The Company may prepay the Iliad Note 2 at any time by payment to Lender of 125% of the principal, interest and other amounts then due under the Note. The Company may prepay the Iliad Note notwithstanding an earlier notice of conversion from the Lender, provided that in such event the Lender may convert an amount not to exceed $200,000 under the Iliad Note 2. In connection with the Iliad Note 2, as set forth above, the Company incurred an original issue discount of $15,000 and $5,000 of other debt issuance costs, which will be amortized over the Iliad Note 2 term. The Iliad Note 2 is securitized by the Company’s accounts receivable, inventory and equipment.

 

 

 

  14  

 

 

The Company’s borrowings under the Iliad SPA 2 for the three months ended March 31, 2017 and for the year ended December 31, 2016 is summarized in the table below:

 

    Maturity   March 31,
2017
    December 31,
2016
    Interest
Rate
                     
Secured promissory note payable   April 30, 2018   $ 770,000     $     8%
Interest accrued         5,150            
Unamortized original issue discount and debt issuance costs         (18,571 )          
Unamortized discount - embedded derivative         (25,637 )            
                         
Net carrying amount of debt         730,942            
Less current portion                    
Long-term borrowings - net of current portion       $ 730,942     $      

 

On the Subsequent Purchase Price Date, the Company recorded a derivative liability of $29,300 which is scheduled for amortization over 8 months. During the three months ended March 31, 2017, the Company recorded a gain of $4,100 for the change in fair value of the derivative liability as part of a separate line item in the Company’s Condensed Consolidated Statement of Operations. The assumptions used by the Company for calculating the fair value of the derivative liability at the Subsequent Purchase Price Date and at March 31, 2017 using the Binomial Lattice valuation model were: (i) Volatility of 85.0%; (ii) Risk-Free Interest Rate of 0.84%; and (iii) Expected Term of 8 months; and at March 31, 2017 were (i) Volatility of 84.0%, (ii) Risk-Free Interest Rate of 0.93%; and (iii) Expected Term of 7 months. 

 

Redwood Secured Convertible Promissory Notes Payable

On May 19, 2015 (the “Closing Date”), the Company entered into a Securities Purchase Agreement (“SPA”) with Redwood Management, LLC (the “Investor” or “Redwood”) pursuant to which the Investor committed to lend to the Company up to $6,500,000 (the “Financing”).

 

During the year ended December 31, 2015, the Company issued four tranches of convertible promissory notes (collectively, the “Notes”, and individually, “Note 1”, “Note 2”, “Note 3”, and “Note 4”) in the aggregate principal amount of $1,785,000 to the Investor and other third parties who were assigned rights by the Investor to participate in the Financing (together with the Investor, the “Investors”). During the first quarter of 2016, the Company repaid all obligations under the SPA and has no intention of seeking further capital from the Investor, or any other investor(s) in the Financing.

 

During the three months ended March 31, 2016, the Company repaid the remaining principal and interest balance under the Notes as follows: (i) issued 3,062,535 shares of its common stock to the Investors in connection with conversion of the remaining $255,000 principal balance of Note 2; (ii) repaid $357,000 of the aggregate principal amount of Note 3 plus interest in the amount of $148,944 in cash to the Investors, and issued 2,500,000 shares of its common stock to the Investors in connection with the conversion of the remaining principal amount of $153,000 of Note 3; and, (iii) repaid the entire principal amount of Note 4 in the amount of $255,000 plus interest in the amount of $93,075 in cash to the Investors.

 

The Company’s borrowings and conversions under the SPA for the year ended December 31, 2016 is summarized in the table below:

 

        2016      
    Maturity   Balance     Interest Rate
Senior Secured Convertible Promissory Notes:                
Tranche 1 (Note 1)   May 19, 2016   $     10%
Tranche 2 (Note 2)   June 12, 2016     255,000     10%
Tranche 3 (Note 3)   July 24, 2016     510,000     10%
Tranche 4 (Note 4)   September 16, 2016     255,000     10%
Total borrowings         1,020,000      
                 
Convertible notes converted (Note 1)              
Convertible notes converted (Note 2)         (255,000 )    
Convertible notes converted/repaid (Note 3)         (510,000 )    
Convertible notes repaid (Note 4)         (255,000 )    
Unamortized debt issuance cost              
Unamortized debt discount - beneficial conversion feature              
                 
Net carrying amount of debt              
Less current portion              
Long-term borrowings - net of current portion       $      

 

 

 

  15  

 

 

Current Unsecured Note Payable

 

In November 2016, the Company entered into a Commercial Premium Finance Agreement with First Insurance Funding in order to fund a portion of the Company’s insurance policies. The amount financed was $161,351 and bears interest at a rate of 4.5%. The Company is required to make nine payments of $18,266 a month to satisfy this current unsecured note payable. As of March 31, 2017 and December 31, 2016, the outstanding balance was $73,402 and $125,964, respectively.

 

Unsecured Note Payable

 

On January 29, 2016, the Company issued an unsecured promissory note to Wiltshire, LLC in the principal amount of $850,000 (the “Promissory Note”) in consideration of a loan provided to the Company by Wiltshire, LLC. The Promissory Note bears interest at 12% per annum, and the Company is obligated to make monthly interest-only payments in the amount of $8,500, for which the interest-only payments obligation commenced on March 1, 2016. All principal and accrued and unpaid interest is due under the Promissory Note on February 1, 2018. The Company has the right to prepay the Promissory Note without penalty or premium. In connection with the Promissory Note, the Company incurred an original issue discount of $30,000 and $18,570 of other debt issuance costs, which will be amortized over the Promissory Note term.

 

The Company’s borrowing under the Promissory Note for the three months ended March 31, 2017 and for the year ended December 31, 2016 is summarized in the table below:

 

    Maturity   March 31,
2017
    December 31,
2016
    Interest Rate
                     
Unsecured promissory note payable    February 1, 2018   $ 850,000     $ 850,000     12%
Unamortized original issue discount and debt issuance costs         (20,238 )     (26,309 )    
Unamortized debt discount - fair value of warrants         (111,167 )     (144,517 )    
                         
Net carrying amount of debt         718,595       679,174      
Less current portion         (718,595 )          
Long-term borrowings - net of current portion       $     $ 679,174      

 

Pursuant to the terms of the Promissory Note, the Company issued to Wiltshire, LLC a common stock purchase warrant providing Wiltshire, LLC with the right to purchase up to 2,000,000 shares of the Company’s common stock (the “Warrant”). The Warrant is exercisable, subject to certain limitations, subsequent to July 1, 2017 and before the date that is five years from the date of issuance at an exercise price of $0.20 per share, subject to adjustment upon the occurrence of certain events such as stock splits and dividends. The Company recorded the fair value of the Warrant of $266,800 as a debt discount associated with the Promissory Note. During the three months ended each of March 31, 2017 and 2016, the Company recorded interest expense of $33,350 and $22,233, respectively, for the amortization of the Warrant fair value. The assumptions used by the Company for calculating the fair value of the Warrant at inception using the Black-Scholes valuation model were: (i) Volatility of 83.3%; (ii) Risk-Free Interest Rate of 2.12%; and (iii) Expected Term of five years.

 

  8. STOCKHOLDERS’ EQUITY

 

Common Stock

The Company is authorized to issue up to 190,000,000 shares of common stock (par value $0.0001). As of March 31, 2017 and December 31, 2016, the Company had 62,146,773 and 57,617,545 shares of common stock issued and outstanding, respectively.

 

In March 2017, the Company entered into an amendment to the principal agreement for the CanX Acquisition (the “Amendment”), as more fully set forth in our Current Report on Form 8-K filed with the SEC on March 22, 2017 (the “March 2017 8-K”). Pursuant to such Amendment, which was approved by the disinterested members of the Board of Directors of the Company, the Company agreed to issue the remaining 15,000,000 shares of contingent consideration to the former CanX shareholders, without the Company having yet achieved any of the remaining post-closing milestones.

 

Additionally, pursuant to such Amendment, the parties agreed to revise the Company’s buy-out option of the royalties payable to the CanX shareholders in the future, to allow the Company to buy-out the future royalty payments by the issuance of 6,400,000 shares of the Company’s restricted common stock (the “Royalty Buy-Out Shares”) to the former CanX shareholders. The Company concurrently exercised the buy-out option, as so revised.

 

In the aggregate, pursuant to the Amendment, the Company agreed to issue to the former CanX shareholders a total of 21,400,000 shares of restricted common stock (See Note 12). As previously disclosed in the January 2016 8-K, James McNulty, a member of the Board, is a former shareholder of CanX and thereby received his pro rata portion of the consideration paid to the former CanX shareholders. During the three months ended March 31, 2017, the Company recorded an expense of $2,432,000 for the value of the Royalty Buy-Out Shares as a separate line item in the Company’s Condensed Consolidated Statement of Operations.

 

 

 

  16  

 

 

Furthermore, during the three months ended March 31, 2017, the Company issued 4,529,228 shares of common stock in connection with the conversion of the Iliad Note and its required stock redemptions.

 

Preferred Stock

The Company is authorized to issue up to 10,000,000 shares of $0.0001 par value preferred stock with designations, rights and preferences to be determined from time to time by the Board of Directors of the Company. Each such series or class shall have voting powers, if any, and such preferences and/or other special rights, with such qualifications, limitations or restrictions of such preferences and/or rights as shall be stated in the resolution or resolutions providing for the issuance of such series or class of shares of preferred stock. As of March 31, 2017 and December 31, 2016, there was no preferred stock issued and outstanding.

 

Options/Warrants/RSU’s

On July 23, 2014, Company stockholders approved the CV Sciences, Inc. Amended and Restated 2013 Equity Incentive Plan (the “Amended 2013 Plan”), which provides for the granting of stock options, restricted stock awards, restricted stock units, stock bonus awards and performance-based awards. On each of December 21, 2015 and October 24, 2016, the Company’s stockholders approved an amendment to the Amended 2013 Plan to increase the number of shares that may be issued under the Amended 2013 Plan. There are currently 20,000,000 shares of common stock authorized for issuance under the Amended 2013 Plan. This plan serves as the successor to the 2013 Equity Incentive Plan. There were no option awards under the 2013 Equity Incentive Plan prior to it being amended and restated.

 

In March 2017, as further set forth in the March 2017 8-K, the disinterested members of the Board approved the grant of 5,000,000 performance-based stock options (the “Mona Performance Options”) to purchase shares of the Company’s common stock to one senior management member of the Company. The Mona Performance Options are contingent and vest only upon the Company achieving three specific milestones related to the success of the Company’s drug development program and were granted outside of the Company’s Amended 2013 Plan. Vesting of such options accelerates upon a sale of the Company or change in control.

 

In March 2017, as further set forth in the March 2017 8-K, the disinterested members of the Board approved a grant of an aggregate of 400,000 fully-vested stock options to purchase shares of the Company’s common stock to three senior management members of the Company (including the two management members of the Board) pursuant to the bonus plan set forth in the Employment Agreements for fiscal year 2016 performance.

 

Also in March 2017, as further set forth in the March 2017 8-K, the disinterested members of the Board, as the administrator of the Amended 2013 Plan, approved the amendment to certain stock options granted to employees of the Company, including certain options granted to three senior management members of the Company, to reduce the exercise price of such stock options. As a result of the amendment to the stock option grants, each of the covered stock options, including those issued to three senior management members of the Company, have been amended to provide for a strike price equal to $0.38 per share, which represents 100% of the fair market value of the Company’s common stock as of the date of the amendment to these stock option grants.

 

In addition, in March 2017, the Company issued 5,000,000 RSU’s to a consultant in exchange for consulting services. The restricted stock units vest as follows: 1,000,000 vest immediately and 4,000,000 vest according to future performance-based criteria.

 

  9. STOCK-BASED COMPENSATION

 

The Company’s Amended 2013 Plan provides for the granting of stock options, restricted stock awards, RSU’s, stock bonus awards and performance-based awards. As of March 31, 2017, the Company had 4,524,778 of authorized unissued shares reserved and available for issuance upon exercise and conversion of outstanding awards under the Amended 2013 Plan.

 

The stock options are exercisable at no less than the fair market value of the underlying shares on the date of grant, and restricted stock and restricted stock units are issued at a value not less than the fair market value of the common stock on the date of the grant. Generally, stock options awarded are vested in equal increments ranging from two to four years on the annual anniversary date on which such equity grants were awarded. The stock options generally have a maximum term of 10 years.

 

The Company recognized Selling, General and Administration expenses of $1,186,291 and $405,151, relating to stock options and RSU’s issued to employees, officers, directors and consultants for the three months ended March 31, 2017 and 2016, respectively. The Company also recognized expense of $0 and $175,000 relating to common stock issued to employees, officers, directors and consultants during the three months ended March 31, 2017 and 2016, respectively. As of March 31, 2017, total unrecognized compensation cost related to non-vested stock-based compensation arrangements granted to employees, officers, and directors was $2,416,360, which is expected to be recognized over a weighted-average period of 1.75 years.

 

 

 

  17  

 

 

The following table summarizes stock option activity for the Amended 2013 Plan during the three months ended March 31, 2017:

 

  Number of Shares     Weighted Average Exercise Price     Weighted Average Remaining Contract Term (Years)     Aggregate Intrinsic Value  
Outstanding - December 31, 2016     12,841,000     $ 1.57       8.54     $ 415,135  
Granted     8,747,000       0.38              
Exercised                        
Cancelled/Forfeited (1)     (6,100,278 )     2.64              
Expired     (12,500 )     0.73              
Outstanding - March 31, 2017     15,475,222       0.48       8.58       500,675  
                                 
Total exercisable - March 31, 2017     10,105,687       0.52       8.14       307,602  
Total unvested - March 31, 2017     5,369,535       0.40       9.41       193,073  
Total vested or expected to vest - March 31, 2017     15,475,222       0.48       8.58       500,675  

 

(1) The number of options cancelled/forfeited includes options cancelled in connection with the Exchange Program (see below).

 

In March 2017, the Company completed an offer to exchange certain employee stock options under the Company’s amended 2013 Plan (the “Exchange Program”). Certain previously granted options were exchanged for new options with a lower exercise price granted on a one-for-one basis. Options for an aggregate of 6,090,000 shares were exchanged. Options granted pursuant to the Exchange Program have an exercise price of $0.38 per share, the closing price of the Company’s common stock on the date of the exchange grant. The Exchange Program resulted in a modification charge of $403,479 which is being recognized over the vesting period of the new options which range from zero months to approximately two years.

 

The following table summarizes unvested stock options as of March 31, 2017:

 

  Number of
Shares
    Weighted
Average
Fair Value
Per Share on
Grant Date
 
Unvested stock options - December 31, 2016     3,724,233     $ 0.63  
Granted     8,747,000       0.14  
Vested     (1,001,420 )     0.32  
Cancellations     (6,100,278 )     0.48  
Unvested stock options - March 31, 2017     5,369,535       0.45  

 

 

 

  18  

 

 

The following table summarizes stock option activity outside of the Amended 2013 Plan during the three months ended March 31, 2017:

 

  Number of
Shares
    Weighted
Average
Exercise
Price
    Weighted
Average
Remaining
Contract
Term
(Years)
    Aggregate
Intrinsic
Value
 
Outstanding - December 31, 2016     2,750,000     $ 0.37       9.77     $ 170,500  
Granted                        
Exercised                        
Forfeited                        
Expired                        
Outstanding - March 31, 2017     2,750,000       0.37       9.52       88,000  
                                 
Total exercisable - March 31, 2017     2,750,000       0.37       9.52       88,000  
Total unvested - March 31, 2017                        
Total vested or expected to vest - March 31, 2017     2,750,000       0.37       9.52       88,000  

 

There was no unvested stock option activity outside of the Amended 2013 Plan during the three months ended March 31, 2017.

 

The following table summarizes RSU activity outside of the Amended 2013 Plan during the three months ended March 31, 2017:

 

  Number of
Shares
    Weighted
Average
Exercise
Price
    Weighted
Average
Remaining
Contract
Term
(Years)
    Aggregate
Intrinsic
Value
 
Outstanding - December 31, 2016         $           $  
Granted     1,000,000                   400,000  
Exercised                        
Forfeited                        
Expired                        
Outstanding - March 31, 2017     1,000,000                   399,500  
                                 
Total exercisable - March 31, 2017     1,000,000                   399,500  
Total unvested - March 31, 2017     1,000,000                   399,500  
Total vested or expected to vest - March 31, 2017     1,000,000                   399,500  

 

The following table summarizes RSU activity outside of the Amended 2013 Plan as of March 31, 2017:

 

  Number of
Shares
    Weighted
Average
Fair Value
Per Share on
Grant Date
 
Unvested RSU's - December 31, 2016         $  
Granted     1,000,000       0.40  
Vested     (1,000,000 )     0.40  
Cancellations            
Unvested RSU's - March 31, 2017            

 

 

 

 

 

  19  

 

 

 

 

 

10. COMMITMENTS AND CONTINGENCIES

 

Commitments

The Company has non-cancelable operating leases, which expire through 2017. The leases generally contain renewal options ranging from 1 to 3 years and require the Company to pay costs such as real estate taxes and common area maintenance. The following table provides the Company’s lease commitments at March 31, 2017:

 

    Total Operating Leases  
For the year ending December 31,        
2017   $ 268,511  

 

The Company incurred rent expense of $130,884 and $139,382 for the three months ended March 31, 2017 and 2016, respectively.

 

The Company has two supply arrangements in place with European farmers to supply raw material in future years, for which the Company has contractual rights for the growth and processing of hemp oil for delivery through October 2018 under both contracts. During the three months ended March 31, 2017 and 2016, the Company purchased $9,060 and $2,977, respectively, in relation to these supply agreements. We do not intend to purchase any inventory under these supply agreements from the 2017 crop and/or 2018 crop.

 

Also in March 2017, the Board amended the Employment Agreements for two members of senior management, such that upon a Liquidity Event (as defined below), Mr. Mona shall receive four percent (4%) and Mr. Mona III shall receive two percent (2%) of the Gross Closing Proceeds (as defined below), subject to an aggregate cap of $750,000,000. A “Liquidity Event” means and include (A) a licensing of the CBD Drug Product or any other intellectual property asset of the Company, or (B) (i) the direct or indirect sale or transfer, in a single transaction or a series of related transactions, by the stockholders of the Company of voting securities, in which the holders of the outstanding voting securities of the Company immediately prior to such transaction or series of transactions hold, as a result of holding Company securities prior to such transaction, in the aggregate, securities possessing less than twenty percent (20%) of the total combined voting power all outstanding voting securities of the Company or of the acquiring entity immediately after such transaction or series of related transactions, (ii) a merger or consolidation in which the Company is not the surviving entity, except for a transaction in which the holders of the outstanding voting securities of the Company immediately prior to such merger or consolidation hold as a result of holding Company securities prior to such transaction, in the aggregate, securities possessing more than fifty percent (50%) of the total combined voting power of all outstanding voting securities of the surviving entity (or the parent of the surviving entity) immediately after such merger or consolidation, (iii) a reverse merger in which the Company is the surviving entity but in which the holders of the outstanding voting securities of the Company immediately prior to such merger hold as a result of holding Company securities prior to such transaction, in the aggregate, securities possessing less than fifty percent (50%) of the total combined voting power of all outstanding voting securities of the Company or of the acquiring entity immediately after such merger, or (iv) the sale, transfer or other disposition (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company, except for a transaction in which the holders of the outstanding voting securities of the Company immediately prior to such transaction(s) receive as a distribution with respect to securities of the Company, in the aggregate, securities possessing more than fifty percent (50%) of the total combined voting power of all outstanding voting securities of the acquiring entity immediately after such transaction(s). “Gross Closing Proceeds” means and include all cash sums payable to the Company or its stockholders in connection with a Liquidity Event at the closing of a transaction constituting a Liquidity Event, and not including any deferred payments, earnouts, ongoing royalty payments or other contingent or deferred compensation.

 

Contingencies

 

On April 23, 2014, Tanya Sallustro filed a purported class action complaint (the “Complaint”) in the Southern District of New York (the “Court”) alleging securities fraud and related claims against the Company and certain of its officers and directors and seeking compensatory damages including litigation costs. Ms. Sallustro alleges that between March 18-31, 2014, she purchased 325 shares of the Company’s common stock for a total investment of $15,791. The Complaint refers to Current Reports on Form 8-K and Current Reports on Form 8-K/A filings made by the Company on April 3, 2014 and April 14, 2014, in which the Company amended previously disclosed sales (sales originally stated at $1,275,000 were restated to $1,082,375 - reduction of $192,625) and restated goodwill as $1,855,512 (previously reported at net zero). Additionally, the Complaint states after the filing of the Company’s Current Report on Form 8-K on April 3, 2014 and the following press release, the Company’s stock price “fell $7.30 per share, or more than 20%, to close at $25.30 per share.” Subsequent to the filing of the Complaint, six different individuals filed a motion asking to be designated the lead plaintiff in the litigation. On March 19, 2015, the Court issued a ruling appointing Steve Schuck as lead plaintiff.  Counsel for Mr. Schuck filed a “consolidated amended complaint” on September 14, 2015. On December 11, 2015, the Company filed a motion to dismiss the consolidated amended complaint.  After requesting several extensions, counsel for Mr. Schuck filed an opposition to the motion to dismiss on March 21, 2016.  The Company’s reply brief was filed on April 25, 2016. Defendant Stuart Titus was served with the Summons & Complaint in the case and he has recently completed briefing his motion to dismiss, through separate counsel. No hearing date has been set by the Court at this time with respect to the motions to dismiss. Management intends to vigorously defend the allegations and an estimate of possible loss cannot be made at this time.

 

 

 

  20  

 

 

On March 17, 2015, stockholder Michael Ruth filed a shareholder derivative suit in Nevada District Court alleging two causes of action: 1) Breach of Fiduciary Duty, and 2) “Gross Mismanagement.” The claims are premised on the same event as the already-pending securities class action case in New York discussed above – it is alleged that the Form 8-K filings misstated goodwill and sales of the Company, which when corrected, lead to a significant drop in stock price. The Company filed a motion to dismiss the suit on June 29, 2015. Instead of opposing the Company’s motion, Mr. Ruth filed an amended complaint on July 20, 2015. Thereafter, Mr. Ruth and the Company agreed to stay the action pending the outcome of the securities class action case in New York discussed above.  Management intends to vigorously defend the allegations. Since no discovery has been conducted and the case remains stayed, an estimate of the possible loss or recovery cannot be made at this time.

 

On October 21, 2016, Dun Agro B.V. (“Dun Agro”) filed a complaint against the Company in the District Court of the North Netherlands, location Groningen, The Netherlands (the “District Court”), alleging non-performance under a contract, seeking compensatory damages of approximately 2,050,000 euros, excluding interest and costs. The plaintiff alleges that the Company was obligated to perform under that certain supply agreement between the Company and Dun Agro dated December 19, 2013, and to purchase 1,000,000 kilograms of harvested raw material related to the 2016 crop. The Company filed a reply to the complaint on March 29, 2017 which is now under review by the District Court. Management intends to vigorously defend the complaint allegations and an estimate of possible loss cannot be made at this time.

 

In the normal course of business, the Company is a party to a variety of agreements pursuant to which they may be obligated to indemnify the other party. It is not possible to predict the maximum potential amount of future payments under these types of agreements due to the conditional nature of our obligations and the unique facts and circumstances involved in each particular agreement. Historically, payments made by us under these types of agreements have not had a material effect on our business, condensed consolidated results of operations or financial condition.

 

11. SEGMENT INFORMATION

 

The Company operates in two distinct business segments: a consumer product segment in manufacturing, marketing and selling plant-based CBD products to a range of market sectors; and, a specialty pharmaceutical segment focused on developing and commercializing novel therapeutics utilizing synthetic CBD. The Company’s segments maintain separate financial information for which operating results are evaluated on a regular basis by the Company’s senior management in deciding how to allocate resources and in assessing performance. The Company evaluates its consumer product segment based on net product sales, gross profit and operating income or loss. The Company currently evaluates its specialty pharmaceutical segment based on the progress of its clinical development programs.

 

The following table presents information by reportable operating segment for the three months ended March 31, 2017:

 

  Consumer
Products
Segment
    Specialty
Pharmaceutical
Segment
    Consolidated
Totals
 
Three Months Ended                        
March 31, 2017:                        
Product sales, net   $ 3,764,191     $     $ 3,764,191  
Gross profit     2,433,003             2,433,003  
Gain on change in derivative liability     210,600             210,600  
Royalty buy-out           (2,432,000 )     (2,432,000 )
Selling, general and administrative     (3,605,177 )     (71,533 )     (3,676,710 )
Research and development     (49,033 )     (139,683 )     (188,716 )
Operating loss   $ (1,010,607 )   $ (2,643,216 )   $ (3,653,823 )

 

 

 

 

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  12. SUBSEQUENT EVENTS

 

In April 2017, the disinterested members of the Board approved a grant of an aggregate of 2,000,000 performance-based stock options to purchase shares of the Company’s common stock to two senior management members of the Company (including one management member of the Board). The performance-based stock options are contingent and vest only upon the Company achieving three specific milestones related to the success of the Company’s drug development program and were granted outside of the Company’s Amended 2013 Plan. Vesting of such options accelerates upon a sale of the Company or change in control.

 

In April 2017, the Company issued an aggregate of 21,400,000 shares of restricted stock to the former CanX shareholders (see Note 8).

 

On April 17, 2017, a redemption notice of $100,000 was received for the conversion of 404,313 shares of common stock issued under the Iliad Amendment #3.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

The following discussion of our financial condition and results of operations for the three months ended March 31, 2017 and 2016, respectively, should be read in conjunction with the financial statements and the notes to those statements that are included elsewhere in this Quarterly Report on Form 10-Q. Our discussion includes forward-looking statements based upon current expectations that involve risks and uncertainties, such as our plans, objectives, expectations and intentions. Actual results and the timing of events could differ materially from those anticipated in these forward-looking statements as a result of a number of factors. We use words such as “anticipate”, “estimate”, “plan”, “project”, “continuing”, “ongoing”, “expect”, “believe”, “intend”, “may”, “will”, “should”, “could”, and similar expressions to identify forward-looking statements.

 

OVERVIEW

 

We are a life science company with two distinct business segments. Our specialty pharmaceutical segment is focused on developing and commercializing novel therapeutics utilizing synthetic Cannabidiol (“CBD”). Our consumer product segment is focused on manufacturing, marketing and selling plant-based CBD products to a range of market sectors. On June 8, 2016, the Company changed its trading symbol from “CANV” to “CVSI”, and continues to be traded on the OTC: QB.

 

Our specialty pharmaceutical business segment is developing synthetic cannabinoids to treat a range of medical conditions. The Company’s product candidates are based on proprietary formulations, processes and technology that we believe are patent-protectable, and we plan to vigorously pursue patent protection on the Company’s two drug candidates.

 

Our consumer product business segment manufactures, markets and sells consumer products containing plant-based CBD under our PlusCBD™ brand in a range of market sectors including nutraceutical, beauty care, specialty foods and vape.

 

We expect to realize revenue from our consumer products business segment to fund a portion of our working capital needs. However, in order to fund our pharmaceutical product development efforts, we will need to raise additional capital either through the issuance of equity and/or the issuance of debt. Given the small size of our company and the development stage of our specialty pharmaceutical business segment, we may find it difficult to raise sufficient capital to meet our needs. We do not have any firm commitments for all of our capital needs, and there are no assurances they will be available to us.

 

Non-GAAP Financial Measures

 

We currently focus on Adjusted EBITDA to evaluate our business relationships and our resulting operating performance and financial position. Adjusted EBITDA is defined by us as EBITDA (net income (loss) minus interest income, plus interest expense, income tax expense, depreciation and amortization), further adjusted to exclude certain non-cash expenses and other adjustments as set forth below. We present Adjusted EBITDA because we consider it an important measure of our performance and it is a meaningful financial metric in assessing our operating performance from period to period by excluding certain items that we believe are not representative of our core business, such as certain non-cash items and other adjustments.

 

We believe that Adjusted EBITDA, viewed in addition to, and not in lieu of, our reported results in accordance with accounting principles generally accepted in the United States (“GAAP”), provides useful information to investors regarding our performance for the following reasons:

 

  · because non-cash equity grants made to employees and non-employees at a certain price and point in time do not necessarily reflect how our business is performing at any particular time. As such, we do not believe stock-based compensation expense is a key measure of our operating performance;
  · because we do not believe changes in our derivative liabilities are a key measure of operating performance; and
  · revenues and expenses associated with acquisitions, dispositions, equity issuances and related offering costs can vary from period to period and transaction to transaction and are not considered a key measure of our operating performance.

 

 

 

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We used Adjusted EBITDA:

 

  · as a measure of operating performance;
  · to evaluate the effectiveness of our business strategies; and
  · in communication with our Board of Directors concerning our financial performance.

 

Adjusted EBITDA is a non-GAAP measure and does not purport to be an alternative to net income (loss) as a measure of operating performance or to cash flows from operating activities as a measure of liquidity. The term Adjusted EBITDA is not defined under GAAP, and Adjusted EBITDA is not a measure of net income (loss), operating income or any other performance measure derived in accordance with GAAP.

 

Adjusted EBITDA has limitations as an analytical tool and should not be considered in isolation or as a substitute for analysis of our results as reported under GAAP. Some of these limitations are:

 

  · Adjusted EBITDA does not reflect all cash expenditures, future requirements for capital expenditures or contractual requirements;
  · Adjusted EBITDA does not reflect changes in, or cash requirements for, working capital needs; and
  · Adjusted EBITDA can differ significantly from company to company depending on that company’s definition of Adjusted EBITDA, strategic decisions regarding capital structure, the tax jurisdictions in which companies operate and the level of capital investment, thus, limiting its usefulness as a comparative measure.

 

Adjusted EBITDA should not be considered as a measure of discretionary cash available to us for investment in our business. We compensate for these limitations by relying primarily on GAAP results and using Adjusted EBITDA as supplemental information.

 

A reconciliation from our net loss to Adjusted EBITDA, a non-GAAP measure, for the three months ended March 31, 2017 and 2016 is detailed below:

 

  For the three months ended March 31,  
    2017     2016  
Net loss   $ (3,784,777 )   $ (1,533,117 )
Interest income           (27,655 )
Interest expense     130,954       355,349  
Amortization of purchased intangible assets     8,850       214,350  
Depreciation of property & equipment     47,525       49,025  
                 
EBITDA     (3,597,448 )     (942,048 )
EBITDA Adjustments:                
Stock-based compensation expense (1)     1,186,291       405,151  
Gain on changes in derivative liabilities (2)     (210,600 )      
Royalty buy-out (3)     2,432,000        
Total EBITDA Adjustments     3,407,691       405,151  
                 
Adjusted EBITDA   $ (189,757 )   $ (536,897 )

 

  (1) Represents stock-based compensation expense related to stock options and RSU’s awarded to employees, consultants and non-executive directors based on the grant date fair value under the Black-Scholes valuation model (See Note 9 of the Company’s condensed consolidated financial statements).
  (2) Represents the gain on changes in derivative liabilities associated with the Iliad Notes (See Note 7 of the Company’s condensed consolidated financial statements).
  (3) Represents the share-based royalty buy-out associated with the CanX acquisition (See Note 8 of the Company’s condensed consolidated financial statements).

 

As illustrated above, our $347,140 improvement in our Adjusted EBITDA for the three months ended March 31, 2017 compared with the same period in 2016 is primarily due to decreases in our interest expense and amortization of purchased intangible assets combined with the increasing impact on our net loss due to our stock-based compensation expenses primarily attributable to our stock option grants and RSU awards (See Note 9 of the Company’s condensed consolidated financial statements), and our share-based royalty buy-out expense (See Note 8 of the Company’s condensed consolidated financial statements).

 

 

 

  24  

 

 

Critical Accounting Policies

 

We have disclosed in the notes to our consolidated financial statements and in “Item 7 – Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in our 2016 Annual Report on Form 10-K, those accounting policies that we consider to be significant in determining our results of operation and financial condition. There have been no material changes to those policies that we consider to be significant since the filing of our 2016 Annual Report on Form 10-K. The accounting principles used in preparing our unaudited condensed consolidated financial statements conform in all material respects to GAAP.

 

Recent Accounting Pronouncements

 

See Note 2 in the accompanying notes to condensed consolidated financial statements.

 

 

Results of Operations

 

Three months ended March 31, 2017 and 2016

 

Revenues and gross profit - We had sales of $3,764,191 and gross profit of $2,433,003 representing a gross profit percentage of 64.6% for the three months ended March 31, 2017 compared to sales of $2,422,678 and gross profit of $1,625,635 representing a gross profit percentage of 67.1% for the three months ended March 31, 2016. The sales increase of $1,341,513 for the three months ended March 31, 2017 compared with 2016 is primarily due to an increase in customer awareness and demand for our PlusCBD™ products, as we continue to expand and maintain our core customer base.

 

For the three months ended March 31, 2017 compared with 2016, our gross margin percentage decrease is primarily due to sales promotions we offered on certain PlusCBD™ products as we continue to adapt our products to our growing customer base.

 

Selling, general and administrative expenses - For the three months ended March 31, 2017 and 2016, we incurred selling, general and administrative (the “SG&A”) expenses in the amount of $3,676,710 and $2,689,245, respectively. SG&A expense includes non-cash expenses of $1,186,291 and $405,151 of stock-based compensation, $47,525 and $49,025 of depreciation expense, and $8,850 and $214,350 of amortization expense of intangible assets, for the three months ended March 31, 2017 and 2016, respectively. After adjusting for non-cash stock-based compensation, depreciation, and amortization of intangible assets for the three months ended March 31, 2017 and 2016, SG&A expenses increased by $413,325 during the three months ended March 31, 2017 compared with the three months ended March 31, 2016. Part of this increase resulted from $71,533 and $0 of expense related to our specialty pharmaceutical segment during the three months ended March 31, 2017 and 2016, respectively, and increased headcount, commissions and marketing.

  

Research and development expenses - For the three months ended March 31, 2017 and 2016, the Company incurred research and development (“R&D”) expenses of $188,716 and $141,813, respectively. These expenses are related to our cost of process development, rental of our laboratory facility, payroll expenses, laboratory supplies, product development and testing, outsourced research personnel, and R&D expenses related to our specialty pharmaceutical segment. During the three months ended March 31, 2017, we incurred $139,683 of R&D expenses related to our specialty pharmaceutical segment compared with $0 in the three months ended March 31, 2016. After adjusting for the specialty pharmaceutical R&D expense, R&D costs related to our consumer products segment decreased by $92,780. The decrease for the three months ended March 31, 2017 compared with 2016 relates primarily to the Company transitioning R&D activities into the development of its specialty pharmaceutical segment rather than the production of inventory products.

 

Gain on changes in derivative liabilities - Gain on changes in derivative liabilities of $210,600 and $0 during the three months ended March 31, 2017 and 2016, respectively relates to the change in the derivative liability from December 31, 2016 on the Iliad Note and the change in the derivative liability from inception for the Iliad Note 2 (See Note 7 of the Company’s condensed consolidated financial statements). The gain results primarily from the reduction in the expected term of the derivative liabilities.

 

Royalty buy-out - Royalty buy-out of $2,432,000 and $0 during the three months ended March 31, 2017 and 2016, respectively relates to the Company’s share-based royalty buy-out associated with the CanX acquisition (See Note 8 of the Company’s condensed consolidated financial statements).

 

Interest income/expense - Interest income was $0 and $27,655 for the three months ended March 31, 2017 and 2016, respectively, with the decrease primarily due to the elimination of interest income associated with our previously settled related party notes receivables during the year ended December 31, 2016.

 

 

 

  25  

 

 

Interest expense was $130,954 and $355,349 for the three months ended March 31, 2017 and 2016, respectively. When adjusting for the economic benefit of our non-cash embedded derivative liabilities and the impact of our non-cash amortizations of debt issuance discounts, we paid cash interest amounts of $27,735 and $259,934, for the three months ended March 31, 2017 and 2016, respectively. The decrease in cash payments during the interim period of 2017 when compared with the interim period of 2016 was due to the repayment of accrued interest amounts during the three months ended March 31, 2016, which did not occur during the three months ended March 31, 2017.

 

Liquidity and Capital Resources

 

A summary of our changes in cash flows for the three months ended March 31, 2017 and 2016 is provided below:

 

  For the three months ended March 31,  
    2017     2016  
Net cash flows provided by (used in):                
Operating activities   $ 25,587     $ (112,258 )
Investing activities            
Financing activities     697,438       129,937  
Net increase in cash and restricted cash     723,025       17,679  
Cash and restricted cash, beginning of period     1,057,468       518,462  
Cash and restricted cash, end of period   $ 1,780,493     $ 536,141  

 

Operating Activities

Net cash provided by or used in operating activities includes our net loss adjusted for non-cash expenses such as depreciation and amortization, bad debt expense, amortizations of debt issuance costs, gains or losses on our derivative liabilities, stock-based compensation and accrued interest expense. Operating assets and liabilities primarily include balances related to funding of inventory purchases and customer accounts receivable. Operating assets and liabilities that arise from the funding of inventory purchases and customer accounts receivable can fluctuate significantly from day to day and period to period depending on the timing of inventory purchases and customer behavior.

 

Net cash provided by operating activities for the three months ended March 31, 2017 totaled $25,587 compared with cash used in operating activities of $112,258 for the three months ended March 31, 2016. Cash provided by the sale of inventory was $687,767 for the three months ended March 31, 2017 compared with cash provided by the sale of inventory of $321,293 for the three months ended March 31, 2016. Cash financed by accounts receivable was $492,573 for the three months ended March 31, 2017 compared to $2,133 in cash received by accounts receivable for the three months ended March 31, 2016. Cash provided by accounts payable and accrued expenses was $158,262 for the three months ended March 31, 2017 compared to cash provided by accounts payable and accrued expenses of $104,937 for the three months ended March 31, 2016. Cash used in the purchase of prepaid expenses was $110,378 during the three months ended March 31, 2017 compared with cash used in the purchase of prepaid expenses of $15,508 during the three months ended March 31, 2016. Amortization of debt issuance costs, derivative liability discounts and a beneficial conversion feature of convertible debt totaled $62,975 for the three months ended March 31, 2017 compared with $164,478 for the three months ended March 31, 2016. Stock-based compensation totaled an aggregate of $1,186,291 for the three months ended March 31, 2017, compared with $580,151 for the three months ended March 31, 2016. Depreciation and amortization totaled $56,375 for the three months ended March 31, 2017 compared with $263,375 for the three months ended March 31, 2016. Accrued interest payable was $40,245, the royalty buy-out was $2,432,000 and the gain on changes in derivative liabilities was $210,600 for the three months ended March 31, 2017.

 

Investing Activities

The Company had $0 provided by or used in investing activities for the three months ended March 31, 2017 and 2016, respectively.

 

Financing Activities

Net cash provided by financing activities for the three months ended March 31, 2017 and 2016 totaled $697,438 and $129,937, respectively. Cash flows provided by financing activities for the three months ended March 31, 2017 consisted of $750,000 in borrowing net proceeds from the issuance of secured convertible debt and $52,562 of repayments on an unsecured note payable. Cash flows provided by financing activities for the three months ended March 31, 2016 consisted of $801,430 in borrowing net proceeds from the issuance of notes payable, $612,000 of repayments on convertible notes payable and $59,493 of repayments on an unsecured note payable.

 

The Company has yet to attain a level of operations which allows it to meet operating and working capital cash flow needs. We expect to realize revenue to fund a portion of our working capital needs through the sale of finished products and raw materials to third parties. However, in order to fund our pharmaceutical product development efforts, we will need to raise additional capital through either the issuance of equity and/or debt. We expect to be dependent upon obtaining additional financing in order to adequately fund working capital, infrastructure and expenses in order to execute plans for future operations so that we can achieve a level of revenue adequate to support our cost structure, none of which can be assured.

 

 

 

  26  

 

 

Liquidity

For the three months ended March 31, 2017 and 2016, the Company had net losses of $3,784,777 and $1,533,117, respectively. In addition, for the three months ended March 31, 2017, the Company had positive cash flows from operations of $25,587 compared with negative cash flows from operations of $112,258 for the three months ended March 31, 2016. Management believes the Company has the funds needed to continue its consumer product business segment and meet its other obligations over the next year solely from current revenues and cash flow due to increased sales and because our current inventory levels are sufficient to support sales for 2017, resulting in reduced cash outflow for inventory purchases. In addition, we do not intend to purchase raw inventory from our supply chain arrangements from the 2017 crop and/or 2018 crop.

 

The Company’s pharmaceutical business segment will require additional financing over the next 12 months through May 9, 2018. Management believes that it will be able to obtain such financing on terms acceptable to the Company; however, there can be no assurances that the Company will be successful. If the Company is unable to raise additional capital, the Company would likely be forced to curtail pharmaceutical development.

 

We expect to realize revenue to fund our working capital needs through the sale of raw and finished products to third parties. However, we cannot be assured that our working capital needs to develop, launch, market and sell our products will be met through the sale of raw and finished products to third parties. If not, we may not be able to maintain profitable operations. If we are unable to maintain profitable operations sufficient to fund our business, we would need to raise additional capital through either the issuance of debt and/or equity.

 

Numerous other consumer products are currently in development and we will continue to scale up our processing capability to accommodate new products in our pipeline.

 

Off-Balance Sheet Arrangements

 

The Company has two supply arrangements in place with European farmers to supply raw material in future years. The first arrangement contemplates growth and processing of 2,600 kilograms of product and the second contract provides up to 1 million kilograms of raw product to the Company. While we have contractual rights for the growth and processing of hemp oil for delivery through October 2018 under both contracts, we do not intend to purchase raw inventory from our supply chain arrangements from the 2017 crop and/or 2018 crop.

 

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

Not applicable to a “smaller reporting company” as defined in Item 10(f)(1) of Regulation S-K.

 

ITEM 4. CONTROLS AND PROCEDURES

 

DISCLOSURE CONTROLS AND PROCEDURES

 

Our management, which is comprised of one person holding the offices of President and Chief Executive Officer and one person holding the offices of Chief Financial Officer and Secretary, evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) promulgated under the Exchange Act) as of the end of the period covered by this report (the “Evaluation Date”). Based on such evaluation, our management concluded that our disclosure controls and procedures were effective, at a reasonable assurance level, as of the Evaluation Date, to ensure that information required to be disclosed in reports that we file or submit under that Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms and to ensure that information required to be disclosed in the reports that we file or submit under the Exchange Act is accumulated and communicated to our management in a manner that allows timely decisions regarding required disclosures.

 

An evaluation was performed under the supervision and with the participation of the Company’s management of the effectiveness of the design and operation of the Company’s procedures and internal control over financial reporting as of March 31, 2017. In making this assessment, the Company used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated Framework of 1992 (the “1992 COSO Framework”).

 

CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING

 

There was no change in our internal control over financial reporting identified with our evaluation that occurred during the fiscal quarter ended March 31, 2017, that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

 

 

 

  27  

 

 

PART II. OTHER INFORMATION

 

Item 1. LEGAL PROCEEDINGS

 

On April 23, 2014, Tanya Sallustro filed a purported class action complaint (the “Complaint”) in the Southern District of New York (the “Court”) alleging securities fraud and related claims against the Company and certain of its officers and directors and seeking compensatory damages including litigation costs. Ms. Sallustro alleges that between March 18-31, 2014, she purchased 325 shares of the Company’s common stock for a total investment of $15,791. The Complaint refers to Current Reports on Form 8-K and Current Reports on Form 8-K/A filings made by the Company on April 3, 2014 and April 14, 2014, in which the Company amended previously disclosed sales (sales originally stated at $1,275,000 were restated to $1,082,375 - reduction of $192,625) and restated goodwill as $1,855,512 (previously reported at net zero). Additionally, the Complaint states after the filing of the Company’s Current Report on Form 8-K on April 3, 2014 and the following press release, the Company’s stock price “fell $7.30 per share, or more than 20%, to close at $25.30 per share.” Subsequent to the filing of the Complaint, six different individuals filed a motion asking to be designated the lead plaintiff in the litigation. On March 19, 2015, the Court issued a ruling appointing Steve Schuck as lead plaintiff.  Counsel for Mr. Schuck filed a “consolidated amended complaint” on September 14, 2015. On December 11, 2015, the Company filed a motion to dismiss the consolidated amended complaint.  After requesting several extensions, counsel for Mr. Schuck filed an opposition to the motion to dismiss on March 21, 2016.  The Company’s reply brief was filed on April 25, 2016.  Defendant Stuart Titus was served with the Summons & Complaint in the case and he has recently completed briefing his motion to dismiss, through separate counsel. No hearing date has been set by the Court at this time with respect to the motions to dismiss.  Management intends to vigorously defend the allegations and an estimate of possible loss cannot be made at this time.

 

On March 17, 2015, stockholder Michael Ruth filed a shareholder derivative suit in Nevada District Court alleging two causes of action: 1) Breach of Fiduciary Duty, and 2) “Gross Mismanagement.” The claims are premised on the same event as the already-pending securities class action case in New York discussed above – it is alleged that the Form 8-K filings misstated goodwill and sales of the Company, which when corrected, lead to a significant drop in stock price. The Company filed a motion to dismiss the suit on June 29, 2015. Instead of opposing the Company’s motion, Mr. Ruth filed an amended complaint on July 20, 2015.  Thereafter, Mr. Ruth and the Company agreed to stay the action pending the outcome of the securities class action case in New York discussed above.  Management intends to vigorously defend the allegations. Since no discovery has been conducted and the case remains stayed, an estimate of the possible loss or recovery cannot be made at this time.

 

On October 21, 2016, Dun Agro B.V. (“Dun Agro”) filed a complaint against the Company in the District Court of the North Netherlands, location Groningen, The Netherlands (the “District Court”), alleging non-performance under a contract, seeking compensatory damages of approximately 2,050,000 euros, excluding interest and costs. The plaintiff alleges that the Company was obligated to perform under that certain supply agreement between the Company and Dun Agro dated December 19, 2013, and to purchase 1,000,000 kilograms of harvested raw material related to the 2016 crop. The Company filed a reply to the complaint on March 29, 2017 which is now under review by the District Court. Management intends to vigorously defend the complaint allegations and an estimate of possible loss cannot be made at this time.

 

Item 1a. RISK FACTORS

 

Not applicable to a “smaller reporting company” as defined in Item 10(f)(1) of Regulation S-K.

 

Item 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

None.

 

Item 3. DEFAULTS UNDER SENIOR SECURITIES

 

None.

 

Item 4. MINE SAFETY DISCLOSURE

 

Not applicable.

 

 

 

 

 

 

 

 

 

 

  28  

 

 

Item 5. OTHER INFORMATION

 

The Company’s Board of Directors has established the date of the Company’s 2017 Annual Meeting of Stockholders (the “2017 Annual Meeting”) as July 14, 2017 and May 24, 2017 as the record date for determining stockholders entitled to notice of, and to vote at, the 2017 Annual Meeting.

 

The 2017 Annual Meeting has changed by more than 30 days from the anniversary of the date of the Company’s 2016 Annual Meeting of Stockholders (the “2016 Annual Meeting”), which was held on October 24, 2016. As a result, the deadline for any shareholder proposal or shareholder nomination under the rules of the Securities and Exchange Commission (the “SEC”) listed in the Company's Proxy Statement on Schedule 14A, as filed with the SEC on September 13, 2016 (the “2016 Proxy Statement”), is no longer applicable. Stockholders of the Company who wish to have a proposal or nomination considered for inclusion in the Company’s proxy materials for the 2017 Annual Meeting (including a proposal made pursuant to Rule 14a−8 promulgated under the Securities Exchange Act of 1934, as amended, and any notice on Schedule 14N), must ensure that such proposal or nomination is received by the Company’s Secretary at CV Sciences, Inc., 2688 South Rainbow Boulevard, Suite B, Las Vegas, Nevada 89146, Attn: Secretary on or before the close of business on May 15, 2017, which the Company has determined to be a reasonable time before it expects to begin to print and send its proxy materials as the Company will be sending its proxy materials in accordance with the “notice and access” model pursuant to Rule 14a-16 under the Exchange Act. The May 15, 2017 deadline will also apply in determining whether notice of a stockholder proposal or nomination is timely for purposes of exercising discretionary voting authority with respect to proxies under Rule 14a-4(c) of the Exchange Act. Any such stockholder proposal or nomination must comply with applicable Delaware law, the rules and regulations promulgated by the Securities and Exchange Commission, and the Company’s Bylaws, as amended, in order to be eligible for inclusion in the proxy materials for the 2017 Annual Meeting.

 

The Company had previously disclosed in the 2016 Proxy Statement that stockholders’ proposals and nominations were required to be received by the Company no later than May 17, 2017 in connection with the 2017 Annual Meeting. The Company has not yet received any such proposals and/or nominations.

 

 

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Item 6. EXHIBITS

 

Exhibit No.   Description of Exhibit
2.1 (1)   Agreement and Plan of Merger, dated as of July 25, 2013, by and between CannaVEST Corp., a Texas corporation, and CannaVEST Corp., a Delaware corporation.
2.1 (2)   Agreement and Plan of Reorganization by and among CannaVEST Corp., CannaVEST Merger Sub, Inc., CANNAVEST Acquisition LLC, CanX, Inc. and the Starwood Trust, as the Shareholder Representative.
3.1 (1)   Certificate of Incorporation of CannaVEST Corp., as filed on January 26, 2013.
3.2 (1)   Bylaws of CannaVEST Corp., dated as of January 26, 2013.
3.3 (3)   Certificate of Amendment to Certificate of Incorporation of CannaVest Corp., as filed on January 4, 2016.
3.4 (4)   Certificate of Incorporation of the Company, as amended.
3.5 (5)   Amendment to the Bylaws of the Company, as amended.
3.6*   Bylaws of the Company, as amended.
4.1 (6)   CannaVEST Corp. Specimen Stock Certificate
10.1 (7)   Form of Securities Purchase Agreement, dated March 1, 2017, by and between the Company and Iliad Research and Trading, L.P.
10.2 (7)   Form of Secured Convertible Promissory Note, issued by the Company on March 1, 2017, to Iliad Research and Trading, L.P.
10.3 (7)   Security Agreement, dated March 1, 2017, by and between the Company and Iliad Research and Trading, L.P.
10.4*   Amendment No. 1 dated March 16, 2017, to the Agreement and Plan of Reorganization by and among the Company, CANNAVEST Merger Sub, Inc., CANNAVESTAcquisition LLC, CanX, Inc. and the Starwood Trust.
10.5*   Amendment dated March 16, 2017, to Employment Agreement by and between the Company and Michael Mona, Jr.
10.6*   Amendment dated March 16, 2017, to Employment Agreement by and between the Company and Michael Mona, III.
10.7*   Amendment dated March 16, 2017, to Non-Qualified Stock Option Agreement, dated July 6, 2016, by and between the Company and Michael Mona, Jr.
10.8*   Amendment dated March 16, 2017, to Non-Qualified Stock Option Agreement, dated July 6, 2016, by and between the Company and Joseph Dowling.
10.9*   Amendment dated March 16, 2017, to Non-Qualified Stock Option Agreement, dated July 6, 2016, by and between the Company and Michael Mona, III.
10.10*   Non-Qualified Stock Option Agreement, dated March 16, 2017, by and between the Company and Michael Mona, Jr.
31.1*   Certification of the Chief Executive Officer pursuant to Section 302(a) of the Sarbanes-Oxley Act of 2002.
31.2*   Certification of the Chief Financial Officer pursuant to Section 302(a) of the Sarbanes-Oxley Act of 2002.
32.1*   Certification of the Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2*   Certification of the Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101 INS   XBRL Instance Document**
101 SCH   XBRL Schema Document**
101 CAL   XBRL Calculation Linkbase Document**
101 LAB   XBRL Labels Linkbase Document**
101 PRE   XBRL Presentation Linkbase Document**
101 DEF   XBRL Definition Linkbase Document**

 

* Filed herewith.

 

** The XBRL related information in Exhibit 101 shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to liability of that section and shall not be incorporated by reference into any filing or other document pursuant to the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such filing or document.

 

+ Portions of this exhibit have been omitted pursuant to a request for confidential treatment and the non-public information has been filed separately with the Commission.

 

  (1) Incorporated by reference from an exhibit to our Quarterly Report on Form 10-Q filed on August 13, 2013.
  (2) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on January 4, 2016.
  (3) Incorporated by reference from an exhibit to our Annual Report on Form 10-K filed on April 14, 2016.
  (4) Incorporated by reference from an exhibit to our Quarterly Report on Form 10-Q filed on May 16, 2016.
  (5) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on March 22, 2017.
  (6) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on July 31, 2013.
  (7) Incorporated by reference from an exhibit to our Current Report on Form 8-K filed on March 7, 2017.

 

 

 

  30  

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

 

CV SCIENCES, INC.

(Registrant)

     
     
  By /s/ Michael Mona, Jr.
   

Michael Mona, Jr.
President and Chief Executive Officer

(Principal Executive Officer)

    Dated May 9, 2017
     
  By /s/ Joseph D. Dowling
    Joseph D. Dowling
Chief Financial Officer (Principal Financial Officer)
    Dated May 9, 2017

 

 

 

 

 

 

  31  

 

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