ITEM
1. BUSINESS.
OUR BUSINESS
Overview
We are an acquisition holding company focused
on acquiring and managing a group of small businesses, which we characterize as those that have an enterprise value of less than $50 million,
in a variety of different industries headquartered in North America.
On May 28, 2020, our subsidiary 1847 Asien Inc.,
or 1847 Asien, acquired Asien’s Appliance, Inc., a California corporation, or Asien’s. Asien’s has been in business
since 1948 serving the North Bay area of Sonoma County, California. It provides a wide variety of appliance services, including sales,
delivery/installation, in-home service and repair, extended warranties, and financing. Its main focus is delivering personal sales and
exceptional service to its customers at competitive prices.
On September 30, 2020, our subsidiary 1847 Cabinet
Inc., or 1847 Cabinet, acquired Kyle’s Custom Wood Shop, Inc., an Idaho corporation, or Kyle’s. Kyle’s is a leading
custom cabinetry maker servicing contractors and homeowners since 1976 in Boise, Idaho and the surrounding area. Kyle’s focuses
on designing, building, and installing custom cabinetry primarily for custom and semi-custom builders.
On March 30, 2021, our subsidiary 1847 Wolo Inc.,
or 1847 Wolo, acquired Wolo Mfg. Corp., a New York corporation, and Wolo Industrial Horn & Signal, Inc., a New York corporation (which
we collectively refer to as Wolo). Headquartered in Deer Park, New York and founded in 1965, Wolo designs and sells horn and safety products
(electric, air, truck, marine, motorcycle and industrial equipment), and offers vehicle emergency and safety warning lights for cars,
trucks, industrial equipment and emergency vehicles.
On October 8, 2021, our subsidiary 1847 Cabinet
acquired High Mountain Door & Trim Inc., a Nevada corporation, or High Mountain, and Sierra Homes, LLC d/b/a Innovative Cabinets &
Design, a Nevada limited liability company, or Innovative Cabinets. Headquartered in Reno, Nevada and founded in 2014, High Mountain specializes
in all aspects of finished carpentry products and services, including doors, door frames, base boards, crown molding, cabinetry, bathroom
sinks and cabinets, bookcases, built-in closets, and fireplace mantles, among others, working primarily with large homebuilders of single-family
homes and commercial and multi-family developers. Innovative Cabinets is headquartered in Reno, Nevada and was founded in 2008. It specializes
in custom cabinetry and countertops for a client base consisting of single-family homeowners, builders of multi-family homes, as well
as commercial clients.
On February 9, 2023, our subsidiary, 1847 ICU
Holdings Inc., or 1847 ICU, acquired ICU Eyewear Holdings, Inc., a California corporation, and its subsidiary ICU Eyewear, Inc., a California
corporation, which we collectively refer to as ICU Eyewear. Headquartered in Hollister, California and founded in 1956, ICU Eyewear specializes
in the sale and distribution of reading eyewear and sunglasses, blue light blocking eyewear, sun readers, and other outdoor specialty
sunglasses, as well as select health and personal care items, including face masks.
Through our structure, we offer investors an opportunity
to participate in the ownership and growth of a portfolio of businesses that traditionally have been owned and managed by private equity
firms, private individuals or families, financial institutions or large conglomerates. We believe that our management and acquisition
strategies will allow us to achieve our goals to make and grow regular distributions to our common shareholders and increasing common
shareholder value over time.
We seek to acquire controlling interests in small
businesses that we believe operate in industries with long-term macroeconomic growth opportunities, and that have positive and stable
earnings and cash flows, face minimal threats of technological or competitive obsolescence and have strong management teams largely in
place. We believe that private company operators and corporate parents looking to sell their businesses will consider us to be an attractive
purchaser of their businesses. We make these businesses our majority-owned subsidiaries and actively manage and grow such businesses.
We expect to improve our businesses over the long term through organic growth opportunities, add-on acquisitions and operational improvements.
Our Market Opportunity
We acquire and manage small businesses, which
we characterize as those that have an enterprise value of less than $50 million. We believe that the merger and acquisition market for
small businesses is highly fragmented and provides significant opportunities to purchase businesses at attractive prices. For example,
according to GF Data, platform acquisitions with enterprise values greater than $50.0 million commanded valuation premiums 30% higher
than platform acquisitions with enterprise values less than $50.0 million (8.2x trailing twelve month adjusted EBITDA (Earnings Before
Interest, Taxes, Depreciation and Amortization) versus 6.3x trailing twelve month adjusted EBITDA, respectively).
We believe that the following factors contribute
to lower acquisition multiples for small businesses:
| ● | there are typically fewer potential acquirers for these businesses; |
| ● | third-party financing generally is less available for these acquisitions; |
| ● | sellers of these businesses may consider non-economic factors, such as continuing board membership or
the effect of the sale on their employees; and |
| ● | these businesses are generally less frequently sold pursuant to an auction process. |
We believe that our management team’s strong
relationships with business brokers, investment and commercial bankers, accountants, attorneys and other potential sources of acquisition
opportunities offers us substantial opportunities to purchase small businesses. See Item 10“Directors, Executive Officers and
Corporate Governance” for more information about our management team.
We also believe that significant opportunities
exist to improve the performance of the businesses upon their acquisition. In the past, our manager has acquired businesses that are often
formerly owned by seasoned entrepreneurs or large corporate parents. In these cases, our manager has frequently found that there have
been opportunities to further build upon the management teams of acquired businesses. In addition, our manager has frequently found that
financial reporting and management information systems of acquired businesses may be improved, both of which can lead to substantial improvements
in earnings and cash flow. Finally, because these businesses tend to be too small to have their own corporate development efforts, we
believe opportunities exist to assist these businesses in meaningful ways as they pursue organic or external growth strategies that were
often not pursued by their previous owners.
Our Strategy
Our long-term goals are to make and grow regular
distributions to our common shareholders and to increase common shareholder value over the long-term. We plan to continue focusing on
acquiring businesses. Therefore, we intend to continue to identify, perform due diligence on, negotiate and consummate platform acquisitions
of small businesses in attractive industry sectors.
Unlike buyers of small businesses that rely on
significant leverage to consummate acquisitions (as demonstrated by the data presented by total enterprise value, or TEV, below), we plan
to limit the use of third-party (i.e., external) acquisition leverage so that our debt will not exceed the market value of the assets
we acquire and so that our debt to EBITDA ratio will not exceed 1.25x to 1 for our operating subsidiaries. We believe that limiting leverage
in this manner will avoid the imposition on stringent lender controls on our operations that would otherwise potentially hamper the growth
of our operating subsidiaries and otherwise harm our business even during times when we have positive operating cash flows. Additionally,
in our experience, leverage rarely leads to “break-out” returns and often creates negative return outcomes that are not correlated
with the profitability of the business.
Source: GF Data ®
Source: GF Data ®
Management Strategy
Our management strategy involves the identification,
performance of due diligence, negotiation and consummation of acquisitions. After acquiring businesses, we attempt to grow the businesses
both organically and through add-on or bolt-on acquisitions. Add-on or bolt-on acquisitions are acquisitions by a company of other companies
in the same industry. Following the acquisition of companies, we seek to grow the earnings and cash flow of acquired companies and, in
turn, grow regular distributions to our common shareholders and to increase common shareholder value over time. We believe we can increase
the cash flows of our businesses by applying our intellectual capital to improve and grow our businesses.
We seek to acquire and manage small businesses.
We believe that the merger and acquisition market for small businesses is highly fragmented and provides opportunities to purchase businesses
at attractive prices. We believe we will be able to acquire small businesses for multiples ranging from three to six times EBITDA. We
also believe, and our manager has historically found, that significant opportunities exist to improve the performance of these businesses
upon their acquisition.
In general, our manager oversees and supports
the management team of our businesses by, among other things:
| ● | recruiting and retaining managers to operate our businesses by using structured incentive compensation
programs, including minority equity ownership, tailored to each business; |
| ● | regularly monitoring financial and operational performance, instilling consistent financial discipline,
and supporting management in the development and implementation of information systems; |
| ● | assisting the management teams of our businesses in their analysis and pursuit of prudent organic growth
strategies; |
| ● | identifying and working with business management teams to execute on attractive external growth and acquisition
opportunities; |
| ● | identifying and executing operational improvements and integration opportunities that will lead to lower
operating costs and operational optimization; |
| ● | providing the management teams of our businesses the opportunity to leverage our experience and expertise
to develop and implement business and operational strategies; and |
| ● | forming strong subsidiary level boards of directors to supplement management teams in their development
and implementation of strategic goals and objectives. |
We also believe that our long-term perspective
provides us with certain additional advantages, including the ability to:
| ● | recruit and develop management teams for our businesses that are familiar with the industries in which
our businesses operate; |
| ● | focus on developing and implementing business and operational strategies to build and sustain shareholder
value over the long term; |
| ● | create sector-specific businesses enabling us to take advantage of vertical and horizontal acquisition
opportunities within a given sector; |
| ● | achieve exposure in certain industries in order to create opportunities for future acquisitions; and |
| ● | develop and maintain long-term collaborative relationships with customers and suppliers. |
We intend to continually increase our intellectual
capital as we operate our businesses and acquire new businesses and as our manager identifies and recruits qualified operating partners
and managers for our businesses.
Acquisition Strategy
Our acquisition strategies involve the acquisition
of small businesses in various industries that we expect will produce positive and stable earnings and cash flow, as well as achieve attractive
returns on our invested capital. In this respect, we expect to make acquisitions in industries wherein we believe an acquisition presents
an attractive opportunity from the perspective of both (i) return on assets or equity and (ii) an easily identifiable path for growing
the acquired businesses. We believe that attractive opportunities will increasingly present themselves as private sector owners seek to
monetize their interests in longstanding and privately held businesses and large corporate parents seek to dispose of their “non-core”
operations.
We believe that the greatest opportunities for
generating consistently positive annual returns and, ultimately, residual returns on capital invested in acquisitions will result from
targeting capital light businesses operating in niche geographical markets with a clearly identifiable competitive advantage within the
following industries: business services, consumer services, consumer products, consumable industrial products, industrial services, niche
light manufacturing, distribution, alternative/specialty finance and in select cases, specialty retail. While we believe that the professional
experience of our management team within the industries identified above will offer the greatest number of acquisition opportunities,
we will not eschew opportunities if a business enjoys an inarguable moat around its products and services in an industry which our management
team may have less familiarity.
From a financial perspective, we expect to make
acquisitions of small businesses that are stable, have minimal bad debt, and strong accounts receivable. In addition, we expect to acquire
companies that have been able to generate positive pro forma cash available for distribution for a minimum of three years prior to acquisition.
Our previous acquisitions met these acquisition criteria.
We benefit from our manager’s ability to
identify diverse acquisition opportunities in a variety of industries. In addition, we rely upon our management teams’ experience
and expertise in researching and valuing prospective target businesses, as well as negotiating the ultimate acquisition of such target
businesses. In particular, because there may be a lack of information available about these target businesses, which may make it more
difficult to understand or appropriately value such target businesses, our manager will:
| ● | engage in a substantial level of internal and third-party due diligence; |
| ● | critically evaluate the management team; |
| ● | identify and assess any financial and operational strengths and weaknesses of any target business; |
| ● | analyze comparable businesses to assess financial and operational performances relative to industry competitors; |
| ● | actively research and evaluate information on the relevant industry; and |
| ● | thoroughly negotiate appropriate terms and conditions of any acquisition. |
The process of acquiring new businesses is time-consuming
and complex. Our manager has historically taken from 2 to 24 months to perform due diligence on, negotiate and close acquisitions. Although
we expect our manager to be at various stages of evaluating several transactions at any given time, there may be significant periods of
time during which it does not recommend any new acquisitions to us.
Upon an acquisition of a new business, we rely
on our manager’s experience and expertise to work efficiently and effectively with the management of the new business to jointly
develop and execute a business plan.
While primarily seek to acquire controlling interests
in a business, we may also acquire non-control or minority equity positions in businesses where we believe it is consistent with our long-term
strategy.
As discussed in more detail below, we intend to
raise capital for additional acquisitions primarily through debt financing, primarily at our operating company level, additional equity
offerings by our company, the sale of all or a part of our businesses or by undertaking a combination of any of the above.
Our primary corporate purpose is to own, operate
and grow our operating businesses. However, in addition to acquiring businesses, we expect to sell businesses that we own from time
to time. Our decision to sell a business will be based upon financial, operating and other considerations rather than a plan to complete
a sale of a business within any specific time frame. We may also decide to own and operate some or all of our businesses in perpetuity
if our board believes that it makes sense to do so. Upon the sale of a business, we may use the resulting proceeds to retire debt or retain
proceeds for future acquisitions or general corporate purposes. Generally, we do not expect to make special distributions at the time
of a sale of one of our businesses; instead, we expect that we will seek to gradually increase regular common shareholder distributions
over time.
There are several risks associated with our acquisition
strategy, including the following risks, which are described more fully in Item 1A “Risk Factors—Risks Related to Our Business
and Structure”:
| ● | we may not be able to successfully fund future acquisitions of new businesses due to the unavailability
of debt or equity financing on acceptable terms, which could impede the implementation of our acquisition strategy; |
| ● | we may experience difficulty as we evaluate, acquire and integrate businesses that we may acquire, which
could result in drains on our resources, including the attention of our management, and disruptions of our on-going business; |
| ● | we face competition for businesses that fit our acquisition strategy and, therefore, we may have to acquire
targets at sub-optimal prices or, alternatively, forego certain acquisition opportunities; and |
| ● | we may change our management and acquisition strategies without the consent of our shareholders, which
may result in a determination by us to pursue riskier business activities. |
Strategic Advantages
Based on the experience of our manager and its
ability to identify and negotiate acquisitions, we believe that we are strongly positioned to acquire additional businesses. Our manager
has strong relationships with business brokers, investment and commercial bankers, accountants, attorneys and other potential sources
of acquisition opportunities. In negotiating these acquisitions, we believe our manager will be able to successfully navigate complex
situations surrounding acquisitions, including corporate spin-offs, transitions of family-owned businesses, management buy-outs and reorganizations.
We believe that the flexibility, creativity, experience
and expertise of our manager in structuring transactions provides us with strategic advantages by allowing us to consider non-traditional
and complex transactions tailored to fit a specific acquisition target.
Our manager also has a large network of deal intermediaries
who expose us to potential acquisitions. Through this network, we have a substantial pipeline of potential acquisition targets. Our manager
also has a well-established network of contacts, including professional managers, attorneys, accountants and other third-party consultants
and advisors, who may be available to assist us in the performance of due diligence and the negotiation of acquisitions, as well as the
management and operation of our businesses once acquired.
Valuation and Due Diligence
When evaluating businesses or assets for acquisition,
we perform a rigorous due diligence and financial evaluation process. In doing so, we seek to evaluate the operations of the target business
as well as the outlook for the industry in which the target business operates. While valuation of a business is, by definition, a subjective
process, we define valuations under a variety of analyses, including:
| ● | discounted cash flow analyses; |
| ● | evaluation of trading values of comparable companies; |
| ● | expected value matrices; |
| ● | assessment of competitor, supplier and customer environments; and |
| ● | examination of recent/precedent transactions. |
One outcome of this process is an effort to project
the expected cash flows from the target business as accurately as possible. A further outcome is an understanding of the types and levels
of risk associated with those projections. While future performance and projections are always uncertain, we believe that our detailed
due diligence review process allows us to more accurately estimate future cash flows and more effectively evaluate the prospects for operating
the business in the future. To assist us in identifying material risks and validating key assumptions in our financial and operational
analysis, in addition to our own analysis, we engage third-party experts to review key risk areas, including legal, tax, regulatory, accounting,
insurance and environmental. We may also engage technical, operational or industry consultants, as necessary.
A further critical component of the evaluation
of potential target businesses is the assessment of the capability of the existing management team, including recent performance, expertise,
experience, culture and incentives to perform. Where necessary, and consistent with our management strategy, we actively seek to augment,
supplement or replace existing members of management who we believe are not likely to execute the business plan for the target business.
Similarly, we analyze and evaluate the financial and operational information systems of target businesses and, where necessary, we actively
seek to enhance and improve those existing systems that are deemed to be inadequate or insufficient to support our business plan for the
target business.
Financing
We finance acquisitions primarily through additional
equity and debt financings. We believe that having the ability to finance most, if not all, acquisitions with the general capital resources
raised by our company, rather than financing relating to the acquisition of individual businesses, provides us with an advantage in acquiring
attractive businesses by minimizing delay and closing conditions that are often related to acquisition-specific financings. In this respect,
we believe that, at some point in the future, we may need to pursue additional debt or equity financings, or offer equity in our company
or target businesses to the sellers of such target businesses, in order to fund acquisitions.
Our Competitive Advantages
We believe that our manager’s collective
investment experience and approach to executing our investment strategy provide us with several competitive advantages. These competitive
advantages, certain of which are discussed below, have enabled our management to generate very attractive risk- adjusted returns for investors
in their predecessor firms.
Robust Network.
Through their activities with their predecessor firms and their comprehensive marketing capabilities, we believe that the management team
of our manager has established a “top of mind” position among investment bankers and business brokers targeting small businesses.
By employing an institutionalized, multi-platform marketing strategy, we believe our manager has established a robust national network
of personal relationships with intermediaries, seasoned operating executives, entrepreneurs and managers, thereby firmly establishing
our presence and credibility in the small business market. In contrast to many other buyers of and investors in small businesses, we believe
that we can buy businesses at value-oriented multiples and through our asset management activities with a group of professional, experienced
and talented operating partners, create appreciable value. We believe our experience, track record and consistent execution of our marketing
and investment activities will allow us to maintain a leadership position as the preferred partner for today’s small business market.
Disciplined Deal Sourcing.
We employ an institutionalized, multi-platform approach to sourcing new acquisition opportunities. Our deal sourcing efforts include leveraging
relationships with more than 3,000 qualified deal sources through regular calling, mail and e-mail campaigns, assignment of regional marketing
responsibilities, in-person visits and high-profile sponsorship of important conferences and industry events. We supplement these activities
by retaining selected intermediary firms to conduct targeted searches for opportunities in specific categories on an opportunistic basis.
As a result of the significant time and effort spent on these activities, we believe we established close relationships and unique “top
of mind” awareness with many of the most productive intermediary sources for small business acquisition opportunities in the United
States. While reinforcing our market leadership, this capability enables us to generate a large number of attractive acquisition opportunities.
Differentiated Acquisition
Capabilities in the Small Business Market. We deploy a differentiated approach to acquiring businesses in the small business market.
Our management concentrates their efforts on mature companies with sustainable value propositions, which can be supported by our resources
and institutional expertise. Our evaluation of acquisition opportunities typically involves significant input from a seasoned operating
partner with relevant experience, which we believe enhances both our diligence and ongoing monitoring capabilities. In addition, we approach
every acquisition opportunity with creative structures, which we believe enables us to engineer mutually attractive scenarios for sellers,
whereas competing buyers may be limited by their rigid structural requirements. We believe our commitment to conservative capital structures
and valuation will enhance each acquired operating subsidiary’s ability to deliver consistent levels of cash available for distribution,
while additionally supporting reinvestment for growth.
Value Proposition for
Business Owners. We employ a creative, flexible approach by tailoring each acquisition structure to meet the specific liquidity
needs and certain qualitative objectives of the target’s owners and management team. In addition to serving as an exit pathway for
sellers, we seek to align our interests with the sellers by enabling them to retain and/or earn (through incentive compensation) a substantial
economic interest in their businesses following the acquisition and by typically allowing the incumbent management team to retain operating
control of the acquired operating subsidiary on a day-to-day basis. We believe that our company is an appealing buyer for small business
owners and managers due to our track record of capitalizing portfolio companies conservatively, enhancing our ability to execute on its
strategic initiatives and adding equity value. As a result, we believe business owners and managers will find our company to be a dynamic,
value-added buyer that brings considerable resources to achieve their strategic, capital and operating needs, resulting in substantial
value creation for the operating subsidiary.
Operating Partner.
Our manager has consistently worked with a strong network of seasoned operating partners - former entrepreneurs and executives with extensive
experience building, managing and optimizing successful small businesses across a range of industries. We believe that our operating partner
model will enable us to make a significant improvement in the operating subsidiary, as compared to other buyers, such as traditional private
equity firms, which rely principally upon investment professionals to make acquisition/investment and monitoring decisions regarding not
only the business, financial and legal due diligence aspects of a business but also the more operational aspects including industry dynamics,
management strength and strategic growth initiatives. We typically engage an operating partner soon after identifying a target business
for acquisition, enhancing our acquisition judgment and building the acquisition team’s relationship with the subsidiary’s
management team. Operating partners usually serve as a member of the board of directors of an operating subsidiary and spend two to four
days per month working with the subsidiary’s management team. We leverage the operating partner’s extensive experience to
build the management team, improve operations and assist with strategic growth initiatives, resulting in value creation.
Small Business Market
Experience. We believe the history and experience of our manager’s partnering with companies in the small business market
allows us to identify highly attractive acquisition opportunities and add significant value to our operating subsidiaries. Our manager’s
investment experience in the small business market prior to forming our company has further contributed to our institutional expertise
in the acquisition, strategic and operational decisions critical to the long-term success of small businesses. Since 2000, the management
team of our manager has collectively been presented with several thousand investment opportunities and actively worked with more than
30 small businesses on all facets of their strategy, development and operations, which we have successfully translated into unique, institutionalized
capabilities directed towards creating value in small businesses.
Intellectual Property
Our manager owns certain intellectual property
relating to the term “1847.” Our manager has granted our company a license to use the term “1847” in its business.
Employees
As of December 31, 2022, our company had six full-time
employees (excluding our operating subsidiaries described below).
OUR CORPORATE STRUCTURE AND HISTORY
Our company is a Delaware limited liability company
that was formed on January 22, 2013. Your rights as a holder of common shares, and the fiduciary duties of our board of directors and
executive officers, and any limitations relating thereto, are set forth in the operating agreement governing our company and differ from
those applying to a Delaware corporation. However, subject to certain exceptions, the documents governing our company specify that the
duties of our directors and officers will be generally consistent with the duties of directors and officers of a Delaware corporation.
Our company is classified as a partnership for
U.S. federal income tax purposes. Under the partnership income tax provisions, our company is not expected to incur any U.S. federal income
tax liability; rather, each of our shareholders will be required to take into account his or her allocable share of company income, gain,
loss, deduction and credit. As a holder of our shares, you may not receive cash distributions sufficient in amount to cover taxes in respect
of your allocable share of our net taxable income. We will file a partnership return with the IRS and will issue you with tax information,
including a Schedule K-1, setting forth your allocable share of our income, gain, loss, deduction, credit and other items. The U.S. federal
income tax rules that apply to partnerships are complex, and complying with the reporting requirements may require significant time and
expense. See “Material U.S. Federal Income Tax Considerations” included in our prospectus, dated August 2, 2022 and
filed with the Securities and Exchange Commission, or the SEC, on August 4, 2022, for more information.
We currently have four classes of limited liability
company interests - the common shares, the series A senior convertible preferred shares, the series B senior convertible preferred shares
and the allocation shares. All of our allocation shares have been and will continue to be held by our manager.
On March 3, 2017, our newly formed wholly-owned
subsidiary 1847 Neese Inc., or 1847 Neese, acquired all of the issued and outstanding capital stock of Neese, Inc., or Neese, for an aggregate
purchase price of $6,655,000. On April 19, 2021, we entered into a stock purchase agreement with the original owners of Neese, pursuant
to which they purchased our 55% ownership interest in 1847 Neese for a purchase price of $325,000 in cash. As a result of this transaction,
1847 Neese is no longer a subsidiary of our company.
On April 5, 2019, our newly formed indirect wholly-owned
subsidiary 1847 Goedeker Inc., or 1847 Goedeker, acquired substantially all of the assets of Goedeker Television Co. for an aggregate
purchase price of $6,200,000. On October 23, 2020, we distributed all of the shares of 1847 Goedeker that we held to our shareholders.
As a result of this distribution, 1847 Goedeker is no longer a subsidiary of our company.
On May 28, 2020, our newly formed wholly-owned
subsidiary 1847 Asien acquired all of the issued and outstanding capital stock of Asien’s for an aggregate purchase price of $1,918,000
consisting of: (i) $233,000 in cash; (ii) the issuance of an amortizing promissory note in the principal amount of $200,000; (iii) the
issuance of a demand promissory note in the principal amount of $655,000; and (iv) 103,750 common shares of our company, having a mutually
agreed upon value of $830,000 and a fair value of $1,037,500, which could be repurchased by 1847 Asien for a period of one year following
the closing at a purchase price of $2.50 per share. The shares were repurchased by 1847 Asien on July 29, 2020. As a result of this transaction,
we own 95% of 1847 Asien, with the remaining 5% held by Leonite Capital LLC, or Leonite, and 1847 Asien owns 100% of Asien’s. 1847
Asien was formed in the State of Delaware on March 24, 2020 and Asien’s was formed in the State of California on February 6, 2004.
On September 30, 2020, our newly formed wholly-owned
subsidiary 1847 Cabinet acquired all of the issued and outstanding capital stock of Kyle’s for an aggregate purchase price of up
to $6,839,792, consisting of (i) $4,389,792 in cash, (ii) an 8% contingent subordinated note in the aggregate principal amount of up to
$1,260,000, and (iii) 175,000 common shares of our company, having a mutually agreed upon value of $1,400,000 and a fair value of $3,675,000.
As a result of this transaction, we own 92.5% of 1847 Cabinet, with the remaining 7.5% held by Leonite, and 1847 Cabinet owns 100% of
Kyle’s. 1847 Cabinet was formed in the State of Delaware on August 21, 2020 and Kyle’s was formed in the State of Idaho on
May 7, 1991.
On March 30, 2021, our newly formed wholly-owned subsidiary 1847 Wolo
acquired all of the issued and outstanding capital stock of Wolo for an aggregate purchase price of $8,344,055, consisting of (i) $6,550,000
in cash, (ii) a 6% secured promissory note in the aggregate principal amount of $850,000 and (iii) cash paid to seller, net of working
capital adjustment, of $944,056. As a result of this transaction, we own 92.5% of 1847 Wolo, with the remaining 7.5% held by Leonite,
and 1847 Wolo owns 100% of Wolo Mfg. Corp and Wolo Industrial Horn & Signal, Inc. 1847 Wolo was formed in the State of Delaware on
December 3, 2020. Wolo Mfg. Corp. was formed in the State of New York on August 6, 1965 and Wolo Industrial Horn & Signal, Inc. was
formed in the State of New York on January 28, 1999.
On October 8, 2021, 1847 Cabinet acquired all
of the issued and outstanding capital stock or other equity securities of High Mountain and Innovative Cabinets for an aggregate purchase
price of $15,441,173 (subject to adjustment), consisting of (i) $10,687,500 in cash and (ii) the issuance by 1847 Cabinet of 6% subordinated
convertible promissory notes in the amount of $4,753,673, consisting of an aggregate principal amount of $5,880,345, net of debt discount
of $1,126,672. As a result of this transaction, 1847 Cabinet acquired 92.5% of High Mountain and Innovative Cabinets, with the remaining
7.5% held by Leonite. On April 1, 2022, 1847 Cabinet transferred all of its shares of High Mountain to Innovative Cabinets, as a result
of which Innovative Cabinets now owns 92.5% of High Mountain, with the remaining 7.5% held by Leonite. High Mountain was formed in the
State of Nevada on April 4, 2014 and Innovative Cabinets was formed in the State of Nevada on June 17, 2008.
On February 9, 2023, our newly formed wholly-owned
subsidiary 1847 ICU acquired all of the issued and outstanding capital stock of ICU Eyewear for an aggregate purchase price of $4,500,000,
consisting of (i) 4,000,000 in cash, minus any unpaid debt of ICU Eyewear and certain transaction expenses, and (ii) the issuance of 6%
subordinated non-convertible promissory notes in the aggregate principal amount of $500,000. As a result of this transaction, we own 100%
of 1847 ICU, and 1847 ICU owns 100% of ICU Eyewear Holdings, Inc., which in turn owns 100% of ICU Eyewear, Inc. ICU Eyewear Holdings,
Inc. was formed in the State of California on October 20, 2003, and ICU Eyewear, Inc. was formed in the State of California on September
5, 1956.
On May 14, 2021, we formed 1847 HQ Inc. as
a wholly-owned subsidiary in the State of Delaware to manage our benefit plans.
The following chart depicts our current organizational structure:
See “—Our Manager” for
more details regarding the ownership of our manager.
OUR MANAGER
Overview of Our Manager
Our manager, 1847 Partners LLC, is a Delaware
limited liability company. It has two classes of limited liability interests known as Class A interests and Class B interests. The Class
A interests, which give the holder the right to the profit allocation received by our manager as a result of holding our allocation shares,
are owned in their entirety by 1847 Partners Class A Member LLC; and the Class B interests, which give the holder the right to all other
profits or losses of our manager, including the management fee payable to our manager by us, are owned in their entirety by 1847 Partners
Class B Member LLC. 1847 Partners Class A Member LLC is owned 52% by Ellery W. Roberts, our Chief Executive Officer, 38% by 1847 Founders
Capital LLC, which is owned by Edward J. Tobin, and approximately 9% by Louis A. Bevilacqua, the managing member of Bevilacqua PLLC, our
outside counsel, with the balance being owned by a former contractor to such law firm. 1847 Partners Class B Member LLC is owned 54% by
Ellery W. Roberts, 36% by 1847 Founders Capital LLC and 10% by Louis A. Bevilacqua. Mr. Roberts is also the sole manager of both entities.
In the future, Mr. Roberts may cause 1847 Partners Class A Member LLC or 1847 Partners Class B Member LLC to issue units to employees
of our manager to incentivize those employees by providing them with the ability to participate in our manager’s incentive allocation
and management fee.
Key Personnel of Our Manager
The key personnel of our manager are Ellery W.
Roberts, our Chief Executive Officer, and Edward J. Tobin. Each of these individuals will be compensated entirely by our manager from
the management fees it receives. As employees of our manager, these individuals devote a substantial majority of their time to the affairs
of our company.
Collectively, the management team of our manager
has more than 60 years of combined experience in acquiring and managing small businesses and has overseen the acquisitions and financing
of over 50 businesses.
Acquisition and Disposition Opportunities
Our manager has exclusive responsibility for reviewing
and making recommendations to our board of directors with respect to acquisition and disposition opportunities. If our manager does not
originate an opportunity, our board of directors will seek a recommendation from our manager prior to making a decision concerning such
opportunity. In the case of any acquisition or disposition opportunity that involves an affiliate of our manager or us, our nominating
and corporate governance committee, or, if we do not have such a committee, the independent members of our board of directors, will be
required to authorize and approve such transaction.
Our manager will review each acquisition or disposition
opportunity presented to our manager to determine if such opportunity satisfies the acquisition and disposition criteria established by
our board of directors. The acquisition and disposition criteria provide that our manager will review each acquisition opportunity presented
to it to determine if such opportunity satisfies our acquisition and disposition criteria, and if it is determined, in our manager’s
sole discretion, that an opportunity satisfies the criteria, our manager will refer the opportunity to our board of directors for its
authorization and approval prior to the consummation of any such opportunity.
Our investment criteria include the following:
| ● | Revenue of at least $5.0 million |
| ● | Current year EBITDA/Pre-tax Income of at least $1.5 million with a history of positive cash flow |
| ● | Clearly identifiable “blueprint” for growth with the potential for break-out returns |
| ● | Well-positioned companies within our core industry categories (consumer-driven, business-to-business,
light manufacturing and specialty finance) with strong returns on capital |
| ● | Opportunities wherein building management team, infrastructure and access to capital are the primary drivers
of creating value |
| ● | Headquartered in North America |
We believe we will be able to acquire small businesses
for multiples ranging from three to six times EBITDA. With respect to investment opportunities that do not fall within the criteria set
forth above, our manager must first present such opportunities to our board of directors. Our board of directors and our manager will
review these criteria from time to time and our board of directors may make changes and modifications to such criteria as we make additional
acquisitions and dispositions.
If an acquisition opportunity is referred to our
board of directors by our manager and our board of directors determines not to timely pursue such opportunity in whole or in part, any
part of such opportunity that we do not promptly pursue may be pursued by our manager or may be referred by our manager to any person,
including affiliates of our manager. In this case, our manager is likely to devote a portion of its time to the oversight of this opportunity,
including the management of a business that we do not own.
If there is a disposition, our manager must use
its commercially reasonable efforts to manage a process through which the value of such disposition can be maximized, taking into consideration
non-financial factors such as those relating to competition, strategic partnerships, potential favorable or adverse effects on us, our
businesses, or our investments or any similar factors that may reasonably perceived as having a short- or long-term impact on our business,
results of operations and financial condition.
Management Services Agreement
The management services agreement sets forth the
services performed by our manager. Our manager performs such services subject to the oversight and supervision of our board of directors.
In general, our manager performs those services
for us that would be typically performed by the executive officers of a company. Specifically, our manager performs the following services,
which we refer to as the management services, pursuant to the management services agreement:
| ● | manage our day-to-day business and operations, including our liquidity and capital resources and compliance
with applicable law; |
| ● | identify, evaluate, manage, perform due diligence on, negotiate and oversee acquisitions of target businesses
and any other investments; |
| ● | evaluate and oversee the financial and operational performance of our businesses, including monitoring
the business and operations of such businesses, and the financial performance of any other investments that we make; |
| ● | provide, on our behalf, managerial assistance to our businesses; |
| ● | evaluate, manage, negotiate and oversee dispositions of all or any part of any of our property, assets
or investments, including disposition of all or any part of our businesses; |
| ● | provide or second, as necessary, employees of our manager to serve as our executive officers or other
employees or as members of our board of directors; and |
| ● | perform any other services that would be customarily performed by executive officers and employees of
a publicly listed or quoted company. |
We and our manager have the right at any time
during the term of the management services agreement to change the services provided by our manager. In performing management services,
our manager has all necessary power and authority to perform, or cause to be performed, such services on our behalf, and, in this respect,
our manager is the only provider of management services to us. Nonetheless, our manager is required to obtain authorization and approval
of our board of directors in all circumstances where executive officers of a corporation typically would be required to obtain authorization
and approval of a corporation’s board of directors, including, for example, with respect to the consummation of an acquisition of
a target business, the issuance of securities or the entry into credit arrangements.
While our Chief Executive Officer, Mr. Ellery
W. Roberts, intends to devote substantially all of his time to the affairs of our company, neither Mr. Roberts, nor our manager, is expressly
prohibited from investing in or managing other entities. In this regard, the management services agreement does not require our manager
and its affiliates to provide management services to us exclusively.
Secondment of Our Executive Officers
In accordance with the terms of the management
services agreement, our manager may second to us our executive officers, which means that these individuals will be assigned by our manager
to work for us during the term of the management services agreement. Our board of directors has appointed Mr. Roberts as an executive
officer of our company. Although Mr. Roberts is an employee of our manager, he will report directly, and be subject, to our board of directors.
In this respect, our board of directors may, after due consultation with our manager, at any time request that our manager replace any
individual seconded to us and our manager will, as promptly as practicable, replace any such individual; however, our Chief Executive
Officer, Mr. Roberts, controls our manager, which may make it difficult for our board of directors to completely sever ties with Mr. Roberts.
Our manager and our board of directors may agree from time to time that our manager will second to us one or more additional individuals
to serve on our behalf, upon such terms as our manager and our board of directors may mutually agree.
Indemnification by our Company
We have agreed to indemnify and hold harmless
our manager and its employees and representatives, including any individuals seconded to us, from and against all losses, claims and liabilities
incurred by our manager in connection with, relating to or arising out of the performance of any management services. However, we will
not be obligated to indemnify or hold harmless our manager for any losses, claims and liabilities incurred by our manager in connection
with, relating to or arising out of (i) a breach by our manager or its employees or its representatives of the management services agreement,
(ii) the gross negligence, willful misconduct, bad faith or reckless disregard of our manager or its employees or representatives in the
performance of any of its obligations under the management services agreement, or (iii) fraudulent or dishonest acts of our manager or
its employees or representatives with respect to our company or any of its businesses.
Termination of Management Services Agreement
Our board of directors may terminate the management
services agreement and our manager’s appointment if, at any time:
| ● | a majority of our board of directors vote to terminate the management services agreement, and the holders
of at least a majority of the outstanding shares (other than shares beneficially owned by our manager) then entitled to vote also vote
to terminate the management services agreement; |
| ● | neither Mr. Roberts nor his designated successor controls our manager, which change of control occurs
without the prior written consent of our board of directors; |
| ● | there is a finding by a court of competent jurisdiction in a final, non-appealable order that (i) our
manager materially breached the terms of the management services agreement and such breach continued unremedied for 60 days after our
manager receives written notice from us setting forth the terms of such breach, or (ii) our manager (x) acted with gross negligence, willful
misconduct, bad faith or reckless disregard in performing its duties and obligations under the management services agreement, or (y) engaged
in fraudulent or dishonest acts in connection with our business or operations; |
| ● | our manager has been convicted of a felony under federal or state law, our board of directors finds that
our manager is demonstrably and materially incapable of performing its duties and obligations under the management services agreement,
and the holders of at least 66 2/3% of the then outstanding shares, other than shares beneficially owned by our manager, vote to terminate
the management services agreement; or |
| ● | there is a finding by a court of competent jurisdiction that our manager has (i) engaged in fraudulent
or dishonest acts in connection with our business or operations or (ii) acted with gross negligence, willful misconduct, bad faith or
reckless disregard in performing its duties and obligations under the management services agreement, and the holders of at least 66 2/3%
of the then outstanding shares (other than shares beneficially owned by our manager) vote to terminate the management services agreement. |
In addition, our manager may resign and terminate
the management services agreement at any time upon 120 days prior written notice to us, and this right is not contingent upon the finding
of a replacement manager. However, if our manager resigns, until the date on which the resignation becomes effective, it will, upon request
of our board of directors, use reasonable efforts to assist our board of directors to find a replacement manager at no cost and expense
to us.
Upon the termination of the management services
agreement, seconded officers, employees, representatives and delegates of our manager and its affiliates who are performing the services
that are the subject of the management services agreement will resign their respective position with us and cease to work at the date
of such termination or at any other time as determined by our manager. Any director appointed by our manager may continue serving on our
board of directors, subject to the terms of the operating agreement.
If we terminate the management services agreement,
we have agreed to cease using the term “1847”, including any trademarks based on the name of our company that may be licensed
to them by our manager, under the licensing provisions of the management services agreement, entirely in our business and operations within
180 days of such termination. Such licensing provisions of the management services agreement would require our company and its businesses
to change their names to remove any reference to the term “1847” or any reference to trademarks licensed to them by our manager.
In this respect, our right to use the term “1847” and related intellectual property is subject to licensing provisions between
our manager, on the one hand, and our company, on the other hand.
Except with respect to the termination fee payable
to our manager due to a termination of the management services agreement based solely on a vote of our board of directors and our shareholders,
no other termination fee is payable upon termination of the management services agreement for any other reason. See “—Our
Manager as a Service Provider—Termination Fee” for more information about the termination fee payable upon termination
of the management services agreement.
While termination of the management services agreement
will not affect any terms and conditions, including those relating to any payment obligations, that exist under any offsetting management
services agreements or transaction services agreements, such agreements will be terminable by our businesses upon 60 days prior written
notice and there will be no termination or other similar fees due upon such termination. Notwithstanding termination of the management
services agreement, our manager will maintain its rights with respect to the allocation shares it then owns, including its rights under
the supplemental put provision of our operating agreement. See “—Our Manager as an Equity Holder—Supplemental Put
Provision” for more information on our manager’s put right with respect to the allocation shares.
Our Relationship with Our Manager, Manager
Fees and Manager Profit Allocation
Our relationship with our manager is based on
our manager having two distinct roles: first, as a service provider to us and, second, as an equity holder of the allocation shares.
As a service provider, our manager performs a
variety of services for us, which entitles it to receive a management fee. As holder of our allocation shares, our manager has the right
to a preferred distribution in the form of a profit allocation upon the occurrence of certain events. Our manager paid $1,000 for the
allocation shares. In addition, our manager will have the right to cause us to purchase the allocation shares then owned by our manager
upon termination of the management services agreement.
These relationships with our manager are governed
principally by the following agreements:
| ● | the management services agreements relating to the services our manager performs for us and our businesses;
and |
| ● | our operating agreement relating to our manager’s rights with respect to the allocation shares it
owns and which contains the supplemental put provision relating to our manager’s right to cause us to purchase the allocation shares
it owns. |
We also expect that our manager will enter into
offsetting management services agreements and transaction services agreements with our businesses directly. These agreements, and some
of the material terms relating thereto, are discussed in more detail below. The management fee, profit allocation and put price under
the supplemental put provision will be our payment obligations and, as a result, will be paid, along with other company obligations, prior
to the payment of distributions to common shareholders.
The following table provides a simplified description
of the fees and profit allocation rights held by our manager. Further detail is provided in the following subsections.
Description |
|
Fee Calculation |
|
Payment Term |
Management Fees |
|
|
|
|
|
|
|
|
|
Determined by management services agreement |
|
0.5% of adjusted net assets (2.0% annually) |
|
Quarterly |
|
|
|
|
|
Determined by offsetting management services agreement |
|
Payment of fees by our subsidiary businesses that result in a dollar for dollar reduction of manager fees paid by us to our manager such that our manager cannot receive duplicate fees from both us and our subsidiary |
|
Quarterly |
|
|
|
|
|
Termination fee – determined by management services agreement |
|
Accumulated management fee paid in the preceding 4 fiscal quarters multiplied by 2. Paid only upon termination by our board and a majority in interest of our shareholders |
|
|
|
|
|
|
|
Determined by management services agreement |
|
Reimbursement of manager’s costs and expenses in providing services to us, but not including: (1) costs of overhead; (2) due diligence and other costs for potential acquisitions our board of directors does not approve pursuing or that are required by acquisition target to be reimbursed under a transaction services agreement; and (3) certain seconded officers and employees |
|
Ongoing |
|
|
|
|
|
Transaction Services Fees |
|
|
|
|
|
|
|
|
|
Acquisition services of target businesses or disposition of subsidiaries – fees determined by transaction services agreements |
|
2.0% of aggregate purchase price up to $50 million; plus 1.5% of aggregate purchase price in excess of $50 million and up to and equal to $100 million; plus 1.0% of aggregate purchase price in excess of $100 million |
|
Per transaction |
|
|
|
|
|
Manager profit allocation determined by our operating agreement |
|
20% of certain profits and gains on a sale
of subsidiary after clearance of the 8% annual hurdle rate
8% hurdle rate determined for any subsidiary
by multiplying the subsidiary’s average quarterly share of our assets by an 8% annualized rate
|
|
Sale of a material amount of capital stock
or assets of one of our businesses or subsidiaries.
Holding event: at the option of our manager,
for the 30 day period following the 5th anniversary of an acquired business (but only based on historical profits of the business) |
Our Manager as a Service Provider
Management Fee
We will pay our manager a quarterly management
fee equal to 0.5% (2.0% annualized) of its adjusted net assets, as discussed in more detail below (which we refer to as the parent management
fee).
Subject to any adjustments discussed below, for
performing management services under the management services agreement during any fiscal quarter, we will pay our manager a management
fee with respect to such fiscal quarter. The management fee to be paid with respect to any fiscal quarter will be calculated as of the
last day of such fiscal quarter, which we refer to as the calculation date. The management fee will be calculated by an administrator,
which will be our manager so long as the management services agreement is in effect. The amount of any management fee payable by us as
of any calculation date with respect to any fiscal quarter will be (i) reduced by the aggregate amount of any offsetting management fees,
if any, received by our manager from any of our businesses with respect to such fiscal quarter, (ii) reduced (or increased) by the amount
of any over-paid (or under-paid) management fees received by (or owed to) our manager as of such calculation date, and (iii) increased
by the amount of any outstanding accrued and unpaid management fees.
The management fee will be paid prior to the payment
of distributions to our common shareholders. If we do not have sufficient liquid assets to pay the management fee when due, we may be
required to liquidate assets or incur debt in order to pay the management fee.
Offsetting Management Services Agreements
Pursuant to the management services agreement,
we have agreed that our manager may, at any time, enter into offsetting management services agreements with our businesses pursuant to
which our manager may perform services that may or may not be similar to management services. Any fees to be paid by one of our businesses
pursuant to such agreements are referred to as offsetting management fees and will offset, on a dollar-for-dollar basis, the management
fee otherwise due and payable by us under the management services agreement with respect to a fiscal quarter. The management services
agreement provides that the aggregate amount of offsetting management fees to be paid to our manager with respect to any fiscal quarter
shall not exceed the management fee to be paid to our manager with respect to such fiscal quarter.
Our manager entered into offsetting management
services agreements with 1847 Asien, 1847 Cabinet, 1847 Wolo and 1847 ICU. See Item 7 “Management’s Discussion and Analysis
of Financial Condition and Results of Operations—Management Fees” for a description of these agreements. Our manager may
also enter into offsetting management services agreements with our future subsidiaries, which agreements would be in the form prescribed
by our management services agreement. The offsetting management fee paid to our manager for providing management services to a future
subsidiary will vary.
The services that our manager provides under the
offsetting management services agreements include: conducting general and administrative supervision and oversight of the subsidiary’s
day-to-day business and operations, including, but not limited to, recruiting and hiring of personnel, administration of personnel and
personnel benefits, development of administrative policies and procedures, establishment and management of banking services, managing
and arranging for the maintaining of liability insurance, arranging for equipment rental, maintenance of all necessary permits and licenses,
acquisition of any additional licenses and permits that become necessary, participation in risk management policies and procedures; and
overseeing and consulting with respect to our business and operational strategies, the implementation of such strategies and the evaluation
of such strategies, including, but not limited to, strategies with respect to capital expenditure and expansion programs, acquisitions
or dispositions and product or service lines. If our manager and the subsidiary do not enter into an offsetting management services agreement,
our manager will provide these services for our subsidiaries under our management services agreement.
Example of Calculation of Management Fee
with Adjustment for Offsetting Management Fees
In order to better understand how the management
fee is calculated, we are providing the following example:
Quarterly management fee: | |
(in thousands) | |
1 | |
Consolidated total assets | |
$ | 100,000 | |
2 | |
Consolidated accumulation amortization of intangibles | |
| 5,000 | |
3 | |
Total cash and cash equivalents | |
| 5,000 | |
4 | |
Adjusted total liabilities | |
| (10,000 | ) |
5 | |
Adjusted net assets (Line 1 + Line 2 – Line 3 – Line 4) | |
| 90,000 | |
6 | |
Multiplied by quarterly rate | |
| 0.5 | % |
7 | |
Quarterly management fee | |
$ | 450 | |
| |
| |
| | |
Offsetting management fees: | |
| | |
8 | |
Acquired company A offsetting management fees | |
$ | (100 | ) |
9 | |
Acquired company B offsetting management fees | |
| (100 | ) |
10 | |
Acquired company C offsetting management fees | |
| (100 | ) |
11 | |
Acquired company D offsetting management fees | |
| (100 | ) |
12 | |
Total offsetting management fees (Line 8 + Line 9 – Line 10 – Line 11) | |
| (400 | ) |
13 | |
Quarterly management fee payable by Company (Line 7 + Line 12) | |
$ | 50 | |
The foregoing example provides hypothetical information
only and does not intend to reflect actual or expected management fee amounts.
For purposes of the calculation of the management
fee:
| ● | “Adjusted net assets” will be equal to, as of any calculation date, the sum of (i) our consolidated
total assets (as determined in accordance with U.S. generally accepted accounting principles, or GAAP) as of such calculation date, plus
(ii) the absolute amount of our consolidated accumulated amortization of intangibles (as determined in accordance with GAAP) as of such
calculation date, minus (iii) total cash and cash equivalents, minus (iv) the absolute amount of our adjusted total liabilities as of
such calculation date. |
| ● | “Adjusted total liabilities” will be equal to, as of any calculation date, our consolidated
total liabilities (as determined in accordance with GAAP) as of such calculation date after excluding the effect of any outstanding third-party
indebtedness. |
| ● | “Quarterly management fee” will be equal to, as of any calculation date, the product of (i)
0.5%, multiplied by (ii) our adjusted net assets as of such calculation date; provided, however, that with respect to any fiscal quarter
in which the management services agreement is terminated, we will pay our manager a management fee with respect to such fiscal quarter
equal to the product of (i)(x) 0.5%, multiplied by (y) our adjusted net assets as of such calculation date, multiplied by (ii) a fraction,
the numerator of which is the number of days from and including the first day of such fiscal quarter to but excluding the date upon which
the management services agreement is terminated and the denominator of which is the number of days in such fiscal quarter. |
| ● | “Total offsetting management fees” will be equal to, as of any calculation date, fees paid
to our manager by the businesses that we acquire in the future under separate offsetting management services agreements. |
Transaction Services Agreements
Pursuant to the management services agreement,
we have agreed that our manager may, at any time, enter into transaction services agreements with any of our businesses relating to the
performance by our manager of certain transaction-related services in connection with the acquisitions of target businesses by us or dispositions
of our property or assets. These services may include those customarily performed by a third-party investment banking firm or similar
financial advisor, which may or may not be similar to management services, in connection with the acquisition of target businesses by
us or our subsidiaries or disposition of subsidiaries or any of our property or assets or those of our subsidiaries. In connection with
providing transaction services, our manager will generally receive a fee equal to the sum of (i) 2.0% of the aggregate purchase price
of the target business up to and equal to $50 million, plus (ii) 1.5% of the aggregate purchase price of the target business in excess
of $50 million and up to and equal to $100 million, plus (iii) 1.0% of the aggregate purchase price over $100 million, subject to annual
review by our board of directors. The purchase price of a target business shall be defined as the aggregate amount of consideration, including
cash and the value of any shares issued by us on the date of acquisition, paid for the equity interests of such target business plus the
aggregate principal amount of any debt assumed by us of the target business on the date of acquisition or any similar formulation. The
other terms and conditions relating to the performance of transaction services will be established in accordance with market practice.
Our manager may enter into transaction services
agreements with our subsidiaries and future subsidiaries, which agreements would be in the form prescribed by our management services
agreement.
The services that our manager will provide to
our subsidiaries and future subsidiaries under the transaction services agreements will include the following services that would be provided
in connection with a specific transaction identified at the time that the transaction services agreement is entered into: reviewing, evaluating
and otherwise familiarizing itself and its affiliates with the business, operations, properties, financial condition and prospects of
the future subsidiary and its target acquisition and preparing documentation describing the future subsidiary’s operations, management,
historical financial results, projected financial results and any other relevant matters and presenting such documentation and making
recommendations with respect thereto to certain of our manager’s affiliates.
Any fees received by our manager pursuant to such
a transaction services agreement will be in addition to the management fee payable by us pursuant to the management services agreement
and will not offset the payment of such management fee. A transaction services agreement with any of our businesses may provide for the
reimbursement of costs and expenses incurred by our manager in connection with the acquisition of such businesses.
Transaction services agreements will be reviewed,
authorized and approved by our board of directors on an annual basis.
Reimbursement of Expenses
We are responsible for paying costs and expenses
relating to its business and operations. We agreed to reimburse our manager during the term of the management services agreement for all
costs and expenses that are incurred by our manager or its affiliates on our behalf of, including any out-of-pocket costs and expenses
incurred in connection with the performance of services under the management services agreement, and all costs and expenses the reimbursement
of which are specifically approved by our board of directors.
We will not be obligated or responsible for reimbursing
or otherwise paying for any costs or expenses relating to our manager’s overhead or any other costs and expenses relating to our
manager’s conduct of its business and operations. Also, we will not be obligated or responsible for reimbursing our manager for
costs and expenses incurred by our manager in the identification, evaluation, management, performance of due diligence on, negotiation
and oversight of potential acquisitions of new businesses for which we (or our manager on our behalf) fail to submit an indication of
interest or letter of intent to pursue such acquisition, including costs and expenses relating to travel, marketing and attendance of
industry events and retention of outside service providers relating thereto. In addition, we will not be obligated or responsible for
reimbursing our manager for costs and expenses incurred by our manager in connection with the identification, evaluation, management,
performance of due diligence on, negotiating and oversight of an acquisition by us if such acquisition is actually consummated and the
business so acquired entered into a transaction services agreement with our manager providing for the reimbursement of such costs and
expenses by such business. In this respect, the costs and expenses associated with the pursuit of add-on acquisitions may be reimbursed
by any businesses so acquired pursuant to a transaction services agreement.
All reimbursements will be reviewed and, in certain
circumstances, approved by our board of directors on an annual basis in connection with the preparation of year-end financial statements.
Termination Fee
We will pay our manager a termination fee upon
termination of the management services agreement if such termination is based solely on a vote of our board of directors and our shareholders;
no other termination fee will be payable to our manager in connection with the termination of the management services agreement for any
other reason. The termination fee that is payable to our manager will be equal to the product of (i) two (2) multiplied by (ii) the sum
of the amount of the quarterly management fees calculated with respect to the four fiscal quarters immediately preceding the termination
date of the management services agreement. The termination fee will be payable in eight equal quarterly installments, with the first such
installment being paid on or within five (5) business days of the last day of the fiscal quarter in which the management services agreement
was terminated and each subsequent installment being paid on or within five (5) business days of the last day of each subsequent fiscal
quarter, until such time as the termination fee is paid in full to our manager.
Our Manager as an Equity Holder
Manager’s Profit Allocation
Our manager owns 100% of our allocation shares,
which generally will entitle our manager to receive a 20% profit allocation as a form of preferred distribution. Upon the sale of a subsidiary,
our manager will be paid a profit allocation if the sum of (i) the excess of the gain on the sale of such subsidiary over a high-water
mark plus (ii) the subsidiary’s net income since its acquisition by us exceeds the 8% hurdle rate. The 8% hurdle rate is the product
of (i) a 2% rate per quarter, multiplied by (ii) the number of quarters such subsidiary was held by us, multiplied by (iii) the subsidiary’s
average share (determined based on gross assets, generally) of our consolidated net equity (determined according to GAAP with certain
adjustments). In certain circumstances, after a subsidiary has been held for at least 5 years, our manager may also trigger a profit allocation
with respect to such subsidiary (determined based solely on the subsidiary’s net income since its acquisition). The calculation
of the profit allocation and the rights of our manager, as the holder of the allocation shares, are governed by the operating agreement.
Our board will have the opportunity to review
and approve the calculation of manager’s profit allocation when it becomes due and payable. Our manager will not receive a profit
allocation on an annual basis. Instead, our manager will be paid a profit allocation only upon the occurrence of one of the following
events, which we refer to collectively as the trigger events:
| ● | the sale of a material amount, as determined by our manager and reasonably consented to by a majority
of our board of directors, of the capital stock or assets of one of our subsidiaries or a subsidiary of one of our subsidiaries, including
a distribution of our ownership of a subsidiary to our shareholders in a spin-off or similar transaction, which event we refer to as a
sale event; or |
| ● | at the option of our manager, for the 30-day period following the fifth anniversary of the date upon which
we acquired a controlling interest in a business, which event we refer to as a holding event. If our manager elects to forego declaring
a holding event with respect to such business during such period, then our manager may only declare a holding event with respect to such
business during the 30-day period following each anniversary of such fifth anniversary date with respect to such business. Once declared,
our manager may only declare another holding event with respect to a business following the fifth anniversary of the calculation date
with respect to a previously declared holding event. |
We believe this payment timing, rather than a
method that provides for annual allocation payments, more accurately reflects the long-term performance of each of our businesses and
is consistent with our intent to hold, manage and grow our businesses over the long term. We refer generally to the obligation to make
this payment to our manager as the “profit allocation” and, specifically, to the amount of any particular profit allocation
as the “manager’s profit allocation.”
Definitions used in, and an example of the calculation
of profit allocation, are set forth in more detail below.
The amount of our manager’s profit allocation
will be based on the extent to which the “total profit allocation amount” (as defined below) with respect to any business,
as of the last day of any fiscal quarter in which a trigger event occurs, which date we refer to as the “calculation date”,
exceeds the relevant hurdle amounts (as described below) with respect to such business, as of such calculation date. Our manager’s
profit allocation will be calculated by an administrator, which will be our manager so long as the management services agreement is in
effect, and such calculation will be subject to a review and approval process by our board of directors. For this purpose, “total
profit allocation amount” will be equal to, with respect to any business as of any calculation date, the sum of:
| ● | the contribution-based profit (as described below) of such business as of such calculation date, which
will be calculated upon the occurrence of any trigger event with respect to such business; plus |
| ● | the excess of our cumulative gains and losses (as described below) over the high-water mark (as described
below) as of such calculation date, which will only be calculated upon the occurrence of a sale event with respect to such business, and
not on a holding event (we generally expect this component to be the most significant component in calculating total profit allocation
amount). |
Specifically, manager’s profit allocation
will be calculated and paid as follows:
| ● | manager’s profit allocation will not be paid with respect to a trigger event relating to any business
if the total profit allocation amount, as of any calculation date, with respect to such business does not exceed such business’
level 1 hurdle amount (based on an 8% annualized hurdle rate, as described below), as of such calculation date; and |
| ● | manager’s profit allocation will be paid with respect to a trigger event relating to any business
if the total profit allocation amount, as of any calculation date, with respect to such business exceeds such business’ level 1
hurdle amount, as of such calculation date. Our manager’s profit allocation to be paid with respect to such calculation date will
be equal to the sum of the following: |
| o | 100% of such business’ total profit allocation amount, as of such calculation date, with respect
to that portion of the total profit allocation amount that exceeds such business’ level 1 hurdle amount (but is less than or equal
to such business’ level 2 hurdle amount (which is based on a 10% annualized hurdle rate, as described below), in each case, as of
such calculation date. We refer to this portion of the total profit allocation amount as the “catch-up.” The “catch-up”
is intended to provide our manager with an overall profit allocation of 20% of the business’ total profit allocation amount until
such business’ level 2 hurdle amount has been reached; plus |
| o | 20% of the total profit allocation amount, as of such calculation date, that exceeds such business’
level 2 hurdle amount as of such calculation date; minus |
| o | the high-water mark allocation, if any, as of such calculation date. The effect of deducting the high-water
mark allocation is to take into account profit allocations our manager has already received in respect of past gains attributable to previous
sale events. |
The administrator will calculate our manager’s
profit allocation on or promptly following the relevant calculation date, subject to a “true-up” calculation upon availability
of audited or unaudited consolidated financial statements, as the case may be, to the extent not available on such calculation date. Any
adjustment necessitated by the true-up calculation will be made in connection with the next calculation of manager’s profit allocation.
Because of the length of time that may pass between trigger events, there may be a significant delay in our ability to realize the benefit,
if any, of a true-up of our manager’s profit allocation.
Once calculated, the administrator will submit
the calculation of our manager’s profit allocation, as adjusted pursuant to any true-up, to our board of directors for its review
and approval. The board of directors will have ten business days to review and approve the calculation, which approval shall be automatic
absent disapproval by the board of directors. Our manager’s profit allocation will be paid ten business days after such approval.
If the board of directors disapproves of the administrator’s
calculation of manager’s profit allocation, the calculation and payment of manager’s profit allocation will be subject to
a dispute resolution process, which may result in our manager’s profit allocation being determined, at our cost and expense, by
two independent accounting firms. Any determination by such independent accounting firms will be conclusive and binding on us and our
manager.
We will also pay a tax distribution to our manager
if our manager is allocated taxable income by us but does not realize distributions from us at least equal to the taxes payable by our
manager resulting from allocations of taxable income. Any such tax distributions will be paid in a similar manner as profit allocations
are paid.
For any fiscal quarter in which a trigger event
occurs with respect to more than one business, the calculation of our manager’s profit allocation, including the components thereof,
will be made with respect to each business in the order in which controlling interests in such businesses were acquired or obtained by
us and the resulting amounts shall be aggregated to determine the total amount of manager’s profit allocation. If controlling interests
in two or more businesses were acquired at the same time and such businesses give rise to a calculation of manager’s profit allocation
during the same fiscal quarter, then manager’s profit allocation will be further calculated separately for each such business in
the order in which such businesses were sold.
The profit allocations and tax distributions will
be paid prior to the payment of distributions to our shareholders. If we do not have sufficient liquid assets to pay the profit allocations
or tax distributions when due, we may be required to liquidate assets or incur debt in order to pay such profit allocation. Our manager
will have the right to elect to defer the payment of our manager’s profit allocation due on any payment date. Once deferred, our
manager may demand payment thereof upon 20 business days’ prior written notice.
Termination of the management services agreement,
by any means, will not affect our manager’s rights with respect to the allocation shares that it owns, including its right to receive
profit allocations, unless our manager exercises its put right to sell such allocation shares to us.
Example of Calculation of Manager’s
Profit Allocation
Our manager will receive a profit allocation at
the end of the fiscal quarter in which a trigger event occurs, as follows (all dollar amounts are in millions):
Assumptions
Year 1:
Acquisition of Company A
Acquisition of Company B
Year 4
Company A (or assets thereof) sold for
$25 capital gain (as defined below) over its net book value of assets at time of sale, which is a qualifying trigger event
Company A’s average allocated
share of our consolidated net equity over its ownership is $50
Company A’s holding period in
quarters is 12 (assuming that Company A is acquired on the first day of the year)
Company A’s contribution-based
profit since acquisition is $5
Year 6:
Company B’s contribution-based
profit since acquisition is $7
Company B’s average allocated
share of our consolidated net equity over its ownership is $25
Company B’s holding period in
quarters is 20
Company B’s cumulative gains and
losses are $20
Manager elects to have holding period
measured for purposes of profit allocation for Company B
Profit Allocation Calculation: | |
Year
4
A, due to
sale | | |
Year
6
B, due to
5 year hold | |
1 | |
Contribution-based profit since acquisition for respective subsidiary | |
$ | 5 | | |
$ | 7 | |
2 | |
Gain/ Loss on sale of company | |
| 25 | | |
| 0 | |
3 | |
Cumulative gains and losses | |
| 25 | | |
| 20 | |
4 | |
High-water mark prior to transaction | |
| 0 | | |
| 20 | |
5 | |
Total Profit Allocation Amount (Line 1 + Line 3) | |
| 30 | | |
| 27 | |
6 | |
Business’ holding period in quarters since ownership or last measurement due to holding event | |
| 12 | | |
| 20 | |
7 | |
Business’ average allocated share of consolidated net equity | |
| 50 | | |
| 25 | |
8 | |
Business’ level 1 hurdle amount (2.00% * Line 6 * Line 7) | |
| 12 | | |
| 10 | |
9 | |
Business’ excess over level 1 hurdle amount (Line 5 – Line 8) | |
| 18 | | |
| 17 | |
10 | |
Business’ level 2 hurdle amount (125% * Line 8) | |
| 15 | | |
| 12.5 | |
11 | |
Allocated to manager as “catch-up” (Line 10 – Line 8) | |
| 3 | | |
| 2.5 | |
12 | |
Excess over level 2 hurdle amount (Line 9 – Line 11) | |
| 15 | | |
| 14.5 | |
13 | |
Allocated to manager from excess over level 2 hurdle amount (20% * Line 12) | |
| 3 | | |
| 2.9 | |
14 | |
Cumulative allocation to manager (Line 11 + Line 13) | |
| 6 | | |
| 5.4 | |
15 | |
High-water mark allocation (20% * Line 4) | |
| 0 | | |
| 4 | |
16 | |
Manager’s Profit Allocation for Current Period (Line 14 – Line 15,> 0) | |
$ | 6 | | |
$ | 1.4 | |
For purposes of calculating profit allocation:
| ● | An entity’s “adjusted net assets” will be equal to, as of any date, the sum of
(i) such entity’s consolidated total assets (as determined in accordance with GAAP) as of such date, plus (ii) the absolute amount
of such entity’s consolidated accumulated amortization of intangibles (as determined in accordance with GAAP) as of such date, minus
(iii) the absolute amount of such entity’s adjusted total liabilities as of such date. |
| ● | An entity’s “adjusted total liabilities” will be equal to, as of any date, such
entity’s consolidated total liabilities (as determined in accordance with GAAP) as of such date after excluding the effect of any
outstanding third-party indebtedness of such entity. |
| ● | A business’ “allocated share of our overhead” will be equal to, with respect
to any measurement period as of any calculation date, the aggregate amount of such business’ quarterly share of our overhead for
each fiscal quarter ending during such measurement period. |
| ● | A business’ “average allocated share of our consolidated equity” will be equal
to, with respect to any measurement period as of any calculation date, the average (i.e., arithmetic mean) of a business’ quarterly
allocated share of our consolidated equity for each fiscal quarter ending during such measurement period. |
| ● | “Capital gains” (i) means, with respect to any entity, capital gains (as determined
in accordance with GAAP) that are calculated with respect to the sale of capital stock or assets of such entity and which sale gave rise
to a sale event and the calculation of profit allocation and (ii) will be equal to the amount, adjusted for minority interests, by which
(x) the net sales price of such capital stock or assets, as the case may be, exceeded (y) the net book value (as determined in accordance
with GAAP) of such capital stock or assets, as the case may be, at the time of such sale, as reflected on our consolidated balance sheet
prepared in accordance with GAAP; provided, that such amount shall not be less than zero. |
| ● | “Capital losses” (i) means, with respect to any entity, capital losses (as determined
in accordance with GAAP) that are calculated with respect to the sale of capital stock or assets of such entity and which sale gave rise
to a sale event and the calculation of profit allocation and (ii) will be equal to the amount, adjusted for minority interests, by which
(x) the net book value (as determined in accordance with GAAP) of such capital stock or assets, as the case may be, at the time of such
sale, as reflected on our consolidated balance sheet prepared in accordance with GAAP, exceeded (y) the net sales price of such
capital stock or assets, as the case may be; provided, that such absolute amount thereof shall not be less than zero. |
| ● | Our “consolidated net equity” will be equal to, as of any date, the sum of (i)
our consolidated total assets (as determined in accordance with GAAP) as of such date, plus (ii) the aggregate amount of asset
impairments (as determined in accordance with GAAP) that were taken relating to any businesses owned by us as of such date, plus
(iii) our consolidated accumulated amortization of intangibles (as determined in accordance with GAAP), as of such date minus (iv)
our consolidated total liabilities (as determined in accordance with GAAP) as of such date. |
| ● | A business’ “contribution-based profits” will be equal to, for any measurement
period as of any calculation date, the sum of (i) the aggregate amount of such business’ net income (as determined in accordance
with GAAP and as adjusted for minority interests) with respect to such measurement period (without giving effect to (x) any capital gains
or capital losses realized by such business that arise with respect to the sale of capital stock or assets held by such business and which
sale gave rise to a sale event and the calculation of profit allocation or (y) any expense attributable to the accrual or payment of any
amount of profit allocation or any amount arising under the supplemental put agreement, in each case, to the extent included in the calculation
of such business’ net income), plus (ii) the absolute aggregate amount of such business’ loan expense with respect
to such measurement period, minus (iii) the absolute aggregate amount of such business’ allocated share of our overhead with
respect to such measurement period. |
| ● | Our “cumulative capital gains” will be equal to, as of any calculation date, the aggregate
amount of capital gains realized by us as of such calculation date, after giving effect to any capital gains realized by us on such calculation
date, since its inception. |
| ● | Our “cumulative capital losses” will be equal to, as of any calculation date, the aggregate
amount of capital losses realized by us as of such calculation date, after giving effect to any capital losses realized by us on such
calculation date, since its inception. |
| ● | Our “cumulative gains and losses” will be equal to, as of any calculation date, the
sum of (i) the amount of cumulative capital gains as of such calculation date, minus (ii) the absolute amount of cumulative
capital losses as of such calculation date. |
| ● | The “high-water mark” will be equal to, as of any calculation date, the highest positive
amount of capital gains and losses as of such calculation date that were calculated in connection with a qualifying trigger event that
occurred prior to such calculation date. |
| ● | The “high-water mark allocation” will be equal to, as of any calculation date, the
product of (i) the amount of the high-water mark as of such calculation date, multiplied by (ii) 20%. |
| ● | A business’ “level 1 hurdle amount” will be equal to, as of any calculation date,
the product of (i) (x) the quarterly hurdle rate of 2.00% (8% annualized), multiplied by (y) the number of fiscal quarters ending
during such business’ measurement period as of such calculation date, multiplied by (ii) a business’ average allocated
share of our consolidated equity for each fiscal quarter ending during such measurement period. |
| ● | A business’ “level 2 hurdle amount” will be equal to, as of any calculation date,
the product of (i) (x) the quarterly hurdle rate of 2.5% (10% annualized, which is 125% of the 8% annualized hurdle rate), multiplied
by (y) the number of fiscal quarters ending during such business’ measurement period as of such calculation date, multiplied
by (ii) a business’ average allocated share of our consolidated equity for each fiscal quarter ending during such measurement
period. |
| ● | A business’ “loan expense” will be equal to, with respect to any measurement
period as of any calculation date, the aggregate amount of all interest or other expenses paid by such business with respect to indebtedness
of such business to either our company or other company businesses with respect to such measurement period. |
| ● | The “measurement period” will mean, with respect to any business as of any calculation
date, the period from and including the later of (i) the date upon which we acquired a controlling interest in such business and (ii)
the immediately preceding calculation date as of which contribution-based profits were calculated with respect to such business and with
respect to which profit allocation were paid (or, at the election of the allocation member, deferred) by us up to and including such calculation
date. |
| ● | Our “overhead” will be equal to, with respect to any fiscal quarter, the sum
of (i) that portion of our operating expenses (as determined in accordance with GAAP) (without giving effect to any expense attributable
to the accrual or payment of any amount of profit allocation or any amount arising under the supplemental put agreement to the extent
included in the calculation of our operating expenses), including any management fees actually paid by us to our manager, with respect
to such fiscal quarter that are not attributable to any of the businesses owned by us (i.e., operating expenses that do not correspond
to operating expenses of such businesses with respect to such fiscal quarter), plus (ii) our accrued interest expense (as determined
in accordance with GAAP) on any outstanding third-party indebtedness with respect to such fiscal quarter, minus (iii) revenue,
interest income and other income reflected in our unconsolidated financial statements as prepared in accordance with GAAP. |
| ● | A “qualifying trigger event” will mean, with respect to any business, a trigger event
that gave rise to a calculation of total profit allocation with respect to such business as of any calculation date and (ii) where the
amount of total profit allocation so calculated as of such calculation date exceeded such business’ level 2 hurdle amount as of
such calculation date. |
| ● | A business’ “quarterly allocated share of our consolidated equity” will be equal
to, with respect to any fiscal quarter, the product of (i) our consolidated net equity as of the last day of such fiscal quarter,
multiplied by (ii) a fraction, the numerator of which is such business’ adjusted net assets as of the last day of such fiscal
quarter and the denominator of which is the sum of (x) our adjusted net assets as of the last day of such fiscal quarter, minus
(y) the aggregate amount of any cash and cash equivalents as such amount is reflected on our consolidated balance sheet as prepared in
accordance with GAAP that is not taken into account in the calculation of any business’ adjusted net assets as of the last day of
such fiscal quarter. |
| ● | A business’ “quarterly share of our overhead” will be equal to, with respect
to any fiscal quarter, the product of (i) the absolute amount of our overhead with respect to such fiscal quarter, multiplied
by (ii) a fraction, the numerator of which is such business’ adjusted net assets as of the last day of such fiscal quarter and
the denominator of which is our adjusted net assets as of the last day of such fiscal quarter. |
| ● | An entity’s “third-party indebtedness” means any indebtedness of such entity
owed to any third-party lenders that are not affiliated with such entity. |
Supplemental Put Provision
In addition to the provisions discussed above,
in consideration of our manager’s acquisition of the allocation shares, our operating agreement contains a supplemental put provision
pursuant to which our manager will have the right to cause us to purchase the allocation shares then owned by our manager upon termination
of the management services agreement.
If the management services agreement is terminated
at any time or our manager resigns, then our manager will have the right, but not the obligation, for one year from the date of such termination
or resignation, as the case may be, to elect to cause us to purchase all of the allocation shares then owned by our manager for the put
price as of the put exercise date.
For purposes of this provision, the “put
price” is equal to, as of any exercise date, (i) if we terminate the management services agreement, the sum of two separate, independently
made calculations of the aggregate amount of manager’s profit allocation as of such exercise date or (ii) if our manager resigns,
the average of two separate, independently made calculations of the aggregate amount of manager’s profit allocation as of such exercise
date, in each case, calculated assuming that (x) all of the businesses are sold in an orderly fashion for fair market value as of such
exercise date in the order in which the controlling interest in each business was acquired or otherwise obtained by us, (y) the last day
of the fiscal quarter ending immediately prior to such exercise date is the relevant calculation date for purposes of calculating manager’s
profit allocation as of such exercise date. Each of the two separate, independently made calculations of our manager’s profit allocation
for purposes of calculating the put price will be performed by a different investment bank that is engaged by us at our cost and expense.
The put price will be adjusted to account for a final “true-up” of our manager’s profit allocation.
We and our manager can mutually agree to permit
us to issue a note in lieu of payment of the put price when due; provided, that if our manager resigns and terminates the management services
agreement, then we will have the right, in our sole discretion, to issue a note in lieu of payment of the put price when due. In either
case the note would have an aggregate principal amount equal to the put price, would bear interest at a rate of LIBOR plus 4.0% per annum,
would mature on the first anniversary of the date upon which the put price was initially due, and would be secured by the then-highest
priority lien available to be placed on our equity interests in each of our businesses.
Our obligations under the put provision of our
operating agreement are absolute and unconditional. In addition, we will be subject to certain obligations and restrictions upon exercise
of our manager’s put right until such time as our obligations under the put provision of our operating agreement, including any
related note, have been satisfied in full, including:
| ● | subject to our right to issue a note in the circumstances described above, we must use commercially reasonable
efforts to raise sufficient debt or equity financing to permit us to pay the put price or note when due and obtain approvals, waivers
and consents or otherwise remove any restrictions imposed under contractual obligations or applicable law or regulations that have the
effect of limiting or prohibiting us from satisfying our obligations under the supplemental put agreement or note; |
| ● | our manager will have the right to have a representative observe meetings of our board of directors and
have the right to receive copies of all documents and other information furnished to the board of directors; |
| ● | our company and its businesses will be restricted in their ability to sell or otherwise dispose of their
property or assets or any businesses they own and in their ability to incur indebtedness (other than in the ordinary course of business)
without granting a lien on the proceeds therefrom to our manager, which lien will secure our obligations under the put provision of our
operating agreement or note; and |
| ● | we will be restricted in our ability to (i) engage in certain mergers or consolidations, (ii) sell, transfer
or otherwise dispose of all or a substantial part of our business, property or assets or all or a substantial portion of the stock or
beneficial ownership of our businesses or a portion thereof, (iii) liquidate, wind-up or dissolve, (iv) acquire or purchase the property,
assets, stock or beneficial ownership or another person, or (v) declare and pay distributions to our common shareholders. |
We have also agreed to indemnify our manager for
any losses or liabilities it incurs or suffers in connection with, arising out of or relating to its exercise of its put right or any
enforcement of terms and conditions of the supplemental put provision of our operating agreement.
The put price will be paid prior to the payment
of distributions to our shareholders. If we do not have sufficient liquid assets to pay the put price when due, we may be required to
liquidate assets or incur debt in order to pay the put price.
Termination of the management services agreement,
by any means, will not affect our manager’s rights with respect to the allocation shares that it owns. In this regard, our manager
will retain its put right and its allocation shares after ceasing to serve as our manager. As a result, if we terminate our manager, regardless
of the reason for such termination, it would retain the right to exercise the put right and demand payment of the put price.
RETAIL AND APPLIANCES BUSINESS
Our retail and appliances business is operated
by Asien’s. This business segment accounted for approximately 21.8% and 41.6% of our total revenues for the years ended December
31, 2022 and 2021, respectively.
Overview
Since 1948, we have been providing a wide variety
of appliance services, including sales, delivery/installation, in-home service and repair, extended warranties, and financing in the North
Bay area of Sonoma County, California. Our main focus is delivering personal sales and exceptional service to our customers at competitive
prices.
We operate one of the area’s oldest appliance
stores and are well known and highly respected throughout the North Bay area. We have strong, established relationships with customers
and contractors in the community. We provide products and services to a diverse group of customers, including homeowners, builders, and
designers. As a member of BrandSource, a buying group that offers vendor programs, factory direct deals, marketing support, opportunity
buys, close-outs, consumer rebates, finance offers, and similar benefits, we offer a full line of top brands from U.S. and international
manufacturers.
Products and Services
Appliance Sales
With a showroom display area of approximately
6,000 square feet, we offer a complete line of home and kitchen appliances to residential customers, including:
| ● | Cooking: Products include cooktops, microwaves, warming drawers, ventilation, wall ovens,
ranges and range tops. Major brands include Beko, BlueStar, Café, DCS, Fisher Paykel, Five Star, Fulgor Milano, GE, Haier, Jenn-Air,
KitchenAid, Maytag, Miele, Monogram, Sub-Zero, Viking, Whirlpool and Wolf. |
| ● | Refrigeration: Products include a wide variety of refrigerator configurations, freezers
and ice makers, and wine and beer coolers. Major brands include Fisher Paykel, Jenn-Air, KitchenAid, Liebherr, Miele, Monogram, Perlick,
Sub-Zero, Viking and Whirlpool. |
| ● | Laundry: Products include washers, dryers and laundry extras. Major brands include Amana,
ASKO, Beko, Fisher & Paykel, GE, Maytag, Miele, Speed Queen and Whirlpool. |
| ● | Clean Up: Products include dishwashers, trash compactors, and in-sink food waste disposers.
Major brands include AGA, Amana, ASKO, Beko, Café, Cove, Crosley, Fisher Paykel, GE, Hot Point, Jenn-Air, KitchenAid, Maytag, Miele,
Monogram, Viking and Whirlpool. |
| ● | Outdoor: Products include outdoor grills, refrigeration, and storage. Major brands include
DCS, Green Mountain Grills, LYNX, Marvel, Perlick, Sub-Zero, Viking and Wolf. |
Appliance Services
We also offer a variety of appliance services,
including delivery, installation, warranty service and appliance repair and maintenance. We are the largest independent appliance service
company in Sonoma County. Our service technicians are experts, averaging 15 years of field experience with factory training. They are
vendor certified to handle our customers’ kitchen appliance, laundry, and outdoor appliance service needs. We also offer extended
warranties.
Pricing
We provide premium and super premium products to the North Bay customer.
A significant number of the appliances in our catalog are subject to a unilateral minimum retail price policy, or UMRP, or
minimum advertised pricing restrictions. UMRP restricts a reseller from discounting the customer price for an appliance below a vendor
published UMRP and product promotions are solely those specified by the vendor and unilaterally available. We thrive in the premium market
by providing the customer with a higher overall perceived value as well as a competitive total invoice cost by offering premium service
at reasonable rates. Our sales associates are industry professionals with an average of more than 15 years of experience selling appliances.
This team of six averages over twelve years seniority with the senior member having been with us for 27 years. The premium appliance market
requires this expertise as very often sales and customer service teams are interacting with designers, builders, and contractors, as well
as our core customer, the homeowner. Our hard-earned reputation for this expertise in sales, installation and service accretes to our
advantage when we compete directly across product lines that are also available from other local resellers and big box competitors. Our
merchant and sales team are responsible to ensure that pricing and promotion for these appliances are competitive.
Vendor/Supplier Relationships
The
following table sets forth the vendors and suppliers that accounted for more than 10% of our purchases for the year ended December 31,
2022:
Supplier |
|
Total Purchases (2021) |
|
Total Purchases (2022) |
|
Percent of
Purchases
(2022) |
Riggs Distributing, Inc. |
|
$ |
2,558,915 |
|
|
$ |
1,753,121 |
|
|
|
24.3 |
% |
General Electric |
|
|
2,411,825 |
|
|
|
1,798,537 |
|
|
|
24.9 |
% |
Whirlpool |
|
|
1,203,187 |
|
|
|
830,283 |
|
|
|
11.5 |
% |
Products are purchased from all suppliers on an
at-will basis. We have no long-term purchase agreements with any supplier. Relationships with suppliers are subject to change from time
to time. Changes in relationships with suppliers occur periodically and could positively or negatively impact our net sales and operating
profits. We believe that we can be successful in mitigating negative effects resulting from unfavorable changes in the relationships with
suppliers through, among other things, the development of new or expanded supplier relationships. Please see Item 1A “Risk Factors—Risks
Related to Our Retail and Appliances Business” and Item 1A “Risk Factors—Risks Related to Our Business and Structure—The
COVID-19 pandemic may cause a material adverse effect on our business” for a description of the risks related to our supplier
relationships, including those associated with the COVID-19 pandemic.
BrandSource Membership
We are part of the member-owned buying group,
BrandSource, which has an internal marketing company as well as a company to finance their purchases from some brands.
Members of BrandSource can compete with box stores
by banding together under the buying group; the dealers/members own the buying group/co-op. Simply put, the group aids members in helping
them buy better, reduce costs, drive business into their stores and educate them in a way an independent dealer could not do it alone.
We believe that the benefits of our membership
with this group include:
| ● | $19 billion dollar buying power allowing members to compete on the price of products (same as box store); |
| ● | BrandSource finance through Progressive Leasing so members can get credit approved to purchase goods; |
| ● | BrandSource marketing so members can compete for consumer store traffic. This includes turnkey websites,
digital and social marketing, as well as print and video marketing. This allows members to actually out-market the box stores locally; |
| ● | National and regional education forums for members to be “in the know” on industry trends,
vendor product knowledge and idea exchange; and |
| ● | BrandSource AVB retail technology solutions and consulting. |
Marketing
We market our products through a variety of methods,
both digital and traditional. Some examples include digital advertising, radio, billboards and “go local” marketing.
Digital Advertising
We participate in pay-per-click ads, digital banner
ads, YouTube videos, Facebook posts, and similar digital media, through our membership in BrandSource. We also have a professional and
easy-to-use website (www.asiensappliance.com), which allows customers to research, compare, and order products online. This site is hosted
and maintained by BrandSource.
Radio
We run radio spots on various stations throughout
the year, with most spots promoting our brand. These advertisements strive to promote our experience, expertise, service, local ownership,
and more than 70 years in business. Some radio spots are paid for by appliance manufacturers, in which case we will promote the quality
of the brand, rather than the price.
Billboards
We have secured two prominent billboards in Sonoma
County:
| ● | Northbound 101 across from the Corby Avenue auto row in Santa Rosa. We advertise on it half the year at
different intervals. |
| ● | Southbound 101 in Petaluma near the Petaluma Village Premium Outlets. |
In many cases, as with the radio ads, appliance
manufacturers will pay for advertising on the billboards.
“Go Local” Marketing
We also participate in the “GO LOCAL”
marketing organization for locally owned independent businesses. Members of this organization use a shared brand, targeted advertising,
and a rewards card to increase sales and gain market share.
Customers and Markets
We currently serve customers in the areas of Sonoma,
Napa, Marin, Lake and Mendocino counties, California. The large majority of customers are homeowners and their contractors, with the homeowner
being key in the final decisions. We have a diverse customer base, with no one customer accounting for more than 10% of total revenue.
Customer Support
Customer Service is of critical importance to
our success. We primarily conduct customer service in person or on the telephone, although web-initiated chat, text and email are available
and rapidly growing coordination and communication. We believe in allowing our customer to set the preferred method for communication.
Our role in providing premium appliances can often require substantial pre-sales support, such as when quoting a multi-appliance bid package
for a builder. Since 2020, there has been a material shift toward online sales and the appliance industry is no exception.
Our customer service is available to field inbound
customer calls from 8:00 am to 5:30 pm PST, Monday through Friday and Saturday from 9:00 am to 5:00 pm.
Logistics
The large majority of our inventory consists of
customers’ completed orders, most of which are selected from models on display in our extensive showroom. We do, however, maintain
a supply of common and in-demand appliances for walk-in customers who are looking to make same-day purchases.
We take ownership of inventory when it is delivered
to our warehouse. At this point, warehouse staff unloads the product, determines the delivery location and arranges for delivery of the
product. Customers may arrange for a delivery service or their third-party installers and contractors to pick-up their appliances at our
warehouse or have it scheduled for drop-off or installation. We will coordinate third-party delivery or recommend factory trained third-party
installation services when necessary. We also offer installation services. Another important service is haul-away of a customer’s
used appliances. This service is included with drop-off or installation. We contract with a local third-party recycling firm to ensure
that used appliances receive optimum recycling and appropriate disposal.
Our return and exchange policy is designed to
be as worry-free and customer friendly as possible. A customer may cancel or exchange an item that is on order or is not subject to a
vendor mandated restocking fee. We may pass any supplier assessed restocking fee on to the customer in the event a special ordered appliance
is returned or exchanged without defect.
Competition
We compete with big box retailers, independent
appliance retailers, hybrid retail and direct-to-consumer companies and web only companies. As a hybrid retail and direct-to-consumer
company, we have the ability to successfully rival the offerings of each competitor, utilizing impressions from both online and traditional
marketing, our consultative selling practice and customer service expertise, and a curated assortment of premier brands to attract and
retain new customers.
The U.S. appliance market in general is highly
fragmented with thousands of local and regional retailers competing for share. Our primary competitors in the appliance market include
big box retailers, such as Home Depot, Lowe’s and Costco; specialty retailers, such as TeeVax, Ferguson and Premier Bath and Kitchen;
and online marketplaces, such as Amazon.
The shifting landscape to online sales in the
segment is providing a significant market share capture and positioning opportunity for companies. We are rapidly evolving our business
processes to capitalize on this market shift. While premium brands continue to place restrictions on the pure ecommerce distribution models,
we are adapting the concierge selling available on our showroom floor for the web customer at home. The COVID-19 pandemic has accelerated
this shift and is rewarding the entrepreneurial innovation necessary for this transition. This ongoing adaptation and continual process
improvement will allow us to continue to enjoy a preferred reseller status with the premium brands that differentiate our offerings.
Competitive Strengths
Based on management’s belief and experience
in the industry, we believe that the following competitive strengths enable us to compete effectively.
| ● | Name and reputation. We believe that we enjoy a long-standing (more than 70 years) reputation
with vendors and customers for our focus on offering a full line of appliances, including premium brands unavailable from the competition,
with consultative selling, competitive pricing and superior customer service. |
| ● | Highly experienced management and personnel. We believe that our personnel are its most
important asset. We have an experienced management team with decades of industry knowledge and a team of experienced, knowledgeable and
skilled field personnel. |
| ● | Diverse product and service offerings. We offer a full line of top brands from U.S. and
international manufacturers. We also offer delivery, installation and repair
and maintenance services provided by our highly knowledgeable personnel. |
| ● | Inventory discipline. Resellers in the appliance industry are experiencing unprecedented
supply chain issues with backorder on many appliance categories. Increasingly, the most success in appliance sales is found for those
with available inventory on hand. We react quickly to the expression of customer demand by confirming availability for products and placing
orders to reserve potential stock needs. Our curated assortment allows us to react to micro-trends and adjust assortment and buying decisions
quickly. On the showroom floor, our experienced team has quickly pivoted to first sell what is available and then over-communicate with
the customer when an item is on backorder. As a result, we are maintaining a low cancelation rate. Customer service processes and resources
to allow more efficient ongoing customer communication and coordination will allow us to earn loyalty within our market by exceeding the
service levels customers receive from other specialty retailers. |
| ● | Extended repair, delivery, and loaner services. Many of our sales are “duress”
sales to replace broken or antiquated equipment. It is not uncommon for service to provide a gateway sales. A customer looking to replace
their appliance still wants a quality product and they need it quickly. This is where the value of our full-service approach wins customer
loyalty. |
| ● | Online sales expertise. We believe that our ability to transact online, big ticket, home
delivery sales give us strategic positioning and capability to sell more products to our current customer base, as well as to add new
big ticket product categories. |
| ● | Membership in BrandSource. As discussed in more detail above, we believe that our membership
in BrandSource provides us with a number of competitive advantages. |
Growth Strategies
We will strive to grow our business by pursuing
the following growth strategies:
| ● | Digital strategy. We plan to implement best-in-class solutions from parallel industries
focused on a click-to-brick digital strategy. This includes enhancing our web presence and digital advertising while providing tools to
facilitate consultation, guided customer support and service. We also plan to enhance the full-cycle customer relationship including loyalty,
incentives for referral, and long-tail satisfaction surveys. We also plan to enhance our geographic reach through installation partnerships. |
| ● | Increase local marketing spend. We plan to increase our local marketing spending. Outreach
messaging will increase the emphasis on us as a trusted community resource and other local first values. We plan to build incrementally
on ad spending where a return is measurable. This involves first optimizing local market internet search and digital advertising campaigns,
while at the same time innovating a COVID-19 appropriate approach to what was traditionally outside sales by more regularly engaging builders,
designers, and contractors and encouraging regular digital meeting place. We plan to provide local leadership by being efficient and providing
secure online tools to enable project management and data exchange. |
| ● | Store growth. We are actively looking for underserved and growing communities on the west
coast that echo the attributes that serve our success in the current Sonoma County location. |
Intellectual Property
We do not own any registered intellectual property
for our retail and appliances business. The agreements with our suppliers generally provide us with a limited, non-exclusive license to
use the supplier’s trademarks, service marks and trade names for the sole purpose of promoting and selling their products.
To protect intellectual property, we rely on a
combination of laws and regulations, as well as contractual restrictions. We rely on the protection of laws regarding unregistered copyrights
for certain content we create. We also rely on trade secret laws to protect our proprietary technology and other intellectual property.
To further protect our intellectual property, we enter into confidentiality agreements with our executive officers and directors.
Employees
As of December 31, 2022, we employed 22
full-time employees. None of our employees are represented by labor unions, and we believe that we have an excellent relationship
with our employees.
Regulation
Our business is subject a variety of laws and
regulations applicable to companies that are conducting business on the Internet. Jurisdictions vary as to how, or whether, existing laws
governing areas such as personal privacy and data security, consumer protection or sales and other taxes, among other areas, apply to
the Internet and e-commerce, and these laws are continually evolving. For example, certain applicable privacy laws and regulations require
us to provide customers with our policies on sharing information with third parties, and advance notice of any changes to these policies.
Related laws may govern the manner in which we transfer sensitive information or impose obligations on us in the event of a security breach
or inadvertent disclosure of such information. Additionally, tax regulations in jurisdictions where we do not currently collect state
or local taxes may subject us to the obligation to collect and remit such taxes, or to additional taxes, or to requirements intended to
assist jurisdictions with their tax collection efforts. New legislation or regulation, the application of laws from jurisdictions whose
laws do not currently apply to our business, or the application of existing laws and regulations to the Internet and e-commerce generally
could result in significant additional taxes on our business. Further, we could be subject to fines or other payments for any past failures
to comply with these requirements. The continued growth and demand for e-commerce is likely to result in more laws and regulations that
impose additional compliance burdens on companies doing business on the Internet.
CUSTOM CARPENTRY BUSINESS
Our custom carpentry business is operated
through our subsidiaries Kyle’s, High Mountain and Innovative Cabinets. Kyle’s was acquired in the third quarter of 2020 and
High Mountain and Innovative Cabinets were acquired in the fourth quarter of 2021. This business segment accounted for approximately 64.9%
and 39.8% of our total revenues for the years ended December 31, 2022 and 2021, respectively.
Overview
We specialize in all aspects of finished carpentry
products and services, including doors, door frames, base boards, crown molding, cabinetry, bathroom sinks and cabinets, bookcases, built-in
closets, and fireplace mantles, among others. We also install windows and kitchen countertops. We primarily service large homebuilders
and homeowners of single-family homes and commercial and multi-family developers in the greater Reno-Sparks-Fernley metro area in Nevada
and in the Boise, Idaho area.
Products and Services
We provide a wide variety of finished carpentry
products and services to single-family homeowners and builders, builders of multi-family homes, as well as commercial clients in the greater
Reno-Sparks-Fernley metro area in Nevada, which is one of the fastest growing economic regions in the Western U.S. This includes selling
and installing doors, door frames, basic trim, base boards, crown molding, kitchen and bathroom cabinets and countertops, walk-in closets,
bookcases, fireplace mantles, even staircases, staircase handles and spindles.
We also install windows in this market. Revenue
from window installation is projected to grow significantly. Window installation does not require any manufacturing or assembly of windows
and minimal inventory levels of product is needed. We can simply either install the windows that have already been purchased by the client
or buy them for a specific job and install them.
We also build cabinets for every area of a home
- kitchen and bath cabinets, fireplace mantels and surrounds, entertainment systems and wall units, bookcases and office cabinets - in
Boise, Idaho and the surrounding area, for builders, designers and homeowners when they are building a new home or conduct remodeling.
In this market, most of the focus has been on supplying custom or semi-custom builders of residential properties.
Manufacturing
Most of our services consist of design, assembly,
and installation services. As a result, we do not manufacture most of our products, although we do have limited manufacturing operations
consisting of value-add activities such as drilling pre-manufactured doors for holes and attaching hinges.
In the Boise, Idaho market, Kyle’s operates
a cabinet shop that is equipped with state-of-the-art tools operated by skilled cabinetmakers. It manufactures its cabinets using its
computer numerical control machinery in order to maximize efficiency. The details of each custom cabinet it makes are created by its own
employees, from hand sanding to staining and painting to adding a wide array of specialty finishes, coatings, distressing and glazing.
Pricing
Our strategy has been to deliver quality and performance
at a value-based price target. Our pricing model is generally offering better features or efficiencies than general market competitors
in each product category to our builder markets.
Supplier Relationships
We source products and raw materials from multiple
regional, national and foreign suppliers. Certain of our products and materials come from Asian-based suppliers. Products and materials
from Asian-based suppliers may be subjected to import tariffs, depending on various foreign policies of the US government. As such, we
continue to explore partnership or supplier opportunities to optimize our costs.
The primary raw materials used in the manufacture
of Kyle’s products are melamine and veneered sheet goods, lumber, doors and hardware. Cost of these raw materials is a key factor
in pricing its products.
We have historically purchased certain key products
and raw materials from a limited number of suppliers. We purchase products and raw materials on the basis of purchase orders. While we
believe that there is an ample supply of most of the products and raw materials that we need, in the absence of firm and long-term contracts,
we may not be able to obtain a sufficient supply of these products and raw materials from our existing suppliers or alternates in a timely
fashion or at a reasonable cost. If we fail to secure a sufficient supply of key products and raw materials in a timely fashion, it would
result in a significant delay in delivering our products and services, which may cause us to breach our sales contracts with our customers.
Furthermore, failure to obtain sufficient supply of these products and raw materials at a reasonable cost could also harm our revenue
and gross profit margins. Please see Item 1A “Risk Factors—Risks Related to Our Custom Carpentry Business” for
a description of the risks related to our supplier relationships.
Furthermore, the COVID-19 pandemic has had and
may continue to have an adverse impact on the overall supply chain, including labor shortages at saw mills, shipping delays, and increased
prices, all of which may negatively affect our profitability and financial condition. See Item 1A “Risk Factors—Risks Related
to Our Business and Structure—The COVID-19 pandemic may cause a material adverse effect on our business.”
Sales and Marketing
In the Reno-Sparks-Fernley, Nevada market, we
primarily work with large homebuilders of single-family homes, single-family homeowners and commercial and multi-family developers with
revenue that is well diversified across multiple large homebuilding companies such as Mountain West, MSL, DR Horton, Tanamera, Allco Construction,
Artisan Communities, Toll Brothers and Lennar, to name several of the more prominent commercial relationships we maintain.
In the Boise, Idaho market, we primarily work
with custom or semi-custom home builders, but due to strong housing demands in the area, we are also tapping into the residential multi-family,
new construction segment of the market.
We have high customer retention levels and have
generated a considerable number of broader revenue opportunities through direct and specific interaction with our customer base. We have
negotiated pricing with several long-term recurring contractor customers, which have accounted for a majority of our revenues. There can
be no assurance that we will maintain or improve the relationships with those customers. If we cannot maintain long-term relationships
with major customers or replace major customers from period to period with equivalent customers, the loss of such sales could have an
adverse effect on our business, financial condition and results of operations. Please also see Item 1A “Risk Factors—Risks
Related to Our Custom Carpentry Business—The loss of any of our key customers could have a materially adverse effect on our results
of operations.”
We primarily rely on direct consumer marketing
and our extensive relationships with local builders to market our products. We also maintain websites at www.kylescabinets.com and www.innovativecabinetsanddesign.com
and conduct social media marketing through Facebook pages.
Competition
The finished carpentry industry consists of contractors
that provide specialist finish carpentry services, such as on-site construction and the installation of doors, windows, stairs, shelving,
cupboards, cabinets and decks. Carpenters experience steep competition from do-it-yourself (DIY) homeowners in the housing alterations
and additions market and from other skilled tradespeople in the new building construction market, such as general building contractors’
in-house staff.
We compete with numerous competitors in our primary
markets, with reputation, price, workmanship and services being the principal competitive factors. We primarily compete with other specialty
builders in our markets, such as Franklin’s, Western Idaho, and to a lesser extent against national retail chains such as Home Depot
and Lowes. Barriers to entry exist from other similar companies coming into the regions given the pool of available labor working in finished
carpentry in the regions, and the close working relationships that exist between industry players in the regions. These barriers to entry
are also experienced by larger competitors from outside the regions, providing them with substantial challenges in establishing a foothold.
As a result of the implementation of our business strategy, which is delivering high value, quality products and customized solutions
and installations, we anticipate that we will continue to effectively compete against the aforementioned competition.
Competitive Strengths
Based on management’s belief and experience
in the industry, we believe that the following competitive strengths enable us to compete effectively.
| ● | Superior name and reputation. We are well established in our markets (including for over
40 years in the Boise market), and have built strong reputations for best-in-class processes, product quality, and timeliness. We have
strong visibility both online and among industry professionals. Over our many years in business, we have established a stellar reputation
for integrity, superior service, and genuine concern for our clients and their businesses. |
| ● | Established blue-chip clients. We have customer lists that include many regional contractors
in the areas that we service, many of whom have used us as their go-to vendors for many years. |
| ● | Streamlined operations. We believe that our processes and operational systems have led to
higher than average efficiencies, accuracy and profitability. |
| ● | Diversified capabilities. We have diversified capabilities to support large homebuilders
of single-family homes and commercial and multi-family developers, providing flexibility toward trending markets and growth opportunities. |
| ● | Outstanding growth opportunities. Our portfolio, brand and reputation, and streamlined operational
platform can be leveraged for expansion, both in existing regions, and other high-value surrounding areas. |
| ● | Strong regional presence. We operate in the in the greater Reno-Sparks-Fernley metro area,
which is one of the fastest growing economic regions in the Western U.S. due to its day drive distance to many of the largest commercial
centers and port facilities in the United States and favorable tax and business regulation environment. There are multiple national homebuilders
and multi-family developers are active in the region. We are among the largest custom carpentry companies in this region. |
Growth Strategies
We will strive to grow our business by pursuing
the following growth strategies.
| ● | Product line expansion. There are a number of opportunities to expand our product and servicing
offerings. Notably, as discussed above, we intend to expand our window installation services, which has a large market potential. |
| ● | Geographic expansion. With more service requests in the surrounding area, there is immediate
opportunities for expansion to homeowners and contractors located near Twin Falls, McCall, and Sun Valley areas of Idaho, as well as Northern
Nevada. We believe that we are well positioned to expand into these surrounding areas. |
| ● | Expansion to commercial projects. There are opportunities for us to exploit additional opportunities
in the commercial real estate sector. That could be office buildings and hotel and resort properties. In the Boise market, we primarily
focus on the residential single family, new construction segment of the construction market. Evidence of market demand is ongoing for
multi-family projects, both within our current customer markets and within other potential customers. Given appropriate infrastructure
to support the market’s volume, immediate market penetration for multi-family projects could be achieved. |
| ● | Capacity and infrastructure expansion. In the Boise market, we plan to purchase more machinery
and build a separate finishing facility with automated spray finishing for stains, clear lacquers and pigmented lacquers. In the Reno
market, we are in the process expanding our warehouse space and operations. |
Employees
As of December 31, 2022, our custom carpentry
companies employed 174 full-time employees. None of the employees are represented by labor unions, and we believe that our custom carpentry
companies have excellent relationships with their employees.
Regulation
The facility in Boise, Idaho is subject to Idaho
Department of Environmental Quality in connection with air quality and regulations relating to pollution and the protection of the environment,
including those governing emissions to air, discharges to water, storage, treatment and disposal of waste, remediation of contaminated
sites and protection of worker health and safety.
We believe that we are in substantial compliance
with all applicable requirements. However, our efforts to comply with environmental requirements do not remove the risk that we may be
held liable, or incur fines or penalties, and that the amount of liability, fines or penalties may be material, for, among other things,
releases of hazardous substances occurring on or emanating from current or formerly owned or operated properties or any associated offsite
disposal location, or for contamination discovered at any of our properties from activities conducted by previous occupants.
Permits are required for certain of our operations,
and these permits are subject to revocation, modification and renewal by issuing authorities. Governmental authorities have the power
to enforce compliance with their regulations, and violations may result in the payment of fines or the entry of injunctions, or both.
Changes in environmental laws and regulations
or the discovery of previously unknown contamination or other liabilities relating to our properties and operations could result in significant
environmental liabilities. In addition, we might incur significant capital and other costs to comply with increasingly stringent air emission
control laws and enforcement policies which would decrease our cash flow.
AUTOMOTIVE SUPPLIES BUSINESS
Our automotive supplies business is operated
by Wolo. This business segment, which was acquired at the end of the first quarter of 2021, accounted for approximately 13.3% and 18.6%
of our total revenues for the years ended December 31, 2022 and 2021, respectively.
Overview
Our automotive supplies business is headquartered
in Deer Park, New York and was founded in 1965. We design and sell horn and safety products (electric, air, truck, marine, motorcycle
and industrial equipment), and offer vehicle emergency and safety warning lights for cars, trucks, industrial equipment and emergency
vehicles. Focused on the automotive and industrial after-market, we sell our products to big-box national retail chains, through specialty
and industrial distributors, as well as on- line/mail order retailers and OEMs.
Products
We design and sell a broad range
of branded vehicle horns, warning lights, sirens, back-up alarms and accessories.
Horns
We design and sell an innovative and extensive
selection of electromechanical, air and electronic-speaker horns. The horns are used in many industries such as: heavy duty truck, motorcycle,
marine, industrial and the automotive aftermarket. We also sell hand-held gas horns which can be used for sporting events, as well as
marine, construction sites and outdoor activities.
Our top-selling product is the Bad Boy horn,
which has a one-piece design that requires no hoses. It installs in minutes by simply transferring the vehicle’s factory horn wires
to the compressor, and mounts with one bolt included in kit. The Bad Boy produces a powerful dual tone air horn sound that is two times
louder than the factory horn. It is compact in size to fit any car, truck, motorcycle and any 12-volt vehicle that wants a loud air horn
sound. A heavy-duty maintenance free compressor provides years of dependable service.
In the past three years, we have brought a number
of new and innovative horn products to the markets to which we sell. Some highlights include:
| ● | Midnight
Express. A high-pressure truck train horn that is three trumpets, all metal and painted
semi-gloss black. Train horns are purchased by the vehicle owner that wants the ultra-powerful
sound of a train. |
| ● | Quadraphonic
Express. Four metal trumpets that are triple chrome plated, produce an ultra-powerful
train horn sound that will be heard and will dress-up the appearance of any vehicle. |
| ● | Nexgen
Express Train Horn. A totally new design by us, a state-of-the-art fully electronic
train horn, compact in size and produces more than 150-watts output. Engineered to fit into
the engine compartment of cars, SUVs and even compact vehicles with a simple two wire hook-up,
Nexgen offers two distinctive train horn sounds controlled by a wireless key fab. |
| ● | Mighty
Mo. An industrial equipment horn designed to withstand off-road and construction
site conditions, while being able to penetrate noisy environments and still be heard. |
Compressor and Tank Systems
We also sell air compressor systems, consisting
of air storage tanks, compressors and everything needed to hookup a high-pressure air horn. Two years ago, we started offering complete
kits of train horns and choice of high-pressure air systems. Additionally, we offer replacement parts for all products.
Electric Sirens and Speakers
We have an array of emergency electronic sirens
with built-in public address systems used by emergency responders.
Back-Up Alarms
We offer a variety of back-up alarm systems from
basic beep-style horn sold in all aftermarket retailers, to hi-tech intelligent alarms that adjust audio output to be louder than surrounding
ambient noise. Our Model BA-697 has three super bright 1-watt LEDs that flash while the vehicle is in reverse and the auditable warning
sound is turned on. In addition, we have a selection of white noise “Psss Psss” sound alarms required in the state of California.
Warning Lights
We offer a large selection of warning lights
for road assistance as well as emergency vehicles, construction, road safety and snow plowing vehicles. Warning lights come in a variety
of types, sizes and shapes such as rotating, strobe and state-of-the-art LED models ranging in sizes from 8 inches to fifty-seven 57
inches. A recent addition to warning lights that has become an everyday bestseller for us is the new WATCHMAN®, which is a 24-inch
magnet light bar that can be converted to permanent mounting in minutes with no special tools. Because of the products’ popularity,
we designed a larger 48” version of the Watchman, which has seen very good acceptance in the market.
Another recent addition is Luminous, a high-performance,
low profile linear light bar designed with the latest state-of-the-art electronic circuitry that has low power consumption and will provide
years of reliable service. Luminous produces an intense beam of light which can be seen 360 degrees even in bright daylight. Available
in three lengths in color amber, blue, red, green and any combination of colors. Luminous is certified SAE J845 Class 1 and California
Title 13.
Manufacturing
Most of our manufacturing is outsourced
to contract manufacturers in China and Taiwan. In-house manufacturing consists of changes to fully assembled products,
as per custom orders. For example, converting the voltage of a horn for truck use, or the standard color of a particular warning light.
We have implemented a strict quality control
program which is run by our warehouse/production manager. We believe that our high quality standards assure customers that they are getting
the best and most reliable products in the market. Our manufacturing operations are designed to allow low-cost production of a wide variety
of products while maintaining a high level of customer service and quality.
We believe that our manufacturing facilities
generally have sufficient capacity to meet our current business requirements and our currently anticipated sales.
Vendor/Supplier Relationships
We have developed long term relationships with contact manufacturers based in China and Taiwan. All materials are sourced by the contract manufacturers. The following table sets
forth the vendors and suppliers that accounted for more than 10% of our purchases for the year ended December 31, 2022:
Supplier |
|
Product |
|
Total Purchases (2021) |
|
Total Purchases (2022) |
|
Percent of Purchases (2022) |
E-own Corporation |
|
Warning Lights & Horns |
|
$ |
430,937 |
|
|
$ |
418,780 |
|
|
|
28.6 |
% |
Zhejiang Jiejia Automobile |
|
Horns |
|
|
162,491 |
|
|
|
304,228 |
|
|
|
20.8 |
% |
Changz |
|
Warning Lights |
|
|
- |
|
|
|
271,611 |
|
|
|
18.5 |
% |
Ruian Jiani Auto Parts |
|
Horns |
|
|
178,324 |
|
|
|
246,799 |
|
|
|
16.8 |
% |
We have established relationships with our vendors,
with many of these relationships spanning more than 15 years. We implement vendor agreements with all our major accounts and some mid-size
accounts. The typical length of a vendor agreement is 2-3 years, and in most cases automatically renew.
We have also established volume discounts with
our suppliers which help to offset increased material, tariffs and increased labor costs domestically and overseas. With the unstable
world market, we have carefully started to engage secondary suppliers to make sure we have no interruptions in the supply chain and to
be sure we maintain a competitive price.
We believe that our strong relationships with
suppliers yield high quality, competitive pricing and overall good service to our customers. Although we cannot be sure that our sources
of supply will be adequate in all circumstances, we believe that we can develop alternate sources in a timely and cost-effective manner
if our current sources become inadequate. Due to availability of numerous alternative suppliers, we do not believe that the loss of any
single supplier would have a material adverse effect on our consolidated financial condition or results of operations. See Item 1A “Risk
Factors—Risks Related to Our Automotive Supply Business” for a description of the risks related to our supplier relationships.
Sales and Marketing
Our sales team consists of an in-house national
sales manager who coordinates with contracted sales representatives from thirteen regional sales companies in North America, Mexico,
Puerto Rico, the U.K., Europe, the Middle East and the industrial aftermarket. The sales representative’s agreement with us is
limited to automotive, internet-based companies and occasionally motorcycle aftermarket distributors.
Sales representatives are responsible for the
solicitation and development of new accounts, as well as working with existing customers to develop promotions and incentives for our
products. We have had relationships with these regional sales companies for 13 to 15 years on-average. All major customers are serviced
frequently by their sales representatives.
Our innovative retail product packaging design
is also a highly effective marketing tool in direct-to-consumer selling. Featuring quick response (QR) barcode technology, customers
are able to scan product packaging using their smart phone or mobile device to instantly see product information, watch demonstration
videos, or even hear horn demos. There is no need for special in-store displays or additional shelf space as all information is accessible
directly by scanning the product packaging. It is like having a virtual sales associate in-store. Packaging also features scan-back’s,
an instant rebate that is applied at the register upon checkout.
Additional marketing programs include in-store
promotional programs for customers, e-commerce via our website, as well as email blasts and customer print catalogs. We mail print and/or
electronic CD catalogs to established accounts every 18 months with new product information inserted via supplemental sell-sheets. New
product launches and updates are also sent to customers via email blast periodically.
We exhibit at key industry and customer tradeshows
and belongs to the National Marine Manufacturers Association and American Boat and Yacht Council.
Customers
We sell products to the automobile aftermarket,
national retailers, direct-to-consumer, mail order, web-based retailers, public safety equipment wholesalers, industrial wholesalers,
as well as the motorcycle and marine aftermarkets.
We have a diverse customer base, including
Amazon, AutoZone, Advanced Auto Parts, CarQuest, Aries, das, Grainger, FleetFarm and J&P Cycles. Internationally, we sell products
in Canada, Mexico, Europe, and Amsterdam. Most of our online customers such as Amazon ship direct internationally. A majority of our sales
are made to repeat customers, with many of our customer relationships spanning more than 10 years. We believe that our customers appreciate
the ease of doing business with all orders placed electronically via electronic data interchange, or EDI.
In recent years, we have entered into the motorcycle
and industrial (fleet maintenance) aftermarkets, as well a product line of horns for the marine parts aftermarket.
Order Fulfillment
Our efficient fulfillment process uses an intergraded
EDI system for receiving orders, advanced shipping notices and invoicing. The custom software is integral in reducing manual order entry,
as well the prevention of errors.
Implementing an EDI system has allowed us to
improve our fulfillment threshold rate, as well as avoid fines from customers for order fulfillment errors and fill rate.
The following diagram illustrates our order fulfillment process.
Research and Development
For the development of new products, we have
implemented a streamlined R&D process. The average R&D process from initial design to sending a product sample for tooling is
approximately 6-12 months.
| ● | Step
1: Identify and confirm a problem and/or need for a product |
| ● | Step
2: Draw up many possible solutions and discuss with sales manager and warehouse manager,
whose focus in on the market demand |
| ● | Step
3: Narrow down to the three best options and create handmade prototype to test which solution
works best. |
| ● | Step
4: Send sample prototype to patent attorney to determine ability to patent and send hand
sample to a draftsman for 3D drawing |
| ● | Step
5: The 3D drawing is approved, and a 3D print is made. The 3D print sample is tested, and
any necessary modifications are made |
| ● | Step
6: The 3D drawing and printed sample are sent to one of our suppliers to start the tooling
process |
Competition
The sale of automotive aftermarket items is highly
competitive in many areas, including customer service, product availability, store location, brand recognition and price. We believe
that we have established our brand as an industry-leader in developing innovative products for the automobile aftermarket industry, especially
in horn design and technology (electric, air, truck, marine, motorcycle and industrial equipment). Current competitors in related industries
are FIAMM, Grote, Peterson Manufacturing Company, ECCO, Vixen Horns, HornBlasters and Klienn.
Competitive Advantages
Based on management’s belief and experience
in the industry, we believe that the following competitive strengths enable us to compete effectively.
| ● | Established
name and reputation. We believe that we have maintained our excellent reputation
in the industry for over 55 years through bringing exclusive products and designs to market
to meet current and future needs. |
|
● |
Patents and trademarks. We have been granted 51 patents from the U.S., China, Taiwan and the EU. About half of our patents are utility patents, which protect a products’ methods of functionality. Utility patents are a difficult barrier for competitors to overcome, therefore these products have a higher profit margin. The other half of our patents are design patents. |
| ● | Long-term
supplier and customer relationships. We have established relationships with our vendors,
with many of these relationships spanning more than 15 years, and a majority of our sales
are made to repeat customers, with many of our customer relationships spanning more than
10 years. |
| ● | International
licensing agreements. We have a licensing agreement with a large wholesale supplier
of auto parts in the U.K. for our patented Bad Boy Horn. The U.K. supplier also has retail
chain stores and this agreement has been generating year-over-year sales growth for us. |
Growth Strategies
Management sees the below as the key initiatives for our continued
growth strategy:
| ● | Increase
sales through new products and online marketing. We are aggressively pursuing our
current market share and building sales by adding new products to existing accounts. Additionally,
we will continue to expand our online sales platforms which include Wolo-mfg.com, Wolo-USA.com,
Autozone.com, Amazon.com, BestAutoAccessories.com and Autoaccessoriesgarage.com, among others.
There also exists significant growth potential in the purchasing of available key URL’s
and implementing enhanced search engine optimization strategies. |
| ● | Expand
into traditional market and original equipment replacement horns. The automotive
aftermarket has multiple channels of distribution, and one in which we have limited distribution
is the traditional channel. This channel distributes products through wholesale warehouse
distributors such as Federated Auto Parts, Pronto Auto Parts, Bumper-To-Bumper and Auto Value.
Traditional distribution primarily services the DIFM (Do-It-For-Me) or professional installers.
Most of the products sold are direct original equipment replacement parts which are researched
based on year/make/model of the vehicle needing parts. We have limited distribution into
the traditional channel, primarily due to the fact that there are no original equipment replacement
horns in our product offerings. We believe that with minor product enhancements, we can offer
products to serve this channel and improve market share into the traditional channel. |
| ● | Expand
into growing international markets. Currently, we sell our products in the US, Canada,
Mexico, Europe and the Middle East. We believe that there is great growth opportunity in Mexico. Additionally, we
have identified Canada and the Netherlands as expansion markets specifically for our Motorcycle
Air Horn. |
| ● | Additional
focus on the municipal and public safety markets. We have identified a significant
demand for certified warning lights within the municipal and public safety markets. The certification
of existing products is immediately possible and very cost effective. |
| ● | Grow
presence within the marine marketplace. We see immediate growth opportunities existing
within the marine market with certified horns that meet US Coast Guard regulations and other
regulatory standards. |
Intellectual Property
We have been granted 51 patents from the United
States, China, Taiwan and the EU. About half of our patents are utility patents, which protect a product’s methods of functionality.
Utility patents are a difficult barrier for competitors to overcome, therefore these products have a higher profit margin. The other half
of our patents are design patents.
We have trademarks registered in the United States
and various countries for some of our core properties, including Taiwan, amongst others.
Our intellectual property, including patents,
trademarks, service marks, domain names, copyrights and trade secrets, is an important part of our business. To protect our intellectual
property, we rely on a combination of laws and regulations, in addition to intellectual property rights in the United States and other
jurisdictions, including patents, trademarks, copyrights, and trade secret laws, together with contractual provisions and technical measures
that we have implemented. To protect our trade secrets, we maintain strict control access to our proprietary systems and technology.
We also enter into confidentiality and invention assignment agreements with employees and consultants, as well as confidentiality and
non-disclosure agreements with third parties that provide products and services to us.
Employees
As of December 31, 2022, we employed 15 employees,
including 11 hourly employees. None of our employees are represented by labor unions, and we believe that we have an excellent relationship
with our employees.
Regulation
We are subject to various federal, state, and
local laws and governmental regulations relating to the operation of our business, including those related to labor and employment, discrimination,
anti-bribery/anti-corruption, product quality and safety standards, data privacy and taxes. Compliance with any such laws and regulations
has not had a material adverse effect on our operations to date.
EYEWEAR PRODUCTS BUSINESS
Our eyewear products business is operated by
ICU Eyewear, which we acquired in the first quarter of 2023.
Overview
ICU Eyewear, which was founded in 1956 and is
headquartered in Hollister, California, is a leading designer of over-the-counter, or OTC, non-prescription reading glasses, sunglasses,
blue light blocking eyewear, sun readers and outdoor specialty sunglasses, as well as select health and personal care items, such as
surgical face masks. We sell our products to big-box national retail chains, through various distributors, as well as online direct to
consumer sales. We believe that we are the only OTC eyewear supplier in the U.S. to have meaningful penetration in all significant retail
channels including grocery, specialty, office supply, pharmacy, and outdoor sports stores.
Products
We design and sell a broad range of products comprised
of OTC reader eyeglasses, blue light blocking eyewear, sun readers, outdoor specialty sunglasses, and accessories.
Reader Eyeglasses and Specialty Sunglasses
We design and sell an extensive selection of
OTC non-prescription reading glasses, sunglasses, sun reading glasses, as well as active and sport sunglasses. Our distinctive eyewear
is marketed under several distinct brand names, each of which addresses a particular product category and price point.
Our brand names include “ICU Eyewear,”
“Studio by ICU Eyewear,” “ICU Eco Eyewear,” “Dr. Dean,” “Wink by ICU Eyewear,” “SOL,”
“Fisherman,” “Guideline Eyegear,” “ICU Health,” and “Screen Vision.” Most of our sales
come from the “ICU Eyewear Brand.”
We believe that our distinctive eyewear and eyewear
merchandising has led to our success as an OTC eyewear provider at Target, as well as becoming the exclusive provider of personal care
products to Target.
Eyeglass Accessories
We have an array of existing eye health and accessories
products, including contact lens cases and spray lens cleaners that we sell in tandem with our existing eyeglasses products.
Personal Care Items
In 2020, we began selling personal care items
such as surgical face masks and other personal protective equipment, or PPE, to serve the needs of our existing and new customers. We
sold both surgical masks as well as the N95 respirators to the United States government, as well as private retailers. In 2021, this
business continued, with large retailers continuing to place significant orders and committing to purchase masks and other personal care
categories, through at least 2023.
We also sell a variety of products, including
eye masks, eye pillows, white noise machines, and reusable silicone earplugs through our brand “Sleep Well by ICU.” The products
in our Sleep Well line also include bath salts, bath bombs, body butters, and vapor drops.
Manufacturing
All of our manufacturing is outsourced to contract
manufacturers. We believe we have developed meaningful, long-term relationships with our manufacturing vendors, some of which have worked
with us for over 20 years, and which provide valuable collaboration in new product development ideas and formulations.
We believe that our high-quality standards for
our products ensure that customers are receiving the best products on the market. Our Hollister, California facility shipped 5.7 million
units in 2022 and has the capacity to ship up to 10 million units per year across an array of product categories, made possible by our
partnerships with our suppliers. Our manufacturing operations are designed to allow low-cost production of a wide variety of products
while maintaining a high level of customer service and quality.
We believe that our manufacturing facilities
generally have sufficient capacity to meet our current business requirements and our currently anticipated sales.
Vendor/Supplier Relationships
We have developed long term relationships with
our top four contact manufacturers based in China, Taiwan and the United States. All materials are sourced by the contract manufacturers.
The following table sets forth the vendors and suppliers that accounted for more than 10% of our purchases for the year ended December
31, 2022:
Supplier | |
Product | |
Total
Purchases
(2021) | | |
Total
Purchases
(2022) | | |
Percent of
Purchases
(2022) | |
Contour Optik Inc. | |
Reading Glasses | |
$ | 4,453,915 | | |
$ | 4,118,692 | | |
| 49 | % |
Prosben Inc. | |
Accessories/ Private Label | |
| 1,027,890 | | |
| 1,294,240 | | |
| 15 | % |
Indiana Face Mask | |
PPE | |
| 140,550 | | |
| 1,645,479 | | |
| 19 | % |
While we work primarily with a small, select
group of trusted partners to ensure our quality and reliability, we are under no exclusive supplier contracts, and we have working relationships
with a variety of second-source alternatives for all product manufacturing needs.
We believe that our strong relationships with
suppliers yield high quality, competitive pricing and overall good service to our customers. Although we cannot be sure that our sources
of supply will be adequate in all circumstances, we believe that we can develop alternate sources in a timely and cost-effective manner
if our current sources become inadequate. Due to the availability of numerous alternative suppliers, we do not believe that the loss
of any single supplier would have a material adverse effect on our consolidated financial condition or results of operations. See Item
1A “Risk Factors—Risks Related to Our Eyewear Products Business” for a description of the risks related to our
supplier relationships.
Sales and Marketing
Our innovative retail product packaging design
is also a highly effective marketing tool. We use intuitive merchandizing displays to show the full color spectrum and product choices
of our offering in retail locations. Our eyeglass products are designed to be displayed in a way that is easier to take off, try, package,
and replace each product, as compared to historical tagged eyewear products. Our branded assortments of differentiated fashion forward
product lines are specifically curated for each individual, channel, and retail partner.
We also market our certificated carbon neutral
status, as well as our eco-friendly reading glasses that are made from recycled plastic, recycled metal, and bamboo.
Additional marketing programs may include in-store
promotional programs for customers, e-commerce via our website and Amazon.com, as well as email blasts. New product launches and updates
are also sent to customers via email blast periodically.
We exhibit at key industry and customer tradeshows
and belong to the Vision Council.
Customers
We sell products to national retailers, direct-to-consumer,
web-based retailers, and industrial wholesalers.
We serve multiple large customers, including
Amazon, Raley’s, Publix, Whole Foods and Target. Most of our online customers such as Amazon ship
direct. A majority of our sales are made to repeat customers, with many of our retail customer relationships spanning more than 10
years.
As of December 31, 2022, we had sales agreements
in place with most of our customers, including all national and midsize accounts. Sales agreements specify new store allowances,
terms of sale (discounts), annual stock adjustment, freight routing, company trade shows, rebates, and advertising programs. Agreement
lengths and renewal terms are based on the individual customer relationship.
In 2020, due to the COVID-19 pandemic, we entered
a personal care products market for PPE and other health products, where we sold products to our large retail customers, such as Target,
as well as the United States government.
Competition
The OTC eyewear products and accessories industry
is highly competitive with product availability, store location, brand recognition, and price being the principal competitive factors.
We believe that we have established our brand as an industry-leader in the marketing and sale of OTC eyeglasses and eyeglass products
for the retail and direct to consumer industries, especially for reading glasses and sunglasses. Current competitors in related industries
are Foster Grant, SAV Eyewear, Eyebobs, Peepers, Blue Gem, Sees Eyewear, Modo, and EyeOs.
Many of our current
competitors have, and potential competitors may have, longer operating histories, greater brand recognition, larger fulfillment infrastructures,
greater technical capabilities, faster and less costly shipping, significantly greater financial, marketing and other resources and larger
customer bases than we do.
Competitive Advantages
Based on management’s belief and experience
in the industry, we believe that the following competitive strengths enable us to compete effectively.
| ● | Established
name and reputation. We believe that we have maintained our excellent reputation
in the industry for over 67 years through bringing unique products and eyeglass designs to
the market to meet current and future needs. |
| ● | Trademarks
and brands. We have been granted 19 trademarks in the United States, relating to
each of our specialized brands. We believe that our brands provide unique and distinct focuses,
each of which provides products in a distinctive product category, retail channel, and for
a particular price point. |
| ● | Long-term
supplier and customer relationships. We have established relationships with our vendors,
with many of these relationships spanning more than 20 years, and the majority of our sales
are to our established retail partners, with many of our customer relationships lasting over
10 years. Our partnership with companies like Target and Raley’s enables us to provide
quality products to trusted and repeated customers. We believe that we are the only OTC eyewear
supplier to have meaningful penetration in all significant retail channels, including office
supply, outdoor brands, and natural grocery channels. |
Growth Strategies
Management sees the below as the key initiatives
for our continued growth strategy:
| ● | Increase
sales through new products and online marketing. We are aggressively pursuing our
current market share and building sales by adding new products to our existing range. We
look to expand distribution of our new blue light blocking eyewear, which was initially released
in Target in April 2018, under our “Screen Vision by ICU Eyewear” brand. Additionally,
we will continue to expand our online sales platform, including our website and Amazon.com,
among others. |
| ● | Expand
to new retail partners. The eyeglass product market may have multiple channels of
distribution, one of which is the retail product market. Presently, this channel distributes
the majority of our products to our customers, primarily through our contracts with Target,
Office Depot, and Raley’s. We plan to expand our products to new customers, with the
goal of partnering with other large retailers. |
|
● |
Acquisition. We are targeting small to mid-size eyewear companies that have products and or channels to complement our current product and customer mix which will increase gross revenue and realize the benefits of economies of scale and scope. |
Intellectual Property
We have 17 trademarks registered in the United
States for our brands and brand names.
Our intellectual property, including trademarks,
service marks, domain names, and trade secrets, is an important part of our business. To protect our intellectual property, we rely on
a combination of laws and regulations, in addition to intellectual property rights in the United States, including trademarks and trade
secret laws, together with contractual provisions and technical measures that we have implemented. To protect our trade secrets, we maintain
strict control access to our proprietary systems and technology. We also enter into confidentiality and invention assignment agreements
with employees and consultants, as well as confidentiality and non-disclosure agreements with third parties that provide products and
services to us.
Employees
As of December 31, 2022, we employed 29 employees,
including 13 hourly employees. None of our employees are represented by labor unions, and we believe that we have an excellent relationship
with our employees.
Regulation
We are subject to various federal, state and
local laws and governmental regulations relating to the operation of our business, including those related to labor and employment, discrimination,
anti-bribery/anti-corruption, product quality and safety standards, data privacy and taxes. Compliance with any such laws and regulations
has not had a material adverse effect on our operations to date.
ITEM
1A. RISK FACTORS.
An investment in our securities involves a
high degree of risk. You should carefully read and consider all of the risks described below, together with all of the other information
contained or referred to in this report, before making an investment decision with respect to our securities. If any of the following
events occur, our financial condition, business and results of operations (including cash flows) may be materially adversely affected.
In that event, the market price of our shares could decline, and you could lose all or part of your investment.
Risks Related to Our Business and Structure
The COVID-19 pandemic may cause a material
adverse effect on our business.
In December 2019, a novel coronavirus disease,
or COVID-19, was initially reported and on March 11, 2020, the World Health Organization characterized COVID-19 as a pandemic. COVID-19
has had a widespread and detrimental effect on the global economy as a result of the continued increase in the number of cases and affected
countries and actions by public health and governmental authorities, businesses, other organizations, and individuals to address the
outbreak, including travel bans and restrictions, quarantines, shelter in place, stay at home or total lock-down orders and business
limitations and shutdowns.
Despite recent developments of vaccines, the duration and severity
of COVID-19, mutations and possible additional mutations and the degree of their impact on our business is uncertain and difficult to
predict. The continued spread of the outbreak could result in one or more of the following conditions that could have a material adverse
impact on our business operations and financial condition: delays or difficulty sourcing certain products and raw materials; increased
costs for such products and raw materials; and loss of productivity due to employee absences. Notably, approximately 90% of Wolo’s
vendor base is located in China. The pandemic issues impacting ports in the U.S. due to lack of personnel has had a ripple effect on Chinese
suppliers. Containers are slow to be emptied in the U.S., causing a backlog of ships waiting to get into ports and limiting containers
and ships returning to China. The lack of containers and available space on ships has escalated shipping costs by over 400% from 2020.
Our inability to respond to and manage the potential impact of such events effectively could have a material adverse effect on our business,
financial condition, and results of operations.
Our efforts to help mitigate the negative impact
of the outbreak on our business may not be effective, and we may be affected by a protracted economic downturn. Furthermore, while many
governmental authorities around the world have and continue to enact legislation to address the impact of COVID-19, including measures
intended to mitigate some of the more severe anticipated economic effects of the virus, we may not benefit from such legislation, or
such legislation may prove to be ineffective in addressing COVID-19’s impact on our and our customer’s businesses and operations.
Even after the COVID-19 outbreak has subsided, we may continue to experience impacts to our business as a result of COVID-19’s
global economic impact and any recession that has occurred or may occur in the future. Further, as the COVID-19 situation is unprecedented
and continuously evolving, COVID-19 may also affect our operating and financial results in a manner that is not presently known to us
or in a manner that we currently do not consider that may present significant risks to our operations.
The extent to which the COVID-19 pandemic may
impact our results will depend on future developments, which are highly uncertain and cannot be predicted as of the date of this report.
Nevertheless, the pandemic and the current financial, economic and capital markets environment, and future developments in the global
supply chain and other areas present material uncertainty and risk with respect to our performance, financial condition, results of operations
and cash flows.
Our auditors have issued a going concern
opinion on our audited financial statements.
Although our audited financial statements for
the year ended December 31, 2022 were prepared under the assumption that we would continue our operations as a going concern, the
report of our independent registered public accounting firm that accompanies our financial statements for the year ended December 31,
2022 contains a going concern qualification in which such firm expressed substantial doubt about our ability to continue as a going concern,
based on the financial statements at that time. We have generated losses since inception and have relied on cash on hand, sales of securities,
external bank lines of credit, and issuance of third-party and related party debt to support cashflow from operations. For the year
ended December 31, 2022, we incurred operating losses of $10,801,913 (before deducting losses attributable to non-controlling interests)
and cash flows used in operations of $4,131,477.
However, management believes, based on our operating
plan, that current working capital and current and expected additional financing is sufficient to fund operations and satisfy our obligations
as they come due for at least one year from the financial statement issuance date. However, we do
believe additional funds are required to execute our business plan and our strategy of acquiring additional businesses. The funds required
to execute our business plan will depend on the size, capital structure and purchase price consideration that the seller of a target business
deems acceptable in a given transaction. The amount of funds needed to execute our business plan also depends on what portion of the purchase
price of a target business the seller of that business is willing to take in the form of seller notes or our equity or equity in one of
our subsidiaries.
Although we do not believe that we will require
additional cash to continue our operations over the next twelve months, there are no assurances that we will be able to raise our revenues
to a level which supports profitable operations and provides sufficient funds to pay obligations in the future. Our prior losses have
had, and will continue to have, an adverse effect on our financial condition. In addition, continued operations and our ability to acquire
additional businesses may be dependent on our ability to obtain additional financing in the future, and there are no assurances that such
financing will be available to us at all or will be available in sufficient amounts or on reasonable terms. Our financial statements do
not include any adjustments that may result from the outcome of this uncertainty. If we are unable to generate additional funds in the
future through our operations, financings or from other sources or transactions, we will exhaust our resources and will be unable to continue
operations. If we cannot continue as a going concern, our shareholders would likely lose most or all of their investment in us.
We may not be able to effectively
integrate the businesses that we acquire.
Our ability to realize the anticipated benefits
of acquisitions will depend on our ability to integrate those businesses with our own. The combination of multiple independent businesses
is a complex, costly and time-consuming process and there can be no assurance that we will be able to successfully integrate businesses
into our business, or if such integration is successfully accomplished, that such integration will not be costlier or take longer than
presently contemplated. Integration of future acquisitions may include various risks and uncertainties, including the factors discussed
in the paragraph below. If we cannot successfully integrate and manage the businesses within a reasonable time, we may not be able to
realize the potential and anticipated benefits of such acquisitions, which could have a material adverse effect on our share price, business,
cash flows, results of operations and financial position.
We will consider other acquisitions that we believe
will complement, strengthen and enhance our growth. We evaluate opportunities on a preliminary basis from time to time, but these transactions
may not advance beyond the preliminary stages or be completed. Such acquisitions are subject to various risks and uncertainties, including:
| ● | the inability to integrate effectively the operations, products,
technologies and personnel of the acquired companies (some of which are in diverse geographic regions) and achieve expected synergies; |
| ● | the potential disruption of existing business and diversion
of management’s attention from day-to-day operations; |
| ● | the inability to maintain uniform standards, controls, procedures
and policies; |
| ● | the need or obligation to divest portions of the acquired
companies; |
| ● | the potential failure to identify material problems and liabilities
during due diligence review of acquisition targets; |
| ● | the potential failure to obtain sufficient indemnification
rights to fully offset possible liabilities associated with acquired businesses; and |
| ● | the challenges associated with operating in new geographic
regions. |
Our future success is dependent on the
employees of our manager, our manager’s operating partners and the management team of our business, the loss of any of whom could
materially adversely affect our financial condition, business and results of operations.
Our future success depends, to a significant
extent, on the continued services of the employees of our manager. The loss of their services may materially adversely affect our ability
to manage the operations of our businesses. The employees of our manager may leave our manager and go to companies that compete with
us in the future. In addition, we depend on the assistance provided by our manager’s operating partners in evaluating, performing
diligence on and managing our businesses. The loss of any employees of our manager or any of our manager’s operating partners may
materially adversely affect our ability to implement or maintain our management strategy or our acquisition strategy.
The future success of our existing and future
businesses also depends on the respective management teams of those businesses because we intend to operate our businesses on a stand-alone
basis, primarily relying on their existing management teams for day-to-day operations. Consequently, their operational success, as well
as the success of any organic growth strategy, will be dependent on the continuing efforts of the management teams of our businesses.
We will seek to provide these individuals with equity incentives and to have employment agreements with certain persons we have identified
as key to their businesses. However, these measures may not prevent these individuals from leaving their employment. The loss of services
of one or more of these individuals may materially adversely affect our financial condition, business and results of operations.
We may experience difficulty as we evaluate,
acquire and integrate businesses that we may acquire, which could result in drains on our resources, including the attention of our management,
and disruptions of our on-going business.
We acquire small businesses in various industries.
Generally, because such businesses are privately held, we may experience difficulty in evaluating potential target businesses as much
of the information concerning these businesses is not publicly available. Therefore, our estimates and assumptions used to evaluate the
operations, management and market risks with respect to potential target businesses may be subject to various risks and uncertainties.
Further, the time and costs associated with identifying and evaluating potential target businesses and their industries may cause a substantial
drain on our resources and may divert our management team’s attention away from the operations of our businesses for significant
periods of time.
In addition, we may have difficulty effectively
integrating and managing acquisitions. The management or improvement of businesses we acquire may be hindered by a number of factors,
including limitations in the standards, controls, procedures and policies implemented in connection with such acquisitions. Further,
the management of an acquired business may involve a substantial reorganization of the business’ operations resulting in the loss
of employees and customers or the disruption of our ongoing businesses. We may experience greater than expected costs or difficulties
relating to an acquisition, in which case, we might not achieve the anticipated returns from any particular acquisition.
We face competition for businesses that
fit our acquisition strategy and, therefore, we may have to acquire targets at sub-optimal prices or, alternatively, forego certain acquisition
opportunities.
We have been formed to acquire and manage small
businesses. In pursuing such acquisitions, we expect to face strong competition from a wide range of other potential purchasers. Although
the pool of potential purchasers for such businesses is typically smaller than for larger businesses, those potential purchasers can
be aggressive in their approach to acquiring such businesses. Furthermore, we expect that we may need to use third-party financing in
order to fund some or all of these potential acquisitions, thereby increasing our acquisition costs. To the extent that other potential
purchasers do not need to obtain third-party financing or are able to obtain such financing on more favorable terms, they may be in a
position to be more aggressive with their acquisition proposals. As a result, in order to be competitive, our acquisition proposals may
need to be aggressively priced, including at price levels that exceed what we originally determined to be fair or appropriate. Alternatively,
we may determine that we cannot pursue on a cost-effective basis what would otherwise be an attractive acquisition opportunity.
We may not be able to successfully fund
acquisitions due to the unavailability of debt or equity financing on acceptable terms, which could impede the implementation of our
acquisition strategy.
In order to make acquisitions, we intend to raise
capital primarily through debt financing, primarily at our operating company level, additional equity offerings, the sale of equity or
assets of our businesses, offering equity in our company or our businesses to the sellers of target businesses or by undertaking a combination
of any of the above. Because the timing and size of acquisitions cannot be readily predicted, we may need to be able to obtain funding
on short notice to benefit fully from attractive acquisition opportunities. Such funding may not be available on acceptable terms. In
addition, the level of our indebtedness may impact our ability to borrow at our company level. The sale of additional shares of any class
of equity will also be subject to market conditions and investor demand for such shares at prices that may not be in the best interest
of our shareholders. These risks may materially adversely affect our ability to pursue our acquisition strategy.
Adverse developments affecting the financial
services industry, such as actual events or concerns involving liquidity, defaults, or non-performance by financial institutions
or transactional counterparties, could adversely affect our current and projected business operations and our financial condition and
results of operations.
Actual events involving limited liquidity, defaults, non-performance or
other adverse developments that affect financial institutions, transactional counterparties or other companies in the financial services
industry or the financial services industry generally, or concerns or rumors about any events of these kinds or other similar risks, have
in the past and may in the future lead to market-wide liquidity problems. For example, on March 10, 2023, Silicon Valley Bank, or SVB,
was closed by the California Department of Financial Protection and Innovation, which appointed the Federal Deposit Insurance Corporation,
or the FDIC, as receiver. Similarly, on March 12, 2023, Signature Bank Corp., or Signature, and Silvergate Capital Corp. were each
swept into receivership. Although a statement by the Department of the Treasury, the Federal Reserve and the FDIC indicated
that all depositors of SVB would have access to all of their money after only one business day of closure, including funds held in uninsured
deposit accounts, borrowers under credit agreements, letters of credit and certain other financial instruments with SVB, Signature or
any other financial institution that is placed into receivership by the FDIC may be unable to access undrawn amounts thereunder.
Although we do not have any funds deposited with
SVB, Signature Bank or any financial institution currently in receivership, we regularly maintain cash balances with other financial institutions
in excess of the FDIC insurance limit. A failure of a depository institution to return deposits could impact access
to our invested cash or cash equivalents and could adversely impact our operating liquidity and financial performance. Furthermore, if
any of our partners, suppliers or other parties with whom we conduct business are unable to access funds with such a financial institution,
such parties’ ability to pay their obligations to us or to enter into new commercial arrangements requiring additional payments
to us could be adversely affected. In this regard, counterparties to credit agreements and arrangements with these financial institutions,
and third parties such as beneficiaries of letters of credit (among others), may experience direct impacts from the closure of these financial
institutions and uncertainty remains over liquidity concerns in the broader financial services industry. Similar impacts have occurred
in the past, such as during the 2008-2010 financial crisis.
Inflation and rapid increases in interest rates
have led to a decline in the trading value of previously issued government securities with interest rates below current market interest
rates. Although the U.S. Department of Treasury, FDIC and Federal Reserve Board have announced a program to provide up to $25
billion of loans to financial institutions secured by certain of such government securities held by financial institutions to mitigate
the risk of potential losses on the sale of such instruments, widespread demands for customer withdrawals or other liquidity needs of
financial institutions for immediately liquidity may exceed the capacity of such program.
Our access to funding sources and other credit
arrangements in amounts adequate to finance or capitalize our current and projected future business operations could be significantly
impaired by factors that affect us, any financial institutions with which we enter into credit agreements or arrangements directly, or
the financial services industry or economy in general. These factors could include, among others, events such as liquidity constraints
or failures, the ability to perform obligations under various types of financial, credit or liquidity agreements or arrangements, disruptions
or instability in the financial services industry or financial markets, or concerns or negative expectations about the prospects for companies
in the financial services industry. These factors could involve financial institutions or financial services industry companies with which
we have financial or business relationships, but could also include factors involving financial markets or the financial services industry
generally.
The results of events or concerns that involve
one or more of these factors could include a variety of material and adverse impacts on our current and projected business operations
and our financial condition and results of operations. These risks include, but may not be limited to, the following:
| ● | delayed access to deposits or other financial assets or the uninsured loss of deposits or other financial
assets; |
| ● | inability to enter into credit facilities or other working capital resources; |
| ● | potential or actual breach of contractual obligations that require us to maintain letters of credit or
other credit support arrangements; or |
| ● | termination of cash management arrangements and/or delays in accessing or actual loss of funds subject
to cash management arrangements. |
In addition, investor concerns regarding the U.S.
or international financial systems could result in less favorable commercial financing terms, including higher interest rates or costs
and tighter financial and operating covenants, or systemic limitations on access to credit and liquidity sources, thereby making it more
difficult for us to acquire financing on acceptable terms or at all. Any decline in available funding or access to our cash and liquidity
resources could, among other risks, adversely impact our ability to meet our operating expenses or other obligations, financial or otherwise,
result in breaches of our financial and/or contractual obligations, or result in violations of federal or state wage and hour laws. Any
of these impacts, or any other impacts resulting from the factors described above or other related or similar factors, could have material
adverse impacts on our liquidity and our current and/or projected business operations and financial condition and results of operations.
In addition, any further deterioration in the
macroeconomic economy or financial services industry could lead to losses or defaults by our partners, vendors or suppliers, which in
turn, could have a material adverse effect on our current and/or projected business operations and results of operations and financial
condition. For example, a partner may fail to make payments when due, default under their agreements with us, become insolvent or declare
bankruptcy, or a supplier may determine that it will no longer deal with us as a customer. In addition, a vendor or supplier could be
adversely affected by any of the liquidity or other risks that are described above as factors that could result in material adverse impacts
on us, including but not limited to delayed access or loss of access to uninsured deposits or loss of the ability to draw on existing
credit facilities involving a troubled or failed financial institution. The bankruptcy or insolvency of any partner, vendor or supplier,
or the failure of any partner to make payments when due, or any breach or default by a partner, vendor or supplier, or the loss of any
significant supplier relationships, could cause us to suffer material losses and may have a material adverse impact on our business.
We may change our management and acquisition
strategies without the consent of our shareholders, which may result in a determination by us to pursue riskier business activities.
We may change our strategy at any time without
the consent of our shareholders, which may result in our acquiring businesses or assets that are different from, and possibly riskier
than, the strategy described in this report. A change in our strategy may increase our exposure to interest rate and currency fluctuations,
subject us to regulation under the Investment Company Act of 1940, as amended, which we refer to as the Investment Company Act, or subject
us to other risks and uncertainties that affect our operations and profitability.
If we are unable to generate sufficient
cash flow from the anticipated dividends and interest payments that we expect to receive from our businesses, we may not be able to make
distributions to our shareholders.
Our primary business is the holding and managing
of controlling interests our operating businesses. Therefore, we will be dependent upon the ability of our businesses to generate cash
flows and, in turn, distribute cash to us in the form of interest and principal payments on indebtedness and distributions on equity
to enable us, first, to satisfy our financial obligations and, second, to make distributions to our common shareholders. The ability
of our businesses to make payments to us may also be subject to limitations under laws of the jurisdictions in which they are incorporated
or organized. If, as a consequence of these various restrictions or otherwise, we are unable to generate sufficient cash flow from our
businesses, we may not be able to declare, or may have to delay or cancel payment of, distributions to our common shareholders.
In addition, the put price and profit allocation
will be payment obligations and, as a result, will be senior in right to the payment of any distributions to our shareholders. Further,
we are required to make a profit allocation to our manager upon satisfaction of applicable conditions to payment. See Item 1 “Business—Our
Manager—Our Manager as an Equity Holder” for more information about our manager’s put right and profit allocation.
Our loans with third parties contain certain
terms that could materially adversely affect our financial condition.
We and our subsidiaries are parties to certain
loans with third parties, which are secured by the assets of our subsidiaries. The loans agreements contain customary representations,
warranties and affirmative and negative financial and other covenants. If an event of default were to occur under any of these loans,
the lender thereto may pursue all remedies available to it, including declaring the obligations under its respective loan immediately
due and payable, which could materially adversely affect our financial condition. See Item 7 “Management’s Discussion
and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources” for further discussion
regarding our borrowing activities.
In the future, we may seek to enter into
other credit facilities to help fund our acquisition capital and working capital needs. These credit facilities may expose us to additional
risks associated with leverage and may inhibit our operating flexibility and reduce cash flow available for payment of distributions
to our shareholders.
We may seek to enter into other credit facilities
with third-party lenders to help fund our acquisitions. Such credit facilities will likely require us to pay a commitment fee on the
undrawn amount and will likely contain a number of affirmative and restrictive covenants.
If we violate any such covenants, our lenders
could accelerate the maturity of any debt outstanding and we may be prohibited from making any distributions to our shareholders. Such
debt may be secured by our assets, including the stock we may own in businesses that we acquire and the rights we have under intercompany
loan agreements that we may enter into with our businesses. Our ability to meet our debt service obligations may be affected by events
beyond our control and will depend primarily upon cash produced by businesses that we currently manage and may acquire in the future
and distributed or paid to us. Any failure to comply with the terms of our indebtedness may have a material adverse effect on our financial
condition.
In addition, we expect that such credit facilities
will bear interest at floating rates which will generally change as interest rates change. We will bear the risk that the rates that
we are charged by our lenders will increase faster than we can grow the cash flow from our businesses or businesses that we may acquire
in the future, which could reduce profitability, materially adversely affect our ability to service our debt, cause us to breach covenants
contained in our third-party credit facilities and reduce cash flow available for distribution.
We may engage in a business transaction
with one or more target businesses that have relationships with our executive officers, our directors, our manager, our manager’s
employees or our manager’s operating partners, or any of their respective affiliates, which may create or present conflicts of
interest.
We may decide to engage in a business transaction
with one or more target businesses with which our executive officers, our directors, our manager, our manager’s employees, our
manager’s operating partners, or any of their respective affiliates, have a relationship, which may create or present conflicts
of interest. Regardless of whether we obtain a fairness opinion from an independent investment banking firm with respect to such a transaction,
conflicts of interest may still exist with respect to a particular acquisition and, as a result, the terms of the acquisition of a target
business may not be as advantageous to our shareholders as it would have been absent any conflicts of interest.
The operational objectives and business
plans of our businesses may conflict with our operational and business objectives or with the plans and objective of another business
we own and operate.
Our businesses operate in different industries
and face different risks and opportunities depending on market and economic conditions in their respective industries and regions. A
business’ operational objectives and business plans may not be similar to our objectives and plans or the objectives and plans
of another business that we own and operate. This could create competing demands for resources, such as management attention and funding
needed for operations or acquisitions, in the future.
If, in the future, we cease to control
and operate our businesses or other businesses that we acquire in the future or engage in certain other activities, we may be deemed
to be an investment company under the Investment Company Act.
We have the ability to make investments in businesses
that we will not operate or control. If we make significant investments in businesses that we do not operate or control, or that we cease
to operate or control, or if we commence certain investment-related activities, we may be deemed to be an investment company under the
Investment Company Act. Our decision to sell a business will be based upon financial, operating and other considerations rather than
a plan to complete a sale of a business within any specific time frame. If we were deemed to be an investment company, we would either
have to register as an investment company under the Investment Company Act, obtain exemptive relief from the SEC or modify our investments
or organizational structure or our contract rights to fall outside the definition of an investment company. Registering as an investment
company could, among other things, materially adversely affect our financial condition, business and results of operations, materially
limit our ability to borrow funds or engage in other transactions involving leverage and require us to add directors who are independent
of us or our manager and otherwise will subject us to additional regulation that will be costly and time-consuming.
We have identified material weaknesses
in our internal control over financial reporting. If we fail to develop or maintain an effective system of internal controls, we may
not be able to accurately report our financial results and prevent fraud. As a result, current and potential shareholders could lose
confidence in our financial statements, which would harm the trading price of our common shares.
Companies that file reports with the SEC, including
us, are subject to the requirements of Section 404 of the Sarbanes-Oxley Act of 2002, or SOX 404. SOX 404 requires management to establish
and maintain a system of internal control over financial reporting and annual reports on Form 10-K filed under the Securities Exchange
Act of 1934, as amended, or the Exchange Act, to contain a report from management assessing the effectiveness of a company’s internal
control over financial reporting. Separately, under SOX 404, as amended by the Dodd-Frank Wall Street Reform and Consumer Protection
Act of 2010, public companies that are large accelerated filers or accelerated filers must include in their annual reports on Form 10-K
an attestation report of their regular auditors attesting to and reporting on management’s assessment of internal control over
financial reporting. Non-accelerated filers and smaller reporting companies, like us, are not required to include an attestation report
of their auditors in annual reports.
A report of our management is included under
Item 9A. “Controls and Procedures”. We are a smaller reporting company and, consequently, are not required to
include an attestation report of our auditor in our annual report. However, if and when we become subject to the auditor attestation
requirements under SOX 404, we can provide no assurance that we will receive a positive attestation from our independent auditors.
During its evaluation of the effectiveness of
internal control over financial reporting as of December 31, 2022, management identified material weaknesses. These material weaknesses
were associated with our lack of (i) appropriate policies and procedures to evaluate the proper accounting and disclosures of key documents
and agreements, (ii) adequate segregation of duties with our limited accounting personnel and reliance upon outsourced accounting services
and (iii) sufficient and skilled accounting personnel with an appropriate level of technical accounting knowledge and experience in the
application of GAAP commensurate with our financial reporting requirements. We are undertaking remedial measures, which measures
will take time to implement and test, to address these material weaknesses. There can be no assurance that such measures will be sufficient
to remedy the material weaknesses identified or that additional material weaknesses or other control or significant deficiencies will
not be identified in the future. If we continue to experience material weaknesses in our internal controls or fail to maintain or implement
required new or improved controls, such circumstances could cause us to fail to meet our periodic reporting obligations or result in
material misstatements in our financial statements, or adversely affect the results of periodic management evaluations and, if required,
annual auditor attestation reports. Each of the foregoing results could cause investors to lose confidence in our reported financial
information and lead to a decline in our share price.
Risks Related to Our Retail and Appliances
Business
If we fail to acquire new customers or
retain existing customers, or fail to do so in a cost-effective manner, we may not be able to achieve profitability.
Our success depends on our ability to acquire
and retain customers in a cost-effective manner. We have made significant investments related to customer acquisition and expect to continue
to spend significant amounts to acquire additional customers. We cannot assure you that the net profit from new customers we acquire
will ultimately exceed the cost of acquiring those customers. If we fail to deliver a quality shopping experience, or if consumers do
not perceive the products we offer to be of high value and quality, we may not be able to acquire new customers. If we are unable to
acquire new customers who purchase products in numbers sufficient to grow our business, we may not be able to generate the scale necessary
to drive beneficial network effects with our suppliers or efficiencies in our logistics network, our net revenue may decrease, and our
business, financial condition and operating results may be materially adversely affected.
We believe that many of our new customers originate
from word-of-mouth and other non-paid referrals from existing customers. Therefore, we must ensure that our existing customers remain
loyal to us in order to continue receiving those referrals. If our efforts to satisfy our existing customers are not successful, we may
not be able to acquire new customers in sufficient numbers to continue to grow our business, or we may be required to incur significantly
higher marketing expenses in order to acquire new customers.
Our success depends in part on our ability
to increase our net revenue per active customer. If our efforts to increase customer loyalty and repeat purchasing as well as maintain
high levels of customer engagement are not successful, our growth prospects and revenue will be materially adversely affected.
Our ability to grow our business depends on our
ability to retain our existing customer base and generate increased revenue and repeat purchases from this customer base, and maintain
high levels of customer engagement. To do this, we must continue to provide our customers and potential customers with a unified, convenient,
efficient and differentiated shopping experience by:
| ● | providing imagery, tools and technology that attract customers
who historically would have bought elsewhere; |
| ● | maintaining a high-quality and diverse portfolio of products; |
| ● | delivering products on time and without damage; and |
| ● | maintaining and further developing our in-store and online
platforms. |
If we fail to increase net revenue per active
customer, generate repeat purchases or maintain high levels of customer engagement, our growth prospects, operating results and financial
condition could be materially adversely affected.
Our business depends on our ability
to build and maintain strong brands. We may not be able to maintain and enhance our brands if we receive unfavorable customer complaints,
negative publicity or otherwise fail to live up to consumers’ expectations, which could materially adversely affect our business,
results of operations and growth prospects.
Maintaining and enhancing our brands is critical
to expanding our base of customers and suppliers. Our ability to maintain and enhance our brand depends largely on our ability to maintain
customer confidence in our product and service offerings, including by delivering products on time and without damage. If customers do
not have a satisfactory shopping experience, they may seek out alternative offerings from our competitors and may not return to our stores
and sites as often in the future, or at all. In addition, unfavorable publicity regarding, for example, our practices relating to privacy
and data protection, product quality, delivery problems, competitive pressures, litigation or regulatory activity, could seriously harm
our reputation. Such negative publicity also could have an adverse effect on the size, engagement, and loyalty of our customer base and
result in decreased revenue, which could adversely affect our business and financial results.
In addition, maintaining and enhancing these
brands may require us to make substantial investments, and these investments may not be successful. If we fail to promote and maintain
our brands, or if we incur excessive expenses in this effort, our business, operating results and financial condition may be materially
adversely affected. We anticipate that, as our market becomes increasingly competitive, maintaining and enhancing our brands may become
increasingly difficult and expensive. Maintaining and enhancing our brands will depend largely on our ability to provide high quality
products to our customers and a reliable, trustworthy and profitable sales channel to our suppliers, which we may not be able to do successfully.
Customer complaints or negative publicity about
our sites, products, delivery times, customer data handling and security practices or customer support, especially on blogs, social media
websites and our sites, could rapidly and severely diminish consumer use of our sites and consumer and supplier confidence in us and
result in harm to our brands.
Our efforts to expand our business into
new brands, products, services, technologies, and geographic regions will subject us to additional business, legal, financial, and competitive
risks and may not be successful.
Our business success depends to some extent on
our ability to expand our customer offerings by launching new brands and services and by expanding our existing offerings into new geographies.
Launching new brands and services or expanding geographically requires significant upfront investments, including investments in marketing,
information technology, and additional personnel. We may not be able to generate satisfactory revenue from these efforts to offset these
costs. Any lack of market acceptance of our efforts to launch new brands and services or to expand our existing offerings could have
a material adverse effect on our business, prospects, financial condition and results of operations. Further, as we continue to expand
our fulfillment capability or add new businesses with different requirements, our logistics networks become increasingly complex and
operating them becomes more challenging. There can be no assurance that we will be able to operate our networks effectively.
We have also entered and may continue to enter
into new markets in which we have limited or no experience, which may not be successful or appealing to our customers. These activities
may present new and difficult technological and logistical challenges, and resulting service disruptions, failures or other quality issues
may cause customer dissatisfaction and harm our reputation and brand. Further, our current and potential competitors in new market segments
may have greater brand recognition, financial resources, longer operating histories and larger customer bases than we do in these areas.
As a result, we may not be successful enough in these newer areas to recoup our investments in them. If this occurs, our business, financial
condition and operating results may be materially adversely affected.
If we fail to manage our growth effectively,
our business, financial condition and operating results could be harmed.
To manage our growth effectively, we must continue
to implement our operational plans and strategies, improve and expand our infrastructure of people and information systems and expand,
train and manage our employee base. We have rapidly increased employee headcount since our inception to support the growth in our business.
To support continued growth, we must effectively integrate, develop and motivate a large number of new employees. We face significant
competition for personnel. Failure to manage our hiring needs effectively or successfully integrate our new hires may have a material
adverse effect on our business, financial condition and operating results.
Additionally, the growth of our business places
significant demands on our operations, as well as our management and other employees. For example, we typically launch hundreds of promotional
events across thousands of products each month on our sites via emails and personalized displays. These events require us to produce
updates of our sites and emails to our customers on a daily basis with different products, photos and text. Any surge in online traffic
and orders associated with such promotional activities places increased strain on our operations, including our logistics network, and
may cause or exacerbate slowdowns or interruptions. The growth of our business may require significant additional resources to meet these
daily requirements, which may not scale in a cost-effective manner or may negatively affect the quality of our sites and customer experience.
We are also required to manage relationships with a growing number of suppliers, customers and other third parties. Our information technology
systems and our internal controls and procedures may not be adequate to support future growth of our supplier and employee base. If we
are unable to manage the growth of our organization effectively, our business, financial condition and operating results may be materially
adversely affected.
Our ability to obtain continued financing
is critical to the growth of our business. We will need additional financing to fund operations, which additional financing may not be
available on reasonable terms or at all.
Our future growth, including the potential for
future market expansion will require additional capital. We will consider raising additional funds through various financing sources,
including the procurement of additional commercial debt financing. However, there can be no assurance that such funds will be available
on commercially reasonable terms, if at all. If such financing is not available on satisfactory terms, we may be unable to execute our
growth strategy, and operating results may be adversely affected. Any additional debt financing will increase expenses and must be repaid
regardless of operating results and may involve restrictions limiting our operating flexibility.
Our ability to obtain financing may be impaired
by such factors as the capital markets, both generally and specifically in our industry, which could impact the availability or cost
of future financings. If the amount of capital we are able to raise from financing activities, together with our revenues from operations,
are not sufficient to satisfy our capital needs, we may be required to decrease the pace of, or eliminate, our future product offerings
and market expansion opportunities and potentially curtail operations.
Our business is highly competitive. Competition
presents an ongoing threat to the success of our business.
Our business is rapidly evolving and intensely
competitive, and we have many competitors in different industries. Our competition includes big box retailers, such as Home Depot, Lowe’s
and Costco, specialty retailers, such as TeeVax, Ferguson and Premier Bath and Kitchen, and online marketplaces, such as Amazon.
We expect competition to continue to increase.
We believe that our ability to compete successfully depends upon many factors both within and beyond our control, including:
| ● | the size and composition of our customer base; |
| ● | the number of suppliers and products we feature; |
| ● | our selling and marketing efforts; |
| ● | the quality, price and reliability of products we offer; |
| ● | the quality and convenience of the shopping experience that
we provide; |
| ● | our ability to distribute our products and manage our operations;
and |
| ● | our reputation and brand strength. |
Many of our current competitors have, and potential
competitors may have, longer operating histories, greater brand recognition, larger fulfillment infrastructures, greater technical capabilities,
faster and less costly shipping, significantly greater financial, marketing and other resources and larger customer bases than we do.
These factors may allow our competitors to derive greater net revenue and profits from their existing customer base, acquire customers
at lower costs or respond more quickly than we can to new or emerging technologies and changes in consumer habits. These competitors
may engage in more extensive research and development efforts, undertake more far-reaching marketing campaigns and adopt more aggressive
pricing policies, which may allow them to build larger customer bases or generate net revenue from their customer bases more effectively
than we do.
Our success depends, in substantial part,
on our continued ability to market our products through search engines and social media platforms.
The marketing of our products depends on our
ability to cultivate and maintain cost-effective and otherwise satisfactory relationships with search engines and social media platforms,
including those operated by Google, Facebook, Bing and Yahoo!. These platforms could decide to change their terms and conditions of use
at any time (and without notice) and/or significantly increase their fees. No assurances can be provided that we will be able to maintain
cost-effective and otherwise satisfactory relationships with these platforms and our inability to do so in the case of one or more of
these platforms could have a material adverse effect on our business, financial condition and results of operations.
We obtain a significant number of visits via
search engines such as Google, Bing and Yahoo! Search engines frequently change the algorithms that determine the ranking and display
of results of a user’s search and may make other changes to the way results are displayed, which can negatively affect the placement
of links and, therefore, reduce the number of visits to our website. The growing use of online ad-blocking software may also impact the
success of our marketing efforts because we may reach a smaller audience and fail to bring more customers to our website, which could
have a material adverse effect on our business, financial condition and results of operations.
System interruptions that impair customer
access to our sites or other performance failures or incidents involving our logistics network, our technology infrastructure or our
critical technology partners could damage our business, reputation and brand and substantially harm our business and results of operations.
The satisfactory performance, reliability and
availability of our sites, transaction processing systems, logistics network, and technology infrastructure are critical to our reputation
and our ability to acquire and retain customers, as well as maintain adequate customer service levels.
For example, if one of our data centers fails
or suffers an interruption or degradation of services, we could lose customer data and miss order fulfillment deadlines, which could
harm our business. Our systems and operations, including our ability to fulfill customer orders through our logistics network, are also
vulnerable to damage or interruption from inclement weather, fire, flood, power loss, telecommunications failure, terrorist attacks,
labor disputes, cyber-attacks, data loss, acts of war, break-ins, earthquake and similar events. In the event of a data center failure,
the move to a back-up could take substantial time, during which time our sites could be completely shut down. Further, our back-up services
may not effectively process spikes in demand, may process transactions more slowly and may not support all of our site’s functionality.
We use complex proprietary software in our technology
infrastructure, which we seek to continually update and improve. We may not always be successful in executing these upgrades and improvements,
and the operation of our systems may be subject to failure. In particular, we have in the past and may in the future experience slowdowns
or interruptions on some or all of our sites when we are updating them, and new technologies or infrastructures may not be fully integrated
with existing systems on a timely basis, or at all. Additionally, if we expand our use of third-party services, including cloud-based
services, our technology infrastructure may be subject to increased risk of slowdown or interruption as a result of integration with
such services and/or failures by such third parties, which are out of our control. Our net revenue depends on the number of visitors
who shop on our sites and the volume of orders we can handle. Unavailability of our sites or reduced order fulfillment performance would
reduce the volume of goods sold and could also materially adversely affect consumer perception of our brand.
We may experience periodic system interruptions
from time to time. In addition, continued growth in our transaction volume, as well as surges in online traffic and orders associated
with promotional activities or seasonal trends in our business, place additional demands on our technology platform and could cause or
exacerbate slowdowns or interruptions. If there is a substantial increase in the volume of traffic on our sites or the number of orders
placed by customers, we may be required to further expand and upgrade our technology, logistics network, transaction processing systems
and network infrastructure. There can be no assurance that we will be able to accurately project the rate or timing of increases, if
any, in the use of our sites or expand and upgrade our systems and infrastructure to accommodate such increases on a timely basis. In
order to remain competitive, we must continue to enhance and improve the responsiveness, functionality and features of our sites, which
is particularly challenging given the rapid rate at which new technologies, customer preferences and expectations and industry standards
and practices are evolving in the e-commerce industry. Accordingly, we redesign and enhance various functions on our sites on a regular
basis, and we may experience instability and performance issues as a result of these changes.
Any slowdown, interruption or performance failure
of our sites and the underlying technology and logistics infrastructure could harm our business, reputation and our ability to acquire,
retain and serve our customers, which could materially adversely affect our results of operations.
Our failure or the failure of third-party
service providers to protect our sites, networks and systems against security breaches, or otherwise to protect our confidential information,
could damage our reputation and brand and substantially harm our business and operating results.
We collect, maintain, transmit and store data
about our customers, employees, contractors, suppliers, vendors and others, including credit card information and personally identifiable
information, as well as other confidential and proprietary information. We also employ third-party service providers that store, process
and transmit certain proprietary, personal and confidential information on our behalf. We rely on encryption and authentication technology
licensed from third parties in an effort to securely transmit, encrypt, anonymize or pseudonymize certain confidential and sensitive
information, including credit card numbers. Advances in computer capabilities, new technological discoveries or other developments may
result in the whole or partial failure of this technology to protect transaction and personal data or other confidential and sensitive
information from being breached or compromised. Our security measures, and those of our third-party service providers, may not detect
or prevent all attempts to hack our systems, denial-of-service attacks, viruses, malicious software, break-ins, phishing attacks, ransom-ware,
social engineering, security breaches or other attacks and similar disruptions that may jeopardize the security of information stored
in or transmitted by our sites, networks and systems or that we or our third-party service providers otherwise maintain, including payment
card systems and human resources management platforms. We and our service providers may not anticipate, discover or prevent all types
of attacks until after they have already been launched, and techniques used to obtain unauthorized access to or sabotage systems change
frequently and may not be known until launched against us or our third-party service providers. In addition, security breaches can also
occur as a result of non-technical issues, including intentional or inadvertent breaches by our employees or by persons with whom we
have commercial relationships.
Breaches of our security measures or those of
our third-party service providers or cyber security incidents could result in unauthorized access to our sites, networks and systems;
unauthorized access to and misappropriation of personal information, including consumers’ and employees’ personally identifiable
information, or other confidential or proprietary information of ourselves or third parties; limited or terminated access to certain
payment methods or fines or higher transaction fees to use such methods; viruses, worms, spyware or other malware being served from our
sites, networks or systems; deletion or modification of content or the display of unauthorized content on our sites; interruption, disruption
or malfunction of operations; costs relating to breach remediation, deployment or training of additional personnel and protection technologies,
responses to governmental investigations and media inquiries and coverage; engagement of third-party experts and consultants; litigation,
regulatory action and other potential liabilities. If any of these breaches of security occur, our reputation and brand could be damaged,
our business may suffer, we could be required to expend significant capital and other resources to alleviate problems caused by such
breaches and we could be exposed to a risk of loss, litigation or regulatory action and possible liability. In addition, any party who
is able to illicitly obtain a customer’s password could access that customer’s transaction data or personal information.
Any compromise or breach of our security measures, or those of our third-party service providers, could violate applicable privacy, data
security and other laws, and cause significant legal and financial exposure, adverse publicity and a loss of confidence in our security
measures, which could have a material adverse effect on our business, financial condition and operating results. We may need to devote
significant resources to protect against security breaches or to address problems caused by breaches, diverting resources from the growth
and expansion of our business.
We may be subject to product liability
and other similar claims if people or property are harmed by the products we sell.
Some of the products we sell may expose us to
product liability and other claims and litigation (including class actions) or regulatory action relating to safety, personal injury,
death or environmental or property damage. Some of our agreements with members of our supply chain may not indemnify us from product
liability for a particular product, and some members of our supply chain may not have sufficient resources or insurance to satisfy their
indemnity and defense obligations. Although we maintain liability insurance, we cannot be certain that our coverage will be adequate
for liabilities actually incurred or that insurance will continue to be available to us on economically reasonable terms, or at all.
Risks associated with the suppliers from
whom our products are sourced could materially adversely affect our financial performance as well as our reputation and brand.
We depend on our ability to provide our customers
with a wide range of products from qualified suppliers, many of whom are located in countries outside of the U.S., in a timely and efficient
manner. Political and economic instability, the financial stability of suppliers, suppliers’ ability to meet our standards, labor
problems experienced by suppliers, the availability or cost of raw materials, merchandise quality issues, currency exchange rates, trade
tariff developments, transport availability and cost, transport security, inflation, and other factors relating to our suppliers are
beyond our control.
Our agreements with most of our suppliers do
not provide for the long-term availability of merchandise or the continuation of particular pricing practices, nor do they usually restrict
such suppliers from selling products to other buyers. There can be no assurance that our current suppliers will continue to seek to sell
us products on current terms or that we will be able to establish new or otherwise extend current supply relationships to ensure product
acquisitions in a timely and efficient manner and on acceptable commercial terms. Our ability to develop and maintain relationships with
reputable suppliers and offer high quality merchandise to our customers is critical to our success. If we are unable to develop and maintain
relationships with suppliers that would allow us to offer a sufficient amount and variety of quality merchandise on acceptable commercial
terms, our ability to satisfy our customers’ needs, and therefore our long-term growth prospects, would be materially adversely
affected.
Further, we rely on our suppliers’ representations
of product quality, safety and compliance with applicable laws and standards. If our suppliers or other vendors violate applicable laws,
regulations or our supplier code of conduct, or implement practices regarded as unethical, unsafe, or hazardous to the environment, it
could damage our reputation and negatively affect our operating results. Further, concerns regarding the safety and quality of products
provided by our suppliers could cause our customers to avoid purchasing those products from us, or avoid purchasing products from us
altogether, even if the basis for the concern is outside of our control. As such, any issue, or perceived issue, regarding the quality
and safety of any items we sell, regardless of the cause, could adversely affect our brand, reputation, operations and financial results.
We also are unable to predict whether any of
the countries in which our suppliers’ products are currently manufactured or may be manufactured in the future will be subject
to new, different, or additional trade restrictions imposed by the U.S. or foreign governments or the likelihood, type or effect of any
such restrictions. Any event causing a disruption or delay of imports from suppliers with international manufacturing operations, including
the imposition of additional import restrictions, restrictions on the transfer of funds or increased tariffs or quotas, could increase
the cost or reduce the supply of merchandise available to our customers and materially adversely affect our financial performance as
well as our reputation and brand. Furthermore, some or all of our suppliers’ foreign operations may be adversely affected by political
and financial instability, resulting in the disruption of trade from exporting countries, restrictions on the transfer of funds or other
trade disruptions.
In addition, our business with foreign suppliers
may be affected by changes in the value of the U.S. dollar relative to other foreign currencies. For example, any movement by any other
foreign currency against the U.S. dollar may result in higher costs to us for those goods. Declines in foreign currencies and currency
exchange rates might negatively affect the profitability and business prospects of one or more of our foreign suppliers. This, in turn,
might cause such foreign suppliers to demand higher prices for merchandise in their effort to offset any lost profits associated with
any currency devaluation, delay merchandise shipments, or discontinue selling to us altogether, any of which could ultimately reduce
our sales or increase our costs.
Our suppliers have imposed conditions in
our business arrangements with them. If we are unable to continue satisfying these conditions, or such suppliers impose additional restrictions
with which we cannot comply, it could have a material adverse effect on our business, financial condition and operating results.
Our suppliers have strict conditions for doing
business with them. Several are sizeable such as General Electric, Whirlpool and Riggs Distributing. If we cannot satisfy these
conditions or if they impose additional or more restrictive conditions that we cannot satisfy, our business would be materially adversely
affected. It would be materially detrimental to our business if these suppliers decided to no longer do business with us, increased the
pricing at which they allow us to purchase their goods or impose other restrictions or conditions that make it more difficult for us
to work with them. Any of these events could have a material adverse effect on our business, financial condition and operating results.
We may be unable to source new suppliers
or strengthen our relationships with current suppliers.
Our agreements
with suppliers are generally terminable at will by either party upon short notice. If we do not maintain our existing relationships or
build new relationships with suppliers on acceptable commercial terms, we may not be able to maintain a broad selection of merchandise,
and our business and prospects would suffer severely.
In order to attract quality suppliers, we must:
| ● | demonstrate our ability to help our suppliers increase their
sales; |
| ● | offer suppliers a high quality, cost-effective fulfillment
process; and |
| ● | continue to provide suppliers with a dynamic and real-time
view of our demand and inventory needs. |
If we are unable to provide our suppliers with
a compelling return on investment and an ability to increase their sales, we may be unable to maintain and/or expand our supplier network,
which would negatively impact our business.
We depend on our suppliers to perform certain
services regarding the products that we offer.
As part of offering our suppliers’ products
for sale on our sites, suppliers are often responsible for conducting a number of traditional retail operations with respect to their
respective products, including maintaining inventory and preparing merchandise for shipment to our customers. In these instances, we
may be unable to ensure that suppliers will perform these services to our or our customers’ satisfaction in a manner that provides
our customer with a unified brand experience or on commercially reasonable terms. If our customers become dissatisfied with the services
provided by our suppliers, our business, reputation and brands could suffer.
We
depend on our relationships with third parties, and changes in our relationships with these parties could adversely impact our revenue
and profits.
We
rely on third parties to operate certain elements of our business. For example, we use carriers such as FedEx, UPS, DHL and the U.S.
Postal Service to deliver products. As a result, we may be subject to shipping delays or disruptions caused by inclement weather, natural
disasters, system interruptions and technology failures, labor activism, health epidemics or bioterrorism. We are also subject to risks
of breakage or other damage during delivery by any of these third parties. We also use and rely on other services from third parties,
such as retail partner services, telecommunications services, customs, consolidation and shipping services, as well as warranty, installation
and design services.
We
may be unable to maintain these relationships, and these services may also be subject to outages and interruptions that are not within
our control. For example, failures by our telecommunications providers have in the past and may in the future interrupt our ability to
provide phone support to our customers. Third parties may in the future determine they no longer wish to do business with us or may decide
to take other actions or make changes to their practices that could harm our business. We may also determine that we no longer want to
do business with them. If products are not delivered in a timely fashion or are damaged during the delivery process, or if we are not
able to provide adequate customer support or other services or offerings, our customers could become dissatisfied and cease buying products
through our sites, which would adversely affect our operating results.
The
seasonal trends in our business create variability in our financial and operating results and place increased strain on our operations.
We
experience surges in orders associated with promotional activities and seasonal trends. This activity may place additional demands on
our technology systems and logistics network and could cause or exacerbate slowdowns or interruptions. Any such system, site or service
interruptions could prevent us from efficiently receiving or fulfilling orders, which may reduce the volume or quality of goods or services
we sell and may cause customer dissatisfaction and harm our reputation and brand.
Our
business may be adversely affected if we are unable to provide our customers a cost-effective shopping platform that is able to respond
and adapt to rapid changes in technology.
The
number of people who access the Internet through devices other than personal computers, including mobile phones, smartphones, handheld
computers such as notebooks and tablets, video game consoles, and television set-top devices, has increased dramatically in the past
few years. We continually upgrade existing technologies and business applications to keep pace with these rapidly changing and continuously
evolving technologies, and we may be required to implement new technologies or business applications in the future. The implementation
of these upgrades and changes requires significant investments and as new devices and platforms are released, it is difficult to predict
the problems we may encounter in developing applications for these alternative devices and platforms. Additionally, we may need to devote
significant resources to the support and maintenance of such applications once created. Our results of operations may be affected by
the timing, effectiveness and costs associated with the successful implementation of any upgrades or changes to our systems and infrastructure
to accommodate such alternative devices and platforms. Further, in the event that it is more difficult or less compelling for our customers
to buy products from us on their mobile or other devices, or if our customers choose not to buy products from us on such devices or to
use mobile or other products that do not offer access to our sites, our customer growth could be harmed and our business, financial condition
and operating results may be materially adversely affected.
Significant
merchandise returns could harm our business.
We
allow our customers to return products, subject to our return policy. If merchandise returns are significant, our business, prospects,
financial condition and results of operations could be harmed. Further, we modify our policies relating to returns from time to time,
which may result in customer dissatisfaction or an increase in the number of product returns. Many of our products are large and require
special handling and delivery. From time to time our products are damaged in transit, which can increase return rates and harm our brand.
Uncertainties
in economic conditions and their impact on consumer spending patterns, particularly in the home goods segment, could adversely impact
our operating results.
Consumers
may view a substantial portion of the products we offer as discretionary items rather than necessities. As a result, our results of operations
are sensitive to changes in macro-economic conditions that impact consumer spending, including discretionary spending. Some of the factors
adversely affecting consumer spending include levels of unemployment; consumer debt levels; changes in net worth based on market changes
and uncertainty; home foreclosures and changes in home values or the overall housing, residential construction or home improvement markets;
fluctuating interest rates; credit availability, including mortgages, home equity loans and consumer credit; government actions; fluctuating
fuel and other energy costs; fluctuating commodity prices and general uncertainty regarding the overall future economic environment.
Adverse economic changes in any of the regions in which we sell our products could reduce consumer confidence and could negatively affect
net revenue and have a material adverse effect on our operating results.
Our
business relies heavily on email and other messaging services, and any restrictions on the sending of emails or messages or an inability
to timely deliver such communications could materially adversely affect our net revenue and business.
Our
business is highly dependent upon email and other messaging services for promoting our sites and products. If we are unable to successfully
deliver emails or other messages to our subscribers, or if subscribers decline to open our emails or other messages, our net revenue
and profitability would be materially adversely affected. Changes in how webmail applications organize and prioritize email may also
reduce the number of subscribers opening our emails. For example, in 2013 Google Inc.’s Gmail service began offering a feature
that organizes incoming emails into categories (for example, primary, social and promotions). Such categorization or similar inbox organizational
features may result in our emails being delivered in a less prominent location in a subscriber’s inbox or viewed as “spam”
by our subscribers and may reduce the likelihood of that subscriber opening our emails. Actions by third parties to block, impose restrictions
on or charge for the delivery of emails or other messages could also adversely impact our business. From time to time, Internet service
providers or other third parties may block bulk email transmissions or otherwise experience technical difficulties that result in our
inability to successfully deliver emails or other messages to third parties. Changes in the laws or regulations that limit our ability
to send such communications or impose additional requirements upon us in connection with sending such communications would also materially
adversely impact our business. Our use of email and other messaging services to send communications about our products or other matters
may also result in legal claims against us, which may cause us increased expenses, and if successful might result in fines and orders
with costly reporting and compliance obligations or might limit or prohibit our ability to send emails or other messages. We also rely
on social networking messaging services to send communications and to encourage customers to send communications. Changes to the terms
of these social networking services to limit promotional communications, any restrictions that would limit our ability or our customers’
ability to send communications through their services, disruptions or downtime experienced by these social networking services or decline
in the use of or engagement with social networking services by customers and potential customers could materially adversely affect our
business, financial condition and operating results.
We
are subject to risks related to online payment methods.
We
accept payments using a variety of methods, including credit card, debit card, PayPal, credit accounts and gift cards. As we offer new
payment options to consumers, we may be subject to additional regulations, compliance requirements and fraud. For certain payment methods,
including credit and debit cards, we pay interchange and other fees, which may increase over time and raise our operating costs and lower
profitability. We are also subject to payment card association operating rules and certification requirements, including the Payment
Card Industry Data Security Standard and rules governing electronic funds transfers, which could change or be reinterpreted to make it
difficult or impossible for us to comply. As our business changes, we may also be subject to different rules under existing standards,
which may require new assessments that involve costs above what we currently pay for compliance. If we fail to comply with the rules
or requirements of any provider of a payment method we accept, if the volume of fraud in our transactions limits or terminates our rights
to use payment methods we currently accept, or if a data breach occurs relating to our payment systems, we may, among other things, be
subject to fines or higher transaction fees and may lose, or face restrictions placed upon, our ability to accept credit card and debit
card payments from consumers or to facilitate other types of online payments. If any of these events were to occur, our business, financial
condition and operating results could be materially adversely affected.
We
occasionally receive orders placed with fraudulent credit card data. We may suffer losses as a result of orders placed with fraudulent
credit card data even if the associated financial institution approved payment of the orders. Under current credit card practices, we
may be liable for fraudulent credit card transactions. If we are unable to detect or control credit card fraud, our liability for these
transactions could harm our business, financial condition and results of operations.
Government
regulation of the Internet and e-commerce is evolving, and unfavorable changes or failure by us to comply with these regulations could
substantially harm our business and results of operations.
We
are subject to general business regulations and laws as well as regulations and laws specifically governing the Internet and e-commerce.
Existing and future regulations and laws could impede the growth of the Internet, e- commerce or mobile commerce. These regulations and
laws may involve taxes, tariffs, privacy and data security, anti-spam, content protection, electronic contracts and communications, consumer
protection, Internet neutrality and gift cards. It is not clear how existing laws governing issues such as property ownership, sales
and other taxes and consumer privacy apply to the Internet as the vast majority of these laws were adopted prior to the advent of the
Internet and do not contemplate or address the unique issues raised by the Internet or e-commerce. It is possible that general business
regulations and laws, or those specifically governing the Internet or e-commerce, may be interpreted and applied in a manner that is
inconsistent from one jurisdiction to another and may conflict with other rules or our practices. We cannot be sure that our practices
have complied, comply or will comply fully with all such laws and regulations. Any failure, or perceived failure, by us to comply with
any of these laws or regulations could result in damage to our reputation, a loss in business and proceedings or actions against us by
governmental entities or others. Any such proceeding or action could hurt our reputation, force us to spend significant amounts in defense
of these proceedings, distract our management, increase our costs of doing business, decrease the use of our sites by consumers and suppliers
and may result in the imposition of monetary liability. We may also be contractually liable to indemnify and hold harmless third parties
from the costs or consequences of non-compliance with any such laws or regulations. Adverse legal or regulatory developments could substantially
harm our business. Further, if we enter into new market segments or geographical areas and expand the products and services we offer,
we may be subject to additional laws and regulatory requirements or prohibited from conducting our business, or certain aspects of it,
in certain jurisdictions. We will incur additional costs complying with these additional obligations and any failure or perceived failure
to comply would adversely affect our business and reputation.
Failure
to comply with applicable laws and regulations relating to privacy, data protection and consumer protection, or the expansion of current
or the enactment of new laws or regulations relating to privacy, data protection and consumer protection, could adversely affect our
business and our financial condition.
A
variety of laws and regulations govern the collection, use, retention, sharing, export and security of personal information. Laws and
regulations relating to privacy, data protection and consumer protection are evolving and subject to potentially differing interpretations.
These requirements may be interpreted and applied in a manner that is inconsistent from one jurisdiction to another or may conflict with
other rules or our practices. As a result, our practices may not comply, or may not comply in the future with all such laws, regulations,
requirements and obligations. Any failure, or perceived failure, by us to comply with our posted privacy policies or with any applicable
privacy or consumer protection- related laws, regulations, industry self-regulatory principles, industry standards or codes of conduct,
regulatory guidance, orders to which we may be subject or other legal obligations relating to privacy or consumer protection could adversely
affect our reputation, brand and business, and may result in claims, proceedings or actions against us by governmental entities or others
or other liabilities or require us to change our operations and/or cease using certain data sets. Any such claim, proceeding or action
could hurt our reputation, brand and business, force us to incur significant expenses in defense of such proceedings, distract our management,
increase our costs of doing business, result in a loss of customers and suppliers and may result in the imposition of monetary penalties.
We may also be contractually required to indemnify and hold harmless third parties from the costs or consequences of non-compliance with
any laws, regulations or other legal obligations relating to privacy or consumer protection or any inadvertent or unauthorized use or
disclosure of data that we store or handle as part of operating our business.
Federal,
state and international governmental authorities continue to evaluate the privacy implications inherent in the use of proprietary or
third-party “cookies” and other methods of online tracking for behavioral advertising and other purposes. U.S. and foreign
governments have enacted, have considered or are considering legislation or regulations that could significantly restrict the ability
of companies and individuals to engage in these activities, such as by regulating the level of consumer notice and consent required before
a company can employ cookies or other electronic tracking tools or the use of data gathered with such tools. Additionally, some providers
of consumer devices and web browsers have implemented, or announced plans to implement, means to make it easier for Internet users to
prevent the placement of cookies or to block other tracking technologies, which could if widely adopted significantly reduce the effectiveness
of such practices and technologies. The regulation of the use of cookies and other current online tracking and advertising practices
or a loss in our ability to make effective use of services that employ such technologies could increase our costs of operations and limit
our ability to acquire new customers on cost-effective terms and consequently, materially adversely affect our business, financial condition
and operating results.
In
addition, various federal, state and foreign legislative and regulatory bodies, or self-regulatory organizations, may expand current
laws or regulations, enact new laws or regulations or issue revised rules or guidance regarding privacy, data protection and consumer
protection. Any such changes may force us to incur substantial costs or require us to change our business practices. This could compromise
our ability to pursue our growth strategy effectively and may adversely affect our ability to acquire customers or otherwise harm our
business, financial condition and operating results.
We
rely on the performance of members of management and highly skilled personnel, and if we are unable to attract, develop, motivate and
retain well-qualified employees, our business could be harmed.
We
believe our success has depended, and continues to depend, on the members of our senior management teams. The loss of any of our senior
management or other key employees could materially harm our business. Our future success also depends on our continuing ability to attract,
develop, motivate and retain highly qualified and skilled employees, particularly mid-level managers and merchandising and technology
personnel. The market for such positions is competitive. Qualified individuals are in high demand, and we may incur significant costs
to attract them. Our inability to recruit and develop mid-level managers could materially adversely affect our ability to execute our
business plan, and we may not be able to find adequate replacements. All of our officers and other U.S. employees are at-will employees,
meaning that they may terminate their employment relationship with us at any time, and their knowledge of our business and industry would
be extremely difficult to replace. If we do not succeed in attracting well-qualified employees or retaining and motivating existing employees,
our business, financial condition and operating results may be materially adversely affected.
We
may not be able to adequately protect our intellectual property rights.
We
regard our customer lists, domain names, trade dress, trade secrets, proprietary technology and similar intellectual property as critical
to our success, and we rely on trade secret protection, agreements and other methods with our employees and others to protect our proprietary
rights. We might not be able to obtain broad protection for all of our intellectual property. The protection of our intellectual property
rights may require the expenditure of significant financial, managerial and operational resources. We may initiate claims or litigation
against others for infringement, misappropriation or violation of our intellectual property rights or proprietary rights or to establish
the validity of such rights. Any litigation, whether or not it is resolved in our favor, could result in significant expense to us and
divert the efforts of our technical and management personnel, which may materially adversely affect our business, financial condition
and operating results. Moreover, the steps we take to protect our intellectual property may not adequately protect our rights or prevent
third parties from infringing or misappropriating our proprietary rights, and we may not be able to broadly enforce all of our intellectual
property rights. Any of our intellectual property rights may be challenged by others or invalidated through administrative process or
litigation. Additionally, the process of obtaining intellectual property protections is expensive and time-consuming, and we may not
be able to pursue all necessary or desirable actions at a reasonable cost or in a timely manner. Even if issued, there can be no assurance
that these protections will adequately safeguard our intellectual property, as the legal standards relating to the validity, enforceability
and scope of protection of patent and other intellectual property rights are uncertain. We also cannot be certain that others will not
independently develop or otherwise acquire equivalent or superior technology or intellectual property rights. We may also be exposed
to claims from third parties claiming infringement of their intellectual property rights, or demanding the release or license of open
source software or derivative works that we developed using such software (which could include our proprietary code) or otherwise seeking
to enforce the terms of the applicable open source license. These claims could result in litigation and could require us to purchase
a costly license, publicly release the affected portions of our source code, be limited in or cease using the implicated software unless
and until we can re-engineer such software to avoid infringement or change the use of the implicated open source software.
We
may be accused of infringing intellectual property rights of third parties.
The
e-commerce industry is characterized by vigorous protection and pursuit of intellectual property rights, which has resulted in protracted
and expensive litigation for many companies. We may be subject to claims and litigation by third parties that we infringe their intellectual
property rights. The costs of supporting such litigation and disputes are considerable, and there can be no assurances that favorable
outcomes will be obtained. As our business expands and the number of competitors in our market increases and overlaps occur, we expect
that infringement claims may increase in number and significance. Any claims or proceedings against us, whether meritorious or not, could
be time-consuming, result in considerable litigation costs, require significant amounts of management time or result in the diversion
of significant operational resources, any of which could materially adversely affect our business, financial condition and operating
results.
We
have received in the past, and we may receive in the future, communications alleging that certain items posted on or sold through our
sites violate third-party copyrights, designs, marks and trade names or other intellectual property rights or other proprietary rights.
Brand and content owners and other proprietary rights owners have actively asserted their purported rights against online companies.
In addition to litigation from rights owners, we may be subject to regulatory, civil or criminal proceedings and penalties if governmental
authorities believe we have aided and abetted in the sale of counterfeit or infringing products.
Such
claims, whether or not meritorious, may result in the expenditure of significant financial, managerial and operational resources, injunctions
against us or the payment of damages by us. We may need to obtain licenses from third parties who allege that we have violated their
rights, but such licenses may not be available on terms acceptable to us, or at all. These risks have been amplified by the increase
in third parties whose sole or primary business is to assert such claims.
We
are engaged in legal proceedings that could cause us to incur unforeseen expenses and could occupy a significant amount of our management’s
time and attention.
From
time to time, we are subject to litigation or claims that could negatively affect our business operations and financial position. Litigation
disputes could cause us to incur unforeseen expenses, result in site unavailability, service disruptions, and otherwise occupy a significant
amount of our management’s time and attention, any of which could negatively affect our business operations and financial position.
We also from time to time receive inquiries and subpoenas and other types of information requests from government authorities and we
may become subject to related claims and other actions related to our business activities. While the ultimate outcome of investigations,
inquiries, information requests and related legal proceedings is difficult to predict, such matters can be expensive, time-consuming
and distracting, and adverse resolutions or settlements of those matters may result in, among other things, modification of our business
practices, reputational harm or costs and significant payments, any of which could negatively affect our business operations and financial
position.
Risks
Related to Our Custom Carpentry Business
The
loss of any of our key customers could have a materially adverse effect on our results of operations.
Historically,
a few long-term recurring contractor customers have accounted for a majority of our revenues. There can be no assurance that we will
maintain or improve the relationships with those customers. Our major customers often change each period based on when a given order
is placed. If we cannot maintain long-term relationships with major customers or replace major customers from period to period with equivalent
customers, the loss of such sales could have an adverse effect on our business, financial condition and results of operations.
Our
business primarily relies on U.S. home improvement, repair and remodel and new home construction activity levels, all of which are impacted
by risks associated with fluctuations in the housing market. Downward changes in the general economy, the housing market or other business
conditions could adversely affect our results of operations, cash flows and financial condition.
Our
business primarily relies on home improvement, repair and remodel and new home construction activity levels in the United States. The
housing market is sensitive to changes in economic conditions and other factors, such as the level of employment, access to labor, consumer
confidence, consumer income, availability of financing and interest rate levels. Adverse changes in any of these conditions generally,
or in any of the markets where we operate, including due to the global pandemic, could decrease demand and could adversely impact our
businesses by: causing consumers to delay or decrease homeownership; making consumers more price conscious resulting in a shift in demand
to smaller, less expensive homes; making consumers more reluctant to make investments in their existing homes, including large kitchen
and bath repair and remodel projects; or making it more difficult to secure loans for major renovations.
Increases
in interest rates and the reduced availability of financing for home improvements may cause our sales and profitability to decrease.
In
general, demand for home improvement products may be adversely affected by increases in interest rates and the reduced availability of
financing. Also, trends in the financial industry which influence the requirements used by lenders to evaluate potential buyers can result
in reduced availability of financing. If interest rates or lending requirements increase and consequently, the ability of prospective
buyers to finance purchases of home improvement products is adversely affected, our business, financial condition and results of operations
may also be adversely impacted and the impact may be material.
Our
custom carpentry business is subject to seasonal and other periodic fluctuations, and affected by factors beyond our control, which may
cause our sales and operating results to fluctuate significantly.
Our
custom carpentry business is subject to seasonal fluctuations. We believe that we can more effectively control and balance our direct
labor resources and costs during seasonal variations in our custom carpentry business, depending on the dynamics of the market served.
However, extreme winter weather conditions can have an adverse effect on appointments and installations which typically occur during
our fourth and first quarters and can also negatively affect our net sales and operating results. In addition, sales and revenues may
decline in the fourth quarter due to the holiday season.
Difficulties
in recruiting adequate personnel may have a material adverse effect on our ability to meet our growth expectations.
In
order to fulfill our growth expectations, we must recruit, hire, train and retain qualified sales and installation personnel. In particular,
during the pandemic, we may experience greater difficulty in fulfilling our personnel needs since our employees are not able to work
remotely for installations. When new construction and remodeling are on the rise, recruiting of independent contractors to perform our
installations becomes more difficult. There can be no assurance that we will have sufficient contractors or employees to fulfill our
installation requirements. Our inability to fulfill our personnel needs could have a material adverse effect on our ability to meet our
growth expectations.
Increases
in the cost of labor, union organizing activity and work stoppages at our facilities or the facilities of our suppliers could materially
affect our financial performance.
Our
business is labor intensive, and, as a result, our financial performance is affected by the availability of qualified personnel and the
cost of labor. Currently, none of our employees are represented by labor unions. Strikes or other types of conflicts with personnel could
arise or we may become a target for union organizing activity. Some of our direct and indirect suppliers have unionized work forces.
Strikes, work stoppages or slowdowns experienced by these suppliers could result in slowdowns or closures of facilities where components
of our products are manufactured. Any interruption in the production of our products could reduce sales of our products and increase
our costs.
In
the event of a catastrophic loss of our key manufacturing facility, our business would be adversely affected.
While
we maintain insurance covering our facility, including business interruption insurance, a catastrophic loss of the use of all or a portion
of our manufacturing facility due to accident, labor issues, weather conditions, natural disaster or otherwise, whether short or long-term,
could have a material adverse effect on us.
The
nature of our custom carpentry business exposes us to product liability, workmanship warranty, casualty, negligence, construction defect,
breach of contract and other claims and legal proceedings.
We
are subject to product liability, workmanship warranty, casualty, negligence, construction defect, breach of contract and other claims
and legal proceedings relating to the products we install or manufacture that, if adversely determined, could adversely affect our financial
condition, results of operations and cash flows. We rely on manufacturers and other suppliers to provide us with most of the products
we install. Other than for products manufactured by Kyle’s, we generally do not have direct control over the quality of such products
manufactured or supplied by such third-party suppliers. As such, we are exposed to risks relating to the quality of such products. In
the event that any of our products prove to be defective, we may be required to recall or redesign such products, which would result
in significant unexpected costs.
We
are also exposed to potential claims arising from the conduct of our employees and contractors, for which we may be contractually
liable. We have in the past been, and may in the future be, subject to penalties and other liabilities in connection with injury or damage
incurred in conjunction with the installation of our products.
In
addition, our contracts, particularly those with large single-family and multi-family homebuilders, contain certain performance and installation
schedule requirements. Many factors, some of which our outside of our control, may affect our ability to meet these requirements, including
shortages of material or skilled labor, unforeseen engineering problems, work stoppages, weather interference, floods, unanticipated
cost increases, and legal or political challenges. If we do not meet these requirements, we may be subject to liquidated damages or other
penalties, as well as claims for breach of contract.
Product
liability, workmanship warranty, casualty, negligence, construction defect, breach of contract and other claims and legal proceedings
can be expensive to defend and can divert the attention of management and other personnel for significant periods of time, regardless
of the ultimate outcome. In addition, lawsuits relating to construction defects typically have statutes of limitations that can run as
long as ten years. Claims of this nature could also have a negative impact on customer confidence in us and our services. Although we
currently maintain what we believe to be suitable and adequate insurance, we may be unable to maintain such insurance on acceptable terms
or such insurance may not provide adequate protection against potential liabilities. In addition, some liabilities may not be covered
by our insurance. Current or future claims could have a material adverse effect on our reputation, business, financial condition and
results of operations.
If
we are unable to compete successfully with our competitors, our financial condition and results of operations may be harmed.
We
operate in a highly fragmented and very competitive industry. Our competitors include national and local carpentry manufacturers. These
can be large, consolidated operations which house their manufacturing facilities in large and efficient plants, as well as relatively
small, local cabinetmakers. Although we believe that we have superior name and reputation of direct marketing of custom designed carpentry,
we compete with numerous competitors in our primary markets in which we operate, with reputation, price, workmanship and services being
the principal competitive factors. Some of our competitors have achieved substantially more market penetration in certain of the markets
in which we operate. Some of our competitors have greater resources available and are less highly leveraged, which may provide them with
greater financial flexibility. We also compete against retail chains, including Sears, Costco, Builders Square, Sam’s Warehouse
Club and other stores, which offer similar products and services through licensees. We compete, to a lesser extent, with small home improvement
contractors and with large “home center” retailers such as Home Depot and Lowes. As a result of the implementation of our
business strategy to conduct more remodel, condo/multi-family, and commercial projects in the new construction markets, we anticipate
that we will compete to a greater degree with large “home center” retailers. To remain competitive, we will need to invest
continuously in manufacturing, customer service and support, marketing and our dealer network. We may have to adjust the prices of some
of our products to stay competitive, which would reduce our revenues or harm our financial condition and result of operations. We may
not have sufficient resources to continue to make such investments or maintain our competitive position within each of the markets we
serve.
We
have historically depended on a limited number of third parties to supply key finished goods and raw materials to us. Failure to obtain
a sufficient supply of these finished goods and raw materials in a timely fashion and at reasonable costs could significantly delay our
delivery of products, which would cause us to breach our sales contracts with our customers.
We
have historically purchased certain key finished goods and raw materials, such as pre-manufactured doors, cabinets, countertops, lumber
and hardware, from a limited number of suppliers. We purchased finished goods and raw materials on the basis of purchase orders. In the
absence of firm and long-term contracts, we may not be able to obtain a sufficient supply of these finished goods and raw materials from
our existing suppliers or alternates in a timely fashion or at a reasonable cost. If we fail to secure a sufficient supply of key finished
goods and raw materials in a timely fashion, it would result in a significant delay in our delivery of products, which may cause us to
breach our sales contracts with our customers. Furthermore, failure to obtain sufficient supply of these finished goods and raw materials
at a reasonable cost could also harm our revenue and gross profit margins.
Increased
prices for finished goods or raw materials could increase our cost of revenues and decrease demand for our products, which could adversely
affect our revenue or profitability.
Our
profitability is affected by the prices of the finished goods and raw materials used in the manufacturing and sale of our products. These
prices may fluctuate based on a number of factors beyond our control, including, among others, changes in supply and demand, general
economic conditions, labor costs, competition, import duties, tariffs, currency exchange rates and, in some cases, government regulation.
Increased prices could adversely affect our profitability or revenues. We do not have long-term supply contracts for the finished goods
and raw materials; however, we enter into pricing agreements with certain customers which fix their pricing for specified periods ranging
from one to twelve months. Significant increases in the prices of finished goods and raw materials could adversely affect our profit
margins, especially if we are not able to recover these costs by increasing the prices we charge our customers for our products.
Interruptions
in deliveries of finished goods and raw materials could adversely affect our revenue or profitability.
Our
dependency upon regular deliveries from particular suppliers means that interruptions or stoppages in such deliveries could adversely
affect our operations until arrangements with alternate suppliers could be made. If any of our suppliers were unable to deliver finished
goods and raw materials to us for an extended period of time, as the result of financial difficulties, catastrophic events affecting
their facilities or other factors beyond our control, or if we were unable to negotiate acceptable terms for the supply of finished goods
and raw materials with these or alternative suppliers, our business could suffer. We may not be able to find acceptable alternatives,
and any such alternatives could result in increased costs for us. Even if acceptable alternatives are found, the process of locating
and securing such alternatives might be disruptive to our business. Extended unavailability of a necessary finished good or raw material
could cause us to cease manufacturing or selling one or more of our products for a period of time.
Environmental
requirements applicable to our facilities may impose significant environmental compliance costs and liabilities, which would adversely
affect our results of operations.
Our
facilities are subject to numerous federal, state and local laws and regulations relating to pollution and the protection of the environment,
including those governing emissions to air, discharges to water, storage, treatment and disposal of waste, remediation of contaminated
sites and protection of worker health and safety. We believe we are in substantial compliance with all applicable requirements. However,
our efforts to comply with environmental requirements do not remove the risk that we may be held liable, or incur fines or penalties,
and that the amount of liability, fines or penalties may be material, for, among other things, releases of hazardous substances occurring
on or emanating from current or formerly owned or operated properties or any associated offsite disposal location, or for contamination
discovered at any of our properties from activities conducted by previous occupants.
Changes
in environmental laws and regulations or the discovery of previously unknown contamination or other liabilities relating to our properties
and operations could result in significant environmental liabilities. In addition, we might incur significant capital and other costs
to comply with increasingly stringent air emission control laws and enforcement policies which would decrease our cash flow.
We
may fail to fully realize the anticipated benefits of our growth strategy within the multi-family and commercial properties channels.
Part
of our growth strategy depends on expanding our business in the multi-family and commercial properties channels. We may fail to compete
successfully against other companies that are already established providers within those channels. Demand for our products within the
multi-family and commercial properties channels may not grow, or might even decline. In addition, trends within the industry change often,
we may not accurately gauge consumer preferences and successfully develop, manufacture and market our products. Our failure to anticipate,
identify or react to changes in these trends could lead to, among other things, rejection of a new product line, reduced demand and price
reductions for our products, and could adversely affect our sales. Further, the implementation of our growth strategy may place additional
demands on our administrative, operational and financial resources and may divert management’s attention away from our existing
business and increase the demands on our financial systems and controls. If our management is unable to effectively manage growth, our
business, financial condition or results of operations could be adversely affected. If our growth strategy is not successful then our
revenue and earnings may not grow as anticipated or may decline, we may not be profitable, or our reputation and brand may be damaged.
In addition, we may change our financial strategy or other components of our overall business strategy if we believe our current strategy
is not effective, if our business or markets change, or for other reasons, which may cause fluctuations in our financial results.
Risks
Related to Our Automotive Supply Business
If
we fail to offer a broad selection of products at competitive prices or fail to maintain sufficient inventory to meet customer demands,
our revenue could decline.
In
order to expand our business, we must successfully offer, on a continuous basis, a broad selection of products that meet the needs of
our customers, including by being the first to market with new products. In addition, to be successful, our product offerings must be
broad and deep in scope, competitively priced, well-made, innovative and attractive to a wide range of consumers. We cannot predict with
certainty that we will be successful in offering products that meet all of these requirements. Moreover, even if we offer a broad selection
of products at competitive prices, we must maintain sufficient in-stock inventory to meet consumer demand. If our product offerings fail
to satisfy our customers’ requirements or respond to changes in customer preferences or we otherwise fail to maintain sufficient
in-stock inventory, our revenue could decline.
We
are highly dependent upon key suppliers and an interruption in such relationships or our ability to obtain products from such suppliers
could adversely affect our business and results of operations.
In 2022 and 2021, Wolo purchased a substantial portion of finished
goods from four third-party vendors which comprised of 84.7% and 61.4% of its purchases, respectively. Our ability to acquire products
from our suppliers in amounts and on terms acceptable to us is dependent upon a number of factors that could affect our suppliers and
which are beyond our control. For example, financial or operational difficulties that some of our suppliers may face could result in an
increase in the cost of the products we purchase from them. If we do not maintain our relationships with our existing suppliers or develop
relationships with new suppliers on acceptable commercial terms, we may not be able to continue to offer a broad selection of merchandise
at competitive prices and, as a result, we could lose customers and our sales could decline.
We
also have limited control over the products that our suppliers purchase or keep in stock. Our suppliers may not accurately forecast the
products that will be in high demand or they may allocate popular products to other resellers, resulting in the unavailability of certain
products for delivery to our customers. Any inability to offer a broad array of products at competitive prices and any failure to deliver
those products to our customers in a timely and accurate manner may damage our reputation and brand and could cause us to lose customers
and our sales could decline.
In
addition, the increasing consolidation among auto parts suppliers may disrupt or end our relationship with some suppliers, result in
product shortages and/or lead to less competition and, consequently, higher prices. Furthermore, as part of our routine business, suppliers
extend credit to us in connection with our purchase of their products. In the future, our suppliers may limit the amount of credit they
are willing to extend to us in connection with our purchase of their products. If this were to occur, it could impair our ability to
acquire the types and quantities of products that we desire from the applicable suppliers on acceptable terms, severely impact our liquidity
and capital resources, limit our ability to operate our business and could have a material adverse effect on our financial condition
and results of operations.
We
are dependent upon relationships with manufacturers in Taiwan and China, which exposes us to complex regulatory regimes and logistical
challenges.
Most of our
manufacturing is outsourced to contract manufacturers in China and Taiwan, resulting in additional factors could interrupt our
relationships or affect our ability to acquire the necessary products on acceptable terms, including:
| ● | political,
social and economic instability and the risk of war or other international incidents in Asia
or abroad; |
| ● | fluctuations
in foreign currency exchange rates that may increase our cost of products; |
| ● | imposition
of duties, taxes, tariffs or other charges on imports; |
| ● | difficulties
in complying with import and export laws, regulatory requirements and restrictions; |
| ● | natural
disasters and public health emergencies, such as the recent COVID-19 pandemic; |
| ● | import
shipping delays resulting from foreign or domestic labor shortages, slow-downs, or stoppage;
and |
| ● | the
failure of local laws to provide a sufficient degree of protection against infringement of
our intellectual property; |
| ● | imposition
of new legislation relating to import quotas or other restrictions that may limit the quantity
of our products that may be imported into the U.S. from countries or regions where we do
business; |
| ● | financial
or political instability in any of the countries in which our products are manufactured; |
| ● | potential
recalls or cancellations of orders for any products that do not meet our quality standards; |
| ● | disruption
of imports by labor disputes or strikes and local business practices; |
| ● | political
or military conflict involving the U.S. or any country in which our suppliers are located,
which could cause a delay in the transportation of our products, an increase in transportation
costs and additional risk to products being damaged and delivered on time; |
| ● | heightened
terrorism security concerns, which could subject imported goods to additional, more frequent
or more thorough inspections, leading to delays in deliveries or impoundment of goods for
extended periods; |
| ● | inability
of our non-U.S. suppliers to obtain adequate credit or access liquidity to finance their
operations; and |
| ● | our
ability to enforce any agreements with our foreign suppliers. |
If
we were unable to import products from China and Taiwan or were unable to import products from China and Taiwan in a cost-effective manner,
we could suffer irreparable harm to our business and be required to significantly curtail our operations, file for bankruptcy or cease
operations.
From
time to time, we may also have to resort to administrative and court proceedings to enforce our legal rights with foreign suppliers.
However, it may be more difficult to evaluate the level of legal protection we enjoy in Taiwan and China and the corresponding outcome
of any administrative or court proceedings than in comparison to our suppliers in the United States.
We
depend on third-party delivery services, for both inbound and outbound shipping, to deliver our products to our distribution centers
and subsequently to our customers on a timely and consistent basis, and any deterioration in our relationship with any one of these third
parties or increases in the fees that they charge could harm our reputation and adversely affect our business and financial condition.
We
rely on third parties for the shipment of our products, both inbound and outbound shipping logistics, and we cannot be sure that these
relationships will continue on terms favorable to us, or at all. Shipping costs have increased from time to time, and may continue to
increase, and we may not be able to pass these costs directly to our customers. Any increased shipping costs could harm our business,
prospects, financial condition and results of operations by increasing our costs of doing business and reducing gross margins which could
negatively affect our operating results. In addition, we utilize a variety of shipping methods for both inbound and outbound logistics.
For inbound logistics, we rely on trucking and ocean carriers and any increases in fees that they charge could adversely affect our business
and financial condition. For outbound logistics, we rely on “Less-than-Truckload” and parcel freight based upon the product
and quantities being shipped and customer delivery requirements. These outbound freight costs have increased on a year-over-year basis
and may continue to increase in the future. We also ship a number of oversized auto parts which may trigger additional shipping costs
by third-party delivery services. Any increases in fees or any increased use of “Less-than-Truckload” shipping would increase
our shipping costs which could negatively affect our operating results.
In
addition, if our relationships with these third parties are terminated or impaired, or if these third parties are unable to deliver products
for us, whether due to labor shortage, slow down or stoppage, deteriorating financial or business condition, responses to terrorist attacks
or for any other reason, we would be required to use alternative carriers for the shipment of products to our customers. Changing carriers
could have a negative effect on our business and operating results due to reduced visibility of order status and package tracking and
delays in order processing and product delivery, and we may be unable to engage alternative carriers on a timely basis, upon terms favorable
to us, or at all.
If
commodity prices such as fuel, plastic and steel increase, our margins may be negatively impacted.
Our
third-party delivery services have increased fuel surcharges from time to time, and such increases negatively impact our margins, as
we are generally unable to pass all of these costs directly to consumers. Increasing prices in the component materials for the parts
we sell may impact the availability, the quality and the price of our products, as suppliers search for alternatives to existing materials
and increase the prices they charge. We cannot ensure that we can recover all the increased costs through price increases, and our suppliers
may not continue to provide the consistent quality of product as they may substitute lower cost materials to maintain pricing levels,
all of which may have a negative impact on our business and results of operations.
If
we are unable to manage the challenges associated with our international operations, the growth of our business could be limited and
our business could suffer.
In
addition to our relationships with foreign suppliers, we have contracts with sales representatives from thirteen regional sales companies
in North America, Mexico, Puerto Rico, the U.K., Europe, the Middle East and the industrial aftermarket. We are subject to a number of
risks and challenges that specifically relate to our international operations. Our international operations may not be successful if
we are unable to meet and overcome these challenges, which could limit the growth of our business and may have an adverse effect on our
business and operating results. These risks and challenges include:
| ● | difficulties
and costs of staffing and managing foreign operations; |
| ● | restrictions
imposed by local labor practices and laws on our business and operations; |
| ● | exposure
to different business practices and legal standards; |
| ● | unexpected
changes in regulatory requirements; |
| ● | the
imposition of government controls and restrictions; |
| ● | political,
social and economic instability and the risk of war, terrorist activities or other international
incidents; |
| ● | the
failure of telecommunications and connectivity infrastructure; |
| ● | natural
disasters and public health emergencies; |
| ● | potentially
adverse tax consequences; and |
| ● | fluctuations
in foreign currency exchange rates and relative weakness in the U.S. dollar. |
If
our fulfillment operations are interrupted for any significant period of time or are not sufficient to accommodate increased demand,
our sales could decline and our reputation could be harmed.
Our
success depends on our ability to successfully receive and fulfill orders and to promptly deliver our products to our customers. Most
of the orders for our products are filled from our inventory in our distribution centers, where all our inventory management, packaging,
labeling and product return processes are performed. Increased demand and other considerations may require us to expand our distribution
centers or transfer our fulfillment operations to larger or other facilities in the future. If we do not successfully expand our fulfillment
capabilities in response to increases in demand, our sales could decline.
In
addition, our distribution centers are susceptible to damage or interruption from human error, pandemics, fire, flood, power loss, telecommunications
failures, terrorist attacks, acts of war, break-ins, earthquakes and similar events. We do not currently maintain back-up power systems
at our fulfillment centers. We do not presently have a formal disaster recovery plan and our business interruption insurance may be insufficient
to compensate us for losses that may occur in the event operations at our fulfillment center are interrupted. In addition, alternative
arrangements may not be available, or if they are available, may increase the cost of fulfillment. Any interruptions in our fulfillment
operations for any significant period of time, including interruptions resulting from the expansion of our existing facilities or the
transfer of operations to a new facility, could damage our reputation and brand and substantially harm our business and results of operations.
We
face intense competition and operate in an industry with limited barriers to entry, and some of our competitors may have greater resources
than us and may be better positioned to capitalize on the growing auto parts market.
The aftermarket auto parts industry is competitive and highly fragmented,
with products distributed through multi-tiered and overlapping channels. We compete with both online and offline retailers who offer OEMs
and aftermarket auto parts. Current or potential competitors include FIAMM, Grote, Peterson Manufacturing Company, ECCO, Vixen Horns,
Grover, HornBlasters, and Kleinn.
Many
of our current and potential competitors have longer operating histories, large customer bases, superior brand recognition and significantly
greater financial, marketing, technical, management and other resources than we do. In addition, some of our competitors have used and
may continue to use aggressive pricing tactics and devote substantially more financial resources to website and system development than
we do. We expect that competition will further intensify in the future as Internet use and online commerce continue to grow worldwide.
Increased competition may result in reduced sales, lower operating margins, reduced profitability, loss of market share and diminished
brand recognition.
We
rely on key personnel and may need additional personnel for the success and growth of our business.
Our
business is largely dependent on the personal efforts and abilities of highly skilled executive, technical, managerial, merchandising
and marketing personnel. Competition for such personnel is intense, and we cannot assure that we will be successful in attracting and
retaining such personnel. The loss of any key employee or our inability to attract or retain other qualified employees could harm our
business and results of operations.
If
our product catalog database is stolen, misappropriated or damaged, or if a competitor is able to create a substantially similar catalog
without infringing our rights, then we may lose an important competitive advantage.
We
have invested significant resources and time to build and maintain our product catalog, which is maintained in the form of an electronic
database. We believe that our product catalog provides us with an important competitive advantage. We cannot assure you that we will
be able to protect our product catalog from unauthorized copying or theft or that our product catalog will continue to operate adequately,
without any technological challenges. In addition, it is possible that a competitor could develop a catalog or database that is similar
to or more comprehensive than ours, without infringing our rights. In the event our product catalog is damaged or is stolen, copied or
otherwise replicated to compete with us, whether lawfully or not, we may lose an important competitive advantage and our business could
be harmed.
Economic
conditions have had, and may continue to have, an adverse effect on the demand for aftermarket auto parts and could adversely affect
our sales and operating results.
Demand
for our products has been and may continue to be adversely affected by general economic conditions. In declining economies, consumers
often defer regular vehicle maintenance and may forego purchases of nonessential performance and accessories products, which can result
in a decrease in demand for auto parts in general. Consumers also defer purchases of new vehicles, which immediately impacts performance
parts and accessories, which are generally purchased in the first six months of a vehicle’s lifespan. In addition, during
economic downturns, some competitors may become more aggressive in their pricing practices, which would adversely impact our gross margin.
Certain suppliers may exit the industry which may impact our ability to procure parts and may adversely impact gross margin as the remaining
suppliers increase prices to take advantage of limited competition.
Vehicle
miles driven, vehicle accident rates and insurance companies’ willingness to accept a variety of types of parts in the repair process
have fluctuated and may decrease, which could result in a decline of our revenues and negatively affect our results of operations.
We
and our industry depend on the number of vehicle miles driven, vehicle accident rates and insurance companies’ willingness to accept
a variety of types of parts in the repair process. Decreased miles driven reduce the number of accidents and corresponding demand for
parts, and reduce the wear and tear on vehicles with a corresponding reduction in demand for vehicle repairs and parts. If consumers
were to drive less in the future and/or accident rates were to decline, as a result of higher gas prices, increased use of ride-shares,
the advancement of driver assistance technologies, or otherwise, our sales may decline and our business and financial results may suffer.
We
will be required to collect and pay more sales taxes, and could become liable for other fees and penalties, which could have an adverse
effect on our business.
We
have historically collected sales or other similar taxes only on the shipment of goods to customers in the state of New York. However,
following the U.S. Supreme Court decision in South Dakota v. Wayfair, we are now required to collect sales tax in any state which
passes legislation requiring out-of-state retailers to collect sales tax even where they have no physical nexus. We have historically
enjoyed a competitive advantage to the extent our competitors are already subject to those tax obligations. By collecting sales tax in
additional states, we will lose this competitive advantage as total costs to our customers will increase, which could adversely affect
our sales.
Moreover,
if we fail to collect and remit or pay required sales or other taxes in a jurisdiction or qualify or register to do business in a jurisdiction
that requires us to do so or if we have failed to do so in the past, we could face material liabilities for taxes, fees, interest and
penalties. If various jurisdictions impose new tax obligations on our business activities, our sales and net income in those jurisdictions
could decrease significantly, which could harm our business.
Higher
wage and benefit costs could adversely affect our business.
Changes
in federal and state minimum wage laws and other laws relating to employee benefits could cause us to incur additional wage and
benefit costs. Increased labor costs brought about by changes in minimum wage laws, other regulations or prevailing market conditions
could increase our expenses and have an adverse impact on our profitability.
We
face exposure to product liability lawsuits.
The
automotive industry in general has been subject to a large number of product liability claims due to the nature of personal injuries
that result from car accidents or malfunctions. As a distributor of auto parts, including parts obtained overseas, we could be held liable
for the injury or damage caused if the products we sell are defective or malfunction regardless of whether the product manufacturer is
the party at fault. While we carry insurance against product liability claims, if the damages in any given action were high or we were
subject to multiple lawsuits, the damages and costs could exceed the limits of our insurance coverage or prevent us from obtaining coverage
in the future. If we were required to pay substantial damages as a result of these lawsuits, it may seriously harm our business and financial
condition. Even defending against unsuccessful claims could cause us to incur significant expenses and result in a diversion of management’s
attention. In addition, even if the money damages themselves did not cause substantial harm to our business, the damage to our reputation
and the brands offered on our websites could adversely affect our future reputation and our brand and could result in a decline in our
net sales and profitability.
Business
interruptions in our facilities may affect the distribution of our products and/or the stability of our computer systems, which may affect
our business.
Weather,
terrorist activities, war or other disasters, or the threat of them, may result in the closure of one or more of our facilities, or may
adversely affect our ability to timely provide products to our customers, resulting in lost sales or a potential loss of customer loyalty.
Most of our products are imported from other countries and these goods could become difficult or impossible to bring into the United
States, and we may not be able to obtain such products from other sources at similar prices. Such a disruption in revenue could
potentially have a negative impact on our results of operations, financial condition and cash flows.
We
rely extensively on our computer systems to manage inventory, process transactions and timely provide products to our customers. Our
systems are subject to damage or interruption from power outages, telecommunications failures, computer viruses, security breaches or
other catastrophic events. If our systems are damaged or fail to function properly, we may experience loss of critical data and
interruptions or delays in our ability to manage inventories or process customer transactions. Such a disruption of our systems
could negatively impact revenue and potentially have a negative impact on our results of operations, financial condition and cash flows.
Security
threats, such as ransomware attacks, to our IT infrastructure could expose us to liability, and damage our reputation and business.
It
is essential to our business strategy that our technology and network infrastructure remain secure and is perceived by our customers
to be secure. Despite security measures, however, any network infrastructure may be vulnerable to cyber-attacks. Information security
risks have significantly increased in recent years in part due to the proliferation of new technologies and the increased sophistication
and activities of organized crime, hackers, terrorists and other external parties, including foreign private parties and state actors.
We may face cyber-attacks that attempt to penetrate our network security, including our data centers, to sabotage or otherwise disable
our network of websites and online marketplaces, misappropriate our or our customers’ proprietary information, which may include
personally identifiable information, or cause interruptions of our internal systems and services. If successful, any of these attacks
could negatively affect our reputation, damage our network infrastructure and our ability to sell our products, harm our relationship
with customers that are affected and expose us to financial liability.
We
maintain a comprehensive system of preventive and detective controls through our security programs; however, given the rapidly evolving
nature and proliferation of cyber threats, our controls may not prevent or identify all such attacks in a timely manner or otherwise
prevent unauthorized access to, damage to, or interruption of our systems and operations, and we cannot eliminate the risk of human error
or employee or vendor malfeasance.
In
addition, any failure by us to comply with applicable privacy and information security laws and regulations could cause us to incur significant
costs to protect any customers whose personal data was compromised and to restore customer confidence in us and to make changes to our
information systems and administrative processes to address security issues and compliance with applicable laws and regulations. In addition,
our customers could lose confidence in our ability to protect their personal information, which could cause them to stop shopping on
our sites altogether. Such events could lead to lost sales and adversely affect our results of operations. We also could be exposed to
government enforcement actions and private litigation.
Failure
to comply with privacy laws and regulations and failure to adequately protect customer data could harm our business, damage our reputation
and result in a loss of customers.
Federal
and state and regulations may govern the collection, use, sharing and security of data that we receive from our customers. In addition,
we have and post on our websites our own privacy policies and practices concerning the collection, use and disclosure of customer data.
Any failure, or perceived failure, by us to comply with our posted privacy policies or with any data-related consent orders, U.S. Federal
Trade Commission requirements or other federal, state or international privacy-related laws and regulations could result in proceedings
or actions against us by governmental entities or others, which could potentially harm our business. Further, failure or perceived failure
to comply with our policies or applicable requirements related to the collection, use or security of personal information or other privacy-related
matters could damage our reputation and result in a loss of customers. The regulatory framework for privacy issues is currently evolving
and is likely to remain uncertain for the foreseeable future.
Challenges
by OEMs to the validity of the aftermarket auto parts industry and claims of intellectual property infringement could adversely affect
our business and the viability of the aftermarket auto parts industry.
OEMs
have attempted to use claims of intellectual property infringement against manufacturers and distributors of aftermarket products to
restrict or eliminate the sale of aftermarket products that are the subject of the claims. The OEMs have brought such claims in federal
court and with the United States International Trade Commission. We have received in the past, and we anticipate we may in the future
receive, communications alleging that certain products we sell infringe the patents, copyrights, trademarks and trade names or other
intellectual property rights of OEMs or other third parties.
The
United States Patent and Trademark Office records indicate that OEMs are seeking and obtaining more design patents and trademarks than
they have in the past. In some cases, we have entered into license agreements that allow us to sell aftermarket parts that replicate
OEM patented parts in exchange for a royalty. In the event that our license agreements, or other similar license arrangements are terminated,
or we are unable to agree upon renewal terms, we may be subject to restrictions on our ability to sell aftermarket parts that replicate
parts covered by design patents or trademarks, which could have an adverse effect on our business.
Litigation
or regulatory enforcement could also result in interpretations of the law that require us to change our business practices or otherwise
increase our costs and harm our business. We may not maintain sufficient, or any, insurance coverage to cover the types of claims that
could be asserted. If a successful claim were brought against us, it could expose us to significant liability.
If
we are unable to protect our intellectual property rights, our reputation and brand could be impaired and we could lose customers.
We
regard our patents, trademarks, trade secrets and similar intellectual property as important to our success. We rely on patent, trademark
and copyright law, and trade secret protection, and confidentiality and/or license agreements with employees, customers, partners and
others to protect our proprietary rights. We cannot be certain that we have taken adequate steps to protect our proprietary rights, especially
in countries where the laws may not protect our rights as fully as in the United States. In addition, our proprietary rights may be infringed
or misappropriated, and we could be required to incur significant expenses to preserve them. In the past we have filed litigation to
protect our intellectual property rights. The outcome of such litigation can be uncertain, and the cost of prosecuting such litigation
may have an adverse impact on our earnings. We have patent and trademark registrations for several patents and marks. However, any registrations
may not adequately cover our intellectual property or protect us against infringement by others. Effective patent, trademark, service
mark, copyright and trade secret protection may not be available in every country in which our products and services may be made available
online. We also currently own or control a number of Internet domain names and have invested time and money in the purchase of domain
names and other intellectual property, which may be impaired if we cannot protect such intellectual property. We may be unable to protect
these domain names or acquire or maintain relevant domain names in the United States and in other countries. If we are not able to protect
our patents, trademarks, domain names or other intellectual property, we may experience difficulties in achieving and maintaining brand
recognition and customer loyalty.
Because
we are involved in litigation from time to time and are subject to numerous laws and governmental regulations, we could incur substantial
judgments, fines, legal fees and other costs as well as reputational harm.
We
are sometimes the subject of complaints or litigation from customers, employees or other third parties for various reasons. The damages
sought against us in some of these litigation proceedings could be substantial. Although we maintain liability insurance for some litigation
claims, if one or more of the claims were to greatly exceed our insurance coverage limits or if our insurance policies do not cover a
claim, this could have a material adverse effect on our business, financial condition, results of operations and cash flows.
Existing
or future government regulation could expose us to liabilities and costly changes in our business operations and could reduce customer
demand for our products and services.
We
are subject to federal and state consumer protection laws and regulations, including laws protecting the privacy of customer non-public
information and regulations prohibiting unfair and deceptive trade practices, as well as laws and regulations governing businesses in
general and the Internet and e-commerce and certain environmental laws. Additional laws and regulations may be adopted with respect to
the Internet. These laws may cover issues such as user privacy, spyware and the tracking of consumer activities, marketing e-mails and
communications, other advertising and promotional practices, money transfers, pricing, content and quality of products and services,
taxation, electronic contracts and other communications, intellectual property rights, and information security. Furthermore, it is not
clear how existing laws such as those governing issues such as property ownership, sales and other taxes, trespass, data mining and collection,
and personal privacy apply to the Internet and e-commerce. To the extent we expand into international markets, we will be faced with
complying with local laws and regulations, some of which may be materially different than U.S. laws and regulations. Any such foreign
law or regulation, any new U.S. law or regulation, or the interpretation or application of existing laws and regulations to our business
may have a material adverse effect on our business, prospects, financial condition and results of operations by, among other things,
subjecting us to fines, penalties, damages or other liabilities, requiring costly changes in our business operations and practices, and
reducing customer demand for our products and services. We may not maintain sufficient, or any, insurance coverage to cover the types
of claims or liabilities that could arise as a result of such regulation.
We
may be affected by global climate change or by legal, regulatory, or market responses to such change.
The
growing political and scientific sentiment is that global weather patterns are being influenced by increased levels of greenhouse gases
in the earth’s atmosphere. This growing sentiment and the concern over climate change have led to legislative and regulatory initiatives
aimed at reducing greenhouse gas emissions which warm the earth’s atmosphere. These warmer weather conditions could result in a
decrease in demand for auto parts in general. Moreover, proposals that would impose mandatory requirements on greenhouse gas emissions
continue to be considered by policy makers in the United States. Laws enacted that directly or indirectly affect our suppliers (through
an increase in the cost of production or their ability to produce satisfactory products) or our business (through an impact on our inventory
availability, cost of revenues, operations or demand for the products we sell) could adversely affect our business, financial condition,
results of operations and cash flows. Significant increases in fuel economy requirements or new federal or state restrictions on emissions
of carbon dioxide that may be imposed on vehicles and automobile fuels could adversely affect demand for vehicles, annual miles driven
or the products we sell or lead to changes in automotive technology. Compliance with any new or more stringent laws or regulations, or
stricter interpretations of existing laws, could require additional expenditures by us or our suppliers. Our inability to respond to
such changes could adversely impact the demand for our products and our business, financial condition, results of operations or cash
flows.
Possible
new tariffs that might be imposed by the United States government could have a material adverse effect on our results of operations.
Changes
in U.S. and foreign governments’ trade policies have resulted in, and may continue to result in, tariffs on imports into and exports
from the U.S., among other restrictions. Throughout 2018 and 2019, the U.S. imposed tariffs on imports from several countries, including
China. If further tariffs are imposed on imports of our products, or retaliatory trade measures are taken by China or other countries
in response to existing or future tariffs, we could be forced to raise prices on all of our imported products or make changes to our
operations, any of which could materially harm our revenue or operating results. Any additional future tariffs or quotas imposed on our
products or related materials may impact our sales, gross margin and profitability if we are unable to pass increased prices onto our
customers.
Risks
Related to Our Eyewear Products Business
If
we are unable to successfully introduce new products, develop our brands, and maintain a broad selection of products at competitive prices
or fail to maintain sufficient inventory to meet customer demands, our revenue could decline.
In
order to expand our business, we must successfully offer, on a continuous basis, a broad selection of products that meet the needs of
our customers, including by being the first to market with new products. In addition, to be successful, our product offerings must be
broad and deep in scope, competitively priced, well-made, innovative and attractive to a wide range of consumers. We cannot predict with
certainty that we will be successful in offering products that meet all of these requirements. Moreover, even if we offer a broad selection
of products at competitive prices, we must maintain sufficient in-stock inventory to meet consumer demand. If our product offerings fail
to satisfy our customers’ requirements or respond to changes in customer preferences or we otherwise fail to maintain sufficient
in-stock inventory, our revenue could decline.
The
price categories of the reader glasses and sunglasses markets in which we compete are particularly vulnerable to changes in fashion trends
and consumer preferences. Our historical success is attributable, in part, to our introduction of unique designs, interesting patterns,
and creative marketing, which are perceived to represent an improvement over eyeglasses and accessory products. Our future success will
depend on our continued ability to develop and introduce such innovative products and continued success in building our brands. If we
are unable to continue to do so, our future sales could decline, inventory levels could rise, leading to additional costs for storage
and potential write-downs relating to the value of excess inventory, and there could be a negative impact on production costs since fixed
costs would represent a larger portion of total production costs due to the decline in quantities produced, which could materially adversely
affect our results of operations.
If
vision correction alternatives to OTC eyeglasses become more widely available, or consumer preferences for such alternatives increase,
our profitability could suffer through a reduction of sales of our reader eyewear products, including lenses and accessories.
Our
business could be negatively impacted by the availability and acceptance of vision correction alternatives to OTC or reader eyeglasses,
such as contact lenses and refractive optical surgery. Increased use of vision correction alternatives could result in decreased use
of our reader eyewear products, including a reduction of sales of lenses and accessories sold in our retail outlets, which could have
a material adverse impact on our business, results of operations, financial condition and prospects.
Our
business depends on our ability to build and maintain strong brands. We may not be able to maintain and enhance our brands if we receive
unfavorable customer complaints, negative publicity, or otherwise fail to live up to consumers’ expectations, which could materially
adversely affect our business, results of operations and growth prospects.
Maintaining
and enhancing our brands is critical to expanding our base of customers and suppliers. Our ability to maintain and enhance our brand
depends largely on our ability to maintain customer confidence in our product and service offerings. If customers do not have a satisfactory
shopping experience, they may seek out alternative offers from our competitors and may not return to our displays and retail sites as
often in the future, or at all. In addition, unfavorable publicity regarding, for example, our practices relating to privacy and data
protection, product quality, delivery problems, competitive pressures, litigation or regulatory activity, could seriously harm our reputation.
Such negative publicity also could have an adverse effect on the size, engagement, and loyalty of our customer base and result in decreased
revenue, which could adversely affect our business and financial results.
In
addition, maintaining and enhancing these eyeglass product brands may require us to make substantial investments, and these investments
may not be successful. If we fail to promote and maintain our brands, or if we incur excessive expenses in this effort, our business,
operating results and financial condition may be materially adversely affected. We anticipate that, as our market becomes increasingly
competitive, maintaining and enhancing our brands may become increasingly difficult and expensive. Maintaining and enhancing our brands
will depend largely on our ability to provide high quality products to our customers and a reliable, trustworthy, and profitable sales
channel to our suppliers, which we may not be able to do successfully.
Customer
complaints or negative publicity about our sites, products, delivery times, customer data handling and security practices or customer
support, especially on blogs, social media websites and our sites, could rapidly and severely diminish consumer use of our sites and
consumer and supplier confidence in us and result in harm to our brands.
Our
efforts to expand our business into new brands, products, services, technologies, and geographic regions will subject us to additional
business, legal, financial, and competitive risks and may not be successful.
Our
business success depends to some extent on our ability to expand our customer offerings by launching new brands, which may include new
eyewear designs, new eyewear accessories, or personal care products, and by expanding our existing offerings into new retail locations
and geographies. Launching new brands and products or expanding geographically requires significant upfront investments, including investments
in marketing, information technology, and additional personnel. We may not be able to generate satisfactory revenue from these efforts
to offset the costs of such expansions. Any lack of market acceptance of our efforts to launch new brands and services or to expand our
existing offerings could have a material adverse effect on our business, prospects, financial condition, and results of operations. Further,
as we continue to expand our fulfillment capability or add new businesses with different requirements, our logistics networks become
increasingly complex and operating them becomes more challenging. There can be no assurance that we will be able to operate our networks
effectively.
We
have also entered and may continue to enter new markets in which we have limited or no experience, which may not be successful or appealing
to our customers. For instance, in 2020, we entered the personal care products industry by providing and selling surgical face masks
as well as N95 face masks to support the demand due to the COVID-19 pandemic. This, and other similar activities may present new and
difficult technological and logistical challenges, and resulting service disruptions, failures or other quality issues may cause customer
dissatisfaction and harm our reputation and brand. Further, our current and potential competitors in new market segments may have greater
brand recognition, financial resources, longer operating histories and larger customer bases than we do in these areas. As a result,
we may not be successful enough in these newer areas to recoup our investments in them. If this occurs, our business, financial condition
and operating results may be materially adversely affected.
The
loss of any of our key customers could have a materially adverse effect on our results of operations.
Historically,
a few long-term recurring customers have accounted for a majority of our revenues. For the year ended December 31, 2022, a majority of
our revenues were from sales to customers from our retail agreement with Target. There can be no assurance that we will maintain or improve
the relationships with those customers or retailers. Our major customers often change each period based on when a given order is placed.
If we cannot maintain long-term relationships with major customers, lose our contract to sell retail eyewear and eyewear accessories
at Target, or replace major customers from period to period with equivalent customers, the loss of such sales could have an adverse effect
on our business, financial condition and results of operations.
If
we fail to acquire new customers or retain existing customers, or fail to do so in a cost-effective manner, we may not be able to achieve
profitability.
Our
success depends on our ability to acquire and retain customers and maintain our relationships with retailers in a cost-effective manner.
If we fail to deliver a quality shopping experience, or if consumers do not perceive the products we offer to be of high value and quality,
we may not be able to acquire new customers. If we are unable to acquire new customers who purchase products in numbers sufficient to
grow our business, we may not be able to generate the scale necessary to drive beneficial network effects with our suppliers or efficiencies
in our logistics network, our net revenue may decrease, and our business, financial condition and operating results may be materially
adversely affected.
If
our efforts to satisfy our existing customers are not successful, we may not be able to acquire new customers in sufficient numbers to
continue to grow our business, or we may be required to incur significantly higher marketing expenses in order to acquire new customers.
We
are dependent upon relationships with manufacturers, including many located in Taiwan and China, which exposes us to complex regulatory regimes and logistical
challenges.
All of our manufacturing is outsourced to contract manufacturers, including
many located in China and Taiwan, resulting in additional factors could interrupt our relationships or affect our ability to acquire the
necessary products on acceptable terms, including:
| ● | political,
social and economic instability and the risk of war or other international incidents in Asia
or abroad; |
| ● | fluctuations
in foreign currency exchange rates that may increase our cost of products; |
| ● | imposition
of duties, taxes, tariffs or other charges on imports; |
| ● | difficulties
in complying with import and export laws, regulatory requirements and restrictions; |
| ● | natural
disasters and public health emergencies, such as the recent COVID-19 pandemic; |
| ● | import
shipping delays resulting from foreign or domestic labor shortages, slow-downs, or stoppage;
and |
| ● | the
failure of local laws to provide a sufficient degree of protection against infringement of
our intellectual property; |
| ● | imposition
of new legislation relating to import quotas or other restrictions that may limit the quantity
of our products that may be imported into the U.S. from countries or regions where we do
business; |
| ● | financial
or political instability in any of the countries in which our products are manufactured; |
| ● | potential
recalls or cancellations of orders for any products that do not meet our quality standards; |
| ● | disruption
of imports by labor disputes or strikes and local business practices; |
| ● | political
or military conflict involving the U.S. or any country in which our suppliers are located,
which could cause a delay in the transportation of our products, an increase in transportation
costs and additional risk to products being damaged and delivered on time; |
| ● | heightened
terrorism security concerns, which could subject imported goods to additional, more frequent
or more thorough inspections, leading to delays in deliveries or impoundment of goods for
extended periods; |
| ● | inability
of our non-U.S. suppliers to obtain adequate credit or access liquidity to finance their
operations; and |
| ● | our
ability to enforce any agreements with our foreign suppliers. |
If
we were unable to import products from China and Taiwan or were unable to import products from China and Taiwan in a cost-effective manner,
we could suffer irreparable harm to our business and be required to significantly curtail our operations, file for bankruptcy or cease
operations.
From
time to time, we may also have to resort to administrative and court proceedings to enforce our legal rights with foreign suppliers.
However, it may be more difficult to evaluate the level of legal protection we enjoy in Taiwan and China and the corresponding outcome
of any administrative or court proceedings than in comparison to our suppliers in the United States.
Possible
new tariffs that might be imposed by the United States government could have a material adverse effect on our results of operations.
Changes
in U.S. and foreign governments’ trade policies have resulted in, and may continue to result in, tariffs on imports into and exports
from the U.S., among other restrictions. Throughout 2018 and 2019, the U.S. imposed tariffs on imports from several countries, including
China. If further tariffs are imposed on imports of our products, or retaliatory trade measures are taken by China or other countries
in response to existing or future tariffs, we could be forced to raise prices on all of our imported products or make changes to our
operations, any of which could materially harm our revenue or operating results. Any additional future tariffs or quotas imposed on our
products or related materials may impact our sales, gross margin and profitability if we are unable to pass increased prices onto our
customers.
We
are highly dependent upon key suppliers and an interruption in such relationships or our ability to obtain products from such suppliers
could adversely affect our business and the results of operations.
In
2022 and 2021, we purchased a substantial portion of finished goods from four third-party vendors which comprised 87% and 92% of our
purchases, respectively. Our ability to acquire products from our suppliers in amounts and on terms acceptable to us is dependent upon
a number of factors that could affect our suppliers and which are beyond our control. For example, financial or operational difficulties
that some of our suppliers may face could result in an increase in the cost of the products we purchase from them. We also do not have
any exclusive contracts with our suppliers. If we do not maintain our relationships with our existing suppliers or develop relationships
with new suppliers on acceptable commercial terms, we may not be able to continue to offer a broad selection of merchandise at competitive
prices and, as a result, we could lose customers and our sales could decline.
We
also have limited control over the products that our suppliers purchase or keep in stock. Our suppliers may not accurately forecast the
products that will be in high demand, or they may allocate popular products to other resellers, resulting in the unavailability of certain
products for delivery to our customers. Any inability to offer a broad array of products at competitive prices and any failure to deliver
those products to our customers in a timely and accurate manner may damage our reputation and brand and could cause us to lose customers
and our sales could decline.
Furthermore,
as part of our routine business, suppliers extend credit to us in connection with our purchase of their products. In the future, our
suppliers may limit the amount of credit they are willing to extend to us in connection with our purchase of their products. If this
were to occur, it could impair our ability to acquire the types and quantities of products that we desire from the applicable suppliers
on acceptable terms, severely impact our liquidity and capital resources, limit our ability to operate our business and could have a
material adverse effect on our financial condition and results of operations.
We
may be unable to source new suppliers or strengthen our relationships with current suppliers.
During the year ended December 31, 2022, four main suppliers represented
approximately 92% of our product purchases. Our agreements with suppliers are generally terminable at will by either party upon short
notice. If we do not maintain our existing relationships or build new relationships with suppliers on acceptable commercial terms, we
may not be able to maintain a broad selection of merchandise, and our business and prospects would suffer severely.
In
order to attract quality suppliers, we must:
| ● | demonstrate
our ability to help our suppliers increase their sales; |
| ● | offer
suppliers a high quality, cost-effective fulfillment process; and |
| ● | continue
to provide suppliers with a dynamic and real-time view of our demand and inventory needs. |
If
we are unable to provide our suppliers with a compelling return on investment and an ability to increase their sales, we may be unable
to maintain and/or expand our supplier network, which would negatively impact our business.
Increased
prices and interruptions in deliveries for finished goods or raw materials could increase our cost of revenues and decrease demand for our
products, which could adversely affect our revenue or profitability.
Our
profitability is affected by the prices of the finished goods and raw materials used in the manufacturing and sale of our products. These
prices may fluctuate based on a number of factors beyond our control, including, among others, changes in supply and demand, general
economic conditions, labor costs, competition, import duties, tariffs, currency exchange rates and, in some cases, government regulation.
Increased prices could adversely affect our profitability or revenues. We do not have long-term supply contracts for finished goods and
raw materials. Significant increases in the prices of finished goods and raw materials could adversely affect our profit margins, especially
if we are not able to recover these costs by increasing the prices we charge our customers for our products.
Our
dependency upon regular deliveries from particular suppliers means that interruptions or stoppages in such deliveries could adversely
affect our operations until arrangements with alternate suppliers could be made. If any of our suppliers were unable to deliver finished
goods and raw materials to us for an extended period of time, as the result of financial difficulties, catastrophic events affecting
their facilities or other factors beyond our control, or if we were unable to negotiate acceptable terms for the supply of finished goods
and raw materials with these or alternative suppliers, our business could suffer. We may not be able to find acceptable alternatives,
and any such alternatives could result in increased costs for us. Even if acceptable alternatives are found, the process of locating
and securing such alternatives might be disruptive to our business. Extended unavailability of a necessary finished good or raw material
could cause us to cease manufacturing or selling one or more of our products for a period of time.
We
depend on third-party delivery services, for both inbound and outbound shipping, to deliver our products to our distribution centers
and subsequently to our retail partners and customers on a timely and consistent basis, and any deterioration in our relationship with
any one of these third parties or increases in the fees that they charge could harm our reputation and adversely affect our business
and financial condition.
We rely on third parties for the shipment of our products, both inbound
and outbound shipping logistics, and we cannot be sure that these relationships will continue on terms favorable to us, or at all. Shipping
costs have increased from time to time, and may continue to increase, and we may not be able to pass these costs directly to our customers.
Any increased shipping costs could harm our business, prospects, financial condition and results of operations by increasing our costs
of doing business and reducing gross margins which could negatively affect our operating results. In addition, we utilize a variety of
shipping methods for both inbound and outbound logistics. For inbound logistics, we rely on trucking, ocean carriers, and air carriers
and any increases in fees that they charge could adversely affect our business and financial condition. For outbound logistics, we rely
on “Less-than-Truckload” and parcel freight based upon the product and quantities being shipped and customer delivery requirements.
These outbound freight costs have increased on a year-over-year basis and may continue to increase in the future.
In
addition, if our relationships with these third parties are terminated or impaired, or if these third parties are unable to deliver products
for us, whether due to labor shortage, slow down or stoppage, deteriorating financial or business condition, responses to terrorist attacks
or for any other reason, we would be required to use alternative carriers for the shipment of products to our customers. Changing carriers
could have a negative effect on our business and operating results due to reduced visibility of order status and package tracking and
delays in order processing and product delivery, and we may be unable to engage alternative carriers on a timely basis, upon terms favorable
to us, or at all.
In
the event of a catastrophic loss of our key distribution facility, our business would be adversely affected.
While
we maintain insurance covering our facility, including business interruption insurance, a catastrophic loss of the use of all or a portion
of our distribution facility, due to accident, labor issues, weather conditions, natural disaster or otherwise, whether short or long-term,
could have a material adverse effect on us.
Our
business is highly competitive. Competition presents an ongoing threat to the success of our business.
Our
business is rapidly evolving and intensely competitive, and we have many competitors. Our competition includes big box retailers, such
as Foster Grant, SAV Eyewear, Eyebobs, Peepers, Blue Gem, Sees Eyewear, Modo, and EyeOs, and online marketplaces, such as Amazon.
We
expect competition to continue to increase. We believe that our ability to compete successfully depends upon many factors both within
and beyond our control, including:
| ● | the
size and composition of our customer base; |
| ● | the
number of suppliers and products we feature; |
| ● | our
selling and marketing efforts; |
| ● | the
quality, price and reliability of products we offer; |
| ● | the
quality and convenience of the shopping experience that we provide; |
| ● | our
ability to distribute our products and manage our operations; and |
| ● | our
reputation and brand strength. |
Many
of our current competitors have, and potential competitors may have, longer operating histories, greater brand recognition, larger fulfillment
infrastructures, greater technical capabilities, faster and less costly shipping, significantly greater financial, marketing and other
resources and larger customer bases than we do. These factors may allow our competitors to derive greater net revenue and profits from
their existing customer base, acquire customers at lower costs or respond more quickly than we can to new or emerging technologies and
changes in consumer habits. These competitors may engage in more extensive research and development efforts, undertake more far-reaching
marketing campaigns and adopt more aggressive pricing policies, which may allow them to build larger customer bases or generate net revenue
from their customer bases more effectively than we do.
If
we fail to manage our growth effectively, our business, financial condition and operating results could be harmed.
To
manage our growth effectively, we must continue to implement our operational plans and strategies, improve, and expand our infrastructure
of people and information systems and expand, train and manage our employee base. To support continued growth, we must effectively integrate,
develop and motivate new employees. We face significant competition for personnel. Failure to manage our hiring needs effectively or
successfully integrate our new hires may have a material adverse effect on our business, financial condition and operating results.
Additionally,
the growth of our business places significant demands on our operations, as well as our management and other employees. The growth of
our business may require significant additional resources to meet these daily requirements, which may not scale in a cost-effective manner
or may negatively affect the quality of our sites and customer experience. We are also required to manage relationships with a growing
number of suppliers, customers and other third parties. Our information technology systems and our internal controls and procedures may
not be adequate to support future growth of our supplier and employee base. If we are unable to manage the growth of our organization
effectively, our business, financial condition and operating results may be materially adversely affected.
Significant
merchandise returns could harm our business.
We
allow our customers to return products, subject to our return policy. If merchandise returns are significant, our business, prospects,
financial condition and results of operations could be harmed. Further, we modify our policies relating to returns from time to time,
which may result in customer dissatisfaction or an increase in the number of product returns. Many of our products are large and require
special handling and delivery. From time to time our products are damaged in transit, which can increase return rates and harm our brand.
We
may be subject to product liability and other similar claims if people or property are harmed by the products we sell.
Some
of the products we sell may expose us to product liability and other claims and litigation (including class actions) or regulatory action
relating to safety, personal injury, death or environmental or property damage. Some of our agreements with members of our supply chain
may not indemnify us from product liability for a particular product, and some members of our supply chain may not have sufficient resources
or insurance to satisfy their indemnity and defense obligations. Although we maintain liability insurance, we cannot be certain that
our coverage will be adequate for liabilities actually incurred or that insurance will continue to be available to us on economically
reasonable terms, or at all.
We
are engaged in legal proceedings that could cause us to incur unforeseen expenses and could occupy a significant amount of our management’s
time and attention.
From
time to time, we are subject to litigation or claims that could negatively affect our business operations and financial position. Litigation
disputes could cause us to incur unforeseen expenses, result in site unavailability, service disruptions, and otherwise occupy a significant
amount of our management’s time and attention, any of which could negatively affect our business operations and financial position.
We also from time to time receive inquiries and subpoenas and other types of information requests from government authorities and we
may become subject to related claims and other actions related to our business activities. While the ultimate outcome of investigations,
inquiries, information requests and related legal proceedings is difficult to predict, such matters can be expensive, time-consuming
and distracting, and adverse resolutions or settlements of those matters may result in, among other things, modification of our business
practices, reputational harm or costs and significant payments, any of which could negatively affect our business operations and financial
position.
We
rely on the performance of members of management and highly skilled personnel, and if we are unable to attract, develop, motivate and
retain well-qualified employees, our business could be harmed.
We
believe our success has depended, and continues to depend, on the members of our senior management teams. The loss of any of our senior
management or other key employees could materially harm our business. Our future success also depends on our continuing ability to attract,
develop, motivate and retain highly qualified and skilled employees, particularly mid-level managers and merchandising and technology
personnel. The market for such positions is competitive. Qualified individuals are in high demand, and we may incur significant costs
to attract them. Our inability to recruit and develop mid-level managers could materially adversely affect our ability to execute our
business plan, and we may not be able to find adequate replacements. All of our officers and other U.S. employees are at-will employees,
meaning that they may terminate their employment relationship with us at any time, and their knowledge of our business and industry would
be extremely difficult to replace. If we do not succeed in attracting well-qualified employees or retaining and motivating existing employees,
our business, financial condition and operating results may be materially adversely affected.
We
are subject to risks related to online payment methods.
We
accept payments using a variety of methods, including credit card, debit card, PayPal, credit accounts and gift cards. As we offer new
payment options to consumers, we may be subject to additional regulations, compliance requirements and fraud. For certain payment methods,
including credit and debit cards, we pay interchange and other fees, which may increase over time and raise our operating costs and lower
profitability. We are also subject to payment card association operating rules and certification requirements, including the Payment
Card Industry Data Security Standard and rules governing electronic funds transfers, which could change or be reinterpreted to make it
difficult or impossible for us to comply. As our business changes, we may also be subject to different rules under existing standards,
which may require new assessments that involve costs above what we currently pay for compliance. If we fail to comply with the rules
or requirements of any provider of a payment method we accept, if the volume of fraud in our transactions limits or terminates our rights
to use payment methods we currently accept, or if a data breach occurs relating to our payment systems, we may, among other things, be
subject to fines or higher transaction fees and may lose, or face restrictions placed upon, our ability to accept credit card and debit
card payments from consumers or to facilitate other types of online payments. If any of these events were to occur, our business, financial
condition and operating results could be materially adversely affected.
We
occasionally receive orders placed with fraudulent credit card data. We may suffer losses as a result of orders placed with fraudulent
credit card data even if the associated financial institution approved payment of the orders. Under current credit card practices, we
may be liable for fraudulent credit card transactions. If we are unable to detect or control credit card fraud, our liability for these
transactions could harm our business, financial condition and results of operations.
We
may not be able to adequately protect our intellectual property rights.
We
regard our customer lists, domain names, trade dress, trade secrets, trademarks, proprietary technology and similar intellectual property
as critical to our success, and we rely on trade secret protection, agreements and other methods with our employees and others to protect
our proprietary rights. We might not be able to obtain broad protection for all of our intellectual property. The protection of our intellectual
property rights may require the expenditure of significant financial, managerial and operational resources. We may initiate claims or
litigation against others for infringement, misappropriation or violation of our intellectual property rights or proprietary rights or
to establish the validity of such rights. Any litigation, whether or not it is resolved in our favor, could result in significant expense
to us and divert the efforts of our technical and management personnel, which may materially adversely affect our business, financial
condition and operating results. Moreover, the steps we take to protect our intellectual property may not adequately protect our rights
or prevent third parties from infringing or misappropriating our proprietary rights, and we may not be able to broadly enforce all of
our intellectual property rights. Any of our intellectual property rights may be challenged by others or invalidated through administrative
process or litigation. Additionally, the process of obtaining intellectual property protections is expensive and time-consuming, and
we may not be able to pursue all necessary or desirable actions at a reasonable cost or in a timely manner. Even if issued, there can
be no assurance that these protections will adequately safeguard our intellectual property, as the legal standards relating to the validity,
enforceability and scope of protection of patent and other intellectual property rights are uncertain. We also cannot be certain that
others will not independently develop or otherwise acquire equivalent or superior intellectual property rights. We may also be exposed
to claims from third parties claiming infringement of their intellectual property rights. These claims could result in litigation that
may materially affect our financial condition and operating results in a material and adverse way.
We
may be accused of infringing intellectual property rights of third parties.
We
may be subject to claims and litigation by third parties that we infringe on their intellectual property rights. The costs of supporting
such litigation and disputes are considerable, and there can be no assurances that favorable outcomes will be obtained. As our business
expands and the number of competitors in our market increases and overlaps occur, we expect that infringement claims may increase in
number and significance. Any claims or proceedings against us, whether meritorious or not, could be time-consuming, result in considerable
litigation costs, require significant amounts of management time or result in the diversion of significant operational resources, any
of which could materially adversely affect our business, financial condition and operating results.
We
have received in the past, and we may receive in the future, communications alleging that certain items posted on or sold through our
sites violate third-party copyrights, designs, marks and trade names or other intellectual property rights or other proprietary rights.
Brand and content owners and other proprietary rights owners have actively asserted their purported rights against online companies.
In addition to litigation from rights owners, we may be subject to regulatory, civil or criminal proceedings and penalties if governmental
authorities believe we have aided and abetted in the sale of counterfeit or infringing products.
Such
claims, whether or not meritorious, may result in the expenditure of significant financial, managerial and operational resources, injunctions
against us or the payment of damages by us. We may need to obtain licenses from third parties who allege that we have violated their
rights, but such licenses may not be available on terms acceptable to us, or at all. These risks have been amplified by the increase
in third parties whose sole or primary business is to assert such claims.
If
we do not continue to negotiate and maintain favorable license arrangements, our sales or cost of revenues could suffer.
We
have entered into license agreements that enable us to manufacture and distribute prescription frames and sunglasses under certain names,
including Dr. Dean Edell. These license agreements typically have terms of multiple years and may contain options for renewal for additional
periods and require us to make guaranteed and contingent royalty payments to the licensor. Accordingly, if we are unable to negotiate
and maintain satisfactory license arrangements with some of our designers, our growth prospects and financial results could materially
suffer from a reduction in sales or an increase in advertising costs and royalty payments to designers.
Existing
or future government regulation could expose us to liabilities and costly changes in our business operations and could reduce customer
demand for our products and services.
We
are subject to federal and state consumer protection laws and regulations, including laws protecting the privacy of customer non-public
information and regulations prohibiting unfair and deceptive trade practices, as well as laws and regulations governing businesses in
general and the Internet and e-commerce and certain environmental laws. Additional laws and regulations may be adopted with respect to
the Internet. These laws may cover issues such as user privacy, spyware and the tracking of consumer activities, marketing e-mails and
communications, other advertising and promotional practices, money transfers, pricing, content and quality of products and services,
taxation, electronic contracts and other communications, intellectual property rights, and information security. Furthermore, it is not
clear how existing laws such as those governing issues such as property ownership, sales and other taxes, trespass, data mining and collection,
and personal privacy apply to the Internet and e-commerce. To the extent we expand into international markets, we will be faced with
complying with local laws and regulations, some of which may be materially different than U.S. laws and regulations. Any such foreign
law or regulation, any new U.S. law or regulation, or the interpretation or application of existing laws and regulations to our business
may have a material adverse effect on our business, prospects, financial condition and results of operations by, among other things,
subjecting us to fines, penalties, damages or other liabilities, requiring costly changes in our business operations and practices, and
reducing customer demand for our products and services. We may not maintain sufficient, or any, insurance coverage to cover the types
of claims or liabilities that could arise as a result of such regulation.
Risks
Related to Our Relationship with Our Manager
Termination
of the management services agreement will not affect our manager’s rights to receive profit allocations and removal of our manager
may cause us to incur significant fees.
Our
manager owns all of our allocation shares, which generally will entitle our manager to receive a profit allocation as a form of preferred
distribution. In general, this profit allocation is designed to pay our manager 20% of the excess of the gains upon dispositions of our
subsidiaries, plus an amount equal to the net income of such subsidiaries since their acquisition by us, over an annualized hurdle rate.
If our manager resigns or is removed, for any reason, it will remain the owner of our allocation shares. It will therefore remain entitled
to all profit allocations while it holds our allocation shares regardless of whether it is terminated as our manager. If we terminate
our manager, it may therefore be difficult or impossible for us to find a replacement to serve the function of our manager, because we
would not be able to force our manager to transfer its allocation shares to a replacement manager so that the replacement manager could
be entitled to a profit allocation. Therefore, as a practical matter, it may be difficult for us to replace our manager without its cooperation.
If it becomes necessary to replace our manager and we are unable to replace our manager without its cooperation, we may be unable to
continue to manage our operations effectively and our business may fail.
If
we terminate the management services agreement with our manager, any fees, costs and expenses already earned or otherwise payable to
our manager upon termination would become immediately due. Moreover, if our manager were to be removed and our management services agreement
terminated by a vote of our board of directors and a majority of our common shares other than common shares beneficially owned by our
manager, we would also owe a termination fee to our manager on top of the other fees, costs and expenses. In addition, the management
services agreement is silent as to whether termination of our manager “for cause” would result in a termination fee; there
is therefore a risk that the agreement may be interpreted to entitle our manager to a termination fee even if terminated “for cause”.
The termination fee would equal twice the sum of the amount of the quarterly management fees calculated with respect to the four fiscal
quarters immediately preceding the termination date of the management services agreement. As a result, we could incur significant management
fees as a result of the termination of our manager, which may increase the risk that our business may be unable to meet its financial
obligations or otherwise fail.
Mr.
Ellery W. Roberts, our Chairman and Chief Executive Officer, controls our manager. If some event were to occur to cause Mr. Roberts (or
his designated successor, heirs, beneficiaries or permitted assigns) not to control our manager without the prior written consent of
our board of directors, our manager would be considered terminated under our agreement.
Our
manager and the members of our management team may engage in activities that compete with us or our businesses.
Although
our Chief Executive Officer intends to devote substantially all of his time to the affairs of our company and our manager must present
all opportunities that meet our acquisition and disposition criteria to our board of directors, neither our manager nor our Chief Executive
Officer is expressly prohibited from investing in or managing other entities. In this regard, the management services agreement and the
obligation to provide management services will not create a mutually exclusive relationship between our manager and its affiliates, on
the one hand, and our company, on the other. See Item 1 “Business—Our Manager” for more information about our
relationship with our manager and our management team.
Our
manager need not present an acquisition opportunity to us if our manager determines on its own that such acquisition opportunity does
not meet our acquisition criteria.
Our
manager will review any acquisition opportunity to determine if it satisfies our acquisition criteria, as established by our board of
directors from time to time. If our manager determines, in its sole discretion, that an opportunity fits our criteria, our manager will
refer the opportunity to our board of directors for its authorization and approval prior to signing a letter of intent, indication of
interest or similar document or agreement. Opportunities that our manager determines do not fit our criteria do not need to be presented
to our board of directors for consideration. In addition, upon a determination by our board of directors not to promptly pursue an opportunity
presented to it by our manager, in whole or in part, our manager will be unrestricted in its ability to pursue such opportunity, or any
part that we do not promptly pursue, on its own or refer such opportunity to other entities, including its affiliates. If such an opportunity
is ultimately profitable, we will have not participated in such opportunity. See Item 1 “Business—Our Manager—Acquisition
and Disposition Opportunities” for more information about our current acquisition criteria.
Our
Chief Executive Officer, Mr. Ellery W. Roberts, controls our manager and, as a result we may have difficulty severing ties with Mr. Roberts.
Under
the terms of the management services agreement, our board of directors may, after due consultation with our manager, at any time request
that our manager replace any individual seconded to us, and our manager will, as promptly as practicable, replace any such individual.
However, because Mr. Roberts controls our manager, we may have difficulty completely severing ties with Mr. Roberts absent terminating
the management services agreement and our relationship with our manager. Further, termination of the management services agreement could
give rise to a significant financial obligation, which may have a material adverse effect on our business and financial condition. See
Item 1 “Business—Our Manager” for more information about our relationship with our manager.
If
the management services agreement is terminated, our manager, as holder of the allocation shares, has the right to cause us to purchase
its allocation shares, which may have a material adverse effect on our financial condition.
If:
(i) the management services agreement is terminated at any time other than as a result of our manager’s resignation, subject to
(ii); or (ii) our manager resigns, our manager will have the right, but not the obligation, for one year from the date of termination
or resignation, as the case may be, to cause us to purchase the allocation shares for the put price. The put price shall be equal to,
as of any exercise date: (i) if we terminate the management services agreement, the sum of two separate, independently made calculations
of the aggregate amount of the “base put price amount” as of such exercise date; or (ii) if our manager resigns, the average
of two separate, independently made calculations of the aggregate amount of the “base put price amount” as of such exercise
date. If our manager elects to cause us to purchase its allocation shares, we are obligated to do so and, until we have done so, our
ability to conduct our business, including our ability to incur debt, to sell or otherwise dispose of our property or assets, to engage
in certain mergers or consolidations, to acquire or purchase the property, assets or stock of, or beneficial interests in, another business,
or to declare and pay distributions, would be restricted. These financial and operational obligations may have a material adverse effect
on our financial condition, business and results of operations. See Item 1 “Business—Our Manager—Our Manager as
an Equity Holder—Supplemental Put Provision” for more information about our manager’s put right and our obligations
relating thereto, as well as the definition and calculation of the base put price amount.
If
the management services agreement is terminated, we will need to change our name and cease our use of the term “1847”, which
in turn could have a material adverse impact upon our business and results of operations as we would be required to expend funds to create
and market a new name.
Our
manager controls our rights to the term “1847” as it is used in the name of our company. We and any businesses that we acquire
must cease using the term “1847,” including any trademark based on the name of our company that may be licensed to them by
our manager under the license provisions of our management services agreement, entirely in their businesses and operations within 180
days of our termination of the management services agreement. The sublicense provisions of the management services agreement would require
our company and its businesses to change their names to remove any reference to the term “1847” or any reference to trademarks
licensed to them by our manager. This also would require us to create and market a new name and expend funds to protect that name, which
may have a material adverse effect on our business and results of operations.
We
have agreed to indemnify our manager under the management services agreement that may result in an indemnity payment that could have
a material adverse impact upon our business and results of operations.
The
management services agreement provides that we will indemnify, reimburse, defend and hold harmless our manager, together with its employees,
officers, members, managers, directors and agents, from and against all losses (including lost profits), costs, damages, injuries, taxes,
penalties, interests, expenses, obligations, claims and liabilities of any kind arising out of the breach of any term or condition in
the management services agreement or the performance of any services under such agreement except by reason of acts or omissions constituting
fraud, willful misconduct or gross negligence. If our manager is forced to defend itself in any claims or actions arising out of the
management services agreement for which we are obligated to provide indemnification, our payment of such indemnity could have a material
adverse impact upon our business and results of operations.
Our
manager can resign on 120 days’ notice, and we may not be able to find a suitable replacement within that time, resulting in a
disruption in our operations that could materially adversely affect our financial condition, business and results of operations, as well
as the market price of our shares.
Our
manager has the right, under the management services agreement, to resign at any time on 120 days written notice, whether we have found
a replacement or not. If our manager resigns, we may not be able to contract with a new manager or hire internal management with similar
expertise and ability to provide the same or equivalent services on acceptable terms within 120 days, or at all, in which case our operations
are likely to experience a disruption, our financial condition, business and results of operations, as well as our ability to pay distributions
are likely to be materially adversely affected and the market price of our shares may decline. In addition, the coordination of our internal
management, acquisition activities and supervision of our business is likely to suffer if we are unable to identify and reach an agreement
with a single institution or group of executives having the experience and expertise possessed by our manager and its affiliates. Even
if we are able to retain comparable management, whether internal or external, the integration of such management and their lack of familiarity
with our businesses may result in additional costs and time delays that could materially adversely affect our financial condition, business
and results of operations as well as the market price of our shares.
The
amount recorded for the allocation shares may be subject to substantial period-to-period changes, thereby significantly adversely impacting
our results of operations.
We
will record the allocation shares at the redemption value at each balance sheet date by recording any change in fair value through our
income statement as a dividend between net income and net income available to common shareholders. The redemption value of the allocation
shares is largely related to the value of the profit allocation that our manager, as holder of the allocation shares, will receive. The
redemption value of the allocation shares may fluctuate on a period-to-period basis based on the distributions we pay to our common shareholders,
the earnings of our businesses and the price of our common shares, which fluctuation may be significant, and could cause a material adverse
effect on our results of operations. See Item 1 “Business—Our Manager—Our Manager as an Equity Holder”
for more information about the terms and calculation of the profit allocation and any payments under the supplemental put provisions
of our operating agreement.
We
cannot determine the amount of management fee that will be paid to our manager over time with certainty, which management fee may be
a significant cash obligation and may reduce the cash available for operations and distributions to our shareholders.
Our
manager’s management fee will be calculated by reference to our adjusted net assets, which will be impacted by the following factors:
| ● | the
acquisition or disposition of businesses; |
| ● | organic
growth, add-on acquisitions and dispositions by our businesses; and |
| ● | the
performance of our businesses. |
We
cannot predict these factors, which may cause significant fluctuations in our adjusted net assets and, in turn, impact the management
fee we pay to our manager. Accordingly, we cannot determine the amount of management fee that will be paid to our manager over time with
any certainty, which management fee may represent a significant cash obligation and may reduce the cash available for our operations
and distributions to our shareholders.
We
must pay our manager the management fee regardless of our performance. Therefore, our manager may be induced to increase the amount of
our assets rather than the performance of our businesses.
Our
manager is entitled to receive a management fee that is based on our adjusted net assets, as defined in the management services agreement,
regardless of the performance of our businesses. In this respect, the calculation of the management fee is unrelated to our net income.
As a result, the management fee may encourage our manager to increase the amount of our assets by, for example, recommending to our board
of directors the acquisition of additional assets, rather than increase the performance of our businesses. In addition, payment of the
management fee may reduce or eliminate the cash we have available for distributions to our shareholders.
The
management fee is based solely upon our adjusted net assets; therefore, if in a given year our performance declines, but our adjusted
net assets remain the same or increase, the management fee we pay to our manager for such year will increase as a percentage of our net
income and may reduce the cash available for distributions to our shareholders.
The
management fee we pay to our manager will be calculated solely by reference to our adjusted net assets. If in a given year our performance
declines, but our adjusted net assets remain the same or increase, the management fee we pay to our manager for such year will increase
as a percentage of our net income and may reduce the cash available for distributions to our shareholders. See Item 1 “Business—Our
Manager—Our Manager as a Service Provider—Management Fee” for more information about the terms and calculation
of the management fee.
The
amount of profit allocation to be paid to our manager could be substantial. However, we cannot determine the amount of profit allocation
that will be paid over time or the put price with any certainty.
We
cannot determine the amount of profit allocation that will be paid over time or the put price with any certainty. Such determination
would be dependent on, among other things, the number, type and size of the acquisitions and dispositions that we make in the future,
the distributions we pay to our shareholders, the earnings of our businesses and the market value of common shares from time to time,
factors that cannot be predicted with any certainty at this time. Such factors will have a significant impact on the amount of any profit
allocation to be paid to our manager, especially if our share price significantly increases. See Item 1 “Business—Our
Manager—Our Manager as an Equity Holder—Manager’s Profit Allocation” for more information about the calculation
and payment of profit allocation. Any amounts paid in respect of the profit allocation are unrelated to the management fee earned for
performance of services under the management services agreement.
The
management fee and profit allocation to be paid to our manager may significantly reduce the amount of cash available for distributions
to shareholders and for operations.
Under
the management services agreement, we will be obligated to pay a management fee to and, subject to certain conditions, reimburse the
costs and out-of-pocket expenses of our manager incurred on our behalf in connection with the provision of services to us. Similarly,
our businesses will be obligated to pay fees to and reimburse the costs and expenses of our manager pursuant to any offsetting management
services agreements entered into between our manager and our businesses, or any transaction services agreements to which such businesses
are a party. In addition, our manager, as holder of the allocation shares, will be entitled to receive a profit allocation upon satisfaction
of applicable conditions to payment and may be entitled to receive the put price upon the occurrence of certain events. While we cannot
quantify with any certainty the actual amount of any such payments in the future, we do expect that such amounts could be substantial.
See Item 1 “Business—Our Manager” for more information about these payment obligations. The management fee,
put price and profit allocation are payment obligations and, as a result, will be senior in right to the payment of any distributions
to our shareholders. Likewise, the profit allocation may also significantly reduce the cash available for operations.
Our
manager’s influence on conducting our business and operations, including acquisitions, gives it the ability to increase its fees
and compensation to our Chief Executive Officer, which may reduce the amount of cash available for distributions to our shareholders.
Under
the terms of the management services agreement, our manager is paid a management fee calculated as a percentage of our adjusted net assets
for certain items and is unrelated to net income or any other performance base or measure. See Item 1 “Business—Our Manager—Our
Manager as a Service Provider—Management Fee” for more information about the calculation of the management fee. Our manager,
which Ellery W. Roberts, our Chief Executive Officer, controls, may advise us to consummate transactions, incur third-party debt or conduct
our operations in a manner that may increase the amount of fees paid to our manager which, in turn, may result in higher compensation
to Mr. Roberts because his compensation is paid by our manager from the management fee it receives from us.
Fees
paid by our company and our businesses pursuant to transaction services agreements do not offset fees payable under the management services
agreement and will be in addition to the management fee payable by our company under the management services agreement.
The
management services agreement provides that businesses that we may acquire in the future may enter into transaction services agreements
with our manager pursuant to which our businesses will pay fees to our manager. See Item 1 “Business—Our Manager—Our
Manager as a Service Provider” for more information about these agreements. Unlike fees paid under the offsetting management
services agreements, fees that are paid pursuant to such transaction services agreements will not reduce the management fee payable by
us. Therefore, such fees will be in addition to the management fee payable by us or offsetting management fees paid by businesses that
we may acquire in the future.
The
fees to be paid to our manager pursuant to these transaction service agreements will be paid prior to any principal, interest or dividend
payments to be paid to us by our businesses, which will reduce the amount of cash available for distributions to our shareholders.
Our
manager’s profit allocation may induce it to make decisions and recommend actions to our board of directors that are not optimal
for our business and operations.
Our
manager, as holder of all of the allocation shares, will receive a profit allocation based on the extent to which gains from any sales
of our subsidiaries plus their net income since the time they were acquired exceed a certain annualized hurdle rate. As a result, our
manager may be encouraged to make decisions or to make recommendations to our board of directors regarding our business and operations,
the business and operations of our businesses, acquisitions or dispositions by us or our businesses and distributions to our shareholders,
any of which factors could affect the calculation and payment of profit allocation, but which may otherwise be detrimental to our long-term
financial condition and performance.
The
obligations to pay the management fee and profit allocation, including the put price, may cause us to liquidate assets or incur debt.
If
we do not have sufficient liquid assets to pay the management fee and profit allocation, including the put price, when such payments
are due and payable, we may be required to liquidate assets or incur debt in order to make such payments. This circumstance could materially
adversely affect our liquidity and ability to make distributions to our shareholders. See Item 1 “Business—Our Manager”
for more information about these payment obligations.
Risks
Related to Taxation
Our
shareholders will be subject to taxation on their share of our taxable income, whether or not they receive cash distributions from us.
Our
company is a limited liability company and is classified as a partnership for U.S. federal income tax purposes. Consequently, our shareholders
are subject to U.S. federal income taxation and, possibly, state, local and foreign income taxation on their share of our taxable income,
whether or not they receive cash distributions from us. There is, accordingly, a risk that our shareholders may not receive cash distributions
equal to their allocated portion of our taxable income or even in an amount sufficient to satisfy the tax liability that results from
that income. This risk is attributable to a number of variables, such as results of operations, unknown liabilities, government regulations,
financial covenants relating to our debt, the need for funds for future acquisitions and/or to satisfy short- and long-term working capital
needs of our businesses, and the discretion and authority of our board of directors to make distributions or modify our distribution
policy.
As
a partnership, our company itself will not be subject to U.S. federal income tax (except as may be imposed under certain recently enacted
partnership audit rules), although it will file an annual partnership information return with the IRS. The information return will report
the results of our activities and will contain a Schedule K-1 for each company shareholder reflecting allocations of profits or losses
(and items thereof) to our members, that is, to the shareholders. Each partner of a partnership is required to report on his or her income
tax return his or her share of items of income, gain, loss, deduction, credit, and other items of the partnership (in each case, as reflected
on such Schedule K-1) without regard to whether cash distributions are received. Each holder will be required to report on his or her
tax return his or her allocable share of company income, gain, loss, deduction, credit and other items for our taxable year that ends
with or within the holder’s taxable year. Thus, holders of common shares will be required to report taxable income (and thus be
subject to significant income tax liability) without a corresponding current receipt of cash if we were to recognize taxable income and
not make cash distributions to the shareholders.
Generally,
the determination of a holder’s distributive share of any item of income, gain, loss, deduction, or credit of a partnership is
governed by the operating agreement, but is also subject to income tax laws governing the allocation of the partnership’s income,
gains, losses, deductions or credits. These laws are complex, and there can be no assurance that the IRS would not successfully challenge
any allocation set forth in any Schedule K-1 issued by us. Whether an allocation set forth in any particular K-1 issued to a shareholder
will be accepted by the IRS also depends on a facts and circumstances analysis of the underlying economic arrangement of our shareholders.
If the IRS were to prevail in challenging the allocations provided by the operating agreement, the amount of income or loss allocated
to holders for U.S. federal income tax purposes could be increased or reduced or the character of allocated income or loss could be modified.
See “Material U.S. Federal Income Tax Considerations” included in our prospectus, dated August 2, 2022 and filed with
the SEC on August 4, 2022, for more information.
All
of our income could be subject to an entity-level tax in the United States, which could result in a material reduction in cash flow available
for distribution to shareholders and thus could result in a substantial reduction in the value our shares.
Given
the number of shareholders that we have, and because our shares are listed for trading on the over-the-counter market, we believe that
our company will be regarded as a publicly-traded partnership. Under the federal tax laws, a publicly-traded partnership generally will
be treated as a corporation for U.S. federal income tax purposes. A publicly-traded partnership will be treated as a partnership, however,
and not as a corporation for U.S. federal tax purposes so long as 90% or more of its gross income for each taxable year in which it is
publicly traded constitutes “qualifying income,” within the meaning of section 7704(d) of the Internal Revenue Code of 1986,
as amended, or the Code, and we are not required to register under the Investment Company Act. Qualifying income generally includes dividends,
interest (other than interest derived in the conduct of a lending or insurance business or interest the determination of which depends
in whole or in part on the income or profits of any person), certain real property rents, certain gain from the sale or other disposition
of real property, gains from the sale of stock or debt instruments which are held as capital assets, and certain other forms of “passive-type”
income. We expect to realize sufficient qualifying income to satisfy the qualifying income exception. We also expect that we will not
be required to register under the Investment Company Act.
In
certain cases, income that would otherwise qualify for the qualifying income exception may not so qualify if it is considered to be derived
from an active conduct of a business. For example, the IRS may assert that interest received by us from our subsidiaries is not qualifying
income because it is derived in the conduct of a lending business. If we fail to satisfy the qualifying income exception or is required
to register under the Investment Company Act, we will be classified as a corporation for U.S. federal (and certain state and local) income
tax purposes, and shareholders would be treated as shareholders in a domestic corporation. We would be required to pay federal income
tax at regular corporate rates on its income. In addition, we would likely be liable for state and local income and/or franchise taxes
on our income. Distributions to the shareholders would constitute ordinary dividend income (taxable at then existing ordinary income
rates) or, in certain cases, qualified dividend income (which is generally subject to tax at reduced tax rates) to such holders to the
extent of our earnings and profits, and the payment of these dividends would not be deductible to us. Shareholders would receive an IRS
Form 1099-DIV in respect of such dividend income and would not receive a Schedule K-1. Taxation of our company as a corporation could
result in a material reduction in distributions to our shareholders and after-tax return and would likely result in a substantial reduction
in the value of, or materially adversely affect the market price of, our shares.
The
present U.S. federal income tax treatment of an investment in our shares may be modified by administrative, legislative, or judicial
interpretation at any time, and any such action may affect investments previously made. For example, changes to the U.S. federal tax
laws and interpretations thereof could make it more difficult or impossible to meet the qualifying income exception for our company to
be classified as a partnership, and not as a corporation, for U.S. federal income tax purposes, necessitate that our company restructure
its investments, or otherwise adversely affect an investment in our shares.
In
addition, we may become subject to an entity level tax in one or more states. Several states are evaluating ways to subject partnerships
to entity level taxation through the imposition of state income, franchise, or other forms of taxation. If any state were to impose a
tax upon our company as an entity, our distributions to you would be reduced.
Complying
with certain tax-related requirements may cause us to forego otherwise attractive business or investment opportunities or enter into
acquisitions, borrowings, financings, or arrangements we may not have otherwise entered into.
In
order for our company to be treated as a partnership for U.S. federal income tax purposes and not as a publicly traded partnership taxable
as a corporation, we must meet the qualifying income exception discussed above on a continuing basis and must not be required to register
as an investment company under the Investment Company Act. In order to effect such treatment, we may be required to invest through foreign
or domestic corporations, forego attractive business or investment opportunities or enter into borrowings or financings we (or any of
our subsidiaries, as the case may be) may not have otherwise entered into. This may adversely affect our ability to operate solely to
maximize our cash flow. In addition, we may not be able to participate in certain corporate reorganization transactions that would be
tax free to our shareholders if we were a corporation for U.S. federal income tax purposes.
Non-corporate
investors who are U.S. taxpayers will not be able to deduct certain fees, costs or other expenses for U.S. federal income tax purposes.
We
will pay a management fee (and possibly certain transaction fees) to our manager. We will also pay certain costs and expenses incurred
in connection with activities of our manager. We intend to deduct such fees and expenses to the extent that they are reasonable in amount
and are not capital in nature or otherwise nondeductible. It is expected that such fees and other expenses will generally constitute
miscellaneous itemized deductions for non-corporate U.S. taxpayers who hold our shares. Under current law in effect for taxable years
beginning after December 31, 2017 and before January 1, 2026, non-corporate U.S. taxpayers may not deduct any such miscellaneous itemized
deductions for U.S. federal income tax purposes. A non-corporate U.S. taxpayer’s inability to deduct such items could result in
such holder reporting as his or her share of company taxable income an amount that exceeds any cash actually distributed to such U.S.
taxpayer for the year. U.S. holders of our shares that are corporations generally will be able to deduct these fees, costs and expenses
in accordance with applicable U.S. federal income tax law.
A
portion of the income arising from an investment in our shares may be treated as unrelated business taxable income and taxable to certain
tax-exempt holders despite such holders’ tax-exempt status.
We
expect to incur debt with respect to certain of our investments that will be treated as “acquisition indebtedness” under
section 514 of the Code. To the extent we recognize income from any investment with respect to which there is “acquisition indebtedness”
during a taxable year, or to the extent we recognize gain from the disposition of any investment with respect to which there is “acquisition
indebtedness,” a portion of that income will be treated as unrelated business taxable income and taxable to tax-exempt investors.
In addition, if the IRS successfully asserts that we are engaged in a trade or business for U.S. federal income tax purposes (for example,
if it determines we are engaged in a lending business), tax-exempt holders, and in certain cases non-U.S. holders, would be subject to
U.S. income tax on any income generated by such business. The foregoing would apply only if the amount of such business income does not
cause us to fail to meet the qualifying income test (which would happen if such income exceeded 10% of our gross income, and in which
case such failure would cause us to be taxable as a corporation).
A
portion of the income arising from an investment in our shares may be treated as income that is effectively connected with our conduct
of a U.S. trade or business, which income would be taxable to holders who are not U.S. taxpayers.
If
the IRS successfully asserts that we are engaged in a trade or business in the United States for U.S. federal income tax purposes (for
example, if it determines we are engaged in a lending business), then in certain cases non-U.S. holders would be subject to U.S. income
tax on any income that is effectively connected with such business. It could also cause the non-U.S. holder to be subject to U.S. federal
income tax on a sale of his or her interest in our company. The foregoing would apply only if the amount of such business income does
not cause us to fail to meet the qualifying income test (which would happen if such income exceeded 10% of our gross income, and in which
case such failure would cause us to be taxable as a corporation).
Risks
related to recently enacted legislation.
The
rules dealing with U.S. federal income taxation are constantly under review by persons involved in the legislative process and by the
IRS and the U.S. Treasury Department. No assurance can be given as to whether, when or in what form the U.S. federal income tax laws
applicable to us and our shareholders may be enacted. Changes to the U.S. federal income tax laws and interpretations of U.S. federal
income tax laws could adversely affect an investment in our shares.
We
cannot predict whether, when or to what extent new U.S. federal tax laws, regulations, interpretations or rulings will be issued, nor
is the long-term impact of recently enacted tax legislation clear. Prospective investors are urged to consult their tax advisors regarding
the effect of potential changes to the U.S. federal income tax laws on an investment in our shares.
Risks
Related to Ownership of Our Common Shares
We
may not be able to maintain a listing of our common shares on NYSE American.
Our
common shares are listed on NYSE American and we must meet certain financial and liquidity criteria to maintain the listing of our common
shares on NYSE American. If we fail to meet any listing standards or if we violate any listing requirements, our common shares may be
delisted. In addition, our board of directors may determine that the cost of maintaining our listing on a national securities exchange
outweighs the benefits of such listing. A delisting of our common shares from NYSE American may materially impair our shareholders’
ability to buy and sell our common shares and could have an adverse effect on the market price of, and the efficiency of the trading
market for, our common shares. The delisting of our common shares could significantly impair our ability to raise capital and the value
of your investment.
The
market price, trading volume and marketability of our common shares may, from time to time, be significantly affected by numerous factors
beyond our control, which may materially adversely affect the market price of your common shares, the marketability of your common shares
and our ability to raise capital through future equity financings.
The
market price and trading volume of our common shares may fluctuate significantly. Many factors that are beyond our control may materially
adversely affect the market price of your common shares, the marketability of your common shares and our ability to raise capital through
equity financings. These factors include the following:
| ● | actual
or anticipated variations in our periodic operating results; |
| ● | increases
in market interest rates that lead investors of our common shares to demand a higher investment
return; |
| ● | changes
in earnings estimates; |
| ● | changes
in market valuations of similar companies; |
| ● | actions
or announcements by our competitors; |
| ● | adverse
market reaction to any increased indebtedness we may incur in the future; |
| ● | additions
or departures of key personnel; |
| ● | actions
by shareholders; |
| ● | speculation
in the media, online forums, or investment community; and |
| ● | our
intentions and ability to maintain the listing our common shares on NYSE American. |
An
active, liquid trading market for our common shares may not be sustained, which may make it difficult for you to sell the common shares
you purchase.
We
cannot predict the extent to which investor interest in us will sustain a trading market or how active and liquid that market may remain.
If an active and liquid trading market is not sustained, you may have difficulty selling any of our common shares that you purchase at
a price above the price you purchase them or at all. The failure of an active and liquid trading market to continue would likely have
a material adverse effect on the value of our common shares. An inactive market may also impair our ability to raise capital to continue
to fund operations by selling securities and may impair our ability to acquire other companies or technologies by using our securities
as consideration.
Future
sales of common shares may affect the market price of our common shares.
We
cannot predict what effect, if any, future sales of our common shares, or the availability of common shares for future sale, will have
on the market price of our common shares. Sales of substantial amounts of our common shares in the public market, or the perception that
such sales could occur, could materially adversely affect the market price of our common shares and may make it more difficult for you
to sell your common shares at a time and price which you deem appropriate.
Rule
144 sales in the future may have a depressive effect on our share price.
All
of the outstanding common shares held by the present officers, directors, and affiliate shareholders are “restricted securities”
within the meaning of Rule 144 under the Securities Act of 1933, as amended, or the Securities Act. As restricted shares, these shares
may be resold only pursuant to an effective registration statement or under the requirements of Rule 144 or other applicable exemptions
from registration under the Securities Act and as required under applicable state securities laws. Rule 144 provides in essence that
a person who is an affiliate or officer or director who has held restricted securities for six months may, under certain conditions,
sell every three months, in brokerage transactions, a number of shares that does not exceed the greater of 1.0% of a company’s
outstanding common shares. There is no limitation on the amount of restricted securities that may be sold by a non-affiliate after the
owner has held the restricted securities for a period of six months if our company is a current, reporting company under the Exchange
Act. A sale under Rule 144 or under any other exemption from the Securities Act, if available, or pursuant to subsequent registration
of common shares of present shareholders, may have a depressive effect upon the price of the common shares in any market that may develop.
Our
series A senior convertible preferred shares and series B senior convertible preferred shares are senior to our common shares as to distributions
and in liquidation, which could limit our ability to make distributions to our common shareholders.
Holders
of our series A senior convertible preferred shares and series B senior convertible preferred shares are entitled to quarterly dividends,
payable in cash or in common shares, at a rate per annum of 14.0% of the stated value ($2.00 per share for our series A senior convertible
preferred shares and $3.00 per share for our series B senior convertible preferred shares), subject to adjustment. In addition, upon
any liquidation of our company or its subsidiaries, each holder of outstanding series A senior convertible preferred shares and series
B senior convertible preferred shares will be entitled to receive an amount of cash equal to 115% of the stated value, plus an amount
of cash equal to all accumulated accrued and unpaid dividends thereon (whether or not declared), before any payment shall be made to
or set apart for the holders of our common shares. This could limit our ability to make regular distributions to our common shareholders
or distributions upon liquidation.
We
may issue additional debt and equity securities, which are senior to our common shares as to distributions and in liquidation, which
could materially adversely affect the market price of our common shares.
In
the future, we may attempt to increase our capital resources by entering into additional debt or debt-like financing that is secured
by all or up to all of our assets, or issuing debt or equity securities, which could include issuances of commercial paper, medium-term
notes, senior notes, subordinated notes or shares. In the event of our liquidation, our lenders and holders of our debt securities would
receive a distribution of our available assets before distributions to our shareholders.
Any
additional preferred securities, if issued by our company, may have a preference with respect to distributions and upon liquidation,
which could further limit our ability to make distributions to our common shareholders. Because our decision to incur debt and issue
securities in our future offerings will depend on market conditions and other factors beyond our control, we cannot predict or estimate
the amount, timing or nature of our future offerings and debt financing.
Further,
market conditions could require us to accept less favorable terms for the issuance of our securities in the future. Thus, you will bear
the risk of our future offerings reducing the value of your common shares and diluting your interest in us. In addition, we can change
our leverage strategy from time to time without approval of holders of our common shares, which could materially adversely affect the
market share price of our common shares.
Our
potential future earnings and cash distributions to our shareholders may affect the market price of our common shares.
Generally,
the market price of our common shares may be based, in part, on the market’s perception of our growth potential and our current
and potential future cash distributions, whether from operations, sales, acquisitions or refinancings, and on the value of our businesses.
For that reason, our common shares may trade at prices that are higher or lower than our net asset value per share. Should we retain
operating cash flow for investment purposes or working capital reserves instead of distributing the cash flows to our shareholders, the
retained funds, while increasing the value of our underlying assets, may materially adversely affect the market price of our common shares.
Our failure to meet market expectations with respect to earnings and cash distributions and our failure to make such distributions, for
any reason whatsoever, could materially adversely affect the market price of our common shares.
Were
our common shares to be considered penny stock, and therefore become subject to the penny stock rules, U.S. broker-dealers may be discouraged
from effecting transactions in our common shares.
Our
common shares may be subject to the penny stock rules under the Exchange Act. These rules regulate broker-dealer practices for transactions
in “penny stocks.” Penny stocks are generally equity securities with a price of less than $5.00 per share. The penny stock
rules require broker-dealers that derive more than 5% of their customer transaction revenues from transactions in penny stocks to deliver
a standardized risk disclosure document that provides information about penny stocks, and the nature and level of risks in the penny
stock market, to any non-institutional customer to whom the broker-dealer recommends a penny stock transaction. The broker-dealer must
also provide the customer with current bid and offer quotations for the penny stock, the compensation of the broker-dealer and its salesperson
and monthly account statements showing the market value of each penny stock held in the customer’s account. The bid and offer quotations
and the broker-dealer and salesperson compensation information must be given to the customer orally or in writing prior to completing
the transaction and must be given to the customer in writing before or with the customer’s confirmation. In addition, the penny
stock rules require that prior to a transaction, the broker and/or dealer must make a special written determination that the penny stock
is a suitable investment for the purchaser and receive the purchaser’s written agreement to the transaction. The transaction costs
associated with penny stocks are high, reducing the number of broker-dealers who may be willing to engage in the trading of our common
shares. These additional penny stock disclosure requirements are burdensome and may reduce all the trading activity in the market for
our common shares. As long as our common shares are subject to the penny stock rules, holders of our common shares may find it more difficult
to sell their shares.
Holders
of our common shares may not be entitled to a jury trial with respect to claims arising under our operating agreement, which could result
in less favorable outcomes to the plaintiffs in any such action.
Our
operating agreement governing our common shares provides that, to the fullest extent permitted by law, holders of our common shares waive
the right to a jury trial of any claim they may have against us arising out of or relating to our operating agreement, including any
claim under the U.S. federal securities laws.
If
we opposed a jury trial demand based on the waiver, the court would determine whether the waiver was enforceable based on the facts and
circumstances of that case in accordance with the applicable state and federal law. To our knowledge, the enforceability of a contractual
pre-dispute jury trial waiver in connection with claims arising under the federal securities laws has not been finally adjudicated by
the United States Supreme Court. However, we believe that a contractual pre-dispute jury trial waiver provision is generally enforceable,
including under the laws of the State of Delaware, which govern our operating agreement, by a federal or state court in the State of
Delaware, which has non-exclusive jurisdiction over matters arising under the operating agreement. In determining whether to enforce
a contractual pre-dispute jury trial waiver provision, courts will generally consider whether a party knowingly, intelligently and voluntarily
waived the right to a jury trial. We believe that this is the case with respect to our operating agreement. It is advisable that you
consult legal counsel regarding the jury waiver provision before entering into the operating agreement.
If
you or any other holders or beneficial owners of our common shares bring a claim against us in connection with matters arising under
our operating agreement, including claims under federal securities laws, you or such other holder or beneficial owner may not be entitled
to a jury trial with respect to such claims, which may have the effect of limiting and discouraging lawsuits against us. If a lawsuit
is brought against us under our operating agreement, it may be heard only by a judge or justice of the applicable trial court, which
would be conducted according to different civil procedures and may result in different outcomes than a trial by jury would have, including
results that could be less favorable to the plaintiffs in any such action.
Nevertheless,
if this jury trial waiver provision is not permitted by applicable law, an action could proceed under the terms of the operating agreement
with a jury trial. No condition, stipulation or provision of the operating agreement serves as a waiver by any holder or beneficial owner
of our common shares or by us of compliance with the U.S. federal securities laws and the rules and regulations promulgated thereunder.