See accompanying notes to the condensed
consolidated financial statements.
See accompanying notes to the condensed
consolidated financial statements.
CV SCIENCES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS UNAUDITED
1.
|
ORGANIZATION AND BUSINESS
|
CV Sciences,
Inc. (the “Company,” “we,” “our” or “us”) was incorporated under the name Foreclosure
Solutions, Inc. in the State of Texas on December 9, 2010. On July 25, 2013, the Company’s predecessor, CannaVest Corp.,
a Texas corporation (“CannaVest Texas”), merged with the Company, a wholly-owned Delaware subsidiary of CannaVest Texas,
to effectuate a change in the Company’s state of incorporation from Texas to Delaware. On January 4, 2016, the Company filed
a Certificate of Amendment of Certificate of Incorporation reflecting its corporate name change to “CV Sciences, Inc.”,
effective on January 5, 2016. In addition, on January 4, 2016, the Company amended its Bylaws to reflect its corporate name change
to “CV Sciences, Inc.” The Company previously operated under the corporate name of CannaVest Corp. The change in corporate
name was undertaken in connection with the acquisition of CanX Inc., a Florida-based, specialty pharmaceutical corporation (the
“CanX Acquisition”) as more fully set forth in our Current Report on Form 8-K filed with the U.S. Securities and Exchange
Commission (the “SEC”) on January 4, 2016 (the “January 2016 8-K”). On June 8, 2016, the Company announced
that the Financial Industry Regulatory Authority (“FINRA”) had approved a change in the trading symbol for the Company’s
common stock to “CVSI.” The Company’s common stock formerly traded under the symbol “CANV.”
The Company
operates two distinct business segments: a consumer products segment in manufacturing, marketing and selling plant-based Cannabidiol
(“CBD”) products to a range of market sectors; and, a specialty pharmaceutical segment focused on developing and commercializing
novel therapeutics utilizing synthetic CBD. The specialty pharmaceutical segment began development activities during the second
quarter of 2016.
2.
|
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
|
Basis of Presentation
–
The condensed consolidated financial statements include the accounts of CV Sciences, Inc. and its wholly-owned subsidiaries US
Hemp Oil, LLC, CannaVest Laboratories, LLC, Plus CBD, LLC and CANNAVEST Acquisition, LLC; and the accounts of a 70% interest in
CannaVest Europe, GmbH (collectively, the “Company”). All intercompany accounts and transactions have been eliminated
in consolidation. The Company commenced commercial operations for its current business model on January 29, 2013. On May 2, 2016,
the Company filed Articles of Dissolution with the Secretary of State of Nevada for its wholly-owned subsidiaries US Hemp Oil,
LLC and CannaVEST Laboratories, LLC, effective as of April 29, 2016. On January 20, 2017, the Company filed for dissolution of
CannaVest Europe, GmbH, an entity that prior to dissolution, the Company had a 70% interest in, with the District Court, Dusseldorf
Germany, effective December 31, 2016. None of US Hemp Oil, LLC, CannaVest Laboratories, LLC, or CannaVest Europe, GmbH entities
had any assets or liabilities at the time of their respective dissolutions.
The unaudited
condensed consolidated interim financial statements have been prepared by the Company pursuant to the rules and regulations of
the SEC. The information furnished herein reflects all adjustments (consisting of normal recurring accruals and adjustments) which
are, in the opinion of management, necessary to fairly present the operating results for the respective periods. Certain information
and footnote disclosures normally present in annual financial statements prepared in accordance with accounting principles generally
accepted in the United States of America (“GAAP”) have been omitted pursuant to such rules and regulations. These unaudited
condensed consolidated financial statements should be read in conjunction with the audited financial statements and notes for the
year ended December 31, 2016, filed with the SEC on the Company’s Annual Report on Form 10-K filed on March 31, 2017. The
results for the interim period ended September 30, 2017, are not necessarily indicative of the results to be expected for the full
year ending December 31, 2017.
Certain prior
year amounts have been reclassified for consistency with the current year presentation. These reclassifications had no impact on
net sales, operating loss, net loss or net loss per share.
Liquidity
–
For
the three months ended September 30, 2017 and 2016, the Company had net losses of $589,983 and $1,900,736, respectively. For
the nine months ended September 30, 2017 and 2016, the Company had net losses of $5,366,946 and $5,660,755, respectively. In
addition, for the nine months ended September 30, 2017, the Company had cash flows provided by operations of $647,216
compared with cash flows used in operations of $1,429,277 for the nine months ended September 30, 2016. Management believes
the Company has the funds needed to continue its consumer product business segment and meet its other obligations through at
least November 7, 2018, solely from current revenues and cash flow, due to increased sales and because our current inventory
levels are sufficient to support sales for the next 12 month period through November 7, 2018. In addition, we do not intend
to purchase raw inventory from our supply chain arrangements from the 2017 crop and/or 2018 crop. Management also believes
that it will be able to obtain financing as needed on terms acceptable to the Company, however, there can be no assurances
that the Company will be successful. If the Company is unable to raise additional capital as needed, the Company will likely
be forced to curtail pharmaceutical development
.
Derivative Financial Instruments
–
Derivative financial instruments are initially recognized at fair value on the date a
derivative contract is entered into and subsequently remeasured at fair value on a quarter-end reporting basis. Changes in the
fair value of derivative financial instruments are recognized as a gain or loss in the Company’s Condensed Consolidated Statements
of Operations
.
Business Combinations
–
We
apply the provisions of the Accounting Standards Codification (“ASC”) Topic 805,
Business Combinations
(“ASC
805”), in the accounting for our acquisitions, including without limitation, the CanX Acquisition. ASC 805 establishes principles
and requirements for recognizing and measuring the total consideration transferred to and the assets acquired, liabilities assumed
and any non-controlling interests in the acquired target in an asset purchase. ASC 805 requires us to recognize separately from
goodwill the assets acquired and the liabilities assumed at the acquisition date fair values. Goodwill as of the acquisition date
is measured as the excess of consideration transferred over the net of the acquisition date fair values of the assets acquired
and the liabilities assumed. While we use our best estimates and assumptions to accurately value assets acquired and liabilities
assumed at the acquisition date as well as contingent consideration, where applicable, our estimates are inherently uncertain and
subject to refinement. As a result, during the measurement period, we record adjustments to the assets acquired and liabilities
assumed with the corresponding offset to goodwill. Upon the conclusion of the measurement period or final determination of the
values of assets acquired or liabilities assumed, whichever comes first, any subsequent adjustments are recorded in our condensed
consolidated statements of operations.
Accounting
for business combinations requires our management to make significant estimates and assumptions, especially at the acquisition
date, including our estimates for intangible assets, contractual obligations assumed, pre-acquisition contingencies and contingent
consideration, where applicable. Although we believe the assumptions and estimates we have made in the past have been reasonable
and appropriate, they are based in part on historical experience and information obtained from the management of the acquired companies
and are inherently uncertain.
Examples of critical estimates in valuing
certain of the intangible assets we have acquired include but are not limited to:
|
·
|
future expected cash flows from supply chain
relationships with growers and processors of our hemp extracted CBD oil;
|
|
·
|
expected costs to develop the in-process research
and development (“IPR&D”) into commercially viable pharmaceutical products and estimated cash flows from the projects
when completed;
|
|
·
|
the acquired company’s brand, trade names
and competitive position, as well as assumptions about the period of time the acquired brand will continue to be used in the combined
Company’s product portfolio; and
|
Goodwill and Intangible Assets –
The Company evaluates the carrying value of goodwill and intangible assets annually during the
fourth quarter in accordance with ASC Topic 350,
Intangibles Goodwill and Other
and between annual evaluations if events
occur or circumstances change that would more likely than not reduce the fair value of the reporting unit below its carrying amount.
Such circumstances could include, but are not limited to (1) a significant adverse change in legal factors or in business climate,
(2) unanticipated competition, or (3) an adverse action or assessment by a regulator. When evaluating whether goodwill is impaired,
the Company compares the fair value of the reporting unit to which the goodwill is assigned to the reporting unit’s carrying
amount, including goodwill. The fair value of the reporting unit is estimated using a combination of the income, or discounted
cash flows, approach and the market approach, which utilizes comparable companies’ data. If the carrying amount of a reporting
unit exceeds its fair value, then the amount of the impairment loss is measured. The impairment loss would be calculated by comparing
the fair value of a reporting unit’s goodwill to its carrying amount. In calculating the fair value of a reporting unit’s
goodwill, the fair value of the reporting unit is allocated to all of the other assets and liabilities of that unit based on their
fair values. The excess of the fair value of a reporting unit over the amount assigned to its other assets and liabilities is the
fair value of goodwill.
We make critical
assumptions and estimates in completing impairment assessments of goodwill and other intangible assets. Our cash flow projections
look several years into the future and include assumptions on variables such as future sales and operating margin growth rates,
economic conditions, market competition, inflation and discount rates.
We classify
intangible assets into three categories: (1) intangible assets with definite lives subject to amortization; (2) intangible assets
with indefinite lives not subject to amortization; and (3) goodwill. We determine the useful lives of our identifiable intangible
assets after considering the specific facts and circumstances related to each intangible asset. Factors we consider when determining
useful lives include the contractual term of any agreement related to the asset, the historical performance of the asset, our long-term
strategy for using the asset, any laws or regulations which could impact the useful life of the asset and other economic factors,
including competition and specific market conditions. Intangible assets that are deemed to have definite lives are amortized, primarily
on a straight-line basis, over their useful lives to their estimated residual values, generally five years.
IPR&D
has an indefinite life and is not amortized until completion and development of the project, at which time the IPR&D becomes
an amortizable asset. If the related project is not completed in a timely manner or the project is terminated or abandoned, the
Company may have an impairment related to the IPR&D, calculated as the excess of the asset’s carrying value over its
fair value. This method of amortization approximates the expected future cash flow generated from their use.
During the
three and nine months ended September 30, 2017 and 2016, there were no impairments.
Use of Estimates
–
The
Company’s condensed consolidated financial statements have been prepared in accordance with GAAP. The preparation of these
condensed consolidated financial statements requires us to make significant estimates and judgments that affect the reported amounts
of assets, liabilities, revenues, expenses and related disclosures of contingent assets and liabilities. We evaluate our estimates,
including those related to contingencies, on an ongoing basis. We base our estimates on historical experience and on various other
assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments
about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ
from these estimates under different assumptions or conditions. Significant estimates include the valuation of intangible assets,
the amortization lives of intangible assets, valuation of contingent consideration, inputs for valuing derivative financial instruments,
inputs for valuing warrants, inputs for valuing notes payable beneficial conversion features and stock-based compensation, valuation
of inventory, classification of current and non-current receivables, classification of current and non-current inventory amounts,
and the allowance for doubtful accounts.
Reportable Segments
–
The
Company has two business segments; consumer products and specialty pharmaceutical. Our consumer products segment develops, manufactures
and markets products based on plant-based CBD, including under the name
PlusCBD™
in a variety of market sectors including
nutraceutical, beauty care, specialty foods, and vape. Our specialty pharmaceutical segment is newly established to develop a variety
of drug candidates which use synthetic CBD as a primary active ingredient. The specialty pharmaceutical segment began development
activities during the second quarter of 2016.
Cash and Cash Equivalents
–
For purposes of the condensed consolidated statements of cash flows, the Company considers amounts held by financial institutions
and short-term investments with an original maturity of three months or less when purchased to be cash and cash equivalents. As
of September 30, 2017, and December 31, 2016, the Company had no cash equivalents.
Restricted Cash
–
The
Company’s current and past arrangements with its credit card processors require that its credit card processors withhold
a cash reserve balance from the Company’s credit card receipt transactions for a period of time not to exceed 270 days, for
which the credit card processors will refund the Company the entire amounts withheld at its sole discretion. As of September 30,
2017, the Company had $750,185 in restricted cash held in reserve by its current and past credit card processors. The following
table provides a reconciliation of cash and restricted cash reported within the condensed consolidated balance sheets to the total
of the same amounts shown in the statement of cash flows:
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
1,572,125
|
|
|
$
|
781,857
|
|
Restricted cash
|
|
|
750,185
|
|
|
|
275,611
|
|
Total cash and restricted cash shown in the statement of cash flows
|
|
$
|
2,322,310
|
|
|
$
|
1,057,468
|
|
Concentrations of Credit Risk
–
As of September 30, 2017, the Federal Deposit Insurance Corporation (“FDIC”) provided
insurance coverage of up to $250,000 per depositor per bank. The Company has not experienced any losses in such accounts and does
not believe that the Company is exposed to significant risks from excess deposits. The Company’s cash balance in excess of
FDIC limits totaled $1,038,331 as of September 30, 2017.
One
customer represented 28% and 58% of our accounts receivable balance as of September 30, 2017 and December 31, 2016, respectively
.
Accounts Receivable
–
Generally,
the Company requires payment prior to shipment. However, in certain circumstances, the Company extends credit to companies located
throughout the U.S. Accounts receivable consists of trade accounts arising in the normal course of business. Accounts receivable
for large accounts are generally secured by substantially all assets of the customer. Smaller accounts receivable, generally less
than $10,000, are unsecured and no interest is charged on past due accounts. Accounts for which no payments have been received
after 30 days are considered delinquent and customary collection efforts are initiated. Accounts receivable are carried at original
invoice amount less a reserve made for doubtful receivables based on a review of all outstanding amounts on a quarterly basis.
Management
has determined the allowance for doubtful accounts by regularly evaluating individual customer receivables and considering a customer’s
financial condition and credit history, and current economic conditions. As of September 30, 2017, and December 31, 2016, respectively,
the Company maintained an allowance for doubtful accounts receivable in the amount of $500,000 and $100,000.
Revenue Recognition
-
The
Company recognizes revenue in accordance with the ASC Topic 605,
Revenue Recognition
which requires persuasive evidence
of an arrangement, delivery of a product or service, a fixed or determinable price, and assurance of collection within a reasonable
period of time. The Company records revenue when goods are delivered to the carrier and the rights of ownership have transferred
from the Company to the customer.
In the
normal course of business, the Company may offer discounts or promotions for various products to incentivize sales growth and brand
awareness. Such discounts or promotions are recorded as a reduction to sales revenue
.
Sales Tax
–
The
Company is responsible for collecting tax on sales to end customers and remitting these taxes to applicable jurisdictions. These
taxes are assessed based on the location of the end customer and the laws of the jurisdiction in which they reside. Such taxes
are accounted for on a net basis, and not included in revenues.
Shipping and Handling
–
Shipping and handling costs totaled $265,685 and $115,990 for the three months ended September 30, 2017 and 2016, respectively,
and for the nine months ended September 30, 2017 and 2016 totaled $589,687 and $313,498, respectively. Shipping and handling costs
are recorded in cost of goods sold.
Returns
–
Finished Products
– Within ten (10) days of a customer’s receipt of the Company’s finished products,
the customer may return (i) finished products that do not conform to the Company’s product specifications or, (ii) finished
products which are defective, provided that notice of condition is given within five (5) days of the customer’s receipt of
the finished products. The failure to comply with the foregoing time requirements shall be deemed a waiver of customer’s
claim for incorrect or defective shipments. In the event of the existence of one or more material defects in any finished product
upon delivery to the customer, the Company shall, at its sole option and cost, either (a) take such measures as are required to
cure the defect(s) designated in the notice, or (b) replace such defective finished product(s). The Company may, at its sole option,
require the return or destruction of the defective finished products. The customer shall afford the Company the opportunity to
verify that such defects existed prior to shipment and were not, for purposes of example and not limitation, the result of improper
transport, handling, storage, product rotation or misuse by the customer.
Bulk Oil Products
–
Sales
of bulk oil products are generally final and the Company does not accept returns under any circumstances.
There was
no allowance for customer returns as of September 30, 2017 or December 31, 2016 due to insignificant return amounts experienced
during the nine months ended September 30, 2017 and the year ended December 31, 2016, respectively.
Compensation and Benefits
–
The Company records compensation and benefits expense for all cash and deferred compensation,
benefits, and related taxes as earned by its employees. Compensation and benefits expense also includes compensation earned by
temporary employees and contractors who perform similar services to those performed by the Company’s employees, primarily
information technology and project management activities.
Stock-Based Compensation
–
Certain employees, officers, directors, and consultants of the Company participate in various
long-term incentive plans that provide for granting stock options, restricted stock awards, restricted stock units, stock bonus
awards and performance-based awards. Stock options generally vest in equal increments over a two- to four-year period and expire
on the tenth anniversary following the date of grant. Performance-based stock options vest once the applicable performance condition
is satisfied. Restricted stock awards generally vest 100% at the grant date.
The Company
recognizes stock-based compensation for equity awards granted to employees, officers, directors and consultants as compensation
and benefits expense, recorded as selling, general and administrative expense, in the condensed consolidated statements of operations.
The fair value of stock options is estimated using a Black-Scholes valuation model on the date of grant. The fair value of restricted
stock awards is equal to the closing price of the Company’s stock on the date of grant. Stock-based compensation is recognized
over the requisite service period of the individual awards, which generally equals the vesting period. For performance-based stock
options, compensation is recognized once the applicable performance condition is satisfied.
The
fair value of stock options is estimated using a Black-Scholes valuation model on the date of grant and unvested awards are revalued
at each reporting period. The fair value of restricted stock awards is equal to the closing price of the Company’s stock
on the date of grant multiplied by the number of shares awarded. Stock-based compensation is recognized over the requisite service
period of the individual awards, which generally equals the vesting period
.
Inventory
–
Inventory
is stated at lower of cost or net realizable value, with cost being determined on an average cost basis. As of September 30, 2017,
the Company had $703,882 of inventory in Germany and The Netherlands.
Property & Equipment
–
Equipment is stated at cost less accumulated depreciation. Cost represents the purchase price
of the asset and other costs incurred to bring the asset into its existing use. Depreciation is provided on a straight-line basis
over the assets’ estimated useful lives. Tenant improvements are amortized on a straight-line basis over the remaining life
of the related lease. Maintenance or repairs are charged to expense as incurred. Upon sale or disposition, the historically-recorded
asset cost and accumulated depreciation are removed from the accounts and the net amount less proceeds from disposal is recorded
to other income (expense).
Property and equipment, net, as of September
30, 2017 and December 31, 2016 were as follows:
|
|
Useful Lives
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
|
|
|
|
|
|
|
|
|
Office furniture and equipment
|
|
3 years
|
|
$
|
346,682
|
|
|
$
|
340,472
|
|
Laboratory and other equipment
|
|
5 years
|
|
|
321,071
|
|
|
|
321,071
|
|
Tenant improvements
|
|
14 to 39 months
|
|
|
70,792
|
|
|
|
70,592
|
|
|
|
|
|
|
738,545
|
|
|
|
732,135
|
|
Less: accumulated depreciation
|
|
|
|
|
(607,177
|
)
|
|
|
(489,433
|
)
|
|
|
|
|
$
|
131,368
|
|
|
$
|
242,702
|
|
Depreciation
expense for the three months ended September 30, 2017 and 2016 was $30,897 and $48,977, respectively, and for the nine months ended
September 30, 2017 and 2016 was $117,744 and $146,692, respectively.
Fair Value of Financial Instruments
– In accordance with ASC Topic 825,
Financial Instruments
, the Company calculates
the fair value of its assets and liabilities which qualify as financial instruments and includes this additional information in
the notes to its financial statements when the fair value is different than the carrying value of those financial instruments.
The estimated fair value of the Company’s current assets and current liabilities approximates their carrying amount due
to their readily available nature and short maturity.
Long-Lived Assets
–
In accordance with ASC Topic 360,
Accounting for the Impairment or Disposal of Long-Lived Assets
, the Company reviews property
and equipment for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not
be recoverable. Recoverability of property and equipment is measured by comparing its carrying value to the undiscounted projected
future cash flows that the asset(s) are expected to generate. If the carrying amount of an asset is not recoverable, we recognize
an impairment loss based on the excess of the carrying amount of the long-lived asset over its respective fair value, which is
generally determined as the present value of estimated future cash flows or at the appraised value. The impairment analysis is
based on significant assumptions of future results made by management, including revenue and cash flow projections. Circumstances
that may lead to impairment of property and equipment include a significant decrease in the market price of a long-lived asset,
a significant adverse change in the extent or manner in which a long-lived asset is being used or in its physical condition and
a significant adverse change in legal factors or in the business climate that could affect the value of a long-lived asset including
an adverse action or assessment by a regulator.
Debt Issuance Costs –
Debt
issuance costs have been capitalized as a discount to secured convertible promissory notes payable and are being amortized to interest
expense using the interest method over the expected terms of the related debt agreements.
Loss per Share
–
The
Company calculates earning or loss per share (“EPS”) in accordance with ASC Topic 260,
Earnings per Share
, which
requires the computation and disclosure of two EPS amounts, basic and diluted. Basic EPS is computed based on the weighted average
number of shares of common stock outstanding during the period. Diluted EPS is computed based on the weighted average number of
shares of common stock outstanding plus all potentially dilutive shares of common stock outstanding during the period. The Company
had 17,668,000 stock options and restricted stock units (“RSU’s”) outstanding that were anti-dilutive as of September
30, 2017. In addition, the Company may be required to issue 10,750,000 shares of common stock related to certain performance-based
stock options outstanding. As of September 30, 2017, the Company may also be required to issue 3,000,000 shares of restricted stock
units for performance- based consulting services. As of September 30, 2017, there were also warrants outstanding to purchase up
to 2,100,000 shares of common stock. Furthermore, the Company may be required to issue a variable amount of shares of common stock
related to the potential conversion features of the Iliad Notes (as defined below) (See Note 7).
Research and Development Expense
–
Research and development costs are charged to expense as incurred and include, but are
not limited to: employee salaries and benefits, cost of inventory used in product development, consulting service fees, the cost
of renting and maintaining our laboratory facility, and depreciation of laboratory equipment. Research and development expense
for the consumer products segment was $76,520 and $292,738 for the three months ended September 30, 2017 and 2016, respectively,
and for the nine months ended September 30, 2017 and 2016 was $181,509 and $658,817, respectively. Research and development expense
for the specialty pharmaceutical segment was $102,818 and $103,500 for the three months ended September 30, 2017 and 2016, respectively,
and for the nine months ended September 30, 2017 and 2016 was $392,192 and $220,781, respectively.
Advertising
–
The
Company supports its products with advertising to build brand awareness of the Company’s various products in addition to
other marketing programs executed by the Company’s marketing team. The Company believes the continual investment in advertising
is critical to the development and sale of its
PlusCBD™
brand products. Advertising costs of $152,687 and $62,912
were expensed as incurred during the three months ended September 30, 2017 and 2016, respectively, and for the nine months ended
September 30, 2017 and 2016 were $261,442 and $210,877, respectively
.
Income Taxes –
Income
taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the estimated
future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities
and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable
income in the years in which the related temporary differences are expected to be recovered or settled. The effect on deferred
tax assets and liabilities of a change in tax rates is recognized when the rate change is enacted. Valuation allowances are recorded
to reduce deferred tax assets to the amount that will more likely than not be realized. In accordance with ASC Topic 740,
Income
Taxes
, the Company recognizes the effect of uncertain income tax positions only if the positions are more likely than not of
being sustained in an audit, based on the technical merits of the position. Recognized uncertain income tax positions are measured
at the largest amount that is greater than 50% likely of being realized. Changes in recognition or measurement are reflected in
the period in which those changes in judgment occur. The Company recognizes both interest and penalties related to uncertain tax
positions as part of the income tax provision. As of September 30, 2017 and December 31, 2016, the Company did not have a liability
for unrecognized tax uncertainties. The Company is subject to routine audits by taxing jurisdictions.
Recent Issued and Newly Adopted Accounting
Pronouncements
In May 2014, the Financial Accounting Standards Board (“FASB”)
issued Accounting Standards Update (“ASU”) ASU 2014-09,
Revenue from Contracts with Customers (Topic 606)
(“ASU
2014-09”), as amended by ASU 2015-14,
Revenue from Contracts with Customers (Topic 606)
, ASU 2016-08,
Revenue
from Contracts with Customers (Topic 606),
ASU 2016-10,
Revenue from Contracts with Customers (Topic 606),
ASU 2016-12,
Revenue from Contracts with Customers (Topic 606)
and ASU 2016-20,
Technical Corrections and Improvements to Topic 606,
Revenue from Contracts with Customers,
which completes the joint effort by the FASB and the International Accounting Standards
Board to improve financial reporting by creating common revenue recognition guidance for GAAP and the International Financial Reporting
Standards. ASU 2014-09 will become effective for the Company beginning January 1, 2018 and early adoption is not permitted. The
Company is currently evaluating the potential impact of ASU 2014-09 on the Company’s consolidated financial statements but
does not expect it to have a significant impact.
In July 2015,
the FASB issued ASU 2015-11,
Inventory: Simplifying the Measurement of Inventory
(“ASU 2015-11”), which requires
inventory measured using any method other than last-in, first out or the retail inventory method to be subsequently measured at
the lower of cost or net realizable value, rather than at the lower of cost or market. ASU 2015-11 is effective for annual reporting
periods beginning after December 15, 2016 and for interim periods within such annual periods. Early application is permitted. The
Company implemented ASU 2015-11 for the interim and annual reporting periods of 2017.
In November
2015, the FASB issued ASU 2015-17,
Balance Sheet Classification of Deferred Taxes
(“ASU 2015-17) which requires that
deferred tax liabilities be classified as noncurrent in a classified statement of financial position. ASU 2015-17 is effective
for annual reporting periods beginning after December 15, 2016 and for interim periods within such periods. Early application is
permitted. The Company implemented ASU 2015-17 during the annual reporting period of 2016.
In February
2016, the FASB issued ASU 2016-02,
Leases
(“ASU 2016-02”), which, for operating leases, requires a lessee to
recognize a right-of-use asset and a lease liability, initially measured at the present value of the lease payments, in its balance
sheet. ASU 2016-02 also requires a lessee to recognize a single lease cost, calculated so that the cost of the lease is allocated
over the lease term, on a generally straight-line basis. ASU 2016-02 is effective for public companies for fiscal years beginning
after December 15, 2018, including interim periods within those fiscal years. Early adoption is permitted. The Company is evaluating
the potential impact of ASU 2016-02 on the Company’s consolidated financial statements and does expect it to potentially
have a significant impact on the Company’s future consolidated balance sheets depending on the terms and duration of the
Company’s future lease agreements. As such, the Company currently does not intend to early adopt this update for the
benefit of investor comparison analysis.
In March
2016, the FASB issued ASU 2016-09,
Compensation – Stock Compensation
(“ASU 2015-09”), which involve multiple
aspects of the accounting for share-based transactions, including income tax consequences, classification of awards as either equity
or liabilities, and classification on the statement of cash flows. ASU 2016-09 is effective for public companies for fiscal years
beginning after December 15, 2016, including interim periods within those fiscal years. Early adoption is permitted. The Company
implemented ASU 2015-09 for the interim and annual reporting periods of 2017.
In August 2016, the FASB issued ASU 2016-15,
Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments (A Consensus of the FASB Emerging
Issues Task Force)
(“ASU 2016-15”), which provides amendments to specific statement of cash flows classification
issues. ASU 2016-15 is effective for public companies for fiscal years beginning after December 15, 2017, including interim periods
within those fiscal years. Early adoption is permitted. The Company is evaluating the potential impact of ASU 2016-15 on the Company’s
consolidated financial statements but does not expect it to have a significant impact.
In November
2016, the FASB issued ASU 2016-18,
Statement of Cash Flows (Topic 230): Restricted Cash
(“ASU 2016-18”), which
requires that a statement of cash flows explain the change during the period in the total of cash, cash equivalents and amounts
generally described as restricted cash and restricted cash equivalents should be included with cash and cash equivalents when reconciling
the beginning-of-period and end-of-period total amounts shown on the statement of cash flows. ASU 2016-18 is effective for public
business entities for fiscal years beginning after December 15, 2017 and interim periods within those fiscal years. Early adoption
is permitted, including adoption in an interim period. If an entity early adopts the amendments in an interim period, any adjustments
should be reflected as of the beginning of the fiscal year that includes that interim period. In addition, ASU 2016-18 should be
applied using a retrospective transition method to each period presented. The Company implemented ASU 2016-18 during the annual
reporting period of 2016.
In January 2017, the FASB issued
ASU 2017-01,
Business Combinations (Topic 805): Clarifying the Definition of a Business
(“ASU 2017-01”), which
revises the definition of a business. ASU 2017-01 requires that for an acquisition to be considered a business, the business would
have to include an input and a substantive process that together significantly contribute to the ability to create outputs. ASU
2017-01 also narrows the definition of the term “outputs,” which are now considered the result of inputs and substantive
processes that provide goods and services to customers, other revenue, or investment income, such as dividends and interest. ASU
2017-01 is effective for public companies for annual periods beginning after December 15, 2017. Early adoption is permitted. The
Company is evaluating the potential impact of ASU 2017-01 on the Company’s consolidated financial statements but does not
expect it to have a significant impact.
In January
2017, the FASB issued ASU 2017-04,
Intangibles – Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment
(“ASU 2017-04”), which eliminates Step 2 from the goodwill impairment test. Instead, an entity should perform its annual
or interim goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount. An entity should
then recognize an impairment charge for the amount by which the carrying amount exceeds the reporting unit’s fair value;
however, the loss recognized should not exceed the total amount of goodwill allocated to that reporting unit. Additionally, an
entity should consider income tax effects from any tax deductible goodwill on the carrying amount of the reporting unit when measuring
the goodwill impairment loss, if applicable. ASU 2017-04 requires the entity to apply these amendments on a prospective basis for
which it is required to disclose the nature of and reason for the change in accounting upon transition. This disclosure shall be
provided in the first annual period and in the interim period within the first annual period when the entity initially adopts the
amendments. The Company shall adopt these amendments for its annual or any interim goodwill impairment tests in fiscal years beginning
after December 15, 2019. Early adoption is permitted for interim or annual goodwill impairment tests performed on testing dates
after January 1, 2017. The Company implemented ASU 2017-04 for the interim and annual reporting periods of 2017.
In May 2017,
the FASB issued ASU 2017-09,
Compensation – Stock Compensation (Topic 718): Scope of Modification Accounting
(“ASU
2017-09”), which provides guidance about which changes to the terms or conditions of a share-based payment award require
an entity to apply modification accounting. The amendments in ASU 2017-09 should be applied prospectively to an award modified
on or after the adoption date. ASU 2017-09 is effective for public companies for annual periods beginning after December 15, 2017.
Early adoption is permitted. The Company is evaluating the potential impact of ASU 2017-09 on the Company’s consolidated
financial statements, but does not expect it to have a significant impact.
Other recent
accounting pronouncements issued by the FASB (including its Emerging Issues Task Force), the American Institute of Certified Public
Accountants, and the SEC did not, or are not believed by management to have a material impact on the Company’s present or
future financial statements.
Inventory as of September 30, 2017 and
December 31, 2016 was comprised of the following:
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
|
|
|
|
|
|
|
Raw materials
|
|
$
|
6,641,917
|
|
|
$
|
7,699,057
|
|
Finished goods
|
|
|
1,832,353
|
|
|
|
1,631,442
|
|
|
|
$
|
8,474,270
|
|
|
$
|
9,330,499
|
|
Accrued expenses as of September 30, 2017 and December 31,
2016 were as follows:
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
|
|
|
|
|
|
|
Accrued payroll expenses
|
|
$
|
351,000
|
|
|
$
|
208,126
|
|
Other accrued liabilities
|
|
|
232,622
|
|
|
|
170,092
|
|
|
|
$
|
583,622
|
|
|
$
|
378,218
|
|
5.
|
INTANGIBLE ASSETS, NET
|
Intangible assets consisted of the following at September 30,
2017 and December 31, 2016:
|
|
Original Fair
Market Value
|
|
|
Accumulated
Amortization
|
|
|
Net
|
|
|
Useful Life
(Years)
|
|
|
|
|
|
|
|
|
|
Balance - September 30, 2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In-process research and development
|
|
$
|
3,730,000
|
|
|
$
|
–
|
|
|
$
|
3,730,000
|
|
|
–
|
Trade names
|
|
|
100,000
|
|
|
|
35,000
|
|
|
|
65,000
|
|
|
5
|
Non-compete agreements
|
|
|
77,000
|
|
|
|
26,950
|
|
|
|
50,050
|
|
|
5
|
|
|
$
|
3,907,000
|
|
|
$
|
61,950
|
|
|
$
|
3,845,050
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance - December 31, 2016:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In-process research and development
|
|
$
|
3,730,000
|
|
|
$
|
–
|
|
|
$
|
3,730,000
|
|
|
–
|
Trade names
|
|
|
100,000
|
|
|
|
20,000
|
|
|
|
80,000
|
|
|
5
|
Non-compete agreements
|
|
|
77,000
|
|
|
|
15,400
|
|
|
|
61,600
|
|
|
5
|
|
|
$
|
3,907,000
|
|
|
$
|
35,400
|
|
|
$
|
3,871,600
|
|
|
|
Amortization
expense for the three months ended September 30, 2017 and 2016 totaled $8,850 and $214,350, respectively, and for the nine months
ended September 30, 2017 and 2016 totaled $26,550 and $643,050, respectively.
During the
three months ended September 30, 2017 and 2016, the Company paid $0 and $149,531, respectively, to a stockholder of the Company
who is a supplier of hemp oil and hemp to the Company. During the nine months ended September 30, 2017 and 2016, the Company paid
the same stockholder $9,060 and $252,509, respectively.
During the
three months ended September 30, 2017 and 2016, the Company paid $5,250 and $0, respectively, to a company partially owned by
a Company director that provides quality control and quality assurance consulting to the Company. During the nine months ended
September 30, 2017 and 2016, the Company paid the same company $15,750 and $0, respectively.
The Company’s outstanding borrowings
under secured convertible promissory notes payable as of September 30, 2017 and December 31, 2016 were as follows:
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
|
|
|
|
|
|
|
Iliad Note (defined below)
|
|
$
|
344,596
|
|
|
$
|
1,897,976
|
|
Iliad Note 2 (defined below)
|
|
|
794,095
|
|
|
|
–
|
|
|
|
$
|
1,138,691
|
|
|
$
|
1,897,976
|
|
Iliad Secured Convertible Promissory Notes Payable
On
May 25, 2016 (the “Purchase Price Date”), the Company entered into a Securities Purchase Agreement
(“Iliad SPA”) with Iliad Research and Trading, L.P. (the “Lender” or “Iliad”) pursuant to
which the Lender loaned the Company $2,000,000. On the Purchase Price Date, the Company issued to Lender a Secured
Convertible Promissory Note (the “Iliad Note”) in the principal amount of $2,055,000 in exchange for payment by
Lender of $2,000,000. The principal sum of the Iliad Note reflects the amount invested, plus a 2.25% “Original
Issue Discount” (“OID”) and a $10,000 reimbursement of Lender’s legal fees. Out of the proceeds from
the Iliad Note, the Company paid the sum of $25,000 to its placement agent, Myers & Associates, L.P., which is a
registered broker-dealer. The Company received net proceeds of $1,975,000 in exchange for the Iliad Note. The Iliad Note
requires the repayment of all principal and any interest, fees, charges and late fees on the date that is thirteen (13)
months after the Purchase Price Date (the “Maturity Date”). Interest is to be paid on the outstanding balance at
a rate of ten percent (10%) per annum from the Purchase Price Date until the Iliad Note is paid in full. Interest is accrued
during the term of the Iliad Note and all interest calculations shall be computed on the basis of a 360-day year comprised of
twelve (12) thirty (30)-day months and shall compound daily. Subject to adjustment as set forth in the Iliad Note,
the conversion price for each Lender conversion shall be $0.50 (the “Lender Conversion Price”), convertible
into shares of fully paid and non-assessable common stock. Beginning on the date that is six months after the Purchase Price
Date and continuing until the Maturity Date, Iliad shall have the right to redeem a portion of the Iliad Note in any amount
up to the Maximum Monthly Redemption Amount ($275,000, which is the maximum aggregate redemption amount that may be redeemed
in any calendar month), for which payments may be made in cash or by converting the redemption amount into shares of Company
common stock at a conversion price which is the lesser of (a) the Lender Conversion Price of $0.50 and (b) the Market Price,
defined as 70% (“the Conversion Factor”), subject to adjustment as follows: if at any time (1) the average of the
three lowest closing bid prices in the previous twenty (20) trading days is below $0.25 per share then the Conversion Factor
will be reduced by 10%, (2) the Company is not Deposit/Withdrawal At Custodian (“DWAC”) eligible, then the
Conversion Factor will be reduced by an additional 5%, or (3) there has occurred a “Major Default” then the
Conversion Factor will be reduced by an additional 5%. The Company may prepay the Iliad Note at any time by payment to Lender
of 125% of the principal, interest and other amounts then due under the Note. The Company may prepay the Iliad Note
notwithstanding an earlier notice of conversion from the Lender, provided that in such event the Lender may convert an amount
not to exceed $300,000 under the Iliad Note. In connection with the Iliad Note, as set forth above, the Company incurred an
original issue discount of $45,000 and $35,000 of other debt issuance costs, which will be amortized over the Iliad Note
term. The Iliad Note is securitized by the Company’s accounts receivable, inventory and equipment.
In
November 2016, the Company entered into an Amendment to the Iliad Note (the “Iliad Amendment”), whereby
the Lender and the Company agreed that the Maximum Monthly Redemption Amount for the period from November 2016 to January
2017 (the “Reduction Period”) be reduced from $275,000 to $166,667 (the “Reduced Maximum Monthly
Redemption Amount”). In addition, if the Lender fails to convert the full Reduced Maximum Monthly Redemption Amount
during any month in the Reduction Period, then any such unconverted amount shall increase the Reduced Maximum Monthly
Redemption Amount in the following month or months. Furthermore, the Company shall not be allowed to pay any of the Reduced
Maximum Monthly Reduction Amounts in cash. As such, all amounts converted must be converted into Redemption Conversion Shares
of the Company’s common stock. Also, as part of the Iliad Amendment, the Lender agrees that, with respect to any
Redemption Conversion Shares received during the Reduction Period, in any given calendar week its Net Sales of such
Redemption Conversion Shares shall not exceed the greater of (a) ten percent (10%) of the Company’s weekly dollar trading
volume in such week or (b) $50,000 (the “Volume Limitation”). However, if the Lender’s Net Sales are less
than the Volume Limitation for any given week, then in the following week or weeks, the Lender shall be allowed to sell an
additional amount of Redemption Conversion Shares equal to the difference between the amount the Lender was allowed to sell
and the amount the Lender actually sold. For the purpose of the Iliad Amendment, Net Sales is defined as the gross proceeds
from sales of the Redemption Conversion Shares sold in a calendar week during the Reduction Period minus any trading
commissions or costs associated with clearing and selling such Redemption Conversion Shares minus the purchase price paid for
any shares of the Company’s common stock purchased in the open market during such week. The Lender and the Company both
agree that in the event the Lender breaches the Volume Limitation where its Net Sales of Redemption Conversion Shares during
any week during the Reduction Period exceeds the dollar volume the Lender is permitted to sell during such week pursuant to
the Volume Limitation (the “Excess Sales”), then the Company’s sole and exclusive remedy for such breach
shall be the reduction of the outstanding balance of the Iliad Note by an amount equal to 200% of the Excess Sales upon
delivery of written notice to the Lender setting forth its basis for such reduction.
In January
2017, the Company entered into Amendment #2 to the Iliad Note (the “Iliad Amendment 2”). In accordance with the Iliad
Amendment 2, during the period between January 27, 2017 and February 24, 2017, the Company agreed to allow the Lender to convert
up to $500,000 (the “Additional Redemption Amount”) in Redemption Conversions under the Note, provided that the Lender
shall not effectuate a Redemption Conversion of any Maximum Monthly Redemption Amount between January 27, 2017 and March 1, 2017.
During this time period, the Company was not allowed to pay any of the Additional Redemption Amount in cash and all such amounts
had to be converted into Redemption Conversion Shares of the Company’s common stock. In addition, the Lender agreed that
the sale of any Redemption Conversion Shares between January 27, 2017 and April 30, 2017 (the “Limitation Period”)
was subject to the Volume Limitation. Immediately following the expiration of the Volume Period, the Volume Limitation will be
cancelled.
In March
2017, the Company entered into Amendment #3 to the Iliad Note (the “Iliad Amendment 3”). In accordance with the Iliad
Amendment 3, during the period from March 1, 2017 to March 31, 2017, the Company agreed to allow the Lender to convert up to $500,000
(the “Additional Redemption Amount 2”) in Redemption Conversions under the Note, provided that the Lender not effectuate
a Redemption Conversion of any Maximum Monthly Redemption Amount from March 1, 2017 until April 1, 2017. During this time period,
the Company was not allowed to pay any of the Additional Redemption Amount 2 in cash and all such amounts had to be converted into
Redemption Conversion Shares of the Company’s common stock. In addition, the Lender agreed that the sale of any Redemption
Conversion Shares between March 1, 2017 and May 31, 2017 (the “Limitation Period 2”) shall be subject to the Volume
Limitation. Immediately following the expiration of the Volume Period, the Volume Limitation will be cancelled.
In
August 2017, the Company entered into Amendment #4 to the Iliad Note (the “Iliad Amendment 4”), whereby
the Lender and the Company agreed to extend the Maturity Date of the Iliad Note to April 1, 2018. In addition, the parties
agreed to amend the Volume Limitation in the Iliad Note, with respect to any Conversion Shares, such that in any given
calendar week the Lender’s Net Sales of such Conversion Shares shall not exceed the greater of (a) fifteen percent (15%)
of the Company’s weekly dollar trading volume in such week or (b) $50,000 (the “Volume Limitation”).
However, if the Lender’s Net Sales are less than the Volume Limitation for any given week, then in the following week
or weeks, the Lender shall be allowed to sell an additional amount of Conversion Shares equal to the difference between the
amount the Lender was allowed to sell and the amount the Lender actually sold. For the purpose of the Iliad Amendment 4, Net
Sales is defined as the gross proceeds from sales of the Conversion Shares sold in a calendar week minus any trading
commissions or costs associated with clearing and selling such Conversion Shares minus the purchase price paid for any shares
of the Company’s common stock purchased in the open market during such week. The Lender and the Company both agree that
in the event the Lender breaches the Volume Limitation where its Net Sales of Conversion Shares during any week exceeds the
dollar volume the Lender is permitted to sell during such week pursuant to the Volume Limitation (the “Excess
Sales”), then the Company’s sole and exclusive remedy for such breach shall be the reduction of the outstanding
balance of the Iliad Note by an amount equal to 200% of the Excess Sales upon delivery of written notice to the Lender
setting forth its basis for such reduction. In connection with the Iliad Amendment 4, Lender confirmed that no Events of
Default or other material breaches exist under the Iliad Note and related Transaction Documents (as defined in the
Iliad SPA).
During
the nine months ended September 30, 2017, the Company issued 7,903,822 shares of its common stock to Iliad in connection
with the conversions of the Iliad Note in the aggregate principal amount of $1,585,801 and $69,199 of accrued interest. The
total aggregate principal and accrued interest of $1,655,000 was allocated to common stock and additional paid-in
capital.
The Company’s
borrowings and conversions under the Iliad SPA for the nine months ended September 30, 2017 and for the year ended December 31,
2016 is summarized in the table below:
|
|
Maturity
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
|
Interest Rate
|
|
|
|
|
|
|
|
|
|
|
|
Secured promissory note payable
|
|
April 1, 2018
|
|
$
|
2,055,000
|
|
|
$
|
2,055,000
|
|
|
10%
|
Interest accrued
|
|
|
|
|
194,596
|
|
|
|
128,311
|
|
|
|
Unamortized original issue discount and debt issuance costs
|
|
|
|
|
–
|
|
|
|
(35,335
|
)
|
|
|
Conversion of convertible promissory notes and accrued interest to common stock
|
|
|
|
|
(1,905,000
|
)
|
|
|
(175,000
|
)
|
|
|
Conversion of convertible promissory notes and accrued interest to accrued liabilities
|
|
|
|
|
–
|
|
|
|
(75,000
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net carrying amount of debt
|
|
|
|
|
344,596
|
|
|
|
1,897,976
|
|
|
|
Less current portion
|
|
|
|
|
(344,596
|
)
|
|
|
(1,897,976
|
)
|
|
|
Long-term borrowings - net of current portion
|
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
|
On the Purchase
Price Date, the Company recorded a beneficial conversion feature of $370,000 (the “Iliad Instrument”), which was originally
recorded in additional paid-in capital (“APIC”) and was scheduled for amortization over six months. The Company determined
in 2016 that the Iliad Instrument qualifies for derivative accounting treatment. The $370,000 fair value of the Iliad Instrument
at the Purchase Price Date is unchanged as a result of the change in derivative accounting treatment, however, in 2016 we reclassified
the Iliad Instrument from APIC to a liability in accordance with derivative accounting treatment. During the three and nine months
ended September 30, 2017, the Company recorded a gain of $0 and $222,800 respectively, for the change in fair value of the Iliad
Instrument as part of a separate line item in the Company’s Condensed Consolidated Statement of Operations. The assumptions
used by the Company for calculating the fair value of the Iliad Instrument at the Purchase Price Date using the Binomial Lattice
valuation model were: (i) Volatility of 74.0%; (ii) Risk-Free Interest Rate of 0.44%; and (iii) Expected Term of five months; and
at September 30, 2017 were (i) Volatility of 61.0%, (ii) Risk-Free Interest Rate of 0.74%; and (iii) Expected Term of zero months.
In
March 2017, the Company entered into another Securities Purchase Agreement (“Iliad SPA 2”) with Iliad pursuant
to which the Lender loaned the Company $750,000. On March 1, 2017 (the “Subsequent Purchase Price Date”),
the Company issued to Lender a Secured Convertible Promissory Note (the “Iliad Note 2”) in the principal amount
of $770,000 in exchange for payment by Lender of $750,000. The principal sum of the Iliad Note reflects the amount
invested, plus a $15,000 OID and a $5,000 reimbursement of Lender’s legal fees. The Company received net proceeds of
$750,000 in exchange for the Iliad Note 2. The Iliad Note 2 requires the repayment of all principal and any interest, fees,
charges and late fees on the date that is fourteen (14) months after the Subsequent Purchase Price Date (the
“Maturity Date”). Interest is to be paid on the outstanding balance at a rate of eight percent (8%) per annum
from the Subsequent Purchase Price Date until the Iliad Note 2 is paid in full. Interest is accrued during the term of the
Iliad Note 2 and all interest calculations shall be computed on the basis of a 360-day year comprised of twelve (12) thirty
(30)-day months and shall compound daily. Subject to adjustment as set forth in the Iliad Note 2, the conversion price for
each Lender conversion shall be the Lender Conversion Price, convertible into shares of fully paid and non-assessable common
stock. Beginning on the date that is six months after the Subsequent Purchase Price Date and continuing until the Maturity
Date, Iliad shall have the right to redeem a portion of the Iliad Note 2 in an amount not to exceed $100,000. Provided the
Company has not suffered an “Event of Default” and is in compliance with certain “Equity Conditions”
(unless waived by Iliad, in either case), the Company may make payments on such redemptions in cash or by converting the
redemption amount into shares of Company common stock at a conversion price which is the lesser of (a) $0.50 per share and
(b) 70% (“the Conversion Factor”) of the average of the three (3) lowest closing bid prices in the previous
twenty (20) trading days, subject to adjustment as follows: if at any time (1) the average of the three lowest closing bid
prices in the previous twenty (20) trading days is below $0.25 per share then the Conversion Factor will be reduced by 10%,
(2) the Company is not DWAC eligible, then the Conversion Factor will be reduced by 5%, (3) the
Company is not DTC eligible, then the Conversion Factor will be reduced by an additional 5% or (4) there has occurred a
“Major Default” then the Conversion Factor will be reduced by an additional 5% for each of the first three Major
Defaults that occur after the effective date. The Company may prepay the Iliad Note 2 at any time by payment to Lender of
125% of the principal, interest and other amounts then due under the Note. The Company may prepay the Iliad Note
notwithstanding an earlier notice of conversion from the Lender, provided that in such event the Lender may convert an amount
not to exceed $200,000 under the Iliad Note 2. In connection with the Iliad Note 2, as set forth above, the Company incurred
an original issue discount of $15,000 and $5,000 of other debt issuance costs, which will be amortized over the Iliad Note 2
term. The Iliad Note 2 is secured by the Company’s accounts receivable, inventory and equipment.
The Company’s
borrowings under the Iliad SPA 2 for the nine months ended September 30, 2017 and for the year ended December 31, 2016 is summarized
in the table below:
|
|
Maturity
|
|
September 30,
2017
|
|
|
December 31,
2016
|
|
|
Interest Rate
|
|
|
|
|
|
|
|
|
|
|
|
Secured promissory note payable
|
|
April 30, 2018
|
|
$
|
770,000
|
|
|
$
|
–
|
|
|
8%
|
Interest accrued
|
|
|
|
|
37,319
|
|
|
|
–
|
|
|
|
Unamortized original issue discount and debt issuance costs
|
|
|
|
|
(9,999
|
)
|
|
|
–
|
|
|
|
Unamortized discount - embedded derivative
|
|
|
|
|
(3,225
|
)
|
|
|
–
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net carrying amount of debt
|
|
|
|
|
794,095
|
|
|
|
–
|
|
|
|
Less current portion
|
|
|
|
|
(794,095
|
)
|
|
|
–
|
|
|
|
Long-term borrowings - net of current portion
|
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
|
On the
Subsequent Purchase Price Date, the Company recorded a derivative liability of $29,300 which is scheduled for amortization
over eight months. During the three and nine months ended September 30, 2017, the Company recorded a gain of $10,987 and
$26,075, respectively, for the change in fair value of the derivative liability as part of a separate line item in the
Company’s Condensed Consolidated Statement of Operations. The assumptions used by the Company for calculating the fair
value of the derivative liability at the Subsequent Purchase Price Date and at September 30, 2017 using the Binomial Lattice
valuation model were: (i) Volatility of 85.0%; (ii) Risk-Free Interest Rate of 0.84%; and (iii) Expected Term of
eight months; and at September 30, 2017 were (i) Volatility of 84.0%, (ii) Risk-Free Interest Rate of 0.93%; and (iii)
Expected Term of four months.
Redwood Secured Convertible Promissory Notes Payable
On May 19,
2015 (the “Closing Date”), the Company entered into a Securities Purchase Agreement (“SPA”) with Redwood
Management, LLC (the “Investor” or “Redwood”) pursuant to which the Investor committed to lend to the Company
up to $6,500,000 (the “Financing”).
During the
year ended December 31, 2015, the Company issued four tranches of convertible promissory notes (collectively, the “Notes”,
and individually, “Note 1”, “Note 2”, “Note 3”, and “Note 4”) in the aggregate
principal amount of $1,785,000 to the Investor and other third parties who were assigned rights by the Investor to participate
in the Financing (together with the Investor, the “Investors”). During the first quarter of 2016, the Company repaid
all obligations under the SPA and has no intention of seeking further capital from the Investor, or any other investor(s) in the
Financing.
During the
nine months ended September 30, 2016, the Company repaid the remaining principal and interest balance under the Notes as follows:
(i) issued 3,062,535 shares of its common stock to the Investors in connection with conversion of the remaining $255,000 principal
balance of Note 2; (ii) repaid $357,000 of the aggregate principal amount of Note 3 plus interest in the amount of $148,944 in
cash to the Investors, and issued 2,500,000 shares of its common stock to the Investors in connection with the conversion of the
remaining principal amount of $153,000 of Note 3; and, (iii) repaid the entire principal amount of Note 4 in the amount of $255,000
plus interest in the amount of $93,075 in cash to the Investors.
The Company’s
borrowings and conversions under the SPA for the year ended December 31, 2016 is summarized in the table below:
|
|
|
|
|
2016
|
|
|
|
|
|
|
Maturity
|
|
|
Balance
|
|
|
Interest Rate
|
|
Senior Secured Convertible Promissory Notes:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tranche 1 (Note 1)
|
|
|
May 19, 2016
|
|
|
$
|
–
|
|
|
|
10%
|
|
Tranche 2 (Note 2)
|
|
|
June 12, 2016
|
|
|
|
255,000
|
|
|
|
10%
|
|
Tranche 3 (Note 3)
|
|
|
July 24, 2016
|
|
|
|
510,000
|
|
|
|
10%
|
|
Tranche 4 (Note 4)
|
|
|
September 16, 2016
|
|
|
|
255,000
|
|
|
|
10%
|
|
Total borrowings
|
|
|
|
|
|
|
1,020,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Convertible notes converted (Note 1)
|
|
|
|
|
|
|
–
|
|
|
|
|
|
Convertible notes converted (Note 2)
|
|
|
|
|
|
|
(255,000
|
)
|
|
|
|
|
Convertible notes converted/repaid (Note 3)
|
|
|
|
|
|
|
(510,000
|
)
|
|
|
|
|
Convertible notes repaid (Note 4)
|
|
|
|
|
|
|
(255,000
|
)
|
|
|
|
|
Unamortized debt issuance cost
|
|
|
|
|
|
|
–
|
|
|
|
|
|
Unamortized debt discount - beneficial conversion feature
|
|
|
|
|
|
|
–
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net carrying amount of debt
|
|
|
|
|
|
|
–
|
|
|
|
|
|
Less current portion
|
|
|
|
|
|
|
–
|
|
|
|
|
|
Long-term borrowings - net of current portion
|
|
|
|
|
|
$
|
–
|
|
|
|
|
|
Current Unsecured Note Payable
In November 2016, the Company
entered into a Commercial Premium Finance Agreement with First Insurance Funding in order to fund a portion of the Company’s
insurance policies. The amount financed was $161,351 and bears interest at a rate of 4.5%. The Company is required to make nine
payments of $18,266 a month to satisfy this current unsecured note payable. As of September 30, 2017, and December 31, 2016, the
outstanding balance was $0 and $125,964, respectively.
Unsecured Note Payable
On
January 29, 2016, the Company issued an unsecured promissory note to Wiltshire, LLC in the principal amount of $850,000
(the “Promissory Note”) in consideration of a loan provided to the Company by Wiltshire, LLC. The Promissory
Note bears interest at twelve percent (12%) per annum, and the Company is obligated to make monthly interest-only payments in
the amount of $8,500, for which the interest-only payments obligation commenced on March 1, 2016. All principal and accrued
and unpaid interest is due under the Promissory Note on February 1, 2018. The Company has the right to prepay the Promissory
Note without penalty or premium. In connection with the Promissory Note, the Company incurred an original issue discount
of $30,000 and $18,570 of other debt issuance costs, which will be amortized over the Promissory Note term.
The Company’s borrowing
under the Promissory Note for the nine months ended September 30, 2017 and for the year ended December 31, 2016 is summarized in
the table below:
|
|
Maturity
|
|
September 30, 2017
|
|
|
December 31, 2016
|
|
|
Interest Rate
|
|
|
|
|
|
|
|
|
|
|
|
Unsecured promissory note payable
|
|
February 1, 2018
|
|
$
|
850,000
|
|
|
$
|
850,000
|
|
|
12%
|
Unamortized original issue discount and debt issuance costs
|
|
|
|
|
(8,096
|
)
|
|
|
(26,309
|
)
|
|
|
Unamortized debt discount - fair value of warrants
|
|
|
|
|
(44,467
|
)
|
|
|
(144,517
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net carrying amount of debt
|
|
|
|
|
797,437
|
|
|
|
679,174
|
|
|
|
Less current portion
|
|
|
|
|
(797,437
|
)
|
|
|
–
|
|
|
|
Long-term borrowings - net of current portion
|
|
|
|
$
|
–
|
|
|
$
|
679,174
|
|
|
|
Pursuant
to the terms of the Promissory Note, the Company issued to Wiltshire, LLC a common stock purchase warrant providing Wiltshire,
LLC with the right to purchase up to 2,000,000 shares of the Company’s common stock (the “Warrant”). The Warrant
is exercisable, subject to certain limitations, subsequent to July 1, 2017 and before the date that is five years from the date
of issuance at an exercise price of $0.20 per share, subject to adjustment upon the occurrence of certain events such as stock
splits and dividends. The Company recorded the fair value of the Warrant of $266,800 as a debt discount associated with the Promissory
Note. During the three months ended each of September 30, 2017 and 2016, the Company recorded interest expense of $33,350 and $33,350,
respectively, for the amortization of the Warrant fair value. During the nine months ended each of September 30, 2017 and 2016,
the Company recorded interest expense of $100,500 and $88,933, respectively, for the amortization of the Warrant fair value. The
assumptions used by the Company for calculating the fair value of the Warrant at inception using the Black-Scholes valuation model
were: (i) Volatility of 83.3%; (ii) Risk-Free Interest Rate of 2.12%; and (iii) Expected Term of five years
.
Common Stock
The
Company is authorized to issue up to 190,000,000 shares of common stock, par value $0.0001 per share. As of September 30, 2017,
and December 31, 2016, the Company had 89,418,427 and 57,617,545 shares of common stock issued and
outstanding, respectively.
In March
2017, the Company entered into an amendment to the principal agreement for the CanX Acquisition (the “Amendment”),
as more fully set forth in our Current Report on Form 8-K filed with the SEC on March 22, 2017 (the “March 2017 8-K”).
Pursuant to such Amendment, which was approved by the disinterested members of the Board of Directors of the Company, the Company
agreed to issue the remaining 15,000,000 shares of contingent consideration to the former CanX shareholders, without the Company
having yet achieved any of the remaining post-closing milestones.
Additionally,
pursuant to such Amendment, the parties agreed to revise the Company’s buy-out option of the royalties payable to the CanX
shareholders in the future, to allow the Company to buy-out the future royalty payments by the issuance of 6,400,000 shares of
the Company’s restricted common stock (the “Royalty Buy-Out Shares”) to the former CanX shareholders. The Company
concurrently exercised the buy-out option, as so revised.
In the
aggregate, pursuant to the Amendment, the Company agreed to issue to the former CanX shareholders a total of 21,400,000
shares of restricted common stock which were issued in April 2017. As previously disclosed in the January 2016 8-K, James
McNulty, a member of the Board, is a former shareholder of CanX and thereby received his pro rata portion of the
consideration paid to the former CanX shareholders. During the nine months ended September 30, 2017, the Company recorded an
expense of $2,432,000 for the value of all the Royalty Buy-Out Shares as a separate line item in the Company’s
Condensed Consolidated Statement of Operations.
As of December 31, 2016, the Company had received notice
from the Iliad convertible debt holders requesting to convert $75,000 of convertible debt to common stock. The Company
reclassified $75,000 from convertible debt to accrued liabilities as of December 31, 2016 as a result of this conversion
notice being received. During the nine months ended September 30, 2017, the Company converted the $75,000 of accrued
liabilities with the issuance of 398,053 shares of common stock. For the nine months ended September 30, 2017, the Company
also issued an additional 7,502,929 in common stock for the satisfaction of $1,655,000 of additional Iliad Note debt.
Preferred Stock
The
Company is authorized to issue up to 10,000,000 shares of preferred stock, $0.0001 par value per share with
designations, rights and preferences to be determined from time to time by the Board of Directors of the Company. Each such
series or class shall have voting powers, if any, and such preferences and/or other special rights, with such qualifications,
limitations or restrictions of such preferences and/or rights as shall be stated in the resolution or resolutions providing
for the issuance of such series or class of shares of preferred stock. As of September 30, 2017, and December 31, 2016, there
were no shares of preferred stock issued and outstanding.
Options/Warrants/RSU’s
On July 23,
2014, Company stockholders approved the CV Sciences, Inc. Amended and Restated 2013 Equity Incentive Plan (the “Amended 2013
Plan”), which provides for the granting of stock options, restricted stock awards, restricted stock units, stock bonus awards
and performance-based awards. On each of December 21, 2015. October 24, 2016 and July 14, 2017 the Company’s stockholders
approved an amendment to the Amended 2013 Plan to increase the number of shares that may be issued under the Amended 2013 Plan.
There are currently 25,000,000 shares of common stock authorized for issuance under the Amended 2013 Plan. This plan serves as
the successor to the 2013 Equity Incentive Plan. There were no option awards under the 2013 Equity Incentive Plan prior to it being
amended and restated.
In April
2017, the disinterested members of the Board approved a grant of an aggregate of 2,000,000 performance-based stock options to purchase
shares of the Company’s common stock to two senior management members of the Company (including one management member of
the Board). The performance-based stock options are contingent and vest only upon the Company achieving three specific milestones
related to the success of the Company’s drug development program and were granted outside of the Company’s Amended
2013 Plan. Vesting of such options accelerates upon a sale of the Company or change in control.
In
March 2017, as further set forth in the March 22, 2017 8-K, the disinterested members of the Board approved the grant of
5,000,000 performance-based stock options (the “Mona Performance Options”) to purchase shares of the
Company’s common stock to one senior management member of the Company. The Mona Performance Options are contingent and
vest only upon the Company achieving three specific milestones related to the success of the Company’s drug development
program and were granted outside of the Company’s Amended 2013 Plan. Vesting of such options accelerates upon a sale of
the Company or change in control.
In
March 2017, as further set forth in the March 22, 2017 8-K, the disinterested members of the Board approved a grant of an
aggregate of 400,000 fully-vested stock options to purchase shares of the Company’s common stock to three senior
management members of the Company (including the two management members of the Board) pursuant to the bonus plan set forth in
the Employment Agreements for fiscal year 2016 performance.
Also in
March 2017, as further set forth in the March 22, 2017 8-K, the disinterested members of the Board, as the administrator of
the Amended 2013 Plan, approved the amendment to certain stock options granted to employees of the Company, including certain
options granted to three senior management members of the Company, to reduce the exercise price of such stock options. As a
result of the amendment to the stock option grants, each of the covered stock options, including those issued to three senior
management members of the Company, have been amended to provide for a strike price equal to $0.38 per share, which represents
100% of the fair market value of the Company’s common stock as of the date of the amendment to these stock option
grants.
In
addition, in March 2017, as further set forth in the March 22, 2017 8-K, the Company issued 5,000,000 RSU’s to a
consultant in exchange for consulting services. The restricted stock units vest as follows: 1,000,000 vest immediately
and 4,000,000 vest according to future performance-based criteria.
9.
|
STOCK-BASED COMPENSATION
|
The Company’s
Amended 2013 Plan provides for the granting of stock options, restricted stock awards, RSU’s, stock bonus awards and performance-based
awards. As of September 30, 2017, the Company had 9,332,000 authorized unissued shares reserved and available for issuance upon
exercise and conversion of outstanding awards under the Amended 2013 Plan.
The
stock options are exercisable at no less than the fair market value of the underlying shares on the date of grant, and restricted
stock and restricted stock units are issued at a value not less than the fair market value of the common stock on the date of the
grant. Generally, stock options awarded are vested in equal increments ranging from two to four years on the annual anniversary
date on which such equity grants were awarded. The stock options generally have a maximum term of 10 years
.
The Company
recognized Selling, General and Administration expenses of $1,328,096 and $539,976, relating to stock options and RSU’s issued
to employees, officers, directors and consultants for the three months ended September 30, 2017 and 2016, respectively. The Company
recognized Selling, General and Administration expenses of $3,072,224 and $1,357,684, relating to stock options and RSU’s
issued to employees, officers, directors and consultants for the nine months ended September 30, 2017 and 2016, respectively. The
Company recognized expenses of $0 and $108,001 relating to common stock issued to employees, officers, directors and consultants
during the three months ended September 30, 2017 and 2016, respectively. The Company recognized expenses of $0 and $541,126 relating
to common stock issued to employees, officers, directors and consultants during the nine months ended September 30, 2017 and 2016,
respectively.
As of September
30, 2017, total unrecognized compensation cost related to non-vested stock-based compensation arrangements granted to employees,
officers, and directors was $1,445,272, which is expected to be recognized over a weighted-average period of 1.61 years.
The following
table summarizes stock option activity for the Amended 2013 Plan during the nine months ended September 30, 2017:
|
|
Number of
Shares
|
|
|
Weighted
Average
Exercise
Price
|
|
|
Weighted
Average
Remaining
Contract Term (Years)
|
|
|
Aggregate
Intrinsic
Value
|
|
Outstanding - December 31, 2016
|
|
|
12,841,000
|
|
|
$
|
1.57
|
|
|
|
8.54
|
|
|
$
|
415,135
|
|
Granted
|
|
|
10,002,000
|
|
|
|
0.37
|
|
|
|
–
|
|
|
|
–
|
|
Exercised
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
Cancelled/Forfeited (1)
|
|
|
(6,921,253
|
)
|
|
|
2.38
|
|
|
|
–
|
|
|
|
–
|
|
Expired
|
|
|
(253,747
|
)
|
|
|
0.46
|
|
|
|
–
|
|
|
|
–
|
|
Outstanding - September 30, 2017
|
|
|
15,668,000
|
|
|
|
0.47
|
|
|
|
8.15
|
|
|
|
146,417
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total exercisable - September 30, 2017
|
|
|
11,648,174
|
|
|
|
0.51
|
|
|
|
7.81
|
|
|
|
108,026
|
|
Total unvested - September 30, 2017
|
|
|
4,019,826
|
|
|
|
0.36
|
|
|
|
9.16
|
|
|
|
38,390
|
|
Total vested or expected to vest - September 30, 2017
|
|
|
15,668,000
|
|
|
|
0.47
|
|
|
|
8.15
|
|
|
|
146,417
|
|
(1)
The
number of options cancelled/forfeited includes options cancelled in connection with the Exchange Program (see below).
In
March 2017, the Company completed an offer to exchange certain employee stock options under the Company’s amended 2013
Plan (the “Exchange Program”). Certain previously granted options were exchanged for new options with a lower
exercise price granted on a one-for-one basis. Options for an aggregate of 6,090,000 shares were exchanged. Options granted
pursuant to the Exchange Program have an exercise price of $0.38 per share, the closing price of the Company’s common
stock on the date of the exchange grant. The Exchange Program resulted in a total modification expense of of $417,598 which
is being recognized over the vesting period of the new options which range from zero months to approximately two
years.
The following
table summarizes unvested stock options for the Amended 2013 Plan during the nine months ended September 30, 2017:
|
|
Number of
Shares
|
|
|
Weighted Average
Fair Value Per
Share on
Grant Date
|
|
|
|
|
|
|
|
|
Unvested stock options - December 31, 2016
|
|
|
3,724,233
|
|
|
$
|
0.63
|
|
Granted
|
|
|
10,002,000
|
|
|
|
0.15
|
|
Vested
|
|
|
(2,785,154
|
)
|
|
|
0.34
|
|
Cancellations
|
|
|
(6,921,253
|
)
|
|
|
0.32
|
|
Unvested stock options - September 30, 2017
|
|
|
4,019,826
|
|
|
|
0.39
|
|
The following table summarizes
stock option activity outside of the Amended 2013 Plan during the nine months ended September 30, 2017:
|
|
Number of
Shares
|
|
|
Weighted
Average
Exercise
Price
|
|
|
Weighted
Average
Remaining
Contract Term
(Years)
|
|
|
Aggregate
Intrinsic
Value
|
|
Outstanding - December 31, 2016
|
|
|
2,750,000
|
|
|
$
|
0.37
|
|
|
|
9.77
|
|
|
$
|
170,500
|
|
Granted
|
|
|
4,500,000
|
|
|
|
0.37
|
|
|
|
–
|
|
|
|
–
|
|
Exercised
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
Forfeited
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
Expired
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
Outstanding - September 30, 2017
|
|
|
7,250,000
|
|
|
|
0.37
|
|
|
|
9.04
|
|
|
|
–
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total exercisable - September 30, 2017
|
|
|
7,250,000
|
|
|
|
0.37
|
|
|
|
9.04
|
|
|
|
–
|
|
Total unvested -September 30, 2017
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
Total vested or expected to vest - September 30, 2017
|
|
|
7,250,000
|
|
|
|
0.37
|
|
|
|
9.04
|
|
|
|
–
|
|
The following table summarizes
RSU activity outside of the Amended 2013 Plan during the nine months ended September 30, 2017:
|
|
Number of
Shares
|
|
|
Weighted
Average
Exercise
Price
|
|
|
Weighted
Average
Remaining
Contract Term
(Years)
|
|
|
Aggregate
Intrinsic
Valu
e
|
|
Outstanding - December 31, 2016
|
|
|
–
|
|
|
$
|
–
|
|
|
|
–
|
|
|
$
|
–
|
|
Granted and vested
|
|
|
2,000,000
|
|
|
|
–
|
|
|
|
–
|
|
|
|
700,000
|
|
Forfeited
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
Outstanding - September 30, 2017
|
|
|
2,000,000
|
|
|
|
–
|
|
|
|
–
|
|
|
|
699,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total exercisable - September 30, 2017
|
|
|
2,000,000
|
|
|
|
–
|
|
|
|
–
|
|
|
|
699,000
|
|
Total unvested - September 30, 2017
|
|
|
2,000,000
|
|
|
|
–
|
|
|
|
–
|
|
|
|
699,000
|
|
Total vested or expected to vest - September 30, 2017
|
|
|
2,000,000
|
|
|
|
–
|
|
|
|
–
|
|
|
|
699,000
|
|
The following table summarizes
RSU activity outside of the Amended 2013 Plan during the nine months ended September 30, 2017:
|
|
Number of
Shares
|
|
|
Weighted
Average
Fair Value
Per Share
on Grant Date
|
|
Unvested RSU's - December 31, 2016
|
|
|
–
|
|
|
$
|
–
|
|
Granted
|
|
|
2,000,000
|
|
|
|
0.40
|
|
Vested
|
|
|
(2,000,000
|
)
|
|
|
0.30
|
|
Cancellations
|
|
|
–
|
|
|
|
–
|
|
Unvested RSU's - September 30, 2017
|
|
|
–
|
|
|
|
–
|
|
10.
|
COMMITMENTS AND CONTINGENCIES
|
Commitments
The Company
has non-cancelable operating leases, which expire through 2017. The leases generally contain renewal options ranging from 1 to
3 years and require the Company to pay costs such as real estate taxes and common area maintenance. The following table provides
the Company’s lease commitments at September 30, 2017:
For the year ending December 31,
|
|
|
|
|
|
|
|
2017
|
|
$
|
520,640
|
|
2018
|
|
|
491,345
|
|
2019
|
|
|
666,275
|
|
2020
|
|
|
686,218
|
|
2021
|
|
|
706,818
|
|
Thereafter
|
|
|
2,977,147
|
|
|
|
$
|
6,048,443
|
|
Included
in the schedule of future minimum payments above is an eight-year lease commitment that was executed in June 2017 for the Company’s
future San Diego facility with an anticipated lease commencement date of December 1, 2017. Future minimum payments for this lease
commitment are $53,760, $491,345, $666,275, $686,218, $706,818 and $2,977,147 for the years 2017, 2018, 2019, 2020, 2021 and thereafter,
respectively.
The Company
incurred rent expense of $110,938 and $120,162 for the three months ended September 30, 2017 and 2016, respectively, and incurred
rent expense of $353,555 and $348,051 for the nine months ended September 30, 2017 and 2016, respectively.
The Company
has two supply arrangements in place with European farmers to supply raw material in future years, for which the Company has contractual
rights for the growth and processing of hemp oil for delivery through October 2018 under both contracts. We do not intend to purchase
any inventory under these supply agreements from the 2017 crop and/or 2018 crop.
Also in March
2017, the Board amended the Employment Agreements for two members of senior management, such that upon a Liquidity Event (as defined
below), Mr. Mona shall receive four percent (4%) and Mr. Mona III shall receive two percent (2%) of the Gross Closing Proceeds
(as defined below), subject to an aggregate cap of $750,000,000. A “Liquidity Event” means and include (A) a licensing
of the CBD Drug Product or any other intellectual property asset of the Company, or (B) (i) the direct or indirect sale or transfer,
in a single transaction or a series of related transactions, by the stockholders of the Company of voting securities, in which
the holders of the outstanding voting securities of the Company immediately prior to such transaction or series of transactions
hold, as a result of holding Company securities prior to such transaction, in the aggregate, securities possessing less than twenty
percent (20%) of the total combined voting power all outstanding voting securities of the Company or of the acquiring entity immediately
after such transaction or series of related transactions, (ii) a merger or consolidation in which the Company is not the surviving
entity, except for a transaction in which the holders of the outstanding voting securities of the Company immediately prior to
such merger or consolidation hold as a result of holding Company securities prior to such transaction, in the aggregate, securities
possessing more than fifty percent (50%) of the total combined voting power of all outstanding voting securities of the surviving
entity (or the parent of the surviving entity) immediately after such merger or consolidation, (iii) a reverse merger in which
the Company is the surviving entity but in which the holders of the outstanding voting securities of the Company immediately prior
to such merger hold as a result of holding Company securities prior to such transaction, in the aggregate, securities possessing
less than fifty percent (50%) of the total combined voting power of all outstanding voting securities of the Company or of the
acquiring entity immediately after such merger, or (iv) the sale, transfer or other disposition (in one transaction or a series
of related transactions) of all or substantially all of the assets of the Company, except for a transaction in which the holders
of the outstanding voting securities of the Company immediately prior to such transaction(s) receive as a distribution with respect
to securities of the Company, in the aggregate, securities possessing more than fifty percent (50%) of the total combined voting
power of all outstanding voting securities of the acquiring entity immediately after such transaction(s). “Gross Closing
Proceeds” means and include all cash sums payable to the Company or its stockholders in connection with a Liquidity Event
at the closing of a transaction constituting a Liquidity Event, and not including any deferred payments, earnouts, ongoing royalty
payments or other contingent or deferred compensation.
Contingencies
On April
23, 2014, Tanya Sallustro filed a purported class action complaint (the “Complaint”) in the Southern District of New
York (the “Court”) alleging securities fraud and related claims against the Company and certain of its officers and
directors and seeking compensatory damages including litigation costs. Ms. Sallustro alleges that between March 18-31, 2014, she
purchased 325 shares of the Company’s common stock for a total investment of $15,791. The Complaint refers to Current Reports
on Form 8-K and Current Reports on Form 8-K/A filings made by the Company on April 3, 2014 and April 14, 2014, in which the Company
amended previously disclosed sales (sales originally stated at $1,275,000 were restated to $1,082,375 - reduction of $192,625)
and restated goodwill as $1,855,512 (previously reported at net zero). Additionally, the Complaint states after the filing of the
Company’s Current Report on Form 8-K on April 3, 2014 and the following press release, the Company’s stock price “fell
$7.30 per share, or more than 20%, to close at $25.30 per share.” Subsequent to the filing of the Complaint, six different
individuals filed a motion asking to be designated the lead plaintiff in the litigation. On March 19, 2015, the Court issued a
ruling appointing Steve Schuck as lead plaintiff. Counsel for Mr. Schuck filed a “consolidated amended complaint” on
September 14, 2015. On December 11, 2015, the Company filed a motion to dismiss the consolidated amended complaint. After requesting
several extensions, counsel for Mr. Schuck filed an opposition to the motion to dismiss on March 21, 2016. The Company’s
reply brief was filed on April 25, 2016. Defendant Stuart Titus was served with the Summons & Complaint in the case and he
has recently completed briefing his motion to dismiss, through separate counsel. No hearing date has been set by the Court at this
time with respect to the motions to dismiss. Management intends to vigorously defend the allegations and an estimate of possible
loss cannot be made at this time.
On March
17, 2015, stockholder Michael Ruth filed a shareholder derivative suit in Nevada District Court alleging two causes of action:
1) Breach of Fiduciary Duty, and 2) “Gross Mismanagement.” The claims are premised on the same event as the already-pending
securities class action case in New York discussed above – it is alleged that the Form 8-K filings misstated goodwill and
sales of the Company, which when corrected, lead to a significant drop in stock price. The Company filed a motion to dismiss the
suit on June 29, 2015. Instead of opposing the Company’s motion, Mr. Ruth filed an amended complaint on July 20, 2015. Thereafter,
Mr. Ruth and the Company agreed to stay the action pending the outcome of the securities class action case in New York discussed
above. Management intends to vigorously defend the allegations. Since no discovery has been conducted and the case remains stayed,
an estimate of the possible loss or recovery cannot be made at this time.
On October
21, 2016, Dun Agro B.V. (“Dun Agro”) filed a complaint against the Company in the District Court of the North Netherlands,
location Groningen, The Netherlands (the “District Court”), alleging non-performance under a contract, seeking compensatory
damages of approximately 2,050,000 euros, excluding interest and costs. The plaintiff alleges that the Company was obligated to
perform under that certain supply agreement between the Company and Dun Agro dated December 19, 2013, and to purchase 1,000,000
kilograms of harvested raw material related to the 2016 crop. The Company filed a reply to the complaint on March 29, 2017, which
is now under review by the District Court. Management intends to vigorously defend the complaint allegations and an estimate of
possible loss cannot be made at this time.
On June 15,
2017, the SEC filed an enforcement action against the Company and its Chief Executive Officer. We have cooperated with the SEC’s
investigation and believe the claims made in the SEC’s complaint are without merit. We believe the allegations in the complaint
mischaracterize the actions of the Company and our Chief Executive Officer in connection with the matters related to our quarterly
results in fiscal year 2013. The complaint seeks disgorgement of a $10,000 bonus paid to our Chief Executive Officer as well as
other incentive-based and equity-based compensation, and payment of unspecified monetary penalties by the Company and our Chief
Executive Officer pursuant to Section 304 of the Sarbanes Oxley Act of 2002 and Section 21(d)(3) of the Exchange Act. Further,
the complaint seeks to permanently bar our Chief Executive Officer from acting as an officer or director of any issuer that has
a class of securities registered pursuant to Section 12 of the Exchange Act. We intend to vigorously contest the allegations in
the complaint.
In the normal
course of business, the Company is a party to a variety of agreements pursuant to which they may be obligated to indemnify the
other party. It is not possible to predict the maximum potential amount of future payments under these types of agreements due
to the conditional nature of our obligations and the unique facts and circumstances involved in each particular agreement. Historically,
payments made by us under these types of agreements have not had a material effect on our business, condensed consolidated results
of operations or financial condition.
The Company
operates in two distinct business segments: a consumer product segment in manufacturing, marketing and selling plant-based CBD
products to a range of market sectors; and, a specialty pharmaceutical segment focused on developing and commercializing novel
therapeutics utilizing synthetic CBD. The Company’s segments maintain separate financial information for which operating
results are evaluated on a regular basis by the Company’s senior management in deciding how to allocate resources and in
assessing performance. The Company evaluates its consumer product segment based on net product sales, gross profit and operating
income or loss. The Company currently evaluates its specialty pharmaceutical segment based on the progress of its clinical development
programs.
The following table
presents information by reportable operating segment for the three and nine months ended September 30, 2017:
|
|
Consumer Products Segment
|
|
|
Specialty Pharmaceutical Segment
|
|
|
Consolidated Totals
|
|
Three Months Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, 2017:
|
|
|
|
|
|
|
|
|
|
|
|
|
Product sales, net
|
|
$
|
5,591,210
|
|
|
$
|
–
|
|
|
$
|
5,591,210
|
|
Gross profit
|
|
|
3,997,649
|
|
|
|
–
|
|
|
|
3,997,649
|
|
Gain on change in derivative liability
|
|
|
10,987
|
|
|
|
–
|
|
|
|
10,987
|
|
Royalty buy-out
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
Selling, general and administrative
|
|
|
(4,259,725
|
)
|
|
|
(51,353
|
)
|
|
|
(4,311,078
|
)
|
Research and development
|
|
|
(76,520
|
)
|
|
|
(102,818
|
)
|
|
|
(179,338
|
)
|
Operating loss
|
|
$
|
(327,609
|
)
|
|
$
|
(154,171
|
)
|
|
$
|
(481,780
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, 2016:
|
|
|
|
|
|
|
|
|
|
|
|
|
Product sales, net
|
|
$
|
2,939,997
|
|
|
$
|
–
|
|
|
$
|
2,939,997
|
|
Gross profit
|
|
|
1,888,949
|
|
|
|
–
|
|
|
|
1,888,949
|
|
Selling, general and administrative
|
|
|
(2,952,533
|
)
|
|
|
(119,908
|
)
|
|
|
(3,072,441
|
)
|
Research and development
|
|
|
(292,738
|
)
|
|
|
(103,500
|
)
|
|
|
(396,238
|
)
|
Operating loss
|
|
$
|
(1,356,322
|
)
|
|
$
|
(223,408
|
)
|
|
$
|
(1,579,730
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, 2017:
|
|
|
|
|
|
|
|
|
|
|
|
|
Product sales, net
|
|
$
|
13,437,233
|
|
|
$
|
–
|
|
|
$
|
13,437,233
|
|
Gross profit
|
|
|
9,275,111
|
|
|
|
–
|
|
|
|
9,275,111
|
|
Gain on change in derivative liability
|
|
|
248,875
|
|
|
|
–
|
|
|
|
248,875
|
|
Royalty buy-out
|
|
|
–
|
|
|
|
(2,432,000
|
)
|
|
|
(2,432,000
|
)
|
Selling, general and administrative
|
|
|
(11,312,687
|
)
|
|
|
(200,873
|
)
|
|
|
(11,513,560
|
)
|
Research and development
|
|
|
(181,509
|
)
|
|
|
(392,192
|
)
|
|
|
(573,701
|
)
|
Operating loss
|
|
$
|
(1,970,210
|
)
|
|
$
|
(3,025,065
|
)
|
|
$
|
(4,995,275
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, 2016:
|
|
|
|
|
|
|
|
|
|
|
|
|
Product sales, net
|
|
$
|
7,850,430
|
|
|
$
|
–
|
|
|
$
|
7,850,430
|
|
Gross profit
|
|
|
5,178,911
|
|
|
|
–
|
|
|
|
5,178,911
|
|
Selling, general and administrative
|
|
|
(8,904,694
|
)
|
|
|
(242,717
|
)
|
|
|
(9,147,411
|
)
|
Research and development
|
|
|
(658,817
|
)
|
|
|
(220,781
|
)
|
|
|
(879,598
|
)
|
Operating loss
|
|
$
|
(4,384,600
|
)
|
|
$
|
(463,498
|
)
|
|
$
|
(4,848,098
|
)
|
On
October 12, 2017, the Company received a redemption notice for the conversion of $75,000 under the Iliad Note into
shares of the Company’s common stock. The Company issued 469,239 shares of common stock pursuant to the notice.
On
October 13, 2017 pursuant to its rights under the Iliad Note, the Company repaid with cash the total sum of $340,645,
which represented all outstanding amounts due under the Iliad Note. As a result, the Company has satisfied all of
its obligations under the Iliad Note, and the Iliad Note has been satisfied, repaid, retired and terminated.
On November 3, 2017, the Company received a redemption notice for
the conversion of $75,000 under the Iliad Note 2 into shares of the Company’s common stock. The Company issued 624,897 shares
of common stock pursuant to the notice.