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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 12/22/22 Bakhu Holdings, Corp. S-1/A 12/21/22 1:918K Southridge Svcs Inc./FA |
Document/Exhibit Description Pages Size 1: S-1/A Bakhu Holdings Form S-1A HTML 889K
As filed with the Securities and Exchange Commission on December 21, 2022 |
No. 333-268581 |
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SECURITIES AND EXCHANGE COMMISSION |
Washington, D.C. 20549 |
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FORM S-1/A (Amendment No. 1) |
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
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BAKHU HOLDINGS, CORP. (Exact name of Registrant as specified in its charter) |
Nevada |
| 6794 |
| 26-0510649 | |
(State of Incorporation) |
| (Primary Standard Industrial Code) |
| (IRS Employee Identification No.) | |
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One World Trade Center, Suite 130, Long Beach CA 90831 | |||||
Telephone 858-682-2548 | |||||
(Address, including zip code and telephone number, including area code, of registrant’s principal executive offices) | |||||
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One World Trade Center, Suite 130, Long Beach CA 90831 | |||||
Telephone 858-682-2548 | |||||
(Name, address, including zip code and telephone number, including area code, of agent for service) | |||||
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Copies to: | |||||
George G. Chachas, Esq. | James R. Kruse, Esq. | ||||
J. Anthony Rolfe, Esq. | Kevin C. Timken, Esq. | ||||
Chachas Law Group P.C. | Michael Best & Friedrich LLP | ||||
11682 El Camino Real, Suite 110 | 170 South Main Street, Suite 1000 | ||||
858-925-6400 | 385-695-6450 | ||||
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As soon as practical after the effective date of this registration statement. | |||||
(Approximate date of commencement of proposed sale to the public) | |||||
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | o | Accelerated filer | o |
Non-accelerated filer | x | Smaller reporting company | x |
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| Emerging growth company | o |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
Calculation of Registration Fee | |||||||||
Title of each class of securities to be registered |
| Amount to be registered(1) |
| Proposed Maximum Offering Price Per Share(1) |
| Proposed Maximum Aggregate Offering Price (2) |
| Amount of registration fee | |
Common Stock, $0.001 par value |
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| 35,705,395 |
| $2.00 |
| $71,410,790 |
| $7,869.47 |
(1)In accordance with Rule 416(a), the securities being registered hereunder include such indeterminate number of additional securities as may be issuable to prevent dilution resulting from stock splits, stock dividends, or similar transactions.
(2)Estimated solely for the purpose of computing the amount of the registration fee in accordance with Rule 457(c) under the Securities Act of 1933, as amended, based upon the average of the high and low prices reported on the OTC Markets Pink Sheets as of November 22, 2022.
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant files a further amendment that specifically states that this registration statement will thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement becomes effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE This Amendment No. 1 to the Registration Statement on Form S-1of Bakhu Holdings Corp. (the “Company”) is filed to (i) disclose that the seller shareholders may sell the shares of common stock at a fixed price of $1.00, until our shares are listed on a national securities exchange or quoted on the OTC Bulletin Board, OTCQX, or OTCQB, at which time they may be sold at prevailing market prices, (ii) revise the signature page to include the signature of the principal accounting officer of the Company, (iii) and also update the relevance dates in the Preliminary Prospectus.. Other than the aforementioned, no other changes have been made to the Form S-1 |
A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold and offers to buy may not be accepted prior to the time the registration statement becomes effective. This prospectus will not constitute an offer to sell or the solicitation of an offer to buy, and these securities may not be sold, in any state in which such offer, solicitation, or sale would be unlawful before registration or qualification under the securities laws of that state.
PRELIMINARY PROSPECTUS
Subject to Completion, dated December 21, 2022
BAKHU HOLDINGS, CORP.
This prospectus covers the resale by selling stockholders of up to 35,705,395 shares of our common stock, $0.001 par value, including 35,132,060 shares to be sold by our affiliates.
We are not selling any shares of our common stock in this offering, and as a result, we will not receive any proceeds from the sale of the common stock covered by this prospectus. The net proceeds from the sale of our common stock will go to the selling stockholders.
The selling stockholders may sell shares of common stock from time to time at a fixed price of $1.00 per share, in private transactions, or as otherwise described under the heading “Plan of Distribution.” As such time as our common stock is listed on a national securities exchange or quoted on the OTC Bulletin Board, OTCQX, or OTCQB, the selling stockholders may sell the shares of common stock at prevailing market prices or in privately negotiated transactions or as otherwise described under the heading “Plan of Distribution.”
The selling stockholders may sell common stock directly or through brokers, dealers, or agents that may receive commissions or discounts from the selling stockholders. We will pay all the expenses incident to the registration of the shares; however, we will not pay for sales commissions or other expenses applicable to the sale of our common stock registered hereunder.
Our common stock is quoted on the Pink Sheets under the trading symbol “BKUH.” On November 22, 2022, the closing bid quotation for our common stock was $1.99 per share. These prices will fluctuate based on the demand for our common stock.
An investment in our common stock involves a high degree of risk. See “Risk Factors” beginning at page 8.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this Preliminary Prospectus is December 21, 2022.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) pursuant to the SEC’s registration rules for a delayed or continuous offering and sale of securities. Under the registration rules, using this prospectus and, if required, one or more prospectus supplements, the selling stockholders named herein may distribute the shares of common stock covered by this prospectus. This prospectus also covers any shares of common stock that may become issuable because of stock splits, stock dividends, or similar transactions. A prospectus supplement may add, update, or change information contained in this prospectus.
You should rely only on the information contained in this prospectus. We have not authorized any broker dealer, agents, salesperson, or other person to provide you with information concerning us, except for the information contained in this prospectus. The information contained in this prospectus is complete and accurate only as of the date on the front cover page of this prospectus, regardless of the time of delivery of this prospectus or sale of any common stock. This prospectus is not an offer to sell, and it is not a solicitation of an offer to buy, our common stock in any jurisdiction in which the offer or sale is not permitted.
This prospectus contains statements about the future, sometimes referred to as “forward-looking” statements. Forward-looking statements are typically identified by use of the words “believe,” “may,” “could,” “should,” “expect,” “anticipate,” “estimate,” “project,” “propose,” “plan,” “intend,” and similar words and expressions. Statements that describe our future strategic goals, plans, objectives, and predictions are also forward-looking statements. These forward-looking statements may relate to, among other things, trends affecting our financial condition or results of operations, our business and growth strategies, and our financing plans.
The forward-looking statements in this prospectus are based on present circumstances and on our predictions respecting events that have not occurred, that may not occur, or that may occur with different consequences from those we now assume or anticipate. Furthermore, the forward-looking statements involve various known and unknown risks, uncertainties, and other factors that may cause our actual results, performance, or achievements to be materially different from any future results, performance, or achievements expressed or implied by such forward-looking statements.
Important risks and factors that could cause our actual results to be materially different from our expectations are generally set forth in “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business,” and other sections in this prospectus, and include:
Risks Related to Ukrainian Crises
·Russia’s recent military invasion of Ukraine has caused significant international political and economic disruption that may adversely affect our operations.
Risks Related to our Business
·Our entire business relies on the commercial-scale validation of our licensed cell-extraction and replication technology, and we cannot predict when further work on this technology will be completed.
·Our licensed proprietary cannabinoid production technology has only been tested on a limited basis by related parties without qualified third-party replication.
·Our license from Cell Science may be terminated if we fail to meet certain covenants, which could adversely affect our commercialization program.
·We are obligated to pay Cell Science a one-time payment of $3.5 million.
·Our ability to attract and enter joint ventures, strategic alliances, or sublicenses with producers, distributors, and sellers is uncertain.
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·We cannot assure that we will be able to transfer the required technical know-how respecting our licensed technology to enable commercial partners to commercially produce cannabinoids at scale.
·Our long-term success will depend on the profitability of our commercialization arrangements, which we cannot control or predict.
·Others may challenge the validity and enforceability of the licensed patents, trade secrets, and related intellectual property.
·The markets for cannabinoid products may not grow at the rate projected by industry market data or at all and may be adversely affected by some reported local market product over-saturation.
·Consumers may consider our licensed technology to result in a genetically modified product or process.
·Subsequent clinical or laboratory research on the characteristics of cannabinoids or their effect on the human body could adversely affect public attitudes and consumer perception towards cannabinoids and, ultimately, the commercialization of our licensed technology.
·Third parties may refuse to do business with us if they perceive that we are too closely connected to the cannabis industry, with which they do not want to be associated.
·Our likely commercial partners operate in a growing industry as new states further legalize operations. With each new state opening or additional freedom to trade in states with existing current markets, there is significant capital requirement on our commercial partners. This is also a potentially distractive process for our partners.
Risks Related to Significant Regulation
·The activities of our potential commercial partners are highly regulated by extensive and complex federal and state regulatory regimes that make maintaining compliance difficult and challenging.
·We are subject to various state regulations governing the production, transportation, and sale of cannabinoids generally that can severely restrict our ability to execute our business plan.
·We cannot assure that state and local regulatory regime will accommodate our plant cell-extraction and replication cannabinoid production technology. This novel technology does not fall within existing regulatory parameters; it is novel. Each state regulator will need to create new parameters for this technology.
·Strict enforcement of federal laws regarding cannabis would likely severely restrict our ability to execute our business plan.
·Anticipated changes to federal laws and relaxation of regulatory restraints, including increased federal flexibility, may not materialize.
·We and our commercial partners may have difficulty accessing the services of banks, which may make it difficult to sell our products and services.
·We are subject to certain federal regulations relating to currency transactions.
·We are subject to risk of civil asset forfeiture.
·Our commercial partners may be subject to compliance with laws and regulations governing cannabis in foreign jurisdictions.
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·Prohibitions or restrictions from investing in, or transacting business with, companies in the cannabis industry may have an adverse effect on our operations.
·We may rely on foreign advisors and consultants respecting local legal, regulatory, or governmental requirements or business practices.
·There remains doubt and uncertainty that we will be able to legally enforce contracts.
·We would suffer severe penalties and other consequences if we or our agents are found to be in violation of the Foreign Corrupt Practices Act or anti-bribery laws.
·Our business may be adversely affected by the environmental regulations applicable to the businesses of our commercial partners.
·We will be subject to Federal Trade Commission and state regulation of business opportunities in connection with our commercialization activities.
Risks Related to our Company
·Certain of our officers and directors have been and are subject to substantial conflicts of interest in dealings with Cell Science and others.
·Our Code of Ethics may not apply or may be waived.
·The impact of the COVID-19 pandemic on our business, financial position, and results of operations continues to be unpredictable and will likely continue to have negative effects on our business and results of operations and commercialization of the licensed intellectual technology.
·The auditor’s reports for the years ended July 31, 2020 and 2021, contain explanatory paragraphs about our ability to continue as a going concern.
·We have identified material weaknesses in our internal control over financial reporting that may cause us to fail to meet our reporting obligations or result in material misstatements of our financial statements.
·We have a limited operating history and have not generated revenue since our inception.
·Our ability to successfully implement a commercialization strategy does not ensure our profitability.
·We are a smaller reporting company, which reduces our reporting obligations.
·Unsolicited takeover proposals may distract management and adversely affect our business.
·We rely on a small number of key personnel and consultants.
·We may incur product liability claims related to the application of the intellectual property we commercialize for cannabinoid production.
·Our business could be adversely impacted by failures or interruptions of information technology systems and potential cyber-attacks.
·Ongoing domestic and international financial conditions will adversely affect our business and operations, our prospective commercial partners, the cannabinoid industry, and the world generally.
·We cannot assure that we will be able to compete successfully.
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Risks Related to our Common Stock
·The market for our common stock is volatile, with extremely limited trading volume.
·We will continue to be controlled by our principal stockholders.
·We may issue common stock in the future, which may dilute a stockholder’s holdings in our company, including the investors in this offering, or have a negative effect on the market price of our stock.
·Limited trading volumes for our common stock may limit the ability of our stockholders to obtain liquidity.
·We do not anticipate paying dividends.
·The regulated nature of our business may impede or discourage a takeover.
Any forward-looking statements, including those regarding our management’s current beliefs, expectations, anticipations, estimations, projections, proposals, plans, or intentions, are not guarantees of future performance, results, or events and involve risks and uncertainties, such as those discussed in this prospectus. This prospectus also contains statistical, market, economic, and industry data we obtained from various publicly available government and industry publications and analyses, as well as our internal research and knowledge of our industry, all of which are typically based on numerous assumptions. If any one or more of the assumptions underlying this data is later found to be incorrect, actual results may differ from our projections based on these assumptions. In addition, the rapidly changing nature of our customers’ industries, preferences, and choices results in significant uncertainties in any projections or estimates relating to the growth prospects or future condition of our target markets. You should not place undue reliance on these forward-looking statements.
The forward-looking statements made in this prospectus relate only to events or information as of the date on which the statements are made in this prospectus. Except as required by law, we undertake no obligation to update or revise publicly any forward-looking statements, whether because of new information, future events, or otherwise, after the date on which the statements are made or to reflect the occurrence of unanticipated events. You should read this prospectus and the documents we refer to in this prospectus and have filed as exhibits to this prospectus completely and with the understanding that our actual future results may be materially different from or worse than what we expect.
These cautionary statements are intended to be applicable to all related forward-looking statements wherever they appear in this prospectus.
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Unless otherwise noted, references in this prospectus to “we,” “our,” or “us” means Bakhu Holdings, Corp. and our wholly owned subsidiary, CBD Biotech, Inc.
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This summary highlights information contained elsewhere in this prospectus. It does not contain all the information that you should consider before investing in our common stock. You should read the entire prospectus carefully, including the section entitled “Risk Factors” and our consolidated financial statements and the related notes.
Our Business
We intend to enter joint ventures, strategic alliances, sublicenses, or other agreements to commercialize cell-extraction and replication technology and related proprietary equipment, processes, and medium formulations to produce, manufacture, and sell cannabis-related byproducts exclusively in North America, Central America, and the Caribbean for medical, food additive, and recreational uses. Cannabis products contain cannabinoids, which are naturally occurring compounds found in the Cannabis sativa plant that principally include cannabidiol (CBD), which is generally associated with medical applications, and Tetrahydrocannabinol (THC), which is generally associated with recreational uses. We have a fully paid, royalty free license (our “License”) to this technology that we obtained pursuant to what we call our Integrated License Agreement with our direct and indirect controlling stockholder, Cell Science Holding Ltd. (“Cell Science”).
The Offering
The Issuer | Bakhu Holdings, Corp., a Nevada corporation
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Pink Sheets Symbol | BKUH
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Securities Offered and Manner of Offering | This prospectus relates to the offer and sale of up to 35,705,395 shares of our common stock by the selling stockholders, including 35,132,060 shares to be sold by our affiliates. The shares will be offered at a fixed price of $1.00 per share, in private transactions, or as otherwise described under the heading “Plan of Distribution”, until such time as our common stock is listed on a national securities exchange or quoted on the OTC Bulletin Board, OTCQX, or OTCQB, at which time the shares may be offered and sold at prices based on the prevailing public market for our stock, as negotiated in private transactions, or as otherwise described under the heading “Plan of Distribution,” directly or through agents or broker-dealers on behalf of the selling stockholders.
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Common stock outstanding | We have 301,182,983 shares of common stock issued and outstanding, excluding 12,418,085 and 15,000,000 shares of common stock reserved for issuance under options and warrants, with volume weighted average exercise prices of $3.10 and $3.00, respectively.
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Limited Market | Our stock is quoted in the Pink Sheets with very low volume and at varying prices. The availability of the securities offered pursuant to this prospectus may have an adverse effect on the market for our common stock.
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Use of Proceeds | We will not receive proceeds from the sale of our shares by the selling stockholders in this offering.
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Offering Costs | We will pay the offering costs in connection with this offering.
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Risk Factors | Investment in our common stock involves substantial risks. See “Risk Factors.”
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Our Filing Status as a Smaller Reporting Company
We are a “smaller reporting company,” meaning that we are not an investment company, an asset-backed issuer, or a majority-owned subsidiary of a parent company that is not a smaller reporting company and have a public float of less than $75 million and annual revenues of less than $50 million during the most recently completed fiscal year. As a smaller reporting company, the disclosures we will be required to provide in our SEC filings are less than they would be if we were not considered a smaller reporting company. Specifically, smaller reporting companies are able to provide simplified executive compensation disclosures in their filings, are exempt from the provisions of Section 404(b) of the Sarbanes-Oxley Act of 2002 requiring that independent registered public accounting firms provide an attestation on the effectiveness of internal control over financial reporting, and have certain other decreased disclosure obligations in their SEC filings, including, among other things, being permitted to provide two, rather than three, years of audited financial statements in annual reports. Decreased disclosures in our SEC filings due to our status as a smaller reporting company may make it harder for investors to analyze our results of operations and financial prospects.
Investment in our common stock involves significant risk. You should carefully consider the information described in the following risk factors, together with the other information appearing elsewhere in this prospectus, before making an investment decision regarding our common stock. If any of the events or circumstances described in these risks factors occur, our business, financial conditions, results of operations, and future growth prospects would likely be materially and adversely affected. In these circumstances, the market price of our common stock could decline, and you may lose all or a part of your investment in our common stock.
Risks Related to Ukrainian Crises
Russia’s recent military intervention in Ukraine and the international community’s response have created substantial political and economic disruption, uncertainty, and risk.
Russia’s military intervention in Ukraine in late February 2022, Ukraine’s widespread resistance, and the NATO led and United States coordinated economic, financial, communications, and other sanctions imposed by other countries have created significant political and economic world uncertainty and contributed to worldwide inflation. There is significant risk of expanded military confrontation between Russia and other countries, possibly including the United States. Current and likely additional international sanctions against Russia may contribute to higher costs, particularly for petroleum-based products. These and related actions, responses, and consequences that cannot now be predicted or controlled may contribute to worldwide economic reversals and inflation. In these circumstances, our efforts to commercialize our technology may be delayed or otherwise negatively impacted.
Risks Related to our Business
Our entire business relies on the commercial-scale validation of our licensed cell-extraction and replication technology.
Our ability to exploit our licensed cell-extraction and replication technology for the commercial production of cannabinoids through joint ventures, strategic partners, and sublicenses is conditional on satisfactory completion of ongoing process and product refinement and customization, which has not been funded. We cannot predict when or whether we will obtain necessary funding or complete our planned work. We cannot assure that the substantive results of our planned efforts will be accepted by prospective commercial partners. Our commercialization efforts will be dependent on our ability to convince prospective commercial partners that our licensed cell-extraction and replication technology warrants the required commitment of capital, expertise, and other resources in the face of related risks, regulatory hurdles, and competitive factors. Even after a successful completion of planned process and product refinement and customization, there will initially be no established commercially operating facility using this technology successfully to support our commercialization efforts. We cannot assure that any initial costs we incur will be recovered.
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We cannot accurately predict when planned further work on our licensed technology will be completed satisfactorily.
We cannot accurately predict when the planned further work related to our licensed technology, which we believe will accelerate our commercialization efforts, can be funded or completed. Any delay in obtaining required funding or completing the planned work could postpone the commencement of our commercialization efforts and our potential for revenue. Our planned laboratory work will require substantial financial, technical, and management resources that have not been arranged, so we cannot predict whether or when the required work will be completed. We expect that the foregoing will require us to obtain additional capital, which we cannot assure that we will be able to obtain on acceptable terms or at all. If required financing and planned work cannot be completed timely, we may have to abandon efforts involving the cell-extraction and replication technology for cannabinoid production and seek other business opportunities or suspend operations. Consequently, we would be unable to recover previous costs related to these abandoned activities. We have no other technology or know-how to exploit commercially.
Our licensed proprietary cannabinoid production technology has only been tested on a limited basis by related parties without qualified third-party replication.
To date the propriety technology that we have licensed has only been tested on a limited basis by our affiliates, Cell Science, which is also the licensor, and OZ Corporation, both of which benefit from favorable test results. Further, the testing was conducted by or under the supervision of Dr. Peter Whitton, the inventor of the licensed technology and our director, who will benefit substantially from the successful test that triggered the release of a large block of our common stock and a one-time payment required under the license agreement under which we acquired our rights. No qualified third party has independently replicated the entire process, results, processes, or procedures. Accordingly, we expect that prospective third-party investors, commercialization partners, investment bankers, and others will want to conduct their own independent tests to confirm the test results to date before transacting business with us. This requirement that potential commercial partners or others commit their own financial, technical, and management efforts to confirm the efficacy, reliability, and predictability of the proprietary technology may be a substantial barrier to commercialization.
Our license from Cell Science may be terminated if we fail to meet certain covenants, which could adversely affect our commercialization program.
Under the Integrated License Agreement through which we were granted our License, we remain obligated to pay certain patent prosecution and other intellectual property protection costs that could be substantial. We do not plan to establish or maintain any deposits or reserves to pay these costs. If we fail to meet these obligations, Cell Science could terminate our license. Under our Integrated License Agreement, Cell Science would then have the right to assume our position in any outstanding commercialization arrangements. If Cell Science assumes outstanding obligations, it would step into our position as commercial partner or sublicensee, precluding us from participating in further revenue from that relationship, notwithstanding our potential continuing liability for our obligations to commercial partners, or from further commercialization efforts. The possibility that Cell Science, a foreign entity, may assume our obligations to our commercial partners may be a risk to them that may have a material adverse effect on our commercialization efforts. If Cell Science refuses to assume our obligations under our commercialization arrangements, the rights of our commercial partners may be subject to dispute, which would likely result in claims for damages that our commercial partners would seek to recover from us. The existence of the right of Cell Science to terminate our license on which our commercialization arrangements will be based may be considered a substantial risk to potential commercial partners and correspondingly impair the success of our commercialization efforts.
We are obligated to pay Cell Science a one-time payment of $3.5 million.
We are required to pay Cell Science a one-time payment under a one-year note for $3.5 million due in January 2023. We currently do not have funds with which to pay this amount and have not arranged or obtained commitments for such funding from any source. Potential new providers of financing to the company may preclude or limit such payment from fresh funds.
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Our ability to attract and enter joint ventures, strategic alliances, or sublicenses with producers, distributors, and sellers is uncertain.
We will need to identify and attract qualified, interested third parties to commercialize our cell-extraction and replication technology for cannabinoid production. We cannot assure that we will be able to successfully enter any commercialization arrangement. We estimate that a new facility designed to produce about 5,000 pounds of dry plant-derived material per month using our licensed technology will require a capital investment of from $3.9 million to $4.6 million. We expect to encounter third-party reluctance to commit substantial capital to use our technology, which will at least initially be commercially untried by others. Accordingly, we cannot predict when or the pace at which we may be able to enter commercial arrangements to generate revenue. We may be forced to delay planned commercialization efforts, seek other commercialization strategies, or obtain additional capital to continue.
We cannot assure that we will be able to transfer the required technical know-how respecting our licensed technology to enable commercial partners to commercially produce cannabinoids.
Our licensed cell-extraction and replication technology for cannabinoid production is relatively sophisticated and complex and requires scientific expertise in sterile production facility plant construction and operation, particularly as compared to traditional open-grown, greenhouse, or hydroponic production. We cannot assure that the licensed technology transfer and consulting strategies we plan to develop and use will enable our potential commercial partners to produce cannabinoids reliably, economically, and competitively.
Our long-term success will depend on the profitability of our commercialization arrangements, which we cannot control or predict.
Our long-term success will depend on the success of our future commercial partners and their ability to construct and operate commercial cannabinoid production facilities, market their products competitively, and achieve an overall, sustainable profit. The degree of commercial success and profitability of our commercial partners will affect our success in attracting additional commercial partners and the economic terms of our third-party arrangements. We cannot assure that our commercial partners will be successful, which may incentivize us to adjust the terms of our existing or new arrangements to include terms less favorable to us.
Others may challenge the validity and enforceability of the licensed patents, trade secrets, and related intellectual property.
Our future success is dependent on the validity and enforceability of our licensed patents, trade secrets, intellectual property, and related rights. Unauthorized parties may attempt to replicate or otherwise obtain and use the licensed intellectual property granted to us. Policing the unauthorized use of our current or future rights to patents, trade secrets, intellectual property, or licensed rights and enforcing these rights against unauthorized use by others could be difficult, expensive, time-consuming, and unpredictable. Identifying unauthorized use of these rights is difficult because we may be unable to effectively monitor and evaluate whether products being distributed by our competitors were made using our technology, including parties such as unlicensed producers. In addition, in any infringement proceeding, some or all our trademarks, patents, other intellectual property rights, licensed rights, trade secrets or other proprietary know-how, or arrangements or agreements that we are seeking to protect may be found invalid, unenforceable, anticompetitive, or not infringed. An adverse result in any litigation or defense proceeding could put one or more of our trademarks, patents, other intellectual property, or licensed rights at risk of being invalidated or interpreted narrowly and could put existing intellectual property applications for patent protection at risk of not being issued. Any or all of these events could materially and adversely affect our business, financial condition, and results of operations.
In addition, other parties may claim that our products infringe on their proprietary and perhaps patent-protected rights. Such claims, whether meritorious or not, may subject us to significant financial and managerial costs and expenses, legal fees, injunctions, temporary restraining orders, or an award of damages. We may need to obtain licenses from third parties that allege that we have infringed on their lawful rights, which may not be available on terms acceptable to us or at all. In addition, we may not be able to use or obtain licenses or other rights for intellectual property that we do not own on terms that are favorable to us or at all.
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Under our Integrated License Agreement with Cell Science, we are obligated to defend the licensed technology against third-party infringement. Therefore, we may be obligated to incur substantial legal, expert witness, and related litigation costs in any litigation that may be involved, whether initiated by us or a third party. We cannot assure that we would be able to recover any costs incurred by us.
The markets for cannabinoid products may not grow at the rate projected by industry market data or at all.
We partially base our long-term business model on the anticipated growing demand for cannabis and cannabis-related products in North America, particularly in the United States, because of regulatory liberalization and growing social acceptance and use. We cannot assure that our projections, based on numerous assumptions and projected effects of future events, will materialize. Limitations or slowness in the increase of demand for cannabis and cannabis-related products in the United States would also limit our possible growth. We cannot predict the extent to which some reported local market saturation may affect us.
Consumers may consider our licensed technology will result in a genetically modified organism.
Some consumers may consider our laboratory plant-derived cell production method constitutes genetic modification and resist acceptance of cannabinoids produced by commercial partners.
Subsequent clinical or laboratory research on the characteristics of cannabinoids or their effects could adversely affect public attitudes and consumer perception towards cannabinoids and, ultimately, the commercialization of our licensed technology.
A variety of institutions worldwide are continuing clinical and laboratory research of the use and effects of cannabinoids. Research in the United States and internationally regarding the medical benefits, viability, safety, efficacy, and dosing of cannabis or isolated cannabinoids such as CBD and THC remains in relatively early stages. Future research, studies, and clinical trials may lead to conclusions that dispute or conflict with the current general understanding and belief regarding the medical or recreational benefits, viability, safety, efficacy, dosing, and social acceptance of cannabinoids and the demand for the products produced by our commercial partners.
We believe the cannabinoid industry is highly dependent upon consumer perception regarding the safety, efficacy, and quality of cannabis and related products distributed to consumers. Consumer perception of the products produced by commercial partners using our licensed technology can be significantly influenced by scientific research or findings, regulatory investigations, litigation, media attention, informal social media exchanges, and other publicity regarding the consumption or use of cannabinoid products. We cannot assure that future scientific research, reports, findings, regulatory proceedings, litigation, media attention, or other publicity will be favorable to the cannabis market or products or consistent with earlier publicity. Future research reports, findings, regulatory proceedings, litigation, media attention, informal social media exchanges, or other publicity that is perceived as less favorable than, or that questions, earlier research reports, findings, or publicity could have a material adverse effect on the demand for use of the licensed technology and consequently, our business, results of operations, financial condition, and cash flows. Negative publicity or public opinion may adversely affect consumer demand for cannabinoids produced and sold by our commercial partners, which would also adversely affect our ability to establish new commercial relationships that generate royalty revenues from commercial partners or sublicensees. In turn, these adverse effects would have an adverse impact on our business, results of operations, financial condition, and cash flows.
Unfavorable publicity or other media attention regarding the safety, efficacy, and quality of cannabis and related products produced using the licensed technology or associating the consumption of cannabis or related products with illness or other negative effects or events could also have such a material adverse effect. Negative publicity or other media attention could arise even if the adverse effects associated with such products resulted from a commercial partner’s failure to use the licensed technology correctly or a consumer’s failure to consume or use the products appropriately or as directed. The increased usage of social media and other web-based tools to generate, publish, and discuss user-generated content and to connect with other users has made it significantly easier for individuals and groups to communicate and share opinions and views about us, our activities, or our licensed technology, whether true or not. Although we intend to operate in a manner that will be respectful to all stakeholders and protect our image and reputation, we will not be able to control how we are perceived by others. Reputational
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loss may result in decreased investor confidence, increased challenges in developing and maintaining community relations, and impediment to our overall ability to advance our projects, thereby having a material adverse effect on our financial performance, financial condition, cash flows, and growth prospects.
Third parties may refuse to do business with us if they perceive that we are too closely connected to the cannabis industry.
Although we do not cultivate, produce, manufacture, or sell cannabis-derived products, some firms with which we may want to transact business may find the cannabis industry generally objectionable or determine that they are exposed to reputational risk because they perceive that we are too closely connected to the cannabis industry. As a result, these firms may refuse to deal with us. Failure to establish or maintain business relationships in general could have a material adverse effect on us.
Our connection to the retail cannabis industry may impair our access to the large and lucrative pharmaceutical/biotechnology sector in due course.
Securities broker-dealers, clearing firms, and others in the financial services industry may refuse to handle securities transactions in our stock because of our connections with the cannabis industry.
Risks Related to Significant Regulation
The activities of our potential commercial partners are highly regulated by extensive and complex federal and state regulatory regimes that make maintaining compliance difficult and challenging.
The commercial cannabis industry is a relatively new industry, and we anticipate that regulations will constantly be changing as the federal government and each state monitors the applicable regulatory regime and commercial activity. Our commercial partners will be subject to a variety of laws, regulations, and guidelines relating to the production, manufacturing, management, transportation, disposal, storage, distribution, sales, use, health, and safety of cannabis and derived products and byproducts as well as laws and regulations relating to drugs, controlled substances, health, and safety. In addition, publicly held cannabinoid producers may be subject to other federal and state securities laws and the rules and regulations of self-regulatory organizations such as the exchanges on which their securities are traded.
Laws, regulations, and guidelines generally applicable to the cannabis industry domestically and internationally may change in unforeseen ways. New laws and changes to existing laws or regulatory regimes may adversely affect our commercial partners directly and us indirectly. Regulatory changes could reduce demand for cannabis-derived products and byproducts, which would decrease the potential success of our commercialization efforts, the profitability of potential strategic partners or sublicensees, and the potential for revenue to us, which would adversely affect our financial condition, results of operations, and prospects.
Amendments to current laws, regulations, and permitting requirements, or more stringent application of existing laws or regulations, may have a material adverse effect on our commercial partners or us and our business, resulting in increased capital expenditures or production costs, reduced levels of production, or abandonment or delays in the development of facilities.
Our ability to commercialize our technology will depend on the compatibility of our plant cell-extraction and replication technology with current regulatory regimes designed to regulate live-grow plant production and the predictability of the nature and extent of further regulation. Further, our business will depend on the ability of our commercial partners to maintain compliance with these laws, regulations, and interpretative and enforcement policies. Delays by our commercial partners in obtaining or failing to obtain and maintain the requisite regulatory approvals may significantly delay or negatively impair our commercialization program.
We may incur ongoing costs and obligations related to regulatory compliance or assisting our commercial partners in their regulatory compliance. Failure to comply with applicable laws and regulations could result in regulatory or agency proceedings, investigations, and enforcement actions, including orders causing operations to cease or be curtailed and levying damage awards, fines, penalties, or corrective measures, all of which would require unanticipated capital expenditures or remedial actions. Parties may be liable for civil or criminal fines or penalties
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imposed for violations of applicable laws or regulations. The outcome of any regulatory or agency proceedings, investigations, audits, and enforcement actions could harm our commercial partners directly and us indirectly.
We are subject to various state regulations governing the production, transportation, and sale of cannabinoids generally that can severely restrict our ability to execute our business plan.
States that permit the production, transportation, and sale of cannabinoids for either medicinal or recreational purposes have adopted a comprehensive regulatory and taxation regime. The state regulations generally impose stringent record keeping, compliance, reporting, and taxation requirements. State enforcement of applicable laws, regulations, and administrative policies can result in sanctions, fines, license termination and other sanctions against companies producing, transporting, or selling cannabinoids, State compliance requirements will directly apply to our strategic partners and will indirectly require us to adopt compatible policies and practices.
We cannot assure that state and local regulatory regimes will accommodate our plant cell-extraction and replication cannabinoid production technology.
We cannot assure that state and local cannabinoid regulatory regimes that are based on plant live-grow production are compatible with our plant cell-extraction and replication technology. We anticipate that we will need to address the regulatory regimes in each state and local jurisdiction to assure that it is compatible with and will accommodate our plant cell-extraction and replication production technology. Further, we cannot assure that any necessary changes in laws, regulations, or administrative policies or interpretations will be adopted or implemented. Accordingly, we may be limited in or prohibited from establishing commercial partners in certain states.
Strict enforcement of federal laws regarding cannabis would likely severely restrict our ability to execute our business plan.
In the United States, cannabis is largely regulated at the state level. Currently, in the United States, 37 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands have legalized medical cannabis, and 18 states, in addition to the District of Columbia, the Commonwealth of the Northern Mariana Islands, and Guam, have legalized cannabis for recreational purposes or “adult-use.” Notwithstanding the permissive regulatory environment of cannabis at the state level, cannabis continues to be categorized as a controlled substance under the Controlled Substances Act of 1970 (the “CSA”) and as such, cultivation, distribution, sale, and possession of cannabis violates federal law in the United States. The inconsistency between federal and state laws and regulations is a major risk factor. Even in those jurisdictions in which the manufacture and use of medical cannabis has been legalized at the state level, the interstate production, transportation, possession, sale, and use of cannabis remain violations of federal law that are punishable by imprisonment, substantial fines, and forfeiture. Our commercial partners will be directly subject to these laws and regulations. Companies that are not engaged directly in the cultivation, production, manufacturing, or sale of cannabis or cannabis-derived products nevertheless may violate federal law if they intentionally aid and abet another in violating these federal controlled substance laws. Therefore, strict enforcement of federal laws regarding cannabis would likely result in our inability and the inability of our commercial partners to execute our respective business plans.
Anticipated relaxation of regulatory restraints may not materialize.
Currently, the market for THC cannabinoids in the United States is severely restricted by the federal regulatory position listing cannabis as a Schedule I controlled substance, which prohibits cannabis in interstate commerce, with attendant secondary and tertiary adverse effects. Accordingly, intrastate production, transportation, and sale of cannabis and cannabis-related products are regulated on a state-by-state basis. Although in recent years several states have changed their laws to legalize and tax cannabis and cannabis-related products for medical or recreational use, we cannot predict whether this trend will continue or whether the federal government will take similar action. We expect the disparity between federal and state cannabis legalization and regulation will continue. The continuation of the current regulatory regime may limit the commercialization of our licensed technology.
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The Rohrabacher-Farr Amendment may not be renewed.
The Rohrabacher–Farr amendment (also known as the Rohrabacher–Blumenauer amendment) prohibits the U.S. Department of Justice (“DOJ”) from spending funds appropriated by Congress to enforce the tenets of the CSA against the medical cannabis industry in states that have legalized such activity. On March 15, 2022, the amendment was renewed through the signing of the fiscal year 2022 omnibus spending bill and will be effective through October 31, 2022. We cannot assure that the federal government will not seek to prosecute cases involving medical cannabis businesses that are otherwise compliant with state law. Potential proceedings could involve significant restrictions being imposed upon us or our commercial partners, which could have a material adverse effect on us.
We and our commercial partners may have difficulty accessing the services of banks, which may make it difficult to sell our products and services.
Federal and federally insured state banks currently do not do business with companies that grow and sell cannabis products on the stated ground that growing and selling cannabis is illegal under federal law. Financial transactions involving proceeds generated by cannabis-related activities can form the basis for prosecution under certain federal statutes, including the BSA. Guidance issued by the Financial Crimes Enforcement Network, a division of the U.S. Department of the Treasury, clarifies how financial institutions can provide services to cannabis-related businesses consistent with their obligations under the BSA. Furthermore, supplemental guidance from the DOJ directs federal prosecutors to consider the enforcement priorities enumerated in the so-called “Cole Memo,” issued on August 29, 2013, under the Obama Administration, when determining whether to charge institutions or individuals with any of the financial crimes based upon cannabis-related activity. However, in January 2018, under the Trump Administration, the DOJ issued a policy memorandum on federal marijuana enforcement announcing a return to the rule of law and rescinding previous guidance documents, including the Cole Memorandum. In this memorandum, Attorney General Jeff Sessions directed U.S. Attorneys to determine whether to pursue prosecution of cannabis activity based upon the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of crimes on the community. In his February 2021 congressional testimony, then-nominee for U.S. Attorney General, Merrick Garland, stated that he would reinstitute a version of the Cole Memorandum and reiterated the statement that the Justice Department under his leadership would not pursue cases against Americans “complying with the laws in states that have legalized and are effectively regulating marijuana,” in written responses to the Senate Judiciary Committee. However, to date, the DOJ has not taken any formal steps respecting this matter. Therefore, banks remain hesitant to offer banking services to cannabis-related businesses, which continue to encounter difficulty accessing banking services. We cannot assure that we will be able to avoid being considered by financial institutions to be engaged in the cannabis industry, which would adversely affect our banking relationships. Our inability to maintain bank accounts would make it difficult for us to operate our business, increase our operating costs, and pose additional operational, logistical, and security challenges that could result in our inability to implement our business plan.
We are subject to certain federal regulations relating to currency transactions.
The BSA requires us to report currency transactions of over $10,000, including identification of the customer by name and social security number, to the IRS. This regulation also requires us to report certain suspicious activity, including any transaction that exceeds $5,000 that we know, suspect, or have reason to believe involves funds from illegal activity or is designed to evade federal regulations or reporting requirements, and to verify sources of funds. We may be pressured by commercial partners to accept cash payments in view of the federal regulation of banks that restricts commercial partners’ access to banks. If we fail to comply with these laws and regulations, the imposition of substantial penalties could have a material adverse effect on our business, financial condition, and results of operations. Increasingly, foreign jurisdictions in which we may do business have similar regulatory regimes.
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We are subject to risk of civil asset forfeiture.
Because the cannabis industry remains illegal under U.S. federal law, any property owned by participants in the cannabis industry that is either used in conducting such business, or was obtained with the proceeds of such business, could be subject to seizure by law enforcement and subsequent civil asset forfeiture. Even if the owner of the property is never charged with a crime, the property in question could still be seized and subject to an administrative proceeding by which, with minimal due process, it could be subject to forfeiture.
Our commercial partners may be subject to compliance with laws and regulations governing cannabis in foreign jurisdictions.
Our ability to commercialize our licensed technology in foreign jurisdiction within our licensed territory may be contingent, in part, upon our prospective commercial partners obtaining approval and complying with applicable regulatory requirements enacted by those governmental authorities. We cannot predict the effect to our business of foreign compliance regulations on our commercial partners in producing and manufacturing cannabinoids, the length of time to secure appropriate regulatory approvals to use our licensing technology and process, or the extent of testing and documentation that may be required in those jurisdictions. Delays in obtaining, or failing to obtain, regulatory approvals may negatively affect the development of commercialization arrangements with these partners and could have a material adverse effect on our business, financial condition, results of operations, and prospects.
We anticipate that both we and our commercial partners will incur ongoing costs and obligations related to regulatory compliance. Failure by us or our commercial partners to comply with regulations may result in additional costs for corrective measures, penalties, or restrictions on our operations. In addition, changes in regulations, more vigorous enforcement thereof, or other unanticipated events could require extensive changes to our operations, increase compliance costs, or give rise to material liabilities, which could have a material adverse effect on our business, financial condition, results of operations, and prospects.
Prohibitions or restrictions from investing in, or transacting business with, companies in the cannabis industry may have an adverse effect on our operations.
Certain jurisdictions may prohibit or restrict their citizens or residents from investing in, or transacting business with, companies involved in the cannabis industry, even if such companies only conduct business in jurisdictions where cannabis is legal, or the companies are not directly engaged in the cultivation, production, manufacturing, or sale of cannabis-derived products. Similar prohibitions or restrictions may apply in other jurisdictions where cannabis has not been legalized. In the United States, there have been certain instances of the U.S. Customs and Border Protection preventing citizens of foreign countries from entering the United States for reasons related to the cannabis industry.
We may rely on foreign advisors and consultants respecting local legal, regulatory, or governmental requirements or business practices.
The legal and regulatory requirements in the foreign countries in which we may operate respecting the cultivation, production, manufacturing, and sale of cannabis and cannabis-related products by our intended commercial partners, as well as banking systems and controls and local business culture and practices, are different from those in the United States. Although members of our management may have previous experience working and conducting business in these countries, we may retain and rely on local consultants, advisors, legal counsel, and other expert professionals to keep apprised of legal, regulatory, and governmental developments as they pertain to our business, banking, financing, labor, litigation, and tax matters in these jurisdictions. Any changes in the local legal, regulatory, or governmental requirements or business practices are beyond our control and may adversely affect our business, financial condition, and results of operations.
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There remains doubt and uncertainty that we will be able to legally enforce contracts.
It is a fundamental principle of law that a contract will not be enforced if it involves a violation of law or public policy. Because cannabis remains illegal at a federal level, judges in multiple U.S. states have on several occasions refused to enforce contracts relating to the cannabis industry, including for the repayment of money when the loan was used in connection with activities that violate federal law, even if there is no violation of state law. There remains doubt and uncertainty that we will be able to legally enforce contracts we enter, if necessary. We cannot assure that we will have a remedy for breach of contract, which could have a material adverse effect on our business, revenues, operating results, financial condition, and prospects.
We would suffer severe penalties and other consequences if we or our agents are found to be in violation of the Foreign Corrupt Practices Act or anti-bribery laws.
Our business is subject to U.S. laws that generally prohibit companies and personnel from engaging in bribery or other prohibited payments to foreign officials for the purpose of obtaining or retaining business. In addition, we are subject to the anti-bribery laws of any other countries in which we may conduct business. Even though our policies and procedures mandate compliance with these anti-corruption and anti-bribery laws, our personnel or other agents may, without our knowledge and despite our efforts otherwise, engage in prohibited conduct for which we may be held responsible. We cannot assure that our internal control policies and procedures will always protect us from recklessness, fraudulent behavior, dishonesty, or other inappropriate acts committed by our affiliates, personnel, contractors, or agents. If our personnel or other agents are found to have engaged in such practices, we could suffer severe penalties and other consequences that may have a material adverse effect on our business, financial condition, and results of operations.
Our business may be adversely affected by the environmental regulations applicable to the businesses of our commercial partners.
We do not anticipate that our future business activities will subject us to any direct environmental compliance regulations. However, the operations of our commercial partners may be subject to environmental regulation in the various jurisdictions in which they operate. These regulations may mandate, among other things, the maintenance of air and water quality standards and land reclamation. They also set forth limitations on the generation, transportation, storage, and disposal of solid and hazardous waste. The processes and media formulations that are parts of our licensed technology must be applied, used, and discarded in accordance with these requirements. Environmental legislation is evolving in a manner that may require stricter standards and enforcement, increased fines and penalties for noncompliance, more stringent environmental assessments of proposed projects, and a heightened degree of responsibility for companies and their officers, directors, and employees. We cannot assure that future changes in environmental regulation, if any, will not adversely affect the operations of a commercial partners or sublicensees, which in turn will affect our operations.
Government approvals and permits are currently and may in the future be required in connection with the operations of our commercial partners. To the extent such approvals are required and not obtained, our commercial partners may be curtailed or prohibited from production of adult-use or medical cannabis-related products, delaying the development of our operations as currently proposed.
Failure to comply with applicable environmental laws and regulations could subject our commercial partners to regulatory or agency proceedings or investigations and may result in enforcement actions thereunder, including orders issued by regulatory or judicial authorities causing operations to cease or be curtailed, and may include damage awards, fines, penalties, or corrective measures requiring capital expenditures or remedial actions. Our commercial partners may be required to compensate those suffering loss or damage by reason of their operations using our technology and civil or criminal fines or penalties may be imposed for violations of applicable laws or regulations. These events would negatively impact our operations.
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We will be subject to Federal Trade Commission and state regulation of business opportunities in connection with our commercialization activities.
We must comply with regulations adopted by the U.S. Federal Trade Commission (the “FTC”) and several state laws that regulate the offer and sale of business opportunities. The FTC and certain state laws require that we furnish prospective commercial partners with a business opportunity disclosure document containing information prescribed by applicable FTC and state laws, rules, and regulations, including, for example:
·whether legal action has ever been taken against us;
·whether there is a cancellation or refund policy for the business transaction;
·any claims that a commercialization partner will earn a specific amount of money through the business opportunity; and
·references for our company.
We cannot assure that any disclosure document that we use will comply with the FTC rules and applicable state disclosure requirements. Our failure to meet applicable business opportunity requirements may expose us to regulatory sanctions, civil liability to commercial partners, and business interruptions while we bring disclosure into regulatory compliance.
Risks Related to our Company
Certain of our officers and directors have been and are subject to substantial conflicts of interest in dealings with Cell Science and others.
Since 2018 until very recently, a majority or all of our directors were or are also affiliates of Cell Science, the licensor of the intellectual property on which our business activities are based, and its affiliates. Accordingly, the terms of the following were not the result of arm’s-length negotiations:
·the Integrated License Agreement;
·the July 2021 reduction in the technical requirements of the efficacy demonstration and the agreement to accept test results to date as warranting release from cancellation of 184,000,000 shares issued under the Integrated License Agreement and the amount of the credits to reduce the amount of the one-time payment note;
·the terms of our office sharing agreement;
·the ownership of improvements to the licensed technology;
·the amounts and repayment terms of certain intercorporate advances; and
·other interpretation and administrative decisions.
These conflicting interest transactions directly and indirectly benefited the affiliates of the directors with a conflict of interest. These conflicts are likely to continue. We do not have policies or procedures in place to resolve any conflicts of interest in our favor. We have no governance policy to preclude or limit decisions with related parties.
Our Code of Ethics may not apply or may be waived.
We have adopted a Code of Ethics that requires our board of directors to refrain from approving any transaction that is not in our best interests and is not on terms at least as favorable to us as could be obtained as a result of arm’s-length negotiations between unrelated parties in a similar situation. We have not adopted any other policy respecting decisions involving conflicts of interest and cannot assure that any such issues will be resolved in our favor. We cannot assure that the Code of Ethics has or will apply to all potential conflicts or that its provisions will not be waived.
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The impact of the COVID-19 pandemic on our business, financial position, and results of operations continues to be unpredictable and will likely continue to have negative effects on our business and results of operations and commercialization of the licensed intellectual technology.
The impacts of the COVID-19 pandemic continue to be highly unpredictable and volatile in the light of the potential for a resurgence of infection rates or because of future mutations, variants, or related strains of the virus. Recent years have demonstrated the widespread and varying impacts of the pandemic on certain business operations, costs of doing business, supply chain operations, the extent and duration of measures to try to contain the virus (such as travel bans and restrictions, quarantines, shelter-in-place orders, business and government shutdowns, and other restrictions on retailers), and our ability to predict future performance, among other things.
For us, the COVID-19 pandemic substantially delayed efforts to test the commercial efficacy of our licensed technology and resulted in additional costs and delays. These costs and delays continue as we proceed with our engineering and commercialization efforts.
The duration and magnitude of the impacts from the COVID-19 pandemic impacts on our business operations and overall financial performance are unknown at this time and will depend on numerous circumstances outside our control or the ability of anyone to predict accurately. The secondary and tertiary unpredictable adverse economic effects on our business and on the worldwide economy are proving to be ongoing and broad. There are high probabilities of reoccurring widespread or localized outbreaks of existing new virus strains that may continue for many months, that may result in further government-ordered vaccination mandates, lockdowns, stay-home or shelter-in-place orders, social distancing, restrictions on travel, and other extensive measures. Government-approved vaccines have not been accepted by some people and are not widely available in all countries. Effective treatments for those infected by the virus are not always reliable, may not be widely available, and may not be widely accepted. We cannot predict the effect of these circumstances on us and our vendors, suppliers, and potential commercial partners, the global economy and political conditions, and the health of our personnel, consultants, and their families, all of which will affect how quickly and to what extent normal economic and operating activities can resume.
Even if the COVID-19 pandemic subsides, we may continue to experience an adverse effect on our business because of its global economic impact, labor shortages, and supply chain disruptions, as well as the prospect of inflation or a recession. These circumstances will likely exert similar hardships on those with which we deal, such as vendors, shippers, distributors, and potential commercial partners. As a result, we will need to continue to adjust our business and expenditures to correlate our activities with business exigencies, including restrictions on executive and employee travel, hiring freezes or delays, and limitations on marketing. The ultimate financial impact and duration of the foregoing cannot now be predicted and may well exceed our expectations or our ability to cope with them.
The auditor’s reports for the years ended July 31, 2021 and 2020, contain explanatory paragraphs about our ability to continue as a going concern.
We have not generated revenue and have limited capital. We have incurred losses since inception resulting in an accumulated deficit of $20,880,418 as of July 31, 2021. Our auditor stated in its report on our audited financial statements that it has substantial doubt that we will be able to continue as a going concern without further financing. Our ability to continue as a going concern is dependent upon our ability to successfully accomplish our business plan and eventually attain profitable operations and to obtain acceptable financing in the interim period.
We anticipate that any additional funding that we obtain will be in the form of equity financing from the sale of our common stock or debt. However, we cannot assure that we will be able to raise sufficient funding from the sale of our common stock or be able to obtain debt financing. The risky nature of our business enterprise and our lack of revenue may place debt financing beyond the creditworthiness required by most banks or typical investors in corporate debt until such time as we generate recurring revenue from technology commercialization. We do not have any arrangements for any future equity financing. If we are unable to secure additional funding, we will cease or suspend operations. We have no plans, arrangements, or contingencies in place if we cease operations.
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We have identified material weaknesses in our internal control over financial reporting that may cause us to fail to meet our reporting obligations or result in material misstatements of our financial statements.
Our management, which is responsible to establish and maintain internal control over financial reporting, has concluded that our internal controls and procedures were not effective due to the following material weaknesses:
•lack of appropriate segregation of duties;
•lack of control procedures that include multiple levels of supervision and review; and
•lack of full-time executive personnel to oversee financial reporting and controls.
Because of these factors, we have failed to: (i) maintain records that in reasonable detail accurately and fairly reflect our transactions; (ii) provide reasonable assurance that transactions are recorded as necessary for preparation of our financial statements in accordance with generally accepted accounting principles in the United States (“GAAP”) and the receipts and expenditures of company assets are made and in accordance with our management and directors authorization; and (iii) provide reasonable assurance regarding the prevention or timely detection of unauthorized acquisition, use, or disposition of assets that could have a material effect on our financial statements. As a result of these weaknesses, we were unable to file timely our Annual Report on Form 10-K for the year ended July 31, 2021, and have amended our quarterly reports on Form 10-Q for the fiscal quarters ended October 31, 2020, January 31, 2021, and April 30, 2021, and our Annual Report on Form 10-K for the year ended July 31, 2021, to correct the initial filings or add omitted information. We have not implemented curative measures to address these weaknesses.
We have a limited operating history.
We were incorporated in 2008 but had little or no activity until we obtained license rights to cell-extraction and replication technology for commercial cannabinoid production in late 2018. However, we have not completed required planned engineering, so we have not commenced commercialization in this technology to generate revenue. Therefore, we are subject to the risks common to early-stage enterprises, including undercapitalization, few personnel, limited financial and other resources, and lack of revenues. We cannot assure that we will be successful in achieving a return on our stockholders’ investments. Our likelihood of success must be considered in the light of our early stage of operations.
We have not generated any revenue since our inception, and we may never achieve profitability.
We are a development-stage company that has not generated any revenue. If the planned product refinement and customization meets the requirements of prospective partners so we can launch our commercialization effort, our expenses are expected to increase significantly before we can begin generating revenue. Even as we begin to market and commercialize our licensed technology, we expect our losses to continue because of ongoing sales and marketing expenses, technology transfer costs, research and development, and other operational matters. These losses, among other things, have had and will continue to have an adverse effect on our working capital, total assets, and stockholders’ equity. Because of the numerous risks and uncertainties that we will encounter, we are unable to predict if or when we will become profitable. Even if we do achieve profitability, we may not be able to sustain or increase profitability on a quarterly or annual basis. If we are unable to achieve and then maintain profitability, our business, financial condition, and results of operations will be negatively affected, and the market value of our common stock will likely decline.
Our ability to successfully implement a commercialization strategy does not ensure our profitability.
We cannot assure that our strategy of commercializing our technology through third-party cannabinoid producers, even if we enter several or multiple arrangements, will generate sufficient revenue to meet related costs and result in a profit. We will incur operating costs in marketing our technology, completing commercialization arrangements, providing technical and operational support to our commercial partners, and otherwise operating our business. We cannot assure that our revenue will offset these costs. We may not be profitable.
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We are a smaller reporting company, which reduces our reporting obligations.
We are currently a “smaller reporting company,” meaning that we are not an investment company, an asset-backed issuer, or a majority-owned subsidiary of a parent company that is not a smaller reporting company, and we have a public float of less than $3.5 million and had annual revenues of less than $50.0 million during the most recently completed fiscal year. Because we are a smaller reporting company, the disclosure required in our SEC filings is less than it would be if we were not considered to be a smaller reporting company. Specifically, smaller reporting companies are able to provide simplified executive compensation disclosures in their filings, are exempt from the provisions of Section 404(b) of the Sarbanes-Oxley Act requiring that independent registered public accounting firms provide an attestation on the effectiveness of internal control over financial reporting, are required to provide only two years of audited financial statements in annual reports, and have certain other decreased disclosure obligations in their SEC filings. Decreased disclosures in our SEC filings due to our status as a smaller reporting company may make it harder for investors to analyze our results of operations and financial prospects.
Unsolicited takeover proposals may distract management and adversely affect our business.
The review and consideration of any takeover proposal may be a significant distraction for our management and personnel and could require the expenditure of significant time and resources by us. Moreover, any unsolicited takeover proposal may create uncertainty for our personnel that may adversely affect our ability to retain key personnel and to hire new talent. Management and employee distractions related to any such takeover proposal also may adversely impact our ability to optimally conduct our commercialization program and otherwise advance our business and pursue our strategic objectives. An unsolicited takeover proposal may also create uncertainty for our commercial partners, suppliers, and other business partners, which may cause them to terminate, or not to renew or enter, arrangements with us. The uncertainty arising from unsolicited takeover proposals and any resulting costly litigation may disrupt our business, which could result in an adverse effect on our business, financial condition, and results of operations.
We rely on key personnel and consultants.
Our success is dependent upon the ability, expertise, judgment, discretion, and good faith of our executive management and consultants and our ability to continue to attract, develop, motivate, and retain highly qualified and skilled personnel and consultants. We rely on scientific advice from Dr. Peter Whitton, the inventor of the cell-extraction and replication technology on which our business is based, who has numerous other commitments and demands on his attention. Qualified, experienced individuals and cannabis industry consultants, such as our principal technical consultant, are in high demand, and we may incur significant costs to engage them. The loss of the services of our executive management or consultants, or an inability to attract other suitably qualified persons when needed, could have a material adverse effect on our ability to execute our business plan and strategy, and we may be unable to find adequate replacements on a timely basis or at all. We have no key-man life insurance on any of our employees or consultants.
We may incur product liability claims related to the application of the intellectual property we commercialize for cannabinoid production.
Our potential commercial partners producing cannabinoids will face an inherent risk of exposure to third-party product liability claims, regulatory action, and litigation, which would expose us to potential liability if our processes, procedures, or medium formulations are alleged to have caused significant loss or injury. In addition, the sale of products produced by a commercial partner using intellectual property involves the risk of injury to consumers due to product contamination or tampering by unauthorized third parties. Previously unknown adverse reactions could occur resulting from human consumption of such products alone or in combination with other medications or substances. We may be subject to various third-party product liability claims, including claims that the products produced using the licensed technology caused injury or illness, that such products did not include adequate warnings concerning possible side effects or interactions with other substances, or that the use of the licensed technology did not include adequate instructions for use.
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Product liability claims or regulatory actions against us could result in increased costs, adversely affect our reputation generally with existing or potentially new commercial partners, and have a material adverse effect on our results of operations and financial condition. Although we are also currently pursuing additional insurance coverage for product liability claims, such insurance is expensive, and we cannot assure that we will be able to obtain desired insurance coverage on acceptable terms or at all. Any insurance coverage we maintain will be subject to coverage limits and exclusions and may not be available for the risks and hazards to which we are exposed. Our inability to obtain sufficient insurance coverage on reasonable terms or to otherwise protect against potential product liability claims could prevent or inhibit the commercialization of the licensed technology.
Our business could be adversely impacted by failures or interruptions of information technology systems and potential cyber-attacks.
Our business will depend on information technology hardware, software, telecommunications, and other services and systems we obtain from third parties. Therefore, our operations depend, in part, on how well we and our suppliers protect networks, equipment, information technology systems, and software against damage from numerous threats, including damage to physical facilities, capacity limitations, natural disasters, intentional damage and destruction, fire, power loss, hacking, computer viruses, vandalism, and theft. Our operations also depend on the timely maintenance, upgrade, and replacement of networks, equipment, information technology systems, and software, as well as preemptive expenses to mitigate the risks of failures. Any of these and other events could result in information system failures and delays or increased capital expenses. The failure of information systems or a component of information systems could, depending on the nature of any failure, adversely impact our reputation and results of operations.
We may also be subject to cyber-attacks or other information security breaches, and we cannot assure that we will not incur such losses in the future. Our risk and exposure to these matters cannot be fully mitigated because of, among other things, the evolving nature of these threats. As a result, we will prioritize cybersecurity and the continued development and enhancement of controls, processes, and practices designed to protect systems, computers, software, data, and networks from attack, damage, or unauthorized access. As cyber threats continue to evolve, we may be required to expend additional resources to continue to modify or enhance protective measures or to investigate and remediate any security vulnerabilities.
Ongoing domestic and international financial conditions will adversely affect our business and operations, our prospective commercial partners, the cannabinoid industry, and the world generally.
In recent years, global commercial and financial markets have experienced significant reoccurring disruptions, including severely diminished liquidity and credit availability, larger levels of sovereign and individual indebtedness, increased trade tariffs and barriers, supply chain delays or failures, declines in consumer confidence, declines in economic growth, increased unemployment, and uncertainty about economic stability. We cannot assure that significant deterioration in credit and financial markets, prevailing interest rates, international trade, and confidence in economic conditions will not occur in the future. Any economic downturn, volatile business environment, or continued unpredictable and unstable market conditions could have a material adverse effect on our business, financial condition, and results of operations.
Further, global credit and financial markets have displayed arguably increased volatility in response to global economic, pandemic, or political events. Future crises may be precipitated by any number of causes, including natural disasters, geopolitical instability, changes to energy prices, or sovereign defaults. These factors may impact our ability to obtain equity or debt financing in the future, and if obtained, on terms favorable to us. Increased levels of volatility and market turmoil can adversely impact our operations and value, including the price of our common stock.
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We cannot assure that we will be able to compete successfully.
We expect significant competition from other companies offering cannabinoid production technologies or producing, transporting, or marketing cannabinoids. We believe that competition in the commercial cannabinoid industry is based primarily on price per unit; predictable and replicable product flavor, aroma, CBD or THC concentration; and ease and predictability of regulatory compliance. Price per unit of production will be based on the cost of amortizing capital expenditures and covering production and operating costs, and we cannot assure that production using our licensed technology will enable commercial partners to compete on these terms. Our potential commercial partners’ principal known competitors have established production, transportation, and marketing infrastructure and market recognition in the multiple states in which they operate and are well capitalized with experienced management and technical resources. Numerous companies appear to be applying for cultivation, processing, and sale licenses, some of which may have significantly greater financial, technical, marketing, and other resources than we have. These competitors may be able to devote greater resources to the development, promotion, sale, and support of their products and services, and may have more extensive customer bases and broader customer relationships. We may be at a competitive disadvantage to live-grow plant producers because of the lack of established regulatory accommodation of plant cell-extraction and replication production methods. To the extent that we are not able to market and enter enough commercialization arrangements, our business, financial condition, and results of operations could be materially and adversely affected.
We may not have a competitive price advantage as compared to producers of CBD containing less than 0.3% THC from hemp, which was sanctioned in 2018 under the Agriculture Improvement Act.
Risks Related to our Common Stock
The market for our common stock is volatile.
The market price of our common stock has been volatile and subject to wide fluctuations in price and trading volume in response to numerous factors, many of which are beyond our control. This volatility may affect the ability of holders of our common stock to sell their securities at an advantageous price or at all. There is extremely limited trading volume in our common stock, with no transactions for many consecutive trading days.
Market price fluctuations in our common stock may be due to the quotation or transaction volume our results of operations or public releases failing to meet market expectations, negative news about us or the cannabis industry, adverse changes in general market conditions or economic trends, social media activity outside our control, or other material public announcements by us or others. Financial markets for the stock of smaller capitalized companies historically have experienced significant price and volume fluctuations that have often been unrelated to the operating performance, underlying asset values, or prospects of such companies. Accordingly, the market price of our common stock may decline even if our results of operations, underlying asset values, or prospects improve or do not change. We cannot assure that continuing fluctuations in price and volume of our common stock will not occur. If increased levels of volatility and market turmoil continue, our ability to obtain capital from external sources, the trading price of our common stock, and our operations could be adversely affected.
We will continue to be controlled by our principal stockholders.
Cell Science owns four shares of Series A Preferred Stock, representing 100% of our outstanding Series A Preferred Stock. The super voting rights of the Series A Preferred Stock entitle its holder to voting power equivalent to four times the aggregate voting power of all other outstanding common and preferred stock outstanding, or 1,204,731,932 votes. Cell Science is owned by Inter-M Traders FZ LLE (40%), Mentone Ltd (30%), and The OZ Corporation (30%), and each of the foregoing is deemed to beneficially own the four (4) shares of Preferred Stock owned by Cell Science. Therefore, the holders of the preferred stock now have and will continue to have 80% of all votes on all matters submitted to the stockholders for consideration, voting together as a single class, which enables Cell Science directly, and its controlling stockholders indirectly, to control the election of our directors and the approval or disapproval of all other matters, including mergers, the sale of all or substantially all of our assets, liquidation, and the adoption or amendment of provisions in our articles of incorporation and bylaws.
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Inter-M Traders FZ, LLE is currently the beneficial owner of 116,783,555 shares of common stock, representing 38.77% of our outstanding common stock, and as a result of its 40% ownership of Cell Science is deemed to be the beneficial owner of four (4) shares of Series A Preferred Stock.
Mentone Ltd. is currently the beneficial owner of 6,000,000 shares of common stock, representing 1.99% of our outstanding common stock, and as a result of its 30% ownership of Cell Science is deemed to be the beneficial owner of four (4) shares of Series A Preferred Stock. Mentone Ltd. is owned and controlled by Peter Whitton (a director) who is currently the beneficial owner of 23,943,562 shares of common stock, representing 7.951% of our outstanding common stock, Geoffrey Dixon who is currently the beneficial owner of 23,952,188 shares of common stock, representing 7.95% of our outstanding common stock, and Karl Watkin who, through his Company, Menelaus Holding FZ LLC, is currently the beneficial owner of 26,952,187 shares of common stock, representing 8.95% of our outstanding common stock.
OZ Corporation is owned and controlled by John R. Munoz. OZ Corporation is currently the beneficial and owner of record of 10,980,994 shares of common stock directly, and John R. Munoz is currently the beneficial owner of 3,168,000 shares of common stock, which in the aggregate represent 5.08% of our outstanding common stock. OZ Corporation, and John R. Munoz as a result of OZ Corporation’s 30% ownership of Cell Science is deemed to be the beneficial owner of four (4) shares of Series A Preferred Stock
We may issue common stock in the future, which may dilute a stockholder’s holdings in our company, including the investors in this offering, or have a negative effect on the market price of our stock.
We may sell equity securities (including convertible securities) in offerings, which may dilute a stockholder’s holdings in our company. Our articles of incorporation grant our board of directors discretion to issue, sell, and determine the price and terms of additional preferred or common stock, including at prices less than the current market price per share. Our stockholders do not have preemptive rights. Moreover, additional common stock will be issued by us on the exercise of options under our stock option plan or warrants. Any transaction involving the issuance of preferred or common stock, or securities convertible into common stock, would result in dilution, possibly substantial, to our security holders, including the investors in this offering.
Sales of substantial amounts of our securities by us or our existing stockholders, or the availability of such securities for sale, could adversely affect the prevailing market prices for our securities and dilute an investor’s per-share earnings, if any. A decline in the market prices of our securities could also impair our ability to raise additional capital through the sale of securities should we desire to do so.
Limited trading volumes for our common stock may limit the ability of our stockholders to obtain liquidity.
Due to the limited trading volume for our common stock, our stockholders may be unable to sell any or large quantities of our common stock into the public trading market without a significant reduction in the price of their common stock. We cannot assure that there will be sufficient liquidity of the common stock on the trading market and that we will continue to meet the listing requirements of any public listing exchange or quotation medium.
We do not anticipate paying dividends.
We do not have earnings from which to pay dividends and have no current intention to declare dividends, even if we were to become profitable. If we were to achieve earnings, any discretionary decision to pay dividends would depend on, among other things, our results of operations, current and anticipated cash requirements and surplus, financial condition, future contractual restrictions and financing agreement covenants, solvency tests imposed by corporate law, and other factors that our board of directors may deem relevant. Rather than pay dividends, we anticipate that we will retain earnings to fund expansion and growth.
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The regulated nature of our business may impede or discourage a takeover.
Our business is subject to cannabinoid industry direct and indirect regulatory or licensing requirements that may not necessarily continue to apply to an acquirer of our business following a change of control. These licensing requirements could impede a merger, amalgamation, takeover, or other business combination involving us or discourage a potential acquirer from making a tender offer for common stock, which under certain circumstances could reduce the market price of the common stock.
We will not receive any proceeds from the sale of common stock by the selling stockholders.
DETERMINATION OF OFFERING PRICE
The shares will be offered at a fixed price of $1.00 per share, in private transactions, or as otherwise described under the heading “Plan of Distribution”, until such time as our common stock is listed on a national securities exchange or quoted on the OTC Bulletin Board, OTCQX, or OTCQB, at which time the shares may be offered and sold at prices based on the prevailing public market for our stock, as negotiated in private transactions, or as otherwise described under the heading “Plan of Distribution,” directly or through agents or broker-dealers on behalf of the selling stockholders.
The resale of the shares of common stock under this prospectus will not dilute the ownership interests of our existing stockholders.
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This prospectus covers the resale from time to time by the selling stockholders of up to 35,705,395 shares of our common stock, $0.001 par value, including 35,132,060 shares to be sold by our affiliates.
We are registering the shares to permit the selling stockholders and any of their pledgees, donees, transferees, assignees, and successors-in-interest to sell, from time to time, any or all of the shares through public or private transactions at a fixed price of $1.00 per share, until such time as our common stock is listed on a national securities exchange or quoted on the OTC Bulletin Board, OTCQX, or OTCQB, at which time the shares may be offered and sold at prices based on the prevailing public market for our stock, as negotiated in private transactions, or as otherwise described under the heading “Plan of Distribution.” As of the date of this prospectus, there are 301,182,983 shares of our common stock issued and outstanding.
The following table sets forth, as of the date of this prospectus, the name of each selling stockholder, the number of shares of our common stock beneficially owned by each selling stockholder prior to the offering for resale of the shares under this prospectus, the number of shares and percentage of our common stock beneficially owned by each selling stockholder that may be offered from time to time under this prospectus, and the number and percentage of shares of our common stock beneficially owned by the selling stockholder after the offering of the shares (assuming all of the offered shares are sold by the selling stockholder). The shares being offered hereby are being registered to permit public secondary trading, and the selling stockholders may offer all or part of the shares for resale from time to time. However, the selling stockholders are under no obligation to sell all or any portion of such shares nor are the selling stockholders obligated to sell any shares immediately upon effectiveness of this prospectus. All information respecting share ownership has been furnished by the selling stockholders.
Name of Selling Stockholder | Shares Beneficially Owned Prior to Offering | Shares to be Offered | Number of Shares Beneficially Owned After Offering(**) | Percentage Ownership After Offering (%)(**) |
ATKL New Era Autotrade Ltd. | 13,334 | 6,667 | 6,667 | - |
BBI, LLC | 66,667 | 33,333 | 33,334 | - |
Bennington Investment Trust | 100,000 | 50,000 | 50,000 | - |
Costakis Demetriou | 60,000 | 30,000 | 30,000 | - |
Geoffrey Dixon(1) | 23,952,188 | 4,790,438 | 19,161,750 | 6.36% |
Eusebi Inspired LLC | 33,334 | 16,667 | 16,667 | - |
FEDE, LLC | 33,334 | 16,667 | 16,667 | - |
Janice M. Ganan Revocable Trust | 166,667 | 83,333 | 83,334 | - |
GB Portfolio Investments LLC | 333,334 | 166,667 | 167,667 | - |
Inter-M Traders FZ LLE(2) | 116,783,555 | 23,356,711 | 93,426,844 | 31.01% |
Zozo Lophitis | 30,000 | 15,000 | 15,000 | - |
Majem Holdings LLC | 133,334 | 66,667 | 66,667 | - |
Millennium Trust Company Custodian FBO Lanny Bown IRA | 46,667 | 23,334 | 23,333 | - |
OZ Corporation(3) | 10,980,994 | 2,196,199 | 8,784,795 | 2.92% |
Sophia Helen Petridas | 30,000 | 15,000 | 15,000 | - |
Patrick Sarkission | 100,000 | 50,000 | 50,000 | - |
Peter Whitton(4) | 23,952,188 | 4,788,712 | 19,154,850 | 6.36% |
| 128,911,220 | 35,705,395 | 102,784,975 | - |
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** If 1% or more, and represents the percentage of the outstanding shares of common stock held directly by the named selling stockholder.
There are 301,182,983 shares of common stock and four (4) shares of Series A Preferred Stock outstanding. Each share of Series A Preferred Stock has voting rights equal to four (4) times the aggregate votes of the total number of shares of common stock issued and outstanding plus the total number of votes of all other classes of preferred stock issued and outstanding, divided by the number of shares of Series A Preferred Stock issued and outstanding, which have an equivalent of 1,204,731,932 votes. Cell Science Holding Ltd. (“Cell Science”) is the beneficial and owner of record of the 4 shares of Series A Preferred Stock.
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Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission (“SEC”) which generally attribute beneficial ownership of securities to person, entity or group that directly or indirectly has or shares voting power or investment power with respect to those securities and includes the power to dispose, or direct the disposition of such securities, and includes shares of our common stock issuable pursuant to the exercise of stock options, warrants, preferred stock or other securities that are immediately exercisable or convertible or exercisable or convertible within 60 days.
To calculate a stockholder’s percentage of beneficial ownership of common stock, we must include in the numerator and denominator those shares of common stock underlying options, warrants and convertible securities that such stockholder is considered to beneficially own. Shares of common stock underlying options, warrants and convertible securities held by other stockholders, however, are disregarded in this calculation. Therefore, the denominator used in calculating beneficial ownership of each of the stockholders may be different.
(1)Mr. Dixon is the beneficial and of owner of record of 23,952,188 shares of Common Stock and 6,000,000 shares of Common Stock owned by Mentone Ltd., of which Mr. Dixon is a 33% owner. Mentone Ltd., is a 30% owner of Cell Science which owns four (4) shares of Series A Preferred Stock, Therefore Mr. Dixon is deemed a beneficial owner of 81.99% of the voting power of our company. See “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.”
(2)Inter-M Traders FZ LLE is owned and controlled by Petros Charalambous. Inter-M Traders FZ LLE owns 40% of Cell Science, which in turn beneficially owns the four shares of Series A Preferred Stock. Therefore, Petros Charalambous is a beneficial owner of 87.75% of the voting power of our company. See “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.”
(3)OZ Corporation is owned and controlled by John R. Munoz. OZ Corporation owns 30% of Cell Science, which in turn beneficially owns the four shares of Series A Preferred Stock. Therefore, John R. Munoz is a beneficial owner of 80.73% of the voting power of company. See “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.”
(4)Mr. Whitton is the beneficial and of owner of record of 23,943,562 shares of Common Stock owned directly, 6,000,000 shares of Common Stock owned by Mentone Ltd., of which Mr. Whitton is a 34% owner, and 100,000 shares of Common Stock which Mr. Whitton currently has or will have within 60 days the right to acquire pursuant to stock options, and four (4) shares of Series A Preferred Stock owned beneficially through Cell Science, of which Mentone Ltd., is a 30% owner. Therefore Mr. Whitton is deemed a beneficial owner of 81.99% of the voting power of our company. See “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.”
We agreed to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”) to register the resale of 573,335 shares of common stock sold by us during 2021 and are also registering shares of the certain affiliates provide liquidity to them. There are no other agreements between us and any selling stockholder pursuant to which the shares subject to this registration statement were issued. Except as noted above, none of the selling stockholders has ever been our executive officer or director or has had a material relationship with us at any time within the past three years.
Beneficial ownership is determined in the above table in accordance with the rules of the SEC and includes any shares of common stock as to which a person has sole or shared voting power or investment power and any shares of common stock which the person has the right to acquire within 60 days through the exercise of any option, warrant, or right, through conversion of any security, or pursuant to the automatic termination of a power of attorney or revocation of a trust, discretionary account, or similar arrangement.
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The selling stockholders and any of their pledgees, donees, transferees, assignees, and successors-in-interest may, from time to time, sell any or all their shares of common stock at a fixed price of $1.00 per share, in private transactions, or as otherwise described under the heading “Plan of Distribution.” At such time as our common stock is listed on a national securities exchange or quoted on the OTC Bulletin Board, OTCQX, or OTCQB, the shares may be offered and sold at prices based on the prevailing public market for our stock, or at fixed or negotiated prices. The selling stockholders may use any one or more of the following methods when selling shares:
·ordinary brokerage transactions and transactions in which the broker-dealer solicits investors;
·block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
·purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
·an exchange distribution in accordance with the rules of the applicable exchange;
·privately negotiated transactions;
·to cover short sales made after the date that the registration statement, of which this prospectus is a part, is declared effective by the SEC;
·agreements with broker-dealers to sell a specified number of such shares at a stipulated price per share;
·a combination of any such methods of sale; and
·any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling stockholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved.
The selling stockholder may from time to time pledge or grant a security interest in some or all of the shares owned by them, and if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell shares of common stock from time to time under this prospectus or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgees or secured parties as selling stockholders under this prospectus.
Upon notification in writing to us by a selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of common stock through a block trade, special offering, exchange distribution, or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing: (i) the name of each such selling stockholder and of the participating broker-dealer(s); (ii) the number of shares involved; (iii) the price at which such shares of common stock were sold; (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), when applicable; (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus; and (vi) other facts material to the transaction. In addition, upon notification in writing to us by a selling stockholder that a donee or pledgee intends to sell more than 500 shares of common stock, a supplement to this prospectus will be filed if then required in accordance with applicable securities laws.
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The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees, or other successors-in-interest will be the selling beneficial owners for purposes of this prospectus.
The selling stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection with the sales. In such event, any commissions received by the broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Discounts, concessions, commissions, and similar selling expenses, if any, that can be attributed to the sale of shares will be paid by the selling stockholder or the purchasers.
When the registration statement becomes effective, we will advise and inform selling stockholders in writing how they can use and deliver the prospectus to sell their shares. If a selling stockholder uses this prospectus for any sale of the common stock, it will be subject to the prospectus delivery requirements of the Securities Act. The selling stockholders will be responsible for complying with the applicable provisions of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including, without limitation, Regulation M, as applicable to such selling stockholders in connection with resales of their respective shares under this registration statement.
We are required to pay all fees and expenses incident to the registration of the shares, but we will not receive any proceeds from the sale of the common stock.
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The following description of our securities, including all material provisions of our common stock and provisions of our Amended and Restated Articles of Incorporation and Amended and Restated Bylaws, is only a summary.
We are authorized to issue 550,000,000 shares of capital stock, comprised of 50,000,000 shares of preferred stock, par value $0.001 per share, and 500,000,000 shares of common stock, $0.001 par value per share.
As of November 22, 2022, we had four shares of preferred stock issued and outstanding, 301,182,983 shares of common stock issued and outstanding, and 12,418,085 and 15,000,000 shares of common stock reserved for issuance on the exercise of options and warrants, respectively.
Common Stock
Holders of our common stock are entitled to one vote per share on each matter submitted to a vote at any meeting of stockholders. Holders of common stock do not have cumulative voting rights. Our bylaws provide that a majority of the shares of stock entitled to vote, represented in person or by proxy, constitutes a quorum for stockholders’ meetings. Accordingly, the holders of more than 50% of the total voting rights on matters presented to our stockholders can elect all our directors and, in such event, the holders of the remaining minority shares would not be able to elect any such directors. The vote of the holders of a majority of the shares of our stock entitled to vote on matters submitted to our stockholders, including holders of our Series A Preferred Stock described below, is sufficient to authorize, affirm, ratify, or consent to such act or action, except as otherwise provided by law.
Holders of common stock are entitled to receive such dividends as the board of directors may from time to time declare out of funds legally available for the payment of dividends. We seek growth and expansion of our business through the reinvestment of profits, if any, and do not anticipate that we will pay dividends on the common stock in the foreseeable future.
Holders of our common stock have no preemptive rights to acquire additional shares of common stock or other securities. Our common stock is not subject to redemption and has no subscription or conversion rights. In the event of our liquidation, dissolution, or winding up, the shares of common stock are entitled to share equally in corporate assets after satisfaction of all liabilities and the payment of any liquidation preferences.
All outstanding shares of our common stock are validly issued, fully paid, and nonassessable.
Preferred Stock
Our articles of incorporation authorize us to issue up to 50,000,000 shares of preferred stock. We currently have designated: (a) four shares of preferred stock as Series A Preferred Stock, par value $0.001 per share; and (b) 10,000,000 shares of preferred stock as Series B Preferred Stock, par value $0.001 per share.
Series A Preferred Stock
We have four shares of Series A Preferred Stock issued and outstanding. Each share of Series A Preferred Stock has voting rights equal to four times the aggregate votes of the total number of shares of common stock issued and outstanding plus the total number of votes of all other classes of preferred stock issued and outstanding, divided by the number of shares of Series A Preferred Stock issued and outstanding. Consequently, the holder of all four issued and outstanding shares of Series A Preferred Stock is able to unilaterally control the election of our board of directors and, ultimately, the direction of our company.
The shares of Series A Preferred Stock are not convertible into common stock or any other class of preferred stock. The shares of Series A Preferred Stock may only be issued in exchange for partial or full retirement of debt held by management, employees, or consultants or as directed by a majority vote of the board.
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Series B Preferred Stock
There are no shares of Series B Preferred stock issued and outstanding.
The shares of Series B Preferred stock are convertible into shares of common stock pursuant to the holder’s conversion rights designated for the Series B Preferred Stock. Upon our liquidation, dissolution, or winding up, before any distributions or payment will be made to the holders of any stock ranking junior to the Series B Preferred Stock, the holders of the Series B Preferred Stock will be entitled to be paid out of our assets an amount equal to $1.00 per share or, in the event of an aggregate subscription by a single subscriber for the Series B Preferred Stock in excess of $100,000, $0.997 per share, plus all declared but unpaid dividends, for each share of Series B Preferred Stock. The shares of Series B Preferred Stock are anti-dilutive to reverse splits. Each share of Series B Preferred Stock has 10 votes for the election of directors and any matter voted on by the stockholders.
Rights, Preferences, Privileges, Restrictions and Characteristics
The rights, preferences, privileges, restrictions, and characteristics of the classes of preferred stock are detailed in the respective certificates of designation to the articles of incorporation.
The foregoing summary description of the rights, preferences, privileges, restrictions, and characteristics of the common stock, Series A Preferred Stock, and Series B Preferred Stock does not purport to be complete, may not contain all information that is of interest to the reader, and is qualified in its entirety by reference to the full text of the articles of incorporation and certificates of designation to the articles of incorporation filed as exhibits in our SEC filings.
INTEREST OF NAMED EXPERTS AND COUNSEL
No expert or counsel named in this prospectus as having prepared or certified any part of this prospectus or having given an opinion upon the validity of the securities being registered or upon other legal matters in connection with the registration or offering of the common stock was employed on a contingency basis, or had or has, or is to receive, in connection with the offering, a substantial interest, direct or indirect, in us or any of our parents or subsidiaries, nor was any such person connected with us or any of our parents or subsidiaries as a promoter, managing or principal underwriter, voting trustee, director, officer, or employee.
The financial statements included in this prospectus, and the registration statement of which this prospectus is a part, have been audited by BF Borgers CPA, P.C. to the extent and for the periods set forth in this prospectus and appearing elsewhere herein and in the registration statement, and are included in reliance upon the authority of said firm as experts in auditing and accounting.
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Overview
We hold a license from Cell Science to plant cell-extraction and replication technology and related proprietary equipment, processes, and formulations to produce, manufacture, and sell cannabis-related byproducts—sometimes referred to as cannabinoids—exclusively in North America, Central America, and the Caribbean for medical, food additive, and recreational uses.
During our fiscal year ended July 31, 2021, we collaborated with Cell Science, through Dr. Peter Whitton, the principal inventor of the technology and an affiliate of both Cell Science and us, to demonstrate application of the technology. In a July 2021 amendment to our license agreement with Cell Science, we altered the testing requirements and accepted the results then achieved, which required us to issue a one-year note for a one-time payment of $3.5 million, subject to specified setoffs, to obtain a fully paid license. In January 2022, and in lieu of any reduction to the one-time payment note, we agreed to accept assignment of all rights under the lease for the facility in which the laboratory that we used for the efficacy demonstration testing process is located, as well as all rights in all laboratory equipment and related assets used in the efficacy demonstration testing process.
During our most recent fiscal year completed on July 31, 2022, we expanded our consulting team to support our efforts to organize the launch of our commercialization efforts, identify possible sources of required financing, and initiate conversations with potential commercialization partners, particularly selected multi-state operators with established production, distribution, and marketing infrastructure, expertise, and financing. Conversations with some of these sources and potential commercialization partners continue, but we have not reached any definitive commitments, understandings, or agreements. We are continuing our efforts.
We propose to undertake additional work to determine the limits of the technology, maximize production efficiency, reduce production costs, and customize the process and products for potential commercialization partners, which we believe will enhance our commercialization efforts. We intend to coordinate these efforts with the requirements of potential funding and commercialization opportunities. Subject to successfully completing our ongoing work, we intend to seek to commercialize the licensed technology through joint ventures, strategic partners, sublicenses, and other arrangements that may enable us to take advantage of the technical, regulatory relationships and experience, and financial resources of experienced cannabinoid production firms. We intend to authorize these third parties to incorporate the technology into production facilities they fund, build, and operate to produce medical, food additive, and recreational cannabis-related products in compliance with applicable state and federal law. We will need additional financing from external sources to begin these efforts.
The licensed intellectual property is based on established bioscience principles and practices and has been demonstrated on a limited basis. Testing of the process has met agreed technical specifications, including equipment, processes, and formulations, for production in batches in which seed cells are grown in a biologically active controlled and monitored environment within our proprietary production pods that could be replicated to produce commercial quantities. However, our licensed technology has not been scaled up to produce cannabinoids in commercial quantities routinely and reliably. Accordingly, our ability to commercialize the intellectual property through strategic partners, joint venturers, and sublicensees is dependent on successful completion of necessary application engineering, which we cannot assure will occur.
Our licensed technology describes a process to mirror, or replicate, the cannabinoid flavor, aroma, and CBD and THC potency qualities of the source plant’s cells without growing the plant. We do not now, and do not intend to, produce, transport, or sell cannabis or cannabinoids directly.
Since early 2020, our business activities and all efforts to advance the demonstration of the validity of our licensed technology have been adversely affected due to the COVID-19 pandemic. The COVID-19 virus and its Delta, Omicron, and possible other variants, as well as government and private sector responses to them, have caused and continue to cause delays, increased costs, and interrupted travel and, in general, to negatively impact all our activities.
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Our License
Based on completion of conditions specified in our Integrated License Agreement discussed below, on May 17, 2022, we filed and recorded with the US Patent and Trademark Office the Patent and Technology License, which we refer in this document as the “License.” In this document, Cell Science granted us a fully-paid, exclusive, royalty free, perpetual, irrevocable right and license, with the right to sublicense, cell-extraction and replication technology and related proprietary equipment, processes, and formulations to produce, manufacture, and sell cannabis-related byproducts—sometimes referred to as cannabinoids—exclusively in North America, Central America, and the Caribbean for medical, food additive, and recreational uses.
Our Integrated License Agreement
On December 20, 2018, we entered into a Patent and Technology License Agreement, which was amended and restated effective December 31, 2019, which in turn was further amended on September 22, 2020 (the “Amended Restated License”), to license, with the right to sublicense, the described cell-extraction and replication technology and related proprietary equipment, processes, and medium formulations to be used in a commercially-sized bioreactor laboratory to produce, manufacture, and sell cannabinoids – exclusively in North America, Central America, and the Caribbean – for medical, food additive, and recreational uses. As consideration for the grant of the license, we issued 210,000,000 shares of common stock, subject to adjustment, and agreed to a one-time payment of $3.5 million, less an amount equal to all cash and expense advances to Cell Science representatives to the technical team involved in the testing (the “One-time Payment”). The One-time Payment is evidenced by a promissory note for $3.5 million to Cell Science due in January 2023. As a result of the issuance of these shares, Cell Science became our largest stockholder.
In consideration of the December 2018 license granted by Cell Science, we issued to Cell Science 210,000,000 shares of common stock, which constituted about 69.70% of our issued stock as July 31, 2022. The shares initially issued to Cell Science were subject to reduction if the results of the efficacy demonstration showed less than targeted results. In September 2020, we released 20,000,000 shares from possible reduction, and in February 2021, we released an additional 6,000,000 shares.
Based on an evaluation of the efficacy demonstration testing results achieved to date, and in light of the desire to accelerate the launch of our commercialization program directed at achieving recurring revenue, on July 12, 2021, we agreed to rely on the results from five bioreactors rather than two groups of five preselected bioreactors. We accelerated the measurement criteria to measure the commercial efficacy of the licensed technology, and further determined to accept the test results from the five bioreactors as meeting the Cell Science efficacy demonstration requirements. As a result of our acceptance of the efficacy demonstration test results in July 2021, we released all remaining 184,000,000 shares initially issued to Cell Science under our intellectual property license. In January 2022, we accepted assignment of all rights under the lease for the facility in which the laboratory we use is located including all rights in all laboratory equipment and related assets used in the efficacy demonstration testing process in lieu of any reduction to the One-time Payment note. See below.
The Amended Restated License, as subsequently amended by the 2020 and 2021 successive amendments, are all are merged into a single, integrated agreement that are together hereinafter referred to as the “Integrated License Agreement.”
Under the Integrated License Agreement and notwithstanding the grant of the License as described above, we remain obligated to pay certain patent prosecution and other intellectual property protection costs that could be substantial. We do not plan to establish or maintain any deposits or reserves to pay these costs. If we fail to meet these obligations, Cell Science could terminate our License and then have the right to assume our position in any outstanding commercialization arrangements. If Cell Science assumes outstanding obligations, it would step into our position as commercial partner or sublicensee, precluding us from participating in further revenue from that relationship, notwithstanding our potential continuing liability for obligations to commercial partners, or from further commercialization efforts.
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The possibility that Cell Science, a foreign entity, may assume our obligations to our commercial partners may be a risk to them that may have a material adverse effect on our commercialization efforts. If Cell Science refuses to assume our obligations under our commercialization arrangements, the rights of our commercial partners may be subject to dispute, which would likely result in claims for damages that our commercial partners would seek to recover from us. The existence of the right of Cell Science to terminate our License on which our commercialization arrangements will be based may be considered a substantial risk to potential commercial partners and correspondingly impair the success of our commercialization efforts.
Product and Process Refinement
Having accepted the test results demonstrating efficacy of the licensed technology in July 2021 and subject to obtaining required financing, we will continue to refine the licensed process, focusing on determining the limits of the technology, maximizing production efficiency, reducing production costs, and customizing features to address the requirements of potential commercialization partners. We undertake specific tasks based on our understanding of the expectations and anticipated requirements on potential commercialization partners. These efforts are underway at laboratory facilities in Van Nuys, California, in which the efficacy demonstration was completed. We acquired rights to use that facility through agreements with our affiliates, Cell Science and OZ Corporation, in January 2022. As part of our ongoing laboratory work, we will develop a standardized operating manual, technical descriptions, and related documentation with a view to supporting joint venturers, strategic alliance partners, sublicensees, and others in constructing and operating commercial production plants. We intend to more fully define the scope and description of the technology and outline general requirements for equipment, materials, utility requirements, facility specifications, and consumables. This work will require that we hire employees and engage consultants with required scientific and technical expertise.
Proposed Commercialization
General
We are proceeding with efforts to generate revenue through commercializing our licensed technology. In order to access the technical, financial, and operating and regulatory experience of companies already in the cannabinoid industry, we are identifying and initiating discussions with multi-state cannabinoid producers and marketers about possible joint venture arrangements or other strategic relationships. In pursuing these relationships, we will seek to balance the cash and other resources that the other party may provide to accelerate our market entry against the potential revenue that we will need to share with our partner. Our focus on joint ventures and strategic relationships will take priority over our earlier intent to sublicense to third parties the use of the licensed technology and related specifications for proprietary equipment, processes, and medium formulations to produce, manufacture, and sell cannabinoids. We do not currently have any commitment for any joint venture, strategic alliance, sublicense, and other arrangement, except as described below. We do not now, and do not at any time intend to, produce, distribute, or market cannabis or cannabis products.
We intend to enter commercialization arrangements for the licensed technology only with third parties that are permitted in the applicable jurisdiction to legally produce and manufacture cannabis-derived products and byproducts for sale and use, including a cannabis concentrate powder product for the medical, food additive, and recreational cannabis consumption markets. The licensed technology is designed to produce, after the final processing step, both THC and CBD concentrates that mirror the source cells with potency meeting our requirements. Generally, we will seek commercialization through firms that have the requisite cannabinoid permits and financial ability to scale-up commercially sized bioreactor production facilities capable of producing at each production site 60,000 pounds per annum of a predictably harvested plant-derived material with reliable qualities and quantities.
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Currently, state cannabinoid regulations are generally based on live-grow plant-based cannabinoid production that may not specifically address possible production through a plant cell-extraction and replication process. Further, current regulatory regimes may not easily be adaptable to laboratory production methods such as ours. Therefore, to support our commercialization program, we anticipate that initially we will need to collaborate with state regulators to adapt or amend current statutes, regulations, and administrative policies to accommodate laboratory production, and we may need to obtain any special clearances from state licensing authorities for our plant cell-extraction and replication processes on behalf of commercial partners. These efforts may not be successful and will likely increase costs and delay commercialization and revenues.
In addition to initial engineering that we plan to undertake, we will be responsible for ongoing research and development costs and creating a licensing sales and support operation. Commercial partners will be required to fund production facilities construction, staffing, and operation. Commercial partners will also be responsible for all required regulatory permits and compliance.
Sublicense with Integrity Cannabis Solutions, Inc.
On April 17, 2020, through our subsidiary, we entered into a Strategic Alliance Agreement with Integrity Cannabis Solutions, Inc. (“ICS”), an unaffiliated Florida corporation, to collaborate: (i) to facilitate the building and operation of a commercial-scale production facility in Florida; and (ii) to enter a sublicense.
We entered into a Patent and Technology Sublicense Agreement (the “Sublicense Agreement”) on April 22, 2020, under which we granted to ICS the right to use the sublicensed technology to produce, manufacture, market, and sell CBD and related byproducts and derivatives having less than 0.3% measurable THC on a dry weight basis. The sublicense will become effective when the efficacy demonstration is complete with confirmed results demonstrating that: (a) the cannabinoid concentrates produced, harvested, and dried during a full cycle of the licensed technology process contain at least 90% of the measurable percentage levels of THC and CBD as the donor cells; (b) this result is achieved at a project utility, production, and supplies cost of $0.10 per gram, or roughly $100 per kilogram; (c) we have provided the operations manual; and (d) we have provided all necessary equipment designs and vendor resources. Since we waived compliance with the original efficacy demonstration requirements that were effective when we entered into our agreements with ICS, we will need to renegotiate the terms of our arrangements with ICS, and we cannot assure that we will be successful in doing so.
Under the existing Sublicense Agreement, ICS is obligated to pay to us a continuing royalty equal to 8% of the wholesale product price sales revenue from the production of CBD raw product concentrate in the production facility using the sublicensed technology. The royalty payments are payable quarterly in arrears, beginning after the first quarter of commercial production. We cannot predict when actual production may commence.
We have informally discussed with ICS how we might move forward with our arrangements for placing a plant into production, but no new agreements have been reached, and we cannot assure that we will be able to negotiate mutually acceptable terms for proceeding.
Commercialization Support Services
We intend to provide our commercial partners with business and technical support to help them build and equip a commercial production laboratory to use our cell-extraction and replication technologies and related proprietary equipment, processes, and medium formulations. Our technical support will include component planning related to a variety of matters, such as:
·build-out requirements, including necessary leasehold improvements to support the operation of the licensed science production facility, utility requirements, equipment procurement and set-up, initial testing, plans, and permits;
·regulatory compliance review of the licensed science;
·staffing plans, including in-house sales, recommended qualifications for hiring a science officer and technical team members;
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·introduction to external consultant, engineer, compliance, shipping/packing, and distribution resources;
·procurement and installation of proprietary bioreactors and all support equipment;
·process training for:
oseed culture harvest from donor plants;
oseed culture growth cycle;
ocell growth cultivation filtration cycle;
odrying equipment operation post-production processing options for the plant material;
oconcentrate plant material distillation process;
oinitial product harvest and packaging plant material handling;
oguidelines for internal and third-party laboratory testing contract review of services;
oguidelines for product to market options; and
·consulting to utilize the product in regulated proprietary products.
Sources and Availability of Raw Materials
Completion and operation of a facility using our licensed technology to produce cannabinoids is dependent on the availability of standard biological laboratory equipment and supplies and the acquisition and operation of proprietary equipment. In some cases, existing available equipment must be significantly modified and customized to perform required tasks and procedures. Similarly, medium formulations have been developed from raw materials commercially available from multiple suppliers. Since early 2020, the efficacy testing has been materially and adversely impacted by the shortages or unavailability of equipment or supplies. We will continue to be subject to these shortages and delays as we continue the production and process engineering.
Our commercialization of the cell-extraction and replication technology will require us to obtain raw materials for cell culture media that are mixed and packaged by third parties for sale to a sublicensee. We cannot predict whether commercial partners will be able to readily acquire or build the equipment or obtain the supplies necessary to construct and operate a commercial cannabinoid production without unusual costs or delays.
Patents
We license the following patent applications under our Integrated License Agreement. We do not currently own any other intellectual property.
Patents:
Application No. | Title | Filing Date | Jurisdiction |
1717554.8 | A method of production of phytocannabinoids for use in medical treatments | 10/25/2017 | United Kingdom |
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16/290,708(*) | A method of production of phytocannabinoids for use in medical treatments | 3/1/2019 | United States |
*The United States Patent and Trademark Office approved and granted Patent US10477791 on November 19, 2019.
Patents Cooperation Treaty Filing:
Application No. | Title | Filing Date | Jurisdiction |
2018/077149 | A method of production of phytocannabinoids for use in medical treatments | 10/5/2018 | PCT |
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The protection of proprietary rights relating to our licensed cell-extraction and replication technology is critical for the business. We intend to file additional patent applications to protect certain technology and improvements considered important to the development of the licensed technology and our business. We also intend to rely upon trade secrets, know-how, continuing technological innovation and licensing opportunities, and a comprehensive and robust confidentiality and nondisclosure discipline.
Although we intend to seek patent protection for additionally developed proprietary technology, the patent positions of our products are generally uncertain and involve complex legal and factual questions. Consequently, we do not know whether any current or possible future patent applications will result in the issuance of any patents or whether such patent applications will be circumvented or invalidated. We cannot assure that all U.S. patents that may pose a risk of infringement can or will be identified. In addition, although we do not believe that any patents or other proprietary rights that we license infringe upon the rights of third parties, there may be third parties that hold patents of which we are unaware. This includes competitors or potential competitors that may have filed applications for, or received, patents and obtained additional patents and proprietary rights relating to compounds or processes competitive with those covered under the Integrated License Agreement.
We could incur substantial legal and other costs to protect our proprietary rights against infringement by third parties. Similarly, we cannot assure that others may not assert infringement claims against us in the future, and we recognize that any such assertion may require us to incur legal and other defense costs, enter compromise royalty arrangements, or terminate the use of some technologies. Furthermore, we could face delays in obtaining licenses when we may have infringed on other patents and may encounter delays in product market introductions while attempting to design around conflicting intellectual property rights.
We rely on patented and unpatented trade secrets, and we cannot assure that we can meaningfully protect our rights to them or that others will not independently develop substantially equivalent proprietary information and techniques or otherwise gain access to or disclose our trade secrets and technology. We require confidentiality agreements to be executed in circumstances when our personnel, consultants, and advisors will have access to proprietary information. We cannot assure, however, that these agreements will provide meaningful protection against, or in the event of, unauthorized use or disclosure of such information. Further, disclosures of our proprietary information may enable others to challenge our process or facilitate reverse engineering important components of our technology.
Research and Development
We had no research and development expenditures during the fiscal years ended July 31, 2021 and 2020, and thereafter. Instead, we have benefitted from, and relied on, the research and development of affiliates.
Cannabis Industry
According to trade journals, business news following the cannabis industry worldwide, and public company information available for Canadian companies and U.S. companies domiciling in Canada, the average industry reported (including both private and public companies) cost to grow cannabis flower and trim in an inside-grow facility in California is approximately $800 to $950 per pound, without capital expenses or taxes, and approximately $420 per pound in a typical California greenhouse grow. The end-product flower, before taxation, depending on the state and the strain, is selling for $1,200 a pound to over $4,000 a pound.
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We believe that the combination of the licensed technology and processes could deliver a high-quality plant-derived material at costs below $250 per pound, including the license royalty payments to us in a commercially scaled laboratory, which we estimate is approximately one-third the capital expense cost of a comparable greenhouse grow facility.
Competition
We believe that competition in the commercial cannabinoid industry is based primarily on price per unit, predictable and replicable taste, aroma, and CBD or THC concentration, and compatibility with applicable regulatory requirements.
Cost is a function of both amortization of required capital costs and operating expenses. Based on the efficacy testing to date, we believe that capital costs for our cell-extraction and replication production facilities will compare favorably to capital costs required for a plant-based open-grow greenhouse or an inside-grow hydroponic production facility of similar capacity. Similarly, we project lower per-unit production operating costs for cell-replicated production than open-grow greenhouse or hydroponic production facilities. Our estimates are financial approximations of the economic effects derived during the efficacy testing, and we cannot assure their accuracy for scaled production.
Another principal competitive factor is the replicable and predictable ability of our cell-extraction and replication technology to produce cannabinoids with flavor, aroma, and CBD or THC concentration that accurately mirrors the source cells. A part of this quality consistence and assurance is that laboratory-produced cannabinoids are free of pests, blights, and varied “flower potency” harvests common to the current plant-based live-grow industry. Our planned production and process engineering will address assuring that the satisfactory test results achieved to date can be achieved in large-scale commercial production facilities.
We believe the value to potential commercial partners will be dependent on their ability to scale the application of the technology and trade secret processes in production laboratories at the same or lower capital and operating costs than approaches common to the industry for live-grow plants in outside, greenhouse, or hydroponic production.
As noted and discussed in greater detail below under “Government Approvals and Regulation in the U.S. Cannabis Industry,” we anticipate that our ability to enter commercialization arrangements will face competition from sponsors of live-grow plant production facilities that are more directly and predictably regulated than plant cell-extraction and replication technologies like we use. The need for us and our prospective commercial partners to coordinate regulatory licenses and compliance for our nontraditional production approach may result in delays and regulatory unpredictability that may adversely affect our commercialization efforts. Therefore, to support our commercialization program, we expect that we will need to initiate efforts to obtain any required special clearances from state licensing authorities for our production processes as well as provide continued support to our commercial partners.
We consider anyone producing THC and CBD to be both a prospect for commercializing our licensed science as well as a competitor for any prospective commercialization arrangement. We believe principal competitors for our plant-based process are the synthetic producers, such as Ginko and many others, as well as traditional greenhouse production methods, which claim lower capital costs and higher quality than warehouse grown cannabis. MedMen, for example, enjoys the advantages of established production capabilities. MedMen, headquartered in Culver City, California, is engaged in the clone-to-production cannabis business with operations for cultivation and retail paired in California and eight other U.S. states. These companies have been in the market for many years and have significant resources and established market share. There are a growing number of new entrants of various sizes into the cannabis growing industry that, together with the industry leaders, present a large, diversified, well-funded, and capably managed array of competitors with capital investments in competing cultivation processes. Many of the firms with which our commercial partners will compete have large financial and management resources and established positive industry reputations, distribution channels, customer relationships, operating histories, and reputations. We cannot assure that our licensed science will be able to compete effectively.
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Government Approvals and Regulation in the U.S. Cannabis Industry
Legislation and Interpretation
Thirty-three states and the District of Columbia currently have laws broadly legalizing cannabis in some form for either medicinal or recreational use. However, cannabis is a Schedule I drug under the Controlled Substances Act of 1970, or CSA, and is therefore illegal under federal law. The U.S. Supreme Court has ruled that the federal government has the right to regulate and criminalize the sale, possession, and use of cannabis, even for medical purposes. Thus, even where cannabis has been legalized under state law, its use, possession, or cultivation remains a violation of federal law.
The U.S. Department of Justice, or DOJ, stated that Schedule I controlled substances are “the most dangerous drugs” with “potentially severe psychological or physical dependence.” If the federal government decides to enforce the CSA, those charged with distributing, possessing with intent to distribute, or growing cannabis could be subject to fines of up to $50,000,000 or prison sentences up to life, even if they comply with state law. Further, individuals and entities may violate federal law if they intentionally aid and abet another violator or conspire to do so.
We have not requested or obtained any opinion of counsel or authority ruling to determine whether our operations comply with any state or federal laws or if we are assisting others to violate said laws. If our operations are deemed to violate any state or federal laws or if we are deemed to be assisting others in violating said laws, any resulting liability could cause us to modify or cease our operations until we are able to comply with applicable requirements.
In the light of the conflict between federal and state cannabis laws, in August 2013, under the Obama administration, DOJ Deputy Attorney General James M. Cole issued the Cole Memorandum to U.S. Attorneys providing guidance concerning marijuana enforcement under the CSA. It effectively stated it was not an efficient use of federal resources to direct federal law enforcement agencies to prosecute individuals following state laws that allow medical cannabis. The Cole Memorandum stated that, when states have implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of cannabis, conduct in compliance with those laws is less likely to threaten federal priorities, and that state and local law enforcement and regulatory bodies should remain the primary means of addressing cannabis-related activity.
In January 2018, under the Trump administration, the DOJ issued a policy memorandum on federal marijuana enforcement announcing a return to the rule of law and rescinding previous guidance documents, including the Cole Memorandum. In this memorandum, Attorney General Jeff Sessions directed U.S. Attorneys to determine whether to pursue prosecution of cannabis activity based upon the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of crimes on the community. The DOJ claimed this action was a return of trust and local control to federal prosecutors who knew where and how to deploy federal resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs. Mr. Sessions reiterated that the cultivation, distribution, and possession of marijuana continued to be a crime under the CSA, that it was the DOJ’s mission to enforce the laws of the United States, and that all U.S. Attorneys should use previously established prosecutorial principles to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country. Notwithstanding the change in guidance, year-end reports on the federal judiciary indicated that federal marijuana prosecutions dropped in both 2018 and 2019, even as the total number of defendants charged with drug crimes increased.
On March 11, 2021, Merrick Garland was sworn in as the new U.S. Attorney General. During his campaign, President Biden stated a policy goal to decriminalize possession of cannabis at the federal level, but he has not publicly supported the full legalization of cannabis. During his February 2021 congressional testimony, Mr. Garland stated that he would reinstitute a version of the Cole Memorandum. In his written responses to the Senate Judiciary Committee, he reiterated the statement that the DOJ under his leadership would not pursue cases against Americans “complying with the laws in states that have legalized and are effectively regulating marijuana.” It is not yet known whether the DOJ under President Biden and Attorney General Garland will readopt the Cole Memorandum or announce a substantive marijuana enforcement policy. Mr. Garland indicated at a confirmation hearing before the United States Senate that it did not seem to him to be a useful use of limited resources to pursue prosecutions in states that have legalized and that are regulating the use of marijuana, either medically or otherwise.
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It is unclear what impact, if any, the new administration will have on U.S. federal government enforcement policy on cannabis. Nevertheless, the DOJ could decide to strongly enforce the federal laws applicable to cannabis, causing us significant or irreparable financial damage.
Congress possesses broad authority to change the status of cannabis under the CSA and related federal laws. In each budget cycle since 2014, Congress has passed an appropriations rider known as the “Rohrabacher-Farr Amendment,” barring the DOJ from using taxpayer funds to prevent states from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana. Because the DOJ memorandums serve as discretionary agency guidance and do not constitute a force of law, cannabis-related businesses have worked to continually renew the Rohrabacher-Farr Amendment that has been included in federal annual spending bills since 2014. This amendment does not change the legal status of cannabis, prevent criminal liability, or effect recreational marijuana. It must be renewed each fiscal year to remain in effect, and if Congress repealed the rider, the DOJ could prosecute CSA violations retroactively while the rider was in effect. The U.S. Court of Appeals for the Ninth Circuit held in 2016 that the Rohrabacher-Blumenauer Amendment, or Rohrabacher-Farr Amendment, also prohibits the DOJ from spending funds from other relevant appropriations acts to prosecute individuals who engage in conduct permitted by state medical-use cannabis laws and who strictly comply with said state laws. This opinion applies only to states within the Ninth Circuit in the western United States.
On March 15, 2022, the amendment was renewed through the signing of the fiscal year 2022 omnibus spending bill and will be effective through October 31, 2022. Notably, the Rohrabacher-Farr Amendment has applied only to medical marijuana programs and has not provided the same protections to enforcement against adult-use activities. If the Rohrabacher-Farr Amendment is no longer in effect, the risk of federal enforcement and override of state marijuana laws would increase.
Under the 2018 Agriculture Improvement Act, hemp, a member of the cannabis family, is no longer considered a Schedule I controlled substance under the CSA if it contains less than 0.3 percent THC. Hemp cultivation is now broadly permitted. It is unknown, however, if other cannabis derivatives will be federally legalized.
If the federal government were to strictly enforce federal law regarding cannabis and its chemically active compounds, we would likely be unable to execute our business plan. Even if our activities do not interfere with any of the enforcement priorities of the DOJ, we could be deemed to violate federal law and be unable to conduct our business.
Local and state regulatory regimes generally prohibit cannabinoid-related activities that are not specifically permitted and frequently address only plant live-grow production. We will need to analyze each individual state’s regulations and collaborate with authorities to adapt regulatory regimes to our plant cell-extraction and replication technology. Some jurisdictions may need to amend or revise their statutes and regulations or revise their administrative and enforcement policies to accommodate our production technologies, and we may need to obtain special clearances from state licensing authorities for our plant cell-extraction and replication processes on behalf of commercial partners. We cannot predict whether or how we can meet any state requirements or the time that might be required to do so.
Financial Transactions and Future Laws
Financial transactions involving cannabis-related proceeds may trigger prosecution under federal money laundering statutes, unlicensed money transmitter statutes, and the U.S. Bank Secrecy Act, or BSA. The penalties for violations of these laws include imprisonment, substantial fines, and forfeiture. With the uncertainty surrounding the Cole Memorandum, the risk remains that federal law enforcement authorities could seek to pursue money laundering charges against entities or individuals engaged in supporting the cannabis industry.
In response to the Cole Memorandum, in February 2014, the Financial Crimes Enforcement Network, a division of the U.S. Department of the Treasury, issued guidance regarding how financial institutions can provide services to cannabis-related businesses consistent with their obligations under the BSA. In August 2014, the DOJ further directed federal prosecutors to consider the federal enforcement priorities in the Cole Memorandum when determining whether to charge institutions or individuals with financial crimes based upon cannabis-related activity. Nevertheless, banks remain hesitant to offer banking services to cannabis-related businesses. Thus, it is difficult for
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businesses in the cannabis industry to establish banking relationships. Although we do not produce, transport, or sell cannabis or its products, financial institutions may refuse to do business with us based on their conclusion that our activities are intertwined with the cannabis industry. Our inability to maintain our current bank accounts would make it difficult for us to operate our business, increase our operating costs, and pose additional operational, logistical, and security challenges that could result in our inability to implement our business plan.
The BSA requires us to report currency transactions over $10,000 to the IRS, including identification of customers by name and tax identification number. The BSA also requires us to report certain suspicious activity, including any transaction over $5,000 that we suspect may involve funds from illegal activity or is designed to evade federal regulations or reporting requirements, and to verify sources of funds. Substantial penalties can be imposed against us if we fail to comply with this regulation, which could have a material adverse effect on our business, financial condition, and results of operations. These BSA requirements may adversely affect us because many of the firms with which we may do business rely on cash transactions because of their inability to establish regular banking relationships.
Federal prosecutors have significant discretion, and we cannot ensure that federal prosecutors in the judicial districts in which we operate will not choose to strictly enforce federal cannabis laws. Any change in the federal government’s enforcement posture respecting state-licensed cultivation of cannabis or its chemical components, including the postures of individual federal prosecutors, may result in our inability to execute our business plan, and we would likely suffer significant losses, which would adversely affect the value of our securities.
Should the federal government legalize cannabis for medical use, it is possible that the U.S. Food and Drug Administration, or FDA, would seek to regulate it under the Food, Drug and Cosmetics Act of 1938. Additionally, the FDA may issue rules and regulations, including requirements to use certified good manufacturing practices related to the growth, cultivation, harvesting, and processing of medical cannabis. Clinical trials may be needed to verify efficacy and safety. It is also possible that the FDA would require that facilities where medical cannabis is grown be registered with the FDA and comply with certain federally prescribed regulations. If these regulations were imposed, we do not know what the impact would be on the cannabis industry generally and on us specifically and what costs, requirements, and prohibitions may be enforced. If our commercial partners are unable to comply with the regulations or registration as prescribed by the FDA, they may be unable to continue to operate their businesses in the U.S. markets.
The U.S. House of Representatives has passed the Secure and Fair Enforcement Act (the “SAFE Banking Act”) six times, most recently in February 2022 as an amendment to the America COMPETES Act. Previously, the SAFE Banking Act, as a standalone bill, passed the House by a vote of 321 to 101 on April 19, 2021, with 106 Republicans voting in support. This bill is currently sitting within the Senate’s Committee on Banking, Housing and Urban Affairs awaiting consideration. Should the SAFE Banking Act pass, it will alleviate many of the financial institutions’ concerns regarding transacting with cannabis-related businesses by providing several protective measures, including generally:
·prohibiting federal banking regulators from restricting, penalizing, or discouraging a financial institution or depository institution from providing banking services to a legitimate cannabis-related business;
·establishing that transactions involving proceeds from legitimate cannabis-related businesses are not considered proceeds of unlawful activities and, thus, not within the purview of anti-money laundering regulations;
·establishing that depository institutions are not, under federal law, liable or subject to asset forfeiture for providing loans or other financial services to legitimate cannabis-related businesses;
·prohibiting a federal banking regulator from requesting or ordering a depository institution to terminate its customer relationship with a protected cannabis-related business unless the agency has a legitimate reason not based on reputational risk; and
·amending the reporting requirements for Suspicious Activity Reports, or SARs, and requiring the Financial Crimes Enforcement Network to issue guidance on transactions related to cannabis-related
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businesses that is consistent with the purpose and intent of the SAFE Banking Act and does not significantly inhibit the provision of financial services to said businesses.
The SAFE Banking Act would extend protection to legitimate hemp-related businesses, including CBD businesses. It also requires federal bank regulators to issue annual reports to Congress with: (1) data on availability of access to financial services for minority-owned and women-owned legitimate cannabis-related businesses; and (2) recommendations to further help such businesses access financial services.
If passed, the SAFE Banking Act could pave a path forward for cannabis-related businesses to have ready access to crucial banking and financial services, with federally backed financial institutions being able to work with cannabis companies without fear of incrimination, federal prosecution, and regulatory penalties.
Local and state marijuana laws and regulations are broad in scope and subject to evolving interpretations, which could require us or our commercial partners to incur substantial costs associated with compliance or altering our business plan. Allegations or findings that we have violated these laws could disrupt our business and result in a material adverse effect on our operations. In addition, future regulations may be enacted that are directly applicable to our proposed business. We cannot predict the nature of any future laws, regulations, interpretations, or applications, nor can we determine what effect they may have on our business.
State Border Regulation
Federal law states that cannabis and cannabis products may not be transported across state lines in the United States. As a result, all cannabis consumed in a state must be grown and produced in that same state. To meet this limitation, we intend to enter into commercialization arrangements with third parties that are restricted on a state-by-state basis. Typical cannabis growers cannot import or export crop across state lines to meet product demands. Therefore, excess production capacity in any given state that is not matched by increased demand in that state could exert downward pressure on the retail price for the products. A large number of retail licenses authorized by authorities in any given state could result in increased competition and exert downward pressure on the retail price for cannabinoid products our commercial partners sell.
We initially intend to concentrate our commercialization efforts in the United States. We believe that the value of a potential commercialization of our technology in Canada may be materially lower than in the balance of our territory due to product oversupply and excess production capacity.
Tax Concerns
An additional challenge to cannabis-related businesses is that the provisions of Internal Revenue Code Section 280E are being applied by the U.S. Internal Revenue Service to businesses operating in the medical and adult-use cannabis industry. Section 280E prohibits cannabis businesses from deducting their ordinary and necessary business expenses, forcing them to pay higher effective federal tax rates than similar companies in other industries. The effective tax rate on a cannabis business depends on how large its ratio of nondeductible expenses is to its total revenues. Therefore, businesses in the legal cannabis industry may be less profitable than they would otherwise be.
Overall, the U.S. federal government has specifically reserved the right to enforce federal law regarding the sale and disbursement of medical or adult-use marijuana even if such sale and disbursement is sanctioned by state law. Accordingly, there are several significant risks associated with our business and unless and until the United States Congress amends the CSA respecting medical and/or adult-use cannabis (and we cannot assure the timing or scope of any such potential amendments), there is a significant risk that federal authorities may enforce current federal law, our business may be deemed to be producing, cultivating, extracting, or dispensing cannabis or aiding or abetting or otherwise engaging in a conspiracy to commit such acts in violation of federal law in the United States. We do not intend to produce, transport, market, or sell cannabis products. We are not aware of enforcement determinations or policies under Section 280E targeting software companies, fertilizer companies, greenhouse companies, or similar businesses that provide goods or services to companies that do produce, transport, market, or sell cannabis products.
In the future we may separate components of our business under different subsidiaries in an effort to compartmentalize liability, but we cannot assure that such a strategy will be successful.
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Costs and Effects of Compliance with Environmental Laws
We do not anticipate that our business activities or future business activities will subject us to any environmental compliance regulations. However, our commercial partners may be subject to environmental regulation in the various jurisdictions in which they operate. These regulations mandate, among other things, the maintenance of air and water quality standards and land reclamation. They also set forth limitations on the generation, transportation, storage, and disposal of solid and hazardous waste. The processes and medium formulations that are parts of our licensed technology must be applied, used, and discarded in accordance with these requirements. Environmental legislation is evolving in a manner that will require stricter standards and enforcement, increased fines and penalties for noncompliance, more stringent environmental assessments of proposed projects, and a heightened degree of responsibility for companies and their officers, directors, and employees. We cannot assure that future changes in environmental regulation, if any, will not adversely affect the operations of a commercial partner, which in turn will affect our operations. To address or mitigate environmental compliance concerns, our licensed technology process recycles water, does not use pesticides, and uses compact space.
Government approvals and permits are currently and may in the future be required in connection with the operations of our commercial partners. To the extent such approvals are required and not obtained, our commercial partners may be curtailed or prohibited from production of adult-use or medical cannabis-related products, delaying the development of our operations as currently proposed.
Failure to comply with applicable environmental laws and regulations could subject our commercial partners to regulatory or agency proceedings or investigations and may result in enforcement actions thereunder, including orders issued by regulatory or judicial authorities causing operations to cease or be curtailed, and may include damage awards, fines, penalties, or corrective measures requiring capital expenditures or remedial actions. Our commercial partners may be required to compensate those suffering loss or damage by reason of their operations using our technology, and civil or criminal fines or penalties may be imposed for violations of applicable laws or regulations.
Employees
As of the date of this prospectus, we have three employees, which include, Aristotle Popolizio, our Vice President and Secretary, and who is also a director, Juan Carlos Garcia La Sienra Garcia, our Chief Financial Officer, and Michael Hawthorne our Deputy Chief Executive Officer. We intend to hire additional personnel as we undertake additional laboratory work and launch our commercialization efforts. A significant amount of competition still exists for skilled personnel in the medical cannabis-related industry. Nevertheless, we expect to be able to attract and retain additional employees as necessary, commensurate with the anticipated future expansion of our business. Further, we expect to continue to use consultants, contract labor, attorneys, and accountants as necessary.
Key Consultants
We rely on consultants to provide key technical services in connection with our current laboratory efforts respecting our licensed technology. Key current consultants include:
·Mitch Kahn assists with our technology commercialization effort and long-term strategic planning, based on his experience as a co-founder and chief executive officer of Grassroots Cannabis, which was purchased by Curaleaf Holdings in 2020.
·Chris Ganan assists with our technology commercialization effort and long-term strategic planning, based on his experience as chief strategy officer of Medmen Enterprises Inc.
·Donald Clark is responsible for regulatory compliance and the rollout of full-scale production plants. He has gained regulatory approval for our Research and Development process in California and is working to do the same in other states.
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·David Slomczynski, PhD, has over 20 years’ post-doctoral experience in the fermentation and cell culture fields. He is an expert in analysis and experimental design. Dr. Slomczynski initiates and manages cultures and assists with improving our production process.
·Damien Solomon has substantial cannabis industry plant experience and is advising us regarding product quality and design to meet market trends.
·Sean Akhavan has substantial experience as a chemist in the cannabis industry. He works on product design and quality. He is also an experienced project manager and overseas the management of our research projects.
Each of our consultants has obligations in addition to providing services to us and devotes such time to our company as we may mutually agree.
Our Organization
We were organized in Nevada on April 24, 2008, under the name Planet Resources, Corp., to reprocess mine tailings from previous mining operations. We were not successful in implementing this business plan. Previous management considered various alternatives to ensure our viability and solvency, but those efforts were unsuccessful, and we had no activities between April 2011 and June 2018. To revive our company, a receiver was appointed in a Nevada state court proceeding in August 2015. We were released from receivership in July 2018.
On May 15, 2018, we privately sold 335,000 shares of restricted common stock, which constituted about 56% of our issued common stock, at $1.00 per share to OZ Corporation for consulting services. We subsequently appointed new management and directors. Further, on August 8, 2018, we issued four shares of newly authorized Series A Preferred stock to OZ Corporation in consideration of consulting services. On November 6, 2020, the four shares of Series A Preferred stock were transferred to Cell Science. The Series A Preferred Stock has super voting rights that enable the holder to control the election of our board of directors and, ultimately, our direction.
Following the above change in control, we embarked on a new business plan to license and commercialize cell-extraction and replication technologies, primarily for medical products for pain relief and insomnia. These efforts lead to our initial license agreement with Cell Science in December 2018. As discussed in this prospectus, that original license agreement has since been amended and revised as the Integrated License Agreement.
Our principal executive offices are located at One World Trade Center, Suite 130, Long Beach, California 90831, telephone 858-682-2528. Our corporate internet address is www.bakhuholdings.com. The reference to our website is an inactive textual reference only and is not a hyperlink. The contents of our website are not part of this prospectus, and you should not consider the contents of our website in making an investment decision respecting our common stock.
OZ Corporation, an affiliate, provides our office and office-related equipment and communication facilities, including administrative services, for a fixed monthly fee of $34,000. We intend to find an alternative office facility and enter a long-term office lease with an unaffiliated party at prevailing market rates when increased operations warrant.
In lieu of any reduction to the one-time payment note owed to Cell Science, in January 2022, we accepted assignment of all rights under the lease for the 5,000 square-foot facility and all rights in all laboratory equipment and related assets used in the efficacy demonstration testing process located at 15614 Oxnard Avenue, Sherman Oaks, California.
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MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS
AND ISSUER PURCHASES OF EQUITY SECURITIES.
Market Information
Our common stock is quoted on the Pink Sheets of the OTC Markets Group under the trading symbol “BKUH.” These over-the-counter market quotations reflect inter-dealer prices, without retail mark-up, mark-down, or commission, and may not necessarily represent actual transactions. Since our inception, the sporadic trading activity in our common stock and the fluctuations in our common stock price have been volatile, and we cannot assure that any market for our common stock will be maintained. The following table sets forth the range of high and low closing sales prices for our common stock for each of the periods indicated as reported and summarized by the Pink Tier of the OTC Markets Group:
| Common Stock Prices | ||||
| High |
| Low | ||
Fiscal 2022 |
|
|
|
|
|
Quarter ended July 31, 2022 | $ | 3.30 |
| $ | 0.001 |
Quarter ending April 30, 2022 | $ | 4.00 |
| $ | 3.00 |
Quarter ended January 31, 2022 | $ | 5.01 |
| $ | 2.43 |
Quarter ended October 31, 2021 | $ | 7.99 |
| $ | 3.57 |
|
|
|
|
|
|
Fiscal 2021 |
|
|
|
|
|
Quarter ended July 31, 2021 | $ | 5.21 |
| $ | 2.60 |
Quarter ended April 30, 2021 | $ | 14.00 |
| $ | 4.25 |
Quarter ended January 31, 2021 | $ | 8.65 |
| $ | 4.63 |
Quarter ended October 31, 2020 | $ | 6.10 |
| $ | 4.00 |
|
|
|
|
|
|
Fiscal 2020 |
|
|
|
|
|
Quarter ended July 31. 2020 | $ | 10.80 |
| $ | 4.20 |
Quarter ended April 30. 2020 | $ | 6.05 |
| $ | 4.00 |
Quarter ended January 31, 2020 | $ | 5.25 |
| $ | 2.05 |
Quarter ended October 31, 2019 | $ | 4.55 |
| $ | 4.01 |
There is extremely limited trading volume in our common stock, with no transactions for many consecutive trading days. For example, in the 19 trading days between September 1-28, a total of only 230 shares traded on one day. In the 23 trading days in August, there were transactions on two days for a total of 1,619 shares. In July, a total of 200 shares traded. During June, a total of 4,091 shares traded on two days.
On November 22, 2022, the closing quotation price per share for our common stock on the Pink Tier of the OTC Markets Group was $1.99. We have 392 common stockholders of record. As of November 22, 2022, we had 301,182,983 shares of our common stock issued and outstanding, 12,418,085 shares reserved for issuance on the exercise of vested and unvested options, and 15,000,000 shares reserved for issuance on the exercise of vested and unvested warrants.
No Dividends
Common Stock
No dividends have ever been paid on our common stock. We expect that that any future earnings will be retained for use in developing and expanding our business, and we do not currently anticipate paying any dividends in the foreseeable future. Future dividend policy will be determined by our board of directors in the light of our prevailing financial need and earnings, if any, and other relevant factors.
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Preferred Stock
Under our articles of incorporation, our board of directors is authorized, without stockholder action, to issue preferred stock in one or more series and to fix the number of shares and rights, preferences, and limitations of each series. Among the specific matters, if any, that may be determined by the board of directors are the dividend rate, the redemption price, conversion rights, the amount payable in the event of any voluntary liquidation or dissolution of our company, and voting rights. As of the date of this prospectus, four shares of Series A Preferred Stock were issued and outstanding. This preferred stock has super voting rights that enable the holder to control the election of our board of directors and, ultimately, our direction.
Payment of dividends on the common stock and preferred stock is within the discretion of the board of directors, is subject to state law, and will depend upon our earnings, if any, our capital requirements, financial condition, and other relevant factors.
Transfer Agent and Registrar
Our transfer agent is Colonial Stock Transfer Company, Inc., whose address is 66 Exchange Place, Salt Lake City, Utah 84111.
Securities Authorized for Issuance under Equity Compensation Plans
On September 22, 2020, our board of directors adopted the Bakhu Holdings Corp. 2020 Long-term Incentive Plan (the “2020 Plan”), under which 20,000,000 shares of our common stock were reserved for issuance by us to attract and retain employees and directors and to provide such persons with incentives and awards for superior performance and providing services to us. The 2020 Plan is administered by a committee comprised of our directors or appointed by our board of directors, which has broad flexibility in designing stock-based incentives. The board of directors determines the number of shares granted and the option exercise price, pursuant to the terms of the 2020 Plan.
The following table sets forth information as of July 31, 2022, respecting our equity compensation plans previously approved by stockholders and equity compensation plans not previously approved by stockholders:
| Equity Compensation Plan Information | |||
|
Number of securities to be issued upon exercise of outstanding options, warrants and rights |
|
Weighted average exercise price of outstanding options, warrants and rights | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) |
Plan Category | (a) |
| (b) | (c) |
Equity compensation plans approved by stockholders | 12,418,085(1) | $ | $3.10 | 7,086,269 |
|
|
|
|
|
Equity compensation plans not approved by stockholders | 15,000,000(2) | $ | 3.00 | 0 |
Total | 15,600,000 |
|
| 7,086,269 |
_______________
(1)Represents 400,000 options with an exercise price of $5.10 per share, 718,085 options with an exercise price of $4.50 per share, 200,000 options with an exercise price of $4.20 per share, 540,000 options with an exercise price of $3.40 per share, 2,600,000 options with an exercise price of $3.30 per share, 5,640,000 options with an exercise price of $3.00 per share, 1,400,000 options with an exercise price of $2.60 per share and 920,000 options with an exercise price of $1.50 per share. As of July 31, 2022, 7,086,269 shares were available for issuance under the 2020 Plan. Shares available under the 2020 Plan may be used for any type of award authorized in that plan, including stock options, stock appreciation rights, and full-value awards.
(2)We have 15,000,000 warrants issued outside our 2020 Plan to consultants.
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Non-Equity Incentives
In addition to the above equity incentives, under our amended consulting agreement with Donald Clark’s company, Bus Dev Center, Inc. we have agreed to pay Bus Dev performance bonuses equal to 3% of the sublicense fees, including royalties, paid by three designated sublicensee prospects and 5% of the sublicense fees, including royalties, on all other qualifying sublicensee prospects, in each case until the sublicense terminates or until our company is sold. In lieu of the award of common stock or other equity incentives, we have further agreed to pay Bus Dev pursuant to a sliding scale ranging from 2.0% to 5.0% of the amount by which the consideration received by us or our stockholders in specified liquidity or reorganization events exceeds $30.0 million with certain anti-dilution protection against stock issued after April 30, 2022. These incentives will be reduced by amounts paid in connection with our sublicensing activities as described above. Our agreement with Bus Dev expires January 30, 2023, with payments due respecting covered transactions based on various applicable dates as set forth in the amended consulting agreement.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATION
The following discussion contains forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act relating to future events or our future performance. The following discussion should be read in conjunction with our consolidated financial statements and notes to our financial statements included elsewhere in this prospectus. This discussion contains forward-looking statements that relate to future events or our future performance. Although management believes that the underlying assumptions and expectations reflected in the forward-looking statements are reasonable, we cannot assure that the underlying assumptions will, in fact, prove to be correct or that actual results will not be different from expectations expressed in this prospectus.
Business Overview
Since December 2018, we have focused on testing and commercializing cannabis plant cell-extraction and replication technologies under a technology license granted by Cell Science. This licensed technology uses plant cell-extraction and replication technology and related proprietary equipment, processes, and medium formulations in a commercially-sized bioreactor laboratory to produce, manufacture, and sell plant-based cannabis products—sometimes referred in the industry as cannabinoids—exclusively in North and Central America and the Caribbean for medical, food additive, and recreational uses.
During our fiscal year ended July 31, 2021, we collaborated with Cell Science, through Dr. Peter Whitten, the principal inventor of the technology and an affiliate of both Cell Science and us, to demonstrate application of the technology. In a July 2021 amendment to our license agreement with Cell Science, we altered the testing requirements and accepted the results then achieved, which required us to issue a one-year note for a one-time payment of $3.5 million, subject to specified setoffs, to obtain a fully paid license. In January 2022, we agreed to accept assignment of all rights under the lease for the facility in which the laboratory is located and all rights in all laboratory equipment and related assets used in the Efficacy Demonstration testing process in lieu of any reduction to the one-time payment note. See below and Item 13. Certain Relationships and Related Transactions, and Director Independence.
During our most recent fiscal year completed on July 31, 2022, we expanded our consulting team to support our efforts to organize the launch of our commercialization efforts, identify possible sources of required financing, and initiate conversations with potential commercialization partners, particularly selected multi-state operators with established production, distribution, and marketing infrastructure, expertise, and financing. Conversations with some of these sources and potential commercialization partners continue, but we have not reached any definitive commitments, understandings, or agreements. We are continuing our efforts.
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We now propose to undertake additional work to determining the limits of the technology, maximize production efficiency, reduce production costs, and customize products for prospective commercial partners, which we believe will enhance our commercialization efforts. Subject to successfully completing our ongoing work, we intend to seek to commercialize the licensed technology through joint ventures strategic partners, sublicenses, and other arrangements that may enable us to take advantage of the technical, regulatory relationships and experience, and financial resources of experienced cannabinoid production firms. We intend to authorize these third parties to incorporate the technology into production facilities they fund, build, and operate to produce medical, food additive, and recreational cannabis-related products in compliance with applicable state and federal law. We will need additional financing from external sources for these efforts.
During the last three fiscal years, we have not generated revenue and have devoted our limited management, technical, and financial resources to pay general and administrative expenses in order to position us to be able to commercially exploit the licensed technology after completion of the efficacy testing required to demonstrate its commercial viability, organize our corporate structure, and seek substantial amounts of additional capital required to implement our business plan.
We need additional external capital to continue operations.
Results of Operations
Years Ended July 31, 2022 and 2021
Revenues. We had no revenues during the years ended July 31, 2022 and 2021.
Consulting Fees. Consulting fees were $15,379,799 and $4,892,478 for the years ended July 31, 2022 and 2021, respectively, an increase of $10,487,321, or 214%, as we substantially increased our 2022 fiscal year activities following successful demonstration of the efficacy of our licensed technology near the end of our preceding fiscal year. During the year ended July 31, 2022, we issued 16,420,000 stock options and 15,000,000 stock warrants and recognized stock-based compensation of $14,616,834 as we continued to rely on equity incentives for employees and consultants in the face of limited cash resources. As of July 31, 2022, there was $42,288,293 of total unrecognized stock-based compensation that is expected to be recognized over the vesting period of each option or warrant.
Professional Fees. Professional fees were $900,492 and $535,361 for the years ended July 31, 2022 and 2021, respectively, an increase of $365,131, or 68% during the latter period. Increases in professional fees period over the period resulted from our increased activities and our corresponding periodic reporting obligations under federal securities laws. We expect these increased costs will continue.
Selling, General, and Administrative Expenses. Selling, general, and administrative expenses were $1,762,877 and $1,394,524 for the years ended July 31, 2022 and 2021, respectively, an increase of $368,353, or 26%. The increase period over period is attributable to increasing activities and laboratory expenses, including costs under our office sharing agreement with an affiliate, insurance, equipment, staff and other related laboratory related costs, which we expect will continue to increase.
Other Income (Expenses). We had net other expenses of $2,871,772 and $67,647 for the years ended July 31, 2022 and 2021, respectively, which is over a four-fold increase in fiscal 2022. Included in other expenses for the year ended July 31, 2022, was the impairment of intangible assets in the amount of $2,734,839 associated with the acquisition of tangible and intangible laboratory assets from an affiliate. Also included in other expenses were interest expenses related to our $136,933 in notes payable to related parties for the year ended July 31, 2022. The increase in interest expenses is a result of the increase in loans and notes payable due to related parties, which increased by a principal amount of $4,442,948 from July 31, 2021 to July 31, 2022. We used these borrowed funds for operating expenses.
Net Loss. We had a net loss of $20,914,940 for the year ended July 31, 2022, compared to $6,890,010 for the year ended July 31, 2021, an increase of $14,024,930, or 204%. Since we had no revenues in either year, the increase in net loss was due to the increased expenses as discussed above.
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Liquidity and Capital Resources
As of July 31, 2022
As of July 31, 2022, we had cash of $12,451, compared to $46,929 as of July 31, 2021. We continue to consume working capital in the pursuit of our business plan using proceeds from loans or sales of our equity.
For the year ended July 31, 2022, cash decreased by $34,478 from $46,929 on July 31, 2021 to $12,451 on July 31, 2022.
Net cash used in operating activities was $2,583,430 during the year ended July 31, 2022, because of a net loss of $20,914,940, which was offset by stock-based compensation of $14,616,834, impairment of intangible assets of $2,734,839, depreciation of $76,517, an increase in accounts payable of $766,388, and an increase in accrued liabilities of $136,932.
During the year ended July 31, 2022, we had no net cash flows from investing activities.
During the year ended July 31, 2022, financing activities provided $2,548,952 in net cash, which consisted of $1,606,004 in proceeds from the sale of common stock and $1,058,994 in proceeds from notes payable issued to related parties, which were reduced by $116,046 paid to related parties to reduce outstanding indebtedness.
Future Capital Requirements
Our July 31, 2022, current capital resources plus $1,420,000 in proceeds from our private sale of common stock after July 31, 2022, will not be sufficient to fund our planned laboratory activities, continue our planned efforts to seek to commercialize our licensed technology, and meet other financial requirements during the next 12 months. Our ability to continue as a going concern is contingent upon our ability to obtain capital through the sale of equity or issuance of debt and, ultimately, to attain profitable operations. We expect that we will continue to rely on debt and equity financing from external sources, including related parties during the next 12 months. We cannot assure that we will be able to successfully complete any of these activities.
We are presently seeking debt and equity financing to fund the $3.5 million One-time Payment to Cell Science due January 2023 and the $3,085,013 due for related-party advances and accrued interest under a note due December 31, 2022. We cannot assure, however, that any required financing to repay indebtedness will be obtained or will be available on terms acceptable to us. Any transaction involving the issuance of common stock, or securities convertible into common stock, would result in dilution, possibly substantial, to our existing security holders. Further, we cannot assure that these related parties will extend the payment dates for this indebtedness aggregating about $6.6 million.
We estimate that we will require approximately $8.5 million in external capital to fund our activities during the next 12 months. This consists of between $1.1 million and $1.4 million during the next twelve months for our planned laboratory work to improve and customize our licensed processes. The actual amount of work completed will depend on the amount of capital available for those expenditures. Reductions in available capital would correspondingly delay and disrupt laboratory plans and, in turn, the commencement of our commercialization program that we anticipate will lead to recurring revenue. In addition to the above, we expect that operating capital for planned regular, non-laboratory corporate operations with require between approximately $5.8 million and $6.2 million during the next 12 months. Less available capital will require us to implement cost-cutting measures and may delay planned activities.
To fund the above requirements totaling about $15.1 million, we are currently seeking between $12.0 and $15.0 million through the sale of common stock or convertible debt. We received $1,420,000 from the sale of common stock after July 31, 2021. We have no commitments or agreements to complete the offering.
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We may also seek additional debt and equity financing to fund payment of additional trade and other obligations incurred and costs of implementing our business plan. Our ability to attract debt financing will be substantially impaired by our current lack of both revenues and a robust, viable trading market for our common stock. Accordingly, any debt financing will likely be convertible to common stock, at the lender’s option, at prices discounted to our stock trading price at the time of conversion, which could dilute the interests of existing stockholders. We cannot assure that any such financings will be available, or can be completed on terms acceptable, to us. Any transaction involving the issuance of preferred or common stock, or securities convertible into common stock, would result in dilution, possibly substantial, to our current security holders.
Management’s Plan to Continue as a Going Concern
Our independent registered public accounting firm’s report on our financial statements for the years ended July 31, 2022 and 3031, as for previous years, contains an explanatory paragraph expressing substantial doubt about our ability to continue as a going concern, which may hinder our ability to obtain future financing. In order to continue as a going concern, we will need, among other things, additional capital resources. Management’s plans to obtain capital from the sale of our securities and short-term borrowings from stockholders or related parties when needed. However, management cannot provide any assurance that we will be successful in accomplishing any of our plans. Our ability to continue as a going concern is dependent upon our ability to successfully accomplish the plans described in the preceding paragraph and eventually secure other sources of financing and attain profitable operations.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements.
Critical Accounting Pronouncements
Our financial statements and related public financial information are based on the application of generally accepted accounting principles in the United States (“GAAP”). GAAP requires the use of estimates, assumptions, judgments, and subjective interpretations of accounting principles that have an impact on the assets, liabilities, revenues, and expense amounts reported. These estimates can also affect supplemental information contained in our external disclosures, including information regarding contingencies, risk, and financial condition. We believe our use of estimates and underlying accounting assumptions adhere to GAAP and are consistently and conservatively applied. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances. Actual results may differ materially from these estimates under different assumptions or conditions. We continue to monitor estimates made during the preparation of our financial statements.
Financial Reporting Release No. 60, published by the SEC, recommends that all companies include a discussion of critical accounting policies used in the preparation of their financial statements.
While all these accounting policies impact our financial condition and results of operations, we view certain of these policies as critical. Policies determined to be critical are those that have the most substantial impact on our financial statements and require management to use a greater degree of judgment and estimates. Our management believes that given current facts and circumstances, it is unlikely that applying any other reasonable judgments or estimate methodologies would cause a material effect on our results of operations, financial position, or liquidity for the periods presented in our annual report.
Cash and Cash Equivalents
Cash equivalents include short-term, highly liquid investments with maturities of three months or less at the time of acquisition.
Revenue Recognition
Revenue is recognized upon delivery of goods when the sales price is fixed or determinable and collectability is reasonably assured. Revenue is not recognized until persuasive evidence of an arrangement exists.
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Stock-Based Compensation
We account for stock-based compensation under Accounting Standards Codification Topic 718, “Compensation–Stock Compensation,” using the fair value-based method. Under this method, compensation cost is measured at the grant date based on the value of the award and is recognized over the service period, which is usually the vesting period. This guidance establishes standards for the accounting for transactions in which an entity exchanges its equity instruments for goods or services. It also addresses transactions in which an entity incurs liabilities in exchange for goods or services that are based on the fair value of the entity’s equity instruments or that may be settled by the issuance of those equity instruments.
Advertising
Advertising costs that are not material for the periods presented are expensed as incurred.
Basic and Fully Diluted Net Loss per Share
Basic net loss per common share is based on the weighted average number of shares outstanding during the periods presented. Diluted earnings per share is computed using the weighted average number of common shares plus dilutive common share equivalents outstanding during the period. There are no common stock equivalents as of July 31, 2021 and 2020, and for the periods presented.
Recent Accounting Pronouncements
We have evaluated recent accounting pronouncements and believe that none of them will have a material effect on our financial statements.
DIRECTORS, EXECUTIVE OFFICERS, AND CORPORATE GOVERNANCE
Directors and Executive Officers
Our current directors and executive officers are as follows:
Name |
|
Age |
|
Title | Director Since |
| 49 |
| President, Chief Executive Officer and Chairman of the Board of Directors | January 2020 | |
|
|
|
|
|
|
| 26 |
| Vice President, Secretary and Director | January 2020 | |
|
|
|
|
|
|
| 49 |
| Chief Financial and Accounting Officer | December 2021 | |
|
|
|
|
|
|
Peter Whitton |
| 53 |
| Director | January 2020 |
|
|
|
|
|
|
Tom Vaknin |
| 33 |
| Director | July 2022 |
|
|
|
|
|
|
Moshe Morgenstern |
| 44 |
| Director | July 2022 |
|
|
|
|
|
|
Dr. Michael R. Hawthorne |
| 47 |
| Deputy Chief Executive Officer | N/A |
Term of Office
All our directors hold office until the next annual general meeting of the stockholders or until their successors are elected and qualified. The officers are appointed by, and serve at the pleasure of, our board of directors.
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Family Relationships
There are no family relationships between any of our directors or executive officers, either by blood or by marriage.
Background and Business Experience
The business experience during the past five years of each of the persons serving as an officer of director is described below.
Evripides (Roy) Drakos has served as a director since January 2020 and was appointed as the chairman and our chief executive officer on November 10, 2021. Since 2013, Mr. Drakos has served as an independent business consultant and advisor to various companies. During his services in the last three decades, he has accumulated unique experience through his involvement in technology pioneering and financial engineering in emerging markets, medical science, renewable energy, and hi-tech patent investments. He has also acted as the principal advisor for private equity investments and boutique family offices. Mr. Drakos also supports the satellite communication industry, as his principal activity, focusing on strategy and business development in emerging markets for blue chip satellite communication company. He also offers investment advice to various private equity groups. Motivated through his passion to serve the underserved around the world, Mr. Drakos has accumulated a global network of associates and business leaders actively sharing the same values and vision. As an inspirational leader and investment advisor he is well recognized for his ability to create great value for investors and deliver expansion strategies for high-end pioneering networks and solutions.
Aristotle Popolizio has served as a director since January 2020 and was appointed as the vice president and secretary on September 22, 2020. Since 2019, Mr. Popolizio has served as the head of investor relations at Inter-M Traders Ltd., Limassol, Cyprus, a family office investment fund with offices in Cyprus and New York City, and our affiliate. Mr. Popolizio leads a team in investment research, capital raising, and operational risk management plans and ensures that we are appropriately and strategically positioned with analysts, investors, and stakeholders. Mr. Popolizio has a BS in risk management and a minor in international business from the Smeal College of Business at The Pennsylvania State University. Mr. Popolizio worked as a financial planner for Prudential, in the New York Metro Area, from 2018 through 2019. In January 2017 through June 2018, he worked as a financial advisor for McAdam LLC.
Dr. Peter Whitton has served as a director since January 2020. Dr. Whitton has over 20 years’ experience in plant cell culturing and research. Dr. Whitton has a BSC from the University of London in biology with chemistry and a PhD in biochemistry from Westminster University. He is a member of the Institute of Biology, a chartered biologist, a member of the Royal Society of Chemistry, and a Fellow of the Institute of Biomedical Sciences. Dr. Whitton has provided advisory services to leading pharmaceutical companies such as GlaxoSmithKline, Brentford, United Kingdom, and Boots, Nottingham, United Kingdom, on regulatory strategy, as well as directing research and providing toxicology advice to Pfizer Pharmaceutical Company, Parsippany, New Jersey. Between 2004 and 2010, Dr. Whitton served as director and chief scientific officer for Naturally Scientific Technologies Ltd., Nottingham, United Kingdom, where he developed and patented methods for the production of glyceraldehyde from CO2 and the production of lipids using plant cell culture technologies. Prior to joining Naturally Scientific, Dr. Whitton ran and managed his own research organization, Phyto-Research Ltd., Loughborough, United Kingdom, for five years and secured numerous patents in the field of plant tissue cultures and natural sciences, as well as providing research and advisory services to leading pharmaceutical companies and universities. During this period, Dr. Whitton also worked with The Serious and Organized Crime Directorate of the Metropolitan Police, New Scotland Yard, London, United Kingdom, with Assistant Commissioner Tarique Gaffur on the development of new drug and explosive detection techniques. Dr. Whitton held the position of senior scientist between 1994 and 1999 for Phyto Medica Ltd, Hinckley, United Kingdom, specializing in the preparation of herbal-based remedies and cosmetics and was responsible for research, quality, and conformance with British Pharmacopeia Standards and compliance with Cosmetic Safety regulations. Dr. Whitton was the lead inventor of bio-technology patents, with a particular focus on the use of plant cell technology for industrial applications. Dr. Whitton was a co-founder in 2016 and currently services as a director of Lykke Research Ltd., Syston Leicester, United Kingdom, a bio-technology company that has developed and patented a process to produce the API (Active Pharmaceutical Ingredient) from the Hoodia Gordonii plant from cell cultures for use in the dietary supplements market as an appetite suppressant.
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Juan Carlos Garcia La Sienra Garcia was appointed as our chief financial officer on December 7, 2021, and also served as a director from December 7, 2021 until his resignation from the Board on July 29, 2022. Mr. Garcia is a co-founder and chief executive officer of Borromeo Group, Mexico City, Mexico, a business and financial consulting firm, and has served in this capacity since August 2018. Mr. Garcia is the former President of Woodbook Group Holdings, Inc., an international firm of financial consultants, with its principal office located in Cyprus, the founder and president of EPR Holdings, located in The Woodlands, Texas, a provider of disbursement solutions for banking networks, closed-loop electronic payment networks, and merchant retail networks. From January 2016 to August 2018, Mr. Garcia was the chief financial officer of TCB Pay LTD, Henderson, Nevada, which is a merchant processing solutions company, and president of HGM Capital Los Angeles, California, a loyalty program processing entity. From January 2011 until February 2015, Mr. Garcia was the vice-president of business development and a co-founder of CorpoRed, Mexico City, Mexico, a technology solutions company that allows users to sell products and services electronically, without a credit card, handling all operations by bank deposits. Mr. Garcia started his career working at PWC (international tax area) and served as chief financial officer of Blue Label Telecoms, Reebok, and First Data. Mr. Garcia graduated from Anahuac University with a CPA (1997) and a master’s in finance (1998).
Tom Vaknin was appointed as a director on July 29, 2022. Mr. Vaknin is a serial tech entrepreneur focusing on enterprise software and Fintech. Mr. Vaknin is the Co-Founder and Co-CEO of Pay.com, US, UK, CY, with offices in NY, London, Limassol, an EU Regulated payment institution which launched in 2020 and is currently expanding with five global offices. Mr. Vaknin was the Co-Founder and Chief Technical Officer of Engage.com, Tel Aviv, Israel from August 2018 to November 2020, working to reinvent and transform the customer engagement space to make it more effective, efficient, and evocative, using cutting-edge AI. Mr. Vaknin served as the Co-Founder and Chief Technical Officer of Interactbot, Tel Aviv Area, Israel, From April 2017 to July 2018, and Co-founder and Chief Technical Officers of The ORG7, Tel Aviv, Israel, from February 2015 to January 2016. Mr. Vaknin earned a B.A., MIS Management Information Systems from The College for Academic Studies, Tel Aviv, Israel, in 2014.
Moshe Morgenstern was appointed as a director on July 29, 2022. Mr. Morgenstern has over 18 years of experience in management and global business development in finance and insurance and since 2017 has served as the Deputy CEO and Chief Information Office of Menora Mivtachim Insurance Ltd., one of the largest publicly traded financial services organizations in Israel. As a senior executive, his key roles include product development, partnership growth, legacy system automation, and investment in Fintech and Insurtech start-up companies. He has led numerous large-scale projects throughout his career, including multi-interface data integration, service improvement and efficiency, AI-based digital processes, and cross-platform automation and robotics (RPA) tools. Mr. Morgenstern served as Deputy CEO and Director, Life Insurance Division from 2011 to 2017, and Strategy, Product Development, and Computing – Life Insurance Division from 2003 to 2011. Mr. Morgenstern was awarded the Best Chief Information Officer of the year in 2020 at Israel's Conference of Information Technology and recognized as Chief Information Officer of the Year in 2019 by People and Computers Magazine. Mr. Morgenstern earned a BA in Business Administration from Ruppin Academic Center at Emek Hefer, Israel in 2014.
Dr. Michael R. Hawthorne was appointed our deputy chief executive officer on February 11, 2022. Dr. Hawthorne has served as the executive chairman of Domainex Ltd (Cambridge, UK), a global drug discovery contract research organization, since August 2021 and as an advisor to Closed Loop Medicine Ltd (London, UK) since 2017. Dr. Hawthorne was awarded a Fellowship of The Royal Society of Biology in 2020 in recognition of his contribution to global biosciences. Dr. Hawthorne is an investor and has served as a director of BG Capital (USA) from 2016 to present.
Directorships
No director or person nominated or chosen to become a director holds any other directorship in any company with a class of securities registered pursuant to Section 12 of the Exchange Act, or subject to the requirements of Section 15(d) of such act or any other company registered as an investment company under the Investment Company Act of 1940.
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Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires our directors, executive officers, and persons that own more than 10% of a registered class of our equity securities to file with the SEC initial report of ownership and reporting of changes in ownership of our equity securities. Officers, directors, and greater than 10% stockholders are required to furnish us with copies of all Section 16(a) forms they file.
Based solely on its review of the copies of such forms filed with the SEC electronically, received by us and representations from certain reporting persons, we believe that for the fiscal year ended July 31, 2022, the required beneficial ownership reports have been filed by all officers and directors, but certain beneficial owners of more than 10% of equity have failed to file the required reports. We have requested that such parties file the delinquent reports to comply with its filing requirements.
Code of Ethics
On September 22, 2020, we adopted a Code of Ethics that applies to our principal executive officer, principal financial officer, and principal accounting officer that is reasonably designed to deter wrongdoing and to promote:
·honest and ethical conduct, including ethical handling of actual or apparent conflicts of interest between personal and professional relationships;
·full, fair, accurate, timely, and understandable disclosure in SEC reports and in other public communications;
·compliance with applicable governmental laws, rules, and regulations;
·prompt internal reporting of violations of the Code of Ethics to the appropriate person or persons identified in the Code of Ethics; and
·accountability for adherence to the Code of Ethics.
The description of the Code of Ethics contained in this prospectus is qualified in its entirety by reference to the full text of the Code of Ethics, which is incorporated by reference to the full text of the charter filed as Exhibit 14.01 to our Current Report on Form 8-K filed October 1, 2020. The Code of Ethics is also available on our website at www.bakhuholdings.com.
Committees of the Board
In the absence of any applicable regulatory or trading exchange requirement, we currently do not have nominating, compensation, or audit committees or committees performing similar functions, and we do not have written nominating, compensation, or audit committee charters. Our board of directors believes that it is not necessary to have these committees, at this time, because the directors can adequately perform the functions of such committees.
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Summary Compensation Table
The following table sets forth, for each of our last two completed fiscal years, the dollar value of all cash and noncash compensation earned by any person who was our principal executive officer and each of our three most highly compensated other executive officers or persons who were serving in such capacities during the preceding fiscal year (“Named Executive Officers”):
Name and Principal Position | Year Ended July 31 | Salary ($) | Bonus ($) | Option Awards ($) | Non Equity Incentive Plan Compen- sation | All Other Compen- sation ($) | Total ($) |
(a) | (b) | (c) | (d) | (f) | (g) | (i) | (j) |
2022 | - | - | $1,591,896 | - | - | $1,591,896 | |
President and CEO | 2021 | - | - | $ 711,246 | - | - | $ 711,246 |
|
|
|
|
|
|
|
|
Thomas K. Emmitt(1) | 2022 | - | - | - | - | - | - |
President and CEO | 2021 | - | - | $ 711,246 | - | - | $ 711,246 |
|
|
|
|
|
|
|
|
2022 | $ 80,000 | - | $1,591,896 | - | - | $1,671,896 | |
Vice President and Secretary | 2021 | - | - | $ 711,246 | - | - | $ 711,246 |
|
|
|
|
|
|
|
|
2022 | $ 30,000 | - | $ 430,561 | - | - | $ 460,561 | |
Chief Financial Officer | 2021 | - | - | - | - | - | - |
|
|
|
|
|
|
|
|
Michael Hawthorne | 2022 | - | - | $ 455,982 | - | - | $ 455,982 |
Deputy CEO | 2021 | - | - | - | - | - | - |
Narrative Disclosure to Summary Compensation Table
Mr. Emmitt was appointed as the president, chief executive officer, secretary, chief financial officer, and director on May 15, 2018, and served in such capacities until his resignation on September 16, 2021. Mr. Emmitt served without compensation through September 22, 2020. On September 22, 2020, Mr. Emmitt was granted a non-qualified stock option to purchase 300,000 shares of common stock at an exercise price per share of $5.10. As of July 31, 2022, Mr. Emmitt held unexercised vested options to purchase 100,000 shares of common stock at $5.10 per share.
Mr. Drakos was appointed as a director on January 7, 2020, and as the chief executive officer and chairman on November 10, 2021. On September 22, 2020, Mr. Drakos was granted a non-qualified stock option to purchase 300,000 shares of common stock at an exercise price of $5.10 per share. On January 5, 2022, Mr. Drakos was granted a non-qualified stock option to purchase 700,000 shares of common stock at an exercise price of $2.60 per share, and on April 18, 2022, Mr. Drakos was granted a non-qualified stock option to purchase 1,300,000 shares of common stock at an exercise price of $3.30 per share. As of July 31, 2021, Mr. Drakos held unexercised vested options to purchase 941,665 shares of common stock.
Mr. Popolizio was appointed as a director on January 7, 2020, and as the vice president and secretary of September 22, 2022. On September 22, 2020, Mr. Popolizio was granted a non-qualified stock option to purchase 300,000 shares of common stock at an exercise price of $5.10 per share. On January 5, 2022, Mr. Popolizio was granted a non-qualified stock option to purchase 700,000 shares of common stock at an exercise price of $2.60 per share, and on April 18, 2022, Mr. Popolizio was granted a non-qualified stock option to purchase 1,300,000 shares of common stock at an exercise price of $3.30 per share. As of July 31, 2021, Mr. Popolizio held unexercised vested options to purchase 941,665 shares of common stock.
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Mr. La Sienra Garcia was appointed as a director and chief financial officer on December 7, 2021. On December 7, 2021, Mr. La Sierna Garcia was granted a non-qualified stock option to purchase 300,000 shares of common stock at an exercise price of $3.40 per share. On July 29, 2029, Mr. La Sienra Garcia was granted a non-qualified stock option to purchase 160,000 shares of common stock at an exercise price of $1.50 per share. As of July 31, 2021, Mr. La Sienra Garcia held unexercised vested options to purchase 180,000 shares of common stock.
Mr. Hawthorne was appointed the Deputy chief executive officer on February 11, 2022, and was granted a non-qualified stock option to purchase 2,000,000 shares of common stock at an exercise price of $3.00 per share. As of July 31, 2022, Mr. Hawthorne held unexercised vested options to purchase 749,988 shares of common stock.
Director Compensation
On September 22, 2020, pursuant to our 2020 Long-Term Incentive Plan, or 2020 Plan, we granted to each of Thomas K. Emmitt, Dr. Peter Whitton, Aristotle Popolizio, and Evripides (Roy) Drakos, a non-qualified seven-year stock option to purchase 300,000 shares of common stock, for a total of 1,200,000 shares, at an exercise price of $5.10 per share, which was the approximate fair market value of our common stock as of the date of grant. Options for 60,000 shares vested and became exercisable immediately, with the remaining options vesting at the rate of 1/12 per month thereafter, so that all options will be fully vested and exercisable on the first anniversary of the date of grant. We also reimburse our non-employee directors for out-of-pocket expenses incurred in connection with attending board and committee meetings and have entered into an indemnification agreement with each of them.
The following table sets forth information concerning the compensation of our directors, for fiscal year ended July 31, 2022:
Name
| Fees earned or paid in cash ($) | Option Awards ($) | All Other Compen- sation ($) | Total ($) |
|
|
|
|
|
- | $1,591,896 | - | $1,591,896 | |
|
|
|
|
|
$ 80,000 | $1,591,896 | - | $1,671,896 | |
|
|
|
|
|
Peter Whitton | - | - | - | - |
|
|
|
|
|
Sagi Rozen(3) | - | $ 382,074 | - | $ 382,074 |
|
|
|
|
|
$ 39,000 | $ 430,561 | - | $ 469,561 | |
|
|
|
|
|
Tom Vaknin(5) | - | $ 40,195 | - | $ 40,195 |
|
|
|
|
|
Moshe Morgenstern(5) | - | $ 40,195 | - | $ 40,195 |
(1)Includes the aggregate grant date fair value of 700,000 options with an exercise price of $2.60 per share granted on January 5, 2022, and 1,300,000 options with an exercise price of $3.30 per shares granted on April 18, 2022, as computed in accordance with FASB ASC Topic 718.
(2)For Mr. Popolizio, reflects $80,000 cash compensation for his service as our vice president and secretary and includes the aggregate grant date fair value of 700,000 options with an exercise price of $2.60 per share granted on January 5, 2022, and 1,300,000 options with an exercise price of $3.30 per shares granted on April 18, 2022, as computed in accordance with FASB ASC Topic 718.
(3)Mr. Rozen ceased serving on the Board as of July 29, 2022. Includes the aggregate grant date fair value of 300,000 options with an exercise price of $3.00 per share granted on December 3, 2021, and 160,000 options with an exercise price of $1.50 per shares granted on July 29, 2022, as computed in accordance with FASB ASC Topic 718.
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(4)Mr. La Sienra Garcia ceased serving on the Board as of July 29, 2022, but continues to serve as our chief financial officer. For Mr. La Sienra Garcia, reflects $39,000 cash compensation for his service as our Chief Financial Officer, and includes the aggregate grant date fair value of 300,000 options with an exercise price of $3.40 per share granted on December 7, 2021, and 160,000 options with an exercise price of $1.50 per shares granted on July 29, 2022, as computed in accordance with FASB ASC Topic 718.
(5)Includes the aggregate grant date fair value of 300,000 options with an exercise price of $1.60 per share granted on July 29, 2022, as computed in accordance with FASB ASC Topic 718.
Outstanding Equity Awards at Fiscal Year End
The following table provides information for the named executive officers on stock option holdings as of July 31, 2022.
Name |
Grant Date | Number of Shares of Stock Underlying Unexercised Vested Options (#) | Number of Shares of Stock Underlying Options that Have Not Vested (#) | Equity Incentive plan awards: Number of securities underlying unexercised unearned options (#) | Option Exercise Price ($) | Option Expiration Date | |
9/22/2020(1) | 100,000 | - | - | $ | 5.10 | 9/22/2027 | |
President and CEO | 1/5/2022(2) | 408,333 | 291,667 | - | $ | 2.60 | 1/4/2029 |
| 4/18/2022(3) | 433,332 | 866,668 | - | $ | 3.30 | 4/17/2029 |
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|
|
|
|
|
|
|
9/22/2020(1) | 100,000 | - | - | $ | 5.10 | 9/22/2027 | |
Vice President and | 1/5/2022(4) | 408,333 | 291,667 | - | $ | 2.60 | 1/4/2029 |
Secretary | 4/18/2022(5) | 433,332 | 866,668 | - | $ | 3.30 | 4/17/2029 |
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|
|
|
|
|
|
|
Juan Carlos Garcia La Sienra Garcia |
12/6/2021(6) | 140,000 | - | 160,000 | $ | 3.40 | 12/5/2028 |
CFO | 7/29/2022(7) | 40,000 | 120,000 | - | $ | 1.50 | 7/28/2029 |
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|
|
|
|
|
|
|
Michael Hawthorne | 2/11/2022(8) | 749,988 | 1,250,012 | - | $ | 3.00 | 2/10/2029 |
Deputy CEO |
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|
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|
|
|
(1)Vesting commenced 9/22/2020 at a rate of 1/12 per month over 12 months.
(2)Vesting commenced 1/31/2022 at a rate of 1/12 per month over 12 months. 100% of the options immediately vest (i) in the event of a Change in Control, or (ii) the optionee’s resignationas the chief executive officer (and not due to death or disability), or is not being reappointed in order to provide for the appointment of a new chief executive officer. In the event of the acceleration of vesting, such options shall remain exercisable for full term through the expiration date of such options.
(3)Vesting commenced 4/30/2022 at a rate of 1/12 per month over 12 months. 100% of the options immediately vest (i) in the event of a Change in Control, or (ii) the optionee’s resignation as the chief executive officer (and not due to death or disability), or is not being reappointed in order to provide for the appointment of a new chief executive officer. In the event of the acceleration of vesting, such options shall remain exercisable for full term through the expiration date of such options.
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(4)Vesting commenced 1/31/2022 at a rate of 1/12 per month over 12 months. 100% of the options immediately vest (i) in the event of a Change in Control, or (ii) the optionee’s resignation as the vice president (and not due to death or disability), or is not being reappointed in order to provide for the appointment of a new vice president. In the event of the acceleration of vesting, such options shall remain exercisable for full term through the expiration date of such options.
(5)Vesting commenced 4/30/2022 at a rate of 1/12 per month over 12 months. 100% of the options immediately vest (i) in the event of a Change in Control, or (ii) the optionee’s resignation as vice president (and not due to death or disability), or is not being reappointed in order to provide for the appointment of a new vice president. In the event of acceleration of vesting, such options shall remain exercisable for full term through the expiration date of such options.
(6)60,000 options vested immediately with the balance vesting at the rate of 1/12 per month over 12 months commencing 12/31/2021.
(7)Mr. La Sienra Garcia resigned as a director on July 29, 2022. As of the date of his resignation, options to purchase 140,000 shares were vested and remain exercisable through December 2, 2028, except in the event of his death, in which case such options will terminate if not exercised within six months.
(8)40,000 options vested immediately with the balance vesting at the rate of 1/12 per month over 6 months commencing 8/29/2022. The 100% of the options immediately vest in the event of a Change in Control.
(9)Vesting commenced 2/28/2022 at a rate of 1/48 per month over 48 months. In the event of a Change in Control, there shall be an acceleration of the vesting of the number options equal to 1,000,000 minus the number of options already vested.
Options Exercises at Fiscal Year End
There were no exercises of stock options during the fiscal year ended as of July 31, 2022.
Long Term Equity Incentive Plan
On September 22, 2020, the board of directors adopted the 2020 Plan, under which 20,000,000 shares of our common stock were reserved for issuance by us to attract and retain employees and directors and to provide such persons with incentives and awards for superior performance and providing services to us. The 2020 Plan is administered by a committee comprised of our board of directors or appointed by the board of directors, which has broad flexibility in designing stock-based incentives. The board of directors determines the number of shares granted and the option exercise price pursuant to the 2020 Plan.
Under the 2020 Plan, incentive stock options may be granted only to our employees and non-qualified stock options, stock purchase rights, restricted stock units, and performance stock awards may be granted to employees, directors, or consultants who are natural persons under contract with us to provide bona fide services that are not in connection with a capital-raising transaction or do not directly or indirectly promote or maintain a market for our securities.
The 2020 Plan was effective on adoption by the board and will continue in effect for a term of no more than 10 years. The 2020 Plan was approved by the stockholders effective September 10, 2021. The board may amend, alter, suspend, or terminate the 2020 Plan, and material amendments to the 2020 Plan may require stockholder approval. The 2020 Plan provides for adjustments in the number of shares of common stock covered by each outstanding option award resulting from a future recapitalization. In the event of a merger with another company or the sale of substantially all of our assets, each outstanding stock option award will be assumed, or an equivalent option award will be substituted, by the successor corporation.
Awards under the 2020 Plan cannot be sold, pledged, or assigned and may only be transferred under limited circumstances by will or by the laws of descent to immediate family members as defined in the 2020 Plan.
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Officer and Director Changes
Thomas K. Emmett
On September 16, 2021, we accepted the resignation of Thomas K. Emmitt as a director and as president and chief executive officer. As of the date of his resignation Mr. Emmitt held options to purchase 20,000 shares of common stock that were unvested and would have vested on September 22, 2021. In the light of Mr. Emmitt’s long-standing service, we agreed to accelerate the vesting of the remaining 20,000 options. Mr. Emmitt currently holds vested options to purchase 100,000 shares of common stock that are exercisable until September 16, 2022.
Appointment and Resignation of Teddy C. Scott as Chairman and Chief Executive Officer
On September 16, 2021, we appointed Teddy C. Scott, Jr., as chairman and chief executive officer. We agreed to pay Dr. Scott an annualized base salary of $1.00 and granted him a non-qualified seven-year option to purchase 5,000,000 shares of common stock at $4.50 per share, which was approximately equal to the closing price for our common stock on the date of grant, pursuant to the terms of our 2020 Plan. Options to purchase 625,000 shares vested immediately, and options to purchase 93,085 shares were to vest monthly thereafter.
Dr. Scott resigned as a director and chief executive officer on November 10, 2021. As of the date of his resignation, options to purchase 718,085 shares vested immediately and are exercisable through September 16, 2031, except in the event of his death, in which case such options will terminate if not exercised within six months. Options to purchase the remaining 4,281,915 shares terminated upon Dr. Scott’s resignation as a director.
Appointment of Evripides Drakos as Chairman, President, and Interim Chief Executive Officer
On November 11, 2021, we appointed Evripides (Roy) Drakos, a current director, to serve as our chairman and chief executive officer.
Appointment of Sagi Rami Rozen as a Director
On December 3, 2021, we appointed Sagi Rami Rozen to serve as a director and granted him a non-qualified seven-year option to purchase 300,000 shares of common stock at $3.00 per share, which was approximately equal to the closing price for our common stock on the date of grant. Options to purchase 60,000 shares vested at grant, and options to purchase 20,000 shares vest monthly thereafter.
Appointment of Juan Carlos Garcia La Sienra Garcia as a Director and Chief Financial Officer
On December 6, 2021, we appointed Juan Carlos Garcia La Sienra Garcia to serve as a director and our Chief Financial and Accounting Officer. Mr. Garcia is our “at will” employee at an annual salary of $60,000. If we terminate Mr. Garcia’s employment for any reason, we will be obligated to pay him: (i) any unpaid base salary earned through the date of termination; (ii) reimbursement for unreimbursed business expenses; and (iii) such equity compensation, if any, to which Mr. Garcia may be entitled as of the date of termination. We granted Mr. Garcia a seven-year option to purchase 300,000 shares of common stock at $3.40 per share, which was approximately equal to the closing price for our common stock on the date of grant. Options to purchase 60,000 shares vested immediately, and options to purchase 20,000 shares vest monthly thereafter.
Appointment of Dr. Michael R. Hawthorne as our Deputy Chief Executive Officer
On February 11, 2022, we appointed Dr. Michael R. Hawthorne as our deputy chief executive officer and engaged him as an “at will” employee at an annual salary of $1.00. We granted Dr. Hawthorne a non-qualified seven-year option to purchase 2,000,000 shares of common stock at $3.00 per share, which was approximately equal to the closing price for our common stock on the date of grant. The options vest at the rate of 41,667 shares per month, except options to purchase 1,000,000 shares vest in the event of a change of control.
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Resignation of Sagi Rami Rozen as a Director
Sagi Rozen resigned as a director on July 29, 2022. As of the date of his resignation, options to purchase 140,000 shares were vested and remain exercisable through December 2, 2028, except in the event of his death, in which case such options will terminate if not exercised within six months. The remaining 160,000 options granted under the December 3, 2021 option terminated upon Mr. Rozen’s resignation as a director.
Resignation of Juan Carlos Garcia La Sienra Garcia as a Director
Juan Carolos Garcia La Sienra Garcia resigned as a director on July 29, 2022. As of the date of his resignation, options to purchase 140,000 shares were vested and remain exercisable through December 2, 2028, except in the event of his death, in which case such options will terminate if not exercised within six months. The remaining 160,000 options granted under the December 3, 2021 option terminated upon Mr. La Sienra Garcia’s resignation as a director.
Appointment of Tom Vaknin as a Director
On July 29, 2022, we appointed Tom Vaknin to serve as a director and granted him a non-qualified seven-year option to purchase 300,000 shares of common stock at $1.50 per share, consistent with the price at which the Company is currently seeking financing and the price at which the Company has recently sold shares of its common stock for cash. Such options shall be exercisable for seven (7) years. Subject to the Plan, 60,000 of the Options will immediately vest and be exercisable on the date of grant, and 20,000. Options shall vest on the last day of each calendar month, commencing with the calendar month of the date of grant, for a period of twelve (12) months thereafter such that 100% of the Options shall be vested at the end of the calendar month immediately following the one year anniversary of the date of grant. 100% of the options immediately vest in the event of a Change in Control.
Appointment of Moshe Morgenstern as a Director
On July 29, 2022, we appointed Moshe Morgenstern to serve as a director and granted him a non-qualified seven-year option to purchase 300,000 shares of common stock at $1.50 per share, consistent with the price at which the Company is currently seeking financing and the price at which the Company has recently sold shares of its common stock for cash. Such options shall be exercisable for seven (7) years. Subject to the Plan, 60,000 of the Options will immediately vest and be exercisable on the date of grant, and 20,000 Options shall vest on the last day of each calendar month, commencing with the calendar month of the date of grant, for a period of twelve (12) months thereafter such that 100% of the Options shall be vested at the end of the calendar month immediately following the one year anniversary of the date of grant. 100% of the options immediately vest in the event of a Change in Control.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The following tables sets forth certain information, as of October 31, 2022, respecting the beneficial ownership of our outstanding common stock by: (i) any holder of more than 5%; (ii) each of the Named Executive Officers (defined as any person who was principal executive officer during the preceding fiscal year and each other highest compensated executive officers earning more than $100,000 during the last fiscal year) and directors; and (iii) our directors and Named Executive Officers as a group, based on 301,182,983 shares of common stock and four shares of Series A Preferred Stock outstanding:
Security Ownership of Certain Beneficial Owners
|
| Common Stock |
| Preferred Stock |
| Combined | |||
Name and Address |
| Shares | Percent |
| Shares | Percent |
| Total | Combined |
|
|
|
|
|
|
|
|
|
|
Cell Science Holding Ltd. (1) and (2) |
| - | 0.00% |
| 4 | 100.00% |
| 1,204,731,932 | 80.00% |
|
|
|
|
|
|
|
|
|
|
Inter-M Traders FZ LLE (1) (2) and (3) |
| 116,783,555 | 38.77% |
| 4 | 100.00% |
| 1,321,515,487 | 87.75% |
|
|
|
|
|
|
|
|
|
|
Mentone Ltd. (1) (2) and (4) |
| 6,000,000 | 1.99% |
| 4 | 100.00% |
| 1,210,731,932 | 80.40% |
|
|
|
|
|
|
|
|
|
|
The OZ Corporation (1)(2) and (5) |
| 10,980,994 | 3.65% |
| 4 | 100.00% |
| 1,215,712,926 | 80.73% |
|
|
|
|
|
|
|
|
|
|
Petro Charalambous (1) and (2) |
| 116,783,555 | 38.77% |
| 4 | 100.00% |
| 1,321,515,487 | 87.75% |
|
|
|
|
|
|
|
|
|
|
Peter Whitton (1) (2) (4) and (6) |
| 30,043,562 | 9.97% |
| 4 | 100.00% |
| 1,234,775,494 | 81.99% |
|
|
|
|
|
|
|
|
|
|
John R. Munoz (1) (2) and (5) |
| 14,148,994 | 4.70% |
| 4 | 100.00% |
| 1,218,880,926 | 80.94% |
|
|
|
|
|
|
|
|
|
|
Geoffrey Dixon (1) (2) (4) and (7) |
| 29,952,188 | 9.94% |
| 4 | 100.00% |
| 1,234,684,120 | 81.99% |
|
|
|
|
|
|
|
|
|
|
Karl Watkin (1) (2) (4) and (8) |
| 32,952,187 | 10.94% |
| 4 | 100.00% |
| 1,237,684,119 | 82.19% |
There are 301,182,983 shares of common stock and four (4) shares of Series A Preferred Stock outstanding. Each share of Series A Preferred Stock has voting rights equal to four (4) times the aggregate votes of the total number of shares of common stock issued and outstanding plus the total number of votes of all other classes of preferred stock issued and outstanding, divided by the number of shares of Series A Preferred Stock issued and outstanding, which have an equivalent of 1,204,731,932 votes.
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Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission (“SEC”) which generally attribute beneficial ownership of securities to person, entity or group that directly or indirectly has or shares voting power or investment power with respect to those securities and includes the power to dispose, or direct the disposition of such securities, and includes shares of our common stock issuable pursuant to the exercise of stock options, warrants, preferred stock or other securities that are immediately exercisable or convertible or exercisable or convertible within 60 days.
* To calculate a stockholder’s percentage of beneficial ownership of common stock, we must include in the numerator and denominator those shares of common stock underlying options, warrants and convertible securities that such stockholder is considered to beneficially own. Shares of common stock underlying options, warrants and convertible securities held by other stockholders, however, are disregarded in this calculation. Therefore, the denominator used in calculating beneficial ownership of each of the stockholders may be different.
(1)Under the rules of the Securities and Exchange Commission, the named person or group is deemed to be the beneficial owner of all shares over which he or it exercises sole or shared dispositive or voting control, which includes the four (4) shares of Series A Preferred Stock owned of record by Cell Science.
(2)Cell Science is owned by Inter-M Traders FZ LLE (40%), Mentone Ltd (30%), and The OZ Corporation (30%). The sole director of Cell Science is Petros Charalambous. Each of the foregoing is deemed to beneficially own the four (4) shares of Preferred Stock owned by Cell Science.
(3)Inter-M Traders FZ LLE is owned and controlled by Petros Charalambous, and therefore Mr. Charalambous is deemed to beneficially own the shares owned by Inter-M Traders FZ LLE, which consists of 116,783,555 shares of common Stock, and the four (4) shares of Series A Preferred Stock owned beneficially through Cell Science.
(4)Mentone Ltd. is owned by Peter Whitton, Geoffrey Dixon, and Karl Watkin. Each of the foregoing is deemed the beneficial owner of shares of Common Stock owned by Mentone, Ltd, and the four (4) shares of Series A Preferred Stock owned beneficially through Cell Science.
(5)The OZ Corporation is owned and controlled by John R. Munoz. Each of the foregoing is deemed to beneficially own 10,980,994 shares of Common Stock owned beneficially and of record directly, 3,168,000 shares owned of beneficially by John R. Munoz, and four (4) shares of Series A Preferred Stock owned by Cell Science, of which The OZ Corporation is a 30% owner.
(6)Consists of 23,943,562 shares of Common Stock owned beneficially and of record directly, 6,000,000 shares of Common Stock owned by Mentone Ltd., of which Mr. Whitton is an owner, 100,000 shares of Common Stock which Mr. Whitton currently has or will have within 60 days the right to acquire pursuant to stock options, and four (4) shares of Series A Preferred Stock owned beneficially through Cell Science, of which Mentone Ltd., is a 30% owner.
(7)Consists of 23,952,188 shares of Common Stock owned beneficially and of record directly, 6,000,000 shares of Common Stock owned by Mentone Ltd., of which Mr. Dixon is an owner, and four (4) shares of Series A Preferred Stock owned beneficially through Cell Science, of which Mentone Ltd., is a 30% owner
(8)Consists of 26,952,187 shares of Common Stock owned beneficially through his company Menelaus Holding FZ LLC, of record directly by Mentone Ltd., 6,000,000 shares of Common Stock owned by Mentone Ltd., of which Mr. Watkin is an owner, and four (4) shares of Series A Preferred Stock owned beneficially through Cell Science, of which Mentone Ltd., is a 30% owner.
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Security Ownership of Management
|
| Common Stock |
| Preferred Stock |
| Combined | |||
Name and Address |
| Shares | Percent |
| Shares | Percent |
| Total | Combined |
|
|
|
|
|
|
|
|
|
|
Peter Whitton (1) (2) and (3) |
| 30,043,562 | 9.97% |
| 4 | 100.00% |
| 1,234,775,494 | 81.99% |
|
|
|
|
|
|
|
|
|
|
Evripides (Roy) Drakos (4) |
| 1,901,879 | 0.63% |
| - | 0.00% |
| 1,901,879 | 0.13% |
|
|
|
|
|
|
|
|
|
|
Aristotle Popolizio (5) |
| 1,901,879 | 0.63% |
| - | 0.00% |
| 1,901,879 | 0.13% |
|
|
|
|
|
|
|
|
|
|
Tom Vaknin (6) |
| 160,000 | 0.05% |
| - | 0.00% |
| 160,000 | 0.01% |
|
|
|
|
|
|
|
|
|
|
Moshe Morgenstern (7) |
| 160,000 | 0.05% |
| - | 0.00% |
| 160,000 | 0.01% |
|
|
|
|
|
|
|
|
|
|
Juan Carlo Garcia La Sienra Garci (8) |
| 280,000 | 0.09% |
| - | 0.00% |
| 280,000 | 0.02% |
|
|
|
|
|
|
|
|
|
|
Michael R. Hawthorne (10) |
| 458,326 | 0.15% |
| - | 0.00% |
| 458,326 | 0.03% |
|
|
|
|
|
|
|
|
|
|
All executive officers and directors as a group (seven persons) |
| 28,585,646 | 9.35% |
| 4 | 100.00% |
| 1,233,317,578 | 81.66% |
There are 301,182,983 shares of common stock and four (4) shares of Series A Preferred Stock outstanding. Each share of Series A Preferred Stock has voting rights equal to four (4) times the aggregate votes of the total number of shares of common stock issued and outstanding plus the total number of votes of all other classes of preferred stock issued and outstanding, divided by the number of shares of Series A Preferred Stock issued and outstanding, which have an equivalent of 1,204,731,932 votes.
Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission (“SEC”) which generally attribute beneficial ownership of securities to person, entity or group that directly or indirectly has or shares voting power or investment power with respect to those securities and includes the power to dispose, or direct the disposition of such securities, and includes shares of our common stock issuable pursuant to the exercise of stock options, warrants, preferred stock or other securities that are immediately exercisable or convertible or exercisable or convertible within 60 days.
* To calculate a stockholder’s percentage of beneficial ownership of common stock, we must include in the numerator and denominator those shares of common stock underlying options, warrants and convertible securities that such stockholder is considered to beneficially own. Shares of common stock underlying options, warrants and convertible securities held by other stockholders, however, are disregarded in this calculation. Therefore, the denominator used in calculating beneficial ownership of each of the stockholders may be different.
(1)Cell Science is owned by Inter-M Traders FZ LLE (40%), Mentone Ltd (30%), and The OZ Corporation (30%). The sole director of Cell Science is Petros Charalambous. Each of the foregoing is deemed to beneficially own the four (4) shares of Preferred Stock owned by Cell Science.
(2)Mentone Ltd. is owned by Peter Whitton, Geoffrey Dixon, and Karl Watkin. Each of the foregoing is deemed the beneficial owner of shares of Common Stock owned by Mentone, Ltd, and the four (4) shares of Series A Preferred Stock owned beneficially through Cell Science.
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(3)Consists of 23,943,562 shares of Common Stock owned beneficially and of record directly, 6,000,000 shares of Common Stock owned by Mentone Ltd., of which Mr. Whitton is an owner, 100,000 shares of Common Stock which Mr. Whitton currently has, or will have within 60 days, the right to acquire pursuant to stock options, and four (4) shares of Series A Preferred Stock owned beneficially through Cell Science, of which Mentone Ltd., is a 30% owner.
(4)Consists of 126,882 shares of Common Stock owned beneficially and of record directly, and 1,774,997 shares of Common Stock which Mr. Drakos currently has, or will have within 60 days, the right to acquire pursuant to stock options.
(5)Consists of 126,882 shares of Common Stock owned beneficially and of record directly, and 1,774,997 shares of Common Stock which Mr. Popolizio currently has, or will have within 60 days, the right to acquire pursuant to stock options.
(6)Consists of 160,000 shares of Common Stock which Mr. Vaknin currently has, or will have within 60 days, the right to acquire pursuant to stock options.
(7)Consists of 160,000 shares of Common Stock which Mr. Morgenstern currently has, or will have within 60 days, the right to acquire pursuant to stock options.
(8)Consists of 280,000 shares of Common Stock which Mr. Garcia currently has, or will have within 60 days, the right to acquire pursuant to stock options.
(9)Consists of 458,326 shares of Common Stock which Mr. Hawthorne currently has or will have within 60 days the right to acquire pursuant to stock options.
Except as noted, the persons named in the above tables have sole voting and dispositive power respecting all shares beneficially owned, subject to community property laws where applicable. Beneficial ownership is determined according to the rules of the SEC, which generally means that a person is deemed to have beneficial ownership of a security if he, she, or it possesses sole or shared voting or investment power over that security. Each director, executive officer, or 5% or more beneficial stockholder has furnished the information respecting beneficial ownership. All securities of the same class beneficially owned by a person, regardless of the form of such beneficial ownership, are aggregated in calculating the number of shares beneficially owned by such person. Shares owned by an entity are generally deemed beneficially owned by each executive officer, director, or beneficial or of record owner of 10% or more of the issued common stock of the entity. Stock held by a person in a trust or other entity organized by a person to circumvent the beneficial ownership attribution rules are deemed owned by the person creating such trust or other entity.
Each share of Series A Preferred Stock has voting rights equal to four times the aggregate votes of the total number of shares of common stock issued and outstanding plus the total number of votes of all other classes of preferred stock issued and outstanding, divided by the number of shares of Series A Preferred Stock issued and outstanding. Consequently, the four shares of Series A Preferred Stock have the equivalent of 1,204,731,932 votes, and thus, the holders of the four shares of Series A Preferred Stock are able to unilaterally control the election of our board of directors and, ultimately, our direction.
Applicable ownership percentages are based on 301,182,983 shares of common stock and four shares of Series A Preferred Stock outstanding as of the date of this prospectus. In computing the number of shares of common stock beneficially owned and the percentage ownership of a person, we deemed the holder of options to beneficially own the common stock purchasable on exercise of the options, without respect to when the granted options may vest. We considered shares issuable under options held by a particular person or group as outstanding for the calculation of percentages of ownership of that particular person or group. However, we did not deem these shares outstanding for the purpose of computing the percentage ownership of any other person.
Changes in Control
To the best of our knowledge, there are no present arrangements or pledges of our securities that may result in a change in control.
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CERTAIN RELATIONSHIPS, RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
Our Organization
Commencing in 2017, Inter-M Traders FZ, LLE, a UAE company, initiated an effort to commercialize a proprietary cell replication technology invented principally by Dr. Whitton and held with his associates by Mentone, Inc. To implement this strategy, the cell replication intellectual property was transferred to a newly organized Cyprus limited liability company, Cell Science Holding Ltd. (“Cell Science”), which is owned 40% by Inter-M Traders FZ LLE, 30% by Mentone Ltd, and 30% by OZ Corporation. In turn, in late 2018, Cell Science granted to Bakhu certain licensing rights to the cell replication technology to produce cannabinoids in North America. Bakhu was then a dormant US publicly held corporation. As partial consideration for the license, Bakhu issued 210,000,000 shares of common stock to Cell Science. The following details material current relationships.
Certain Relationships
The following relationships are known by us to exist among parties with whom or which we have had or have transactions.
·We obtained the license of rights to the intellectual property on which our business is based from Cell Science Holding Ltd., which is owned 40% by Inter-M Traders FZ, LLE., 30% by Mentone Ltd., and 30% by OZ Corporation.
·Cell Science Holding Ltd., the licensor owns all four shares of our outstanding Series A Preferred Stock which represents 80.00% of the voting power of the corporation on all matters submitted to the stockholders for consideration.
·Inter-M Traders FZ, LLE, owns 116,783,555 shares of our outstanding common stock, and as a 40% owner of Cell Science, which owns all four shares of our outstanding Series A Preferred Stock, these holdings together represent 87.75% of the voting power of the corporation on all matters submitted to the stockholders for consideration. Additionally, as a result of its ownership in Cell Science, Inter-M Traders FZ, LLE has a direct interest in the licensor, Cell Science.
·Petros Charalambous is the sole owner, director and Manager of each of Cell Science and Inter-M Traders FZ LLE, and is therefore deemed to be the beneficial owner of the 116,783,555 shares of our outstanding common stock owned by Inter-M Traders FZ LLE, and the four shares of our outstanding Series A Preferred Stock owned by Cell Science, which these holdings together represent 87.75% of the voting power of the corporation on all matters submitted to the stockholders for consideration. Petros Charalambous is also a director of the Inter-M Group of Companies.
·Mentone Ltd., a United Kingdom company, is owned by Dr. Peter Whitton, Geoffrey Dixon, and Karl Watkin. Mentone Ltd. owns 6,000,000 shares of our outstanding common stock. In addition, Mentone Ltd. is a 30% owner of Cell Science, which owns all four shares of our outstanding Series A Preferred Stock. Collectively, Mentone Ltd.’s ownership of our stock represents 80.40% of the voting power of the Corporation on all matters submitted to the stockholders for consideration. Additionally, Messrs. Whitton, Dixon, and Watkin as a result of their ownership of Mentone Ltd., are therefore each deemed to be the beneficial owner of the shares of common stock Mentone owns and the four shares of our outstanding Series A Preferred Stock.
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·Dr. Peter Whitton, our director, is the inventor of the licensed technology that is the subject of the Integrated License Agreement set forth above. As a result of his direct ownership of shares of common stock, his ownership in Mentone Ltd., and Mentone’s ownership of Cell Science, Dr. Whitton’s collective ownership of our stock represents 81.99% of the voting power of the Corporation on all matters submitted to the stockholders for consideration. Dr. Whitton is also an Associate Director of the Inter-M Group of Companies.
·Geoffrey Dixon is a 33% owner of Mentone Ltd. As a result of his direct ownership of shares of common stock, his ownership in Mentone Ltd., and Mentone’s ownership of Cell Science, Mr. Dixon’s collective ownership of our stock represents 81.99% of the voting power of the Corporation on all matters submitted to the stockholders for consideration. Mr. Dixon is also an Associate Director of the Inter-M Group of Companies.
·OZ Corporation is owned and controlled by John R. Munoz. OZ Corporation is the beneficial owner and owner of record of 10,980,994 shares of our common stock, and John R. Munoz is the beneficial owner of 3,168,000 shares of our outstanding common stock. In addition, OZ Corporation is a 30% owner of Cell Science. As a result of his and OZ Corporation’s direct ownership of shares of common stock and OZ Corporation’s ownership of Cell Science, OZ Corporation and Mr. Munoz’s collective ownership of our stock represents 80.73% of the voting power of the Corporation on all matters submitted to the stockholders for consideration. As a result of its ownership in Cell Science, OZ Corporation has a direct interest in the licensor, Cell Science. Additionally, Mr. Munoz is a Managing Partner of the Inter-M Traders Group of Companies.
·Demetri Michalakis, the Chairman of Inter-M Traders Group of Companies provides financial, strategic and advisory services to the Company. The Inter-M Traders Group of Companies has an ongoing and continuing relationship with Cell Science, Bakhu, OZ Corporation, and Blackhawk Science among others. Mr. Michalakis is the father of Aristotle Popolizio, our director and an executive officer.
·Thomas K. Emmitt, a former director and our former, president, chief executive officer, and chief financial officer, also serves as in-house legal counsel to OZ Corporation, which is a direct owner of our equity and owns 30% of Cell Science, the licensor.
·Aristotle Popolizio, our director, vice president and secretary, also serves as head of investment relations at the Inter-M Trading Group of Companies, and is the son of Demetri Michalakis, the Chairman of Inter-M Trading Group of Companies.
·Evripides (Roy) Drakos is our director and a high-tech investment advisor focusing on national and international expansion strategies.
·Juan Carlos Garcia La Sienra Garcia, is a former director is our Chief Financial Officer, and the former president of Woodbrook Group Holdings, Inc., one of the Inter-M Traders Group of Companies.
Director Independence
The board has determined that three of its directors, Evripides Drakos, Tom Vaknin and Moshe Morgenstern have met the independence requirements based upon the application of objective categorical standards adopted by the board. In determining director independence, the board considers all relevant facts and circumstances, including the director’s commercial, banking, consulting, legal, accounting, charitable, and familial relationships and such other criteria as the board may determine from time to time.
Related Party Transactions
The following transactions to which we are a party, were entered into between related parties and are not, therefore, the result of arm’s-length negotiations. We cannot assure that the terms and conditions of these transactions are as favorable to us as we could have obtained in arm’s-length negotiations between qualified unrelated parties in similar circumstances.
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Efficacy Demonstration Laboratory Agreement
As stated above, we and OZ Corporation are parties to that certain Efficacy Demonstration Laboratory Agreement that memorializes the understanding and agreement under which we engaged OZ Corporation to undertake the efficacy demonstration required under the Amended Restated License. Pursuant to the Efficacy Demonstration Laboratory Agreement, we agreed to repay all costs incurred by OZ Corporation in performing the efficacy demonstration in accordance with the Efficacy Demonstration Laboratory Agreement. We consider this agreement to have been superseded by the Agreement, Assignment Waiver and Estoppel dated September 22, 2020, between us, OZ Corporation, and others. Therefore, the Efficacy Demonstration Laboratory Agreement is not being implemented.
OZ Corporation’s Loans and Advances to Us
OZ Corporation has loaned monies to us and has advanced to us or paid on our behalf certain expenses associated with our operations. Such loans or advances are evidenced by a Promissory Note dated August 1, 2019 (the “2019 OZ Note”). As of July 31, 2022, the outstanding principal balance and accrued interest owing under the 2019 OZ Note was $2,723,731and $210,190, respectively. The principal amount of the 2019 OZ Note will be increased by the amount of any additional advances of funds made by OZ Corporation to us, from time to time. This 2019 OZ Note was due December 31, 2020, but we did not have cash available to pay it. The note provides that we may extend the due date by an additional 12 months by paying an extension fee of 1.00% of the outstanding principal loan balance, which may, at OZ Corporation’s option, be advanced and added to the then outstanding principal balance. Effective as of December 31, 2020, OZ Corporation extended the maturity date of the note until December 31, 2021, and we have further extended the due date of the note by an additional 12 months, until December 31, 2022, by paying an extension fee of 1.00% of the outstanding principal loan balance, which may, at OZ Corporation’s option, be advanced and added to the then outstanding principal balance. The note provides that OZ Corporation may, at any time, convert all or any portion of the then unpaid principal balance and any unpaid accrued interest into shares of our common stock at a conversion price equal to 80% of the average closing price of our common stock for the 90 trading days before the conversion date, rounded up to the nearest whole share.
Additionally, under a separate Promissory Note dated June 23, 2022 (the “2022 OZ Note”), OZ Corporation loaned us the principal amount of $150,000 for insurance related expensed. Under the terms of the 2022 OZ Note simple interest will accrue at rate of 7% per annum until paid in full. All unpaid principal and unpaid accrued interest will be due and payable from the first net proceeds received by the Company from external funding of any kind or nature provided by persons that are not, directly or indirectly, affiliates of the Company, but in any event on or before the close of business on December 15, 2024.
Patent and Technology License
Original 2018 Agreement. As discussed above, our Integrated License Agreement comprises a Patent and Technology License Agreement dated December 20, 2018, and entered into with Cell Science. That Patent and Technology License Agreement was amended and restated by an Amended and Restated Patent and Technology License Agreement (the “Amended Restated License”) dated December 31, 2019, which was in turn amended successively on September 22, 2020, February 8, 2021 and July 12, 2021. As consideration for this 2018 license, we issued 210,000,000 shares of our common stock to Cell Science, which then became our principal common stockholder. With the completion of the efficacy demonstration as discussed above, all 210,000,000 shares have been released and are no longer subject to reduction or forfeiture. Further, as additional consideration for the grant of the License, we will make a one-time payment of $3.5 million subject to certain adjustments and credits, payable pursuant to a promissory note to be issued to Cell Science, and payable one year from the date of issuance of the promissory note.
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September 22, 2020, Amendment to the Amended Restated License. On September 22, 2020, we and Cell Science entered an Amendment to the Amended Restated License (the “2020 Amendment”). Pursuant to the 2020 Amendment, the Amended Restated License was revised and amended as follows:
1.The previous specifications for the efficacy demonstration were replaced with new requirements.
2.Section 4.1 of the Amended Restated License was amended to provide that 190,000,000 of the 210,000,000 shares of common stock we previously delivered to Cell Science would remain subject to forfeiture, and 20,000,000 shares would be free from possible forfeiture and be released to Cell Science.
3.The 2020 Amendment clarified the criteria and procedure to be applied in the efficacy demonstration in determining the percentage of achievement against the standard results claimed by the inventor that would be used to calculate the number of available to be forfeited by Cell Science and returned to us.
4.The one-time cash payment of $3.5 million, less agreed credits, would be paid pursuant to a one-year promissory note.
5.Cell Science would execute, have acknowledged, and deliver to us a Patent and Technology License that we would hold in trust. Upon our delivery of the one-time payment note we would record the Patent and Technology License.
6.Upon delivery of the one-time payment note, we would be deemed to have satisfied all representations, warranties, terms, covenants, and conditions required to have been performed, satisfied, or met by us so that any subsequent breach would alter or affect in any way our rights to the license. Notwithstanding the foregoing, if we are found to have breached any covenant under the agreement, Cell Science’s remedy would be limited to substitution in our place in any commercialization arrangement we have entered, subject to generally prevailing equitable principles and applicable rights and limitation under U.S. Bankruptcy Law.
7.Any breach of or default by us relating to patent prosecution or expenses would not alter, affect, or result in the forfeiture of any of our rights and license.
February 2021 Amendment. Under the February 2021 amendment, the Amended and Restated License was further was amended to reflect that 26,000,000 shares, rather than 20,000,000 shares provided under the 2020 Amendment, will be free from possible forfeiture under the License Agreement, pursuant to the terms and provisions of this amendment.
July 2021 Amendment. Based on an evaluation of the technical laboratory testing results achieved by July 2021, and in the light of the desire to launch immediately an aggressive commercialization program directed at achieving recurring revenue, we agreed to a substantial revision to the technical specifications, protocols, and procedures to be followed to measure the commercial efficacy of the licensed technology, which accelerated the date on which the efficacy demonstration requirement of the technology was satisfied.
Under the July 2021 amendment, we and Cell Science adopted new efficacy demonstration technical specifications, protocols, and procedures that, in general, provided that:
1.the existing seed cultures can be used for the extended loading of the bioreactors used in the test;
2.the results of the three last bioreactors harvested, along with two bioreactors specifically designated as bioreactors 4 and 5, which have been recently loaded, will comprise the five bioreactors on which results will be tested;
3.results from bioreactors 1 through 5 (or successive successful bioreactor tests), will be used to determine the percentage of target results achieved under the license agreement; and
4.the requirement that the results be replicated in five additional bioreactors be eliminated.
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Under these revised criteria, actual test results from the five bioreactors, confirmed by an independent laboratory, demonstrated that the following testing standards were fully satisfied:
1.a quantity standard of harvested and dried cell concentrate equaling or exceeding both 90 kilograms (approximately 198 pounds) for two successive groups of five bioreactors each and 18 kilogram (approximately 39 pounds) of cells and media culture for each bioreactor in the group;
2.a quality standard of cells produced, harvested, and dried during the full cycle of the process from each bioreactor harvest contain the targeted volume of cannabinoids expressed in kilogram that mirror the same levels of THC and CBD as the donor cells utilizing the formula: 18 times original THC/CBD percentage of donor plant equals the end product expressed in kilogram, with this result from each bioreactor and all five bioreactors of two successive groups of five reactors each affirmed by a third-party testing laboratory; and
3.a cost standard of projected utilities and supplies plus actual material costs per bioreactor and for two successive groups of five bioreactors, excluding administrative and labor expenses, capital expenditures, or prorated leasehold expenses, of $0.10 per gram of THC/CBD.
As a result of this successful testing, all 184,000,000 shares subject to return to us were released to their owners, and we became obligated to issue Cell Science a one-year promissory note in the principal amount of $3.5 million, reduced by specified offsets and credits. Importantly, upon the issuance of this promissory note, we can record the Patent and Technology License to publicly notify potential commercial partners and others of our vested rights.
January 2022 Amendment to Integrated License. On January 31, 2022, we and Cell Science entered into the Third Amendment to Integrated License Agreement in which we agreed:
1.There would be no reduction and offset against the $3.5 million one-time payment for certain costs paid by us or on our behalf. Therefore, we issued a $3.5 million promissory note, bearing interest at the applicable federal short-term rate of 0.44% under IRC Section 1274(d), payable in January 2023.
2.In lieu of any offset and reduction against the one-time payment note, Cell Science agreed to convey to us the lease on the California laboratory in which the efficacy demonstration was conducted, including all related equipment, improvements, supplies, and related tangible and intangible assets.
3.Cell Science caused OZ Corporation to execute and deliver a similar conveyance of all rights to the California laboratory.
4.The Integrated License Agreement was clarified to provide that all improvements to the licensed technology made by us would be owned by Cell Science and included in the licensed technology.
Office Cost Sharing Agreement
On September 22, 2020, we and OZ Corporation, our controlling stockholder, entered into an Office Cost Sharing Agreement under which we agreed to share the office costs and expenses associated with the office space, equipment, telephone and internet service, utilities, answer services and support staff provided by OZ Corporation for a fixed amount of $34,000 per month. We use these facilities as our principal offices, for our accounting staff, and for Bus Dev Centre, Inc. and its principal, Donald Clark, who provides advisory and consulting services in furtherance of, among other things, our anticipated commercialization efforts. During the year ended July 31, 2021, we had not paid any of the fees due to OZ Corporation under the Officer Sharing Agreement.
The foregoing transactions described in this section between us, on the one hand, and Cell Science and the other persons or entities set forth above, on the other hand, were not the result of arm’s-length negotiations.
68
The foregoing summary of the terms of the various agreements described is not complete, does not contain all information that is of interest to the reader, and is qualified in its entirety by reference to the full text of each such agreement, which is included or incorporated by reference as an exhibit to this prospectus.
Except as set forth above, we have not been a party to any transactions with persons who were, at the time of the transaction, an executive officer, director, principal stockholder, or other affiliate of our company.
LEGAL PROCEEDINGS
From time to time, we may become involved in legal proceedings or be subject to claims arising in the ordinary course of our business. To the best of our knowledge, we are not presently a party to any legal proceedings that, if determined adversely to us, would individually or taken together have a material adverse effect on our business, operating results, financial condition, or cash flows. Regardless of the outcome, litigation can have an adverse impact on us because of defense and settlement costs, diversion of management resources, and other factors.
LEGALITY OF COMMON STOCK
The validity of our common stock offered hereby will be passed upon for us by Chachas Law Group PC, San Diego, California.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus supplement and information we file later with the SEC will automatically update and supersede this information. The documents we are incorporating by reference as of their respective dates of filing are:
·Amended Annual Report on Form 10-K/A for the year ended July 31, 2021, filed on March 21, 2022.
·Annual Report on Form 10-K/A for the year ended July 31, 2022, filed on November 7, 2022.
Any statement contained in a document incorporated by reference herein will be deemed to be modified or superseded for all purposes to the extent that a statement contained in this prospectus supplement, or in any other subsequently filed document that is also incorporated or deemed to be incorporated by reference, modifies or supersedes such statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus supplement.
Each person, including any beneficial owner to whom this prospectus is delivered, may request, orally or in writing, a copy of these documents, which will be provided at no cost, by contacting:
Evripides Drakos, President and Chief Executive Officer
Bakhu Holdings, Corp.
One World Trade Center, Suite 130
Telephone: (858) 682-2528
69
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC, Washington, D.C. 20549, under the Securities Act, a registration statement on Form S-1 relating to the shares offered hereby. This prospectus does not contain all of the information set forth in the registration statement and the exhibits and schedules thereto. For further information respecting our company and the shares offered by this prospectus, you should refer to the registration statement, including the exhibits and schedules thereto. The SEC maintains an Internet site at http://www.sec.gov that contains reports, proxy and information statements, and other information regarding registrants that file electronically with the SEC.
Statements contained in this prospectus as to the contents of any contract or other document that we have filed as an exhibit to the registration statement are qualified in their entirety by reference to the exhibits for a complete statement of their terms and conditions.
The representations, warranties, and covenants made by us in any agreement that is filed as an exhibit to the registration statement of which this prospectus is a part were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty, or covenant to you. Moreover, such representations, warranties, or covenants were made as of an earlier date. Accordingly, such representations, warranties, and covenants should not be relied on as accurately representing the current state of our affairs.
We file periodic reports, proxy statements, and other information with the SEC in accordance with requirements of the Exchange Act. We make available through our website, free of charge, copies of these reports as soon as reasonably practicable after we electronically file or furnish them to the SEC. Our website address is www.bakhuholdings.com. The information on our website is not incorporated into this prospectus.
DISCLOSURE OF COMMISSION POSITION OF INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Pursuant to our charter and under the Nevada Revised Statutes, our directors are not liable to us or our stockholders for monetary damages for breach of fiduciary duty, except for liability in connection with a breach of duty of loyalty, for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, for authorization of illegal dividend payments or stock redemptions under Nevada law, or any transaction from which a director has derived an improper personal benefit. Our charter provides that we are authorized to provide indemnification of (and advancement of expenses) to our directors, officers, employees, and agents (and any other persons to which applicable law permits us to provide indemnification) through bylaw provisions, agreements with such persons, vote of stockholders or disinterested directors, or otherwise, to the fullest extent permitted by applicable law.
Pursuant to our Amended and Restated Articles of Incorporation and Amended and Restated Bylaws, we may indemnify our officers and directors to the fullest extent authorized by the Nevada Revised Statues, as the same exists or may hereafter be amended.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons pursuant to the provisions described above, or otherwise, we have been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than our payment of expenses incurred or paid by our director, officer, or controlling person in the successful defense of any action, suit, or proceeding) is asserted by a director, officer, or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
70
FINANCIAL STATEMENTS
C O N T E N T S
Audited Financial Statements for the Years Ended July 31, 2022 and 2021 |
| Page |
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Report of Independent Registered Public Accounting Firm (PCAOB ID: 5041) |
| F-2 |
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| F-4 | |
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Consolidated Statements of Operations for the Years Ended July 31, 2022 and 2021 |
| F-5 |
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Consolidated Statement of Stockholders’ Equity (Deficit) for the Years Ended July 31, 2022 and 2021 |
| F-6 |
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Consolidated Statements of Cash Flows for the Years Ended July 31, 2022 and 2021 |
| F-7 |
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| F-8 |
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the shareholders and the board of directors of Bakhu Holdings, Corp.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Bakhu Holdings, Corp. as of July 31, 2022 and 2021, the related statements of operations, stockholders' equity (deficit), and cash flows for the years then ended, and the related notes (collectively referred to as the "financial statements"). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of July 31, 2022 and 2021, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States.
Substantial Doubt about the Company’s Ability to Continue as a Going Concern
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 2 to the financial statements, the Company’s significant operating losses raise substantial doubt about its ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provides a reasonable basis for our opinion.
F-2
Critical Audit Matter
Critical audit matters are matters arising from the current-period audit of the financial statements that were communicated or required to be communicated to the audit committee and that (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments.
We determined that there are no critical audit matters.
/S/ BF Borgers CPA PC (PCAOB ID 5041)
We have served as the Company's auditor since 2016
Lakewood, CO
F-3
Consolidated Balance Sheets
|
| July 31, |
| July 31, |
ASSETS |
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|
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CURRENT ASSETS |
|
|
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|
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|
|
|
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Cash and cash equivalents |
| $12,451 |
| $46,929 |
|
|
|
|
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Total Current Assets |
| 12,451 |
| 46,929 |
|
|
|
|
|
OTHER ASSETS |
|
|
|
|
|
|
|
|
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Fixed assets, net of accumulated depreciation |
|
|
|
|
of $76,516 and $-0-, respectively |
| 688,644 |
| - |
|
|
|
|
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Total Other Assets |
| 688,644 |
| - |
|
|
|
|
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TOTAL ASSETS |
| $701,095 |
| $46,929 |
|
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LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) |
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CURRENT LIABILITIES |
|
|
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|
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|
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Accounts payable and accrued liabilities |
| $1,265,968 |
| $499,580 |
Accrued interest |
| 218,919 |
| 81,987 |
Notes payable - related parties |
| 6,373,731 |
| 1,930,783 |
|
|
|
|
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Total Current Liabilities |
| 7,858,618 |
| 2,512,350 |
|
|
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|
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TOTAL LIABILITIES |
| 7,858,618 |
| 2,512,350 |
|
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STOCKHOLDERS' EQUITY (DEFICIT) |
|
|
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Preferred stock, $0.001 par value; 50,000,000 shares authorized, |
| - |
| - |
Common stock, $0.001 par value; 500,000,000 shares authorized, 301,282,983 and 300,697,980 shares issued and outstanding, respectively |
| 301,283 |
| 300,698 |
Additional paid-in capital |
| 36,070,822 |
| 19,848,569 |
Accumulated deficit |
| (43,529,628) |
| (22,614,688) |
|
|
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|
|
Total Stockholders' Equity (Deficit) |
| (7,157,523) |
| (2,465,421) |
|
|
|
|
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TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) |
| $701,095 |
| $46,929 |
The accompanying notes are an integral part of these financial statements.
F-4
Consolidated Statements of Operations
|
| For the Years Ended | ||
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| |||
|
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| 2021 | |
|
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NET REVENUES |
| $- |
| $- |
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OPERATING EXPENSES |
|
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|
|
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|
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Consulting fees |
| 15,379,799 |
| 4,892,478 |
Professional fees |
| 900,492 |
| 535,361 |
Selling, general and administrative |
| 1,762,877 |
| 1,394,524 |
|
|
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|
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Total Operating Expenses |
| 18,043,168 |
| 6,822,363 |
|
|
|
|
|
LOSS FROM OPERATIONS |
| (18,043,168) |
| (6,822,363) |
|
|
|
|
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OTHER INCOME (EXPENSES) |
|
|
|
|
|
|
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|
|
Impairment of intangible assets |
| (2,734,839) |
| - |
Interest expense |
| (136,933) |
| (67,647) |
|
|
|
|
|
Total Other Income (Expenses) |
| (2,871,772) |
| (67,647) |
|
|
|
|
|
LOSS BEFORE INCOME TAXES |
| (20,914,940) |
| (6,890,010) |
|
|
|
|
|
PROVISION FOR INCOME TAXES |
| - |
| - |
|
|
|
|
|
NET LOSS |
| $(20,914,940) |
| $(6,890,010) |
|
|
|
|
|
BASIC NET LOSS PER SHARE |
| $(0.07) |
| $(0.02) |
|
|
|
|
|
WEIGHTED AVERAGE NUMBER OF |
| 301,113,657 |
| 300,256,860 |
The accompanying notes are an integral part of these financial statements.
F-5
Consolidated Statements of Stockholders' Equity (Deficit)
For the Period July 31, 2020 through July 31, 2022
|
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| Additional |
|
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| Total | ||||
|
| Preferred Stock |
| Common Stock |
| Paid-In |
| Accumulated |
| Stockholders' | ||||
|
| Shares |
| Amount |
| Shares |
| Amount |
| Capital |
| Deficit |
| Equity (Deficit) |
|
|
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|
|
|
|
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|
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Balance, July 31, 2020 |
| 4 |
| - |
| 300,114,000 |
| 300,114 |
| 15,004,900 |
| (15,724,678) |
| (419,664) |
|
|
|
|
|
|
|
|
|
|
|
|
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|
Stock issued for cash |
| - |
| - |
| 88,334 |
| 88 |
| 264,912 |
| - |
| 265,000 |
|
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|
|
|
|
|
|
|
|
|
|
|
|
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Issuance of stock options |
| - |
| - |
| - |
| - |
| 4,579,252 |
| - |
| 4,579,252 |
|
|
|
|
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|
|
|
|
|
|
|
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|
|
Stock issued for exercise of |
| - |
| - |
| 495,646 |
| 495 |
| (495) |
| - |
| - |
|
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|
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|
|
|
|
|
|
|
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|
|
Net loss for the year ended |
| - |
| - |
| - |
| - |
| - |
| (6,890,010) |
| (6,890,010) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, July 31, 2021 |
| 4 |
| - |
| 300,697,980 |
| 300,698 |
| 19,848,569 |
| (22,614,688) |
| (2,465,421) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock issued for cash |
| - |
| - |
| 585,003 |
| 585 |
| 1,605,419 |
| - |
| 1,606,004 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of stock options |
| - |
| - |
| - |
| - |
| 14,616,834 |
| - |
| 14,616,834 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss for the year ended |
| - |
| - |
| - |
| - |
| - |
| (20,914,940) |
| (20,914,940) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, July 31, 2022 |
| 4 |
| $- |
| 301,282,983 |
| $301,283 |
| $36,070,822 |
| $(43,529,628) |
| $(7,157,523) |
The accompanying notes are an integral part of these financial statements.
F-6
Consolidated Statements of Cash Flows
|
| For the Years Ended | ||
|
| |||
|
|
| 2021 | |
|
|
|
|
|
CASH FLOWS FROM OPERATING ACTIVITIES |
|
|
|
|
|
|
|
|
|
Net loss |
| $(20,914,940) |
| $(6,890,010) |
Adjustments to reconcile net loss to net cash used by operating activities: |
|
|
|
|
| 14,616,834 |
| 4,579,253 | |
Impairment of intangible assets |
| 2,734,839 |
| - |
Depreciation |
| 76,517 |
| - |
Changes in operating assets and liabilities: |
|
|
|
|
Accounts payable |
| 766,388 |
| 449,176 |
Accrued liabilities |
| 136,932 |
| 67,251 |
|
|
|
|
|
Net Cash Used by Operating Activities |
| (2,583,430) |
| (1,794,330) |
|
|
|
|
|
CASH FLOWS FROM INVESTING ACTIVITIES |
| - |
| - |
|
|
|
|
|
CASH FLOWS FROM FINANCING ACTIVITIES |
|
|
|
|
|
|
|
|
|
Proceeds from sale of common stock |
| 1,606,004 |
| 265,000 |
Payments on notes payable - related parties |
| (116,046) |
| (163,713) |
Proceeds from notes payable - related parties |
| 1,058,994 |
| 1,720,218 |
|
|
|
|
|
Net Cash Provided by Financing Activities |
| 2,548,952 |
| 1,821,505 |
|
|
|
|
|
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS |
| (34,478) |
| 27,175 |
|
|
|
|
|
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD |
| 46,929 |
| 19,754 |
|
|
|
|
|
CASH AND CASH EQUIVALENTS AT END OF PERIOD |
| $12,451 |
| $46,929 |
|
|
|
|
|
SUPPLEMENTAL DISCLOSURES: |
|
|
|
|
|
|
|
|
|
Cash Payments For: |
|
|
|
|
Interest |
| $- |
| $- |
Income taxes |
| $- |
| $- |
|
|
|
|
|
Non-cash financing activity: |
|
|
|
|
Issuance of notes payable for fixed assets |
| $765,161 |
| $- |
Stock issued for the exercise of stock options |
| $- |
| $495 |
The accompanying notes are an integral part of these financial statements.
F-7
Notes to Financial Statements
July 31, 2022 and 2021
NOTE 1 - ORGANIZATION AND BUSINESS OPERATIONS
Bakhu Holdings, Corp. (formerly Planet Resources, Corp.) (“the Company”) was incorporated under the laws of the State of Nevada, U.S., on April 24, 2008. In May 2009, the Company began to look for other types of business to pursue that would benefit the stockholders. To pursue businesses outside the mining industry the name of the Company was changed with the approval of the directors and stockholders to Bakhu Holdings, Corp. on May 4, 2009.
The Company has not generated any revenue to date and consequently its operations are subject to all risks inherent in the establishment of a new business enterprise. For the period from inception, April 24, 2008 through July 31, 2022 the Company has accumulated losses of $43,529,628.
On August 9, 2019, the Company formed Cell Science CBD International, Inc., a California corporation as a wholly owned subsidiary to commercialize use of the licensed technology to produce and manufacture cannabis and their byproducts that have measurable tetrahydrocannabinol (THC) concentration potency less than 3% on a dry weight basis. This subsidiary had no active operations as of July 31, 2022. When used herein, the “Company” includes this consolidated subsidiary.
NOTE 2 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
g)Basis of Presentation
The financial statements of the Company have been prepared in accordance with generally accepted accounting principles in the United States of America and are presented in US dollars.
b) Going Concern
The financial statements have been prepared on a going concern basis which assumes the Company will be able to realize its assets and discharge its liabilities in the normal course of business for the foreseeable future. The Company has incurred losses since inception resulting in an accumulated deficit of $43,529,628 as of July 31, 2022 and further losses are anticipated in the development of its business raising substantial doubt about the Company’s ability to continue as a going concern.
c) Cash and Cash Equivalents
The Company considers all highly liquid instruments with a maturity of three months or less at the time of issuance to be cash equivalents.
d) Use of Estimates and Assumptions
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
e) Foreign Currency Translation
The Company’s functional currency and its reporting currency is the United States dollar.
F-8
BAKHU HOLDINGS, CORP.
Notes to Financial Statements
July 31, 2022 and 2021
NOTE 2 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
f) Financial Instruments
The carrying value of the Company’s financial instruments approximates their fair value because of the short maturity of these instruments.
g) Stock-based Compensation
On January 31, 2021, the Company had one stock-based compensation plan, the 2020 Long-Term Incentive Plan (“2020 Plan”), which is more fully described in Note 3.
On September 22, 2020, the Company granted to each of its directors, Thomas K. Emmitt, Peter Whitton, Aristotle Popolizio and Evripides Drakos, a non-qualified stock option to purchase 300,000 shares of common stock, for a total of 1,200,000 shares, at an exercise price of $5.10 per share, representing the current price at which the Company is offering and selling its restricted shares for cash in its capital raising efforts. Such Options shall be exercisable for a period of seven years. Twenty percent (20%) (i.e., 60,000) of the options shall vest and be exercisable immediately with the remaining 240,000 options vesting at the rate of 1/12 (i.e. 20,000 shares) per month so that all options shall be fully vested and exercisable on the first anniversary of the Grant Date. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
On June 7, 2021, we entered a consulting agreement with Fourth and G Holdings, LLC, through which Christopher Ganan provides consulting services. We granted the consultant one warrant to purchase 1,500,000 shares, vesting over two years, and another warrant to purchase 28,500,000 shares, vesting in increments based on specified technology commercialization accomplishments. The exercise price of these warrants is $3.00 per share, which was approximately equivalent to the market price of our common stock as of the date of grant. Warrant vesting is subject to the continued term of the consulting agreement on the vesting date. Vesting will accelerate upon certain specified events. The fair value of each warrant grant was estimated using the Black-Scholes option pricing model. The consulting agreement further provides that the Company shall pay the Consultant a Transaction Bonus of 5,000,000 shares of Common Stock if the Company closes a transaction with a transaction value of less than $1.25 Billion.
On September 11, 2021, the Company and Fourth and G Holdings, LLC, amended their June 2021 agreement, to reflect that the total warrants were reduced from 30,000,000 to 15,000,000, of which warrants to purchase 300,000 shares were vested on signing the initial agreement.
On July 27, 2021, the Company entered into Consulting Agreements with two consultants to assist the Science team and granted each Consultant a seven-year stock option to purchase 100,000 shares of Common Stock at an exercise price of $4.20 per share, which was approximately equal to the closing price for our common stock on the date of grant. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
On September 16, 2021, the Company granted to its Chief Executive Office, Teddy Scott, a non-qualified stock option to purchase 5,000,000 shares of common stock at an exercise price of $4.50 per share, representing the current market price on the date of the issuance of the option. Such Options shall be exercisable for a period of ten years. Six hundred twenty-five thousand (625,000) of the options shall vest and be exercisable immediately with the remaining options vesting at the rate of ninety-three thousand eighty-five (93,085) shares per month over a period of forty-seven (47) months. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
F-9
BAKHU HOLDINGS, CORP.
Notes to Financial Statements
July 31, 2022 and 2021
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Dr. Scott resigned as a director and chief executive officer on November 10, 2021. As of the date of his resignation, 718,085 options were vested and are exercisable through the expiration of such options on September 16, 2031, except in the event of his death, in which case such options will terminate if not exercised within six months. The remaining 4,281,915 options terminated upon Dr. Scott’s resignation as a director.
On December 3, 2021, the Company appointed an additional director and granted him a seven-year stock option to purchase 300,000 shares of common stock at $3.00 per share, which was approximately equal to the closing price for our common stock on the date of grant. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
On December 6, 2021, the Company appointed a new Chief Financial and Accounting Officer and director of the Company at an annual base salary of $60,000 and granted him a seven-year stock option to purchase 300,000 shares of common stock at $3.40 per share, which was approximately equal to the closing price for our common stock on the date of grant. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
On December 7, 2021, the Company entered into Consulting Agreements with two consultants to assist the Science team Pursuant to the Consulting Agreements, the Company granted each Consultant a seven-year stock option to purchase 200,000 shares of Common Stock at an exercise price of $3.40 per share, which was approximately equal to the closing price for our common stock on the date of grant. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
On January 5, 2022, in consideration of the services of our Chief Executive Officer and our Vice President and Secretary of the Company, we granted them each a seven-year stock option to purchase 700,000 shares of common stock at $2.60 per share which was approximately equal to the closing price for our common stock on the date of grant. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
On February 11, 2022, the Company appointed a new Deputy Chief Executive Officer and granted him a seven-year stock option to purchase 2,000,000 shares of common stock at an exercise price of $3.00 per share which was approximately equal to the closing price for our common stock on the date of grant. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
On February 11, 2022, the Company entered into a Consulting Agreement with an advisor to the board and granted him a seven-year stock option to purchase 3,500,000 shares of common stock at an exercise price of $3.00 per share which was approximately equal to the closing price for our common stock on the date of grant. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
On April 18, 2022, in consideration of the services of our Chief Executive Officer and our Vice President and Secretary of the Company, we granted them each a seven-year stock option to purchase 1,300,000 shares of common stock at $3.30 per share which was approximately equal to the closing price for our common stock on the date of grant. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
On July 29, 2022, in consideration of the services of two of our Directors, we granted them each a seven-year stock option to purchase 300,000 shares of common stock at $1.50 per share which was approximately equal to the closing price for our common stock on the date of grant. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
F-10
BAKHU HOLDINGS, CORP.
Notes to Financial Statements
July 31, 2022 and 2021
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
On July 29, 2022, in consideration of the services of a Senior Board Advisor and our Chief Financial Officer of the Company, we granted them each a seven-year stock option to purchase 160,000 shares of common stock at $1.50 per share which was approximately equal to the closing price for our common stock on the date of grant. The fair value of each option grant issued under the 2020 Plan was estimated using the Black-Scholes option pricing model.
Based on the above assumptions for all stock options and warrants, the Company recognized stock-based compensation of $14,616,834 which is included in consulting fees on the Statement of Operations for the year ended July 31, 2022. As of July 31, 2022, there was $42,288,293 of total unrecognized stock-based compensation that is expected to be recognized over the vesting period of the options and warrants.
h) Income Taxes
Income taxes are accounted for under the assets and liability method. Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carry forwards. Deferred tax assets and liabilities are measured using enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled.
i) Basic and Diluted Net Loss per Share
The Company computes net loss per share in accordance with ASC 105, “Earnings per Share.” ASC 105 requires presentation of both basic and diluted earnings per share (EPS) on the face of the income statement.
Basic EPS is computed by dividing net loss available to common stockholders (numerator) by the weighted average number of shares outstanding (denominator) during the period. Diluted EPS gives effect to all potentially dilutive common shares outstanding during the period. Diluted EPS excludes all potentially dilutive shares if their effect is anti-dilutive.
j) Professional fees
Substantially all professional fees presented in the financial statements represent accounting fees, audit fees and legal fees associated with the filing of reports with the Securities and Exchange Commission. Also included in professional fees are fees paid to the stock transfer agent. The fees are expensed as incurred.
k) Fiscal Periods
The Company’s fiscal year end is July 31.
l) Recently Issued Accounting Pronouncements
We have reviewed accounting pronouncements issued during the past two years and have adopted any that are applicable to the Company. We have determined that none had a material impact on our financial position, results of operations, or cash flows for the periods presented in this report.
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BAKHU HOLDINGS, CORP.
Notes to Financial Statements
July 31, 2022 and 2021
NOTE 3 – FIXED ASSETS
On January 31, 2022, the Company and Cell Science entered into the Third Amendment to the December 20, 2018, Patent and Technology License Agreement (see Note 7). As part of this transaction, the Company acquired all related equipment, improvements, supplies, and related tangible and intangible assets. The Company determined that the lab equipment acquired had a cost basis of $765,160. These costs are depreciated using the straight-line method over their estimated economic lives which is estimated to be 5 years.
Fixed Assets consisted of the following:
|
| ||
Laboratory equipment and components – at cost | $765,160 |
| $- |
Accumulated depreciation | (76,516) |
| - |
Fixed assets – net | $688,644 |
| $- |
NOTE 4 - PREFERRED AND COMMON STOCK
On August 8, 2018, the board of directors of the Company approved the amendment and restatement of the Company’s Articles of Incorporation. The purpose of the amendment and restatement of the Articles of Incorporation was to:
(i)Increase the number of authorized shares of common stock to 500,000,000;
(ii)Increase the number of authorized shares of Preferred Stock to 50,000,000;
(iii)Grant the board of directors the right to designate classes of preferred stock, and to define the powers, preferences, rights, and restrictions thereof;
The preferred and common stock has a par value of $0.001 per share.
On August 8, 2018, the Company issued four shares of Series A Preferred Stock to the Company’s controlling stockholder, The OZ Corporation, a California corporation, in consideration of consulting services rendered to the Company.
On December 20, 2018, the Company entered into a Patent and Technology License Agreement with Cell Science, Ltd. (“Cell Science”). Pursuant to the Patent and Technology License Agreement, the Company is being granted an exclusive license by Cell Science with respect to certain patents and intellectual property for the production of phytocannabinoids for use in medical treatments and in exchange for 210,000,000 shares of common stock of the Company. On February 14, 2019 the stock was issued and recorded as consulting fees valued at $10,500,000.
On April 7, 2019 the Company issued 7,000,000 shares of common stock for the conversion of convertible notes payable and accrued interest in the amount of $10,199.
On March 9, 2020, the Company issued 11,061,816 restricted shares of common stock to OZ Corporation, in consideration of ongoing consulting and advisory services provided to the Company, on terms as previously agreed to the Company and OZ Corporation. The securities were issued pursuant to an exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933. OZ Corporation is intimately acquainted with the Company’s business plan and proposed activities at the time of issuance and possessed information on the Company necessary to make an informed investment decision. The estimated fair value of the stock was $553,091 and has been expensed and included in “Consulting fees” in the year ended July 31, 2020.
F-12
BAKHU HOLDINGS, CORP.
Notes to Financial Statements
July 31, 2022 and 2021
NOTE 4 - PREFERRED AND COMMON STOCK (continued)
On July 24, 2020, the Company issued 88,334 restricted shares of common stock to five accredited investors, for cash at a price of $3.00 per share for aggregate consideration of $265,000. No underwriters were used. The shares were issued pursuant to an exemption from registration provided by Section 4(a)(2) and Regulation S of the Securities Act of 1933.
Stock Option Plan
On September 22, 2020, the board of directors adopted the 2020 Long-Term Incentive Plan (“2020 Plan”), under which 20,000,000 shares of our common stock were reserved for issuance by us to attract and retain employees and directors and to provide such persons with incentives and awards for superior performance and providing services to us. The 2020 Plan is administered by a committee comprised of our board of directors or appointed by the board of directors, which has broad flexibility in designing stock-based incentives. The board of directors determines the number of shares granted and the option exercise price pursuant to the 2020 Plan.
On April 27, 2021, the Company issued an aggregate of 495,646 restricted shares of common stock upon the cashless exercise of 800,000 vested options at an exercise price of $5.10 per share on April 22, 2021. Based on the closing price of the Company’s common stock of $12.00 on April 22, 2021, 304,354 shares were canceled in payment of the aggregate exercise price of $4,080,000, resulting in the issuance of the 495,646 shares.
The following table summarizes the stock option award activity under the 2020 Plan during the year ended July 31, 2022:
|
| Number of options |
Outstanding at July 31, 2021 |
| 600,000 |
Granted |
| 16,420,000 |
Exercised |
| - |
Forfeited |
| (4,601,915) |
Outstanding at July 31, 2022 |
| 12,418,085 |
The following table summarizes the warrants activity during the year ended July 31, 2022:
|
| Number of options |
Outstanding at July 31, 2021 |
| 30,000,000 |
Granted |
| - |
Exercised |
| - |
Amended agreement |
| (15,000,000) |
Outstanding at July 31, 2022 |
| 15,000,000 |
The above table reflects the amended agreement with Fourth and G Holdings, LLC, effective September 11, 2021, where it was agreed that the total warrants were reduced from 30,000,000 to 15,000,000.
See Stock-based Compensation under Note 2 for description of options and warrants granted.
F-13
BAKHU HOLDINGS, CORP.
Notes to Financial Statements
July 31, 2022 and 2021
NOTE 5 - INCOME TAXES
As of July 31, 2022, the Company had net operating loss carry forwards that may be available to reduce future years’ taxable income through 2032. Future tax benefits which may arise as a result of these losses have not been recognized in these financial statements, as their realization is determined not likely to occur and accordingly, the Company has recorded a valuation allowance for the deferred tax asset relating to these tax loss carry-forwards.
NOTE 6 – NOTES PAYABLE - RELATED PARTIES
On August 1, 2019, the Company executed a promissory note in favor of Company’s controlling shareholder, OZ Corporation, to evidence monies loan to the Company from December 26, 2018, through July 31, 2019 in the amount of $147,513, and to evidence any additional amounts that may be loaned to the Company thereafter. Pursuant to the terms of the promissory note, the principal and unpaid accrued simple interest at the rate of 6.0% per annum was due and payable on December 31, 2019.The promissory note also provides that the Company may extend the maturity date for an additional 12 months, until December 31, 2020, by paying an extension fee of 1.00% of the outstanding principal loan balance, which may at the lenders’ option be advanced and added to the then outstanding principal balance. On December 31, 2021 the maturity date was extended until December 2021, and on December 31, 2021, OZ Corporation at the Company’s request extend the term of the Note for an additional 12 months, until December 31, 2022. The principal amount of the promissory note is to be increased by the amount of any additional advances of funds made by OZ Corporation to the Company, from time to time, from the date of such advance. Under the terms of the promissory note, OZ Corporation, at its option may, at any time, convert all or any portion of the then unpaid principal balance and any unpaid accrued interest into shares of the Company’s common stock. The number of shares of common stock to be issued upon such conversion shall be equal to the quotient obtained by dividing (i) the then unpaid principal balance and any unpaid accrued interest of the promissory note being converted by (ii) 80% of the average closing price of the common stock of the Company, for the ninety (90) trading days before the conversion date, rounded up to the nearest whole share. The principal balance and accrued interest due on the note was $2,723,731 and $210,190, respectively as of July 31, 2022.
The Company did not assign any value to the conversion feature of the Note because the 80% of the common stock of the Company had a negative book value of as of July 31, 2022, and continues to have a negative book value. Furthermore, the Company has not generated any revenue to date.
On January 31, 2022, the Company and Cell Science entered into the Third Amendment to the December 20, 2018, Patent and Technology License Agreement (see Note 7). As part of this transaction, the Company issued a $3,500,000 promissory note, bearing interest at the applicable federal short-term rate of 0.44% under IRC Section 1274(d), payable in January 2023. The principal balance and accrued interest due on the note were $3,500,000 and $7,637, respectively, as of July 31, 2022.
NOTE 7 - COMMITMENTS AND CONTINGENCIES
Under the April 2020 strategic alliance agreement and related sublicense between the Company’s subsidiary, CBD Biotech, Inc., and Integrity Cannabis Solutions, Inc. (“ICS”), the Company is obligated to issue to ICS that number of shares of Bakhu common stock equal to 0.5% of the number of shares outstanding as of the date that the production facility of ICS is completed and commences production. Further, if the sublicense is terminated, CBD Biotech will be obligated to repay to ICS its initial $250,000 license fee and reimburse ICS for the cost of the laboratory operational equipment used in its production facility, which thereafter will be owned and managed jointly by ICS and CBD Biotech.
F-14
BAKHU HOLDINGS, CORP.
Notes to Financial Statements
July 31, 2022 and 2021
NOTE 7 – COMMITMENTS AND CONTINGENCIES (continued)
As a result of successfully completing the efficacy demonstration of our licensed technology in July 2021, we became obligated to issue to Cell Science, the licensor, a one-year note for an agreed one-time payment of $3.5 million, less certain credits. The amount of the credits to the note were determined and on January 31, 2022, the Company and Cell Science entered into the Third Amendment to the December 20, 2018, Patent and Technology License Agreement, as subsequently amended. with Cell Science in which the Company agreed as follows:
·There would be no reduction or offset against the $3.5 million One-time Payment for costs paid by the Company or on its behalf. Therefore, the Company issued a $3.5 million promissory note, bearing interest at the applicable federal short-term rate of 0.44% under IRC Section 1274(d), payable in January 2023.
·In lieu of any offset or reduction against the One-Time Payment Note, Cell Science agreed to convey to the Company the lease on the California laboratory in which the efficacy demonstration was conducted, including all related equipment, improvements, supplies, and related tangible and intangible assets.
·Cell Science and OZ Corporation would execute and deliver to the Company a similar conveyance of all rights to the California laboratory.
·The Integrated License Agreement was clarified to provide that all improvements to the licensed technology made by the Company would be owned by Cell Science and included in the license.
NOTE 8 – IMPAIRMENT OF INTANGIBLE ASSETS
On January 31, 2022, the Company and Cell Science entered into the Third Amendment to the December 20, 2018, Patent and Technology License Agreement (see Note 7). As part of this transaction, the Company received all related equipment, improvements, supplies, and related tangible and intangible assets. The Company determined that the lab equipment acquired had a cost basis of $765,160. The remaining balance of $2,734,839 was assigned to intangible assets as the value of the patent and license technology. Since the value of the intangible assets was difficult to ascertain, the Company expensed this amount as Impairment of intangible assets on the Statement of Operations for the year ended July 31, 2022.
F-15
BAKHU HOLDINGS, CORP.
35,705,395 SHARES OF COMMON STOCK
PRELIMINARY PROSPECTUS
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR THAT WE HAVE REFERRED YOU TO. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT. THIS PROSPECTUS IS NOT AN OFFER TO SELL COMMON STOCK AND IS NOT SOLICITING AN OFFER TO BUY COMMON STOCK IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
The Date of this Prospectus is December 21, 2022
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
Securities and Exchange Commission registration fee |
| $ | 7,869.47 |
|
Federal Taxes |
| $ | 0 |
|
State Taxes and Fees |
| $ | 0 |
|
Transfer Agent Fees |
| $ | 1,000 |
|
Accounting fees and expenses |
| $ | 50,000 |
|
Legal fees and expense |
| $ | 100,000 |
|
Blue Sky fees and expenses |
| $ | 0 |
|
Miscellaneous |
| $ | 10,000 |
|
Total |
| $ | 168,869.47 |
|
All amounts are estimates other than the Commission’s registration fee. We are paying all expenses of the offering listed above. No portion of these expenses will be borne by the selling stockholders. The selling stockholders, however, will pay any other expenses incurred in selling their common stock, including any brokerage commissions or costs of sale.
Item 14.Indemnification of Directors and Officers
The Nevada Revised Statutes empower us to indemnify our directors and officers against expenses relating to certain actions, suits or proceedings as provided for therein. In order for such indemnification to be available, the applicable director or officer must not have acted in a manner that constituted a breach of his or her fiduciary duties and involved intentional misconduct, fraud or a knowing violation of law, or must have acted in good faith and reasonably believed that his or her conduct was in, or not opposed to, our best interests. In the event of a criminal action, the applicable director or officer must not have had reasonable cause to believe his or her conduct was unlawful.
Pursuant to our articles, and to the fullest extent permitted by Nevada law as the same exists or as may hereafter be amended, no director of the Corporation shall be personally liable to the Corporation or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a director of the Corporation.
Further, pursuant to our bylaws, the following provisions are in addition to any other rights and remedies of a person for advancement of expenses or indemnification by law or contract, or as determined by a court of competent jurisdiction. A director or officer of the corporation, or a director, officer, partner, manager, or trustee of another corporation, partnership, limited liability company, trust or other business venture serving at the request of the corporation (“Person”) may be eligible for indemnification or advancement of expenses. Expenses subject to indemnification or advancement include expenses incurred because the Person was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, whether or not by or in the right of the corporation, by reason of the fact of the Person’s duties to or on behalf of the corporation (“Litigation”). The character of expenses subject to indemnification or advancement include attorneys’ fees, costs, judgments, fines, and amounts paid in settlement actually and reasonably incurred by the Person in connection with the Litigation (“Costs”), but exclude judgments in favor of the corporation and amounts paid in settlement with the corporation and attorneys’ fees and costs incurred in connection with such judgments or settlements. The corporation shall pay the Costs of Persons incurred in Litigation as they are incurred and in advance of the final disposition of the Litigation, upon receipt of an undertaking by or on behalf of the person to repay the amount if it is ultimately determined by a court of competent jurisdiction that the person is not entitled to indemnification by the corporation. The corporation shall indemnify the Costs of Persons incurred in Litigation, regardless of the conduct of the Person, unless a final adjudication establishes that the Person’s acts or omissions involved intentional misconduct, fraud or a knowing violation of the law and was material to the cause of action.
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The Nevada Revised Statutes further provide that a corporation may purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise for any liability asserted against him and liability and expenses incurred by him in his capacity as a director, officer, employee or agent, or arising out of his status as such, whether or not the corporation has the authority to indemnify him against such liability and expenses. We have secured a directors’ and officers’ liability insurance policy. We expect that we will continue to maintain such a policy.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, or otherwise, they have been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 15. Recent Sales of Unregistered Securities
During the past three years preceding the Company has issued securities without registration under the Securities Act on the terms and circumstances described below.
Fiscal Year Ending July 31, 2022
On July 6, 2022 the Company issued 33,334 restricted shares of common stock to an accredited investor for cash at $1.50 per share for aggregate consideration of $50,000. No underwriters were involved in the transaction. The shares were issued pursuant to an exemption from registration under Section 4(a)(2) and Rule 506 of the Securities Act of 1933.
On June 10, 2022 and June 15, 2022, the Company issued 66,668 restricted shares of common stock to two accredited investors for cash at $1.50 per share for aggregate consideration of $100,000. No underwriters were involved in the transaction. The shares were issued pursuant to an exemption from registration under Section 4(a)(2) and Rule 506 of the Securities Act of 1933.
On October 20, 2021, the Company issued 100,000 restricted shares of common stock to three accredited investors for cash at $3.00 per share for aggregate consideration of $300,000. No underwriters were involved in the transaction. The shares were issued pursuant to an exemption from registration under Section 4(a)(2) and Rule 506 of the Securities Act of 1933.
On October 12, 2021, the Company issued 383,334 restricted shares of common stock to five accredited investors for cash at $3.00 per share for aggregate consideration of $1,150,003. No underwriters were involved in the transaction. The shares were issued pursuant to an exemption from registration under Section 4(a)(2) and Rule 506 of the Securities Act of 1933.
Fiscal Year Ending July 31, 2021
On July 30, 2021, the Company issued 16,667 restricted shares of common stock to two accredited investors for cash at $3.00 per share for aggregate consideration of $50,001. No underwriters were involved in the transaction. The shares were issued pursuant to an exemption from registration under Section 4(a)(2) and Rule 506 of the Securities Act of 1933.
On June 15, 2021, the Company issued 50,000 restricted shares of common stock to three accredited investors for cash at $3.00 per share for aggregate consideration of $150,000. No underwriters were involved in the transaction. The shares were issued pursuant to an exemption from registration under Section 4(a)(2) and Rule 506 of the Securities Act of 1933.
II-2
On May 25, 2021, the Company issued 23,334 restricted shares of common stock to an accredited investor for cash at $3.00 per share for aggregate consideration of $70,000. No underwriters were involved in the transaction. The shares were issued pursuant to an exemption from registration under Section 4(a)(2) and Rule 506 of the Securities Act of 1933.
Fiscal Year Ending July 31, 2020
On July 15, 2021, the Company issued 114,000 restricted shares of common stock to five accredited investors, for cash at a price of $2.50 per share for aggregate consideration of $285,000. No underwriters were used. The shares were issued pursuant to an exemption from registration provided by Section 4(a)(2) and Regulation S of the Securities Act of 1933.
On March 9, 2020, the Company issued 11,061,816 restricted shares of common stock to the OZ Corporation, in consideration of ongoing consulting and advisory services provided to the Company, on terms as previously agreed to the Company and the OZ Corporation. The securities were issued pursuant to an exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933. The OZ Corporation is an “Accredited Investor” as defined under Rule 501 of Regulation D of the Act and has such knowledge and experience and possessed such information as it deemed necessary to make an informed investment decision.
II-3
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits. The following exhibits are either filed as a part hereof or are incorporated by reference. Exhibit numbers correspond to the numbering system in Item 601 of Regulation S-K.
II-4
101.DEF |
| XBRL Taxonomy Extension Definition Linkbase |
101.LAB |
| XBRL Taxonomy Extension Label Linkbase |
(1)Previously filed on Form 8-K on August 22, 2018
(2)Previously filed on Form 8-K on December 27, 2018
(3)Previously filed on Form 8-K on January 14, 2020
(4)Previously filed on Form 8-K on April 27, 2020
(5)Previously filed on Form 8-K on June 12, 2020
(6)Previously filed on Form 8-K on October 1, 2020
(7)Previously filed on Form 8-K on June 16, 2021
(8)Previously filed on Form 8-K on July 12, 2021
(9)Previously filed on Form 8-K on August 2, 2021
(10)Previously filed on Form 8-K on September 14, 2021
(11)Previously filed on Form 8-K on September 21, 2021
(12)Previously filed on Form 10-Q on January 11, 2022
(13)Previously filed on Form 8-K on February 3, 2022
(14)Previously filed on Form 8-K on February 17, 2022
(15)Previously filed on Form 8-K on July 22, 2022
(16)Previously filed on Form 8-K on August 4, 2022
(17) Filed herewith
* | All exhibits are numbered with the number preceding the decimal indicating the applicable SEC reference number in Item 601 and the number following the decimal indicating the sequence of the particular document. |
(b)Financial Statement Schedules.
All financial statement schedules are omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or the notes thereto.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
i.To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
ii.To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (§ 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and,
iii.To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
II-5
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Long Beach, State of California, on the date indicated below.
| BAKHU HOLDINGS CORP. | |
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Date: December 21, 2022 |
| /s/ Evripides Drakos |
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| By: Evripides Drakos |
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| Its: President and Chief Executive Officer |
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| (Principal Executive Officer) |
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Date: December 21, 2022 |
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| Its: Chief Financial Officer (Principal Accounting Officer) |
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II-7
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Evripides Drakos, jointly and severally, as his or her attorneys-in-fact, with full power of substitution in each, for him or her in any and all capacities to sign any amendments to this registration statement on Form S-1, including, without limitation, any post-effective amendments thereto, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his or her substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Amendment No. 1 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, on the 21st day of December 2022.
Signature |
| Title |
| Date |
/s/ Evripides Drakos |
| Director, President, Chief Executive Officer and |
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| Principal Executive Officer) |
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Chief Financial Officer and Principal Accounting Officer) |
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| Director, Vice President and Secretary |
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Peter Whitton |
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| Director |
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Tom Vaknin |
|
|
|
|
* |
| Director |
| |
Moshe Morgenstern
*/s/ Evripides Drakos |
|
|
| |
|
Attorney-in-fact |
|
|
|
|
II-8
| This ‘S-1/A’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| 9/16/31 | ||||
| 7/29/29 | ||||
| 12/2/28 | ||||
| 12/15/24 | ||||
| 1/30/23 | ||||
| 12/31/22 | ||||
| Filed as of: | 12/22/22 | |||
| Filed on: | 12/21/22 | |||
| 11/22/22 | ||||
| 11/7/22 | 10-K | |||
| 10/31/22 | 10-Q, NT 10-Q | |||
| 9/22/22 | ||||
| 9/16/22 | ||||
| 8/4/22 | 8-K | |||
| 7/31/22 | 10-K, 5, NT 10-K | |||
| 7/29/22 | 3, 4, 8-K | |||
| 7/22/22 | 8-K | |||
| 7/6/22 | ||||
| 6/23/22 | 8-K | |||
| 6/15/22 | ||||
| 6/10/22 | NT 10-Q | |||
| 5/17/22 | ||||
| 4/30/22 | 10-Q, NT 10-Q | |||
| 4/18/22 | 4 | |||
| 3/21/22 | 10-K/A, 10-Q, 10-Q/A | |||
| 3/15/22 | ||||
| 2/17/22 | 8-K | |||
| 2/11/22 | 10-K, 3, 8-K | |||
| 2/3/22 | 8-K | |||
| 1/31/22 | 10-Q, 8-K, NT 10-Q | |||
| 1/11/22 | 10-Q/A | |||
| 1/5/22 | 4 | |||
| 12/31/21 | ||||
| 12/7/21 | ||||
| 12/6/21 | 3 | |||
| 12/3/21 | 3, 8-K | |||
| 11/11/21 | ||||
| 11/10/21 | 8-K | |||
| 10/31/21 | 10-Q, 10-Q/A | |||
| 10/20/21 | ||||
| 10/12/21 | ||||
| 9/22/21 | 4 | |||
| 9/21/21 | 8-K | |||
| 9/16/21 | 8-K | |||
| 9/14/21 | 8-K | |||
| 9/11/21 | ||||
| 9/10/21 | 8-K | |||
| 8/2/21 | 8-K | |||
| 7/31/21 | 10-K, 10-K/A, 5, NT 10-K | |||
| 7/30/21 | ||||
| 7/27/21 | ||||
| 7/15/21 | ||||
| 7/12/21 | 8-K | |||
| 6/16/21 | 8-K | |||
| 6/15/21 | ||||
| 6/7/21 | 8-K | |||
| 5/25/21 | ||||
| 4/30/21 | 10-Q, 10-Q/A, NT 10-Q | |||
| 4/27/21 | 4 | |||
| 4/22/21 | 4 | |||
| 4/19/21 | ||||
| 3/11/21 | S-1/A | |||
| 2/8/21 | ||||
| 1/31/21 | 10-Q, 10-Q/A | |||
| 12/31/20 | ||||
| 11/6/20 | ||||
| 10/31/20 | 10-Q, 10-Q/A, NT 10-Q | |||
| 10/1/20 | 8-K | |||
| 9/22/20 | 4, 4/A, 8-K | |||
| 7/31/20 | 10-K, 5, NT 10-K | |||
| 7/24/20 | ||||
| 6/12/20 | 10-Q, 8-K | |||
| 4/27/20 | 8-K | |||
| 4/22/20 | ||||
| 4/17/20 | 8-K | |||
| 3/9/20 | ||||
| 1/31/20 | 10-Q | |||
| 1/14/20 | 8-K | |||
| 1/7/20 | ||||
| 12/31/19 | 8-K | |||
| 11/19/19 | ||||
| 10/31/19 | 10-Q, NT 10-Q | |||
| 8/9/19 | ||||
| 8/1/19 | ||||
| 7/31/19 | 10-K, 10-K/A, 5, NT 10-K | |||
| 4/7/19 | ||||
| 2/14/19 | ||||
| 12/27/18 | 8-K | |||
| 12/26/18 | ||||
| 12/20/18 | 8-K | |||
| 8/22/18 | 8-K, PRE 14C | |||
| 8/8/18 | 8-K, PRE 14C | |||
| 5/15/18 | ||||
| 8/29/13 | ||||
| 5/4/09 | ||||
| 4/24/08 | ||||
| List all Filings | ||||