As
filed with the Securities and Exchange Commission on January 18, 2017
Registration
No. 333-213875
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT
NO. 1
TO
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE SECURITIES ACT OF 1933
LONG
ISLAND ICED TEA CORP.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
|
|
47-2624098
|
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
|
(I.R.S.
Employer
Identification
Number)
|
116
Charlotte Avenue
Hicksville,
NY 11801 (855) 542-2832
|
|
Philip
Thomas Chief Executive Officer Long Island Iced Tea Corp. 116 Charlotte Avenue
Hicksville,
NY 11801 (855) 542-2832
|
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Office)
|
|
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
|
Copies
to
:
David
Alan Miller, Esq.
Jeffrey
M. Gallant, Esq.
Graubard Miller
405 Lexington Avenue, 11
th
Floor
New York, New York 10174
Telephone: (212) 818-8800
Fax: (212) 818-8881
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If
any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. [X]
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933,
please check the following box and list the Securities Act of 1933 registration statement number of the earlier effective registration
statement for the same offering. [ ]
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box
and list the Securities Act of 1933 registration statement number of the earlier effective registration statement for the same
offering. [ ]
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act of 1933, check the following box. [ ]
If
this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act of 1933, check the
following box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Securities Exchange Act of 1934.
Large
accelerated filer [ ]
|
Accelerated
filer [ ]
|
Non-accelerated
filer [ ]
(Do
not check if a smaller reporting company)
|
Smaller
reporting company [X]
|
CALCULATION
OF REGISTRATION FEE
Title
of each class of
securities to be registered
|
|
Amount
to be registered
|
|
|
Proposed
maximum offering price per unit
|
|
|
Proposed
maximum aggregate offering price
|
|
|
Amount
of registration fee
|
|
Common stock, par value
$0.0001 per share
|
|
|
4,348,889
|
(1)
|
|
$
|
4.51
|
(2)
|
|
$
|
19,613,489
|
|
|
$
|
1,975.08
|
(3)
|
(1)
|
In
the event of a stock split, stock dividend or similar transaction involving our common stock, the number of shares registered
shall automatically be adjusted to cover the additional shares of common stock pursuant to Rule 416 under the Securities Act
of 1933, as amended.
|
|
|
(2)
|
Estimated
solely for the purpose of calculating the amount of the registration fee, based upon the average of the high and low prices
of the common stock, as reported by the Nasdaq Capital Market on September 27, 2016, in accordance with Rule 457(c) promulgated
under the Securities Act of 1933, as amended.
|
|
|
(3)
|
Previously
paid.
|
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is
not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to Completion, dated January 18, 2017
Preliminary
Prospectus
LONG ISLAND ICED TEA CORP.
4,348,889
SHARES OF COMMON
STOCK
This
prospectus covers up to 4,348,889 shares of our common stock that may be offered for resale or otherwise disposed of by
the selling stockholders set forth in “
Selling Stockholders
” beginning on page 21 of this prospectus, including
their pledgees, assignees or successors-in-interest.
The
shares of common stock offered hereby consist of (i) 2,633,334 shares issued to the former members of Long Island Brand Beverages
LLC, or “LIBB,” our wholly owned operating subsidiary, in connection with the business combination described herein,
(ii) 12,000 shares held by certain of the founders of our predecessor, (iii) 359,475 shares sold to investors in private placements
conducted by us between August 2015 and March 2016, and 404,475 shares underlying the warrants issued to such investors, (iv)
908,083 shares issued to Brentwood LIIT (NZ) Ltd., or “Brentwood,” the lender under our credit facility, in connection
with the recapitalization described herein, and (v) 31,522 shares underlying the warrants issued as compensation to the
placement agent for the public offering conducted by us in July 2016 and its designees.
We
will not receive any proceeds from the sale or other disposition of the shares by the selling stockholders. To the extent the
warrants described above are exercised for cash, however, we will receive up to an aggregate of $2,643,564 in gross proceeds.
We expect to use proceeds received from the exercise of the warrants, if any, for general corporate purposes, including working
capital, sales and marketing activities, product development, general and administrative matters, capital expenditures and acquisitions.
Our
common stock is listed for trading on the NASDAQ Capital Market, or “NASDAQ,” under the symbol “LTEA.”
On January 17, 2017 , the last reported sale price of our common stock was $4.15 .
Investing
in our securities involves a high degree of risk. See “
Risk Factors
” beginning on Page 9 in this prospectus
for a discussion of information that should be considered in connection with an investment in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is _______, 2017
TABLE
OF CONTENTS
You
should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized anyone to
provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we have filed with the Securities and Exchange Commission, or
the “SEC.” It is important for you to read and consider all of the information contained in or incorporated by reference
into this prospectus and any applicable prospectus supplement before making any decision whether to invest in our common stock.
This prospectus incorporates by reference important business and financial information about us that is not included in or delivered
with this document, as described in “
Where You Can Find More Information
” beginning on page 25 in this prospectus.
You should also read and consider the additional information contained in the documents that we have incorporated into this prospectus
by reference.
You
should rely only on the information contained in or incorporated by reference into this prospectus or any applicable prospectus
supplement. We have not authorized anyone to give or provide any information different from the information that is contained
in or incorporated by reference into this prospectus or any accompanying prospectus supplement and, if given, such information
must not be relied upon as having been made or authorized by us. The information contained in this prospectus is accurate only
as of the date on the front of this prospectus and information appearing in any applicable prospectus supplement is accurate only
as of the date of the applicable prospectus supplement. Additionally, any information we have incorporated by reference in this
prospectus or any applicable prospectus supplement is accurate only as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any sale of our common stock. Our
business, financial condition, results of operations and prospects may have changed since that date.
This
prospectus or any accompanying prospectus supplement does not constitute an offer or solicitation by anyone in any state in which
such offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so
or to anyone to whom it is unlawful to make such offer or solicitation.
Unless
otherwise indicated or unless the context otherwise requires, references in this prospectus to the “Company,” and
“we,” “us” and “our” refer to Long Island Iced Tea Corp., a Delaware corporation, and its
subsidiaries, LIBB and Cullen Agricultural Holding Corp., or “Cullen.”
PROSPECTUS
SUMMARY
Our
Company
Overview
We
are a holding company operating through our wholly owned subsidiary, LIBB. We are engaged in the production and distribution of
premium Non-Alcoholic Ready-to-Drink, or “NARTD,” iced tea in the beverage industry. We are currently organized around
our flagship brand Long Island Iced Tea
®
. The Long Island Iced Tea name for a cocktail originated in Long Island
in the 1970’s, and its national recognition is such that it is ranked as the fourth most popular cocktail in restaurants
and bars in the U.S. (Source: Nielsen CGA, On-Premise Consumer Survey, 2016). Our premium NARTD tea is made from a proprietary
recipe and with quality components. Long Island Iced Tea
®
is sold in 12 states across the U.S., primarily on the
East Coast, through a network of national and regional retail chains and distributors. Our mission is to provide consumers with
premium iced tea offered at an affordable price.
We
aspire to be a market leader in the development of iced tea beverages that are convenient and appealing to consumers. There are
two major target markets for Long Island Iced Tea
®
: consumers on the go and health conscious consumers. Consumers
on the go are families, employees, students and other consumers who lead a busy lifestyle. With increasingly hectic and demanding
schedules, there is a need for products that are accessible and readily available. Health conscious consumers are individuals
who are becoming more interested and better educated on what is included in their diets, causing them to shift away from options
perceived as less healthy such as carbonated soft drinks, or “CSDs,” towards alternative beverages such as iced tea.
We
have begun exploring entry into the $215 billion U.S. alcohol industry, with the hope to establish ourselves as a multi-product
alcoholic and non-alcoholic beverage company.
In
addition, we have begun exploring global export opportunities, with product now distributed in South Korea and many Caribbean
nations. We have just announced a partnership with a Canadian distributor which will see our portfolio distributed nationally
across Canada.
Industry
Opportunity
Non-Alcoholic
Beverage Market
Globally,
NARTD tea products are ranked as the 4th largest beverage category, behind carbonated soft drinks, water and dairy. The non-alcohol
iced tea global category size is estimated at $55 billion, and is estimated to be growing at a 6.6% compound annual growth rate,
or “CAGR.” (Source: Euromonitor International, “Versatility of RTD Tea Generates Bright Spot in Global Soft
Drinks”, May 2014).
The
U.S. non-alcoholic liquid refreshment beverage market consists of a number of different products, and CSDs are the top selling
beverage category. However, consumers are increasingly coming to view CSDs (typically caffeinated as well as high in sugar and
preservatives) with disfavor. Total volume of cases sold in the CSD category declined 0.9% in 2014, 3% in 2013 and 1.2% in 2012.
(Source: Beverage-Digest, “Special Issue: U.S. Beverage Results for 2014”, March 2015).
CSDs
have historically dominated the non-alcoholic liquid refreshment beverage market and been primarily controlled by two industry
giants, Coca-Cola and Pepsico. However, a number of beverages began to emerge in the 1990s as alternatives to CSDs as part of
a societal shift towards beverages that are perceived to be healthier. The alternative beverage category of the market has resulted
in the birth of multiple new product segments that include sports drinks, energy drinks and NARTD teas.
According
to a 2014 IBISWorld industry report, the U.S. NARTD tea segment was expected to have $5.3 billion of revenues in 2014, a 3.3%
increase from the prior year and a 6.1% annualized growth rate over the five years from 2009 to 2014. (Source: IBISWorld Industry
Report OD4297, “RTD Tea Production in the US”, December 2014). The industry report also forecasted an annualized revenue
growth rate of 10.2% between 2014 and 2019, with revenues reaching $8.6 billion in 2019.
Consumers
have shown special interest in perceived healthier versions of NARTD teas, preferring all natural and diet teas.
Products
and Services Segmentation 2014 ($5.3 billion)
All-Natural Tea
|
|
|
36.1
|
%
|
Diet Tea
|
|
|
25.8
|
%
|
Fruit-Flavored Tea
|
|
|
20.2
|
%
|
Organic Tea
|
|
|
10.3
|
%
|
Herbal Tea
|
|
|
7.6
|
%
|
(Source:
IBISWorld Industry Report OD4297, “RTD Tea Production in the US”, December 2014)
The
existence of this trend toward healthier versions of products is reinforced by a 2015 Nielsen “Health and Wellness”
study, where six key elements of our premium liquid (corn free, hormone/antibiotic free, non-gmo, gluten free, natural, and no
artificial color/flavor) rank in the top 20 of four-year CAGR, when measured against 64 “Health and Wellness” categories.
Potential
Expansion into Alcoholic Beverage Market
We
have begun exploring the development, production, marketing and distribution of alcoholic beverages, to augment our current NARTD
tea business. In June 2015, we engaged Julian Davidson, who has many years of experience in the alcohol industry, as a consultant
to help evaluate the opportunity, as well as to assist in our core NARTD tea business. In June 2016, Mr. Davidson became our Executive
Chairman.
The
alcohol beverage market consists of beer, cider/perry, ready-to-drink/high-strength premixes, spirits and wine. The total sales
of U.S. alcohol beverage market reached $215 billion in 2014, growing at a 3.3% CAGR from 2009 to 2014. Of that $215 billion,
46.8% was from beer, 1.0% from cider/perry, 2.5% from alcoholic ready-to-drink, or “ARTD,” beverages and high-strength
premixes, 30.5% from spirits and 19.2% from wine. (Source: Euromonitor International, “Passport: Alcoholic Drinks in the
US,” June 2015).
Our
Products and Services
Long
Island Iced Tea® was first launched in the New York metro market by LIBB in July 2011, positioning itself as a premium iced
tea beverage offered at an affordable price. We help differentiate ourselves from competitors with a proprietary recipe and quality
components. Long Island Iced Tea® is a 100% brewed tea, using black tea leaves and purified water via reverse osmosis. It
is gluten-free, free of genetically modified organisms, or “GMOs,” and certified Kosher with no artificial colors
or preservatives.
Long
Island Iced Tea® is primarily produced and bottled in the U.S. Northeast. This production in the Northeast, combined with
its “Made in America” tag-line and brand name, all improve its credentials as a part of the local community from which
we take our name.
We
have developed ten flavors of Long Island Iced Tea® in an effort to ensure that our products meet the desired taste preferences
of consumers. Regular flavors, which use natural cane sugar as a sweetener, include lemon, peach, raspberry, green tea & honey,
half tea & half lemonade, guava, mango, and sweet tea. Diet flavors, which use sucralose (generic Splenda) instead of natural
cane sugar as a sweetener, include diet lemon and diet peach. These flavors are currently available in twelve packs of 20 ounce
polyethylene terephthalate bottles.
We
have also recently developed three twenty-four pack of sixty calorie flavors that are served in 12 ounce bottles. The sixty calorie
flavors have reduced sugar content, are caffeine free and include mango, peach, and raspberry. This package was designed to meet
certain nutritional guidelines for sales in schools. During May 2015, we launched four flavors, lemon, peach, mango, and green
tea and honey, in gallon containers. During February 2016, we also launched sweet tea, which is also served in a gallon container.
Also
during February 2016, we began exploring the sale of aloe juice products as part of our product line. The aloe juice product is
purchased in its finished form from a supplier. In addition, during April 2016, we launched a private label line, consisting of
four flavors, for one of our existing customers.
Our
Competitive Strengths
We
believe that a differentiated brand will be a key competitive strength in the NARTD tea segment. Key points of differentiation
for Long Island Iced Tea® include:
|
●
|
A
better and bolder tasting bottled iced tea as a result of premium ingredients that include natural cane sugar (sucralose for
diet flavors), hot-filled using black and green tea leaves, that is offered at an affordable price;
|
|
|
|
|
●
|
Immediate
global recognition of the “Long Island Iced Tea” phrase associated with the cocktail;
|
|
|
|
|
●
|
Made
in America;
|
|
|
|
|
●
|
Strong
Northeast roots where it is locally produced;
|
|
|
|
|
●
|
The
use of non-GMO ingredients; and
|
|
|
|
|
●
|
Our
product being corn free, hormone/antibiotic free, gluten free, natural and having no artificial color/flavor.
|
The
NARTD tea market is a crowded space and, as a result, we believe in pricing our products competitively. We highlight to consumers
our use of premium ingredients and our affordable price. The suggested retail price for a 20 ounce bottle of Long Island Iced
Tea® is $1.00 to $1.50 and the suggested retail price for a 12 ounce bottle is $1.00 to $1.25. The suggested retail price
for our gallon containers is $2.99 to $3.49. Management has set pricing levels to reflect current pricing dynamics in the industry.
There has been downward pressure on prices, which management believes is caused by the entrance of major multinational beverage
corporations into the alternative beverage category, leading to consolidation in the industry.
Our
Business Strategies
In
addition to a potential expansion into ARTD beverages, we are seeking to organically grow our NARTD tea and related product sales.
We
intend to increase our market share in our existing geographic markets and expand into additional geographic markets in the U.S.,
capitalizing on an iconic name with unique brand awareness to create a familiar and easily recognizable non-alcoholic iced tea.
We also are exploring international markets on a highly selective and limited basis, which may include royalty and licensing agreements.
As discussed below in “— Our Customers,” we generally focus our sales efforts on approaching beverage distributors
and taking advantage of their unique positioning in the retail industry. However, a portion of our sales efforts are also dedicated
to direct sales to retailers, because some wholesale chains such as Sam’s Club and Costco request direct shipments from
the product supplier. In addition, we are exploring several new sales channels. We currently are conducting a small scale business
trial in which we sell our beverage product alongside other snacks in vending machines. We also commenced selling our 12 ounce
lower calorie products in schools, in some cases through sales to purchasing cooperatives that represent multiple school districts,
but also via the vending machine business trial.
During
the quarter ended December 31, 2015, we determined the brand had sufficient scale, distribution and volume per point of distribution
to test market expansion into (1) additional U.S. states, (2) significant new regional chains, and (3) national chains. To facilitate
this expansion, we recruited Joseph Caramele, our Vice President of National Sales & Marketing. Mr. Caramele had spent the
previous nine years working in national and chain account sales for Arizona Beverages USA, at which time he oversaw the regional
and national chain account expansion. Since October 1, 2015, we have introduced our products in Florida and selected states in
the Midwest, and have reached agreement with a limited number of regional and national chains. We recently began receiving purchase
orders from these accounts, and incorporating their logistics and delivery requirements into our systems. Aligned with this expansionary
plan, we have increased the number of full time employees in our sales staff to meet the demands of these initiatives.
As
part of our marketing efforts, we commonly use store demos, as we have found a positive correlation between demos and sales especially
at the introduction phase in new stores. We expect to continue using store demos in order to increase brand awareness and sales
as we continue to expand into new markets. We also use co-op advertising (advertisements by retailers that include the specific
mention of manufacturers, who, in turn, repay the retailers for all or part of the cost of the advertisement) and special promotions,
together with its retail partners, so as to complement other marketing efforts towards brand awareness.
We
also seek to expand our product line. From time to time, we explore and test market potential new NARTD products that may, in
the future, contribute to our operating performance. In addition, we are currently testing certain complementary products that
will sit alongside our flagship Long Island Brand tea. We also may consider exploring strategic acquisitions from time to time,
although this is not a primary business focus.
Our
Customers
We
sell our products to a mix of independent mid-to-large size beverage distributors who in turn sell to retail outlets, such as
big chain supermarkets, mass merchants, convenience stores, restaurants and hotels principally in the New York, New Jersey, Connecticut
and Pennsylvania markets. We have also begun expansion into other geographic markets, such as Florida, Virginia, Massachusetts,
New Hampshire, Nevada, Rhode Island and parts of the Midwest. Our products are currently available in twelve states that have
a cumulative population of 100 million. While we primarily sell our products indirectly through distributors, at times we sell
directly to the retail outlets and we may sell to certain retail outlets both directly and indirectly through distributors. We
also sell our products directly to the distribution facilities of some of our retailers and through “road shows,”
which are temporary installations at retail outlets staffed by our employees or contractors.
For
the nine months ended September 30, 2016, our top three customers, Seeba Distribution, Garden Foods and Wakefern Food Corp., accounted
for 13%, 12% and 10% of our net sales, respectively.
For the
year ended December 31, 2015, one customer, Wakefern Food Corp., accounted for 10% of net sales. For the year ended December 31,
2014, our top three customers, Costco Wholesale, Windmill Distributing, and CFG Distributors LLC, accounted for 32%, 16% and 14%,
of net sales, respectively.
Our
sales are typically governed by short-term purchase orders. We do not have any material contracts or other material arrangements
with our customers or distributors and do not obtain commitments from them to purchase or sell a minimum amount of our products
or to purchase or sell such products at a minimum price. Because our sales may be concentrated with a few customers, our results
of operations may be materially adversely affected if one of these customers significantly reduces the volume of its purchases
or demands a reduction in price, which may occur at any time due to the absence of such purchase commitments.
Management
Our
management team consists of persons with substantial experience in the beverage industry. Philip Thomas, our Chief Executive Officer
and LIBB’s co-founder, has over 16 years of beverage experience. Julian Davidson, our Executive Chairman, has over 25 years
of experience in the beverage industry, including most recently serving as Chief Executive Officer of Independent Liquor NZ’s
businesses in New Zealand, the U.S. and Canada. Independent Liquor NZ is a manufacturer and distributor of pre-mixed ARTD beverages,
as well as having beer, spirit and cider portfolios. Richard Allen, our Chief Financial Officer, has over 30 years of experience
in the beverage and food industries, including roles at Beverage Innovations, Cadbury Schweppes and Snapple. Joseph Caramele,
our Vice President of National Sales & Marketing, has substantial experience in the beverage industry, having spent the past
nine years at Arizona Beverages USA, most recently as Executive National Sales Director for the past five years. As Executive
National Sales Director, he managed a team of 85 individuals and portfolio of over 100 accounts with annual retail sales estimated
to be over $850 million. We intend to expand our current management and recruit other skilled officers and employees with experience
relevant to our business focus as needed.
Recent
Developments
July
Public Offering
On
July 28 and 29, 2016, we sold an aggregate of 1,270,156 shares of our common stock in a public offering, or the “Public
Offering,” at an offering price of $5.50 per share, pursuant to our registration statement on Form S-1 (File No. 333-210669).
The sale generated gross proceeds of $6,985,858 and net proceeds of $6,084,831 after deducting commissions and other offering
expenses. In connection with sale of the shares, our common stock was approved for listing on NASDAQ.
Network
1 Financial Services, Inc., or “Network 1,” acted as selling agent for the Public Offering, on a “best efforts”
basis, pursuant to a selling agent agreement with us dated July 15, 2016. Alexander Capital acted as a selected dealer for the
selling agent. The shares were sold in the Public Offering pursuant to a subscription agreement between us and each investor in
the Public Offering.
As
part of Network 1’s compensation for the sale of the shares in the Public Offering, we issued to Network 1 and its designees
warrants to purchase an aggregate of 31,754 shares of our common stock. The warrants will be exercisable for cash or on a cashless
basis at an exercise price of $6.875 per share, commencing on January 14, 2017 and expiring on July 14, 2021. The exercise price
and number of shares issuable upon exercise of the warrants may be adjusted in certain circumstances including in the event of
a stock dividend, stock split or our recapitalization, reorganization, merger or consolidation.
Recapitalization
In
connection with the sale of the shares in the Public Offering, we completed a recapitalization with Brentwood, or the “Recapitalization.”
Brentwood is our lender under that certain Credit and Security Agreement, or the “Credit Agreement,” dated as of November
23, 2015 and amended as of January 10, 2016 and April 8, 2016, by and among us, LIBB and Brentwood (as successor in interest to
Brentwood LIIT, Inc.). The Credit Agreement provides for a revolving credit facility. The loans made by Brentwood under the credit
facility are evidenced by a secured convertible promissory note, or the “Brentwood Note,” which is convertible into
shares of our common stock at a conversion price of $4.00 per share. In addition, in connection with the establishment of the
credit facility, the Company issued to Brentwood a warrant, or the “Brentwood Warrant,” to purchase 1,111,111 shares
of our common stock, at an exercise price of $4.50 per share, expiring on November 23, 2018. Pursuant to the Recapitalization,
all of the outstanding principal and interest under the Brentwood Note was converted into 421,972 shares of our common stock and
the Brentwood Warrant was exchanged for 486,111 shares of our common stock. We may continue to request advances under the credit
facility subject to the terms and conditions of the Credit Agreement, except that, in connection with the Recapitalization, the
maximum amount of loans that may be made under the credit facility was reduced to $3,500,000. Brentwood is owned by Eric Watson,
who beneficially owns approximately 18.2% of our outstanding Common Stock, and KA#2 Ltd., which beneficially owns approximately
4.8% of our outstanding Common Stock.
UBS
Credit Line
On
October 27, 2016, we entered into a fully collateralized line of credit with UBS Bank USA. The line of credit has a borrowing
capacity of $1,300,000 and bears interest at a floating rate, depending on the time requested for the borrowing. The interest
is based on the ICE swap rate plus a margin of between 0.40% and 0.70%. As of November 11, 2016, the interest rate on the line
of credit was 3.089%. The line of credit is collateralized by certain of our short-term investments. As of December 31, 2016,
$1,280,275 was outstanding on the UBS Credit Line.
December
Public Offering
On
December 27, 2016, we sold an aggregate of 406,550 shares of our common stock in an underwritten public offering. The offering
was made under our shelf registration statement on Form S-3 (File No. 333-213874). Network 1 and Dawson James Securities, Inc.,
acted as underwriters for the offering, pursuant to the terms of the underwriting agreement, dated December 21, 2016, between
us and Network 1, as representative of the underwriters. The shares were sold for a price to the public of $4.00 per share, generating
total net proceeds, after underwriting discounts and payment of other offering expenses, of approximately $1.4 million.
Implications
of Being an Emerging Growth Company
We
are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act, or the “JOBS Act.”
As an emerging growth company, we are eligible to take advantage of certain exemptions from various reporting requirements that
are applicable to other public companies that are not emerging growth companies. These include, but are not limited to, not being
required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, or the “Sarbanes-Oxley
Act,” reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and
exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and the requirement to obtain
stockholder approval of any golden parachute payments not previously approved.
In
addition, Section 107 of the JOBS Act provides that an emerging growth company can take advantage of an extended transition period
provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended, or “Securities Act,” for complying with
new or revised accounting standards. We have irrevocably opted not to take advantage of such extended transition period, and will
be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
We
can remain an emerging growth company until December 31, 2020. However, if any of our non-convertible debt issued within a three-year
period or our total revenues exceed $1 billion or the market value of our shares of common stock that are held by non-affiliates
exceeds $700 million on the last day of the second fiscal quarter of any given fiscal year, we would cease to be an emerging growth
company as of the following fiscal year.
Corporate
Information
We
were incorporated on December 23, 2014 in the State of Delaware as a wholly owned subsidiary of Cullen.
On
May 27, 2015, we closed the business combination, or the “Business Combination,” contemplated by the Agreement and
Plan of Reorganization, or the “Merger Agreement,” dated as of December 31, 2014 and amended as of April 23, 2015,
by and among Cullen, us, Cullen Merger Sub, Inc., LIBB Acquisition Sub, LLC, LIBB, Philip Thomas and Thomas Panza, who formerly
owned a majority of the outstanding membership units of LIBB, and the other former members of LIBB executing a joinder thereto.
Pursuant to the Merger Agreement, (i) Cullen Merger Sub, Inc. merged with and into Cullen, with Cullen surviving as a wholly owned
subsidiary of ours and the stockholders of Cullen receiving one share of our common stock for every 15 shares of Cullen common
stock held by them and (ii) LIBB Acquisition Sub, LLC merged with and into LIBB, with LIBB surviving as a wholly owned subsidiary
of ours and the members of LIBB receiving an aggregate of 2,633,334 shares of our common stock.
Upon
the closing of the Business Combination, we became the new public company, Cullen and LIBB became wholly-owned subsidiaries of
ours and the stockholders of Cullen and the members of LIBB became our stockholders. In addition, the historical financial statements
of LIBB became our financial statements. As a result of the Business Combination, the business of LIBB became our business. Cullen
is currently inactive and no significant operations are being undertaken by it as of the date of this prospectus. LIBB was formed
as a limited liability company under the laws of New York on February 18, 2011.
Our
principal executive offices are located at 116 Charlotte Avenue, Hicksville, NY 11801. Our telephone number is (855) 542-2832.
Our website address is www.longislandicedtea.com. The information contained on, or accessible from, our corporate website is not
part of this prospectus and you should not consider information contained on our website to be a part of this prospectus or in
deciding whether to purchase our common stock.
The
Offering
Common
stock to be offered by the selling stockholders
|
|
4,348,889
|
|
|
|
Background
of the offering
|
|
The
shares offered hereby consist of (i) 2,633,334 shares issued to the former members of LIBB in connection with the Business
Combination, (ii) 12,000 shares held by certain of the founders of our predecessor, (iii) 359,475 shares sold to investors
in private placements conducted by us between August 2015 and March 2016, and 404,475 shares underlying the warrants issued
to such investors, (iv) 908,083 shares issued to Brentwood in connection with the Recapitalization, and (v) 31,522
shares underlying the warrants issued to Network 1 and its designees as compensation for acting as the placement agent for
the Public Offering. See “
Selling Stockholders
” beginning on page 21 of this prospectus.
|
|
|
|
Use
of proceeds
|
|
All
the shares sold under this prospectus will be sold or otherwise disposed of for the account of the selling stockholders, or
their pledgees, assignees or successors-in-interest. We will not receive any of the proceeds from the sale or other disposition
of the shares by the selling stockholders. To the extent the warrants described above are exercised for cash, however, we
will receive up to an aggregate of $2,643,564 in gross proceeds. We expect to use proceeds received from the exercise
of the warrants, if any, for general corporate purposes, including working capital, sales and marketing activities, product
development, general and administrative matters, capital expenditures and acquisitions. See “
Use of Proceeds
”
beginning on page 21 of this prospectus.
|
|
|
|
NASDAQ
symbol
|
|
LTEA
|
|
|
|
Risk
Factors
|
|
See
“
Risk Factors
” beginning on page 9 of this prospectus and the other information included in or incorporated
by reference into this prospectus for a discussion of the factors you should consider before making an investment decision.
|
RISK
FACTORS
Any
investment in our securities involves a high degree of risk. Potential investors are urged to read and consider the risks and
uncertainties relating to an investment in our company set forth below and included in or incorporated by reference into this
prospectus. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect
our business and results of operations. If any of these risks actually occur, our business, financial condition or results of
operations could be seriously harmed. In that event, the market price for our common stock could decline and you may lose all
or part of your investment.
Risks
Related to Our Business
We
operate in highly competitive markets, which could negatively affect our sales.
Our
industry is highly competitive. We compete with multinational corporations with significant financial resources, including Dr
Pepper Snapple Group, Inc. and Arizona Beverage Company. These competitors can use their resources and scale to rapidly respond
to competitive pressures and changes in consumer preferences by introducing new products, reducing prices or increasing promotional
activities. We also compete against a variety of smaller, regional and private label manufacturers. Smaller companies may be more
innovative, better able to bring new products to market and better able to quickly exploit and serve niche markets. Our inability
to compete effectively could result in a decline in our sales. We are subject to competition from companies, including from some
of our customers, that either currently manufacture or are developing products directly in competition with our products. These
generic or store-branded products may be a less expensive option for consumers than our products making it more difficult to sell
our product. As a result, we may have to reduce our prices or increase our spending on marketing, advertising and product innovation.
Any of these could negatively affect our business and financial performance.
We
may not effectively respond to changing consumer preferences, trends, health concerns and other factors. If we do not effectively
anticipate these trends, then quickly develop new products, our sales could suffer.
Consumers’
preferences can change due to a variety of factors, including aging of the population, social trends, negative publicity, economic
downturn or other factors. If we do not effectively anticipate these trends and changing consumer preferences, then quickly develop
new products in response, our sales could suffer. Developing and launching new products can be risky and expensive. We may not
be successful in responding to changing markets and consumer preferences, and some of our competitors may be better able to respond
to these changes, either of which could negatively affect our business and financial performance.
Costs
for our raw materials may increase substantially, which could negatively affect our financial performance.
The
principal raw materials we use in our business are bottles, caps, labels, packaging materials, tea essence and tea base, sugar,
natural flavors and other sweeteners, juice, electricity, fuel and water. The cost of the raw materials can fluctuate substantially.
We may not be able to pass along any increases in such costs to our customers or consumers, which could negatively affect our
business and financial performance. We presently do not mitigate our exposure to volatility in the prices of raw materials through
the use of forward contracts, pricing agreements or other hedging arrangements.
Certain
raw materials we use are available only from a limited number of suppliers. In the event our suppliers are unable or unwilling
to meet our requirements, we could suffer shortages or substantial cost increases.
Most
of the raw materials we use are available from only a few suppliers. If these suppliers are unable or unwilling to meet our requirements,
we could suffer shortages or substantial cost increases. Changing suppliers can require long lead times. The failure of our suppliers
to meet our needs could occur for many reasons, including fires, natural disasters, weather, manufacturing problems, disease,
crop failure, strikes, transportation interruption, government regulation, political instability and terrorism. A failure of supply
could also occur due to suppliers’ financial difficulties, including bankruptcy. Any significant interruption to supply
or cost increase could substantially harm our business and financial performance.
Substantial
disruption to production at our third party beverage co-packing facilities and our storage facilities could occur, which could
disrupt or delay our production or cause us to incur substantially higher costs.
Our
products are currently produced by three established co-packing companies. A disruption in our production at, or our relationships
with, our third party beverage co-packing facilities could have a material adverse effect on our business. In addition, a disruption
could occur at any of our storage facilities or those of our suppliers, co-packers or distributors. The disruption could occur
for many reasons, including fire, natural disasters, weather, manufacturing problems, disease, strikes, transportation interruption,
government regulation or terrorism. Alternative facilities with sufficient capacity or capabilities may not be available, may
cost substantially more or may take a significant time to start production, each of which could negatively affect our business
and financial performance.
We
rely, in part, on our third party beverage co-packing facilities to maintain the quality of our products. The failure or inability
of this co-manufacturer to comply with the specifications and requirements of our products could result in product recall and
could adversely affect our reputation.
We
take great care in ensuring the quality and safety in the manufacture of our products. Our third-party co-manufacturer is required
to maintain the quality of our products and to comply with our product specifications and requirements for certain certifications.
Our third-party co-manufacturer is also required to comply with Food and Drug Administration requirements for manufacturing of
our product. However, our products could still otherwise become contaminated. A contamination could occur in our operations or
those of our bottlers, distributors or suppliers. This could result in expensive production interruptions, recalls and liability
claims. Moreover, negative publicity could be generated from false, unfounded or nominal liability claims or limited recalls.
Any of these failures or occurrences could negatively affect our business and financial performance.
We
may be subject to litigation. The cost of defending against such litigation and the negative publicity related to such litigation
may adversely affect our business, financial condition and results of operations.
From
time to time in the normal course of our business operations, we may become subject to litigation that may result in liability
or negatively affect our operating results. The cost to defend such litigation may be significant and may require a diversion
of our resources. There also may be adverse publicity associated with litigation that could negatively affect customer perception
of our business, regardless of whether the allegations are valid or whether we are ultimately found liable. As a result, litigation
may adversely affect our business, financial condition and results of operations. For more information, see the item “
Legal
Proceedings
” in our quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2016.
Fluctuations
in our results of operations from quarter to quarter could have a disproportionate effect on our overall financial condition and
results of operations.
We
experience seasonal fluctuations in revenues and operating income. Historically, sales during the second and third fiscal quarters
have generally been the highest. Any factors that harm our second or third quarter operating results, including adverse weather
or unfavorable economic conditions, could have a disproportionate effect on our results of operations for the entire fiscal year.
Unusually cool weather during the summer months may result in reduced demand for our products and have a negative effect on our
business and financial performance.
In
order to prepare for our peak selling season, we must produce and keep in stock more inventory than we would carry at other times
of the year. Any unanticipated decrease in demand for our products during our peak selling season could require us to sell excess
inventory at a substantial markdown, which could reduce our net sales and gross profit.
Current
global economic conditions may adversely affect our industry, business and result of operations.
Disruptions
in the current global credit and financial markets in the past several years have included diminished liquidity and credit availability,
a decline in consumer confidence, a decline in economic growth, an increased unemployment rate and uncertainty about economic
stability. While certain of these negative trends have reversed in recent years, there can be no assurance that there will not
be renewed deterioration in credit and financial markets and confidence in economic conditions. These economic uncertainties affect
businesses such as ours in a number of ways, making it difficult to accurately forecast and plan our future business activities.
Any adverse global economic conditions and tightening of credit in financial markets may lead consumers to postpone spending,
which may cause our customers to cancel, decrease or delay their existing and future orders with us. In addition, financial difficulties
experienced by our suppliers, manufacturers, distributors or customers could result in product delays, increased accounts receivable
defaults and inventory challenges. We are unable to predict the likely duration and severity of disruptions in the credit and
financial markets and adverse global economic conditions.
We
depend on a small number of large retailers for a significant portion of our sales. Our sales growth is dependent upon maintaining
our relationships with existing customers and the loss of any one such customer could materially adversely affect our business
and financial performance.
Certain
retailers that we service primarily through our distributors make up a significant percentage of our products’ retail volume,
including volume sold by our bottlers and distributors. We also sell directly to certain retail accounts and to the distribution
facilities of such retailers. Some retailers also offer their own private label products that compete with some of our brands.
For the nine months ended September 30, 2016, our top three customers, Seeba Distribution, Garden Foods and Wakefern
Food Corp., accounted for 13%, 12% and 10% of our net sales, respectively. For the year ended December 31, 2015, one
customer, Wakefern Food Corp., accounted for 10% of net sales. For the year ended December 31, 2014, our top three customers,
Costco Wholesale, Windmill Distributing, and CFG Distributors LLC, accounted for 32%, 16% and 14%, of net sales, respectively.
The loss of sales of any of our products in a major retailer could have a material adverse effect on our business and financial
performance.
Food
and beverage retailers in the U.S. have been consolidating which may reduce our ability to increase both our revenue and our gross
margins.
Consolidation
has resulted in large, sophisticated retailers with increased buying power. They are in a better position to resist our price
increases and demand lower prices. They also have leverage to require us to provide larger, more tailored promotional and product
delivery programs. If we, and our bottlers and distributors, do not successfully provide appropriate marketing, product, packaging,
pricing and service to these retailers, our product availability, sales and margins could suffer.
We
do not have any contracts with our customers that require the purchase of a minimum amount of our products. The absence of such
contracts could result in periods during which we must continue to pay costs and service indebtedness with reduced sales.
Our
customers do not provide us with firm, long-term or short-term volume purchase commitments. As a result of the absence of such
contracts, we could have periods during which we have no or limited orders for our products, but we will continue to have to pay
our costs, including those to maintain our work force and service our indebtedness with reduced sales. We cannot assure you that
we will be able to timely find new customers to supplement periods where we experience no or limited purchase orders or that we
can recover fixed costs as a result of experiencing reduced purchase orders. Periods of no or limited purchase orders for our
products could have a material adverse effect on our net income and cause us to incur losses. Conversely, we may experience unanticipated
increased orders for our products from these customers that can create supply chain problems and may result in orders we may be
unable to meet. Unanticipated fluctuations in product requirements by our customers could result in fluctuations in our results
from quarter to quarter.
We
have developed a gallon product line in which our gross margins are minimal, and therefore may not generate sufficient revenues
or other benefits to justify its introduction. In addition, the gallon product line may divert sales from our higher margin 20
ounce product line, which would adversely affect our business.
In
May 2015, we developed a gallon product line featuring five of our existing flavors. Our gross margins on this product line are
minimal. Accordingly, this product line may not generate sufficient revenues or other benefits to justify its introduction. In
addition, to the extent distributors choose to carry the gallon product line instead of our higher margin 20 ounce product line,
it may negatively affect our operating results, specifically our gross margin. Although we believe the gallon size has a different
function and manner of consumption, consumers may choose to purchase the gallon size instead of the 20 ounce size, because the
gallon size offers a better per ounce value. This would result in an overall lower gross margin for our business.
We
do not have registered ownership of certain of our trade names and our intellectual property rights could be infringed or we could
infringe the intellectual property rights of others, and adverse events regarding licensed intellectual property, including termination
of distribution rights, could harm our business.
We
possess intellectual property that is important to our business. This intellectual property includes our logo, trademarks for
“Long Island Iced Tea” and “The Original Long Island Brand,” various other trademarks, copyrights, patents,
ingredient formulas, business processes and other trade secrets. However, we do not currently have registered ownership of the
trademark “The Original Long Island Brand” and do not have registered ownership on the principal register of the trademark
“Long Island Iced Tea” as described below. We and third parties, including competitors, could come into conflict over
intellectual property rights. Litigation could disrupt our business, divert management attention and cost a substantial amount
to protect our rights or defend ourselves against claims. We cannot be certain that the steps we take to protect our rights will
be sufficient or that others will not infringe or misappropriate our rights. Our business is also highly dependent upon our distribution
rights. If we are unable to protect our intellectual property rights, including the right to our trade name and logo, our brands,
products and business could be harmed and could have a material adverse effect on our business and financial performance.
On
April 19, 2016, the United States Patent and Trademark Officer, or the “USPTO,” registered our mark “Long Island
Iced Tea” (Registration No. 4,943,056) on the supplemental register. Registration on the supplemental register allows the
use of the “®” symbol, blocks later filed applications for confusingly similar marks, and allows us to sue infringers
in federal court, which has well-settled case law and standards. Notwithstanding the foregoing, the supplemental register does
not provide all the protection of a registration on the principal register. As with any other registered mark, we may be open
to claims of others contesting the trademark.
In
addition, we have filed trademark applications for “The Original Long Island Brand” as a standard character mark and
as a stylized mark, which applications are pending review by the USPTO. The applications are for use of the trademarks with iced
tea, tea based products, juices, water, beverages and other similar products. We also plan to file for stylized marks protecting
certain other tag lines and product designs. With respect to the pending trademark applications for “The Original Long Island
Brand” (standard character mark and stylized mark), the USPTO has made an initial determination that both marks are geographically
descriptive. This determination is refutable and the USPTO has afforded us the opportunity to produce evidence to establish that
the marks have become distinctive of the goods in commerce. There can be no assurance that the USPTO will approve these applications.
If
we incur substantial debt, it could adversely affect our liquidity and results of operations.
As
of December 31 , 2016, we had approximately $1,387,532 of total indebtedness , consisting principally of a draw
of $1,280,275 on a fully collateralized line of credit that we maintain .
In addition, we may obtain up to a maximum of $3,500,000 in advances under the Credit Agreement, subject to the terms and conditions
of the Credit Agreement, including a requirement that we obtain prior approval of Brentwood for each advance. While our
existing level of debt is not substantial and we may pay interest that accrues on any future loans under the Credit Agreement
by capitalizing the interest and adding it to the principal balance of such loans, we may incur significant indebtedness in the
future, including through advances under the Credit Agreement, and we may not be able to generate sufficient cash to service such
debt as cash payments become due. If new debt and/or new credit sources are added to our existing debt and credit sources, the
related risks for us could intensify.
If
we incur substantial debt, it could have important consequences. In particular, it could:
|
●
|
require
us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the
availability of our cash flow to fund capital expenditures and other general corporate purposes;
|
|
|
|
|
●
|
limit,
along with the restrictive covenants of our indebtedness, among other things, our ability to borrow additional funds;
|
|
|
|
|
●
|
limit
our flexibility in planning for, or reacting to, changes in our businesses and the industries in which we operate;
|
|
|
|
|
●
|
increase
our vulnerability to general adverse economic and industry conditions; and
|
|
|
|
|
●
|
place
us at a competitive disadvantage compared to our competitors that have less debt.
|
In
addition, if we are unable to make payments as they come due or comply with the restrictions and covenants in the Credit Agreement
or any other agreements governing our indebtedness, there could be a default under the terms of such agreements. In such event,
or if we are otherwise in default under the Credit Agreement or such other agreements, including pursuant to any cross-default
provisions of such agreements, the lenders could terminate their commitments to lend and/or accelerate the loans and declare all
amounts borrowed due and payable. Furthermore, our lenders under the Credit Agreement could foreclose on their security interests
in our assets, including the equity interests in our material subsidiaries. If any of those events occur, our assets might not
be sufficient to repay in full all of our outstanding indebtedness and we may be unable to find alternative financing. Even if
we could obtain alternative financing, it might not be on terms that are favorable or acceptable to us. Additionally, we may not
be able to amend the Credit Agreement or obtain needed waivers on satisfactory terms or without incurring substantial costs. Failure
to maintain existing or secure new financing could have a material adverse effect on our liquidity and financial position.
The
loss of the services of our key personnel could negatively affect our business, as could our inability to attract and retain qualified
management, sales and technical personnel as and when needed.
The
execution of our business strategy depends largely on the continued efforts of our executive management, including Julian Davidson
(our Executive Chairman), Philip Thomas (co-founder of LIBB and our Chief Executive Officer), Richard Allen (our Chief Financial
Officer) and Peter Dydensborg (our Chief Operating Officer). We are also dependent on the efforts of Joe Caramele, our Vice President
of National Sales & Marketing, whose skills, knowledge and contacts would be difficult to replace. As we have a limited operating
history, we are highly dependent upon these individuals’ knowledge, experience and reputation within the industry. Any or
all of these individuals may in the future choose to discontinue their employment with us. If so, we may not be able to find adequate
replacements for them. Without their experience, expertise and reputation, our development efforts and future prospects would
be substantially impaired. We have employment agreements in place with these individuals that include non-competition provisions.
We
may not comply with applicable government laws and regulations, and they could change. Any violations could result in reputational
damage or substantial penalties, and any changes could result in increased compliance costs.
We
are subject to a variety of federal, state and local laws and regulations in the U.S., and other countries in which we do business.
These laws and regulations apply to many aspects of our business including the manufacture, safety, labeling, transportation,
advertising and sale of our products. Violations of these laws or regulations could damage our reputation and/or result in regulatory
actions with substantial penalties. In addition, any significant change in such laws or regulations or their interpretation, or
the introduction of higher standards or more stringent laws or regulations could result in increased compliance costs or capital
expenditures. For example, changes in recycling and bottle deposit laws or special taxes on soft drinks or ingredients could increase
our costs. Regulatory focus on the health, safety and marketing of food products is increasing. Certain state warning and labeling
laws, such as California’s “Prop 65,” which requires warnings on any product with substances that the state
lists as potentially causing cancer or birth defects, could become applicable to our products. Some local and regional governments
and school boards have enacted, or have proposed to enact, regulations restricting the sale of certain types of soft drinks in
schools. Any violations or changes of regulations could have a material adverse effect on our profitability, or disrupt the production
or distribution of our products, and negatively affect our business and financial performance.
Our
ability to grow and compete in the future will be adversely affected if adequate capital is not available to us or not available
on terms favorable to us.
The
ability of our business to grow and compete depends on the availability of adequate capital. We currently have negative cash flows
from operations due in part to substantial marketing and promotional related expenses as well as our payroll expense. While we
expect that the proceeds of this offering will be sufficient to meet our working capital needs for the next 12 months, we may
require additional capital in the future to finance our growth strategy or for other purposes. In such event, we cannot assure
you that we will be able to obtain equity or debt financing on acceptable terms or at all. As a result, we cannot assure you that
adequate capital will be available to finance our current growth plans, take advantage of business opportunities or respond to
competitive pressures, any of which could harm our business.
We
have a limited operating history and history of operating losses, and there is no guarantee that we will achieve profitability.
We
have a limited operating history and a history of operating losses. There is no guarantee that we will become a profitable business.
Further, our future operating results depend upon a number of factors, including our ability to manage our growth, retain our
customer base and to successfully identify and respond to emerging trends in our market areas.
While
we currently produce only non-alcoholic beverages, we are exploring entry into the alcoholic beverage industry. To the extent
that we expand our operations into new sectors of the beverage industry, our business operations may suffer from a lack of experience,
significant costs of entry and the competitive conditions in the market, among other factors, which could materially and adversely
affect our business, financial condition, results of operations and cash flows.
We
are exploring entry into the alcoholic beverage industry. As we principally have been engaged in the production of NARTD teas,
we have limited experience with developing, producing, marketing and distributing alcoholic beverages. Additionally, we will be
exposed to significant operating costs associated with developing new products and entering a new sector of the beverage industry
and will face new regulatory burdens, which could have an adverse impact on our business as well as place us at a disadvantage
relative to more established alcoholic beverage market participants. Furthermore, the alcoholic beverage industry is highly competitive.
We will compete with multinational corporations with significant financial resources. These competitors can use their resources
and scale to rapidly respond to competitive pressures and changes in consumer preferences by introducing new products, reducing
prices or increasing promotional activities. In addition:
|
●
|
We
may not be able to adequately distinguish our alcohol products from our non-alcohol products. Our inability to create the
proper differentiation could result in customer confusion and could have adverse regulatory consequences.
|
|
|
|
|
●
|
We
may not be able establish the proper infrastructure to support the supply chain from the manufacturing of the product to the
ultimate purchase by the end consumer.
|
As
a result of the foregoing factors, we may be unsuccessful in expanding our business to include alcoholic beverages. Furthermore,
attempting such an expansion will require a substantial investment of resources and management time, which could materially adversely
affect our more established non-alcoholic beverage business as well. Accordingly, we can offer no assurance that if we expand
our business beyond NARTD teas, we will be able to effectively develop, produce, market and distribute such beverages. Such failure
could materially and adversely affect our business, financial condition, results of operations and cash flows.
Risks
Related to this Offering and an Investment in Our Common Stock
We
do not intend to pay cash dividends on our common stock in the foreseeable future.
We
have not paid any cash dividends on our common stock to date. Any future decisions regarding dividends will be made by our board
of directors. We do not anticipate paying dividends in the foreseeable future, but expect to retain earnings to finance the growth
of our business. Therefore, any return on investments will only occur if the market price of our common stock appreciates.
A
robust public market for our common stock may not develop or be sustained, which could affect your ability to sell our common
stock or depress the market price of our common stock.
Our
common stock is listed on NASDAQ, but we cannot assure you that our common stock will continue to trade on this market or another
national securities exchange. In addition, we are unable to predict whether an active trading market for our common stock will
develop or will be sustained.
The
trading price and trading volume of our common stock may be volatile.
The
price and volume of our common stock may be volatile and subject to fluctuations. Our stock has traded at a low of $3.73
to a high of $12.55 in 2016. Some of the factors that could cause fluctuations in the stock price or trading volume of our common
stock include:
|
●
|
general
market and economic conditions and market trends, including in the beverage industry and the financial markets generally;
|
|
|
|
|
●
|
the
political, economic and social situation in the U.S.;
|
|
|
|
|
●
|
actual
or expected variations in operating results;
|
|
|
|
|
●
|
announcements
by us or our competitors of significant acquisitions, strategic partnerships, joint ventures, capital commitments, or other
business developments;
|
|
|
|
|
●
|
adoption
of new accounting standards affecting the industry in which we operate;
|
|
|
|
|
●
|
operations
and stock performance of competitors;
|
|
|
|
|
●
|
litigation
or governmental action involving or affecting us or our subsidiaries;
|
|
|
|
|
●
|
recruitment
or departure of key personnel;
|
|
|
|
|
●
|
purchase
or sales of blocks of our common stock; and
|
|
|
|
|
●
|
operating
and stock performance of the companies that investors may consider to be comparable.
|
There
can be no assurance that the price of our common stock will not fluctuate or decline significantly. The stock market in recent
years has experienced considerable price and volume fluctuations that have often been unrelated or disproportionate to the operating
performance of individual companies and that could materially adversely affect the price of our common stock, regardless of our
operating performance. You should also be aware that price volatility might be worse if the trading volume of shares of our common
stock is low, as it historically has been.
Our
outstanding warrants and options will increase the number of shares outstanding and available for sale in the public markets,
which may have an adverse effect on the market price of our common stock.
We
presently have outstanding (i) employee stock options to purchase 646,278 shares of common stock at a weighted average
exercise price of $4.95 per share held by certain of our executive officers and employees , (ii) warrants to
purchase up to 404,475 shares of common stock at an exercise price of $6.00 per share that were issued in the private placements
described herein, (iii) warrants to purchase up to 34,573 shares of common stock at an exercise price of $4.50 per share that
were issued to Network 1 and its designees as compensation for acting as the placement agent for such private placements, and
(iv) warrants to purchase up to 31,522 shares of common stock at an exercise price of $4.50 per share that were issued
to Network 1 and its designees as compensation for acting as the placement agent for the Public Offering . In addition,
if we raise $3,000,000 in gross proceeds from the sale of our equity securities, our Executive Chairman will be eligible
to receive a grant of 15,000 shares of common stock and an employee stock option to purchase an additional 71,686 shares of common
stock at an exercise price equal to the market price on the date of grant. If and to the extent these warrants and options are
exercised, you may experience dilution to your holdings and/or it may have an adverse effect on the market price of our common
stock. The market price of our common stock also may be adversely affected, if and to the extent the shares registered for resale
pursuant to this prospectus are sold in the public markets.
The
substantial number of shares that are eligible for sale pursuant to this prospectus could cause the market price for our common
stock to decline or make it difficult for us to sell equity securities in the future.
The
selling stockholders are offering 4,348,889 shares of our common stock for resale pursuant to this prospectus. Expectations
that shares of our common stock may be sold by the selling stockholders could create an “overhang” that may adversely
affect the market price for our common stock.
We
cannot predict the effect on the market price of our common stock from time to time as a result of (i) sales by the selling stockholders
of some or all of the 4,348,889 shares of our common stock under this prospectus, (ii) the availability of such shares
of common stock for sale by the selling stockholders, or (iii) the perception that such shares may be offered for sale by the
selling stockholders. Sales of substantial amounts of shares of our common stock in the public market, or the perception that
those sales will occur, could cause the market price of our common stock to decline or make future offerings of our equity securities
more difficult. Any sale, or perceived impending sale, of a substantial number of shares of our common stock could cause our stock
price to fluctuate or decline.
We
have the ability to issue additional shares of common stock and “blank check” preferred stock, which could affect
the rights of holders of the common stock.
Our
amended and restated certificate of incorporation allows our board of directors to issue 35,000,000 shares of common stock and
1,000,000 shares of preferred stock and to set the terms of such preferred stock. We have 26,124,091 authorized but unissued
shares of common stock available for issuance after appropriate reservation for our outstanding options and warrants. The issuance
of additional common stock may dilute the economic and voting rights of our existing stockholders. In addition, the terms of such
preferred stock may materially adversely impact the dividend and liquidation rights of holders of the common stock.
Provisions
in our amended and restated certificate of incorporation and Delaware law may inhibit a takeover of us, which could limit the
price investors might be willing to pay in the future for our common stock and could entrench management.
Our
charter contains provisions that may discourage unsolicited takeover proposals that stockholders may consider to be in their best
interests. These provisions include a staggered board of directors and the ability of the board of directors to designate the
terms of and issue new series of preferred stock. We are also subject to anti-takeover provisions under Delaware law, which could
delay or prevent a change of control. Together, these provisions may make more difficult the removal of management and may discourage
transactions that otherwise could involve payment of a premium over prevailing market prices for our securities.
Our
senior executive officers and directors may not be able to successfully manage a publicly traded company.
Not
all of our senior executive officers or directors have extensive experience managing a publicly traded company, and they may not
be successful in doing so. The demands of managing a publicly traded company, like ours, is much greater as compared to those
of a private company, and some of our senior executive officers and directors may not be able to successfully meet those increased
demands.
We
are an “emerging growth company” and we cannot be certain if the reduced disclosure requirements applicable to emerging
growth companies will make our common shares less attractive to investors.
We
are an “emerging growth company” as defined in the JOBS Act, and we may take advantage of certain exemptions from
various reporting requirements that are applicable to other public companies. These exemptions include not being required to comply
with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive
compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory
vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. Investors may
find our common stock less attractive because we rely, or may rely, on these exemptions. If some investors find our common stock
less attractive as a result, the price of our common stock may be reduced, there may be a less active trading market for our common
stock and the price of our common stock may be more volatile.
In
addition, under the JOBS Act, “emerging growth companies” can delay adopting new or revised accounting standards until
such time as those standards apply to private companies. We have irrevocably elected not to avail ourselves of this exemption
from new or revised accounting standards and, therefore, we will be subject to the same new or revised accounting standards as
other public companies that are not “emerging growth companies.”
We
could remain an “emerging growth company” until December 31, 2020, although a variety of circumstances could cause
us to lose that status earlier. For as long as we take advantage of the reduced reporting obligations, the information that we
provide stockholders may be different from information provided by other public companies.
Obligations
associated with being a public company require significant company resources and management attention, which may have a material
adverse effect on our financial condition and results of operations.
We
are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, or the “Exchange Act,”
and the other rules and regulations of the SEC, including the Sarbanes-Oxley Act. The Exchange Act requires, among other things,
that we file annual, quarterly and current reports with respect to our business and financial condition and the Sarbanes-Oxley
Act requires, among other things, that we maintain effective disclosure controls and procedures and internal control over financial
reporting. These reporting and other obligations place significant demands on our management, administrative, operational and
accounting resources, make certain activities more time-consuming and cause us to incur significant legal, accounting and other
expenses. In order to comply with these obligations, we may need to upgrade our systems or create new systems, implement additional
financial and management controls, reporting systems and procedures, expand or outsource our internal audit function, and hire
additional accounting and finance staff. Because our resources are limited compared to many public companies, these requirement
may impose a disproportionate financial burden on us. Furthermore, our limited management resources may exacerbate the difficulties
in complying with these reporting and other requirements and prevent us from focusing on executing our business strategy. In addition,
if we are unable to comply with the financial reporting requirements and other rules that apply to reporting companies, the market
price of our common stock could be adversely affected.
As
an “emerging growth company” and a “smaller reporting company” we intend to continue to take advantage
of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging
growth companies” or “smaller reporting companies,” including, but not limited to, not being required to comply
with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive
compensation in our periodic reports and proxy statements and other scaled disclosure requirements, and exemptions from the requirements
of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not
previously approved. In general, we will remain an “emerging growth company” until December 31, 2020, although a variety
of circumstances could cause us to lose that status earlier, and will remain a “smaller reporting company” for each
fiscal year where our public float remains below $75 million as of the last day of the second fiscal quarter of the prior fiscal
year. We intend to take advantage of some or all of these exemptions and reduced reporting requirements until we are no longer
an “emerging growth company” and/or a “smaller reporting company,” at which time, we expect to incur significant
additional expenses and devote substantial management effort toward ensuring compliance with these additional requirements.
NOTE
ON FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference in this prospectus include and will include forward-looking statements
in addition to historical and current information. These forward-looking statements appear and will appear throughout such documents,
including under “
Prospectus Summary
” and “
Risk Factors
” in this prospectus; under the items
“
Business
,” “
Risk Factors
” and “
Management’s Discussion and Analysis of Financial
Condition and Results of Operations
” in our annual report on Form 10-K; and under the items “
Management’s
Discussion and Analysis of Financial Condition and Results of Operations
” and “
Risk Factors
” in our
quarterly reports on Form 10-Q. These forward-looking statements relate to matters such as our industry, business strategy, goals
and expectations concerning our market position, future operations, margins, profitability, capital expenditures, liquidity and
capital resources and other financial and operating information. We may use the words such as “anticipate,” “assume,”
“believe,” “continue,” “could,” “estimate,” “expect,” “intend,”
“may,” “plan,” “potential,” “predict,” “project,” “future,”
“will,” “seek,” “foreseeable” and similar terms and phrases to identify forward-looking statements
in this prospectus.
These
forward-looking statements are based on management’s current expectations and are subject to uncertainty and changes in
circumstances. We cannot assure you that future developments affecting us will be those that we have anticipated. Actual results
may differ materially from these expectations due to changes in global, regional or local economic, business, competitive, market,
regulatory and other factors, many of which are beyond our control. We believe that these factors include those risks and uncertainties
described under “
Risk Factors
” in this prospectus and under the item “
Risk Factors
” in our
annual report on Form 10-K and quarterly reports on Form 10-Q, as well as the following:
|
●
|
We operate in highly
competitive markets.
|
|
|
|
|
●
|
We may not effectively
respond to changing consumer preferences, trends, health concerns and other factors.
|
|
|
|
|
●
|
Costs for our raw
materials may increase substantially.
|
|
|
|
|
●
|
Fluctuations in
our results of operations from quarter to quarter could have a disproportionate effect on our overall financial condition
and results of operations.
|
|
|
|
|
●
|
We depend on a small
number of large retailers for a significant portion of our sales.
|
|
|
|
|
●
|
Our intellectual
property rights could be infringed or we could infringe the intellectual property rights of others, and adverse events regarding
licensed intellectual property, including termination of distribution rights, could harm our business.
|
|
|
|
|
●
|
We have experienced
cash losses from operations and our ability to grow and compete in the future will be adversely affected if adequate capital
is not available to us.
|
|
|
|
|
●
|
Our new product
line has minimal gross margins, may not generate sufficient revenue or other benefits to justify its introduction and may
divert sales from our higher margin existing product lines.
|
|
|
|
|
●
|
We have a limited
operating history.
|
Should
one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, our actual results
may vary in material respects from those projected in these forward-looking statements. Any forward-looking statement made by
us in this prospectus speaks only as of the date of this prospectus. Factors or events that could cause our actual results to
differ may emerge from time to time, and it is not possible for us to predict all of them. We undertake no obligation to publicly
update any forward-looking statement, whether as a result of new information, future developments or otherwise, except as may
be required by any applicable securities laws.
USE
OF PROCEEDS
All
the shares sold under this prospectus will be sold or otherwise disposed of for the account of the selling stockholders, or their
pledgees, assignees or successors-in-interest. We will not receive any of the proceeds from the sale or other disposition of the
shares by the selling stockholders.
To
the extent the warrants described below under “
Selling Stockholders
” are exercised for cash, however, we will
receive up to an aggregate of $2,643,564 in gross proceeds. We expect to use proceeds received from the exercise of the
warrants, if any, for general corporate purposes, including working capital, sales and marketing activities, product development,
general and administrative matters, capital expenditures and acquisitions.
SELLING
STOCKHOLDERS
The
selling stockholders, or their pledgees, assignees or successors-in-interest, are offering for resale, from time to time, up to
an aggregate of 4,348,889 shares of our common stock. The shares offered hereby consist of:
|
●
|
2,633,334 shares
issued to the former members of LIBB, our wholly owned operating subsidiary, in connection with the Business Combination.
|
|
|
|
|
●
|
12,000 shares held
by certain of the founders of our predecessor. These individuals acquired shares from our predecessor prior to the predecessor’s
initial public offering. These shares became shares of Cullen upon consummation of Cullen’s business combination with
the predecessor and became shares of ours upon consummation of the Business Combination.
|
|
|
|
|
●
|
359,475 shares sold
to investors in certain private placements conducted by us, and 404,475 shares underlying the warrants issued to such investors.
The shares (and warrants) were sold (i) in a private placement conducted by us between August 2015 and October 2015, or the
“August Private Placement,” through Network 1, acting as placement agent on a “best efforts” basis,
at a price of $4.00 per share, (ii) in a private placement conducted by us between November 2015 and March 2016, or the “November
Private Placement,” through Network 1, acting as placement agent on a “best efforts” basis, at a price of
$4.00 per share, and (iii) in a private placement conducted in March 2016, without a placement agent, at a price of $4.00
per share. Each warrant entitles the holder to purchase one share of common stock at an exercise price of $6.00 per share.
The warrants issued in the August Private Placement expire on September 17, 2018, the warrants issued in the November Private
Placement expire on November 30, 2018 and the warrants issued in the March Private Placement expire on March 29, 2019.
|
|
|
|
|
●
|
908,083 shares issued
to Brentwood, the lender under our credit facility, in connection with the Recapitalization.
|
|
|
|
|
●
|
31,522
shares underlying
the warrants issued to Network 1 and its designees as compensation for acting as the placement agent for the Public Offering.
Each warrant entitles the holders to purchase one share of common stock at an exercise price of $6.875 per share. The warrants
are exercisable commencing on January 14, 2017 and expire on July 14, 2021.
|
The
table below presents information regarding the selling stockholders, the shares of common stock that they may sell or otherwise
dispose of from time to time under this prospectus and the number of shares and percentage of our outstanding shares of common
stock each of the selling stockholders will own assuming all of the shares covered by this prospectus are sold by the selling
stockholders.
We
do not know when or in what amounts the selling stockholders may sell or otherwise dispose of the shares of common stock covered
hereby. The selling stockholders might not sell or dispose of any or all of the shares covered by this prospectus or may sell
or dispose of some or all of the shares other than pursuant to this prospectus. Because the selling stockholders may not sell
or otherwise dispose of some or all of the shares covered by this prospectus and because there are currently no agreements, arrangements
or understandings with respect to the sale or other disposition of any of the shares, we cannot estimate the number of shares
that will be held by the selling stockholders after completion of the offering. However, for purposes of this table, we have assumed
that all of the shares of common stock covered by this prospectus will be sold by the selling stockholders.
|
|
Beneficial
Ownership
|
|
|
Shares
|
|
|
Beneficial
Ownership
|
|
|
|
Before
Offering (1)
|
|
|
Offered
|
|
|
After
Offering
|
|
Selling
Stockholder
|
|
Shares
|
|
|
Percent
|
|
|
Hereby
|
|
|
Shares
|
|
|
Percent
|
|
Andrew Barash
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Andrew C. Stranberg
|
|
|
160,124
|
|
|
|
2.1
|
%
|
|
|
50,000
|
|
|
|
110,124
|
|
|
|
1.4
|
%
|
Andrew McNeel
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Andria Panza
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Bass Properties LLC(2)
|
|
|
119,361
|
|
|
|
1.5
|
%
|
|
|
119,361
|
|
|
|
–
|
|
|
|
*
|
|
Brad J. Maag
|
|
|
3,750
|
|
|
|
*
|
|
|
|
3,750
|
|
|
|
–
|
|
|
|
*
|
|
Bradley Investment Trust (3)
|
|
|
50,000
|
|
|
|
*
|
|
|
|
50,000
|
|
|
|
–
|
|
|
|
*
|
|
Brent W. Bost
|
|
|
4,100
|
|
|
|
*
|
|
|
|
4,100
|
|
|
|
–
|
|
|
|
*
|
|
Carolanne Thomas
|
|
|
7,500
|
|
|
|
*
|
|
|
|
2,500
|
|
|
|
5,000
|
|
|
|
*
|
|
Charles Collins (4)
|
|
|
10,000
|
|
|
|
*
|
|
|
|
10,000
|
|
|
|
–
|
|
|
|
*
|
|
Charles Wyatt
|
|
|
20,000
|
|
|
|
*
|
|
|
|
20,000
|
|
|
|
–
|
|
|
|
*
|
|
Chris A. Schermacher
|
|
|
3,750
|
|
|
|
*
|
|
|
|
3,750
|
|
|
|
–
|
|
|
|
*
|
|
Christopher
Carlin(5)
|
|
|
6,698
|
|
|
|
*
|
|
|
|
6,698
|
|
|
|
–
|
|
|
|
*
|
|
Clarence Edward White, Jr.
|
|
|
10,000
|
|
|
|
*
|
|
|
|
10,000
|
|
|
|
–
|
|
|
|
*
|
|
Cletus Duling
|
|
|
7,500
|
|
|
|
*
|
|
|
|
7,500
|
|
|
|
–
|
|
|
|
*
|
|
Cletus Miller
|
|
|
3,750
|
|
|
|
*
|
|
|
|
3,750
|
|
|
|
–
|
|
|
|
*
|
|
Cleve Hutchins
|
|
|
2,500
|
|
|
|
*
|
|
|
|
2,500
|
|
|
|
–
|
|
|
|
*
|
|
Damon Testaverde(5)
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Domenick Salvemini
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Donato P. Regina
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
J. Coffy Pieternelle (6)
|
|
|
8,000
|
|
|
|
*
|
|
|
|
8,000
|
|
|
|
–
|
|
|
|
*
|
|
Ed Brin
|
|
|
11,500
|
|
|
|
*
|
|
|
|
11,500
|
|
|
|
–
|
|
|
|
*
|
|
Edward Hanson (7)
|
|
|
38,016
|
|
|
|
*
|
|
|
|
4,000
|
|
|
|
34,016
|
|
|
|
*
|
|
Eric Watson (8)
|
|
|
1,317,821
|
|
|
|
17.0
|
%
|
|
|
563,466
|
|
|
|
754,355
|
|
|
|
9.8
|
%
|
Floyd Broman & Carol Broman
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Frank Mortimer & Sharon Nelson
|
|
|
40,000
|
|
|
|
*
|
|
|
|
40,000
|
|
|
|
–
|
|
|
|
*
|
|
Gamco Properties LP
|
|
|
12,500
|
|
|
|
*
|
|
|
|
12,500
|
|
|
|
–
|
|
|
|
*
|
|
Gamevest LP
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Gammed LLC
|
|
|
10,000
|
|
|
|
*
|
|
|
|
10,000
|
|
|
|
–
|
|
|
|
*
|
|
Gary M. Cantara
|
|
|
9,900
|
|
|
|
*
|
|
|
|
9,900
|
|
|
|
–
|
|
|
|
*
|
|
Glen Halvorsen
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Gregory Ferraro
|
|
|
2,404
|
|
|
|
*
|
|
|
|
2,404
|
|
|
|
–
|
|
|
|
*
|
|
Gregory James Gleason
|
|
|
7,500
|
|
|
|
*
|
|
|
|
7,500
|
|
|
|
–
|
|
|
|
*
|
|
Hans Peter Dydensborg (9)
|
|
|
67,026
|
|
|
|
*
|
|
|
|
15,692
|
|
|
|
51,334
|
|
|
|
*
|
|
Ironbound Partners Fund LLC (10)
|
|
|
223,084
|
|
|
|
2.9
|
%
|
|
|
100,000
|
|
|
|
123,084
|
|
|
|
1.6
|
%
|
Ivory Castle Limited (11)
|
|
|
875,243
|
|
|
|
11.3
|
%
|
|
|
851,371
|
|
|
|
23,872
|
|
|
|
*
|
|
J. Kings Food Service Professionals,
Inc.
|
|
|
2,404
|
|
|
|
*
|
|
|
|
2,404
|
|
|
|
–
|
|
|
|
*
|
|
Jake Millar
|
|
|
7,500
|
|
|
|
*
|
|
|
|
7,500
|
|
|
|
–
|
|
|
|
*
|
|
James M. Griffith (12)
|
|
|
8,000
|
|
|
|
*
|
|
|
|
8,000
|
|
|
|
–
|
|
|
|
*
|
|
Jeff Grunvald
|
|
|
17,846
|
|
|
|
*
|
|
|
|
17,846
|
|
|
|
–
|
|
|
|
*
|
|
Jerome Faul
|
|
|
3,750
|
|
|
|
*
|
|
|
|
3,750
|
|
|
|
–
|
|
|
|
*
|
|
Joel Schechter
|
|
|
20,000
|
|
|
|
*
|
|
|
|
20,000
|
|
|
|
–
|
|
|
|
*
|
|
John Audibert
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
John J. King
|
|
|
2,404
|
|
|
|
*
|
|
|
|
2,404
|
|
|
|
–
|
|
|
|
*
|
|
John P. McElgun
|
|
|
1,195
|
|
|
|
*
|
|
|
|
1,195
|
|
|
|
–
|
|
|
|
*
|
|
Jonathan Gazdak(5)
|
|
|
5,122
|
|
|
|
*
|
|
|
|
5,122
|
|
|
|
–
|
|
|
|
*
|
|
Joselyn Mendez
|
|
|
1,195
|
|
|
|
*
|
|
|
|
1,195
|
|
|
|
–
|
|
|
|
*
|
|
Joseph Amato(5)
|
|
|
1,970
|
|
|
|
*
|
|
|
|
1,970
|
|
|
|
–
|
|
|
|
*
|
|
Joseph Wang
|
|
|
3,750
|
|
|
|
*
|
|
|
|
3,750
|
|
|
|
–
|
|
|
|
*
|
|
KA No. 2 Trustee Limited (13)
|
|
|
344,617
|
|
|
|
4.4
|
%
|
|
|
344,617
|
|
|
|
–
|
|
|
|
*
|
|
Keith Testaverde(5)
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Kerry Kennedy (14)
|
|
|
38,016
|
|
|
|
*
|
|
|
|
4,000
|
|
|
|
38,016
|
|
|
|
*
|
|
Kristen Bonet
|
|
|
7,500
|
|
|
|
*
|
|
|
|
2,500
|
|
|
|
5,000
|
|
|
|
*
|
|
Manuel & Cristina Matos
|
|
|
23,500
|
|
|
|
*
|
|
|
|
23,500
|
|
|
|
–
|
|
|
|
*
|
|
Mark Butaro
|
|
|
7,500
|
|
|
|
*
|
|
|
|
7,500
|
|
|
|
–
|
|
|
|
*
|
|
Mark V. Neiswonger
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Mark Williams
|
|
|
1,195
|
|
|
|
*
|
|
|
|
1,195
|
|
|
|
–
|
|
|
|
*
|
|
Network 1 Financial Securities, Inc. (15)
|
|
|
5,762
|
|
|
|
*
|
|
|
|
5,762
|
|
|
|
–
|
|
|
|
*
|
|
Nortle Holdings Limited
|
|
|
134,255
|
|
|
|
1.7
|
%
|
|
|
134,255
|
|
|
|
–
|
|
|
|
*
|
|
Paul Holtzman
|
|
|
67,784
|
|
|
|
*
|
|
|
|
67,784
|
|
|
|
–
|
|
|
|
*
|
|
Paul Vassilakos (16)
|
|
|
88,891
|
|
|
|
1.1
|
%
|
|
|
47,500
|
|
|
|
41,391
|
|
|
|
*
|
|
Philip Thomas (17)
|
|
|
804,141
|
|
|
|
10.3
|
%
|
|
|
734,141
|
|
|
|
70,000
|
|
|
|
1.1
|
%
|
Richard Y. Roberts (18)
|
|
|
38,016
|
|
|
|
*
|
|
|
|
4,000
|
|
|
|
34,016
|
|
|
|
*
|
|
Robert Mast
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Rocco Guidicipietro(5)
|
|
|
1,970
|
|
|
|
*
|
|
|
|
1,970
|
|
|
|
–
|
|
|
|
*
|
|
Roger K. Hotz
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Roger Schwalm
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Scott Ewing
|
|
|
7,241
|
|
|
|
*
|
|
|
|
7,241
|
|
|
|
–
|
|
|
|
*
|
|
Scott Seaman
|
|
|
48,301
|
|
|
|
*
|
|
|
|
48,301
|
|
|
|
–
|
|
|
|
*
|
|
Stanley Lough
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
Steven L. Jirschefske
|
|
|
4,750
|
|
|
|
*
|
|
|
|
4,750
|
|
|
|
–
|
|
|
|
*
|
|
Thomas Cardella (19)
|
|
|
65,893
|
|
|
|
*
|
|
|
|
50,000
|
|
|
|
15,893
|
|
|
|
*
|
|
Thomas Panza (20)
|
|
|
721,641
|
|
|
|
9.3
|
%
|
|
|
721,641
|
|
|
|
–
|
|
|
|
*
|
|
Tom Malone Productions, Inc.
|
|
|
2,404
|
|
|
|
*
|
|
|
|
2,404
|
|
|
|
–
|
|
|
|
*
|
|
Tommy Knox
|
|
|
5,500
|
|
|
|
*
|
|
|
|
5,500
|
|
|
|
–
|
|
|
|
*
|
|
Tower Roofing Company Inc.
|
|
|
14,950
|
|
|
|
*
|
|
|
|
14,950
|
|
|
|
–
|
|
|
|
*
|
|
Vivian P. Pieternelle (21)
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
William Metheny
|
|
|
20,000
|
|
|
|
*
|
|
|
|
20,000
|
|
|
|
–
|
|
|
|
*
|
|
William Pettit
|
|
|
5,000
|
|
|
|
*
|
|
|
|
5,000
|
|
|
|
–
|
|
|
|
*
|
|
*
|
Less
than 1%.
|
|
|
(1)
|
The
information in the table is based on information supplied to us by the selling stockholders. The percentages of ownership
are calculated based on 7,759,061 shares outstanding as of January 17, 2017 . Beneficial ownership is determined
in accordance with Section 13(d) of the Exchange Act , and generally includes shares over which the selling stockholder
has voting or dispositive power, including any shares that the selling stockholder has the right to acquire within 60 days
of January 17, 2017 .
|
|
|
(2)
|
Thomas
Ritchie has voting and dispositive control over the shares beneficially owned by Bass Properties, LLC.
|
|
|
(3)
|
Shane
Paul Bradley has voting and dispositive control over the shares beneficially owned by the Bradley Investment Trust.
|
|
|
(4)
|
Represents
shares beneficially owned by the Charles Collins SEP IRA Clearing Cust.
|
|
|
(5)
|
Represents
shares underlying warrents issued to the selling stockholder as compensation in connection with our Public Offering. The selling
stockholder is a registered representative of Network 1. Network 1 is a broker-dealer.
|
|
|
(6)
|
Represents
shares beneficially owned by the J. C. Pieternelle IRA Cor Clearing Cust.
|
|
|
(7)
|
Edward
Hanson is a member of our board of directors.
|
|
|
(8)
|
Includes
754,355 shares beneficially owned by Cullen Inc Holdings Ltd., an entity controlled by Eric Watson. Mr. Watson is an owner
of Brentwood LIIT (NZ) Ltd., the lender under our senior credit facility. As of the date of this prospectus, there are no
advances outstanding under the credit facility. In addition, Cullen Investments Ltd., a company controlled by Mr. Watson,
has paid certain expenses on our behalf from time to time.
|
|
|
(9)
|
Hans
Peter Dydensborg is our Chief Operating Officer.
|
(10)
|
Jonathan
Ledecky has voting and dispositive control over the shares beneficially owned by Ironbound Partners Fund, LLC. Includes 83,084
shares held by Mr. Ledecky.
|
|
|
(11)
|
John
Matthew Ashwood , Vincent Johan Bremmer, Wai Man Chiu and Yie Ying Tan have voting and dispositive control over the
shares of common stock beneficially owned by Ivory Castle Limited.
|
|
|
(12)
|
Represents
shares beneficially owned by the James M. Griffith IRA Cor Clearing Cust.
|
|
|
(13)
|
Tony
John Thomas has voting and dispositive control over the shares of common stock beneficially owned by KA No. 2 Trustee Limited.
KA No. 2 Trustee Limited is an owner of Brentwood LIIT (NZ) Ltd., the lender under our senior credit facility. As of the date
of this prospectus, there are no advances outstanding under the credit facility.
|
|
|
(14)
|
Kerry
Kennedy is a member of our board of directors.
|
|
|
(15)
|
Represents
shares underlying warrants issued to Network 1 as compensation for acting as placement agent in our Public Offering. Network
1 is a broker-dealer.
|
|
|
(16)
|
Paul
Vassilakos is a member of our board of directors. Includes 35,000 shares beneficially owned by MSSB C/F Petrina Advisors TTE
Paul Vassilakos, over which Mr. Vassilakos has voting and dispositive control.
|
|
|
(17)
|
Philip
Thomas is our Chief Executive Officer and a member of our board of directors.
|
|
|
(18)
|
Richard
Roberts is a member of our board of directors.
|
|
|
(19)
|
Thomas
Cardella is a member of our board of directors.
|
|
|
(20)
|
Thomas
Panza is an employee of ours.
|
|
|
(21)
|
Represents
shares beneficially owned by the Vivian P. Pieternelle IRA Cor Clearing Cust.
|
Other
than as described in this prospectus, the selling stockholders have not within the past three years had any position, office or
other material relationship with us or any of our predecessors or affiliates other than as a holder of our securities. None of
the selling stockholders, other than Network 1 and its designees, are broker-dealers or affiliates of a broker-dealer.
PLAN
OF DISTRIBUTION
Each
selling stockholder of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time,
sell any or all of their securities covered hereby on the principal trading market for the securities or any other stock exchange,
market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated
prices. A selling stockholder may use any one or more of the following methods when selling securities:
|
●
|
ordinary
brokerage transactions and transactions in which the broker dealer solicits purchasers;
|
|
|
|
|
●
|
block
trades in which the broker dealer will attempt to sell the securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
|
|
|
|
|
●
|
purchases
by a broker dealer as principal and resale by the broker dealer for its account;
|
|
|
|
|
●
|
an
exchange distribution in accordance with the rules of the applicable exchange;
|
|
|
|
|
●
|
privately
negotiated transactions;
|
|
|
|
|
●
|
settlement
of short sales;
|
|
|
|
|
●
|
in
transactions through broker dealers that agree with the selling stockholders to sell a specified number of such securities
at a stipulated price per security;
|
|
|
|
|
●
|
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
|
|
|
|
●
|
a
combination of any such methods of sale; or
|
|
|
|
|
●
|
any
other method permitted pursuant to applicable law.
|
The
selling stockholders may also sell securities under Rule 144 under the Securities Act, if available, rather than under this prospectus.
Broker
dealers engaged by the selling stockholders may arrange for other brokers dealers to participate in sales. Broker dealers may
receive commissions or discounts from the selling stockholders (or, if any broker dealer acts as agent for the purchaser of securities,
from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an
agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a
principal transaction a markup or markdown in compliance with FINRA IM-2440.
In
connection with the sale of the securities or interests therein, the selling stockholders may enter into hedging transactions
with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of
hedging the positions they assume. The selling stockholders may also sell securities short and deliver these securities to close
out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The selling
stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one
or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered
by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus
(as supplemented or amended to reflect such transaction).
The
selling stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each selling stockholder has informed the Company that it does not have any written or oral agreement
or understanding, directly or indirectly, with any person to distribute the securities.
The
Company will pay certain fees and expenses incurred by the Company incident to the registration of the securities.
Because
selling stockholders may be deemed to be “underwriters” within the meaning of the Securities Act, they will be subject
to the prospectus delivery requirements of the Securities Act including Rule 172 thereunder. In addition, any securities covered
by this prospectus which qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than
under this prospectus. The selling stockholders have advised us that there is no underwriter or coordinating broker acting in
connection with the proposed sale of the resale securities by the selling stockholders.
The
resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities
laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and
is complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of
purchases and sales of securities of the common stock by the selling stockholders or any other person. We will make copies of
this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus
to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
LEGAL
MATTERS
The
legality of the common stock offered by this prospectus has been passed upon by Graubard Miller, New York, New York.
EXPERTS
The
financial statements incorporated in this prospectus by reference to the annual report on Form 10-K for the year ended December
31, 2015 have been so incorporated in reliance on the report of Marcum LLP, an independent registered certified public accounting
firm, given on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available
to the public over the Internet at the SEC’s web site at http://www.sec.gov. You may also read and copy any document we
file with the SEC at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC
at 1-800-SEC-0330 for further information about the public reference room.
We
have filed with the SEC a registration statement under the Securities Act relating to the offering of these securities. The registration
statement, including the attached exhibits, contains additional relevant information about us and the securities. This prospectus
does not contain all of the information set forth in the registration statement. You can obtain a copy of the registration statement,
at prescribed rates, from the SEC at the address listed above.
The
registration statement and our SEC filings, including the documents referred to below under “
Information Incorporated
by Reference
,” are also available on our website, www.longislandicedtea.com. We have not incorporated by reference into
this prospectus the information on our website, and you should not consider it to be a part of this prospectus.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus,
and information that we file later with the SEC will automatically update and supersede this information. This prospectus incorporates
by reference our documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act until all of the securities are sold.
|
●
|
Annual
Report on Form 10-K for the fiscal year ended December 31, 2015 (filed March 22, 2016).
|
|
|
|
|
●
|
Quarterly
Reports on Form 10-Q for the fiscal quarters ended March 31, 2016 (filed May 9, 2016) , June 30, 2016 (filed August
15, 2016) and September 30, 2016 (filed November 14, 2016) .
|
|
|
|
|
●
|
Current
Reports on Form 8-K dated January 18, 2016 (filed January 20, 2016), January 21, 2016 (filed January 21, 2016), February 3,
2016 (filed January 3, 2016), February 8, 2016 (filed February 8, 2016), February 11, 2016 (filed February 11, 2016), February
26, 2016 (filed February 26, 2016), March 14, 2015 (filed March 17, 2016), March 22, 2016 (filed March 22, 2016), April 1,
2016 (filed April 5, 2016), April 7, 2017 (filed April 8, 2016), April 19, 2016 (filed April 19, 2016), May 9, 2016 (filed
May 9, 2016), May 10, 2016 (filed May 10, 2016), May 10, 2016 (filed May 10, 2016), June 6, 2016 (filed June 9, 2016), July
28, 2016 (filed August 1, 2016), August 4, 2016 (filed August 5, 2016), August 18, 2016 (filed August 24, 2016) , September
19, 2016 (filed September 23, 2016) , September 29, 2016 (filed October 5, 2016), November 30, 2016 (filed November 30,
2016) December 8, 2016 (filed December 14, 2016), December 21, 2016 (filed December 21, 2016), December 27, 2016 (filed December
28, 2016) and January 17, 2017 (filed January 18, 2017).
|
|
|
|
|
●
|
Proxy
statement dated December 15, 2016, used in connection with the annual meeting of
stockholders hold on January 17, 2017.
|
|
|
|
|
●
|
Form
8-A filed on June 20, 2016 registering our common stock under Section 12(b) of the Exchange Act.
|
Any
statement contained in a document filed before the date of this prospectus and incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this prospectus. Any information that we file after the date of this prospectus with the SEC and incorporated by reference
herein will automatically update and supersede the information contained in this prospectus and in any document previously incorporated
by reference in this prospectus. Notwithstanding the foregoing, we are not incorporating any document or portion thereof or other
information, including exhibits to the foregoing, deemed to have been furnished and not filed in accordance with SEC rule.
Will
provide you with a copy of any or all of the information that has been incorporated by reference in this prospectus, without charge,
upon written or oral request directed to Long Island Iced Tea Corp., Attention: Investor Relations, 116 Charlotte Avenue, Hicksville,
NY 11801, telephone number (855) 542-2832. You may also access the documents incorporated by reference as described under “
Where
You Can Find More Information
.”
PART
II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
estimated expenses in connection with the sale of the securities being registered hereby, all of which will be borne by us, are
as follows:
SEC registration fee
|
|
$
|
1,975.18
|
|
Legal fees and expenses
|
|
$
|
7,500.00
|
|
Accounting fees and expenses
|
|
$
|
4,000.00
|
|
Printing
|
|
$
|
1,000.00
|
|
Miscellaneous
|
|
$
|
1,000.00
|
|
Total
|
|
$
|
15,475.18
|
|
Item
15. Indemnification of Directors and Officers.
Our
amended and restated certificate of incorporation provides that no director of ours will be personally liable to us or any of
our stockholders for monetary damages arising from the director’s breach of fiduciary duty as a director. However, this
does not apply with respect to any action in which the director would be liable under Section 174 of the DGCL nor does it apply
with respect to any liability in which the director (i) breached his duty of loyalty to us or its stockholders; (ii) did not act
in good faith or, in failing to act, did not act in good faith; (iii) acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation
of law; or (iv) derived an improper personal benefit. This provision could have the effect of reducing the likelihood of derivative
litigation against our directors and may discourage or deter our stockholders or management from bringing a lawsuit against our
directors for breach of their duty of care, even though such an action, if successful, might otherwise have benefited us and our
stockholders.
Our
amended and restated certificate of incorporation also provides that we will indemnify any director or officer of ours to the
fullest extent permitted by law. Our bylaws further provide that we will indemnify to the fullest extent permitted by law any
person who becomes party to a proceeding by reason of the fact that he is or was an director, officer, employee or agent of ours,
or by reason of the fact that he is or was serving at our request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. We have entered, and intend to continue to enter, into separate indemnification
agreements with our directors, executive officers and other key employees, in addition to the indemnification provided for in
our amended and restated certificate of incorporation and bylaws. We also maintain directors’ and officers’ liability
insurance.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or person controlling
us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
Item
16. Exhibits
A
list of the exhibits required by Item 601 of Regulation S-K to be filed as part of this registration statement is set forth in
the Exhibit Index on page II-5.
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
Provided
,
however
, that:
Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 and the information
required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of the registration statement.
(2)
That, for the purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(5)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
|
(i)
|
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was deemed
part of and included in the registration statement; and
|
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(ii)
Each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included
in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in
a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date
of first use.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, hereunto duly authorized, in Hicksville, New York on January 18, 2017 .
|
LONG
ISLAND ICED TEA CORP.
|
|
|
|
|
By:
|
/s/
Philip Thomas
|
|
Name:
|
Philip
Thomas
|
|
Title:
|
Chief
Executive Officer
|
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures
|
|
Title
|
|
Date
|
|
|
|
|
|
By:
|
/s/
Philip Thomas
|
|
Chief
Executive Officer
|
|
January
18, 2017
|
|
Philip
Thomas
|
|
(Principal Executive
Officer)
|
|
|
|
|
|
|
|
|
By:
|
/s/
Richard Allen
|
|
Chief
Financial (Principal Financial Officer and Principal
|
|
January
18, 2017
|
|
Richard
Allen
|
|
Accounting Officer)
|
|
|
|
|
|
|
|
|
By:
|
*
|
|
Executive
Chairman
|
|
January
18, 2017
|
|
Julian
Davidson
|
|
|
|
|
|
|
|
|
|
|
By:
|
*
|
|
Director
|
|
January
18, 2017
|
|
Edward
Hanson
|
|
|
|
|
|
|
|
|
|
|
By:
|
*
|
|
Director
|
|
January
18, 2017
|
|
Kerry
Kennedy
|
|
|
|
|
|
|
|
|
|
|
By:
|
*
|
|
Director
|
|
January
18, 2017
|
|
Richard
Roberts
|
|
|
|
|
|
|
|
|
|
|
By:
|
*
|
|
Director
|
|
January
18, 2017
|
|
Paul
Vassilakos
|
|
|
|
|
|
|
|
|
|
|
By:
|
*
|
|
Director
|
|
January
18, 2017
|
|
Tom
Cardella
|
|
|
|
|
*
|
By:
|
/s/
Richard Allen
|
|
|
|
Richard
Allen, Attorney-in-fact
|
|
EXHIBIT
INDEX
Exhibit
No.
|
|
Description
|
|
|
|
2.1*
|
|
Agreement
and Plan of Reorganization, dated as of December 31, 2014, by and among, Cullen Agricultural Holding Corp., Long Island Iced
Tea Corp., Cullen Merger Sub, Inc., LIIT Acquisition Sub, LLC, Long Island Brand Beverages LLC, Phil Thomas and Thomas Panza
(incorporated by reference from Annex A-1 of the proxy statement/prospectus that forms a part of the Company’s Registration
Statement on Form S-4 (File No. 333-201527), originally filed on January 15, 2015).
|
|
|
|
2.2
|
|
Amendment
No. 1 to Agreement and Plan of Reorganization, dated as of April 23, 2015, by and among, Cullen Agricultural Holding Corp.,
Long Island Iced Tea Corp., Cullen Merger Sub, Inc., LIIT Acquisition Sub, LLC, Long Island Brand Beverages LLC, Philip Thomas
and Thomas Panza, and Philip Thomas, in his capacity as the “LIBB Representative” under the Merger Agreement on
behalf of the other members of LIBB party to the Merger Agreement (incorporated by reference from Annex A-2 of the proxy statement/prospectus
that forms a part of the Company’s Registration Statement on Form S-4 (File No. 333-201527), originally filed on January
15, 2015).
|
|
|
|
3.1
|
|
Amended
and Restated Certificate of Incorporation (incorporated by reference from Annex C of the proxy statement/prospectus that forms
a part of the Company’s Registration Statement on Form S-4 (File No. 333-201527), originally filed on January 15, 2015).
|
|
|
|
3.2
|
|
Bylaws
(incorporated by reference from Annex D of the proxy statement/prospectus that forms a part of the Company’s Registration
Statement on Form S-4 (File No. 333-201527), originally filed on January 15, 2015).
|
|
|
|
4.1
|
|
Specimen
Common Stock Certificate of Long Island Iced Tea Corp (incorporated by reference from Exhibit 4.1 to the Company’s Registration
Statement on Form S-4 (File No. 333-201527)).
|
|
|
|
10.1
|
|
Form
of Registration Rights Agreement among Triplecrown Acquisition Corp. and the Triplecrown Founders (incorporated by reference
from Triplecrown Acquisition Corp.’s Registration Statement on Form S-1 (File Nos. 333-144523 and 333-146850) originally
filed on July 12, 2007).
|
|
|
|
10.2
|
|
Form
of Registration Rights Agreement among Long Island Iced Tea Corp and the former members of Long Island Brand Beverages LLC
(incorporated by reference from Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on June 2, 2015).
|
|
|
|
10.3
|
|
Form
of Subscription Agreement for August Private Placement (incorporated by reference from Exhibit 10.2 to the Company’s
Quarterly Report on Form 10-Q filed on November 13, 2015).
|
|
|
|
10.4
|
|
Form
of Warrant for August Private Placement (incorporated by reference from Exhibit 10.3 to the Company’s Quarterly Report
on Form 10-Q filed on November 13, 2015).
|
|
|
|
10.5
|
|
Form
of Subscription Agreement for November Private Placement (incorporated by reference from Exhibit 10.1 to the Company’s
Current Report on Form 8-K filed on March 17, 2016).
|
Exhibit No.
|
|
Description
|
|
|
|
10.6
|
|
Form of Warrant for November Private Placement (incorporated by reference from Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on March 17, 2016).
|
|
|
|
10.7
|
|
Form of Subscription Agreement for March Private Placement (incorporated by reference from Exhibit 10.7 to the Company’s Quarterly Report on Form 10-Q filed on May 9, 2016).
|
|
|
|
10.8
|
|
Form of Warrant for March Private Placement (incorporated by reference from Exhibit 10.8 to the Company’s Quarterly Report on Form 10-Q filed on May 9, 2016).
|
|
|
|
10.9
|
|
Credit and Security Agreement, dated as of November 23, 2015, by and among Long Island Brand Beverages, LLC, Long Island Iced Tea Corp. and Brentwood LIIT Inc. (incorporated by reference from Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on November 24, 2015).
|
|
|
|
10.10
|
|
First Amendment to Credit and Security Agreement, effective as of January 10, 2016, by and among Long Island Brand Beverages LLC, Long Island Iced Tea Corp., and Brentwood LIIT Inc. (incorporated by reference from Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on January 20, 2016).
|
|
|
|
10.11
|
|
Second Amendment to Credit and Security Agreement, effective as of April 7, 2016, by and among Long Island Brand Beverages LLC, Long Island Iced Tea Corp., and Brentwood LIIT Inc. (incorporated by reference from Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on April 8, 2016).
|
|
|
|
10.12
|
|
Registration Rights Agreement, dated as of December 3, 2015, by and among Long Island Brand Beverages, LLC, Long Island Iced Tea Corp. and Brentwood LIIT Inc. (incorporated by reference from Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 16, 2015).
|
|
|
|
10.13
|
|
Amendment No. 1 to Registration Rights Agreement, dated as of April 7, 2016, by and among Long Island Brand Beverages LLC, Long Island Iced Tea Corp. and Brentwood LIIT Inc. (incorporated by reference from Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on April 8, 2016).
|
|
|
|
10.14
|
|
Form of Placement Agent Warrant for Public Offering (incorporated by reference from Exhibit 4.2 to the Company’s Registration Statement on Form S-1 (File No. 333-210669) originally filed on April 8, 2016).
|
|
|
|
5.1
|
|
Opinion of Graubard Miller (filed herewith).
|
|
|
|
23.1
|
|
Consent of Marcum LLP (filed herewith).
|
|
|
|
23.2
|
|
Consent of Graubard Miller (included in its opinion filed as Exhibit 5.1).
|
|
|
|
24.1
|
|
Power of Attorney (set forth on signature page of the initial filing of this registration statement).
|
*
|
Certain exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Company agrees to furnish supplementally a copy of all omitted exhibits and schedules to the Securities and Exchange Commission upon its request.
|