As filed with the Securities and Exchange Commission on March 29, 2024

Registration No. 333-[•]

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

_________________________

FORM  i S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

_________________________

 i FRESH VINE WINE, INC.
(Exact name of registrant as specified in its charter)

_________________________

P.O. Box 78984
Charlotte, NC 28271
(855) 766-9463
(Address including zip code, and telephone number, including
area code, of registrant’s principal executive offices)

_________________________

Michael Pruitt
Chief Executive Officer
Fresh Vine Wine, Inc.
P.O. Box 78984
Charlotte, NC 28271
(855) 766-9463
(Name, address, including zip code, and telephone number, including area code, of agent for service)

_________________________

Copies to:

_________________________

Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after the effectiveness of this registration statement and the satisfaction or waiver of all other conditions under the Merger Agreement described herein.

If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) 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. ☐

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. ☐

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.

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.  i ☐

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐

The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

Preliminary Proxy Statement/Prospectus, subject to completion, dated March 29, 2024

PROPOSED MERGER
YOUR VOTE IS VERY IMPORTANT

To the stockholders of Fresh Vine Wine, Inc.:

Fresh Vine Wine, Inc., a Nevada corporation, or Fresh Vine, and Notes Live, Inc., a Colorado corporation, or Notes Live, entered into an Agreement and Plan of Merger on January 25, 2024, or the Merger Agreement, pursuant to which a wholly-owned subsidiary of Fresh Vine will merge with and into Notes Live, with Notes Live surviving as a wholly-owned subsidiary of Fresh Vine, which transaction is referred to herein as the merger. Collectively, we refer to the Fresh Vine and the surviving corporation following the merger as the combined company.

Subject to the terms and conditions of the Merger Agreement, at the effective time of the merger, each outstanding share of Notes Live capital stock will be converted into the right to receive a number of shares of Fresh Vine common stock calculated using a formula, referred to herein as the exchange ratio, that is intended to allocate existing Fresh Vine stockholders and Notes Live shareholders a percentage of the combined company based on agreed upon relative valuations of Fresh Vine and Notes Live in which:

•        the Notes Live valuation is equal to $350,875,464, plus an amount equal to the aggregate gross proceeds received or to be received by Notes Live in a private offering of Notes Live securities conducted by Notes Live as of the date of the Merger Agreement (the “Notes Live Financing”); and

•        the Fresh Vine Valuation is equal to $18.0 million, plus the amount of any Net Cash Surplus.

For such purposes, “Net Cash Surplus” means the amount by which the cash, cash equivalent assets or other liquid assets of Fresh Vine at the closing of the Merger transaction exceed the Net Cash Target, and the “Net Cash Target” means an aggregate of $3.5 million; provided that the Net Cash Target will be reduced on a dollar-for-dollar basis for the gross proceeds of any equity investments in Notes Live made by Fresh Vine, its affiliates, or persons directly introduced to Notes Live by Fresh Vine or its affiliates from December 1, 2023 through the effective date of the Merger (but excluding a $500,000 equity investment in Notes Live made by Fresh Vine upon entering into the letter of intent with Note Live for the merger transaction (the “Fresh Vine Equity Investment”)).

Also at the effective time of the merger, (i) each outstanding warrant to purchase shares of Notes Live capital stock will be exchanged (or otherwise amended) for a warrant to purchase shares of Fresh Vine common stock, with necessary adjustments to reflect the exchange ratio, and (ii) any then outstanding Notes Live promissory note that is convertible into Notes Live common stock will be exchanged, or otherwise amended, such that it will be convertible from and after the merger into shares of Fresh Vine common stock at a per share conversion price adjusted to reflect the exchange ratio.

Holders of Fresh Vine common stock will continue to own and hold their existing shares of Fresh Vine common stock. Holders of Fresh Vine’s Series A Convertible Preferred Stock and Series B Convertible Preferred Stock, such shares being collectively referred to herein as the Fresh Vine Preferred Stock, have agreed to convert such shares into Fresh Vine common stock upon the closing of the merger, subject to Fresh Vine stockholders approving the issuance of common stock upon such conversion in excess of the existing “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of the Fresh Vine Preferred Stock. Each option and warrant to purchase Fresh Vine common stock that is outstanding at the effective time of the merger will remain outstanding in accordance with its terms and such options and warrants, subject to the proposed reverse stock split described in this proxy statement/prospectus, will be unaffected by the merger.

On a pro forma basis and without adjustment for gross proceeds from the Notes Live Financing or any Net Cash Surplus, pre-merger Notes Live shareholders are expected to own approximately 95.1% of the outstanding shares of capital stock of the combined company and pre-merger Fresh Vine stockholders are expected to own approximately 4.9% of the outstanding shares of capital stock of the combined company.

As contemplated by the Merger Agreement, Fresh Vine intends to effect a reverse stock split at or around the effect date of the merger at a ratio that results in the exchange ratio in the merger being as near to one as reasonably practicable. In addition, as a condition to the closing of the merger, on or before the closing of the merger, Fresh Vine shall have engaged in a sale, license, transfer, disposition, divestiture or other monetization transaction, or winding down of Fresh Vine’s current wine production business, and, in connection therewith, shall have caused any and all known obligations or liabilities associated with the assets or conduct of the Fresh Vine legacy business operations to be satisfied, which we refer to as the Fresh Vine legacy transaction.

Fresh Vine common stock is currently listed on the NYSE American stock market, or NYSE American, under the symbol “VINE.” Fresh Vine intends to file an initial listing application for the combined company with NYSE American. After completion of the merger, Fresh Vine is expected to be renamed “Notes Live Holding Corp.” and to trade under the symbol “VENU.” On March 22, 2024, the last trading day before the date of the accompanying proxy statement/prospectus, the closing sale price of Fresh Vine common stock was $0.7298 per share.

Fresh Vine is holding a special meeting of stockholders, or the special meeting, in order to obtain the stockholder approvals necessary to complete the Merger and related matters. The Fresh Vine special meeting will be held at [•] [a.m./p.m.], prevailing Eastern time, on [•], [•], 2024, unless postponed or adjourned to a later date, for the purpose of considering and voting upon the matters set forth in the Notice of Special Meeting of Stockholders and the accompanying proxy statement/prospectus.

As described in the accompanying proxy statement/prospectus, certain Notes Live stockholders (solely in their respective capacities as Notes Live stockholders) holding approximately 42% of the outstanding shares of Notes Live capital stock as of January 25, 2024 (and greater than 50.1% of voting power of Notes Live as of January 25, 2024), and certain Fresh Vine stockholders (solely in their respective capacities as Fresh Vine stockholders), are parties to voting and support agreements with Notes Live and Fresh Vine whereby such stockholders have agreed, subject to the effectiveness of the registration statement on Form S-4, to vote their shares in favor of the transactions and proposals contemplated therein, subject to the terms of the voting and support agreements. Following the effectiveness of the registration statement on Form S-4, of which the accompanying proxy statement/prospectus is a part, and pursuant to the Merger Agreement and the voting and support agreements, Notes Live intends to hold a special stockholders’ meeting to approve the merger and related transactions.

After careful consideration, each of the Fresh Vine and Notes Live boards of directors have approved the Merger Agreement and have determined that it is advisable to consummate the merger and related transactions. The Fresh Vine board of directors has approved the proposals described in the accompanying proxy statement/prospectus and recommends that its stockholders vote “FOR” the proposals described in the accompanying proxy statement/prospectus.

More information about Fresh Vine, Notes Live, the Merger Agreement and the transactions contemplated thereby and the proposals being considered at the Fresh Vine special meeting is contained in the accompanying proxy statement/prospectus. Fresh Vine urges you to read the accompanying proxy statement/prospectus carefully and in its entirety. IN PARTICULAR, YOU SHOULD CAREFULLY CONSIDER THE MATTERS DISCUSSED UNDER THE SECTION ENTITLED “RISK FACTORS” BEGINNING ON PAGE 23 OF THE ACCOMPANYING PROXY STATEMENT/PROSPECTUS.

We are excited about the opportunities the proposed merger brings to Fresh Vine’s stockholders, and thank you for your consideration and continued support.

Michael D. Pruitt

Chief Executive Officer

Fresh Vine Wine, Inc.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of the accompanying proxy statement/prospectus. Any representation to the contrary is a criminal offense.

The accompanying proxy statement/prospectus is dated [•], 2024, and is first being mailed to Fresh Vine stockholders on or about [•], 2024.

FRESH VINE WINE, INC.
P.O. Box 78984
Charlotte, NC 28271
(855) 766-9463

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON [•], 2024

Dear stockholders of Fresh Vine Wine, Inc.:

On behalf of the board of directors of Fresh Vine Wine, Inc., a Nevada corporation, or Fresh Vine, we are pleased to deliver this proxy statement/prospectus for a special meeting of stockholders of Fresh Vine, including any adjournment or postponement thereof, or the Fresh Vine special meeting, and for the proposed transactions between Fresh Vine and Notes Live, Inc., a Colorado corporation, or Notes Live, pursuant to which FVW Merger Sub, Inc., a Colorado corporation and wholly-owned subsidiary of Fresh Vine, or Merger Sub, will merge with and into Notes Live, with Notes Live surviving as a wholly-owned subsidiary of Fresh Vine, or the merger.

The Fresh Vine special meeting will be held on [•], [•], 2024, at [•] prevailing Eastern time, at 4539 Hedgemore Dr., Charlotte, NC 28209, or at any adjournment or adjournments thereof, for the following purposes:

1.      To vote on a proposal to approve, for purposes of NYSE American Company Guide Section 712(b), the issuance of shares of Fresh Vine common stock, $0.001 par value per share, or Fresh Vine common stock, to stockholders of Notes Live pursuant to the terms of the Agreement and Plan of Merger, dated as of January 25, 2024, or the Merger Agreement, by and among Fresh Vine, Merger Sub and Notes Live, a copy of which is attached as Annex A to the accompanying proxy statement/prospectus, and, for purposes of NYSE American Company Guide Section 713(b), the change of control of Fresh Vine resulting from the merger (the “Merger Proposal”);

2.      To vote on a proposal to approve an amendment to the articles of incorporation of Fresh Vine, or the Fresh Vine Articles of Incorporation, changing the Fresh Vine corporate name to “Notes Live Holding Corp.” in the form attached as Annex B to the accompanying proxy statement/prospectus (the “Name Change Proposal”);

3.      To vote upon a proposal to approve an amendment to the Fresh Vine Articles of Incorporation to (a) effect a reverse stock split of the issued and outstanding shares of Fresh Vine common stock, at a ratio in the range of 1-for-[•] to 1-for-[•], with such ratio and implementation and timing of the reverse stock split to be determined in the discretion of the Fresh Vine board of directors and as agreed to by Notes Live at or prior to the closing of the merger, and (b) if and when the reverse stock split is effected, establish the number of authorized shares of Fresh Vine common stock at 150,000,000, in the form attached as Annex C to the accompanying proxy statement/prospectus (the “Reverse Split Proposal”);

4.      To vote upon a proposal to approve, for purposes complying with Section 713(a) and Section 713(b) of the NYSE American Company Guide, the issuance upon conversion or exchange of Fresh Vine’s Series A Convertible Preferred Stock, or Fresh Vine Preferred Stock, of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of the Series A Convertible Preferred Stock (the “Series A Preferred Stock Conversion Proposal”);

5.      To vote upon a proposal to approve, for purposes complying with Section 713(a) and Section 713(b) of the NYSE American Company Guide, the issuance upon conversion or exchange of Fresh Vine’s Series B Convertible Preferred Stock of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Series B Convertible Preferred Stock (the “Series B Preferred Stock Conversion Proposal”);

6.      To vote on a proposal to approve, pursuant to Section 78.565 of the Nevada Revised Statutes, the sale of the assets comprising the Fresh Vine legacy wine production business, which sale is a condition to the closing of the transactions contemplated by the Merger Agreement and may be considered to be a sale of all of the Company’s property and assets (the “Legacy Business Sale Proposal”);

7.      To vote on a proposal to amend the Fresh Vine 2021 Equity Incentive Plan to increase the total number of shares of Fresh Vine common stock available for issuance under that plan pursuant to future awards to 5,000,000 shares (after giving effect to the reverse stock split) (the “Equity Plan Amendment Proposal”);

8.      To vote upon a proposal to approve an adjournment of the Fresh Vine special meeting, if necessary, to solicit additional proxies if there are not sufficient votes in favor of Proposal Nos. 1, 2, 3, 4, 5, 6 and 7 (the “Adjournment Proposal”); and

9.      To transact such other business as may properly come before the Fresh Vine special meeting or any adjournment or postponement thereof.

The Fresh Vine board of directors has fixed [•], 2024 as the record date for the determination of Fresh Vine stockholders entitled to notice of, and to vote at, the Fresh Vine special meeting and any adjournment or postponement thereof, or the record date. Only Fresh Vine stockholders of record, including holders of Fresh Vine’s common stock, Series A Convertible Preferred Stock and Series B Convertible Preferred Stock, at the close of business on the record date are entitled to notice of, and to vote at, the Fresh Vine special meeting. Collectively, Fresh Vine’s Series A Convertible Preferred Stock and Series B Convertible Preferred Stock are referred to in this proxy statement/prospectus as the Fresh Vine Preferred Stock.

Your vote is important. The affirmative vote of the holders of a majority of the voting power of the shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal Nos. 1, 7 and 8. The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record date is required for approval of Proposal Nos. 2, 3 and 6. The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Series B Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal No. 4. The holders of Fresh Vine Series A Convertible Preferred Stock are not entitled to vote their shares of Fresh Vine Series A Convertible Preferred Stock on Proposal No. 4, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of or as a dividend on Fresh Vine Series A Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of Proposal No. 4. The affirmative vote of the holders of a majority of the shares of Fresh Vine common stock and Series A Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal No. 5. The holders of Fresh Vine Series B Convertible Preferred Stock are not entitled to vote their shares of Fresh Vine Series B Convertible Preferred Stock on Proposal No. 5, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of Fresh Vine Series B Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of Proposal No. 5.

Each of Proposal Nos. 1, 2, 3, 6 and 7 are conditioned upon the approval of each such proposal, and the approval of Proposal Nos. 4 and 5, and the approval of Proposal Nos. 1, 2, 3, 4, 5 and 6 is a condition to the completion of the merger. Therefore, the merger cannot be consummated without the approval of Proposal Nos. 1, 2, 3, 4, 5 and 6. Proposal Nos. 4 and 5 are not conditioned on the approval of any other proposal.

Whether or not you attend the Fresh Vine special meeting, it is important that your shares be represented. You may vote your proxy through the Internet, by phone or by mail by completing and returning the proxy card mailed to you. Voting instructions are printed on your proxy card and included in the accompanying proxy statement/prospectus.

THE FRESH VINE BOARD OF DIRECTORS HAS DETERMINED AND BELIEVES THAT EACH OF THE PROPOSALS OUTLINED ABOVE IS ADVISABLE TO, AND IN THE BEST INTERESTS OF, FRESH VINE AND ITS STOCKHOLDERS AND HAS APPROVED EACH SUCH PROPOSAL. THE FRESH VINE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT FRESH VINE STOCKHOLDERS VOTE “FOR” EACH SUCH PROPOSAL.

By Order of the Fresh Vine Board of Directors,

Michael D. Pruitt
Chief Executive Officer

REFERENCES TO ADDITIONAL INFORMATION

This proxy statement/prospectus incorporates important business and financial information about Fresh Vine that is not included in or delivered with this document. You may obtain this information without charge through the Securities and Exchange Commission, or the SEC, website (www.sec.gov) or upon your written or oral request by contacting the Corporate Secretary of Fresh Vine Wine, Inc., P.O. Box 78984, Charlotte, NC 28271, by calling (855) 766-9463, or by email at info@freshvinewine.com.

To ensure timely delivery of these documents, any request should be made no later than [•], 2024 to receive them before the Fresh Vine special meeting.

For additional details about where you can find information about Fresh Vine, see the section entitled “Where You Can Find More Information” on page 229 of this proxy statement/prospectus.

ABOUT THIS PROXY STATEMENT/PROSPECTUS

This proxy statement/prospectus, which forms part of a registration statement on Form S-4 filed with the SEC by Fresh Vine (File No. 333-[•]), constitutes a prospectus of Fresh Vine under Section 5 of the Securities Act of 1933, as amended or the Securities Act, with respect to shares of Fresh Vine common stock to be issued pursuant to the Merger Agreement. This document also constitutes a notice of meeting and a proxy statement under Section 14(a) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, with respect to the Fresh Vine special meeting at which Fresh Vine stockholders will be asked to consider and vote on, among other matters, a proposal to approve the issuance of shares of Fresh Vine common stock pursuant to the Merger Agreement.

No one has been authorized to provide you with information that is different from that contained in, or incorporated by reference into, this proxy statement/prospectus. This proxy statement/prospectus is dated [•], 2024. The information contained in this proxy statement/prospectus is accurate only as of that date or, in the case of information in a document incorporated by reference, as of the date of such document, unless the information specifically indicates that another date applies.

This proxy statement/prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction in which or from any person to whom it is unlawful to make any such offer or solicitation in such jurisdiction.

The information concerning Fresh Vine contained in this proxy statement/prospectus or incorporated by reference has been provided by Fresh Vine, and the information concerning Notes Live contained in this proxy statement/prospectus has been provided by Notes Live.

All references in this proxy statement/prospectus to “Fresh Vine” and “Notes Live” refer to Fresh Vine, Inc. and Notes, Live, Inc., respectively. All references in this proxy statement/prospectus to “Merger Sub” refer to FVW Merger Sub, Inc., a newly formed, wholly-owned subsidiary of Fresh Vine. All references in this proxy statement/prospectus to the “combined company” refer to Fresh Vine and its wholly-owned subsidiary, Notes Live, following completion of the merger. Except as otherwise noted, references to “we,” “us” or “our” refer to both Fresh Vine and Notes Live. All references in this proxy statement/prospectus to “Fresh Vine common stock” refer to the common stock of Fresh Vine, $0.001 par value per share, and all references in this proxy statement/prospectus to “Notes Live common stock” refer to the common stock of Notes Live, $0.001 par value per share.

TABLE OF CONTENTS

QUESTIONS AND ANSWERS ABOUT THE MERGER

Except where specifically noted, the following information and all other information contained in this proxy statement/prospectus does not give effect to the proposed reverse stock split described in the section entitled “Matters Being Submitted to a Vote of Fresh Vine Stockholders — Proposal No. 3: Approval of an amendment to the Fresh Vine Articles of Incorporation to effect the reverse stock split and establish the number of authorized shares of Fresh Vine common stock” beginning on page 107 of this proxy statement/prospectus.

The following section provides answers to frequently asked questions about the merger. This section, however, provides only summary information. For a more complete response to each of these questions and for additional information, refer to the cross-referenced sections in this proxy statement/prospectus.

Q:     What is the merger?

A:     Fresh Vine Wine, Inc., or Fresh Vine, FVW Merger Sub, Inc., or Merger Sub, and Notes Live, Inc., or Notes Live, entered into an Agreement and Plan of Merger, or the Merger Agreement, on January 25, 2024. The Merger Agreement contains the terms and conditions of the proposed business combination of Fresh Vine and Notes Live. Under the Merger Agreement, Merger Sub will merge with and into Notes Live, with Notes Live surviving as a wholly-owned subsidiary of Fresh Vine, or the merger. After the completion of the merger, Fresh Wine will change its corporate name from “Fresh Vine Wine, Inc.” to “Notes Live Holding Corp.” as contemplated by the Merger Agreement.

At the effective time of the merger, or the effective time, each outstanding share of Notes Live capital stock, or collectively, Notes Live capital stock, will be converted into the right to receive a number of shares of Fresh Vine common stock calculated using a formula, referred to herein as the exchange ratio, that is intended to allocate existing Fresh Vine stockholders and Notes Live shareholders a percentage of the combined company based on agreed upon relative valuations of Fresh Vine and Notes Live in which:

•        the Notes Live valuation is equal to $350,875,464, plus an amount equal to the aggregate gross proceeds received or to be received by Notes Live in a private offering of Notes Live securities conducted by Notes Live as of the date of the Merger Agreement (the “Notes Live Financing”); and

•        the Fresh Vine valuation is equal to $18.0 million, plus the amount of any Net Cash Surplus.

For such purposes, “Net Cash Surplus” means the amount by which the cash, cash equivalent assets or other liquid assets of Fresh Vine at the closing of the Merger transaction exceed the Net Cash Target, and the “Net Cash Target” means an aggregate of $3.5 million; provided that the Net Cash Target will be reduced on a dollar-for-dollar basis for the gross proceeds of any equity investments in Notes Live made by Fresh Vine, its affiliates, or persons directly introduced to Notes Live by Fresh Vine or its affiliates from December 1, 2023 through the effective date of the Merger (but excluding a $500,000 equity investment in Notes Live made by Fresh Vine upon entering into the letter of intent with Note Live for the merger transaction (the “Fresh Vine Equity Investment”)). The exchange ratio is described in more detail in the section entitled “The Merger Agreement — Exchange Ratio” beginning on page 85 of the accompanying proxy statement/prospectus.

Also at the effective time, (i) each outstanding warrant to purchase shares of Notes Live capital stock will be exchanged (or otherwise amended) for a warrant to purchase shares of Fresh Vine common stock, with necessary adjustments to reflect the exchange ratio, and (ii) any then outstanding Notes Live promissory note that is convertible into Notes Live common stock will be exchanged, or otherwise amended, such that it will be convertible from and after the merger into shares of Fresh Vine common stock at a per share conversion price adjusted to reflect the exchange ratio.

Each share of Fresh Vine common stock and each option and warrant to purchase Fresh Vine common stock that is outstanding at the effective time of the merger will remain outstanding in accordance with its terms and such shares, options and warrants, subject to the proposed reverse stock split described in this proxy statement/prospectus, will be unaffected by the merger. On a pro forma basis and without adjustment for gross proceeds from the Notes Live Financing or any Net Cash Surplus, pre-merger Notes Live shareholders are expected to own approximately 95.1% of the outstanding shares of capital stock of the combined company and pre-merger Fresh Vine stockholders are expected to own approximately 4.9% of the outstanding shares of capital stock of the combined company.

Holders of Fresh Vine Preferred Stock have agreed to convert such shares into Fresh Vine common stock upon the closing of the merger, subject to Fresh Vine’s stockholders approving the issuance of common stock upon such conversion in excess of the existing “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificates of Designation of the Fresh Vine Preferred Stock.

As a condition to the closing of the merger, on or before the closing of the merger, shall have engaged in a sale, license, transfer, disposition, divestiture or other monetization transaction, or winding down of Fresh Vine’s current wine production business, and, in connection therewith, shall have caused any and all known obligations or liabilities associated with the assets or conduct of the Fresh Vine legacy business operations to be satisfied, which we refer to as the Fresh Vine legacy transaction.

Q:     Why are the two companies proposing to merge?

A:     Fresh Vine and Notes Live believe that the merger will provide value to each company and their respective stockholders, in that Fresh Vine stockholders will have an interest in Notes Live’s growing entertainment venue assets and operations and Notes Live and its stockholders will gain, among other things, greater access to the capital markets and liquidity for stockholders by having the company’s common stock listed on the NYSE American stock exchange. For a discussion of Fresh Vine’s and Notes Live’s reasons for the merger, see the sections entitled “The Merger — Fresh Vine Reasons for the Merger” and “The Merger — Notes Live Reasons for the Merger” beginning on pages 69 and 71, respectively, of this proxy statement/prospectus.

Q:     Why am I receiving this proxy statement/prospectus?

A:     You are receiving this proxy statement/prospectus because you have been identified as a Fresh Vine stockholder as of the record date and you are entitled to vote at the Fresh Vine special meeting to approve the matters set forth herein. This document serves as:

•        a proxy statement of Fresh Vine used to solicit proxies for the Fresh Vine special meeting to vote on the matters set forth herein; and

•        a prospectus of Fresh Vine used to offer shares of Fresh Vine common stock in exchange for shares of Notes Live capital stock in the merger.

Q:     What will Fresh Vine’s equity holders receive in the merger?

A:     At the effective time, holders of Fresh Vine common stock will continue to own and hold their existing shares of Fresh Vine common stock. Holders of shares of Fresh Vine Preferred Stock have agreed to convert such shares into Fresh Vine common stock upon the closing of the merger, subject to Fresh Vine’s stockholders approving the issuance of common stock upon such conversion in excess of the existing “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of the Fresh Vine Preferred Stock.

All outstanding and unexercised Fresh Vine options granted pursuant to or outside of the Fresh Vine, Inc. 2021 Equity Incentive Plan, or the 2021 Incentive Plan, will remain in effect pursuant to their terms and, subject to the proposed reverse stock split, will be unaffected by the merger. All outstanding and unexercised warrants to purchase Fresh Vine common stock, or Fresh Vine warrants, immediately prior to the effective time will remain in effect pursuant to their terms and, subject to the proposed reverse stock split, will be unaffected by the merger.

Q:     What will Notes Live stockholders and Notes Live warrant holders receive in the merger?

A:     Notes Live stockholders will receive shares of Fresh Vine common stock based on the exchange ratio. Applying the exchange ratio, on a pro forma basis and without adjustment for gross proceeds from the Notes Live Financing or any Net Cash Surplus, immediately after the merger, pre-merger Fresh Vine stockholders are expected to own approximately 4.9% of the outstanding shares of capital stock of the combined company and pre-merger Notes Live stockholders are expected to own approximately 95.1% of the outstanding shares of capital stock of the combined company.

In connection with the merger, each outstanding warrant to purchase shares of Notes Live capital stock will be exchanged (or otherwise amended) for a warrant to purchase shares of Fresh Vine common stock, with necessary adjustments to reflect the exchange ratio, and any then outstanding Notes Live promissory note that

is convertible into Notes Live common stock will be exchanged, or otherwise amended, such that it will be convertible from and after the merger into shares of Fresh Vine common stock at a per share conversion price adjusted to reflect the exchange ratio.

For a more complete description of what Notes Live stockholders will receive in the merger, see the sections entitled “The Merger Agreement — Merger Consideration” and “The Merger Agreement — Exchange Ratio” beginning on pages 84 and 85, respectively, of this proxy statement/prospectus.

Q:     What will happen to Fresh Vine if, for any reason, the merger does not close?

A:     If, for any reason, the merger does not close, the Fresh Vine board of directors may elect to, among other things, review and evaluate another strategic transaction like the merger, attempt to sell or otherwise dispose of the various assets of Fresh Vine, continue to operate the business of Fresh Vine or dissolve and liquidate its assets. If Fresh Vine decides to dissolve and liquidate its assets, Fresh Vine would be required to pay all of its debts and contractual obligations, and to set aside certain reserves for potential future claims. There can be no assurances as to the amount or timing of available cash left, if any, to distribute to Fresh Vine stockholders after paying the debts and other obligations of Fresh Vine and setting aside funds for reserves.

Q:     What is required to consummate the merger?

A:     Pursuant to the terms of the Merger Agreement, in order for the merger to close, the following proposals must be approved by the requisite vote of Fresh Vine stockholders at the Fresh Vine special meeting:

•        Proposal No. 1:    To vote on a proposal to approve, for purposes of NYSE American Company Guide Section 712(b), the issuance of shares of Fresh Vine common stock, $0.001 par value per share, or Fresh Vine common stock, to stockholders of Notes Live pursuant to the terms of the Agreement and Plan of Merger, dated as of January 25, 2024, or the Merger Agreement, by and among Fresh Vine, Merger Sub and Notes Live, a copy of which is attached as Annex A to the accompanying proxy statement/prospectus, and, for purposes of NYSE American Company Guide Section 713(b), the change of control of Fresh Vine resulting from the merger (the “Merger Proposal”);

•        Proposal No. 2:    To vote on a proposal to approve an amendment to the articles of incorporation of Fresh Vine, or the Fresh Vine Articles of Incorporation, changing the Fresh Vine corporate name to “Notes Live, Inc.” in the form attached as Annex B to the accompanying proxy statement/prospectus (the “Name Change Proposal”);

•        Proposal No. 3:    To vote upon a proposal to approve an amendment to the Fresh Vine Articles of Incorporation to (a) effect a reverse stock split of the issued and outstanding shares of Fresh Vine common stock, at a ratio in the range of 1-for-[•] to 1-for-[•], with such ratio and implementation and timing of the reverse stock split to be determined in the discretion of the Fresh Vine board of directors and as agreed to by Notes Live at or prior to the closing of the merger, and (b) if and when the reverse stock split is effected, establish the number of authorized shares of Fresh Vine common stock at 150,000,000, in the form attached as Annex C to the accompanying proxy statement/prospectus (the “Reverse Split Proposal”);

•        Proposal No. 4:    To vote upon a proposal to approve, for purposes complying with Section 713(a) and Section 713(b) of the NYSE American Company Guide, the issuance upon conversion or exchange of Series A Convertible Preferred Stock of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of the Series A Convertible Preferred Stock (the “Series A Preferred Stock Conversion Proposal”);

•        Proposal No. 5:    To vote upon a proposal to approve, for purposes complying with Section 713(a) and Section 713(b) of the NYSE American Company Guide, the issuance upon conversion or exchange of Series B Convertible Preferred Stock of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of the Series B Convertible Preferred Stock (the “Series B Preferred Stock Conversion Proposal”); and

•        Proposal No. 6:    To vote on a proposal to approve, pursuant to Section 78.565 of the Nevada Revised Statutes, the sale of the assets comprising the Fresh Vine legacy wine production business, which sale is a condition to the closing of the transactions contemplated by the Merger Agreement and may be considered to be a sale of all of the Company’s property and assets (the “Legacy Business Sale Proposal”).

Proposal No. 7, the Equity Plan Amendment Proposal, is not an express condition to the closing of the merger under the Merger Agreement.

Certain Fresh Vine stockholders (solely in their respective capacities as Fresh Vine stockholders), are parties to voting and support agreements with Notes Live and Fresh Vine whereby such stockholders have agreed to vote their shares in favor of the transactions and proposals contemplated in this proxy statement/prospectus, subject to the terms of the voting and support agreements.

Notes Live stockholders must adopt the Merger Agreement, thereby approving the merger and the related transactions. Following the effectiveness of the registration statement on Form S-4, of which this proxy statement/prospectus is a part, and pursuant to the Merger Agreement and the voting and support agreements, Notes Live intends to hold a special stockholders’ meeting to approve the merger and related transactions. As of January 25, 2024, certain Notes Live stockholders (solely in their respective capacities as Notes Live stockholders) holding approximately 42% of the outstanding shares of Notes Live capital stock (and greater than 50% of the voting power as of January 25, 2024) are parties to voting and support agreements with Fresh Vine and Notes Live, whereby such stockholders have agreed, subject to the effectiveness of the registration statement on Form S-4 of which this proxy statement/prospectus is a part, to vote their shares in favor of, among other things, the adoption or approval of the Merger Agreement and the transactions contemplated therein, subject to the terms of the voting and support agreements.

In addition to the requirement of obtaining the stockholder approvals described above, each of the other closing conditions set forth in the Merger Agreement must be satisfied or waived. For a more complete description of the closing conditions under the Merger Agreement, see the section entitled “The Merger Agreement — Conditions to the Completion of the Merger” beginning on page 87 of this proxy statement/prospectus.

Q:     What stockholder votes are required to approve the proposals at the Fresh Vine special meeting?

A:     Approval of Proposal Nos. 1, 7 and 8 each requires the affirmative vote of the holders of a majority of the voting power of the shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting. The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record date is required for approval of Proposal Nos. 2, 3 and 6. The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Series B Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal No. 4. The holders of Series A Convertible Preferred Stock are not entitled to vote their shares of Series A Convertible Preferred Stock on Proposal No. 4, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of or as a dividend on Series A Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of Proposal No. 4. The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Series A Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal No. 5. The holders of Series B Convertible Preferred Stock are not entitled to vote their shares of Series B Convertible Preferred Stock on Proposal No. 5, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of Series B Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of Proposal No. 5.

Votes will be counted by the inspector of election appointed for the Fresh Vine special meeting, who will separately count “FOR” and “AGAINST” votes, abstentions and broker non-votes. Abstentions and broker non-votes will be treated as shares of Fresh Vine common stock present for the purpose of determining the presence of a quorum for the transaction of business at the Fresh Vine special meeting. Abstentions and broker non-votes will have the same effect as “AGAINST” votes for Proposal Nos. 2, 3 and 6, but will have no effect on the outcome of Proposal Nos. 1, 4, 5, 7 and 8. Proposal Nos. 2, 3 and 8 are matters on which Fresh Vine expects brokers, banks or other nominees to have authority to vote uninstructed shares and, therefore, broker non-votes are not expected with respect to these proposals.

Q:     Who will be the directors of the combined company following the merger?

A:     Immediately following completion of the merger, the combined company’s board of directors is expected to be composed of seven directors, all consisting of directors designated by Notes Live. It is anticipated that all current Fresh Vine directors will resign as of the closing of the merger and Notes Live’s director designees will be appointed to the Fresh Vine board of directors to fill the resulting vacancies. It is anticipated that Notes Live’s director designees will be JW Roth, Heather Atkinson, Steve Cominsky, Matt Craddock, Chad Hennings, David Lavigne and Mitchell Roth.

Q:     Who will be the executive officers of the combined company immediately following the merger?

A:     Immediately following completion of the merger, the combined company’s executive management team is expected to consist of the members of Notes Live executive management team prior to the merger, including:

Q:     What are the material U.S. federal income tax consequences of the merger to Fresh Vine stockholders?

A:     Fresh Vine stockholders will not sell, exchange or dispose of any shares of Fresh Vine common stock as a result of the merger. Thus, there will be no material U.S. federal income tax consequences to Fresh Vine stockholders as a result of the merger.

Q:     What are the material U.S. federal income tax consequences of the merger to Notes Live U.S. holders?

A:     Subject to the qualifications and limitations set forth in the section entitled “The Merger — Material U.S. Federal Income Tax Consequences of the Merger,” the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, or the Code, and a Notes Live U.S. holder (as defined on page 79) will not recognize gain or loss for U.S. federal income tax purposes upon the receipt of shares of Fresh Vine common stock in exchange for shares of Notes Live capital stock in the merger.

See the section entitled “The Merger — Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 79 of this proxy statement/prospectus for a more complete description of the material U.S. federal income tax consequences of the merger to Notes Live U.S. holders.

Q:     What are the material U.S. federal income tax consequences of the proposed reverse stock split to Fresh Vine U.S. holders?

A:     Fresh Vine intends to report the proposed reverse stock split as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Code. In general, and subject to the qualifications and limitations set forth in the section entitled “Proposal No. 3: Approval of an amendment to the Fresh Vine Articles of Incorporation to effect the reverse stock split and establish the number of authorized shares of Fresh Vine common stock at 150,000,000 shares — Material U.S. Federal Income Tax Consequences of the Reverse Stock Split” beginning on page 112 of this proxy statement/prospectus, if the proposed reverse stock split qualifies as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Code, a Fresh Vine U.S. holder should not recognize gain or loss upon the proposed reverse stock split, except for a stockholder receiving an additional share of common stock in lieu of a fractional share. See the section entitled “Proposal No. 3: Approval of an amendment to the Fresh Vine Articles of Incorporation to effect the reverse stock split and establish the number of authorized shares of Fresh Vine common stock at 150,000,000 shares — Material U.S. Federal Income Tax Consequences of the Reverse Stock Split” beginning on page 112 of this proxy statement/prospectus for a more complete description of the material U.S. federal income tax consequences of the proposed reverse stock split to Fresh Vine U.S. holders.

The tax consequences to you of the proposed reverse stock split will depend on your particular facts and circumstances. You should consult your tax advisors as to the specific tax consequences to you.

Q:     When do you expect the merger to be consummated?

A:     Fresh Vine and Notes Live currently anticipate that the merger will close in the second quarter of 2024, but the companies cannot predict the exact timing. For more information, see the section entitled “The Merger Agreement — Conditions to the Completion of the Merger” beginning on page 87 of this proxy statement/prospectus.

Q:     Why are Fresh Vine stockholders being asked to approve an amendment to Fresh Vine’s 2021 Equity Incentive Plan?

A:     The Fresh Vine’s 2021 Equity Incentive Plan is being proposed to be amended in order to increase the number of shares of Fresh Vine common stock authorized for issuance pursuant to future incentive awards. If the Reverse Stock Split is approved at the Fresh Vine special meeting and implemented within the range contemplated, and the merger is completed, the number of shares of Fresh Vine common stock available under the Plan will be severely limited. The Fresh Vine board of directors believes that the Plan will play an important role in the combined company’s human resource and business strategy by allowing it to continue to appropriately attract, motivate, and retain experienced and highly qualified individuals who are in a position to contribute materially to the success and long-term objectives of the combined company. With the approval of the proposed amendment to the 2021 Equity Incentive Plan, the combined company will be able to use equity in its compensation arrangements, and will have an array of equity award design alternatives available to use in structuring those arrangements.

Q:     As a Fresh Vine stockholder, how does the Fresh Vine board of directors recommend that I vote?

A:     After careful consideration, the Fresh Vine board of directors unanimously recommends that Fresh Vine stockholders vote “FOR” all of the proposals described in this proxy statement/prospectus.

Q:     What risks should I consider in deciding whether to vote in favor of the merger?

A:     You should carefully review the section entitled “Risk Factors” beginning on page 23 of this proxy statement/prospectus which sets forth certain risks and uncertainties related to the merger, risks and uncertainties to which the combined company’s business will be subject, and risks and uncertainties to which each of Fresh Vine and Notes Live, as independent companies, are subject.

Q:     Who can vote at the Fresh Vine special meeting?

A:     Only Fresh Vine stockholders of record, including holders of Fresh Vine common stock and holders of Fresh Vine Preferred Stock, at the close of business on the record date will be entitled to vote at the Fresh Vine special meeting. The Fresh Vine board of directors has fixed [•], 2024 as the record date for the Fresh Vine special meeting. On the record date, there were [•] shares of Fresh Vine common stock and [•] shares of Series A Preferred Stock and [•] shares of Series B Preferred Stock outstanding and entitled to vote.

Stockholder of Record — Shares Registered in Your Name:    If on the record date, your shares of Fresh Vine stock were registered directly in your name with our transfer agent, Computershare (or registered directly in your name on the books and records of Fresh Vine with respect to the Fresh Vine Preferred Stock), then you are a stockholder of record. As a stockholder of record, you may vote at the Fresh Vine special meeting or vote by proxy prior to the Fresh Vine special meeting. Whether or not you plan to attend the Fresh Vine special meeting, please vote as soon as possible by proxy through the Internet, by phone or using a proxy card to ensure your vote is counted.

Beneficial Owner — Shares Registered in the Name of a Broker or Bank:    If on the record date, your shares of Fresh Vine stock were not registered in your name, but instead are held in an account at a brokerage firm, bank, dealer or similar organization, then you are the beneficial owner of shares held in “street name” and proxy materials are being forwarded to you by that organization. The organization holding your account is considered to be the stockholder of record for purposes of voting at the Fresh Vine special meeting. As a beneficial owner, you have the right to direct your broker, bank or other agent regarding how to vote the shares in your account. You are also invited to attend the Fresh Vine special meeting. Since you are not the stockholder of record, however, you may not vote your shares at the of Fresh Vine special meeting unless you request and obtain a valid proxy from your broker, bank or other agent.

Q:     How many votes do I have?

A:     Pursuant to the rights of Fresh Vine stockholders contained in Fresh Vine’s charter documents, each share of Fresh Vine common stock outstanding on the record date is entitled to one vote on all matters to be voted upon at the Fresh Vine special meeting.

On August 2, 2023, Fresh Vine entered into a Securities Purchase Agreement with two accredited investors pursuant to which Fresh Vine agreed to issue and sell shares of Fresh Vine’s Series A Convertible Preferred Stock. The investors, collectively, purchased 4,000 shares of Fresh Vine’s Series A Convertible Preferred Stock at an initial closing (the “Initial Closing”) that occurred on August 2, 2023, purchased an additional 4,000 shares of Fresh Vine’s Series A Convertible Preferred Stock at a second closing (the “Second Closing”) that occurred on September 7, 2023, and purchased an additional 2,000 shares of Fresh Vine’s Series A Convertible Preferred Stock at a third closing (the “Third Closing”) that occurred on December 1, 2023. The rights and preferences of the Series A Convertible Preferred Stock are set forth in the Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock, as amended, filed as exhibits to Fresh Vine’s Current Report on Form 8-K filed with the Securities and Exchange Commission on August 2, 2023.

On March 14, 2024, Fresh Vine designated 50,000 shares of its preferred stock Series B Preferred Stock, which may be issued by Fresh Vine.. The rights and preferences of the Series B Preferred Stock are set forth in the Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock filed as an exhibit to Fresh Vine’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 20, 2024. Fresh Vine’s board of directors has approved the issuance and sale of up to 20,000 shares of Series B Convertible Preferred Stock for a purchase price equal to $100.00 per share. As of March 28, 2024, Fresh has received subscriptions from accredited investors for the purchase of a total of 940 shares of Fresh Vine’s Series B Convertible Preferred Stock. The total number of shares of Series B Convertible Preferred Stock that Fresh Vine will issue and sell has not been finally determined.

The holders of Fresh Vine Preferred Stock are entitled to vote as a single class with the holders of Fresh Vine common stock on all matters submitted to a vote of stockholders of Fresh Vine; provided, however, that, in accordance with the NYSE American LLC Company Guide, (i) the holders of Series A Convertible Preferred Stock are not entitled to vote their shares of Series A Convertible Preferred Stock on any proposal to approve the issuance of Fresh Vine common stock upon conversion of Series A Convertible Preferred Stock in excess of the Exchange Share Cap or the Individual Holder Share Cap as discussed below (a “Series A Preferred Stock Conversion Proposal”)(and shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of or as a dividend on Series A Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of such Series A Preferred Stock Conversion Proposal), and (ii) the holders of Series B Convertible Preferred Stock are not entitled to vote their shares of Series B Convertible Preferred Stock on any proposal to approve the issuance of Fresh Vine common stock upon conversion of Series B Convertible Preferred Stock in excess of the Exchange Share Cap or the Individual Holder Share Cap as discussed below (a “Series B Preferred Stock Conversion Proposal”).

The shares of Fresh Vine Preferred Stock vote on an adjusted as-converted to common stock basis. For purposes of determining voting rights, (i) each share of Fresh Vine’s Series A Convertible Preferred Stock is convertible into the number of shares common stock (“Conversion Shares”) calculated by dividing the “Stated Value” of $100.00 (plus the amount of accrued dividends on such shares of Series A Convertible Preferred Stock) by an assumed conversion price of $0.47, taking into account (if applicable) the conversion limitations resulting from the Exchange Share Cap and the Individual Holder Share Cap described below, and (ii) each share of Fresh Vine’s Series B Convertible Preferred Stock is convertible into the number of shares common stock (“Conversion Shares”) calculated by dividing the “Stated Value” of $100.00 by an assumed conversion price equal to the most recent closing sale price of Fresh Vine common stock as of the execution and delivery of the securities purchase agreement or other subscription or similar agreement pursuant to which such share of Series B Convertible Preferred Stock was issued by Fresh Vine, taking into account (if applicable) the conversion limitations resulting from the Exchange Share Cap and the Individual Holder Share Cap described below. Under the “Exchange Share Cap,” (i) the total number of shares of common stock issuable upon conversion of outstanding shares of Series A Convertible Preferred Stock (when added to any shares of common stock previously issued in respect of accrued dividends on the Fresh Vine Preferred Stock), may

not exceed 3,179,269 shares (which represents 19.9% of Fresh Vine’s issued and outstanding common stock immediately prior to the date on which shares Series A Convertible Preferred Stock were first issued), and (ii) the total number of shares of common stock issuable upon conversion of outstanding shares of Series B Convertible Preferred Stock) may not exceed 19.9% of Fresh Vine’s issued and outstanding common stock immediately prior to the date on which shares Series B Convertible Preferred Stock are first issued. Under the Individual Holder Share Cap, no holder of Fresh Vine Preferred Stock may acquire Conversion Shares if the issuance thereof would result in the converting holder beneficially owning in excess of 19.9% of the number of shares of Fresh Vine common stock outstanding immediately after giving effect to the issuance.

As of the record date (and taking into account the amount of accrued dividends on the Series A Convertible Preferred Stock and the conversion restrictions discussed above), (1) each share of Series A Convertible Preferred Stock issued at the First Closing is entitled to [•] votes on each matter to be voted upon at the Fresh Vine special meeting, except for Proposal No. 4 (the Series A Preferred Stock Conversion Proposal), (2) each share of Series A Convertible Preferred Stock issued at the Second Closing is entitled to [•] votes on each matter to be voted upon at the Fresh Vine special meeting, except for Proposal No. 4, (3) each share of Series A Convertible Preferred Stock issued at the Third Closing is entitled to [•] votes on each matter to be voted upon at the Fresh Vine special meeting, except for Proposal No. 4, and (4) each share of Series B Convertible Preferred Stock is entitled to a number of votes on each matter to be voted upon at the Fresh Vine special meeting, except for Proposal No. 5 (the Series B Preferred Stock Conversion Proposal) equal to the number of shares of Fresh Vine common stock is convertible based on an assumed conversion price equal to the most recent closing sale price of the Fresh Vine common stock as of the execution and delivery of the securities purchase agreement or other subscription or similar agreement pursuant to which such share of Series B Stock was issued by Fresh Vine.

Q:     What is the quorum requirement?

A:     A quorum of Fresh Vine stockholders is necessary to hold a valid meeting. A quorum will be present if Fresh Vine stockholders holding at least a majority of the voting power of the outstanding Fresh Vine shares entitled to vote are deemed present at the Fresh Vine special meeting in person or represented by proxy. As of the record date, there were [•] shares of Fresh Vine common stock, [•] shares of Series A Convertible Preferred Stock and [•] shares of Series B Convertible Preferred Stock outstanding and entitled to vote, with each share of Fresh Vine Preferred Stock entitled to the number of votes set forth above under “How many votes do I have?” Thus, the holders of Fresh Vine shares entitled to [•] votes must be deemed present in person or represented by proxy at the annual meeting to have a quorum.

Your shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank or other nominee) or if you vote at the Fresh Vine special meeting. Abstentions and broker non-votes will be counted towards the quorum requirement. If there is no quorum, the holders of a majority of Fresh Vine shares deemed present at the Fresh Vine special meeting in person or represented by proxy may adjourn the Fresh Vine special meeting to another date.

Q:     What are “broker non-votes?”

A:     If you hold shares beneficially in “street name” and do not provide your broker, bank or other nominee with voting instructions, your shares may constitute “broker non-votes.” Broker non-votes occur on a matter when banks, brokers and other nominees are not permitted to vote on certain non-discretionary matters without instructions from the beneficial owner and instructions are not given. These matters are referred to as “non-routine” matters. Proposal Nos. 1, 4, 5, 6 and 7 are anticipated to be non-routine matters, and Proposal Nos. 2, 3 and 8 are anticipated to be routine matters.

Q:     If my shares of Fresh Vine common stock are held in “street name,” will my broker, bank or other nominee vote my shares for me?

A:     Unless your broker, bank or other nominee has discretionary authority to vote on certain matters, your broker will not be able to vote your shares of Fresh Vine common stock on matters without instructions from you. If you do not give instructions to your broker, your broker can vote your shares of Fresh Vine common stock with

respect to discretionary, routine items but not with respect to non-discretionary, non-routine items. Brokers are not expected to have discretionary authority to vote for Proposal Nos. 1, 4, 5, 6 and 7. To make sure that your vote is counted, you should instruct your broker to vote your shares, following the procedures provided by your broker.

Q:     How can I view the list of Fresh Vine stockholders eligible to vote at the Fresh Vine special meeting?

A:     The list of Fresh Vine stockholders of record entitled to vote at the Fresh Vine special meeting will be made available for ten days prior to the Fresh Vine special meeting, at 4539 Hedgemore Dr., Charlotte, NC 28209. Please contact Fresh Vine’s Chief Executive Officer at (855) 766-9463 if you wish to inspect the list of stockholders eligible to vote at the Fresh Vine special meeting prior to the Fresh Vine special meeting.

Q:     How do I vote?

A:     Fresh Vine urges you to read this proxy statement/prospectus carefully, including its annexes, and to consider how the merger affects you. If you are a Fresh Vine stockholder, with respect to the all proposals, you may vote “For” or “Against,” or you may abstain from voting.

Stockholder of Record — Shares Registered in Your Name:    If you are a Fresh Vine stockholder of record, you may vote at the Fresh Vine special meeting, vote by proxy using the enclosed proxy card, or vote by proxy via telephone or the Internet. Whether or not you plan to attend the Fresh Vine special meeting, Fresh Vine urges you to vote by proxy to ensure your vote is counted. You may still attend the Fresh Vine special meeting and vote your Fresh Vine shares even if you have already voted by proxy:

•        To vote using the proxy card, simply complete, sign and date the enclosed proxy card and return it promptly in the envelope provided.

•        To vote over the telephone before the Fresh Vine special meeting, follow the instructions in the enclosed proxy card.

•        To vote online before the Fresh Vine special meeting, follow the instructions in the enclosed proxy card.

Beneficial Owner — Shares Registered in the Name of a Broker or Bank:    If you are a beneficial owner of Fresh Vine shares registered in the name of your broker, bank, or other agent, you should receive a proxy card and voting instructions with these proxy materials from that organization rather than from us. Simply complete and mail the proxy card to ensure that your vote is submitted to your broker or bank. Alternatively, you may be able to vote over the Internet or by telephone as instructed by your broker or bank. To vote at the Fresh Vine special meeting, you must obtain a valid legal proxy from your broker, bank, or other agent. Follow the instructions from your broker or bank included with these proxy materials or contact your broker or bank to request a proxy form.

Fresh Vine provides Internet and telephone proxy voting to allow you to vote your Fresh Vine shares online or by telephone, with procedures designed to ensure the authenticity and correctness of your proxy vote instructions. However, please be aware that you must bear any costs associated with your Internet or telephone access, such as usage charges from Internet or telephone access providers.

Q:     What happens if I do not return a proxy card or otherwise provide proxy instructions, as applicable?

A:     If you are a Fresh Vine stockholder of record, the failure to return your proxy card or otherwise provide proxy instructions will have the same effect as voting “AGAINST” Proposal Nos. 2, 3 and 6, and will have no effect with respect to Proposal Nos. 1, 4, 5, 7 and 8. If your shares of Fresh Vine common stock are held in “street name,” and you do not provide voting instructions, your broker, bank or other nominee may still vote your shares of Fresh Vine common stock with respect to discretionary, routine items, but may not vote your shares of Fresh Vine common stock with respect to non-discretionary, non-routine items. Brokers are not expected to have discretionary authority to vote for Proposal Nos. 1, 4, 5, 6 and 7. To make sure that your vote is counted, you should instruct your broker to vote your shares, following the procedures provided by your broker.

Q:     May I change or revoke my vote after I have submitted a proxy or provided proxy instructions?

A:     Fresh Vine stockholders of record may change or revoke their vote at any time before their proxy is voted at the Fresh Vine special meeting by doing any one of the following things:

•        submitting a new proxy via the internet or telephone by following the instructions on the enclosed proxy card;

•        signing another proxy card and arranging for delivery of that proxy card by mail by [•] p.m., Eastern time, the day before the Fresh Vine special meeting;

•        giving Fresh Vine’s Corporate Secretary a written notice before the Fresh Vine special meeting that you want to revoke your proxy; or

•        voting during the Fresh Vine special meeting. Your attendance at the Fresh Vine special meeting alone will not revoke a previously submitted proxy.

If a Fresh Vine stockholder who owns shares of Fresh Vine common stock in “street name” has instructed a broker to vote its shares of Fresh Vine common stock, the stockholder must follow directions received from its broker to change those instructions.

Your vote will be counted in accordance with the last instruction received prior to the closing of the polls, whether your instruction is received by internet, telephone, mail or at the Fresh Vine special meeting.

Q:     Who is paying for this proxy solicitation?

A:     Fresh Vine is paying for the cost of printing and filing this proxy statement/prospectus and the proxy card. Fresh Vine also may be required to reimburse banks, brokers and other custodians, nominees and fiduciaries or their respective agents for reasonable expenses incurred in forwarding proxy materials to beneficial owners of Fresh Vine common stock.

Q:     Who can help answer my questions?

A:     If you are a stockholder of Fresh Vine and would like additional copies of this proxy statement/prospectus without charge or if you have questions about the merger, including the procedures for voting your shares, you should contact:

Fresh Vine Wine, Inc.
P.O. Box 78984
Charlotte, NC 28271
(855) 766-9463
Email: info@freshvinewine.com

RISK FACTORS

The combined company will be faced with a market environment that cannot be predicted and that involves significant risks, many of which will be beyond its control. In addition to the other information contained in this proxy statement/prospectus, you should carefully consider the material risks described below and those described in the section of this proxy statement/prospectus entitled “Cautionary Statement Concerning Forward-Looking Statements” before deciding how to vote your shares of Fresh Vine common stock.

Risks Related to the Merger

The exchange ratio will not change or otherwise be adjusted based on the market price of Fresh Vine’s common stock as the exchange ratio depends on, among other things, the relative valuations ascribed to Fresh Vine and Noted Live upon entry into the Merger Agreement and not the market price of Fresh Vine’s common stock, so the merger consideration at the closing of the merger may have a greater or lesser value than at the time the Merger Agreement was signed.

On January 25, 2024, Fresh Vine, Merger Sub and Notes Live entered into the Merger Agreement pursuant to which, among other things, and subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, Merger Sub will merge with and into Notes Live, with Notes Live continuing as Fresh Vine’s wholly-owned subsidiary and the surviving corporation in the Merger. Subject to the terms and conditions of the Merger Agreement, at the closing of the Merger, and among other things, each then outstanding share of Notes Live common stock will be converted into the right to receive a number of shares of Fresh Vine common stock calculated in accordance with the Merger Agreement (the “exchange ratio”), (ii) each then outstanding warrant to purchase Notes Live common stock will be exchanged (or otherwise amended) for a warrant exercisable (at an exercise price adjusted to reflect to the exchange ratio) to acquire that number of shares of Fresh Vine common stock equal to the number of warrant shares multiplied by the exchange ratio, and (iii) any then outstanding Notes Live promissory note that is convertible into Notes Live common stock will be exchanged, or otherwise amended, such that it will be convertible from and after the Merger into shares of Fresh Vine common stock at a per share conversion price adjusted to reflect the exchange ratio.

The Merger Agreement has set the calculation of the exchange ratio based on the relative valuations ascribed to Fresh Vine and Noted Live upon entry into the Merger Agreement, which in turn will be adjusted to reflect the amount of gross proceeds received or to be received by Notes Live in its private offering of securities conducted by Notes Live as of the date of the Merger Agreement and the Net Cash Surplus, if any, of Fresh Vine on the closing date of the Merger (as well as the impact of the reverse stock split). The Merger Agreement does not include a price-based termination right. Therefore, if before the completion of the Merger the market price of Fresh Vine’s common stock declines from the market price on the date of the Merger Agreement, then Notes Live’s shareholders could receive merger consideration with substantially lower value than the value of such merger consideration on the date of the Merger Agreement. Similarly, if before the completion of the Merger the market price of Fresh Vine’s common stock increases from the market price of our common stock on the date of the Merger Agreement, then Notes Live’s shareholders could receive Merger consideration with substantially greater value than the value of such merger consideration on the date of the Merger Agreement. Because the exchange ratio does not adjust as a direct result of changes in the market price of our common stock, changes in the market price of Fresh Vine’s common stock will change the value of the total Merger consideration payable to Notes Live’s shareholders.

Stock price changes may result from a variety of factors, including changes in Fresh Vine’s or Notes Live’s respective businesses, operations and prospects, market assessments of the likelihood that the merger will be completed, the timing of the merger, and general market, industry and economic conditions.

Fresh Vine stockholders and Notes Live shareholders may not realize a benefit from the merger commensurate with the ownership dilution they will experience in connection with the merger.

If the combined company is unable to realize the full strategic and financial benefits currently anticipated from the merger, Fresh Vine stockholders and Notes Live shareholders will have experienced dilution of their ownership interests in their respective companies without receiving any commensurate benefit, or only receiving part of the commensurate benefit to the extent the combined company is able to realize only part of the strategic and financial benefits currently anticipated from the merger.

Failure to complete the merger may result in either us or Notes Live paying a termination fee to the other party and could significantly harm the market price of our common stock and negatively affect the future business and operations of each company.

If the merger is not completed and the Merger Agreement is terminated under certain circumstances, Fresh Vine may be required to pay Notes Live a termination fee of $1.0 million and/or reimburse Notes Live’s expenses up to a maximum of $500,000, and Notes Live may be required to pay Fresh Vine a termination fee of $1.0 million, reimburse Fresh Vine’s expenses up to a maximum of $500,000 and/or, at the election of Fresh Vine, redeem the $500,000 equity investment in Notes Live made by Fresh Vine upon entering into the letter of intent with Note Live for the merger transaction at the same price per share as the purchase price paid by Fresh Vine therefor. Even if a termination fee or reimbursement of expenses of the other party are not payable in connection with a termination of the Merger Agreement, each of Fresh Vine and Notes Live will have incurred significant fees and expenses, which must be paid whether or not the merger is completed.

In addition, if the Merger Agreement is terminated and Fresh Vine’s board of directors determines to seek another business combination, there can be no assurance that Fresh Vine will be able to find a partner and close an alternative transaction on terms that are as favorable or more favorable than the terms set forth in the Merger Agreement.

The issuance of Fresh Vine’s common stock to Notes Live’s shareholders pursuant to the Merger Agreement and the resulting change in control from the merger must be approved by Fresh Vine’s stockholders, and the Merger Agreement and transactions contemplated thereby must be approved by Notes Live’s shareholders. Failure to obtain these approvals would prevent the closing of the merger.

Before the merger can be completed, Fresh Vine stockholders must approve, among other things, the issuance of Fresh Vine common stock to Note Live’s shareholders pursuant to the Merger Agreement and the resulting change in control from the merger, and Note Live’s shareholders must adopt the Merger Agreement and approve the merger and the related transactions. Failure to obtain the required stockholder approvals may result in a material delay in, or the abandonment of, the merger. Any delay in completing the merger may materially adversely affect the timing and benefits that are expected to be achieved from the merger.

Fresh Vine stockholders will have a reduced ownership and voting interest in, and will exercise significantly less influence over the management of, the combined company following the closing of the merger as compared to their current ownership and voting interest in Fresh Vine.

If the proposed merger is completed, Fresh Vine’s current stockholders will own a significantly smaller percentage of the combined company than their ownership in Fresh Vine prior to the merger. On a pro forma basis and without adjustment for gross proceeds from the Notes Live Financing or any Net Cash Surplus, pre-merger Notes Live shareholders are expected to own approximately 95.1% of the outstanding shares of capital stock of the combined company and pre-merger Fresh Vine stockholders are expected to own approximately 4.9% of the outstanding shares of capital stock of the combined company.

During the pendency of the merger, Fresh Vine may not be able to enter into a business combination with another party on more favorable terms because of restrictions in the Merger Agreement, which could adversely affect Fresh Vine’s business prospects.

Covenants in the Merger Agreement impede Fresh Vine’s ability to make acquisitions during the pendency of the merger, subject to specified exceptions. In addition, while the Merger Agreement is in effect, Fresh Vine is generally prohibited from soliciting, initiating or knowingly encouraging, inducing or facilitating any inquiries, indications of interest, proposals or offers that constitute or may reasonably be expected to lead to certain transactions involving a third party, including a merger, sale of assets or other business combination, subject to specified exceptions. Any such transactions could be favorable to Fresh Vine stockholders, but Fresh Vine may be unable to pursue them.

Certain provisions of the Merger Agreement may discourage third parties from submitting alternative takeover proposals, including proposals that may be superior to the transactions contemplated by the Merger Agreement.

The terms of the Merger Agreement prohibit Fresh Vine from soliciting alternative takeover proposals or cooperating with persons making unsolicited takeover proposals, except in limited circumstances when Fresh Vine’s board of directors determines in good faith that an unsolicited alternative takeover proposal is or is reasonably likely

to result in a superior takeover proposal and that failure to cooperate with the proponent of the proposal is reasonably likely to be inconsistent with Fresh Vine’s board’s fiduciary duties. Any such transactions could be favorable to Fresh Vine stockholders. In addition, if Fresh Vine terminates the Merger Agreement under certain circumstances, including terminating because of a decision of Fresh Vine to enter into a definitive agreement with respect to a superior offer, Fresh Vine would be required to pay a termination fee of $1.0 million to Notes Live and/or reimburse Notes Live’s expenses up to a maximum of $500,000. This termination fee described above may discourage third parties from submitting alternative takeover proposals to Fresh Vine stockholders, and may cause Fresh Vine’s board of directors to be less inclined to recommend an alternative takeover proposal.

Because the lack of a public market for Notes Live common stock makes it difficult to evaluate the value of Notes Live common stock, the Notes Live shareholders may receive shares of Fresh Vine common stock in the Merger that have a value that is less than, or greater than, the fair market value of Notes Live common stock.

The outstanding common stock of Notes Live is privately held and is not traded in any public market. The lack of a public market makes it extremely difficult to determine the fair market value of Notes Live. Because the percentage of Fresh Vine common stock to be issued to Notes Live’s shareholders was determined based on negotiations between the parties, it is possible that the value of Fresh Vine common stock to be received by Notes Live’s shareholders will be less than the fair market value of Notes Live, or that the value of Fresh Vine common stock to be received by Notes Live’s shareholders may be more than the aggregate fair market value for Notes Live.

If the conditions to the merger are not satisfied or waived, the merger will not occur.

Even if the transactions contemplated by the Merger Agreement are approved by Fresh Vine’s stockholders and Notes Live’s shareholders, several other specified conditions set forth in the Merger Agreement must be satisfied or waived to complete the merger, including without limitation (i) the effectiveness of a registration statement on Form S-4 to register the shares of Fresh Vine common stock to be issued in connection with the Merger, (ii) NYSE American’s approval of the listing of the shares of Fresh Vine common stock to be issued in connection with the Merger, and, if applicable, NYSE American’s approval of an initial listing application for the combined company, (iii) if applicable, the completion of required filings under the HSR Act and the expiration or termination any waiting period applicable to the consummation of the merger, (iv) the absence of material adverse effects impacting Fresh Vine or Notes Live, (v) Fresh Vine having cash, cash equivalent assets or other liquid assets at the closing of the merger in an amount that equals or exceeds the Net Cash Target, and having no liabilities on its balance sheet or unpaid or unsatisfied obligations that will require a cash expenditure by Fresh Vine after the effective time of the Merger, (vi) the absence of dissenting Notes Live shareholders, and (vii) the entry by Notes Live into lock-up and leak-out arrangements with its shareholders to its satisfaction. We cannot assure you that all of the conditions will be satisfied or waived. If the conditions are not satisfied or waived, the merger will not occur or will be delayed, and we may lose some or all of the intended benefits of the merger.

We are substantially dependent on our remaining employees to facilitate the consummation of the merger.

As of December 31, 2023, we had four full-time employees. Our ability to successfully complete the merger depends in large part on our ability to retain our remaining personnel. Despite our efforts to retain these employees, one or more may terminate their employment with us on short notice. The loss of the services of certain employees could potentially harm our ability to consummate the merger, to run our day-to-day business operations, as well as to fulfill our reporting obligations as a public company.

Our ability to complete the Fresh Vine legacy transaction is uncertain, and we cannot predict the terms and conditions of any such Fresh Vine legacy transaction, including the consideration that we may receive.

As a condition to the closing of the Merger, on or before the closing of the Merger, Fresh Vine shall have engaged in a sale, license, transfer, disposition, divestiture or other monetization transaction, or winding down of Fresh Vine’s current wine production business (the “Fresh Vine Legacy Business”), or the sale, license, transfer, disposition, divestiture or other monetization transaction or other disposition of the assets comprising the Fresh Vine Legacy Business and in connection therewith causing any and all known obligations or liabilities associated with such assets and the conduct of the Fresh Vine Legacy Business operations to be satisfied (the “Fresh Vine Legacy Transaction”).

Because completion of the Fresh Vine Legacy Transaction is a condition to the closing of the Merger, the success of the combined company will be dependent on the success of the Notes Live business operations following the merger.

Lawsuits may be filed in the future against us and the members of our board of directors arising out of the proposed merger, which may delay or prevent the proposed Merger.

Putative stockholder complaints, including stockholder class action complaints, and other complaints may be filed against Fresh Vine and its board of directors in connection with the transactions contemplated by the Merger Agreement. It is common for public reporting companies engaged in merger transactions to receive letters from purported stockholders demanding amendments to registration statements and/or proxy statements filed with the SEC to provide additional disclosures that such stockholders allege were improperly omitted, or complaints asserting claims for allegedly false and misleading statements in such filings. The outcome of demands or complaints that Fresh Vine may receive or any litigation is uncertain, and Fresh Vine may not be successful in defending against any such claims. Lawsuits that may be filed against Fresh Vine and/or its board of directors could delay or prevent the merger, divert the attention of Fresh Vine’s management team and employees from day-to-day business and otherwise adversely affect Fresh Vine’s business and financial condition.

Risks Related to the Proposed Reverse Stock Split

The proposed reverse stock split may not increase the combined company’s stock price over the long-term.

One of the purposes of the proposed reverse stock split is to increase the per-share market price of the Fresh Vine common stock. It cannot be assured, however, that the proposed reverse stock split will accomplish this objective for any meaningful period of time. While it is expected that the reduction in the number of outstanding shares of Fresh Vine common stock will proportionally increase the per-share market price of Fresh Vine common stock, it cannot be assured that the proposed reverse stock split will increase the per-share market price of Fresh Vine common stock by a multiple of the proposed reverse stock split ratio, or result in any permanent or sustained increase in the per-share market price of Fresh Vine common stock, which is dependent upon many factors, including the combined company’s business and financial performance, general market conditions and prospects for future success. Thus, while the stock price of the combined company might meet the continued listing requirements for the NYSE American initially, it cannot be assured that it will continue to do so.

The proposed reverse stock split may decrease the liquidity of the combined company’s common stock.

Although the Fresh Vine board of directors believes that the anticipated increase in the per-share market price of the combined company’s common stock as a result of the proposed reverse stock split could encourage interest in the combined company’s common stock and possibly promote greater liquidity for stockholders of the combined company, such liquidity could also be adversely affected by the reduced number of shares outstanding after the proposed reverse stock split. The reduction in the number of outstanding shares may lead to reduced trading and a smaller number of market makers for the combined company’s common stock.

Should the market price of the combined company’s common stock decline after the proposed reverse stock split, the percentage decline may be greater, due to the smaller number of shares outstanding, than it would have been prior to the proposed reverse stock split. The proposed reverse stock split may be viewed negatively by the market and, consequently, may lead to a decrease in the combined company’s overall market capitalization. If the per-share market price does not increase in proportion to the exact ratio of the proposed reverse stock split, then the value of the combined company, as measured by its stock capitalization, will be reduced. In some cases, the per-share market price of companies that have effected reverse stock splits subsequently declined back to pre-reverse split levels, and accordingly, it cannot be assured that the total market value of the combined company’s common stock will remain the same after the proposed reverse stock split is effected, or that the proposed reverse stock split will not have an adverse effect on the price of the combined company’s common stock due to the reduced number of outstanding shares after the proposed reverse stock split.

Risks Related to Fresh Vine and its Business if the Merger is Not Completed

If the merger is not completed, Fresh Vine’s board of directors may decide to pursue a dissolution of Fresh Vine. In a dissolution, there can be no assurances as to the amount or timing of available cash, if any, to distribute to Fresh Vine’s stockholders after paying debts and other obligations and setting aside funds for reserves.

Although we have entered into the Merger Agreement with Notes Live, the closing of the merger may be delayed or may not occur at all and there can be no assurance that the merger will deliver the anticipated benefits Fresh Vine expects or enhance stockholder value. If the merger is not completed and the Merger Agreement is terminated under certain circumstances, Fresh Vine may be required to pay Notes Live a termination fee of $1.0 million and/or reimburse Notes Live’s expenses up to a maximum of $500,000. Even if a termination fee is not payable in connection with a termination of the Merger Agreement, Fresh Vine will have incurred significant fees and expenses, which must be paid whether or not the merger is completed.

If, for any reason, the merger does not close, Fresh Vine’s board of directors may elect to, among other things, attempt to complete another strategic transaction like the merger, attempt to sell or otherwise dispose of the various assets of Fresh Vine or continue to operate Fresh Vine’s business, and/or decide that it is in the best interests of the Fresh Vine stockholders to suspend or cease its operations, seek to dissolve Fresh Vine and liquidate its assets, or initiate bankruptcy proceedings. Any of these alternatives would be costly and time-consuming and may require that Fresh Vine obtain additional funding. Fresh Vine expects that it would be difficult to secure financing in a timely manner, on favorable terms or at all. Fresh Vine can make no assurances that it would be able to obtain additional financing or find a partner and close an alternative transaction on terms that are as favorable or more favorable than the terms set forth in the Merger Agreement or that any such alternatives are possible or would be successful, if pursued. To the extent that Fresh Vine seeks and is able to raise additional capital through the sale of equity or convertible debt securities, Fresh Vine’s stockholders’ ownership interest will be diluted, and the terms of these securities may include liquidation or other preferences that adversely affect their rights as a common stockholder. Debt financing or preferred equity financing, if available, may involve agreements that include covenants limiting or restricting Fresh Vine’s ability to take specific actions, such as incurring additional debt, making capital expenditures, or declaring dividends. Even if Fresh Vine is able to pursue such alternatives, the failure to complete the merger may result in negative publicity and/or a negative impression of us in the investment community, could significantly harm the market price of Fresh Vine’s common stock and may affect Fresh Vine’s relationship with employees and other partners in the business community.

If the merger is not completed, and Fresh Vine’s board of directors decides that it is in the best interests of Fresh Vine’s stockholders to suspend or cease its operations, seek to dissolve Fresh Vine and liquidate its assets, or initiate bankruptcy proceedings, the amount of cash available, if any, for distribution to Fresh Vine stockholders would depend heavily on the timing of such decision since the amount of cash available for distribution continues to decrease as Fresh Vine funds its operations and incurs fees and expenses related to the merger. In addition, if Fresh Vine’s board of directors were to approve and recommend, and Fresh Vine’s stockholders were to approve, a dissolution of Fresh Vine, Fresh Vine would be required to pay its outstanding obligations, as well as to make reasonable provision for contingent and unknown obligations, prior to making any distributions to Fresh Vine’s stockholders. As a result of this requirement, a portion of Fresh Vine’s assets may need to be reserved pending the resolution of such obligations. In addition, Fresh Vine may be subject to litigation or other claims related to a dissolution. If a dissolution were pursued, Fresh Vine’s board of directors, in consultation with its advisors, would need to evaluate these matters and make a determination about a reasonable amount to reserve. Accordingly, Fresh Vine’s stockholders could lose all or a significant portion of their investment in the event of a dissolution of Fresh Vine.

We have a limited operating history and have generated limited revenue to date.

Fresh Vine was recently founded and has a limited operating history on which to base an evaluation of its business and prospects. Fresh Vine’s prospects must be considered in light of the risks, expenses and difficulties frequently encountered by companies in their early stage of development, particularly companies in new and evolving markets such as Fresh Vine’s. The risks include, but are not limited to, an evolving business model and the management of growth and product development. To address these risks, Fresh Vine must, among other things, implement and successfully execute its business strategy and other business systems, respond to competitive developments, and attract, retain and motivate qualified personnel. Fresh Vine cannot assure that it will be successful in addressing the risks it may encounter, and its failure to do so could have a material adverse effect on Fresh Vine’s business, prospects, financial condition and results of operations.

Fresh Vine has generated limited revenues to date, including revenues of approximately $1.8 million and $2.9 million during fiscal 2023 and fiscal 2022, respectively. Fresh Vine has incurred net losses of $10.6 million and $15.2 million during fiscal 2023 and 2022, respectively. Fresh Vine had an accumulated deficit of $26.5 million and $15.8 million at December 31, 2023 and 2022, respectively. Fresh Vine may never generate material revenues or achieve profitability.

Fresh Vine has not generated profits from operations to date. The success and longevity of Fresh Vine will depend on its ability to generate profits from future operations or obtain sufficient capital through financing transactions to meet its business obligations.

The report of Fresh Vine’s independent registered public accounting firm on Fresh Vine’s financial statements for the fiscal year ended December 31, 2023 included an explanatory paragraph indicating that there is substantial doubt as to Fresh Vine’s ability to continue as a going concern for twelve months from the financial statement issuance date. Fresh Vine incurred net losses of $10.6 and $15.2 million during fiscal 2023 and 2022, respectively. Fresh Vine’s cash balance at December 31, 2023 was $336,000. Fresh Vine’s ability to continue as a going concern, including during the pendency of the merger transaction, will be determined by its ability to generate sufficient cash flow to sustain our operations and/or raise additional capital in the form of debt or equity financing.

Fresh Vine will require additional debt and/or equity capital to pursue business objectives and respond to business opportunities, challenges, or unforeseen circumstances. If such capital is not available to Fresh Vine, its business, financial condition, and results of operations may be materially and adversely affected.

Fresh Vine will require additional capital to continue its business operations, pursue business objectives and respond to business opportunities, challenges, or unforeseen circumstances, including to increase marketing expenditures to improve its wine brand awareness, build and maintain product inventory, develop new wines, enhance operating infrastructure and acquire complementary businesses. Accordingly, Fresh Vine will need to engage in equity and/or debt financings to secure additional funds. However, additional funds may not be available when Fresh Vine needs them on terms that are acceptable to Fresh Vine or at all. Moreover, any debt financing that Fresh Vine may secure in the future could involve restrictive covenants, which may make it more difficult for Fresh Vine to obtain additional capital and to pursue business opportunities. Volatility in the credit markets may also have an adverse effect on Fresh Vine’s ability to obtain debt financing. If Fresh Vine raises additional funds through further issuances of equity or convertible debt securities, Fresh Vine’s existing stockholders could suffer significant dilution, and any new equity securities issued could have rights, preferences, and privileges superior to those of holders of Fresh Vine’s common stock. If Fresh Vine is unable to obtain adequate financing or financing on terms satisfactory us when Fresh Vine’s requires it, Fresh Vine may be forced to obtain financing on undesirable terms or its ability to continue to pursue its business objectives and to respond to business opportunities, challenges or unforeseen circumstances could be significantly limited, and Fresh Vine’s business, financial condition and results of operations could be materially and adversely affected.

Fresh Vines need to hire additional executive officers and other personnel.

Fresh Vine’s executive management is currently comprised of an Chief Executive Officer and a Chief Financial Officer, both of whom are serving in interim positions. If the merger transaction is not completed, the future success of our existing wine production business will be dependent in part upon Fresh Vine locating and retaining qualified individuals who will serve as executive officers on a permanent basis and lead Fresh Vine and its business operations, and on Fresh Vine locating additional members to serve on its board of directors to help oversee and guide Fresh Vine. Fresh Vine cannot predict with certainty when we will be able locate such individuals.

The success of Fresh Vine’s existing business depends heavily on the strength of our wine brand.

Obtaining, maintaining and expanding Fresh Vine’s reputation as a producer of premium wine among its customers and the premium wine market generally is critical to the success of Fresh Vine’s business and growth strategy. The premium wine market is driven by a relatively small number of active and well-regarded wine critics within the industry who have outsized influence over the perceived quality and value of wines. If Fresh Vine is unable to maintain the actual or perceived quality of its wines, including as a result of contamination or tampering, environmental or other factors impacting the quality of its grapes or other raw materials, or if Fresh Vine wines otherwise do not meet the subjective expectations or tastes of one or more of a relatively small number of wine

critics, the actual or perceived quality and value of one or more of Fresh Vine’s wines could be harmed, which could negatively impact not only the value of that wine, but also the value of the vintage, the particular brand or Fresh Vine’s broader portfolio. The winemaking process is a long and labor-intensive process that is built around yearly vintages, which means that once a vintage has been released we are not able to make further adjustments to satisfy wine critics or consumers. As a result, Fresh Vine is dependent on winemakers and tasting panels to ensure that every wine released meets Fresh Vine’s quality standards.

With the advent of social media, word within the premium wine market spreads quickly, which can accentuate both the positive and the negative reviews of wines and of wine vintages generally. Public perception of Fresh Vine’s brands could be negatively affected by adverse publicity or negative commentary on social media outlets, particularly negative commentary on social media outlets that goes “viral,” or Fresh Vine’s responses relating to, among other things:

•        an actual or perceived failure to maintain high-quality, safety, ethical, social and environmental standards for all operations and activities;

•        an actual or perceived failure to address concerns relating to the quality, safety or integrity of Fresh Vine wines and the hospitality Fresh Vine offers to guests at potential future tasting rooms;

•        Fresh Vine’s environmental impact, including the use of agricultural materials, packaging, water and energy use, and waste management; or

•        an actual or perceived failure by Fresh Vine to promote the responsible consumption of alcohol.

If Fresh Vine does not produce wines that are well-regarded by the relatively small wine critic community, the wine market will quickly become aware and Fresh Vine’s reputation, wine brand, business and financial results of operations could be materially and adversely affected. In addition, if Fresh Vine wine receive negative publicity or consumer reaction, whether as a result of its wines or wines of other producers, Fresh Vine wines in the same vintage could be adversely affected. Unfavorable publicity, whether accurate or not, related to Fresh Vine’s industry, Fresh Vine, its brand, marketing, personnel, operations, business performance or prospects could also unfavorably affect Fresh Vine’s corporate reputation, company value, ability to attract high-quality talent or the performance of Fresh Vine’s business.

Any contamination or other quality control issue could have an adverse effect on sales of the impacted wine or broader portfolio of wines. If any of Fresh Vine’s wines become unsafe or unfit for consumption, cause injury or are otherwise improperly packaged or labelled, Fresh Vine may have to engage in a product recall and/or be subject to liability and incur additional costs. A widespread recall, multiple recalls, or a significant product liability judgment against Fresh Vine could cause Fresh Vine’s wines to be unavailable for a period of time, depressing demand and Fresh Vine’s brand equity. Even if a product liability claim is unsuccessful or is not fully pursued, any resulting negative publicity could adversely affect Fresh Vine’s reputation with existing and potential customers and accounts, as well as Fresh Vine’s corporate and individual winery brands image in such a way that current and future sales could be diminished. In addition, should a competitor experience a recall or contamination event, Fresh Vine could face decreased consumer confidence by association as a producer of similar products.

Additionally, third parties may sell wines or inferior brands that imitate Fresh Vine’s wine brand or that are counterfeit versions of Fresh Vine’s labels, and customers could be duped into thinking that these imitation labels are Fresh Vine authentic wines. For example, there could be instances of potential counterfeiting. A negative consumer experience with such a wine could cause them to refrain from purchasing Fresh Vine’s brands in the future and damage brand integrity. Any failure to maintain the actual or perceived quality of Fresh Vine’s wines could materially and adversely affect Fresh Vine’s business, results of operations and financial results.

Damage to Fresh Vine’s reputation or loss of consumer confidence in Fresh Vine’s wines for any of these or other reasons could result in decreased demand for Fresh Vine’s wines and could have a material adverse effect on Fresh Vine’s business, operational results, and financial results, as well as require additional resources to rebuild Fresh Vine’s reputation, competitive position and winery brand strength.

If Fresh Vine’s business grows, it will place increased demands on management, operational and production capabilities that Fresh Vine may not be able to adequately address. If Fresh Vine is unable to meet these increased demands, its business will be harmed.

Unless Fresh Vine manage growth effectively, it may make mistakes in operating its business, such as inaccurate forecasting. The anticipated growth of Fresh Vine’s operations will place significant demand on management and operational resources. In order to manage growth effectively, Fresh Vine must implement and improve operational systems, procedures and controls on a timely basis. Fresh Vine’s key personnel have limited experience managing this type of business. If Fresh Vine cannot manage our business effectively, its business could suffer.

Fresh Vine’s advertising and promotional investments may affect its financial results but not be effective.

Consumer awareness is of great importance to the success of businesses operating in the wine industry. Fresh Vine has incurred, and expect to continue to incur, significant advertising and promotional expenditures to enhance its wine brand and raise consumer awareness. These expenditures may adversely affect Fresh Vine’s results of operations in a particular quarter or even a full fiscal year and may not result in increased sales. Variations in the levels of advertising and promotional expenditures have in the past caused, and are expected in the future to continue to cause, variability in Fresh Vine’s quarterly results of operations. While Fresh Vine strives to invest only in effective advertising and promotional activities in both the digital and traditional segments, it is difficult to correlate such investments with sales results, and there is no guarantee that Fresh Vine’s expenditures will be effective in building brand strength or growing long term sales.

Fresh Vine has relied heavily on celebrities to endorse its wines and market its brand pursuant to license agreements which have been terminated.

Fresh Vine’s brand, and to a large extent Fresh Vine’s direct-to-consumer sales outlet, has been heavily dependent on the positive image and public popularity of, and affinity towards, Nina Dobrev and Julianne Hough. Ms. Dobrev and Ms. Hough served as celebrity spokespersons and ambassadors of Fresh Vine, actively endorsed its wines on their sizable social media and other outlets, and were considered by many to be the face of Fresh Vine’s brand. Under Fresh Vine’s license agreements with Ms. Dobrev and Jaybird Investments, LLC (an entity managed by Ms. Hough), each of Ms. Dobrev and Ms. Hough granted Fresh Vine a license to use her pre-approved name, likeness, image, and other indicia of identity, as well as certain content published by her on her social media and other channels, on and in conjunction with the sale and related pre-approved advertising and promotion of Fresh Vine’s wine.

On August 8, 2023, Fresh Vine received written letters from each of Ms. Dobrev and Jaybird Investments, LLC, notifying the Company that it was in default of their respective license agreements based on failure to pay license fees and providing 30 day notice of termination of their respective license agreements. Effective September 7, 2023, each license agreement terminated. Upon such termination, the rights and licenses granted to Fresh Vine under such agreements were revoked and were required to cease the marketing and sale of products that feature their name, likeness, image, and other indicia of identity after a 90 day run-off period. As a result, Fresh Vine will be required to refocus its marketing and brand promotion efforts, which may adversely affect its business and results of operations.

Fresh Vine relies heavily on third-party suppliers and service providers, and they may not continue to produce products or provide services that are consistent with Fresh Vine’s standards or applicable regulatory requirements, which could harm Fresh Vine’s brand, cause consumer dissatisfaction, and require Fresh Vine to find alternative suppliers and service providers.

Fresh Vine has strategically structured its organization and operations with a view towards minimizing capital investment requirements. Fresh Vine does this by leveraging a network of third-party providers with industry experience and expertise that it uses to perform various functions on its behalf. Specifically, Fresh Vine’s contracted with Fior di Sole, an industry leading packaging innovation and wine production company based in Napa Valley, California, to serve as a “host” winery” and permit Fresh Vine occupy a portion of its production and warehouse facility and its production equipment on an alternating proprietorship basis. Under this arrangement, Fresh Vine used capacity at Fior di Sole’s production facility at times mutually convenient to Fresh Vine and Fior di Sole to produce and bottle wines. Fior di Sole was responsible for keeping its production equipment in good operating order.

Although Fresh Vine was solely responsible for managing and conducting its own winemaking activities, Fresh Vine could request use of the Fior di Sole’s personnel to perform crush, fermentation, blending, cellar, warehousing, barrel topping and/or bottling services for additional fees. Under a separate agreement, Fior di Sole provided Fresh Vine with bulk juice and blends, finishes, bottles, stops, labels, and packages its wine. Fior di Sole provided these services on a purchase order basis, which purchase orders are subject to the parties’ mutual agreement. This agreement was terminated in December 2023.

Fresh Vine relies heavily on the third parties to manage the sales and distribution of wine and manage its DTC marketing initiatives. Fresh Vine also utilizes third parties to help manage all of its regulatory licensing and compliance activities, and Fresh Vine utilizes additional software tools available to the industry to navigate and manage the complex state-by-state regulations that apply to its operations in the beverage alcohol industry.

Fresh Vine engages many of its third-party suppliers and service providers on a purchase order basis or pursuant to agreements that are generally one year or less in duration. The ability and willingness of these third parties to supply and provide services may be affected by competing orders placed by other companies, the demands of those companies or other factors. If Fresh Vine experiences significant increases in demand or need to replace a significant third party supplier or service provider, there can be no assurance that alternative third party vendors will be available when required on terms that are acceptable, or at all, or that any such vendor will allocate sufficient capacity to Fresh Vine in order to meet its requirements. If Fresh Vine fail to replace a supplier or servicer provider in a timely manner or on commercially reasonable terms, Fresh Vine could incur product disruptions and its operating results and financial condition could be materially harmed. Switching or adding additional vendors, particularly Fresh Vine’s alternating proprietorship host winery, would also involve additional costs and require management time and focus.

Except for remedies that may be available to Fresh Vine under agreements with third-party vendors, Fresh Vine cannot control whether or not such vendors devote sufficient time and resources to supporting Fresh Vine’s business operations. These third parties may also have relationships with other commercial entities, including competitors, for whom they may also be providing services, which could affect their performance on Fresh Vine’s behalf. If these third parties do not successfully carry out their contractual duties or obligations or meet expected deadlines or need to be replaced for other reasons, it could adversely impact Fresh Vine’s ability to meet consumers’ demands for its products or comply with regulatory requirements and subject Fresh Vine’s to potential liability, any of which may harm the reputation of Fresh Vine and its products.

Although Fresh Vine attempts to carefully manage its relationships with its network of third-party vendors, there can be no assurance that Fresh Vine will not encounter challenges or delays in the future or that these challenges or delays will not have a material adverse impact on Fresh Vine’s business, financial condition and prospects.

Fresh Vine faces significant competition with an increasing number of products and market participants that could materially and adversely affect its business, results of operations and financial results.

Fresh Vine’s industry is intensely competitive and highly fragmented. Fresh Vine’s wines compete with many other domestic and foreign wines. Fresh Vine’s wines compete with popularly priced generic wines and with other alcoholic and, to a lesser degree, non-alcoholic beverages, for drinker acceptance and loyalty, shelf space and prominence in retail stores, presence, and prominence on restaurant wine lists and for marketing focus by Fresh Vine’s distributors, many of which carry extensive portfolios of wines and other alcoholic beverages. This competition is driven by established companies as well as new entrants in our markets and categories. In the United States, wine sales are relatively concentrated among a limited number of large suppliers, including E&J Gallo, Constellation, Duckhorn, Trinchero, Jackson Family Wines, Ste. Michelle and The Wine Group, and these and Fresh Vine’s other competitors may have more robust financial, technical, marketing and distribution networks and public relations resources than Fresh Vine has. As a result of this intense competition, Fresh Vine has experienced and may continue to face upward pressure on its selling, marketing and promotional efforts and expenses. There can be no assurance that in the future that Fresh Vine will be able to successfully compete with competitors or that it will not face greater competition from other wineries and beverage manufacturers.

If Fresh Vine is unable to successfully compete with existing or new market participants, or if Fresh Vine does not effectively respond to competitive pressures, it could experience reductions in market share and margins that could have a material and adverse effect on its business, results of operations and financial results.

Consolidation of the distributors of Fresh Vine’s wines, as well as the consolidation of retailers, may increase competition in an already crowded space and may have a material adverse effect on Fresh Vine’s business, results of operations and financial results.

Other than sales made directly to consumers, the majority of Fresh Vine’s wine sales are made through distributors for resale to retail outlets, restaurants and hotels across the United States. Fresh Vine expect sales to distributors to represent an increasingly substantial portion of its future net sales as Fresh Vine grows its network of wholesale distributors. Consolidation among wine producers, distributors, wholesalers, suppliers and retailers could create a more challenging competitive landscape for Fresh Vine’s wines. In addition, Fresh Vine believes that the increased growth and popularity of the retail e-commerce environment across the consumer product goods market, which accelerated during the COVID-19 pandemic and the resulting quarantines, “stay at home” orders, travel restrictions, retail store closures, social distancing requirements and other government action, has and is likely to continue to change the competitive landscape for Fresh Vine’s wines. Consolidation at any level could hinder the distribution and sale of Fresh Vine’s wines as a result of reduced attention and resources allocated to its wine brands both during and after transition periods, because Fresh Vine’s brands might represent a smaller portion of the new business portfolio. Furthermore, consolidation of distributors may lead to the erosion of margins as newly consolidated distributors take down prices or demand more margin from existing suppliers. Changes in distributors’ strategies, including a reduction in the number of brands they carry or the allocation of resources for Fresh Vine’s competitors’ brands or private label products, may adversely affect Fresh Vine’s growth, business, financial results and market share. Distributors of Fresh Vine’s wines offer products that compete directly with Fresh Vine’s wines for inventory and retail shelf space, promotional and marketing support and consumer purchases. Expansion into new product categories by other suppliers or innovation by new entrants into the market could increase competition in Fresh Vine’s product categories.

An increasingly large percentage of our net sales is concentrated within a small number of wholesale customers. The purchasing power of large retailers is significant, and they have the ability to command concessions. There can be no assurance that the distributors and retailers will purchase Fresh Vine’s wines or provide Fresh Vine’s wines with adequate levels of promotional and merchandising support. The failure to bring on major accounts or the need to make significant concessions to retain one or more such accounts could have a material and adverse effect on Fresh Vine’s business, results of operations and financial position.

A reduction in consumer demand for wine, which may result from a variety of factors, including demographic shifts and decreases in discretionary spending, could materially and adversely affect Fresh Vine’s business, results of operations and financial results.

Fresh Vine relies on consumers’ demand for our wine. Consumer preferences may shift due to a variety of factors, including changes in demographic or social trends, changes in discretionary income, public health policies and perceptions and changes in leisure, dining and beverage consumption patterns. Fresh Vine’s success will require it to anticipate and respond effectively to shifts in consumer behavior and drinking tastes. If consumer preferences were to move away from Fresh Vine’s wine brand, its results of operations would be materially and adversely affected.

A limited or general decline in consumer demand could occur in the future due to a variety of factors, including:

•        a general decline in economic or geopolitical conditions;

•        a general decline in the consumption of alcoholic beverage products in on-premise establishments, such as those that may result from smoking bans and stricter laws relating to driving while under the influence of alcohol and changes in public health policies, including those implemented to address the COVID-19 pandemic;

•        a generational or demographic shift in consumer preferences away from wines to other alcoholic beverages;

•        increased activity of anti-alcohol groups;

•        concern about the health consequences of consuming alcoholic beverage products; and

•        increased federal, state, provincial, and foreign excise, or other taxes on beverage alcohol products and increased restrictions on beverage alcohol advertising and marketing.

Demand for premium wine brands may be particularly susceptible to changing economic conditions and consumer tastes, preferences and spending habits, which may reduce Fresh Vine’s sales of these products and adversely affect its profitability. An unanticipated decline or change in consumer demand or preference could also materially impact Fresh Vine’s ability to forecast for future production requirements, which could, in turn, impair its ability to effectively adapt to changing consumer preferences. Any reduction in the demand for Fresh Vine’s wines would materially and adversely affect its business, results of operations and financial results.

Due to the three-tier alcohol beverage distribution system in the United States, Fresh Vine is heavily reliant on distributors that resell alcoholic beverages in all states in which it do business. A significant reduction in distributor demand for Fresh Vine’s wines would materially and adversely affect Fresh Vine’s sales and profitability.

Due to regulatory requirements in the United States, Fresh Vine sells a significant portion of its wines to wholesalers for resale to retail accounts. A change in the relationship with any of Fresh Vine’s significant distributors could harm its business and reduce its sales. The laws and regulations of several states prohibit changes of distributors, except under certain limited circumstances, making it difficult to terminate or otherwise cease working with a distributor for poor performance without reasonable justification, as defined by applicable statutes. Any difficulty or inability to replace distributors, poor performance of Fresh Vine’s major distributors or Fresh Vine’s inability to collect accounts receivable from its major distributors could harm Fresh Vine’s business. In addition, an expansion of the laws and regulations limiting the sale of wine would materially and adversely affect Fresh Vine’s business, results of operations and financial results. There can be no assurance that the distributors and accounts to which Fresh Vine sells its wines will continue to purchase Fresh Vine’s wines or provide such wines with adequate levels of promotional support, which could increase competitive pressure to increase sales and marketing spending and could materially and adversely affect Fresh Vine’s business, results of operations and financial results.

Fresh Vine’s marketing strategy involves continued expansion into the direct-to-consumer channel, which may present risks and challenges for which it is not adequately prepared and which could negatively affect its sales in these channels and its profitability.

A portion of Fresh Vine’s operating strategy is to expand its sales of wine through the direct-to-consumer channel. However, the direct-to-consumer marketplace is highly competitive and in recent years has seen the entrance of new competitors and products targeting similar customer groups as Fresh Vine’s business. To be competitive and forge new connections with customers, Fresh Vine has invested in the expansion of its direct-to-consumer channel. Such expansion may require significant investment in e-commerce platforms, marketing, fulfilment, information technology (“IT”) infrastructure and other known and unknown costs. The success of Fresh Vine’s direct-to-consumer sales channel depends on Fresh Vine’s ability to maintain the efficient and uninterrupted operation of online order-processing and fulfilment and delivery operations. As such, Fresh Vine is heavily dependent on the performance of its shipping and technology partners. Any system interruptions or delays could prevent potential customers from purchasing Fresh Vine’s wines directly.

Fresh Vine’s ability to ship wines directly to our customers is the result of court rulings, including the U.S. Supreme Court ruling in Granholm v. Heald, which allow, in certain circumstances, shipments to customers of wines from out-of-state wineries. Any changes to the judicial, legal, or regulatory framework that reduce Fresh Vine’s ability to sell wines in most states using its direct-to-consumer sales channel could have a materially adverse effect on Fresh Vine’s business, results of operations and financial results.

Fresh Vine may be unable to adequately adapt to shifts in consumer preferences for points of purchase, such as an increase in at-home delivery during the COVID-19 pandemic, and Fresh Vine’s competitors may react more rapidly or with improved customer experiences. A failure to react quickly to these and other changes in consumer preferences, or to create infrastructure to support new or expanding sales channels may materially and adversely affect Fresh Vine’s business, results of operations and financial results.

A failure to adequately prepare for adverse events that could cause disruption to elements of Fresh Vine’s business, including the availability of bulk grapes, and the blending, inventory aging or distribution of Fresh Vine’s wines could materially and adversely affect Fresh Vine’s business, results of operations and financial results.

Disruptions to Fresh Vine’s operations caused by adverse weather, natural disasters, public health emergencies, including the COVID-19 pandemic, or unforeseen circumstances may cause delays to or interruptions in its operations. Concerns regarding the availability of water for production is particular to companies that produce and bottle wines in California. A consequence of any of these or supply or supply chain disruptions, including the temporary inability to produce wines due to the closure of our production sites, could prevent Fresh Vine’s from meeting consumer demand in the near term or long term. For example, as result of the COVID-19 pandemic, Fresh Vine’s industry has experienced temporary supply chain disruptions for certain processed materials, cardboard packaging, and glass, as well as increased strain on logistics networks and shipping partners. The occurrence of any such disruptions during a peak time of demand for such processed materials could increase the magnitude of the effect on Fresh Vine’s distribution network and sales. Failure to adequately prepare for and address any such disruptions could materially and adversely affect Fresh Vine’s business, results of operations and financial results.

A catastrophic event causing physical damage, disruption or failure at Fresh Vine’s production facility could adversely affect Fresh Vine’s business. Although Fresh Vine’s wines currently available for sale do not require substantial aging, Fresh Vine expects that certain of its wines, including the Reserve Cabernet Sauvignon, require aging for some period of time. As a result, Fresh Vine expects to maintain inventory of aged and maturing wines in warehouses. The loss of a substantial amount of aged inventory through fire, accident, earthquake, other natural or man-made disaster, contamination or otherwise could significantly reduce the supply of the affected wine or wines, including aged wines, which are typically the highest priced and limited production wines.

Any disruptions that cause forced closure or evacuation could materially harm Fresh Vine’s business, results of operations and financial results. Additionally, should multiple closings occur, Fresh Vine may lose guest confidence resulting in a reduction in direct sales, which could materially and adversely affect Fresh Vine’s business, results of operations and financial results. If Fresh Vine expands future operations to include tasting rooms, such closings would also negatively impact visitation.

Inclement weather, drought, pests, plant diseases and other factors could reduce the amount or quality of the grapes available to produce Fresh Vine’s wines, which could materially and adversely affect Fresh Vine’s business, results of operations and financial results.

A shortage in the supply of quality grapes may result from the occurrence of any number of factors that determine the quality and quantity of grape supply, including adverse weather conditions (including heatwaves, frosts, drought and excessive rainfall), and various diseases, pests, fungi and viruses. Fresh Vine cannot anticipate changes in weather patterns and conditions, and Fresh Vine cannot predict their impact on its operations if they were to occur. Any shortage could cause an increase in the price of some or all of the grape varietals required for Fresh Vine’s wine production or a reduction in the amount of wine that Fresh Vine is able to produce, which could materially and adversely affect Fresh Vine’s business, results of operations and financial results.

Factors that reduce the quantity of grapes the growers with which Fresh Vine contracts grow may also reduce their quality. Deterioration in the quality of Fresh Vine’s wines could harm its wine brand strength, and a decrease in Fresh Vine’s production could reduce its sales and increase its expenses, both of which could materially and adversely affect Fresh Vine’s business, results of operations and financial results.

If Fresh Vine is unable to obtain adequate supplies of premium juice from third-party juice suppliers, the quantity or quality of its production of wine could be adversely affected, causing a negative impact on Fresh Vine’s business, results of operations and financial condition.

The production of Fresh Vine’s wines and the ability to fulfill the demand for Fresh Vine’s wines is restricted by the availability of premium grapes and juice from third-party growers. If Fresh Vine is unable to source grapes and juice of the requisite quality, varietal and geography, among other factors, its ability to produce wines to the standards, quantity and quality demanded by customers could be impaired.

Factors including climate change, agricultural risks, competition for quality, water availability, land use, wildfires, floods, disease, and pests could impact the quality and quantity of grapes and bulk juice available to Fresh Vine. Furthermore, these potential disruptions in production may drive up demand for grapes and bulk juice creating higher input costs or the inability to purchase these materials. Following the 2020 wildfires in Northern California, the price of bulk juice increased substantially in a very short period of time, leading to some wine producers reducing lot sizes of certain wines. As a result, Fresh Vine’s financial results could be materially and adversely affected both in the year of the harvest and future periods.

If Fresh Vine is unable to identify and obtain adequate supplies of quality agricultural, raw and processed materials, including corks, glass bottles, barrels, winemaking additives and agents, water and other supplies, or if there is an increase in the cost of the commodities or products, Fresh Vine’s profitability, production and distribution capabilities could be negatively impacted, which would materially and adversely affect Fresh Vine’s business, results of operations and financial condition.

Fresh Vine uses grapes and other raw materials to produce and package wine, including corks, barrels, winemaking additives, and water, as well as large amounts of packaging materials, including metal, cork, glass and cardboard. Fresh Vine purchases raw materials and packaging materials under contracts of varying maturities from domestic and international suppliers.

Glass bottle costs are one of Fresh Vine’s largest packaging components of cost of goods sold. In North America, glass bottles have only a small number of producers. The inability of any of Fresh Vine’s glass bottle suppliers to satisfy its requirements could materially and adversely affect its business. In addition, costs and programs related to mandatory recycling and recyclable materials deposits could be adopted in states of manufacture, imposing additional and unknown costs to manufacture products utilizing glass bottles. The amount of water available for use is important to the supply of grapes, other agricultural raw materials, and Fresh Vine’s ability to operate our business. If climate patterns change and droughts become more severe, there may be a scarcity of water or poor water quality, which may affect Fresh Vine’s production costs, consistency of yields or impose capacity constraints. Fresh Vine depends on sufficient amounts of quality water to conduct operations. The suppliers of the grapes and other agricultural raw materials Fresh Vine purchases also depend upon sufficient supplies of quality water for their vineyards and fields. Prolonged or severe drought conditions in the western United States or restrictions imposed on irrigation options by governmental authorities could have an adverse effect on Fresh Vine’s operations in the region. If water available to Fresh Vine’s operations or the operations of its suppliers becomes scarcer, restrictions are placed on Fresh Vine’s usage of water or the quality of that water deteriorates, Fresh Vine may incur increased production costs or face manufacturing constraints which could negatively affect its production. Even if quality water is widely available, water purification and waste treatment infrastructure limitations could increase costs or constrain operation of Fresh Vine’s production facilities. Any of these factors could materially and adversely affect Fresh Vine’s business, results of operations and financial results.

Fresh Vine’s production and shipping activities also use energy in their operations, including electricity, propane and natural gas. Energy costs could rise in the future, which would result in higher transportation, freight and other operating costs, such as ageing and bottling expenses. Fresh Vine’s freight cost and the timely delivery of its wines could be adversely affected by a number of factors that could reduce the profitability of Fresh Vine’s operations, including driver shortages, higher fuel costs, weather conditions, traffic congestion, increased government regulation, and other matters. In addition, increased labor costs or insufficient labor supply could increase production costs.

Fresh Vine’s supply and the price of raw materials, packaging materials and energy and the cost of energy, freight and labor used in Fresh Vine’s productions and distribution activities could be affected by a number of factors beyond our control, including market demand, global geopolitical events (especially their impact on energy prices), economic factors affecting growth decisions, exchange rate fluctuations and inflation. To the extent any of these factors, including supply of goods and energy, affect the prices of ingredients or packaging, or Fresh Vine does not effectively or completely hedge changes in commodity price risks, or is unable to recoup costs through increases in the price of finished wines, Fresh Vine’s business, results of operations and financial results could be materially and adversely affected.

In addition to litigation that may arise from time to time in the ordinary course of business, Fresh Vine has been engaged in litigation with its former Chief Operating Officer.

As disclosed under “Fresh Vine Business — Legal Proceedings,” Fresh Vine was a defendant in a lawsuit styled Timothy Michaels v. Fresh Vine Wine, Inc. filed May 27, 2022 in the Fourth Judicial District Court, Hennepin County, Minnesota. The lawsuit relates to a complaint filed by Mr. Michaels resulting from Fresh Vine including a restricted “lock-up” legend on shares of Fresh Vine common stock issued to Mr. Michaels pursuant to a settlement agreement that Fresh Vine entered into with Mr. Michaels following termination of his employment and for delay in removing or directing Fresh Vine’s transfer agent to remove such legend. On January 25, 2024, the jury in the lawsuit rendered a verdict against Freeh Vine awarding damages to Mr. Michaels in the amount of $585,976.25. The damages awarded to Mr. Michaels by the trial court are not covered by Fresh Vine’s insurance policies. On February 22, 2024, Fresh Vine filed a renewed motion for post-verdict judgment in favor of Fresh Vine as a matter of law. On February 26, 2024, the Judge in the lawsuit denied the renewed motion for post-verdict judgment.

On March 25, 2024, Mr. Michaels filed a Notice and Application for Taxation of Costs and Disbursements. On March 26, 2024, the Company filed its Notice of Appeal. On March 26, 2024, Mr. Michaels served a motion for Pre-verdict and Prejudgment Interest. On March 27, 2024, a Notice of Entry of Judgment was filed and, on March 28, 2024, a Notice of Docketing of Judgment was entered. Although the Company believes it has legal grounds to appeal the verdict, continued litigation and related actions may be expensive, the outcome of any litigation (including any appeal) is difficult to predict, and the existence of litigation may impact the ability of management to focus on other business matters. Furthermore, the Company may be required to post an appeal bond in order to stay execution of the money judgment pending any appeal. Given the Company’s current financial position, the cost of such an appeal bond is uncertain and may be higher than the typical cost of such a bond or require the Company to provide cash or other collateral. In addition, adverse judgments may result in an increase in future insurance premiums, and any judgments for which the Company is not fully insured may result in a significant financial loss and may materially and adversely affect the Company’s business, results of operations and financial results.

The impact of U.S. and worldwide economic trends and financial market conditions could materially and adversely affect Fresh Vine’s business, liquidity, financial condition and results of operations.

Fresh Vine is subject to risks associated with adverse economic conditions in the United States and globally, including economic slowdown, inflation, and the disruption, volatility and tightening of credit and capital markets. Unfavorable global or regional economic conditions could materially and adversely impact Fresh Vine’s business, liquidity, financial condition and results of operations. In general, positive conditions in the broader economy promote customer spending on wine, while economic weakness, which generally results in a reduction of customer spending, may have a more pronounced negative effect on spending on wine. Unemployment, tax increases, governmental spending cuts or a return of high levels of inflation could affect consumer spending patterns and purchases of Fresh Vine’s wines and other alcoholic beverage products. Reduced consumer discretionary spending and reduced consumer confidence could negatively affect the trend towards consuming premium wines and could result in a reduction of wine and beverage alcohol consumption in the United States generally. In particular, extended periods of high unemployment, lower consumer discretionary spending and low consumer confidence could result in lower sales of premium wine brands, including Fresh Vine’s wine, in favor of wine brands which have a lower average sales price and generally have lower gross profit margins and lower overall sales, which could negatively impact our business and results of operations. These conditions could also create or worsen credit issues, cash flow issues, access to credit facilities and other financial hardships for Fresh Vine and its suppliers, distributors, accounts and consumers. An inability of Fresh Vine’s suppliers, distributors and retailers to access liquidity could impact Fresh Vine’s ability to produce and distribute its wines.

If Fresh Vine is unable to secure and protect its intellectual property in domestic and foreign markets, including trademarks for its wine brands and wines, the value of its wine brands and intellectual property could decline, which could have a material and adverse effect on its business, results of operations and financial results.

The future success of Fresh Vine’s existing business depends on its ability to protect its current and future wine brands and wines and to enforce and defend its trademarks and other intellectual property rights. Fresh Vine relies on a combination of trademark, copyright and trade secret laws, as well as confidentiality procedures and contractual restrictions, to secure and protect its intellectual property rights. Fresh Vine has been granted three (3) trademark registrations in the United States for FRESH VINE®, FRESH VINE (Stylized)®, and our FV Logo®, and numerous

trademark registrations in other countries for the FRESH VINE mark, and Fresh Vine has filed, and may continue to file, trademark applications seeking to protect newly-developed wine brands. Fresh Vine has also been granted a copyright registration in the first version of its website located at www.freshvine.com.

Fresh Vine cannot be sure that any trademark office or copyright office will issue trademark registrations under any of its trademark applications, or copyright registrations under any of its copyright applications. Third parties may oppose the registration of Fresh Vine’s trademark applications, contest its trademark rights or copyrights, and petition to cancel its registered trademarks. Fresh Vine cannot assure that it will be successful in defending its trademarks or copyrights in actions brought by third parties. There is also a risk that Fresh Vine could fail to timely maintain or renew its trademark registrations or otherwise protect its trademark rights or copyrights, which could result in the loss of those trademark rights (including in connection with failure to maintain consistent use of these trademarks). If Fresh Vine fails to maintain its trademarks or a third party successfully challenges its trademarks or copyrights, Fresh Vine could be forced to rebrand its wines, and any other products, which could result in a loss of wine brand recognition and could require Fresh Vine to devote additional resources to the development and marketing of new wine brands.

Notwithstanding any trademark registrations or copyright registrations held by Fresh Vine, a third party could bring a lawsuit or other claim alleging that Fresh Vine has infringed that third party’s trademark rights or copyrights. Any such claims, with or without merit, could require significant resources to defend, could damage the reputation of Fresh Vine’s wine brands, could result in the payment of compensation (whether as a damages award or settlement) to such third parties, and could require Fresh Vine to stop using its wine brands or otherwise agree to an undertaking to limit that use. In addition, Fresh Vine’s actions to monitor and enforce trademark rights or copyrights against third parties may not prevent counterfeit products or products bearing confusingly similar trademarks from entering the marketplace, which could divert sales from Fresh Vine, tarnish its reputation or reduce the demand for its products or the prices at which we sell those products. Any enforcement litigation brought by Fresh Vine, whether or not successful, could require significant costs and resources, and divert the attention of management, which could negatively affect Fresh Vine’s business, results of operations and financial results. Third parties may also acquire and register domain names that are confusingly similar to or otherwise damaging to the reputation of Fresh Vine’s trademarks, and Fresh Vine may not be able to prevent or cancel any such domain name registrations.

In addition to registered intellectual property rights such as trademark registrations and copyright registrations, Fresh Vine has relied on non-registered proprietary information, such as trade secrets, confidential information, and know-how, including in connection with the crafting of its low calorie, low-carb, premium tasting wines. In order to protect our proprietary information, Fresh Vine has relied in part on agreements with our employees, independent contractors and other third parties that place restrictions on the use and disclosure of this intellectual property. These agreements may be breached, or this intellectual property, including trade secrets, may otherwise be disclosed or become known to Fresh Vine’s competitors, which could cause Fresh Vine to lose any competitive advantage resulting from this intellectual property. To the extent that its employees, independent contractors or other third parties with whom Fresh Vine does business use intellectual property owned by others in their work for Fresh Vine, disputes may arise as to the rights in related or resulting know-how and inventions. The loss of trade secret protection could make it easier for third parties to compete with Fresh Vine’s products. In addition, any changes in, or unexpected interpretations of, intellectual property laws may compromise our ability to enforce Fresh Vine’s trade secret and intellectual property rights. Costly and time-consuming litigation could be necessary to enforce and determine the scope of Fresh Vine’s proprietary rights, and failure to obtain or maintain protection of its trade secrets or other proprietary information could harm its business, financial condition, results of operations and competitive position.

Fresh Vine may not be fully insured against catastrophic perils, including catastrophic loss or inaccessibility of wineries, production facilities and/or distribution systems resulting from fire, wildfire, flood, wind events, earthquake and other perils, which may cause us to experience a material financial loss.

If any of the facilities at which Fresh Vine stores its wine inventory were to experience a catastrophic loss in the future, it could disrupt Fresh Vine’s operations, delay production, shipments and our recognition of revenue, and result in potentially significant expenses to repair or replace the facility. If such a disruption were to occur, Fresh Vine could breach agreements, its reputation could be harmed and its business and operating results could be materially and adversely affected. Although Fresh Vine carries insurance to cover property and inventory damage and business interruption, these coverages are subject to deductibles and self-insurance obligations, as well as caps on coverage that could be below the value of losses Fresh Vine could incur in certain catastrophic perils. Furthermore, claims for recovery against Fresh Vine’s insurance policies can be time-consuming, and may result

in significant delays between when it incurs damages and when it receives payment under applicable insurance policies. If one or more significant catastrophic events occurred damaging Fresh Vine’s or third-party assets and/or services, Fresh Vine could suffer a major financial loss and its business, results of operations and financial condition could be materially and adversely affected.

From time to time, Fresh Vine may become subject to litigation specifically directed at the alcoholic beverage industry, as well as litigation arising in the ordinary course of business.

Companies operating in the alcoholic beverage industry may, from time to time, be exposed to class action or other private or governmental litigation and claims relating to product liability, alcohol marketing, advertising or distribution practices, alcohol abuse problems or other health consequences arising from the excessive consumption of or other misuse of alcohol, including underage drinking. Various groups have, from time to time, publicly expressed concern over problems related to harmful use of alcohol, including drinking, and driving, underage drinking and health consequences from the misuse of alcohol. These campaigns could result in an increased risk of litigation against Fresh Vine and its industry. Lawsuits have been brought against beverage alcohol companies alleging problems related to alcohol abuse, negative health consequences from drinking, problems from alleged marketing or sales practices and underage drinking. While these lawsuits have been largely unsuccessful in the past, others may succeed in the future.

From time to time, Fresh Vine may also be party to other litigation in the ordinary course of our operations, including in connection with commercial disputes, enforcement or other regulatory actions by tax, customs, competition, environmental, anti-corruption and other relevant regulatory authorities, or, securities-related class action lawsuits, particularly following any significant decline in the price of Fresh Vine’s securities. Any such litigation or other actions may be expensive to defend and result in damages, penalties, or fines as well as reputational damage to Fresh Vine’s and its wine brands and may impact the ability of management to focus on other business matters. Furthermore, any adverse judgments may result in an increase in future insurance premiums, and any judgments for which Fresh Vine is not fully insured may result in a significant financial loss and may materially and adversely affect Fresh Vine’s business, results of operations and financial results.

A failure of one or more of Fresh Vine’s key IT systems, networks, processes, associated sites or service providers could have a material adverse impact on business operations, and if the failure is prolonged, Fresh Vine’s financial condition.

Fresh Vine relies on IT systems, networks, and services, including internet sites, data hosting and processing facilities and tools, hardware (including laptops and mobile devices), software and technical applications and platforms, some of which are managed, hosted, provided, and used by third parties or their vendors, to assist it in the management of its business. The various uses of these IT systems, networks and services include, but are not limited to: hosting Fresh Vine’s internal network and communication systems; supply and demand planning; production; shipping wines to customers; hosting Fresh Vine’s website(s) and marketing products to consumers; collecting and storing customer, consumer, employee, stockholder, and other data; processing transactions; summarizing and reporting results of operations; hosting, processing and sharing confidential and proprietary research, business plans and financial information; complying with regulatory, legal or tax requirements; providing data security; and handling other processes necessary to manage Fresh Vine’s business.

Increased IT security threats and more sophisticated cybercrimes and cyberattacks, including computer viruses and other malicious codes, ransomware, unauthorized access attempts, denial of service attacks, phishing, social engineering, hacking and other types of attacks pose a potential risk to the security of Fresh Vine’s IT systems, networks and services, as well as the confidentiality, availability, and integrity of Fresh Vine’s data, and Fresh Vine has in the past, and/or may in the future, experience cyberattacks and other unauthorized access attempts to its IT systems. Because the techniques used to obtain unauthorized access are constantly changing and often are not recognized until launched against a target, Fresh Vine or its vendors may be unable to anticipate these techniques or implement sufficient preventative or remedial measures. If Fresh Vine is unable to efficiently and effectively maintain and upgrade our system safeguards, it may incur unexpected costs and certain of its systems may become more vulnerable to unauthorized access. In the event of a ransomware or other cyber-attack, the integrity and safety of Fresh Vine’s data could be at risk, or Fresh Vine may incur unforeseen costs impacting its financial position. If the IT systems, networks or service providers Fresh Vine relies upon fails to function properly, or if Fresh Vine suffers a loss or disclosure of business or other sensitive information due to any number of causes ranging from catastrophic

events, power outages, security breaches, unauthorized use or usage errors by employees, vendors or other third parties and other security issues, Fresh Vine may be subject to legal claims and proceedings, liability under laws that protect the privacy and security of personal information (also known as personal data), litigation, governmental investigations and proceedings and regulatory penalties, and Fresh Vine may suffer interruptions in its ability to manage its operations and reputational, competitive or business harm, which may adversely affect Fresh Vine’s business, results of operations and financial results. In addition, such events could result in unauthorized disclosure of material confidential information, and Fresh Vine may suffer financial and reputational damage because of lost or misappropriated confidential information belonging to Fresh Vine or to its employees, stockholders, customers, suppliers, consumers or others. In any of these events, Fresh Vine could also be required to spend significant financial and other resources to remedy the damage caused by a security breach or technological failure and the reputational damage resulting therefrom, to pay for investigations, forensic analyses, legal advice, public relations advice or other services, or to repair or replace networks and IT systems.

Fresh Vine’s failure to adequately maintain and protect personal information of its customers or employees in compliance with evolving legal requirements could have a material adverse effect on Fresh Vine’s business.

Fresh Vine collects, uses, stores, discloses or transfers (collectively, “processes”) personal information, including from employees and customers, in connection with the operation of its business. A wide variety of local and international laws as well as regulations and industry guidelines apply to the privacy and collecting, storing, use, processing, disclosure, and protection of personal information and may be inconsistent among countries or conflict with other rules. Data protection and privacy laws and regulations are changing, subject to differing interpretations and being tested in courts and may result in increasing regulatory and public scrutiny and escalating levels of enforcement and sanctions.

A variety of data protection legislation apply in the United States at both the federal and state level, including new laws that may impact our operations. For example, the State of California has enacted the California Consumer Privacy Act of 2018 (“CCPA”), which generally requires companies that collect, use, share and otherwise process “personal information” (which is broadly defined) of California residents to make disclosures about their data collection, use, and sharing practices, allows consumers to opt-out of certain data sharing with third parties or the sale of personal information, allows consumers to exercise certain rights with respect to any personal information collected and provides a new cause of action for data breaches. In addition, a new privacy law, the California Privacy Rights Act (“CPRA”), which significantly modifies the CCPA, was recently approved by ballot initiative during the November 3, 2021 general election. On January 1, 2023 the CCPA became effective and added additional privacy protection. This may require us to incur additional expenditures to ensure compliance. Additionally, the Federal Trade Commission, and many state attorneys general are interpreting federal and state consumer protection laws to impose standards for the online collection, use, dissemination, and security of data. The burdens imposed by the CCPA and other similar laws that have been or may be enacted at the federal and state level may require Fresh Vine to modify its data processing practices and policies and to incur additional expenditures in order to comply.

Foreign laws and regulations relating to privacy, data protection, information security and consumer protection often are more restrictive than those in the United States. The European Union, for example, traditionally has imposed stricter obligations under its laws and regulations relating to privacy, data protection and consumer protection than the United States. In May 2018 the European Union’s new regulation governing data practices and privacy called the General Data Protection Regulation, or GDPR, became effective and substantially replaced the data protection laws of the individual European Union member states. The law requires companies to meet more stringent requirements regarding the handling of personal data of individuals in the EU than were required under predecessor EU requirements. In the United Kingdom, a Data Protection Bill that substantially implements the GDPR also became law in May 2018. The GDPR and other similar regulations require companies to give specific types of notice and in some cases seek consent from consumers and other data subjects before collecting or using their data for certain purposes, including some marketing activities. Outside of the European Union, many countries have laws, regulations, or other requirements relating to privacy, data protection, information security, and consumer protection, and new countries are adopting such legislation or other obligations with increasing frequency. Many of these laws may require consent from consumers for the use of data for various purposes, including marketing, which may reduce our ability to market our products. There is no harmonized approach to these laws and regulations globally. Consequently, Fresh Vine would increase its risk of non-compliance with applicable foreign data protection laws by expanding internationally. Fresh Vine may need to change and limit the way it uses personal information in operating its business and may have difficulty maintaining a single operating model that is compliant. In addition,

various federal, state and foreign legislative and regulatory bodies, or self-regulatory organizations, may expand current laws or regulations, enact new laws or regulations or issue revised rules or guidance regarding privacy, data protection, information security and consumer protection.

Compliance with these and any other applicable privacy and data protection laws and regulations is a rigorous and time-intensive process, and Fresh Vine may be required to put in place additional mechanisms ensuring compliance with the new privacy and data protection laws and regulations. Fresh Vine’s actual or alleged failure to comply with any applicable privacy and data protection laws and regulations, industry standards or contractual obligations, or to protect such information and data that we process, could result in litigation, regulatory investigations, and enforcement actions against it, including fines, orders, public censure, claims for damages by employees, customers and other affected individuals, public statements against it by consumer advocacy groups, damage to its reputation and competitive position and loss of goodwill (both in relation to existing customers and prospective customers) any of which could have a material adverse effect on Fresh Vine’s business, financial condition, results of operations, and cash flows. Additionally, if third parties that Fresh Vine works with, such as vendors or developers, violate applicable laws or Fresh Vine’s policies, such violations may also place personal information at risk and have an adverse effect on Fresh Vine’s business. Even the perception of privacy concerns, whether or not valid, may harm a company’s reputation, subjecting it to regulatory scrutiny and investigations.

As a producer of alcoholic beverages, Fresh Vine is the subject of regulatory reviews, proceedings and audits by governmental entities, any of which could result in an adverse ruling or conclusion, and which could have a material adverse effect on Fresh Vine’s business, financial condition, results of operations and future prospects.

Fresh Vine is subject to extensive regulation in the United States by federal, state, and local laws regulating the production, distribution and sale of consumable food items, and specifically alcoholic beverages, including by the Alcohol and Tobacco Tax and Trade Bureau (the “TTB”) and the Food and Drug Administration (the “FDA”). These and other regulatory agencies impose a number of product safety, labelling and other requirements on Fresh Vine’s operations and sales. In California, where all of Fresh Vine’s wines have been made, Fresh Vine is subject to alcohol-related licensing and regulations by many authorities, including the Department of Alcohol Beverage Control (the “ABC”), which investigates applications for licenses to sell alcoholic beverages, reports on the moral character and fitness of alcohol license applicants and the suitability of premises where sales are to be conducted. Fresh Vine is also subject to regulatory compliance requirements in all states in which it sells its wines. Any governmental litigation, fines, or restrictions on our operations resulting from the enforcement of these existing regulations or any new legislation or regulations could have a material adverse effect on Fresh Vine’s business, results of operations and financial results. Any government intervention challenging the production, marketing, promotion, distribution or sale of beverage alcohol or specific brands could affect Fresh Vine’s ability to sell its wines. Because litigation and other legal proceedings can be costly to defend, even actions that are ultimately decided in Fresh Vine’s favor could have a negative impact on its business, results of operations or financial results. Adverse developments in major lawsuits concerning these or other matters could result in management distraction and have a material adverse effect on Fresh Vine’s business. Changes to the interpretation or approach to enforcement of regulations may require changes to Fresh Vine’s business practices or the business practices of its suppliers, distributors, or customers. The penalties associated with any violations or infractions may vary in severity, and could result in a significant impediment to Fresh Vine’s business operations, and could cause Fresh Vine to have to suspend sales of wines in a jurisdiction for a period of time.

New and changing environmental requirements, and new market pressures related to climate change, could materially and adversely affect Fresh Vine’s business, results of operations and financial results.

There has been significant public discussion related to concerns that carbon dioxide and other greenhouse gases in the atmosphere have an adverse impact on global temperatures, weather patterns and the frequency and severity of extreme weather and natural disasters. Federal regulations govern, among other things, air emissions, wastewater and stormwater discharges, and the treatment, handling and storage and disposal of materials and wastes. State environmental regulations and authorities intended to address and oversee environmental issues are largely state-level analogues to federal regulations and authorities intended to perform the similar purposes. Fresh Vine is subject to local environmental regulations that address a number of elements of its wine production process, including air quality, the handing of hazardous waste, recycling, water use and discharge, emissions and traffic impacts. Compliance with these and other environmental regulation requires significant resources. Continued regulatory and market trends towards sustainability may require or incentivize Fresh Vine to make

changes to its current business operations. Fresh Vine may experience future increases in the costs associated with environmental regulatory compliance, including fees, licenses and the cost of capital improvements to meet environmental regulatory requirements. Although Fresh Vine doesn’t cultivate its own grapes, increased costs associated with environmental regulatory compliance may impact grape growers, which may increase costs to purchase bulk juice.

Changes in foreign and domestic laws and government regulations to which Fresh Vine is currently subject, including changes to the method or approach of enforcement of these government rules and regulations, may increase costs or limit Fresh Vine’s ability to sell wines into certain markets, which could materially and adversely affect Fresh Vine’s business, results of operations and financial condition.

Government laws and regulations may result in increased production and sales costs, including an increase on the applicable tax in various state, federal and foreign jurisdictions in which Fresh Vine does business. The amount of wine that Fresh Vine can sell directly to consumers outside of California is regulated, and in certain states it is not allowed to sell wines directly to consumers at all. Changes in these laws and regulations that tighten current rules could have an adverse impact on sales or increase costs to produce, market, package or sell wine. Changes in regulation that require significant additional source data for registration and sale, in the labelling or warning requirements, or limitations on the permissibility of any component, condition or ingredient, in the places in which Fresh Vine’s wines can be legally sold could inhibit sales of affected products in those markets.

The wine industry is subject to extensive regulation by a number of foreign and domestic agencies, state liquor authorities and local authorities. These regulations and laws dictate such matters as licensing requirements, land use, production methods, trade and pricing practices, permitted distribution channels, permitted and required labelling, advertising, sequestration of classes of wine and relations with wholesalers and retailers. Any expansion of our existing facilities may be limited by present and future zoning ordinances, use permit terms, environmental restrictions and other legal requirements. In addition, new or updated regulations, requirements or licenses, particularly changes that impact Fresh Vine’s ability to sell DTC and/or retain accounts in California, or new or increased excise taxes, income taxes, property and sales taxes or international tariffs, could affect Fresh Vine’s financial condition or results of operations. From time to time, states consider proposals to increase state alcohol excise taxes. New or revised regulations or increased licensing fees, requirements or taxes could have a material adverse effect on Fresh Vine’s business, financial condition, and results of operations.

Risks related to Fresh Vine’s Common Stock

Fresh Vine’s failure to maintain continued compliance with the listing requirements of the NYSE American exchange could result in the delisting of Fresh Vine common stock.

Fresh Vine common stock has been listed on the NYSE American exchange since Fresh Vine’s December 2021 initial public offering. The rules of NYSE American provide that the NYSE American may, in its discretion, suspend dealings in, or may remove any security from, listing. As a matter of policy, NYSE American will consider the delisting of a security when the financial condition and/or operating results of a company appear to be unsatisfactory, the extent of public distribution or the aggregate market value of the security has become so reduced as to make further dealings on the NYSE American inadvisable, the company has sold or otherwise disposed of its principal operating assets, or has ceased to be an operating company, the company has failed to comply with its listing agreements with the NYSE American, or any other event shall occur or any condition shall exist which makes further dealings on the NYSE American unwarranted. For example, the NYSE American considers suspending trading in, or removing the listing of, securities of an issuer that has stockholders’ equity of less than (i) $2 million if such issuer has sustained losses from continuing operations and/or net losses in two of its three most recent fiscal years, (ii) $4 million if such issuer has sustained losses from continuing operations and/or net losses in three of its four most recent fiscal years, or (iii) $6 million if such issuer has sustained losses from continuing operations and/or net losses in its five most recent fiscal years. The NYSE American will also consider suspending trading in, or removing the listing of, securities of an issuer that has sustained losses which are so substantial in relation to its overall operations or its existing financial resources, or its financial condition has become so impaired that it appears questionable as to whether such issuer will be able to continue operations and/or meet its obligations as they mature.

On September 8, 2023, Fresh Vine received a written notice (the “Notice”) from NYSE American stating that it was not in compliance with the $4 million stockholders’ equity requirement of Section 1003(a)(ii) of the NYSE American Company Guide (the “Company Guide”). Fresh Vine reported stockholders’ equity of $2.4 million as of June 30, 2023, the end of its second fiscal quarter of 2023, and has had losses from continuing operations and/or net losses in each of the fiscal years ended December 31, 2020, 2021 and 2022. As required by the NYSE American, Fresh Vine submitted a plan to the NYSE American on October 9, 2023 addressing actions it has taken and how it intends to regain compliance with the continued listing standards by March 8, 2025.

On November 21, 2023, Fresh Vine received notification (the “Acceptance Letter”) from NYSE American that its plan to regain compliance with NYSE American’s listing standards was accepted. The Acceptance Letter also stated that Fresh Vine is not in compliance with Section 1003(a)(i) of the Company Guide, which requires an issuer to have stockholders’ equity of $2.0 million or more if it has reported losses from continuing operations and/or net losses in two out of its three most recent fiscal years. Fresh Vine reported stockholders’ equity of $1.1 million as of September 30, 2023, the end of its third fiscal quarter of 2023, and has had losses from continuing operations and/or net losses in each of its fiscal years ended December 31, 2020, 2021 and 2022.

NYSE American has granted Fresh Vine a plan period through March 8, 2025 to regain compliance with Sections 1003(a)(i) and (ii) of the Company Guide. If Fresh Vine is not in compliance with all continued listing standards by that date or if it does not make progress consistent with the plan during the plan period, Fresh Vine will be subject to delisting proceedings. Fresh Vine will be subject to periodic NYSE American reviews, including quarterly monitoring for compliance with the plan. Fresh Vine cannot make any assurance regarding whether it will be able to make progress consistent with its plan or ultimately regain compliance with the NYSE American listing standards. Fresh Vine common stock will continue to be listed on the NYSE American while Fresh Vine attempts to regain compliance with the listing standard noted, subject to its compliance with other continued listing requirements. Fresh Vine common stock will continue to trade under the symbol “VINE,” but will be included in the list of NYSE American noncompliant issuers, and the below compliance (“.BC”) indicator will be disseminated with our ticker symbol. The website posting and .BC indicator would be removed when Fresh Vine has regained compliance with all applicable continued listing standards.

If NYSE American delists the Fresh Vine common stock from trading on the exchange and it is not able to list its securities on another national securities exchange, Fresh Vine expects shares of its common shares would qualify to be quoted on an over-the-counter market. If this were to occur, Fresh Vine could experience a number of adverse consequences, including:

•        limited availability of market quotations for the common stock;

•        reduced liquidity for our securities;

•        the common shares being categorized as a “penny stock,” which requires brokers trading in our common shares to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for our common stock; and

•        decreased ability to issue additional securities or obtain additional financing in the future.

In addition, the National Securities Markets Improvement Act of 1996 generally preempts the states from regulating the sale of “covered securities.” Fresh Vine common shares qualify as “covered securities” because they are listed on NYSE American. If Fresh Vine common shares were no longer listed on NYSE American, the securities would not be “covered securities” and Fresh Vine would be subject to regulation in each state in which Fresh Vine offers its securities.

If Fresh Vine common stock becomes subject to the penny stock rules, it would become more difficult to trade such shares.

The SEC has adopted rules that regulate broker-dealer practices in connection with transactions in penny stocks. Penny stocks are generally equity securities with a price of less than $5.00, other than securities registered on certain national securities exchanges or authorized for quotation on certain automated quotation systems, provided that current price and volume information with respect to transactions in such securities is provided by the exchange or system. If Fresh Vine does not retain its listing on the NYSE American and if the price of Fresh Vine common stock is less than $5.00, Fresh Vine common stock may be deemed a penny stock. The penny stock rules

require a broker-dealer, before a transaction in a penny stock not otherwise exempt from those rules, to deliver a standardized risk disclosure document containing specified information. In addition, the penny stock rules require that before effecting any transaction in a penny stock not otherwise exempt from those rules, a broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive (i) the purchaser’s written acknowledgment of the receipt of a risk disclosure statement; (ii) a written agreement to transactions involving penny stocks; and (iii) a signed and dated copy of a written suitability statement. These disclosure requirements may have the effect of reducing the trading activity in the secondary market for Fresh Vine common stock, and therefore stockholders may have difficulty selling their shares.

Fresh Vine incurs significant legal, accounting, and other expenses associated with public company reporting requirements and corporate governance requirements.

As a public company, Fresh Vine incurs significant legal, accounting, and other expenses that it did not incur as a private company, including costs associated with public company reporting requirements and corporate governance requirements, including requirements under the Sarbanes-Oxley Act of 2002, as well as new rules implemented by the SEC and the NYSE American.

As an example of reporting requirements, Fresh Vine is evaluating its internal control systems in order to allow management to report on our internal control over financing reporting, as required by Section 404 of the Sarbanes-Oxley Act of 2002. As a company with limited capital and human resources, Fresh Vine anticipates that more of management’s time and attention will be diverted from its business to ensure compliance with these regulatory requirements than would be the case with a company that has established controls and procedures. This diversion of management’s time and attention may have a material adverse effect on Fresh Vine’s business, financial condition and results of operations.

Fresh Vine is eligible to be treated as an emerging growth company, and it cannot be certain that the reduced disclosure requirements applicable to emerging growth companies will not make its shares less attractive to investors.

Fresh Vine is an emerging growth company, as defined in the JOBS Act. For as long as it continues to be an emerging growth company, Fresh Vine may take advantage of exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies, including, among others, (1) not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, (2) reduced disclosure obligations regarding executive compensation in periodic reports and proxy statements, (3) exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved and (4) the requirement to present only two years of audited financial statements and only two years of related “Management’s discussion and analysis of financial condition and results of operations” in periodic certain reports. Fresh Vine could be an emerging growth company for up to five years, although circumstances could cause it to lose that status earlier, including if the market value of Fresh Vine common stock held by non-affiliates exceeds $700.0 million as of the end of the second fiscal quarter in any fiscal year before that time or if Fresh Vine has total annual gross revenues of $1.07 billion or more during any fiscal year before that time, in which case it would no longer be an emerging growth company as of the fiscal year end, or if it issues more than $1.0 billion in non-convertible debt during any three-year period before that time it would cease to be an emerging growth company immediately. Fresh Vine cannot predict if investors will find shares of Fresh Vine common stock less attractive because Fresh Vine may rely on these exemptions. If some investors find Fresh Vine common stock less attractive as a result, there may be a less active trading market for Fresh Vine common stock and the share price may be more volatile.

Under the JOBS Act, emerging growth companies can also delay adopting new or revised accounting standards until such time as those standards apply to private companies. Fresh Vine has elected to use this extended transition period for complying with new or revised accounting standards that have different effective dates for public and private companies and intends to continue such election until the earlier of the date it (i) is no longer an emerging growth company or (ii) affirmatively and irrevocably opts out of the extended transition period provided in the JOBS Act. Fresh Vine’s financial statements may therefore not be comparable to those of other public companies that comply with such new or revised accounting standards.

As a result of being a public company, Fresh Vine is obligated to develop and maintain proper and effective internal control over financial reporting and any failure to maintain the adequacy of these internal controls may negatively impact investor confidence in Fresh Vine and, as a result, the value of its common stock.

Fresh Vine is required pursuant to Section 404 of the Sarbanes-Oxley Act to furnish a report by management on, among other things, the effectiveness of its internal control over financial reporting. This assessment will need to include disclosure of any material weaknesses identified by Fresh Vine’s management in its internal control over financial reporting. In addition, Fresh Vine’s independent registered public accounting firm will be required to attest to the effectiveness of our internal control over financial reporting in Fresh Vine’s first annual report required to be filed with the Securities and Exchange Commission (the “SEC”) following the date it is no longer an emerging growth company. Any failure to maintain effective internal control over financial reporting could severely inhibit Fresh Vine’s ability to accurately report its financial condition or results of operations. If Fresh Vine is unable to conclude that its internal control over financial reporting is effective, or if Fresh Vine’s independent registered public accounting firm determines the Fresh Vine has a material weakness in its internal control over financial reporting, Fresh Vine could lose investor confidence in the accuracy and completeness of its financial reports, the market price of Fresh Vine common stock could decline, Fresh Vine could be subject to sanctions or investigations by the NYSE American, the SEC or other regulatory authorities and Fresh Vine’s access to the capital markets could be restricted.

In this report, Fresh Vine’s management concluded that its disclosure controls and procedures and its internal control over financial reporting were not effective as of December 31, 2023 due to the existence of a material weakness related to internal controls over financial reporting. Although Fresh Vine intends to engage in activities aimed at remediating these material weaknesses, Fresh Vine’s remediation activities may not be successful, and Fresh Vine’s management may continue to conclude that its disclosure controls and procedures and its internal control over financial reporting are not effective in future periods.

Provisions of Fresh Vine’s corporate governance documents could make an acquisition of Fresh Vine more difficult and may prevent attempts by Fresh Vine stockholders to replace or remove current management, even if beneficial to Fresh Vine’s stockholders.

Fresh Vine’s articles of incorporation and bylaws and the Nevada Revised Statutes contain provisions that could make it more difficult for a third party to acquire Fresh Vine, even if doing so might be beneficial to Fresh Vine’s stockholders. These provisions include:

•        advance notice requirements for stockholder proposals and director nominations;

•        the ability of Fresh Vine’s board of directors to issue new series of, and designate the terms of, preferred stock, without stockholder approval, which could be used to, among other things, institute a rights plan that would have the effect of significantly diluting the stock ownership of a potential hostile acquirer, likely preventing acquisitions that have not been approved by Fresh Vine’s board of directors; and

•        limitations on the ability of stockholders to call special meetings and to take action by written consent.

Because Fresh Vine’s board of directors is responsible for appointing the members of our management team, these provisions could in turn affect any attempt to replace current members of Fresh Vine’s management team. As a result, you may lose your ability to sell your stock for a price in excess of the prevailing market price due to these protective measures, and efforts by stockholders to change the direction or management of Fresh Vine may be unsuccessful.

Your percentage ownership in Fresh Vine may be diluted by future issuances of capital stock, which could reduce your influence over matters on which stockholders vote.

Pursuant to Fresh Vine’s articles of incorporation and bylaws, Fresh Vine’s board of directors has the authority, without action or vote of Fresh Vine stockholders, to issue all or any part of Fresh Vine’s authorized but unissued shares of common stock, including shares issuable upon the exercise of options, or shares of our authorized but unissued preferred stock. Issuances of common stock or voting preferred stock would reduce your influence over matters on which Fresh Vine’s stockholders vote and, in the case of issuances of preferred stock, would likely result in your interest in Fresh Vine being subject to the prior rights of holders of that preferred stock.

An active, liquid trading market for Fresh Vine common stock may not develop, which may limit your ability to sell your shares.

Prior to our December 2021 initial public offering, there was no public market for Fresh Vine common stock. Although Fresh Vine lists shares of its common stock on the NYSE American under the symbol “VINE,” an active trading market for shares of Fresh Vine common stock may not develop or be sustained going forward. A public trading market having the desirable characteristics of depth, liquidity and orderliness depends upon the existence of willing buyers and sellers at any given time, such existence being dependent upon the individual decisions of buyers and sellers over which neither Fresh Vine nor any market maker has control. The failure of an active and liquid trading market to develop and continue would likely have a material adverse effect on the value of Fresh Vine common stock. The market price of Fresh Vine common stock may decline, and you may not be able to sell your shares of Fresh Vine common stock at or above the price you paid for them, or at all. An inactive market may also impair Fresh Vine’s ability to raise capital to continue to fund operations by selling shares and may impair Fresh Vine’s ability to acquire other companies or technologies by using our shares as consideration.

Sales of a substantial number of shares of Fresh Vine’s common stock in the public market could cause the market price of our common stock to drop significantly, even if Fresh Vine’s business is performing well.

Sales of a substantial number of shares of Fresh Vine common stock in the public market could occur at any time. These sales, or the perception in the market that the holders of a large number of shares intend to sell shares, could reduce the market price of Fresh Vine’s common stock.

As a public company, Fresh Vine is subject to additional laws, regulations and stock exchange listing standards, which will result in additional costs to Fresh Vine and may strain its resources and divert its management’s attention.

Prior to its December 2021 initial public offering, Fresh Vine operated on a private basis. As a public reporting company, Fresh Vine is now subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the listing requirements of the NYSE American and other applicable securities laws and regulations. Compliance with these laws and regulations has increased Fresh Vine’s legal and financial compliance costs and make some activities more difficult, time-consuming or costly. Fresh Vine also expects that being a public company and being subject to new rules and regulations has made, and will make, it more expensive to obtain director and officer liability insurance, and Fresh Vine may be required to accept reduced coverage or incur substantially higher costs to obtain coverage. However, the incremental costs that Fresh Vine incurs as a result of becoming a public company could exceed its estimate. These factors may therefore strain Fresh Vine’s resources, divert management’s attention and affect our ability to attract and retain qualified members of Fresh Vine’s board of directors.

Fresh Vine has no current plans to pay cash dividends on its common stock and, as a result, investors in Fresh Vine common stock may not receive any return on investment unless they sell such shares for a price greater than that which was paid for them.

Fresh Vine does not anticipate paying any regular cash dividends on its common stock in the foreseeable future. Any decision to declare and pay dividends in the future will be made at the discretion of Fresh Vine’s board of directors and will depend on, among other things, Fresh Vine’s results of operations, financial condition, cash requirements, contractual restrictions, and other factors that Fresh Vine’s board of directors may deem relevant. In addition, Fresh Vine’s ability to pay dividends is, and may be, limited by covenants of existing and any future outstanding indebtedness we incur. Therefore, any return on investment in Fresh Vine common stock will be solely dependent upon the appreciation of the price of Fresh Vine common stock on the open market, which may not occur.

Fresh Vine’s operating results and share price may be volatile, and the market price of Fresh Vine’s common stock may drop below the price you pay.

Fresh Vine’s operating results are likely to fluctuate in the future as a publicly traded company, which may occur during the pendency of the merger transaction or following completion of the merger. In addition, securities markets worldwide have experienced, and are likely to continue to experience, significant price and volume

fluctuations. This market volatility, as well as general economic, market or political conditions, could subject the market price of Fresh Vine’s shares to wide price fluctuations regardless of its operating performance. You may not be able to resell your shares at or above the price that you paid or pay for them or at all. Fresh Vine’s operating results and the trading price of our shares may fluctuate in response to various factors, many of which are beyond our control, may cause our operating results and the market price and demand for Fresh Vine’s shares to fluctuate substantially. While Fresh Vine believes that operating results for any particular year or quarter are not necessarily a meaningful indication of future results, fluctuations in yearly or quarterly operating results could limit or prevent investors from readily selling their shares and may otherwise negatively affect the market price and liquidity of Fresh Vine’s shares. In addition, in the past, when the market price of a stock has been volatile, holders of that stock have sometimes instituted securities class action litigation against the company that issued the stock. If any of Fresh Vine’s stockholders brought a lawsuit against its, Fresh Vine’s could incur substantial costs defending the lawsuit. Such a lawsuit could also divert the time and attention of management from Fresh Vine’s business, which could significantly harm Fresh Vine’s profitability and reputation.

Risks Related to Notes Live

General Risks Related to Notes Live

Notes Live will likely require additional capital to support its business plan and potential growth, and this capital might not be available on favorable terms, or at all.

Notes Live’s operations will likely require substantial additional financial, operational, and managerial resources. Notes Live may have insufficient cash to fund its working capital or other capital requirements and may be required to raise additional funds to continue or expand its operations. If Notes Live is required to obtain additional funding in the future, it may have to seek debt financing or obtain additional equity capital. Additional capital may not be available to Notes Live or may only be available on terms that adversely affect existing shareholders or restrict Company operations. For example, if Notes Live raises additional funds through issuances of equity, its existing shareholders could suffer significant dilution and any new equity securities issued by Notes Live could have rights, preferences, and privileges superior to those of existing shareholders. There can be no assurance that financing will be available to Notes Live on reasonable terms, if at all. The inability to raise additional funds will materially impair Notes Live’s ability to grow its revenues. Further, as a result of the ongoing volatility of the global markets, a general tightening of lending standards, and a general decrease in equity financing (and similar type) transactions, it could be difficult for Notes Live to obtain funding to allow Notes Live to continue to develop and implement its business.

Notes Live has incurred net losses in recent years and anticipates that we will continue to incur net losses for the near-term future and may never achieve profitability.

Notes Live is a hospitality and entertainment business that was formed in 2017. Notes Live is continuing to implement its business plan of opening, and then operating restaurants, venues and amphitheaters in new markets. Notes Live’s business plan is speculative as the development of its venues entails substantial upfront capital expenditures and the risk that the development and opening of its venues may be delayed or otherwise prove not to perform as projected. Notes Live has generated increasing revenues since its inception, to date Notes Live has not been profitable and incurred net losses in each of 2022 and 2023. Notes Live expects to continue to spend significant resources to develop, open and then operate its planned restaurants, venues and amphitheaters. And, Notes Live expects that it will incur an operating loss in 2024. Notes Live may encounter unforeseen expenses, difficulties, complications, delays and other unknown factors that may adversely affect its business. The size of Notes Live’s future net losses (if any) will depend, in part, on the rate of future growth of expenses and its ability to generate additional revenues. It is possible Notes Live may never be profitable and, if it does achieve profitability, Notes Live may not be able to sustain or increase profitability on a quarterly or annual basis.

Notes Live’s business plan is based on numerous assumptions and projections that may not prove accurate.

Notes Live’s business plan is based on numerous assumptions that Notes Live believes are reasonable but which may prove to be incorrect. No assurance can be given regarding the attainability of the projections and plans or the reliability of the assumptions upon which the projections are based. Notes Live’s ability to adhere to and implement its business plan will depend upon Notes Live’s ability to successfully raise funds and a variety of other

factors, many of which are beyond Notes Live’s control. Notes Live’s financial projections are based entirely upon management’s assumptions and should not be considered as a forecast of actual revenues. Actual operating results may be materially different.

Notes Live debt obligations may adversely affect cash flow and impose restrictions on the ability to operate its business.

Notes Live from time to time utilizes credit and debt facilities in its operations and to acquire assets. For example, certain of the real property assets owned by certain of Notes Live’s subsidiaries are subject to a mortgage, including the property owned by Hospitality Income & Asset, LLC and that is used in the operations of the Colorado Springs Bourbon Brothers Presents and Bourbon Brokers Smokehouse & Tavern. Notes Live’s indebtedness could have important consequences to stockholders, including with respect to an ability to declare and pay a dividend, and significant effects on the company’s business, including the following:

•        Notes Live must use a portion of its cash flow from operations to pay interest on debt obligations, which will reduce the funds available to use for operations and other purposes including other financial obligations;

•        Certain of Notes Live’s debt obligations are secured by significant company assets;

•        Notes Live’s ability to obtain additional financing for working capital, capital expenditures, strategic acquisitions or general corporate purposes may be impaired; and

•        Notes Live may be more vulnerable to economic downturns and adverse developments in its business.

Notes Live expects to obtain the funds to pay its day to day expenses and to repay its indebtedness primarily from operations. Notes Live’s ability to meet expenses and make these payments therefore depends on its future performance, which will be affected by financial, business, economic and other factors, many of which the company cannot control. Notes Live’s business may not generate sufficient cash flow from operations in the future, and its currently anticipated growth in revenues and cash flow may not be realized, either or both of which could result in the company being unable to repay indebtedness, or to fund other liquidity needs. If Notes Live does not have enough funds, it may be in breach of debt covenants and/or be required to refinance all or part of its then existing debt, sell assets or borrow more funds, which Notes Live may not be able to accomplish on terms favorable to the company, or at all. In addition, the terms of existing or future debt agreements may restrict Notes Live from pursuing any of these alternatives. If Notes Live defaults on its obligations, that could lead the lender to foreclose and Notes Live could lose its investment in the applicable asset.

The agreements under which Notes Live acquired and holds certain of its real property assets impose significant obligations on Notes Live and impose conditions for Notes Live to develop a project and otherwise continue to own and hold that real property.

In connection with certain of its venue projects, subsidiaries of Notes Live acquires land from municipalities, and in connection with those acquisitions enters into agreements with those municipalities or quasi-governmental authorities, such as economic development authorities. For example, Notes Live entered into a Development Agreement in connection with its proposed project in Murfreesboro, and a similar agreement in connection with its planned amphitheater project in Broken Arrow, that impose conditions of this nature on Notes Live. In connection with the acquisition of the land, these governmental entities and authorities impose various covenants and conditions on Notes Live, such as minimum capital investment obligations, requirements to hold a minimum number of annual events at a venue once construction is completed, and deadlines by which construction is to be completed. In the event Notes Live is unable to comply with these conditions, Notes Live may, in certain cases, be subject to monetary penalties or the various agreements with a municipality related to the development of a given project may be terminated. In either case, if a project is delayed or otherwise terminated, Notes Live’s interest in the property connected to that project would be terminated.

Notes Live will incur increased costs as a result of operating as a public company, and management will be required to devote substantial time to new compliance initiatives and corporate governance practices.

As a public company, and particularly after Notes Live is no longer an emerging growth company (or, to a lesser extent, a smaller reporting company), Notes Live will incur significant legal, accounting, and other expenses that the company did not incur as a private company. The Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the listing requirements of the NYSE American, and other applicable securities rules and regulations impose various requirements on public companies, including establishment and maintenance of effective disclosure and financial controls and corporate governance practices. We expect that Notes Live will likely need to hire additional accounting, finance, and other personnel in connection with Notes Live’s becoming, and Notes Live’s efforts to comply with the requirements of being, a public company, and Notes Live’s management and other personnel will need to devote a substantial amount of time towards maintaining compliance with these requirements. These requirements will increase Notes Live’s legal and financial compliance costs and will make some activities more time-consuming and costly. For example, Notes Live expects that the rules and regulations applicable to it as a public company may make it more difficult and more expensive for it to obtain director and officer liability insurance, which could make it more difficult for it to attract and retain qualified members of Notes Live’s Board of Directors. Notes Live is currently evaluating these rules and regulations and cannot predict or estimate the amount of additional costs Notes Live may incur or the timing of such costs. These rules and regulations are often subject to varying interpretations, in many cases due to their lack of specificity, and, as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies. This could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices.

Risks Related to Notes Live’s Industry and Current and Planned Operations

Notes Live’s ability to open new amphitheaters and venues on schedule and in accordance with targets may be adversely affected by delays or problems associated with acquisition and construction delays, recruiting and training qualified employees to operate the venues and by other factors, some of which are beyond Notes Live’s control and the timing of which is difficult to forecast accurately.

Notes Live’s goal is to open up to six additional venues in 2024 through 2026. To achieve that goal Notes Live must successfully acquire the underlying land, and then, among other things, oversee the construction of the improvements and build-out of those locations. Notes Live may not accurately predict the timing or ultimate success of its ability to timely open its proposed new venues. Delays encountered in negotiating, or the inability to finalize to Notes Live’s satisfaction, the development and installation of any necessary improvements may cause a significant variance in Notes Live’s financial targets. In addition, Notes Live’s anticipated schedule of opening any new venue may be adversely affected by other factors, some or all of which are beyond Notes Live’s control, including but not limited to the following:

•        The availability of adequate financing;

•        Delays in acquiring land and property rights;

•        The ability to secure governmental approvals and permits, including land-use approvals and building and operating permits, and any necessary licenses;

•        The ability to successfully and timely construct the applicable buildings and facilities;

•        Construction and development costs;

•        Costs overruns;

•        Labor shortages or disputes with outside contractors;

•        Any unforeseen engineering or environmental problems with venue location(s);

•        Resolution of any litigation or other regulatory proceedings that could serve to prolong the development or opening of any venue or facility, such as compliance with local noise ordinances, and complaints and concerns raised by local property owners;

•        The ability to hire, train and retain sufficient personnel;

•        The ability to successfully promote the new venues and compete in the market(s) in which they will be are located;

•        Weather conditions or natural disasters;

•        Criminal activity that affects Notes Live’s development and operations of venues; and

•        Local and general economic conditions.

Notes Live’s inability to open up to six new venues in 2024 through 2026 would adversely affect Notes Live’s projected results of operations and financial condition.

The success of Notes Live’s amphitheater and venue projects depends on the popularity of guest experiences at those venues, as well as Notes Live’s ability to attract advertisers, marketing partners, operating partners, audiences and artists to concerts at other events at those locations. If the Sunset amphitheaters, and other venues owned by Notes Live do not appeal to customers, or if Notes Live is unable to attract advertisers and marketing partners, there will be a material negative effect on the company’s business and results of operations.

The financial results of Notes Live planned amphitheater venues are largely dependent on the popularity of visitor experiences at our Sunset amphitheater(s), which are intended to provide a high-end experience to visitors. Notes Live has marketed its venues as being distinct from other amphitheaters and venues, and there is an inherent risk that Notes Live may be unable to achieve the level of success appropriate for the significant investment involved. Fan and consumer tastes also change frequently, and it is a challenge to anticipate what will be successful at any point in time. Should the popularity of Notes Live’s Sunset amphitheater venues not meet expectations, Notes Live’s revenues from ticket sales, and concession and merchandise sales would be adversely affected, and the company might not be able to replace the lost revenue with revenues from other sources. As a result of any of the foregoing, Notes Live may not be able to generate sufficient revenues to cover its costs, which could adversely impact its business and results of operations and the price of the company’s common stock.

Additionally, Notes Live’s amphitheater and entertainment venue focused business is dependent on its ability to attract advertisers and marketing partners to its signage, digital advertising and partnership offerings. Advertising revenues depend on a number of factors, such as the reach and popularity of Notes Live’s venue(s) (including risks around consumer reactions to advertisers and marketing partners), the health of the economy in the markets in which Notes Live’s venues are located and in the nation as a whole, general economic trends in the advertising industry and competition with respect to such offerings. Should the popularity of Notes Live’s advertising assets not meet expectations, its revenues would be adversely affected, and Notes Live might not be able to replace the lost revenue with revenues from other sources, which could adversely impact its business and results of operations and the price of its common stock

The success of Notes Live’s amphitheater and entertainment venue focused business will also depend upon its ability to offer and attract live entertainment that is popular with guests. While the company believes that its venues will enable new experiences for audiences in its markets, there can be no assurance that guests, artists, promoters, advertisers and marketing partners will embrace the company’s venues. Notes Live facilities will contract with promoters and others to provide performers and events at its venues. There may be a limited number of popular artists, groups or events that are willing to take advantage of the immersive experiences and next generation technologies (which cannot be re-used in other venues) or that can attract audiences to the Sunset amphitheater venues, and Notes Live’s business would suffer to the extent that that it is unable to attract such artists, groups and events willing to perform at its venues.

Notes Live is completing construction of its first outdoor amphitheater project in Colorado Springs. That facility, and future facilities, will require significant capital investments by Notes Live and there is no assurance that the venues will be successful.

Notes Live is progressing with its venue strategy to create, build and operate new music and entertainment-focused outdoor amphitheater venues — its Sunset collection. There is no assurance that this initiative will be successful. Notes Live is completing construction of its first Sunset amphitheater in Colorado Springs and is intending to open additional venues. The costs to develop and then build Sunset amphitheaters are substantial. It is

always difficult to provide a definitive construction cost estimate for large-scale construction projects. Notes Live’s estimates and projections may not prove wholly accurate as it rolls out additional venue projects across varying markets. In light of the design of the Sunset amphitheater, including the use of technologies and features that have are associated with many entertainment venues, the risk of delays and higher than anticipated costs are elevated. As Notes Live completes construction of its Colorado Springs amphitheater venue, which is expected to open in the summer of 2024, the Company may still face unexpected project delays and other complications.

Notes Live has not finalized certain plans and specifications for many of its proposed new venue locations, and as a result Notes Live’s costs may be higher than anticipated, resulting in possible additional capital requirements, additional debt, or less favorable operating results than projected.

Planning for the design and construction of Notes Live’s in-development or future Bourbon Brothers Presents, Bourbon Brothers Smokehouse & Tavern, and The Sunset Amphitheater venue locations is on-going. Until the final planning and development for each venue is complete, any cost estimates contained in Notes Live’s budget are subject to change. Since the company’s development costs have not yet been finalized for many of its on-going and planned projects, Notes Live may require additional capital in the form of shareholder contributions, additional debt or equity financing, or both. If Notes Live’s costs are higher than projected, the operating results contained in the company’s projections may be less favorable.

Potential development and construction delays could cause Notes Live’s estimate of future income, expenses, and development costs to be inaccurate.

Notes Live has fully developed and constructed each of its operating or under construction venues to date, and expects to do so for its planned new projects. Properties that require development and construction involve more risk than other properties, typically do not generate operating revenue while costs are incurred to develop the properties, and may also generate certain expenses such as property taxes and insurance costs. In addition, market conditions may change during the course of development that may make the plan of development less attractive than at the time it was conceived. Development activities include the risks that such projects may be abandoned after expending capital and other resources, the construction costs of such projects may exceed original estimates, and the construction of a property may not be completed on schedule. Development activities are also subject to risks relating to the inability to obtain, and delays in obtaining, all necessary entitlement, zoning, land-use, building, occupancy, and other required governmental permits and authorizations. Delays in construction will delay the opening of new venues. Management’s estimate of future income, expenses, and development costs that are necessary to allow Notes Live to market the Offering as originally intended may prove to be inaccurate. Contingencies in development activities beyond the control of Notes Live may occur.

If Notes Live fails to execute its business strategy, which includes identifying, acquiring and then developing new restaurant, amphitheater and entertainment venue locations, and opening locations that are profitable, the business could suffer.

Notes Live’s primary means of achieving growth objectives is opening and operating new and profitable restaurants and entertainment venues, and its outdoor amphitheaters. This strategy involves numerous risks, and Notes Live may not be able to open all planned new venues, and the new locations that do open may not be profitable or as profitable as existing locations.

A significant risk in executing Notes Live’s business strategy is locating, securing, and then profitably operating suitable new locations for restaurants and music venues. Many of the larger projects Notes Live has undertaken, and expects to undertake (being outdoor amphitheater projects), require a significant land footprint to locate the building, parking and other ancillary improvements. Locating, and then acquiring suitable sites is subject to numerous challenges, and there can be no assurance that Notes Live will be able to find sufficient suitable locations or negotiate suitable purchase or lease terms for planned expansion in any future period. Economic conditions may also reduce commercial development activity and limit the availability of attractive sites for new locations. New locations that open may experience an adjustment period before sales levels and operating margins normalize, and even sales at successful newly opened locations likely will not make a significant contribution to profitability in their initial months of operation. Notes Live’s ability to open and operate new locations successfully also depends on numerous other factors, some of which are beyond our control, including, among other items discussed in other risk factors, the following: ability to control construction and development costs of new

restaurants and venues; ability to manage the local, state or other regulatory approvals and permits, zoning and licensing processes in a timely manner; ability to appropriately train employees and staff the venues; consumer acceptance of venues in new markets; and ability to manage construction delays related to the opening of a new venue. Delays or failures in opening new locations or achieving lower than expected sales in new locations could materially adversely affect business strategy and could have an adverse effect on business and results of operations.

Expansion into new geographic markets may present increased risks due to relative unfamiliarity with these markets.

Certain new venues, amphitheater and restaurant locations may be in areas in which Notes Live has not previously had a presence. Those new markets may have different competitive conditions, consumer tastes, and discretionary spending patterns than current markets where Notes Live has operations, which may cause new locations to be less successful than restaurants and venues in Notes Live’s core market. An additional risk of expanding into new markets is the potential for lower or lacking market awareness of the Notes Live brand. Restaurants and venues opened in new markets may open at lower average weekly sales volumes than locations opened in Notes Live’s core market and may have higher facility-level operating expense ratios than in existing markets. Restaurants and venues opened in new markets may take longer to reach average unit volume and margins, if at all, thereby affecting our overall profitability.

The catastrophic loss of a facility could adversely affect business.

The catastrophic loss of any of Notes Live’s facilities, venues, or restaurant location due to unanticipated events, such as fires, an act of terrorism or violent weather, would likely reduce revenues during the affected period.

Notes Live’s operational costs may be greater than projected due to factors beyond Notes Live’s control that slow project development and may adversely impact Notes Live’s profitability.

The costs in the restaurant and music venue industries are often underestimated and may increase by reason of factors beyond Notes Live’s control. Such factors may include weather conditions, legal costs, labor disputes, governmental regulations, equipment breakdowns, property availability, governmental regulatory interference, insurance costs and other disruptions. While Notes Live intends to manage these costs diligently, the risk of running over budget is always significant and may have a substantial adverse impact on the profitability of Notes Live. In such event, additional sales of any of Notes Live’s equity securities or additional financing may be required to continue the business of Notes Live, and there can be no guarantee that Notes Live could successfully conclude such additional sales or obtain such additional financing at all or on terms that were acceptable to Notes Live, which could have a materially adverse effect on Notes Live and its operations.

Notes Live’s restaurants face intense competition, and if Notes Live is unable to continue to compete effectively, our business, financial condition, and results of operations would be adversely affected.

The restaurant industry is intensely competitive, and Notes Live faces many well-established competitors. Notes Live competes within each market with national and regional restaurant and retail chains and locally owned restaurants and retailers. Competition from other regional or national restaurant and retail chains typically represents the more important competitive influence, principally because of their significant marketing and financial resources. Notes Live also faces competition as a result of the convergence of grocery, deli, retail and restaurant services, particularly in the supermarket industry. It also faces competition from various off-premise meal replacement offerings including, but not limited to, home meal kits delivery, third party meal delivery and catering and the rapid growth of these channels by competitors. Moreover, competitors can harm business even if they are not successful in their own operations by taking away customers or employees through aggressive and costly advertising, promotions or hiring practices. Notes Live competes primarily on the quality, variety, and perceived value of menu and retail items. The number and location of restaurants, the growth of e-commerce, type of concept, quality and efficiency of service, attractiveness of facilities, and effectiveness of advertising and marketing programs also are important factors. Notes Live anticipates that intense competition will continue with respect to all of these factors. It also competes with other restaurant chains and other retail businesses for quality site locations, management and hourly employees, and other competitive pressures that could affect both the availability and cost of these important resources. If Notes Live is unable to continue to compete effectively, its business, financial condition, and results of operations would be adversely affected.

The entertainment business in which Notes Live operates is highly sensitive to customer tastes. The success of Notes Live’s business depends on Notes Live’s (and its partners’) ability to attract popular artists and other live events to its venues. Notes Live may be unable to anticipate or respond to changes in consumer preferences, which may result in decreased attendance at concerts and events hosted at Notes Live’s venues.

The success of Notes Live’s business depends, in part, upon its ability to offer live entertainment venues that are popular with customers. Moreover, Notes Live expects to rely, in part, on its partners (such as AEG and Live Nation) to book events and acts at Notes Live’s venues. There may be a limited number of popular artists, groups, or events that can attract audiences to venues and Notes Live’s business would suffer to the extent that it is unable to continue to attract such artists, groups, and events to perform at its venues.

Moreover, the live music industry competes with other forms of entertainment for consumers’ discretionary spending and within this industry Notes Live competes with other venues to book artists in the markets in which it currently (or plans to) promotes music concerts, Notes Live faces competition from other promoters and venue operators. Competitors compete with Notes Live for key employees who may have relationships with popular music artists and who have a history of being able to book such artists for concerts and tours. These competitors may engage in more extensive development efforts, undertake more far-reaching marketing campaigns, adopt more aggressive pricing policies, and make more attractive offers to existing and potential artists. Competitors may develop services, advertising options, or music venues that are equal or superior to those Notes Live provides or that achieve greater market acceptance and brand recognition. Across the live music industry, it is possible that new competitors may emerge and rapidly acquire a significant market share.

Notes Live’s success depends, in significant part, on entertainment and leisure events and economics, and other factors adversely affecting such events could have a material adverse effect on business, financial condition, and results of operations.

A decline in attendance at or reduction in the number of live entertainment and leisure events may have an adverse effect on revenue and operating income. In addition, during periods of economic slowdown and recession, many consumers have historically reduced their discretionary spending and advertisers have reduced their advertising expenditures. The impact of economic slowdowns on business is difficult to predict, but they may result in reductions in ticket sales, sponsorship opportunities and Notes Live’s ability to generate revenue. The risks associated with Notes Live’s businesses may become more acute in periods of a slowing economy or recession, which may be accompanied by a decrease in attendance at live entertainment, sporting, and leisure events. Many of the factors affecting the number and availability of live entertainment and leisure events are beyond Notes Live’s control. Notes Live’s success depends, in significant part, on entertainment and leisure events and economic and other factors adversely affecting such events could have a material adverse effect on business, financial condition and results of operations. A decline in attendance at or reduction in the number of live entertainment and leisure events may have an adverse effect on revenue and operating income. In addition, during periods of economic slowdown and recession, many consumers have historically reduced their discretionary spending and advertisers have reduced their advertising expenditures. The impact of economic slowdowns on business is difficult to predict, but they may result in reductions in ticket sales, sponsorship opportunities and Notes Live’s ability to generate revenue. The risks associated with its businesses may become more acute in periods of a slowing economy or recession, which may be accompanied by a decrease in attendance at live entertainment, sporting, and leisure events.

Notes Live’s business depends on discretionary consumer and corporate spending, which may be impacted by market volatility and challenging economic conditions.

Many factors related to corporate spending and discretionary consumer spending, including economic conditions affecting disposable consumer income, unemployment levels, fuel prices, interest rates, changes in tax rates and tax laws that impact companies or individuals, and inflation can significantly impact Notes Live’s operating results. Business conditions, as well as various industry conditions, including corporate marketing and promotional spending and interest levels, can also significantly impact Notes Live’s operating results. These factors can affect attendance at Notes Live’s events, sponsorship, advertising and hospitality spending, concession and merchandise sales, as well as the financial results of any sponsors of Notes Live’s venues, events, and the industry. Negative factors such as challenging economic conditions and public concerns over terrorism and security incidents, particularly when combined, can impact corporate and consumer spending, and one negative factor may impact

Notes Live’s results more than another. There can be no assurance that consumer and corporate spending will not be adversely impacted by current economic conditions, or by any future deterioration in economic conditions, thereby possibly impacting Notes Live’s operating results and growth.

Portions of Notes Live’s business are subject to seasonal fluctuations and its operating results and cash flow likely will vary from period to period.

A significant portion of Notes Live’s future growth projections stem from the suite of outdoor amphitheaters it intends to operate. Those venues will hold larger, and more consistent events in the second and third fiscal quarters. As a result Notes Live’s revenues and expenses are expected to be seasonal in nature and operating results and cash flow likely will reflect significant variation from period to period. Consequently, period-to-period comparisons of our operating results may not necessarily be meaningful and the operating results of one period are not indicative of our financial performance during a full fiscal year. This variability may adversely affect Notes Live’s business, results of operations and financial condition.

Poor weather adversely affects attendance at live music events, which could negatively impact Notes Live’s financial performance from period to period.

A significant portion of Notes Live’s business is the hosting and promotion of live music events. Weather conditions surrounding these events affect sales of tickets, concessions, and merchandise, among other things. Poor weather conditions can have a material impact on results of operations particularly because Notes Live can only promote and/or ticket a finite number of events. Increased weather variability due to climate change exacerbates weather-related issues. Due to weather conditions, Notes Live may be required to cancel or reschedule an event to another available day or a different venue, which would increase costs for the event and could negatively impact the attendance at the event as well as concession and merchandise sales. Poor weather can affect current periods as well as successive events in future periods.

There is the risk of personal injuries and accidents in connection with live music events, which could subject Notes Live to personal injury or other claims and increase expenses, as well as reduce attendance at its live music events, causing a decrease in revenue.

There are inherent risks involved with organizing and producing live music (and other entertainment) events. As a result, personal injuries and accidents may occur in the future, from time to time, which could subject Notes Live to claims and liabilities for personal injuries. Incidents in connection with Notes Live’s live music events at any of its venues that its owns or rents could also result in claims, reducing operating income or reducing attendance at its events, which could cause a decrease in revenue. In addition, while Notes Live has security protocols in place at its events, illegal drug use or alcohol consumption at events could result in negative publicity, adverse consequences (including illness, injury, or death) to the persons engaged in such activities or others, and litigation against Notes Live. While Notes Live maintains insurance policies that provide coverage within limits that are sufficient, in management’s judgment, to protect it from material financial loss for personal injuries sustained by persons at its venues or events or accidents in the ordinary course of business, there can be no assurance that such insurance will be adequate at all times and in all circumstances.

The sale of food and prepared food products for human consumption involves the risk of injury to customers.

Such injuries may result from tampering by unauthorized third parties, product contamination or spoilage, including the presence of foreign objects, substances, chemicals, other agents, or residues introduced during the growing, storage, handling, and transportation phases. Additionally, many of the food items on the restaurants Notes Live owns contain beef and chicken. The preferences of customers toward beef and chicken could be affected by changes in consumer health or dietary trends and preferences regarding meat consumption or health concerns and publicity concerning food quality, illness, and injury generally. In recent years there has been publicity concerning E. Coli bacteria, hepatitis A, “mad cow” disease, “foot-and-mouth” disease, salmonella, African swine fever, peanut and other food allergens, and other public health concerns affecting the food supply, including beef, chicken, pork, dairy and eggs. In addition, government regulations or the likelihood of government regulation could increase the costs of obtaining or preparing food products. A decrease in guest traffic to venues, a change in mix of products sold or an increase in costs as a result of these health concerns either in general or specific to operations could result in a decrease in sales or higher costs to venues that would materially harm business.

The price and availability of food, ingredients, retail merchandise, transportation, distribution, and utilities used by Notes Live’s venues could adversely affect revenues and results of operations.

Notes Live is subject to the general risks of inflation, and Notes Live’s operating profit margins and results of operations depend significantly on its ability to anticipate and react to changes in the price, quality and availability of food and other commodities, ingredients, retail merchandise, transportation, distribution, utilities, and other related costs over which Notes Live has limited control. Fluctuations in economic conditions, weather, demand, and other factors affect the availability, quality and cost of the ingredients and products that Notes Live buys. Furthermore, many of the products that Notes Live uses and their costs are interrelated. Changes in global demand for corn, wheat and dairy products could cause volatility in the feed costs for poultry and livestock. The effect of, introduction of, or changes to tariffs or exchange rates on imported retail products or food products could increase costs and possibly affect the supply of those products. Changes in demand for over the road transportation and distribution services could cause volatility, increase costs, and affect operating margins. In addition, food safety concerns, widespread outbreaks of livestock and poultry diseases, such as, among other things, the avian flu and African swine fever, and product recalls, all of which are out of Notes Live’ control, and, in many instances, unpredictable, could also increase costs and possibly affect the supply of livestock and poultry products. Notes Live’s operating margins are also affected, whether as a result of general inflation or otherwise, by fluctuations in the price of utilities such as natural gas and electricity, on which Notes Live’s locations depend for much of their energy supply. Notes Live’s inability to anticipate and respond effectively to one or more adverse changes in any of these factors could have a significant adverse effect on its results of operations. In addition, because it provides a moderately priced product, Notes Live may not seek to or be able to pass along price increases to its customers sufficient to completely offset cost increases.

Notes Live and its venues may be adversely affected by the occurrence of extraordinary events, such as terrorist attacks or disease epidemics.

The occurrence and threat of extraordinary events, such as terrorist attacks, intentional or unintentional mass-casualty incidents, public health concerns such as contagious disease outbreaks, natural disasters, or similar events, may deter artists from touring and/or substantially decrease the use of and demand for services and the attendance at live music events, which may decrease revenue or expose Notes Live to substantial liability. The terrorism and security incidents in the past, military actions in foreign locations, periodic elevated terrorism alerts and fears from publicized contagious disease outbreaks have raised numerous challenging operating factors, including public concerns regarding air travel, military actions and additional national or local catastrophic incidents, causing a nationwide disruption of commercial and leisure activities.

In the event of actual or threatened terrorism events, some artists may refuse to travel or book tours, which could adversely affect business. Attendance at events may decline due to fears over terrorism and contagious disease outbreaks, which could adversely impact operating results. While it is constantly evaluating the security precautions for events in an effort to ensure the safety of the public, no security measures can guarantee safety and there can be no assurances that it won’t face liabilities, which could be substantial and materially impact our operating results, in connection with such terrorist attacks at events.

While Notes Live has health and safety programs designed to mitigate the risks that are inherent in the staging of concerts and other events, as well as those associated with extraordinary occurrences or actions that may take place at events, there can be no assurances that these programs will be sufficient to fully cover every possibility. Despite Notes Live’s best efforts, some occurrences or actions are difficult to foresee and adequately plan for, which could lead to fan, vendor and/or employee harm resulting in fines, penalties, legal costs, and reputational risk that could materially and adversely impact business and results of operations.

Health concerns, government regulation relating to the consumption of food products and widespread infectious diseases could affect consumer preferences and could negatively affect results of operations.

Much like the COVID-19 pandemic, the United States and other countries have experienced, or may experience in the future, outbreaks of other viruses, such as norovirus, the bird/avian flu, or other diseases. As experienced with the COVID-19 pandemic, if a regional or global health pandemic occurs, depending upon its location, duration and severity, business could be severely affected. In the event a health pandemic occurs, customers might avoid public places, and local, regional, or national governments might limit or ban public gatherings to

CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS

This proxy statement/prospectus contains forward-looking statements (including within the meaning of Section 21E of the Exchange Act and Section 27A of the Securities Act) concerning, among other things, the following:

•        the expected benefits of, and potential value created by, the merger for the Fresh Vine stockholders and Notes Live stockholders;

•        the likelihood of the satisfaction of certain conditions to the completion of the merger and whether and when the merger will be completed and the listing of the Fresh Vine common stock to be issued on the NYSE American;

•        the expected number of Fresh Vine securities included in the fully diluted number of outstanding shares of Fresh Vine common stock for purposes of calculating the exchange ratio;

•        any statements of the plans, strategies and objectives of management for future operations, including the execution of integration plans and the anticipated timing of filings;

•        any statements concerning the attraction and retention of highly qualified personnel;

•        any statements concerning the combined company’s projected financial performance;

•        any statements regarding expectations concerning Fresh Vine’s or Notes Live’s relationships and actions with third parties; and

•        future regulatory, judicial and legislative changes in Fresh Vine’s or Notes Live’s industry.

These forward-looking statements should not be relied upon as predictions of future events as Fresh Vine and Notes Live cannot assure you that the events or circumstances reflected in these statements will be achieved or will occur. You can identify forward-looking statements by the use of forward-looking terminology including “believes,” “expects,” “may,” “will,” “should,” “seeks,” “intends,” “plans,” “pro forma,” “estimates,” or “anticipates” or the negative of these words and phrases or other variations of these words and phrases or comparable terminology. All statements other than statements of historical fact are statements that could be deemed forward-looking statements. The events and circumstances reflected in forward-looking statements may not be achieved or occur and actual results could differ materially from those contained in any forward-looking statement as a result of various factors, including, without limitation:

•        Fresh Vine stockholders and Notes Live shareholders may not realize a benefit from the merger commensurate with the ownership dilution they will experience in connection with the merger.

•        Failure to complete the merger may result in either us or Notes Live paying a termination fee to the other party and could significantly harm the market price of our common stock and negatively affect the future business and operations of each company.

•        The issuance of Fresh Vine’s common stock to Notes Live’s shareholders pursuant to the Merger Agreement and the resulting change in control from the merger must be approved by Fresh Vine’s stockholders, and the Merger Agreement and transactions contemplated thereby must be approved by Notes Live’s shareholders. Failure to obtain these approvals would prevent the closing of the merger.

•        Because the lack of a public market for Notes Live common stock makes it difficult to evaluate the value of Notes Live common stock, the Notes Live shareholders may receive shares of Fresh Vine common stock in the Merger that have a value that is less than, or greater than, the fair market value of Notes Live common stock.

•        If the conditions to the merger are not satisfied or waived, the merger will not occur.

•        Our ability to complete the Fresh Vine legacy transaction is uncertain, and we cannot predict the terms and conditions of any such Fresh Vine legacy transaction, including the consideration that we may receive.

•        Lawsuits may be filed in the future against us and the members of our board of directors arising out of the proposed merger, which may delay or prevent the proposed merger.

•        The proposed reverse stock split may not increase the combined company’s stock price over the long-term or may decrease the liquidity of the combined company’s common stock.

•        If the merger is not completed, Fresh Vine’s board of directors may decide to pursue a dissolution of Fresh Vine. In a dissolution, there can be no assurances as to the amount or timing of available cash, if any, to distribute to Fresh Vine’s stockholders after paying debts and other obligations and setting aside funds for reserves.

•        Fresh Vine will require additional debt and/or equity capital to pursue business objectives and respond to business opportunities, challenges, or unforeseen circumstances. If such capital is not available to Fresh Vine, its business, financial condition, and results of operations may be materially and adversely affected.

•        In addition to litigation that may arise from time to time in the ordinary course of business, Fresh Vine has been engaged in litigation with its former Chief Operating Officer.

•        Fresh Vine’s failure to maintain continued compliance with the listing requirements of the NYSE American exchange could result in the delisting of Fresh Vine common stock.

•        If Fresh Vine common stock becomes subject to the penny stock rules, it would become more difficult to trade such shares.

•        Fresh Vine incurs significant legal, accounting, and other expenses associated with public company reporting requirements and corporate governance requirements.

•        As a result of being a public company, Fresh Vine is obligated to develop and maintain proper and effective internal control over financial reporting and any failure to maintain the adequacy of these internal controls may negatively impact investor confidence in Fresh Vine and, as a result, the value of its common stock.

•        The percentage ownership in Fresh Vine may be diluted by future issuances of capital stock, which could reduce your influence over matters on which stockholders vote.

•        Notes Live will likely require additional capital to support its business plan and potential growth, and this capital might not be available on favorable terms, or at all.

•        Notes Live has incurred net losses in recent years and anticipates that we will continue to incur net losses for the near-term future and may never achieve profitability.

•        Notes Live’s business plan is based on numerous assumptions and projections that may not prove accurate.

•        Notes Live debt obligations may adversely affect cash flow and impose restrictions on the ability to operate its business.

•        The agreements under which Notes Live acquired and holds certain of its real property assets impose significant obligations on Notes Live and impose conditions for Notes Live to develop a project and otherwise continue to own and hold that real property.

•        Notes Live will incur increased costs as a result of operating as a public company, and management will be required to devote substantial time to new compliance initiatives and corporate governance practices.

•        Various risks related to Notes Live’s industry and current and planned operations.

The foregoing risks should not be construed as exhaustive and should be read in conjunction with statements that are included herein and elsewhere. Fresh Vine and Notes Live can give no assurance that the conditions to the merger will be satisfied. For further discussion of the factors that may cause Fresh Vine, Notes Live or the combined company’s actual results, performance or achievements to differ materially from any future results, performance or achievements expressed or implied in such forward-looking statements, or for a discussion of risks associated with the ability of Fresh Vine and Notes Live to complete the merger and the effect of the merger on the business of Fresh Vine, Notes Live and the combined company, see the section entitled “Risk Factors” beginning on page 23 of this proxy statement/prospectus.

Additional factors that could cause actual results to differ materially from those expressed in the forward-looking statements are discussed in reports filed with the SEC by Fresh Vine. See the section entitled “Where You Can Find More Information” on page 229 of this proxy statement/prospectus.

If any of these risks or uncertainties materialize or any of these assumptions prove incorrect, the results of operations of Fresh Vine, Notes Live or the combined company could differ materially from the forward-looking statements. All forward-looking statements in this proxy statement/prospectus are current only as of the date of this proxy statement/prospectus. Fresh Vine and Notes Live do not undertake any obligation to publicly update any forward-looking statement to reflect events or circumstances after the date on which any statement is made, the occurrence of unanticipated events or any new information that becomes available in the future.

THE SPECIAL MEETING OF FRESH VINE STOCKHOLDERS

Date, Time and Place

The Fresh Vine special meeting will be held on [•], 2024, at [•], commencing at [•] [a.m./p.m.], Eastern Time. Fresh Vine is sending this proxy statement/prospectus to Fresh Vine stockholders in connection with the solicitation of proxies by the Fresh Vine board of directors for use at the Fresh Vine special meeting and any adjournments or postponements of the Fresh Vine special meeting. This proxy statement/prospectus is first being furnished to Fresh Vine stockholders on or about [•], 2024.

Purposes of the Fresh Vine Special Meeting

The purposes of the Fresh Vine special meeting are:

1.      To vote on a proposal to approve, for purposes of NYSE American Company Guide Section 712(b), the issuance of shares of Fresh Vine common stock, $0.001 par value per share, or Fresh Vine common stock, to stockholders of Notes Live pursuant to the terms of the Agreement and Plan of Merger, dated as of January 25, 2024, or the Merger Agreement, by and among Fresh Vine, Merger Sub and Notes Live, a copy of which is attached as Annex A to the accompanying proxy statement/prospectus, and, for purposes of NYSE American Company Guide Section 713(b), the change of control of Fresh Vine resulting from the merger (the “Merger Proposal”);

2.      To vote on a proposal to approve an amendment to the articles of incorporation of Fresh Vine, or the Fresh Vine Articles of Incorporation, changing the Fresh Vine corporate name to “Notes Live Holding Corp.” in the form attached as Annex B to the accompanying proxy statement/prospectus (the “Name Change Proposal”);

3.      To vote upon a proposal to approve an amendment to the Fresh Vine Articles of Incorporation to (a) effect a reverse stock split of the issued and outstanding shares of Fresh Vine common stock, at a ratio in the range of 1-for-[•] to 1-for-[•], with such ratio and implementation and timing of the reverse stock split to be determined in the discretion of the Fresh Vine board of directors and as agreed to by Notes Live at or prior to the closing of the merger, and (b) if and when the reverse stock split is effected, establish the number of authorized shares of Fresh Vine common stock at 150,000,000, in the form attached as Annex C to the accompanying proxy statement/prospectus (the “Reverse Split Proposal”);

4.      To vote upon a proposal to approve, for purposes complying with Section 713(a) and Section 713(b) of the NYSE American Company Guide, the issuance upon conversion or exchange of Fresh Vine’s Series A Convertible Preferred Stock of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of the Series A Convertible Preferred Stock (the “Series A Preferred Stock Conversion Proposal”);

5.      To vote upon a proposal to approve, for purposes complying with Section 713(a) and Section 713(b) of the NYSE American Company Guide, the issuance upon conversion or exchange of the Series B Convertible Preferred Stock of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Series B Convertible Preferred Stock (the “Series B Preferred Stock Conversion Proposal”);

6.      To vote on a proposal to approve, pursuant to Section 78.565 of the Nevada Revised Statutes, the sale of the assets comprising the Fresh Vine legacy wine production business, which sale is a condition to the closing of the transactions contemplated by the Merger Agreement and may be considered to be a sale of all of the Company’s property and assets (the “Legacy Business Sale Proposal”);

7.      To vote on a proposal to amend the Fresh Vine 2021 Equity Incentive Plan to increase the total number of shares of Fresh Vine common stock available for issuance under that plan pursuant to future awards to 5,000,000 shares (after giving effect to the reverse stock split) (the “Equity Plan Amendment Proposal”);

8.      To vote upon a proposal to approve an adjournment of the Fresh Vine special meeting, if necessary, to solicit additional proxies if there are not sufficient votes in favor of Proposal Nos. 1, 2, 3, 4, 5, 6 and 7 (the “Adjournment Proposal”); and

9.      To transact such other business as may properly come before the Fresh Vine special meeting or any adjournment or postponement thereof.

Recommendation of the Fresh Vine Board of Directors

The Fresh Vine board of directors has determined and believes that each of the proposals outlined above is advisable to, and in the best interests of, Fresh Vine and its stockholders and has approved each such proposal. The Fresh Vine board of directors unanimously recommends that Fresh Vine stockholders vote “FOR” each such proposal.

Record Date and Voting Power

The Fresh Vine board of directors has fixed [•], 2024 as the record date for the determination of Fresh Vine stockholders entitled to notice of, and to vote at, the Fresh Vine special meeting and any adjournment or postponement thereof, or the record date. Only Fresh Vine stockholders of record, including holders of Fresh Vine’s common stock and Fresh Vine Preferred Stock, at the close of business on the record date are entitled to notice of, and to vote at, the Fresh Vine special meeting. At the close of business on the record date, [•] shares of Fresh Vine common stock, [•] shares of Series A Convertible Preferred Stock and [•] shares of Series B Convertible Preferred Stock were issued and outstanding.

Each share of Fresh Vine common stock entitles the holder thereof to one vote on each matter submitted for stockholder approval.

On August 2, 2023, Fresh Vine entered into a Securities Purchase Agreement with two accredited investors pursuant to which Fresh Vine agreed to issue and sell shares of Series A Convertible Preferred Stock. The investors, collectively, purchased 4,000 shares of Series A Convertible Preferred Stock at an initial closing (the “Initial Closing”) that occurred on August 2, 2023, purchased an additional 4,000 shares of Series A Convertible Preferred Stock at a second closing (the “Second Closing”) that occurred on September 7, 2023, and purchased an additional 2,000 shares of Series A Convertible Preferred Stock at a third closing (the “Third Closing”) that occurred on December 1, 2023. The rights and preferences of the Series A Preferred Stock are set forth in the Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock, as amended, filed as exhibits to our Current Report on Form 8-K filed with the Securities and Exchange Commission on August 2, 2023.

On March 14, 2024, Fresh Vine designated 50,000 shares of its preferred stock Series B Preferred Stock, which may be issued by Fresh Vine. The rights and preferences of the Series B Preferred Stock are set forth in the Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock filed as an exhibit to Fresh Vine’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 20, 2024. Fresh Vine’s board of directors has approved the issuance and sale of up to 20,000 shares of Series B Convertible Preferred Stock for a purchase price equal to $100.00 per share. As of March 28, 2024, Fresh has received subscriptions from accredited investors for the purchase of a total of 940 shares of Fresh Vine’s Series B Convertible Preferred Stock. The total number of shares of Series B Convertible Preferred Stock that Fresh Vine will issue and sell has not been finally determined.

The holders of Fresh Vine Preferred Stock are entitled to vote as a single class with the holders of Fresh Vine common stock on all matters submitted to a vote of stockholders of Fresh Vine; provided, however, that, in accordance with the NYSE American LLC Company Guide, (i) the holders of Series A Convertible Preferred Stock are not entitled to vote their shares of Series A Convertible Preferred Stock on any proposal to approve the issuance of Fresh Vine common stock upon conversion of Series A Convertible Preferred Stock in excess of the Exchange Share Cap or the Individual Holder Share Cap as discussed below (a “Series A Preferred Stock Conversion Proposal”)(and shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of or as a dividend on Series A Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of such Series A Preferred Stock Conversion Proposal), and (ii) the holders of Series B Convertible Preferred Stock are not entitled to vote their shares of Series B Convertible Preferred Stock on any proposal to approve the issuance of Fresh Vine common stock upon conversion of Series B Convertible Preferred Stock in excess of the Exchange Share Cap or the Individual Holder Share Cap as discussed below (a “Series B Preferred Stock Conversion Proposal”).

The shares of Fresh Vine Preferred Stock vote on an adjusted as-converted to common stock basis. For purposes of determining voting rights, (i) each share of Fresh Vine’s Series A Convertible Preferred Stock is convertible into the number of shares common stock (“Conversion Shares”) calculated by dividing the “Stated Value” of $100.00 (plus the amount of accrued dividends on such shares of Series A Convertible Preferred Stock) by an assumed conversion price of $0.47, taking into account (if applicable) the conversion limitations resulting from the Exchange Share Cap and the Individual Holder Share Cap described below, and (ii) each share of Fresh Vine’s Series B Convertible Preferred Stock is convertible into the number of shares common stock (“Conversion Shares”) calculated by dividing the “Stated Value” of $100.00 by an assumed conversion price equal to the most recent closing sale price of Fresh Vine common stock as of the execution and delivery of the securities purchase agreement or other subscription or similar agreement pursuant to which such share of Series B Convertible Preferred Stock was issued by Fresh Vine, taking into account (if applicable) the conversion limitations resulting from the Exchange Share Cap and the Individual Holder Share Cap described below. Under the “Exchange Share Cap,” (i) the total number of shares of common stock issuable upon conversion of outstanding shares of Series A Convertible Preferred Stock (when added to any shares of common stock previously issued in respect of accrued dividends on the Fresh Vine Preferred Stock), may not exceed 3,179,269 shares (which represents 19.9% of Fresh Vine’s issued and outstanding common stock immediately prior to the date on which shares Series A Convertible Preferred Stock were first issued), and (ii) the total number of shares of common stock issuable upon conversion of outstanding shares of Series B Convertible Preferred Stock) may not exceed 19.9% of Fresh Vine’s issued and outstanding common stock immediately prior to the date on which shares Series B Convertible Preferred Stock are first issued. Under the Individual Holder Share Cap, no holder of Fresh Vine Preferred Stock may acquire Conversion Shares if the issuance thereof would result in the converting holder beneficially owning in excess of 19.9% of the number of shares of Fresh Vine common stock outstanding immediately after giving effect to the issuance.

As of the record date (and taking into account the amount of accrued dividends on the Series A Convertible Preferred Stock and the conversion restrictions discussed above), (1) each share of Series A Convertible Preferred Stock issued at the First Closing is entitled to [•] votes on each matter to be voted upon at the Fresh Vine special meeting, except for Proposal No. 4 (the Series A Preferred Stock Conversion Proposal), (2) each share of Series A Convertible Preferred Stock issued at the Second Closing is entitled to [•] votes on each matter to be voted upon at the Fresh Vine special meeting, except for Proposal No. 4, (3) each share of Series A Convertible Preferred Stock issued at the Third Closing is entitled to [•] votes on each matter to be voted upon at the Fresh Vine special meeting, except for Proposal No. 4, and (4) each share of Series B Convertible Preferred Stock is entitled to a number of votes on each matter to be voted upon at the Fresh Vine special meeting, except for Proposal No. 5 (the Series B Preferred Stock Conversion Proposal), equal to the number of shares of Fresh Vine common stock is convertible based on an assumed conversion price equal to the most recent closing sale price of the Fresh Vine common stock as of the execution and delivery of the securities purchase agreement or other subscription or similar agreement pursuant to which such share of Series B Stock was issued by Fresh Vine.

Voting and Revocation of Proxies

The proxy accompanying this proxy statement/prospectus is solicited on behalf of the Fresh Vine board of directors for use at the Fresh Vine special meeting.

If you are the “record holder” of your shares, meaning that you own your shares in your own name and not through a broker, bank or other nominee, you may vote in one of three ways prior to the Fresh Vine special meeting:

•        You may vote over the internet.    You may vote your shares by following the instructions in the enclosed proxy card.

•        You may vote by telephone.    You may vote your shares by following the instructions in the enclosed proxy card.

•        You may vote by mail.    You may vote by completing, dating and signing the enclosed proxy card and promptly mailing it in the postage-paid envelope provided.

You may also vote during the Fresh Vine special meeting.

All proxies that are executed or are otherwise submitted over the internet or by telephone will be voted on the matters set forth in this proxy statement in accordance with the stockholders’ instructions. However, if no choice is specified on a proxy as to one or more of the proposals, the proxy will be voted in accordance with the Fresh Vine board of directors’ recommendations on such proposals as set forth in this proxy statement/prospectus.

After you have submitted a proxy, you may still change your vote and revoke your proxy by doing any one of the following things:

•        submitting a new proxy via the internet or telephone by following the instructions on the enclosed proxy card;

•        signing another proxy card and arranging for delivery of that proxy card by mail by [•], Eastern time, the day before the Fresh Vine special meeting;

•        giving Fresh Vine’s Corporate Secretary a written notice before the Fresh Vine special meeting that you want to revoke your proxy; or

•        voting during the Fresh Vine special meeting. Your attendance at the Fresh Vine special meeting alone will not revoke a previously submitted proxy.

Fresh Vine will count your vote in accordance with the last instruction Fresh Vine receives from you prior to the closing of the polls, whether your instruction is received by internet, telephone, mail, or at the Fresh Vine special meeting.

Shares Held in “Street Name”

If the shares of Fresh Vine common stock you own are held in “street name” by a broker, bank or other nominee, then that broker, bank or other nominee, as the record holder of your shares of Fresh Vine common stock, is required to vote your shares of Fresh Vine common stock according to your instructions. In order to vote your shares of Fresh Vine common stock, change your vote or revoke your instructions, you will need to follow the directions your broker, bank or other nominee provides you. Many brokers, banks or other nominees also offer the option of providing for voting over the internet or by telephone, instructions for which, if available, would be provided by such broker, bank or other nominee on the voting instruction form that it delivers to you.

If you do not give instructions to your broker, bank or other nominee, such nominee can vote your shares of Fresh Vine common stock with respect to “discretionary” items but not with respect to “non-discretionary” items. Discretionary items are proposals considered routine under certain rules applicable to brokers and on which your broker may vote shares of Fresh Vine common stock held in “street name” in the absence of your voting instructions. On non-discretionary items for which you do not give your broker instructions, your shares of Fresh Vine common stock will be treated as broker non-votes. It is anticipated that Proposal Nos. 1, 4, 5, 6 and 7 will be non-discretionary. To make sure that your vote is counted, you should instruct your broker to vote your shares, following the procedures provided by the institution that holds your shares.

If your shares are held in “street name,” you are also invited to attend and vote your shares of Fresh Vine common stock at the Fresh Vine special meeting. To vote at the Fresh Vine special meeting, you must obtain a valid legal proxy from your broker, bank, or other agent. Follow the instructions from your broker or bank included with these proxy materials or contact your broker or bank to request a proxy form.

Required Vote

A quorum of Fresh Vine stockholders is necessary to hold a valid meeting. A quorum will be present if Fresh Vine stockholders holding at least a majority of the voting power of the outstanding Fresh Vine shares entitled to vote are deemed present at the Fresh Vine special meeting in person or represented by proxy. Abstentions and broker non-votes will be treated as shares present for the purpose of determining the presence of a quorum for the transaction of business at the Fresh Vine special meeting.

Approval of Proposal Nos. 1, 7 and 8 each requires the affirmative vote of the holders of a majority of the voting power of the shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting. The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record date is required for approval of Proposal Nos. 2, 3 and 6. The affirmative vote of the holders of a majority of the shares of Fresh Vine common stock and Series B Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal No. 4. The holders of Fresh Vine Series A Convertible Preferred Stock are not entitled to vote their shares of Fresh Vine Series A Convertible Preferred Stock on Proposal No. 4, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of or as a dividend on Fresh Vine Series A Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of Proposal No. 4. The affirmative vote of the holders of a majority of the shares of Fresh Vine common stock and Series A Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal No. 5. The holders of Fresh Vine Series B Convertible Preferred Stock are not entitled to vote their shares of Fresh Vine Series B Convertible Preferred Stock on Proposal No. 5, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of Fresh Vine Series B Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of Proposal No. 5.

Votes will be counted by the inspector of election appointed for the Fresh Vine special meeting, who will separately count “FOR” and “AGAINST” votes, abstentions and broker non-votes. Abstentions and broker non-votes will have the same effect as “AGAINST” votes for Proposal Nos. 2, 3 and 6, but will have no effect on the outcome of Proposal Nos. 1, 4, 5, 7 and 8. Proposal Nos. 2, 3 and 8 are matters on which Fresh Vine expects brokers, banks or other nominees to have authority to vote uninstructed shares and, therefore, broker non-votes are not expected with respect to these proposals.

Each of Proposals Nos. 1, 2, 3, 6 and 7 are conditioned upon the approval of each such proposal and the approval of Proposal Nos. 4 and 5, and the approval of Proposal Nos. 1, 2, 3, 4, 5 and 6 is a condition to the completion of the merger. Therefore, the merger cannot be consummated without the approval of Proposal Nos. 1, 2, 3, 4, 5 and 6. Proposal Nos. 4 and 5 are not conditioned on the approval of any other proposal.

Solicitation of Proxies

In addition to solicitation by mail, the directors, officers, employees and agents of Fresh Vine and Notes Live may solicit proxies from Fresh Vine stockholders by personal interview, telephone or otherwise. Fresh Vine also may be required to reimburse brokers, banks and other custodians, nominees and fiduciaries or their respective agents for reasonable expenses incurred in forwarding proxy materials to beneficial owners of Fresh Vine capital stock.

Other Matters

As of the date of this proxy statement/prospectus, the Fresh Vine board of directors does not know of any business to be presented at the Fresh Vine special meeting other than as set forth in the notice accompanying this proxy statement/prospectus. If any other matters should properly come before the Fresh Vine special meeting, it is intended that the shares of Fresh Vine common stock represented by proxies will be voted with respect to such matters in accordance with the judgment of the persons voting the proxies.

THE MERGER

This section and the section entitled “The Merger Agreement” in this proxy statement/prospectus describe the material aspects of the merger, including the Merger Agreement. While Fresh Vine and Notes Live believe that this description covers the material terms of the merger and the Merger Agreement, it may not contain all of the information that is important to you. You should read carefully this entire proxy statement/prospectus for a more complete understanding of the merger and the Merger Agreement, attached as Annex A, and the other documents to which you are referred herein. See the section entitled “Where You Can Find More Information” on page 229 of this proxy statement/prospectus.

Background of the Merger

In connection with Fresh Vine’s ongoing evaluation of its long-term prospects, Fresh Vine’s senior management and board of directors assesses Fresh Vine’s business objectives and strategies, in light of several factors, including the macroeconomic and industry climate and expectations, all with the goal of enhancing long-term value for Fresh Vine’s shareholders. As a part of this review, Fresh Vine’s senior management and board of directors considered and evaluated various strategic alternatives, including performance improvement, capital allocation, organic growth, acquisitions and business combination transactions.

Fresh Vine has incurred losses and negative cash flows from operations since its inception in May 2019. For example, the report of the independent registered public accounting firm on the financial statements for the fiscal year ended December 31, 2023 included an explanatory paragraph indicating that there is substantial doubt as to our ability to continue as a going concern for twelve months from the financial statement issuance date. Similarly, the report of Fresh Vine’s independent registered public accounting firm on its financial statements for the fiscal years ended December 31, 2022 and 2021, included in the prospectus for Fresh Vine’s initial public offering, included an explanatory paragraph indicating that there is substantial doubt as to the company’s ability to continue as a going concern for twelve months from the financial statement issuance date.

Fresh Vine’s now former officers and directors resigned from those positions or otherwise ceased to be employed by the company during 2023. On July 19, 2023 Fresh Vine appointed Michael Pruitt to serve as Interim Chief Executive Officer and as the company’s non-executive chair, and Keith Johnson to serve as its Interim Chief Financial Officer. Fresh Vine’s business faced headwinds resulting from its former management and from business model challenges.

During 2023 Fresh Vine received notices from NYSE American LLC that the company was not in compliance with certain NYSE American continued listing standards, including with respect to stockholders’ equity. Specifically, Fresh Vine was deemed not in compliance with the continued listing standard set forth in Section 1003(a)(ii) of the NYSE American Company Guide (the “Company Guide”), which requires that a listed company have stockholders’ equity of at least $4 million if the company has reported losses from continuing operations and/or net losses in three of its four most recent fiscal years. Notes Live reported stockholders’ equity of $2.4 million as of June 30, 2023, the end of its second fiscal quarter of 2023, and has had losses from continuing operations and/or net losses in each of its fiscal years ended December 31, 2020, 2021 and 2022. As a result, Fresh Vine became subject to the procedures and requirements of Section 1009 of the Company Guide and was required to submit a plan to NYSE American addressing how Fresh Vine intends to regain compliance with Section 1003(a)(ii) by March 8, 2025.

In light of Fresh Vine’s history of losses from operations, limited liquidity sources and challenges with respect to maintaining its stock exchange listing the company began exploring strategic alternatives during 2023, including liquidation, potential asset sales and divestitures, and strategic transactions with third parties.

In July, 2023, Michael Pruitt, Fresh Vine’s Chief Executive Officers held preliminary discussions with its financial advisors regarding parties who would be interested and suitable for a strategic transaction with Fresh Vine. Fresh Vine’s senior management had been focused primarily on the internal management of Fresh Vine, raising financing (including a transaction that closed on August 2, 2023) and means for Fresh Vine to potentially revive its business and weather the economic environment and revive its business operations.

On August 24, 2023, Fresh Vine issued a press release announcing that its board of directors has initiated an exploration of strategic opportunities by way of merger, acquisition, or any accretive strategic transaction to enhance shareholder value, stated that it has engaged Oak Ridge Financial to lead the process of sourcing and vetting opportunities, and quested that all inquiries be directed to Oak Ridge Financial.

On October 17, 2023, Fresh Vine issued a press release announcing that it had timely submitted a plan of compliance to NYSE American addressing how Fresh Vine intends to regain compliance with NYSE American’s minimum stockholders’ equity requirements for continued listing. On November 21, 2023, Fresh Vine received notification from NYSE American that Fresh Vine’s plan to regain compliance with NYSE American’s listing standards was accepted. The plan involved a combination of potential capital raising activities and pursuit of potential business combination transaction(s).

During the fall of 2023 Fresh Vine explored various strategic transactions, including a variety of potential targets, including Notes Live, and had substantive discussions with at least six private (non-SEC reporting) companies that operated in various industries, including the wine/alcoholic beverage space, hospitality and live entertainment, “better-for-you” consumer products, clean technology and gaming technology. On October 17, 2023 it was introduced to Notes Live through Clear Street, LLC and its advisors. On October 19, 2023 Notes Live and Fresh Vine entered into a Non-disclosure Agreement to continue initial discussions to explore a potential transaction among the parties. Notes Live had been exploring various means to go public in 2023 (and earlier) and had various indicia of being “public company ready”, including having already received various indications of interest from potential strategic partners helping to validate its business model and growth prospects. Notes Live, together with advisors, had been considering various means to go public for several years, including a potential offering under Regulation A, a direct listing, and an initial public offering, and had taken several steps to be prepared for becoming a publicly reporting company. In October 2023, various initial meetings took places between Mr. Roth and other officers of Notes Live and Mr. Pruitt. On October 23, 2023, there was an initial zoom call between JW Roth and Mike Pruitt, which was then followed up by an in-person meeting in the Colorado Springs, Colorado offices of Notes Live on November 1, 2023, held by JW Roth and Mike Pruitt and certain of their respective advisors. Both parties agreed on the general parameters of a business combination between the two parties with the plan to finalize and execute a letter of intent and for Fresh Vine to participate in Note Live’s on-going private offering in the amount of $500,000 (with such investment to deemed a part of the “net cash” Fresh Vine would be required to deliver at any closing of a business combination) by the end of November and to negotiate and execute a definitive agreement and plan of merger prior to January 31, 2024. The parties negotiated various terms of the letter of intent.

In mid November 2023 Fresh Vine presented a letter of intent to Notes Live outlining the general terms of a transaction among the companies, with the intent that Notes Live by way of a reverse merger would become a wholly owned subsidiary of Fresh Vine, and, thereafter Fresh Vine would cease its prior operations and its sole business operations would be conducted by and through Notes Live.

On December 1, 2023, the Fresh Vine board of directors held a board meeting at which the Fresh Vine board discussed the pursuing and vetting of the various potential strategic business combination targets, and reviewed and assessed the proposed terms of a non-binding letter of intent with Notes Live, including a potential timeline for the proposed transaction, the anticipated level of dilution to Fresh Vine stockholders resulting therefrom and the proposed $500,000 equity investment by Fresh Vine in Notes Live contemplated by the letter of intent. At the culmination of the meeting, the Fresh Vine board of directors approved entry into the letter of intent with Notes Live, after which Fresh Vine and Notes Live executed and delivered the letter of intent.

At various times after the mutual execution of the letter of intent the proposed business combination was a topic discussed at meetings of the Notes Live board, including a meeting held on December 5, 2023, where Mr. Roth together with outside counsel provided an overview of the transaction, its terms, and various regulatory matters and considerations related to the transaction.

Following the execution of the letter of intent, the parties and their counsel engaged in several meetings regarding the transaction structure, terms and matters related to anticipated closing conditions. Then, on December 19, 2023 an initial draft definitive merger agreement was prepared by Dykema Gossett PLLC, and later distributed to Taft, Fresh Vine’s counsel on December 19, 2023. During the weeks that followed the execution of the letter of intent, both Fresh Vine and Notes conducted due diligence on each other’s businesses, including an evaluation of each company’s capitalization table in order to confirm the specific terms of a fully-diluted merger. The initial draft of the merger agreement constituted what the parties viewed as a “middle of the road” transaction

agreement based on a precedent counsels had prescreened. The primary terms in the merger agreement that were negotiated were intended to clarify the closing conditions to the merger transaction and the limited scenarios by which either party could terminate the agreement. ensure that the parties remained committed to the deal and could not broadly terminate a pending transaction. A substantially final definitive merger agreement was subsequently circulated to Fresh Vine’s and Notes Live’s boards of directors on January 16, 2024 and the boards of directors of both Notes Live and Fresh Vine separately met and authorized and approved the definitive merger agreement on January 24, 2024 and January 19, 2024, respectively. The merger agreement was executed on January 25, 2024, and a joint press release announcing the execution of the merger agreement was issued on January 29, 2024. Consistent communication between management of Notes Live and Fresh Vine continued thereafter as the parties continued to work towards satisfying the closing conditions.

Fresh Vine Reasons for the Merger

The Fresh Vine board of directors has determined that the merger agreement and the transactions contemplated by the merger agreement, including the merger, are in the best interests of Fresh Vine and its shareholders. In reaching its determination, the Fresh Vine board of directors consulted with consulted with Fresh Vine’s management, Fresh Vine’s financial and legal advisors. In reaching its decision to approve the merger agreement and the transactions contemplated by the merger agreement, the Fresh Vine board of directors considered a number of factors that it viewed as supporting its decision to approve the merger agreement, including the following material factors:

•        the financial condition and prospects of Fresh Vine and the risks associated with continuing to operate Fresh Vine’s on a stand-alone basis;

•        the review and analysis of Fresh Vine’s management regarding the potential strategic alternatives and merger partner candidates identified to date, and the Fresh Vine board of directors’ view that no alternatives to the merger, including a liquidation and dissolution of Fresh Vine and the distribution of any available cash, were reasonably likely to create greater value to Fresh Vine stockholders;

•        the Fresh Vine board of directors’ positive view, based on the business due diligence conducted by Fresh Vine management and financial advisors, of the business prospects of the Notes Live businesses, which will be the focus of the combined company;

•        the prospects of and risks associated with the other potential strategic candidates that Fresh Vine’s management and financial advisor had identified;

•        the Fresh Vine board of directors’ conclusion that the merger would provide existing stockholders with an opportunity to participate in the potential growth of the combined company following the merger, which will focus on Notes Live’s business operations and prospects;

•        the substance of Fresh Vine’s plan to regain compliance with the NYSE listing standard that was accepted by the NYSE American, which as primarily focused on raising additional capital to support a business combination transaction, such as the merger;

•        the Fresh Vine board of directors’ view, following a review with Fresh Vine’s management, of the likelihood that the combined company would satisfy the initial listing standards of the NYSE American, which is a condition to the closing of the merger;

•        the valuation ascribed to Fresh Vine in the merger agreement and its relation to the then-current trading price of Fresh Vine’s common stock;

•        the relative values ascribed to Fresh Vine and Notes Live for purposes of the merger exchange ratio;

•        the Fresh Vine board of directors’ belief that, as a result of arm’s length negotiations with Noters Live, Fresh Vine and its representatives negotiated the highest exchange ratio to which Notes Live was willing to agree, and that the other terms of the merger agreement include the most favorable terms to Fresh Vine in the aggregate to which Notes Live was willing to agree;

•        the sufficiency of Fresh Vine’s existing cash reserves to continue to support operations and pay transaction expenses pending completion of a combination transaction, and likelihood of Fresh Vine being able to raise additional financing to for such purposes;

•        the fact that there can be no assurance that all conditions to the parties’ obligations to complete the merger will be satisfied, including the risk that Fresh Vine will be unable to meet the “Net Cash Target” or that any regulatory approvals, the receipt of which is a condition to the consummation of the merger, might not be obtained, and, as a result, that the merger might not be consummated or subject to delay;

•        the possibility that the merger might not be completed and the potential impact of the public announcement of the merger on the reputation of Fresh Vine and its ability to obtain financing in the future in the event the merger is not completed;

•        the risk that potential benefits and synergies sought in the merger might not be realized or might not be realized within the expected time period, and the risks associated with the integration of the two companies; and

•        the possibility of shareholder litigation relating to the merger.

The Fresh Vine board of directors also reviewed the terms of the merger agreement and related transaction documents, including those described below, and concluded that the terms of the merger agreement and related transaction documents, in the aggregate, were reasonable under the circumstances:

•        the calculation of the exchange ratio, based on separate values assigned to each of Fresh Vine and Notes Live in the merger agreement (being approximately $350 million to Notes Live and $18 million to Fresh Vine, subject in each case to potential upward adjustments described in the merger agreement);

•        the exchange ratio for the merger consideration is fixed in the merger agreement and does not adjust based on the market price of Fresh Vine common stock as of the closing date of the merger, such that if the market price of Fresh Vine common stock is greater or lower at the time of the closing of the merger, the economic value of the per share merger consideration to be received by Notes Live’s shareholders in exchange for their shares of Notes Live common stock will also be greater or lower, and the dilution to Fresh Vine stockholders from a financial perspective will adjust accordingly;

•        the number and nature of the conditions to Fresh Vine’s and Notes Live’s respective obligations to complete the merger and the likelihood that the merger will be completed on a timely basis, as more fully described in this proxy statement/prospectus under the caption “The Merger Agreement — Conditions to the Completion of the Merger”;

•        the respective rights of, and limitations on, Fresh Vine and Notes Live under the merger agreement to consider and engage in discussions regarding unsolicited acquisition proposals under certain circumstances, and the limitations on the board of directors of each party to change its recommendation in favor of the merger, as more fully described in this proxy statement/prospectus under the caption “The Merger Agreement — No Solicitation”;

•        The respective obligations of Fresh Vine and Notes Live to pay to the other termination fees of up to $1.0 million and/or reimburse transaction expenses of up to $500,000, and, with respect to Notes Live, its obligation to redeem Fresh Vine’s $500,000 investment in Notes Live, in each case if the merger agreement is terminated under certain circumstances provided in the merger agreement, as more fully described in this proxy statement/prospectus under the caption “The Merger Agreement — Termination Fee”;

•        the lock-up agreements, pursuant to which certain stockholders of Fresh Vine and Notes Live, respectively, have, subject to certain exceptions, agreed not to transfer their shares of the combined company common stock during specified periods following the completion of the merger; and

•        the support agreements, pursuant to which certain stockholders of Fresh Vine and Notes Live, respectively, have agreed, solely in their capacities as stockholders, to vote their shares of Fresh Vine and Notes Live stock, respectively, in favor of the proposals submitted to them in connection with the merger and against any alternative acquisition proposals.

The foregoing information and factors considered by the Fresh Vine board of directors are not intended to be exhaustive but are believed to include all of the material factors considered by the Fresh Vine board of directors. In view of the wide variety of factors considered in connection with its evaluation of the merger and the complexity of these matters, the Fresh Vine board of directors did not find it useful to attempt, and did not attempt, to quantify, rank or otherwise assign relative weights to these factors. In considering the factors described above, individual members of the Fresh Vine board of directors may have given different weight to different factors. The Fresh Vine board of directors conducted an overall analysis of the factors described above, including thorough discussions with, and questioning of, Fresh Vine’s management team, outside legal counsel and financial advisor, and considered the factors overall to be favorable to, and to support, its determination.

Notes Live Reasons for the Merger

The Notes Live board of directors has determined that the merger agreement and the transactions contemplated by the merger agreement, including the merger, are in the best interests of Notes Live and its shareholders. In reaching its determination, the Notes Live board of directors consulted with Notes Live’s senior management, as well as with Notes Live’s financial and legal advisors, and considered numerous factors, including the following material factors:

•        the extensive and lengthy review undertaken by the Notes Live board and management, with the assistance of financial and legal advisors, with respect to the strategic alternatives available to Notes Live for enhancing value over the long term and the potential risks, rewards and uncertainties associated with such alternatives, and the Notes Live board of directors’ belief that the merger with Fresh Vine was the best option available to Notes Live and its shareholders;

•        the business combination with Fresh Vine offers Notes Live a means to become a public company at a lower cost and in less time that an initial public offering;

•        Notes Live board of directors’ views with respect to the value of the merger consideration to Notes Live shareholders, including that Notes Live shareholders’ are expected to own in excess of 95% of the combined company, and the terms of the business combination with Fresh Vine were more advantageous to Notes Live and its shareholders than other potential merger partners with whom Notes Live had initial conversations in the fall of 2023;

•        a review of the prospects and risks of Notes Live remaining private, including the challenges and limitations of raising capital as a private company whose stock lacks liquidity;

•        the fact that the merger consideration will be in Fresh Vine common stock, which is listed on the NYSE American stock exchange and offers Notes Live shareholders the opportunity for liquidity and to also participate as shareholders of Notes Live in the future earnings and performance of the combined company, which management believes will grow and become larger company with a more diversified asset base as a result of having greater access to the capital markets;

•        the potential increased access to sources of capital and a broader range of investors to support Notes Live’s business following consummation of the merger and the expected continued listing of the combined company on the NYSE American stock exchange;

•        the potential to provide its current shareholders with greater liquidity by owning stock in the combined company;

•        the Notes Live board of directors’ belief that no alternatives to the merger were likely to materialize reasonably in the near or mid term future that were likely to create greater value for Notes Live shareholders, after reviewing the various financing and other strategic options to enhance shareholder value that were considered by the board of directors;

•        the expectation that the merger with Fresh Vine would be a more time- and cost-effective means to access capital than other options currently available to Notes Live, including additional private financings or public offerings;

•        the views of the Notes Live board of directors that the current management of Fresh Vine has a strong reputation, experience in the capital markets, and high level of sophistication to be able to satisfy the closing conditions to the merger and will have motivation to help support the combined company on a post-transaction basis;

•        the views of the Notes Live board of directors as to the likelihood that any requisite regulatory approvals necessary to complete the merger would be obtained;

•        the ability of the Notes Live board of directors to terminate the Merger Agreement in certain situations, and accept unsolicited superior offers in certain situations, in each case subject to the terms and conditions set forth in the merger agreement; and

•        the terms of the merger agreement, including the limited closing conditions and the expected tax treatment of the merger as a “reorganization” within the meaning of Section 368(a) of the Code for United States federal income tax purposes.

The Notes Live board of directors also considered a variety of risks and other potentially negative factors concerning the merger, including the following material factors:

•        although the parties have assigned separate values to each of Notes Live and Fresh Vine in the merger agreement (being approximately $350 million to Notes Live and $18 million to Fresh Vine, subject in each case to potential upward adjustments described in the merger agreement) and the exchange ratio for the merger consideration is fixed in the merger agreement, if the market price of Fresh Vine common stock is lower at the time of the closing of the merger, the economic value of the per share merger consideration to be received by Notes Live’s shareholders in exchange for their shares of Notes Live common stock will also be lower;

•        the possibility that the merger and the related integration process could result in the loss of key employees, in the disruption of Notes Live’s on-going business and delays in planned projects for the combined company;

•        the fact that there can be no assurance that all conditions to the parties’ obligations to complete the merger will be satisfied, including the risk that Fresh Vine will be unable to meet the “Net Cash Target” or that any regulatory approvals, the receipt of which is a condition to the consummation of the merger, might not be obtained, and, as a result, that the merger might not be consummated or subject to delay;

•        the fact that Notes Live’s officers and employees would have to focus on actions required to complete the merger, which would divert their attention from Notes Live’s day-to-day business, and that Notes Live will incur substantial transaction costs even if the merger is not consummated;

•        the possibility that the merger might not be completed and the potential adverse effect of the public announcement of the merger on the reputation of Notes Live and the ability of Notes Live to obtain financing in the future in the event the merger is not completed;

•        the fact that after completion of the merger Notes Live will be subject to significantly greater costs and expenses related to being a publicly reporting company (including exchange fees and higher professional services fees), and subject to various regulations and rules that are not applicable to private companies, and complying with these regulations will require significant time and resources of the combined company;

•        the risk that potential benefits and synergies sought in the merger might not be realized or might not be realized within the expected time period, and the risks associated with the integration of the two companies;

•        the fact that the representations and warranties in the merger agreement do not survive the closing of the merger and the potential risk of liabilities from Fresh Vine’s legacy business and operations that may arise post-closing;

•        the possibility of shareholder litigation relating to the merger;

•        the fact that the merger agreement includes certain provisions that prohibit Notes Live from soliciting alternative transactions and from taking certain actions in response to unsolicited proposals for alternative transactions;

•        Notes Live’s obligation to pay Fresh Vine a termination fee of $1.0 million in certain circumstances and discussed further under the section titled “The Merger Agreement — Termination Fees”; and

•        the interests of certain of Notes Live’s directors and executive officers in the merger that are different from or in addition to those of Notes Live shareholders generally, as more fully described under the section titled “— Interests of Notes Live’s Directors and Executive Officers in the Merger.”

In reaching its conclusion, the Notes Live board of directors did not find it practical to assign, and did not assign, any relative or specific weight to the different factors that were considered, and individual members of the Notes Live board of directors may have given different weight to different factors. The Notes Live board of directors considered all of the information and factors presented, including the potential risks, uncertainties, and disadvantages associated with the merger, in the aggregate rather than separately, and determined the benefits of the merger to outweigh the potential risks, uncertainties, and disadvantages associated with the merger and to be favorable to and support its determination.

Interests of Fresh Vine Directors and Executive Officers in the Merger

In considering the recommendation of the Fresh Vine board of directors with respect to issuing shares of Fresh Vine common stock as contemplated by the Merger Agreement and the other matters to be acted upon by Fresh Vine stockholders at the Fresh Vine special meeting, Fresh Vine stockholders should be aware that certain members of the Fresh Vine board of directors and certain Fresh Vine executive officers have interests in the merger that may be different from, or in addition to, the interests of Fresh Vine stockholders. These interests may present them with actual or potential conflicts of interest, and these interests, to the extent material, are described below.

Each of the Fresh Vine board of directors and the Notes Live board of directors were aware of these potential conflicts of interest and considered them, among other matters, in reaching their respective decisions to approve the Merger Agreement and the merger, and to recommend, as applicable, that Fresh Vine stockholders approve the proposals to be presented to Fresh Vine stockholders for consideration at the Fresh Vine special meeting as contemplated by this proxy statement/prospectus, and that Notes Live stockholders sign and return the written consent as contemplated by this proxy statement/prospectus.

Ownership Interests

As of [•], 2024, Fresh Vine’s directors and executive officers owned, in the aggregate, approximately [•%] of the shares of Fresh Vine common stock on a diluted basis (assuming the full conversion of the Fresh Vine Preferred Stock (without regard to conversion limitations)).

The affirmative vote of the holders of a majority of the voting power of the shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposals 1 and 7. The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record date is required for approval of Proposals 2, 3 and 6. The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Series B Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal No. 4. The holders of Fresh Vine Series A Convertible Preferred Stock are not entitled to vote their shares of Fresh Vine Series A Convertible Preferred Stock on Proposal No. 4, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of or as a dividend on Fresh Vine Series A Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of Proposal No. 4. The affirmative vote of the holders of a majority of the shares of Fresh Vine common stock and Series A Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal No. 5. The holders of Fresh Vine Series B Convertible Preferred Stock are not entitled to vote their shares

of Fresh Vine Series B Convertible Preferred Stock on Proposal No. 5, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of Fresh Vine Series B Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of Proposal No. 5.

See the section of this proxy statement/prospectus entitled “Principal Stockholders of Fresh Vine” for a description of the beneficial ownership of Fresh Vine’s directors and officers.

Fresh Vine Support Agreements

Certain officers and directors Fresh Vine (solely in their respective capacities as Fresh Vine shareholders) are parties to voting and support agreements with Notes Live and Fresh Vine pursuant to which, among other things, each has agreed to vote all of his, her or its shares of Notes Live capital stock in favor of any proposal to adopt and approve the transactions contemplated by the Merger Agreement. For a more detailed discussion of the voting and support agreements, see the section of this proxy statement/prospectus entitled “Agreements Related to the Merger — Voting and Support Agreements.”

Director and Officer Positions Following the Merger

Pursuant to the terms of the Merger Agreement, effective upon the effective time, all then-current Fresh Vine directors and officers will resign, and Fresh Vine and Notes Live will use commercially reasonable efforts and take all necessary action so that the persons designated by Notes Live are elected or appointed, as applicable, to the positions of officers or directors of Fresh Vine, to serve in such positions effective as of the effective time.

Indemnification and Insurance

Pursuant to the Merger Agreement, from the effective time through the sixth anniversary of the date on which the effective time occurs, each of Fresh Vine and the surviving corporation is required to indemnify and hold harmless each person who is or has served as a director or officer of Fresh Vine or Notes Live against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that such person is or was a director or officer of Fresh Vine or of the Company, whether asserted or claimed prior to, at or after the effective time, in each case, to the fullest extent permitted under the applicable law. In addition, each such director and officer, or former director and officer, is entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation.

Pursuant to the Merger Agreement, the provisions of the Fresh Vine Articles of Incorporation and the Fresh Vine Bylaws with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Fresh Vine will not be amended, modified or repealed for a period of six years from the effective time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the effective time, were officers or directors of Fresh Vine, unless such modification is required by applicable law. The Notes Live articles of incorporation and Notes Live bylaws, as the surviving corporation in the merger, shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers than those that are presently set forth in the Fresh Vine Articles of Incorporation and Fresh Vine Bylaws.

The Merger Agreement also provides that Fresh Vine shall maintain directors’ and officers’ liability insurance policies commencing at the closing of the merger, on commercially available terms and conditions with coverage limits customary for U.S. public companies similarly situated to Fresh Vine.

Interests of Notes Live Directors and Executive Officers in the Merger

Ownership Interests

As of March 15, 2024, Notes Live’s directors and executive officers owned, in the aggregate, approximately 39% of the shares of Notes Live’s common stock on a diluted basis.

See the section of this proxy statement/prospectus entitled “Principal Stockholders of Notes Live” for a description of the beneficial ownership of Fresh Vine’s directors and officers.

Notes Live Support Agreements

Certain officers and directors Notes Live (solely in their respective capacities as Notes Live shareholders) are parties to voting and support agreements with Notes Live and Fresh Vine pursuant to which, among other things, each has agreed to vote all of his, her or its shares of Notes Live capital stock in favor of any proposal to adopt and approve the transactions contemplated by the Merger Agreement. For a more detailed discussion of the voting and support agreements, see the section of this proxy statement/prospectus entitled “Agreements Related to the Merger — Voting and Support Agreements.”

Director and Officer Positions Following the Merger

Pursuant to the terms of the Merger Agreement, effective upon the effective time, all then-current Fresh Vine directors and officers will resign, and Fresh Vine and Notes Live will use commercially reasonable efforts and take all necessary action so that the persons designated by Notes Live are elected or appointed, as applicable, to the positions of officers or directors of Fresh Vine, to serve in such positions effective as of the effective time.

Indemnification and Insurance

Pursuant to the Merger Agreement, from the effective time through the sixth anniversary of the date on which the effective time occurs, each of Fresh Vine and the surviving corporation is required to indemnify and hold harmless each person who is or has served as a director or officer of Fresh Vine or Notes Live against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that such person is or was a director or officer of Fresh Vine or of the Company, whether asserted or claimed prior to, at or after the effective time, in each case, to the fullest extent permitted under the applicable law. In addition, each such director and officer, or former director and officer, is entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation.

Pursuant to the Merger Agreement, the provisions of the Fresh Vine Articles of Incorporation and the Fresh Vine Bylaws with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Fresh Vine will not be amended, modified or repealed for a period of six years from the effective time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the effective time, were officers or directors of Fresh Vine, unless such modification is required by applicable law. The Notes Live Articles of Incorporation and Notes Live bylaws, as the surviving corporation in the merger, shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers than those that are presently set forth in the Fresh Vine Articles of Incorporation and Fresh Vine Bylaws.

The Merger Agreement also provides that Fresh Vine shall maintain directors’ and officers’ liability insurance policies commencing at the closing of the merger, on commercially available terms and conditions with coverage limits customary for U.S. public companies similarly situated to Fresh Vine.

In considering the recommendation of the Notes Live board of directors with respect to approving the merger, stockholders should be aware that certain members of the Notes Live board of directors and certain Notes Live executive officers have interests in the merger that may be different from, or in addition to, the interests of Notes Live stockholders. These interests may present them with actual or potential conflicts of interest, and these interests, to the extent material, are described below.

Each of the Fresh Vine board of directors and the Notes Live board of directors were aware of these potential conflicts of interest and considered them, among other matters, in reaching their respective decisions to approve the Merger Agreement and the merger, and to recommend, as applicable, that Fresh Vine stockholders approve the proposals to be presented to Fresh Vine stockholders for consideration at the Fresh Vine special meeting as contemplated by this proxy statement/prospectus, and that Notes Live stockholders sign and return the written consent as contemplated by this proxy statement/prospectus.

Ownership Interests

As of March 27, 2024, Notes Live’s directors and current executive officers owned, in the aggregate approximately 39% of the outstanding shares of Notes Live capital stock. See the section entitled “Principal Shareholders of Notes Live” beginning on page 225 of this proxy statement/prospectus for a description of the beneficial ownership of Notes Live’s directors and officers.

Notes Live Support Agreements

Certain officers and directors Notes Live (solely in their respective capacities as Notes Live shareholders) are parties to voting and support agreements with Fresh Vine and Notes Live pursuant to which, among other things, each has agreed to vote all of his, her or its shares of Notes Live capital stock in favor of the approval of the merger and adoption of Merger Agreement. For a more detailed discussion of the voting and support agreements, see the section entitled “Agreements Related to the Merger — Voting and Support Agreements” beginning on page 103 of this proxy statement/prospectus.

Compensatory Warrants

Each of Notes Live’s officers and directors has been issued warrants exercisable to acquire shares of Notes Live common stock. Such warrants were awarded for compensatory purposes. At the effective time of the merger, each outstanding warrant to purchase shares of Notes Live capital stock will be exchanged (or otherwise amended) for a warrant to purchase shares of Fresh Vine common stock, with necessary adjustments to reflect the exchange ratio set forth in the Merger Agreement.

Management Following the Merger; No Severance Payments

As described in the section entitled “Management Following the Merger” beginning on page 184 of this proxy statement/prospectus, certain members of the Notes Live board of directors and Notes Live executive officers are expected to become the directors and executive officers of the combined company upon the closing of the merger.

The Employment Agreement between Mr. Roth and Notes Live provides that he is entitled to severance payments if his employment is terminated under certain circumstances with three months prior to, or two years following a “Change in Control” of Notes Live. However, the merger transaction will not constitute a “Change of Control” of Notes Live as that term is used in the employment agreement. None of the Notes Live officers or directors will receive any bonus, or other compensation that becomes payable as a result of the merger; instead, each officer and director of Notes Live whose employment or engagement continues after the merger is expected to continue to be compensated in accordance with their current employment terms.

Indemnification and Insurance

Pursuant to the Merger Agreement, from the effective time through the sixth anniversary of the date on which the effective time occurs, each of Fresh Vine and the surviving corporation is required to indemnify and hold harmless each person who is or has served as a director or officer of Fresh Vine or Notes Live against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that such person is or was a director or officer of Fresh Vine or of the Company, whether asserted or claimed prior to, at or after the effective time, in each case, to the fullest extent permitted under the applicable law. In addition, each such director and officer, or former director and officer, is entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation.

Pursuant to the Merger Agreement, the provisions of the Fresh Vine Articles of Incorporation and the Fresh Vine Bylaws with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Fresh Vine will not be amended, modified or repealed for a period of six years from the effective time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the effective time, were officers or directors of Fresh Vine, unless such modification is required by applicable law. The Notes Live Articles of Incorporation and Notes Live bylaws, as the surviving corporation in the merger, shall

contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers than those that are presently set forth in the Fresh Vine Articles of Incorporation and Fresh Vine Bylaws.

The Merger Agreement also provides that Fresh Vine shall maintain directors’ and officers’ liability insurance policies commencing at the closing of the merger, on commercially available terms and conditions with coverage limits customary for U.S. public companies similarly situated to Fresh Vine.

Form of the Merger

The Merger Agreement provides that at the effective time, Merger Sub will be merged with and into Notes Live, with Notes Live surviving as a wholly-owned subsidiary of Fresh Vine.

After completion of the merger, Fresh Vine will change its corporate name from “Fresh Vine Wine, Inc.” to “Notes Live Holding Corp.” as contemplated by the Merger Agreement.

Effective Time of the Merger

The Merger Agreement requires the parties to consummate the merger as promptly as practicable (and in any event within two business days) after all of the conditions to the consummation of the merger contained in the Merger Agreement are satisfied or waived. The merger will become effective upon the filing of a certificate of merger with the Secretary of State of the State of Colorado or at such later time as is agreed by Fresh Vine and Notes Live and specified in the certificate of merger. Neither Fresh Vine nor Notes Live can predict the exact timing of the consummation of the merger.

Merger Consideration and Exchange Ratio

Merger Consideration

At the effective time, upon the terms and subject to the conditions set forth in the Merger Agreement, each outstanding share of Notes Live capital stock (excluding shares of Notes Live capital stock held by holders of Notes Live capital stock who have exercised and perfected appraisal rights or dissenters’ rights) will be automatically converted solely into the right to receive a number of shares of Fresh Vine common stock equal to the exchange ratio described in more detail below. In addition, (i) each outstanding warrant to purchase shares of Notes Live capital stock will be exchanged (or otherwise amended) for a warrant to purchase shares of Fresh Vine common stock, with necessary adjustments to reflect the exchange ratio, and (ii) any then outstanding Notes Live promissory note that is convertible into Notes Live common stock will be exchanged, or otherwise amended, such that it will be convertible from and after the merger into shares of Fresh Vine common stock at a per share conversion price adjusted to reflect the exchange ratio.

No fractional shares of Fresh Vine common stock will be issued in connection with the merger, and no certificates or scrip for any such fractional shares will be issued. Any fractional shares of Fresh Vine common stock resulting from the conversion of Notes Live capital stock in the merger, and any Fresh Vine warrants or convertible promissory notes issuable in the merger to holders of Notes Live warrants or convertible promissory notes, shall be rounded up to the nearest whole number of shares, with no cash being paid for any fractional share eliminated by such rounding.

Exchange Ratio

The exchange ratio is calculated using a formula intended to allocate existing Fresh Vine and Notes Live stockholders a percentage of the combined company in which:

•        the Notes Live valuation is equal to $350,875,464, plus an amount equal to the aggregate gross proceeds received or to be received by Notes Live in the Notes Live Financing; and

•        the Fresh Vine Valuation is equal to $18.0 million, plus the amount of any Net Cash Surplus.

For such purposes, “Net Cash Surplus” means the amount by which the cash, cash equivalent assets or other liquid assets of Fresh Vine at the closing of the Merger transaction exceed the Net Cash Target, and the “Net Cash Target” means an aggregate of $3.5 million; provided that the Net Cash Target will be reduced on a dollar-for-dollar basis for the gross proceeds of any equity investments in Notes Live made by Fresh Vine, its affiliates, or persons directly introduced to Notes Live by Fresh Vine or its affiliates from December 1, 2023 through the effective date of the Merger (but excluding a $500,000 equity investment in Notes Live made by Fresh Vine upon entering into the letter of intent with Note Live for the merger transaction (the “Fresh Vine Equity Investment”)).

As contemplated by the Merger Agreement, Fresh Vine intends to effect a reverse stock split at or around the effect date of the merger at a ratio that results in the exchange ratio in the merger being as near to one as reasonably practicable.

On a pro forma basis and without adjustment for gross proceeds from the Notes Live Financing or any Net Cash Surplus, pre-merger Notes Live shareholders are expected to own approximately 95.1% of the outstanding shares of capital stock of the combined company and pre-merger Fresh Vine stockholders are expected to own approximately 4.9% of the outstanding shares of capital stock of the combined company.

Procedures for Exchanging Notes Live Stock Certificates

The Merger Agreement provides that, at the effective time, Fresh Vine will deposit with an exchange agent acceptable to Fresh Vine and Notes Live evidence of book-entry shares representing the shares of Fresh Vine common stock issuable to Notes Live stockholders.

The Merger Agreement provides that, promptly after the effective time, the exchange agent will mail to each record holder of Notes Live capital stock immediately prior to the effective time a letter of transmittal and instructions for surrendering and exchanging Notes Live stock certificates or transfer of book-entry shares held by such record holder in exchange for book-entry shares of Fresh Vine common stock. Upon surrender of a Notes Live stock certificate or transfer of book-entry shares for exchange to the exchange agent, together with a duly signed letter of transmittal and such other documents as the exchange agent or Fresh Vine may reasonably require, the Notes Live stock certificate or book-entry share surrendered will be cancelled and the holder of such Notes Live stock certificate or book-entry share will be entitled to receive book-entry shares representing the number of whole shares of Fresh Vine common stock that such holder has the right to receive pursuant to the provisions of the Merger Agreement.

From and after the effective time, until it is surrendered, each certificate or book-entry share that previously evidenced shares of Notes Live capital stock will be deemed to represent only the right to receive shares of Fresh Vine common stock.

If any Notes Live stock certificate has been lost, stolen or destroyed, Fresh Vine may, in its discretion, and as a condition precedent to the delivery of any book-entry shares of Fresh Vine common stock, require the owner of such lost, stolen or destroyed certificate to provide an affidavit claiming such certificate has been lost, stolen or destroyed and, at Fresh Vine’s discretion, may also require such owner to indemnify Fresh Vine against any claim suffered by Fresh Vine related to the lost, stolen or destroyed certificate or any Fresh Vine common stock issued in exchange thereof as Fresh Vine may reasonably request.

Fresh Vine will not pay dividends or other distributions on any shares of Fresh Vine common stock to be issued in exchange for shares of Notes Live capital stock represented by any unsurrendered Notes Live stock certificate or book-entry share until such Notes Live stock certificate is surrendered, or book-entry share transferred, as provided in the Merger Agreement.

Impact on Current Fresh Vine Securityholders

Holders of Fresh Vine common stock will continue to own and hold their existing shares of Fresh Vine common stock. Holders of Fresh Vine Preferred Stock have agreed to convert such shares into Fresh Vine common stock upon the closing of the merger, subject to Fresh Vine stockholders approving the issuance of common stock upon such conversion in excess of the existing “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificates of Designation of the Fresh Vine Preferred Stock. Each option and warrant to

purchase Fresh Vine common stock that is outstanding at the effective time of the merger will remain outstanding in accordance with its terms and such options and warrants, subject to the proposed reverse stock split described in this proxy statement/prospectus, will be unaffected by the merger.

Regulatory Approvals

In the U.S., Fresh Vine must comply with applicable federal and state securities laws and the rules and regulations of the NYSE American in connection with the issuance of shares of Fresh Vine common stock and the filing of this proxy statement/prospectus with the SEC.

Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended and the rules that have been promulgated thereunder (the “HSR Act”), certain transactions may not be consummated unless certain information has been furnished to the Antitrust Division of the Department of Justice (“Antitrust Division”) and the Federal Trade Commission (“FTC”), and certain waiting period requirements have been satisfied. Depending on the value the shares of Fresh Vine common stock that will comprise the merger consideration during the applicable measurement period, the merger may become subject to these requirements and may not be completed until the expiration of a 30-day waiting period following the filing of the parties’ respective Notification and Report Forms with the Antitrust Division and the FTC, unless early termination is granted. Under the Merger Agreement, Fresh Vine and Notes Live have agreed to prepare and file such Notification and Report Forms promptly following any determination that such Notification and Report Forms are required to be filed under the HSR Act, and Notes Live has agreement to pay the filing fees associated with any such filing.

Material U.S. Federal Income Tax Consequences of the Merger

The following discussion is a summary of the material U.S. federal income tax consequences of the merger to Notes Live U.S. holders (as defined below), but does not purport to be a complete analysis of all potential tax consequences that may be relevant to Notes Live U.S. holders. The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local or non-U.S. tax laws are not discussed. This discussion is based on the Code, Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the IRS, in each case in effect as of the date hereof. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a Notes Live U.S. holder. Notes Live has not sought and does not intend to seek any rulings from the IRS regarding the matters discussed below. There can be no assurance the IRS or a court will not take a position contrary to that discussed below regarding the tax consequences of the merger.

This discussion is limited to Notes Live U.S. holders that hold Notes Live capital stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences that may be relevant to a Notes Live U.S. holder’s particular circumstances, including the impact of the alternative minimum tax, the Medicare contribution tax on net investment income or the rules related to “qualified small business stock” within the meaning of Section 1202 of the Code. In addition, it does not address consequences relevant to Notes Live U.S. holders subject to special rules, including, without limitation:

•        U.S. expatriates and former citizens or long-term residents of the U.S.;

•        U.S. holders whose functional currency is not the U.S. dollar;

•        persons holding Notes Live capital stock as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other integrated investment;

•        banks, insurance companies and other financial institutions;

•        real estate investment trusts or regulated investment companies;

•        brokers, dealers or traders in securities;

•        “controlled foreign corporations,” “passive foreign investment companies” and corporations that accumulate earnings to avoid U.S. federal income tax;

•        S corporations, partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein);

•        tax-exempt organizations or governmental organizations;

•        persons deemed to sell Notes Live capital stock under the constructive sale provisions of the Code;

•        persons who hold or received Notes Live capital stock pursuant to the exercise of any employee stock option or otherwise as compensation; and

•        tax-qualified retirement plans.

If an entity treated as a partnership for U.S. federal income tax purposes holds Notes Live capital stock, the tax treatment of a partner in the partnership will depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding Notes Live capital stock and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.

In addition, the following discussion does not address: (a) the tax consequences of transactions effectuated before, after or at the same time as the merger, whether or not they are in connection with the merger, including, without limitation, transactions in which shares of Notes Live capital stock are acquired or disposed of other than in exchange for shares of Fresh Vine common stock in the merger, (b) the tax consequences to holders of convertible notes or warrants of Notes Live, or (c) the tax consequences of the ownership of shares of Fresh Vine common stock following the merger.

IT IS RECOMMENDED THAT HOLDERS CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE MERGER ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY.

For purposes of this discussion, a “Notes Live U.S. holder” is a beneficial owner of Notes Live capital stock that, for U.S. federal income tax purposes, is or is treated as:

•        an individual who is a citizen or resident of the U.S.;

•        a corporation created or organized under the laws of the U.S., any state thereof, or the District of Columbia;

•        an estate, the income of which is subject to U.S. federal income tax regardless of its source; or

•        a trust that (i) is subject to the primary supervision of a U.S. court and the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code) over all of its substantial decisions or (ii) has a valid election in effect to be treated as a United States person for U.S. federal income tax purposes.

Tax Characterization of the Merger

In the opinion of Dykema Gossett, PLLC and Taft Stettinius & Hollister LLP, the merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the material U.S. federal income tax consequences of the merger to Notes Live U.S. holders are as described below under the heading “— Tax Treatment of Notes Live U.S. Holders in the Merger.” These opinions are based on facts and representations contained in representation letters provided to Dykema Gossett, PLLC and Taft Stettinius & Hollister LLP by Fresh Vine, Merger Sub and Notes Live and certain assumptions, including that the merger is completed in the manner set forth in the Merger Agreement and the registration statement on Form S-4 of which this proxy statement/prospectus forms a part. The accuracy of such facts, representations and assumptions, could affect the conclusions set forth in such opinions. The opinions will not be binding on the IRS or the courts.

If the merger does not qualify as a tax-free “reorganization” within the meaning of Section 368(a) of the Code (including if the IRS successfully challenges the qualification of the merger as such), then each Notes Live U.S. holder generally would recognize gain or loss on the exchange of Notes Live capital stock for Fresh Vine common stock in the merger equal to the difference between (x) the fair market value of the shares of Fresh Vine common stock received in exchange for the Notes Live capital stock and (y) such Notes Live U.S. holder’s adjusted tax basis in the shares of Notes Live capital stock surrendered. The remainder of this discussion assumes that the merger will be treated as a tax-free “reorganization” within the meaning of Section 368(a) of the Code in accordance with the opinions referred to above.

Tax Treatment of Notes Live U.S. Holders in the Merger

The material U.S. federal income tax consequences to a U.S. holder of Notes Live capital stock as a result of the merger will be as follows: (i) a Notes Live U.S. holder generally will not recognize gain or loss upon the exchange of the holder’s Notes Live capital stock for Fresh Vine common stock, (ii) a Notes Live U.S. holder generally will obtain an aggregate adjusted tax basis in the Fresh Vine common stock the holder receives in the merger equal to the holder’s adjusted tax basis in the Notes Live capital stock exchanged therefor, and (iii) the holding period of the shares of Fresh Vine common stock received by a Notes Live U.S. holder in the merger will include the holding period of the shares of Notes Live capital stock surrendered in exchange therefor. Treasury Regulations provide detailed rules for allocating the tax basis and holding period of the shares of Notes Live capital stock surrendered to the shares of Fresh Vine common stock received. Notes Live U.S. holders of shares of Notes Live capital stock acquired on different dates and at different prices should consult their tax advisors regarding the allocation of the tax basis and holding period of such shares.

Reporting Requirements

Each Notes Live U.S. holder who receives shares of Fresh Vine common stock in the merger is required to retain permanent records pertaining to the merger and make such records available to any authorized IRS officers and employees. Such records should specifically include information regarding the amount, basis, and the fair market value of the Notes Live capital stock exchanged and the amount of Fresh Vine common stock and cash received in exchange therefor, if any. Notes Live U.S. holders who owned immediately before the merger at least one percent (by vote or value) of the total outstanding stock of Notes Live are required to attach a statement to their tax returns for the year in which the merger is consummated that contains the information listed in Treasury Regulation Section 1.368-3(b). Such statement must include the Notes Live U.S. holder’s tax basis in such holder’s Notes Live capital stock surrendered in the merger, the fair market value of such stock, the date of the merger and the name and employer identification number of each of Notes Live and Fresh Vine. Notes Live U.S. holders are urged to consult with their tax advisors to comply with these rules.

Backup Withholding and Information Reporting

A Notes Live U.S. holder may, under certain circumstances, be subject to information reporting and backup withholding on any payments of cash in lieu of fractional shares, unless such holder properly establishes an exemption or provides its correct tax identification number and otherwise complies with the applicable requirements of the backup withholding rules. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be refunded or credited against a payee’s U.S. federal income tax liability, if any, so long as such payee furnishes the required information to the IRS in a timely manner.

The foregoing summary is of a general nature only and is not intended to be, and should not be construed to be, legal, business or tax advice to any particular Notes Live stockholder. This summary does not take into account your particular circumstances and does not address consequences that may be particular to you. Therefore, you should consult your tax advisor regarding the particular consequences of the merger to you.

NYSE American Listing

Fresh Vine common stock currently is listed on the NYSE American under the symbol “VINE.” Fresh Vine has agreed to use commercially reasonable efforts to (i) to maintain its existing listing on NYSE American and to obtain approval of its continued listing on NYSE American immediately following the effective time of the merger; (ii) to the extent required by the rules and regulations of NYSE American, to prepare and submit to NYSE American a

supplemental listing application for the listing of the shares of Fresh Vine common stock to be issued in connection with the merger; and (c) to the extent required by the NYSE American Company Guide, to file an initial listing application for the Fresh Vine common stock on NYSE American and to cause such application to be approved.

In addition, under the Merger Agreement, each party’s obligation to complete the merger is subject to the satisfaction or waiver by each of the parties prior to the closing of the merger of various conditions, including that the approval of the listing on the NYSE American of the shares of Fresh Vine common stock to be issued in connection with the merger and, if applicable, approval of the NYSE initial listing application, shall have been obtained and the shares of Fresh Vine Common Stock to be issued in the Merger pursuant to this Agreement shall have been approved for listing (subject to official notice of issuance) on the NYSE American.

Fresh Vine intends to file an initial listing application with the NYSE American pursuant to NYSE American’s “reverse merger” rules. If such application is accepted, Fresh Vine anticipates that the shares of Fresh Vine common stock will be listed on the NYSE American following the closing of the merger under the trading symbol “VENU.” In order to meet the requirements for listing on the NYSE American, the post-merger combined company will be required to satisfy NYSE American’s initial listing requirements, including the financial and liquidity requirements for the NYSE American upon which the post-merger combined company’s shares will trade following the merger.

Anticipated Accounting Treatment

The merger is expected to be accounted for as a reverse recapitalization under U.S. GAAP. For financial reporting purposes, Notes Live has been determined to be the accounting acquirer based upon the terms of the merger including: (i) Notes Live stockholders are expected to own approximately in excess of 95% of the combined company (based on the relative valuations of Fresh Vine and Notes Live at the time of the signing of the Merger Agreement, which is subject to adjustment), (ii) directors designated by Notes Live will hold all board seats of the combined company and (iii) Notes Live management will hold all key positions in the management of the combined company. Accordingly, the merger is expected to be treated as the equivalent of Notes Live issuing stock to acquire the net assets of Fresh Vine. As a result of the merger, the net assets of Fresh Vine will be recorded at their acquisition-date fair value in the consolidated financial statements of Notes Live and the reported operating results prior to the merger will be those of Notes Live. See the section entitled “Unaudited Pro Forma Condensed Combined Financial Information” beginning on page 199 of this proxy statement/prospectus for additional information.

Appraisal Rights and Dissenters’ Rights

If the merger is completed, Notes Live shareholders who do not vote to approve the merger are entitled to appraisal rights under Article 113 of the Colorado Business Corporation Act (the “CBCA”), or Article 113, provided that they comply with the conditions established by Article 113. Holders of Fresh Vine capital stock are not entitled to dissenters rights under Nevada law in connection with the merger.

Under the CBCA, any holder of shares of Notes Live stock who does not wish to accept the merger with Fresh Vine has the right to dissent and to seek an appraisal of, and to be paid the fair value for, his, her shares or its shares of Notes Live common stock, as determined by an appraiser, and provided that the holder fully complies with all applicable provisions of Article 113, Title 7, of the CBCA. A copy of Article 113 of the CBCA has been attached hereto as Annex H.

Ensuring that appraisal rights are properly perfected can be complicated. The procedural rules are specific and must be followed precisely to be perfected. Failure to comply with the procedure may cause a termination of the appraisal rights. The following information is intended as a brief summary of the material provisions of the statutory procedures shareholders must follow to perfect their appraisal rights, and is qualified in its entirety by reference to Article 113 of the CBCA.

The shareholders of Notes Live are entitled to vote on the proposed merger with Fresh Vine and, if they choose to dissent, have a right to receive “fair value” for their shares under Colorado law, with “fair value” being from the value of the corporation’s shares immediately prior to the effectuation of the corporate action to which the shareholder objects, using customary and currant valuation concepts and techniques generally employed for similar business in the context of the transaction requiring appraisal, and generally discounting for lack of marketability or minority status. A shareholder of Notes Live that wishes to assert its dissenters’ rights must deliver to Notes Live,

before the vote is taken, written notice of the shareholder’s intention to demand payment for the shareholder’s shares if the proposed corporate action is approved by the required votes (and is not later abandoned or terminated), and must not vote (or cause or permit its shares to be voted) in favor of the proposed merger. A shareholder who does not satisfy these requirements is not entitled to demand payment for the shareholder’s shares under the CBCA.

If the merger is approved, Notes Live will give a written dissenters’ notice to all shareholders who are entitled to demand payment for their shares of stock no later than ten days after the effective date of the corporate action creating dissenters’ rights. The written dissenters’ notice must include certain information designated by the CBCA, including that a form that must (i) specify the first date of any announcement to shareholders, made before the date the corporate action became effective, of the principal terms of the proposed corporate action; (ii) if the announcement was made, requires the shareholder asserting appraisal rights to certify whether beneficial ownership of those shares for which appraisal rights are asserted was acquired before that date; (iii) require the shareholder asserting appraisal rights to certify that the shareholder did not vote for or consent to the transaction (iv) state where the form must be sent, where certificates for certificated shares must be deposited, and the date by which those certificates must be deposited; (v) state a date by which the corporation must receive the form, which date must not be fewer than forty nor more than sixty days after the date the appraisal notice and form are required to be sent and state that the shareholder waives the right to demand appraisal with respect to the shares unless the form is received by the corporation by the specified date; (vi) state the corporation’s estimate of the fair value of the shares; (vii) state that, if requested in writing, the corporation will provide to the shareholder so requesting, a statement of the number of shareholders that return the forms by the specified date and the total number of shares owned by them; (viii) state the date by which the notice to withdraw under section 7-113-204 must be received; and (ix) be accompanied by a copy of the article of Colorado law governing dissenters’ rights.

A shareholder of Notes Live that wishes to assert its dissenters’ rights must deliver a payment demand to Notes Live and, in the case of certificated shares, must deposit the shareholder’s certificates. In addition, if applicable, the shareholder must certify on the form whether the beneficial owner of the shares acquired beneficial ownership of the shares before the first date of any announcement to shareholders, made before the date the corporate action became effective, of the principal terms of the proposed corporate action. A shareholder who has validly exercised its appraisal rights may nevertheless decline to exercise appraisal rights and withdraw from the appraisal process by so notifying the corporation in writing by the date set forth in the appraisal notice. Notes Live will pay, at the address shown on Notes Live’s current record of shareholders, the amount Notes Live estimates to be the fair value of the dissenter’s shares, plus accrued interest. Notes Live will, within 30 days, provide with the payment a copy of Notes Live’s balance sheet as of the end of the most recent fiscal year and a statement of Notes Live’s estimate of the fair value of the shares, an explanation of how interest was calculated and a statement of the dissenters’ right to demand additional payment if the dissenter believes the amount paid is less than the fair value of the shares.

In general, a shareholder that is paid and is dissatisfied with the amount of the payment must notify the corporation in writing of that shareholder’s estimate of the fair value of the shares and demand payment of that estimate, plus interest, less any payment made. The dissenter waives the right to demand payment unless such dissenter provides Notes Live notice within 30 days after Notes Live offered payment for the dissenter’s shares. If a demand for payment by a dissenting shareholder remains unresolved, Notes Live would commence a proceeding within sixty days after receiving the payment demand and petition the court to determine the fair value of the shares and accrued interest and make all shareholders whose demands are unresolved parties to the proceeding. Generally, a shareholder made a party to the proceeding is entitled to judgment only for the amount, if any, by which the court finds the fair value of the shareholder’s shares, plus interest, exceeds the amount paid by the corporation for the shares. The court in an appraisal proceeding commenced under will determine all costs of the proceeding, including the reasonable compensation and expenses of appraisers appointed by the court. The court will assess the costs against the corporation; except that the court may assess costs against all or some of the shareholders demanding appraisal, in amounts the court finds equitable, to the extent the court finds the shareholders acted arbitrarily, vexatiously, or not in good faith with respect to exercising their appraisal rights.

If you elect to exercise your right to dissent, you should send the notice of election to the Secretary of the Notes Live at: 1755 Telstar Dr., #501, Colorado Springs, CO 80920; telephone: (719) 895-5483. A shareholder who votes against the merger but does not otherwise provide notice of its election to dissent does not satisfy the notice requirement under the CBCA.

THE MERGER AGREEMENT

The following is a summary of the material terms of the Merger Agreement. A copies of the Merger Agreement attached as Annex to this proxy statement/prospectus and is incorporated by reference into this proxy statement/prospectus. The Merger Agreement has been attached to this proxy statement/prospectus to provide you with information regarding its terms. It is not intended to provide any other factual information about Fresh Vine, Notes Live or Merger Sub. The following description does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement. You should refer to the full text of the Merger Agreement for details of the merger and the terms and conditions of the Merger Agreement.

The Merger Agreement contains representations and warranties that Fresh Vine and Merger Sub, on the one hand, and Notes Live, on the other hand, have made to one another as of specific dates. These representations and warranties have been made for the benefit of the other parties to the Merger Agreement and may be intended not as statements of fact but rather as a way of allocating the risk to one of the parties if those statements prove to be incorrect. In addition, the assertions embodied in the representations and warranties are qualified by information in confidential disclosure schedules exchanged by the parties in connection with signing the Merger Agreement. While Fresh Vine and Notes Live do not believe that these disclosure schedules contain information required to be publicly disclosed under the applicable securities laws, other than information that has already been so disclosed, the disclosure schedules do contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the attached Merger Agreement. Accordingly, you should not rely on the representations and warranties as current characterizations of factual information about Fresh Vine and Notes Live because they were made as of specific dates, may be intended merely as a risk allocation mechanism between Fresh Vine, Merger Sub and Notes Live and are modified by the disclosure schedules.

Structure

Merger Sub was formed as a wholly-owned subsidiary of Fresh Vine for the sole purpose of completing the merger transaction. Under the Merger Agreement at the effective time, Merger Sub will merge with and into Notes Live, with Notes Live surviving as the wholly-owned subsidiary of Fresh Vine.

Completion and Effectiveness of the Merger

The consummation of the merger will take place as promptly as practicable, but in no event later than the second business day after all of the conditions to completion of the merger are satisfied or waived, including certain approvals by the stockholders of Fresh Vine and the shareholders of Notes Live. Fresh Vine and Notes Live are working to complete the merger and expect that the merger will be completed in the second quarter of 2024, after the Fresh Vine special meeting of stockholders. However, Fresh Vine and Notes Live cannot predict the completion of the merger or the exact timing of the completion of the merger because it is subject to various conditions.

Merger Consideration

At the effective time, upon the terms and subject to the conditions set forth in the Merger Agreement, each outstanding share of Notes Live capital stock (excluding shares of Notes Live capital stock held by Fresh Vine and such shares held by holders of Notes Live capital stock who have exercised and perfected appraisal rights or dissenters’ rights) will be automatically converted solely into the right to receive a number of shares of Fresh Vine common stock equal to the exchange ratio described in more detail below. In addition, (i) each outstanding warrant to purchase shares of Notes Live capital stock will be exchanged (or otherwise amended) for a warrant to purchase shares of Fresh Vine common stock, with necessary adjustments to reflect the exchange ratio, and (ii) any then outstanding Notes Live promissory note that is convertible into Notes Live common stock will be exchanged, or otherwise amended, such that it will be convertible from and after the merger into shares of Fresh Vine common stock at a per share conversion price adjusted to reflect the exchange ratio.

No fractional shares of Fresh Vine common stock will be issued in connection with the merger, and no certificates or scrip for any such fractional shares will be issued. Any fractional shares of Fresh Vine common stock resulting from the conversion of Notes Live capital stock in the merger, and any Fresh Vine warrants or convertible promissory notes issuable in the merger to holders of Notes Live warrants or convertible promissory notes, shall be rounded down to the nearest whole number of shares, with no cash being paid for any fractional share eliminated by such rounding.

Exchange Ratio

The exchange ratio is calculated using a formula intended to allocate existing Fresh Vine and Notes Live stockholders a percentage of the combined company in which:

•        the Notes Live valuation is equal to $350,875,464, plus an amount equal to the aggregate gross proceeds received or to be received by Notes Live in the Notes Live Financing; and

•        the Fresh Vine Valuation is equal to $18.0 million, plus the amount of any Net Cash Surplus.

For such purposes, “Net Cash Surplus” means the amount by which the cash, cash equivalent assets or other liquid assets of Fresh Vine at the closing of the Merger transaction exceed the Net Cash Target, and the “Net Cash Target” means an aggregate of $3.5 million; provided that the Net Cash Target will be reduced on a dollar-for-dollar basis for the gross proceeds of any equity investments in Notes Live made by Fresh Vine, its affiliates, or persons directly introduced to Notes Live by Fresh Vine or its affiliates from December 1, 2023 through the effective date of the Merger (but excluding a $500,000 equity investment in Notes Live made by Fresh Vine upon entering into the letter of intent with Note Live for the merger transaction (the “Fresh Vine Equity Investment”)).

As contemplated by the Merger Agreement, Fresh Vine intends to effect a reverse stock split at or around the effect date of the merger at a ratio that results in the exchange ratio in the merger being as near to one as reasonably practicable.

On a pro forma basis and without adjustment for gross proceeds from the Notes Live Financing or any Net Cash Surplus, pre-merger Notes Live shareholders are expected to own approximately 95.1% of the outstanding shares of capital stock of the combined company and pre-merger Fresh Vine stockholders are expected to own approximately 4.9% of the outstanding shares of capital stock of the combined company.

The exchange ratio formula is the quotient obtained by dividing the number of Notes Live Merger Shares (defined below) by the Notes Live outstanding shares (defined below), in which:

•        “Aggregate Valuation” means the sum of (i) the Notes Live Valuation, plus (ii) the Fresh Vine Valuation.

•        “Fresh Vine Allocation Percentage” means the quotient (rounded to four decimal places) determined by dividing (i) the Fresh Vine Valuation by (ii) the Aggregate Valuation.

•        “Fresh Vine Valuation” means $18,000,000, plus the amount of any Net Cash Surplus.

•        “Fresh Vine Outstanding Shares” means the total number of shares of Fresh Vine common stock outstanding immediately prior to the effective time of the merger (which shall include shares of Fresh Vine common stock issued upon conversion of the Fresh Vine Preferred Stock) expressed on a diluted basis assuming only the issuance of shares of Fresh Vine common stock issuable upon the exercise of warrants, if any, issued following the date of the Merger Agreement and prior to the effective time of the merger that are outstanding as of immediately prior to such effective time and have an exercise price equal to or less than $0.50 per share (as adjusted to reflect any stock splits, stock dividends, recapitalizations, combinations, reorganizations or other similar transactions affecting the Fresh Vine capital stock, including without limitation the reverse stock split).

•        “Net Cash” means cash, cash equivalent assets or other liquid assets of Fresh Vine, excluding the effects of any payments or liabilities (including attorneys’ fees) in respect of holders of Notes Live capital stock who have exercised and perfected appraisal rights or dissenters’ rights in connection with the merger.

•        “Net Cash Surplus” means the amount by which the Net Cash exceeds the Net Cash Target, if any.

•        “Net Cash Target” means an aggregate of $3,500,000 in cash, cash equivalent assets or other liquid assets of Fresh Vine; provided that the Net Cash Target shall be reduced on a dollar-for-dollar basis for the gross proceeds of any equity investments in Notes Live (or any subsidiary thereof) made by Fresh Vine, its affiliates, or persons directly introduced to Notes Live by Fresh Vine or an affiliate of Fresh Vine from December 1, 2023 through the effective date (but exclusive of the Fresh Vine Equity Investment).

•        “Notes Live Allocation Percentage” means the quotient (rounded to four decimal places) determined by dividing (i) the Note Live Valuation by (ii) the Aggregate Valuation.

•        “Notes Live Merger Shares” means the product determined by multiplying (i) the Post-Closing Fresh Vine Shares by (ii) the Notes Live Allocation Percentage.

•        “Notes Live Valuation” means $350,875,464 plus an amount equal to the aggregate gross proceeds that Notes Live actually receives in the Notes Live Financing prior to the effective time, but excluding the proceeds from the Fresh Vine Equity Investment.

•        “Post-Closing Fresh Vine Shares” means the total number of shares of Fresh Vine common stock to be issued and outstanding immediately following the closing of the merger, being comprised of (a) the Fresh Vine Outstanding Shares at such closing (after giving effect to the conversion of the Fresh Vine Preferred Stock and the reverse stock split), and (b) the number of shares of Fresh Vine common stock to be issued in the merger to the holders of Notes Live capital stock, such that (i) the Fresh Vine Outstanding Shares represent a percentage of the Post-Closing Fresh Vine Shares equal to the Fresh Vine Allocation Percentage; (b) the shares of Fresh Vine common stock to be issued in the merger to the holders of Notes Live capital stock represent a percentage of the Post-Closing Fresh Vine Shares equal to the Company Allocation Percentage; and (c) the exchange ratio is as near to one (1) as reasonable practicable.

Treatment of Fresh Vine Preferred Stock, Equity Awards and Warrants

Fresh Vine Preferred Stock

Holders of Fresh Vine Preferred Stock have agreed to convert such shares into Fresh Vine common stock upon the closing of the merger, subject to Fresh Vine stockholders approving the issuance of common stock upon such conversion in excess of the existing “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificates of Designation of the Fresh Vine Preferred Stock.

Fresh Vine Stock Options

All outstanding and unexercised Fresh Vine options granted pursuant to or outside of the Fresh Vine, Inc. 2021 Equity Incentive Plan will remain in effect pursuant to their terms and will be unaffected by the merger. The number of shares Fresh Vine common stock underlying such options and the exercise prices for such Fresh Vine options will be appropriately adjusted to reflect the proposed reverse stock split, if approved.

Fresh Vine Warrants

All outstanding and unexercised warrants to purchase Fresh Vine common stock, or Fresh Vine warrants, immediately prior to the effective time will remain in effect pursuant to their terms and will be unaffected by the merger. The number of shares Fresh Vine common stock underlying such Fresh Vine warrants and the exercise prices for such Fresh Vine warrants will be appropriately adjusted to reflect the proposed reverse stock split, if approved.

Treatment of Notes Live Warrants

At the effective time of the merger, each outstanding warrant to purchase shares of Notes Live capital stock will be exchanged (or otherwise amended) for a warrant to purchase shares of Fresh Vine common stock, with necessary adjustments to reflect the exchange ratio.

Treatment of Notes Live Convertible Note

At the effective time of the merger, any then outstanding Notes Live promissory note that is convertible into Notes Live common stock will be exchanged, or otherwise amended, such that it will be convertible from and after the merger into shares of Fresh Vine common stock at a per share conversion price adjusted to reflect the exchange ratio. None of these exist for Notes Live.

Directors and Officers of Fresh Vine Following the Merger

Pursuant to the terms of the Merger Agreement, effective upon the effective time, all then-current Fresh Vine directors and officers will resign, and Fresh Vine and Notes Live will use commercially reasonable efforts and take all necessary action so that the persons designated by Notes Live are elected or appointed, as applicable,

to the positions of officers or directors of Fresh Vine, to serve in such positions effective as of the effective time. Effective as of the effective time, the Fresh Vine board of directors is expected to be comprised of seven directors. It is anticipated that Notes Live’s director designees will be JW Roth, Heather Atkinson, Steve Cominskey, Matt Craddock, Chad Hennings, David Lavigne and Mitchell Roth. It is anticipated that Fresh Vine’s executive officers upon the closing of the merger will be JW Roth (Chief Executive Officer),Robert Mudd (President and Chief Operating Officer) and Heather Atkinson (Chief Financial Officer and Secretary).

Amendments to the Fresh Vine Articles of Incorporation

Stockholders of record of Fresh Vine capital stock on the record date for the Fresh Vine special meeting will be asked to approve Proposal Nos. 2 and 3, which include amendments to the Fresh Vine Articles of Incorporation to (i) change the Fresh Vine corporate name to “Notes Live Holding Corp.”, and (ii) to effect the proposed reverse stock split in connection with consummation of the merger and, if and when the reverse stock split is effected, establish the number of authorized shares of Fresh Vine common stock at 150,000,000. These amendments to the Fresh Vine Articles of Incorporation require the affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Series A Convertible Preferred Stock outstanding on the record date.

Conditions to the Completion of the Merger

The following contains a description of all material conditions to the completion of the merger. Each party’s obligation to effect the merger and otherwise consummate the other transactions contemplated by the Merger Agreement at the closing of the merger, is subject to the satisfaction or, the extent permitted by applicable law, the written waiver by each of the parties, at or prior to the closing of the merger, of various conditions, which include the following:

•        the registration statement on Form S-4, of which this proxy statement/prospectus is a part, must have become effective in accordance with the Securities Act and must not be subject to any stop order or proceeding (or any proceeding threatened by the SEC) seeking a stop order with respect to such registration statement that has not been withdrawn;

•        no temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the transactions contemplated by the Merger Agreement shall have been issued by any court of competent jurisdiction or other governmental authority of competent jurisdiction and remain in effect and there shall not be any law which has the effect of making the consummation of the transactions contemplated by the Merger Agreement illegal;

•        Fresh Vine shall have obtained the “required Fresh Vine stockholder vote,” whereby the affirmative vote of (a) a majority of the voting power of the shares of Fresh Vine common stock and Fresh Vine Preferred Stock (voting together with the Fresh Vine common stock as provided in the Certificate of Designation of Preferences, Rights and Limitations of the Fresh Vine Preferred Stock) entitled to vote thereon must have approved (i) the amendment to the Fresh Vine Articles of Incorporation to change the corporate name of Fresh Vine to “Notes Live Holding Corp.,” (ii) the amendment to the Fresh Vine Articles of Incorporation to effect the proposed reverse stock split and, if and when the reverse stock split is effected, establish the number of authorized shares of Fresh Vine common stock at 150,00,000, and (iii) the liquidation, spinning-out, distribution, or other disposition of the Fresh Vine legacy assets or discontinuance of the Fresh Vine legacy business; (b) a majority of the voting power of the shares of Fresh Vine common stock and Fresh Vine Preferred Stock (voting together with the Fresh Vine common stock as provided in the Certificates of Designation of Preferences, Rights and Limitations of the Fresh Vine Preferred Stock) entitled to vote thereon and present in person or represented by proxy at the Fresh Vine special meeting must have approved the issuance of the Fresh Vine common stock comprising the merger consideration to the holders of Notes Live capital stock and the change of control of Fresh Vine resulting from the merger pursuant to the NYSE American rules; (c) a majority of the voting power of all shares of Fresh Vine common stock and Series B Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting must have approved, upon conversion or exchange of Series A Convertible Preferred Stock, the issuance of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of

Preferences, Rights and Limitations of the Series A Convertible Preferred Stock (noting that the holders of Series A Convertible Preferred Stock are not entitled to vote their shares of Series A Convertible Preferred Stock on the proposal to approve the issuance of shares of Fresh Vine common stock in excess of such “Exchange Share Cap” and “Individual Holder Share Cap”, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of or as a dividend on Series A Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of such proposal); and (d) a majority of the voting power of all shares of Fresh Vine common stock and Series A Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting must have approved, upon conversion or exchange of Series B Convertible Preferred Stock, the issuance of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of Preferences, Rights and Limitations of the Series B Convertible Preferred Stock (noting that the holders of Series B Convertible Preferred Stock are not entitled to vote their shares of Series B Convertible Preferred Stock on the proposal to approve the issuance of shares of Fresh Vine common stock in excess of such “Exchange Share Cap” and “Individual Holder Share Cap”, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of Series B Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of such proposal);

•        Notes Live shall have obtained the “required Notes live shareholder vote,” whereby the affirmative vote of the holders of majority of the shares of Notes Live capital stock entitled to vote thereon must have adopted and approved the Merger Agreement and the transactions contemplated by the Merger Agreement; and

•        the approval of the listing of the shares of Fresh Vine common stock comprising the merger consideration must have been approved for listing on the NYSE American and, if applicable, approval of an NYSE American initial listing application must have been obtained and the shares of Fresh Vine common stock to be issued in the merger shall have been approved for listing (subject to official notice of issuance) on the NYSE American under the ticker symbol “VENU”; and

•        If applicable, all required filings under the HSR Act shall have been completed and any waiting period applicable to the consummation of the merger under the HSR Act shall have expired or been terminated.

In addition, the obligation of Fresh Vine and Merger Sub to effect the merger and otherwise consummate the other transactions contemplated by the Merger Agreement at the closing of the merger is further subject to the satisfaction or written waiver by Fresh Vine of the following conditions:

•        The representations and warranties of Notes Live in the Merger Agreement regarding certain matters related to due organization and qualification, organizational documents, authority, vote required and financial advisors must have been true and correct in all material respects as of the date of the Merger Agreement and must be true and correct in all material respects on and as of the closing date, representations and warranties of Notes Live in the Merger Agreement regarding the capitalization of Notes Live must have been true and correct in all respects as of the date of the Merger Agreement and must be true and correct in all respects on and as of the closing date (except for de minimis inaccuracies in the case of capitalization), and the remaining representations and warranties of Notes Live in the Merger Agreement must have been true and correct as of the date of the Merger Agreement and must be true and correct on and as of the closing date except where the failure to be true and correct would not have a Notes Live material adverse effect (as defined below)(in all cases, except to the extent such representations and warranties are specifically made as of a particular date, in which case they speak only as of such date);

•        Notes Live shall have performed or complied with in all material respects all agreements and covenants required to be performed or complied with by it under the Merger Agreement at or prior to the effective time;

•        Fresh Vine shall have received a certificate executed by the Chief Executive Officer of Notes Live certifying that certain closing conditions have been duly satisfied and that the information set forth in an allocation certificate delivered by Notes Live is true and accurate in all respects as of the closing date;

•        Fresh Vine shall have received a certificate pursuant to Treasury Regulations Sections 1.1445-2(c) and 1.897-2(h), together with a form of notice to the IRS in accordance with the requirements of Treasury Regulations Section 1.897-2(h), in each case, in form and substance reasonably acceptable to Fresh Vine;

•        since the date of the Merger Agreement, there shall not have occurred any Notes Live material adverse effect, which means any effect, change, event, circumstance, or development that has or would reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities or results of operations of Notes Live or its subsidiaries, taken as a whole, subject to exceptions set forth in the Merger Agreement;

•        Notes Live must have caused the agreement(s) between Notes Live and all Notes Live shareholders who, as of the date of the Merger Agreement, were subject to any contractual limitations and restrictions related to the amount and timing by which they may sell, transfer or otherwise dispose of their Notes Live common stock (“leak-out restrictions”), or who became subject to leak-out restrictions between the date of the Merger Agreement and the closing date, to have been amended to cause the leak-out restrictions to apply to, or otherwise to Notes Live’s satisfaction such leak-out restrictions must be deemed binding upon, the shares of Fresh Vine common stock to be issued in the merger to the Notes Live shareholders; and

•        the adoption and approval of the Merger Agreement and the transactions contemplated by the Merger Agreement must be in full force and effect.

In addition, the obligation of Notes Live to effect the merger and otherwise consummate the transactions to be consummated at the closing of the merger is further subject to the satisfaction or written waiver by Notes Live of the following conditions:

•        The representations and warranties of Fresh Vine and Merger Sub in the Merger Agreement regarding certain matters related to due organization and qualification, organizational documents, authority, vote required and financial advisors must have been true and correct in all material respects as of the date of the Merger Agreement and must be true and correct in all material respects on and as of the closing date, representations and warranties of Fresh Vine and Merger Sub in the Merger Agreement regarding the capitalization of Fresh Vine must have been true and correct in all respects as of the date of the Merger Agreement and must be true and correct in all respects on and as of the closing date (except for de minimis inaccuracies in the case of capitalization), and the remaining representations and warranties of Fresh Vine and Merger Sub in the Merger Agreement must have been true and correct as of the date of the Merger Agreement and must be true and correct on and as of the closing date except where the failure to be true and correct would not have a Fresh Vine material adverse effect (as defined below)(in all cases, except to the extent such representations and warranties are specifically made as of a particular date, in which case they speak only as of such date);

•        Fresh Vine and Merger Sub shall have performed or complied with in all material respects all agreements and covenants required to be performed or complied with by them under the Merger Agreement at or prior to the effective time;

•        Notes Live shall have received a certificate executed by an executive officer of Fresh Vine confirming that certain closing conditions have been duly satisfied;

•        Notes Live shall have received written resignations in forms satisfactory to Notes Live, dated as of the closing date and effective as of the closing, executed by all of the officers and directors of Fresh Vine;

•        since the date of the Merger Agreement, there shall not have occurred any Fresh Vine material adverse effect, which means any effect, change, event, circumstance, or development that has or would reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities or results of operations of Fresh Vine or its subsidiaries, taken as a whole, subject to exceptions set forth in the Merger Agreement;

•        at the effective time (i) the amount of cash, cash equivalent assets or other liquid assets of Fresh Vine must exceed the Net Cash Target, and (ii) Fresh Vine must have no liabilities on its balance sheet or unpaid or unsatisfied obligations that will require a cash expenditure by Fresh Vine after the

effective time. For such purposes, the “Net Cash Target” means an aggregate of $3.5 million; provided the Net Cash Target will be reduced on a dollar-for-dollar basis for the gross proceeds of any equity investments in Notes Live made by Fresh Vine, its affiliates, or persons directly introduced to Notes Live by Fresh Vine or its affiliates from December 1, 2023 through the effective date (but excluding a $500,000 equity investment in Notes Live made by Fresh Vine upon entering into the letter of intent with Note Live for the merger transaction (the “Fresh Vine Equity Investment”)). No later than three days prior to the effective time, Fresh Vine is required to provide Notes Live with evidence that Fresh Vine will achieve the Net Cash Target and its calculation of the Net Cash Surplus, which is the amount by which the cash, cash equivalent assets or other liquid assets of Fresh Vine at the effective time exceeds the Net Cash Target, if any;

•        On or before the closing, Fresh Vine shall have effected a liquidation, spin out, distribution, or otherwise disposition of the Fresh Vine legacy assets and, in connection therewith, shall have caused any and all known obligations or liabilities associated with the assets or conduct of the Fresh Vine legacy business operations to be satisfied, or discontinued the Fresh Vine legacy business, in a manner reasonably acceptable to Notes Live;

•        No holders of Notes Live common stock outstanding immediately prior to the effective time shall have validly exercised or remain entitled to exercise appraisal rights for such Notes Live common stock; and

•        in the sole discretion of Notes Live, Notes Live must have caused the agreement(s) between Notes Live and all Notes Live shareholders who, as of the date of the Merger Agreement, were subject to leak-out restrictions with respect to their Notes Live common stock, or who became subject to leak-out restrictions between the date of the Merger Agreement and the closing date, to have been amended to cause the leak-out restrictions to apply to, or otherwise to Notes Live’s satisfaction such leak-out restrictions must be deemed binding upon, the shares of Fresh Vine common stock to be issued in the merger to the Notes Live shareholders.

Representations and Warranties

The Merger Agreement contains customary representations and warranties of Fresh Vine and Notes Live for a transaction of this type relating to, among other things:

•        corporate organization and power, and similar corporate matters;

•        organizational documents;

•        authority to enter into the Merger Agreement and the related agreements, and the binding nature thereof;

•        votes required for completion of the merger and approval of the proposals that will come before the Fresh Vine special meeting and that will be the subject of the Notes Live shareholder vote;

•        except as otherwise specifically disclosed in the Merger Agreement, the fact that the consummation of the merger would not contravene the organizational documents, certain laws, governmental authorization or certain contracts of the parties, or result in any encumbrance on the parties’ assets or require the consent of any third party;

•        capitalization;

•        financial statements and with respect to Fresh Vine, documents filed with the SEC and the accuracy of information contained in those documents;

•        material changes or events;

•        liabilities;

•        Real property and title to assets;

•        intellectual property;

•        the validity of material contracts to which the parties or their subsidiaries are a party and any violation, default or breach to such material contracts;

•        regulatory compliance, permits and restrictions;

•        legal proceedings and orders;

•        tax matters;

•        Labor and employment matters;

•        employee benefit plans;

•        environmental matters;

•        insurance;

•        any brokerage or finder’s fee or other fee or commission in connection with the merger;

•        certain transactions or relationships with affiliates; and

•        with respect to Fresh Vine, the valid issuance in the merger of Fresh Vine common stock.

The representations and warranties are, in many respects, qualified by materiality and knowledge and will not survive the merger, but their accuracy forms the basis of one of the conditions to the obligations of Fresh Vine and Notes Live to complete the merger.

No Solicitation

Except as expressly permitted by the Merger Agreement, each of Fresh Vine and Notes Live agreed that during the pre-closing period, except as described below, Fresh Vine and Notes Live will not, nor will either party authorize any of the directors, officers, employees, agents, attorneys, accountants, investment bankers, advisors or representatives retained by it or any of its subsidiaries to, directly or indirectly:

•        solicit, initiate or knowingly encourage, induce or facilitate the communication, making, submission or announcement of any acquisition proposal or acquisition inquiry or take any action that could reasonably be expected to lead to an acquisition proposal or acquisition inquiry;

•        furnish any non-public information regarding the party to any person in connection with or in response to an acquisition proposal or acquisition inquiry;

•        engage in discussions or negotiations with any person with respect to any acquisition proposal or acquisition inquiry;

•        approve, endorse or recommend any acquisition proposal;

•        execute or enter into any letter of intent or any contract contemplating or otherwise relating to any acquisition transaction (other than a confidentiality agreement permitted under the Merger Agreement); or

•        publicly propose to do any of the above.

The Merger Agreement also provides that each of Fresh Vine and Notes Live will immediately cease and cause to be terminated any existing discussions, negotiations and communications with any person that relate to any acquisition proposal or acquisition inquiry as of the date of the Merger Agreement and request the destruction or return of any non-public information of Fresh Vine and Notes Live provided to such person.

An “acquisition inquiry” means, with respect to a party, an inquiry, indication of interest or request for information (other than an inquiry, indication of interest or request for information made or submitted Notes Live, on the one hand, or Fresh Vine, on the other hand, to the other party) that could reasonably be expected to lead to an acquisition proposal.

An “acquisition proposal” means, with respect to a party, any offer or proposal, whether written or oral (other than an offer or proposal made or submitted by or on behalf of Notes Live or any of its affiliates, on the one hand, or by or on behalf of Fresh Vine or any of its affiliates, on the other hand, to the other party) contemplating or otherwise relating to any acquisition transaction with such party

An “acquisition transaction” means any transaction or series of related transactions involving

•        any merger, consolidation, amalgamation, share exchange, business combination, issuance of securities, acquisition of securities, reorganization, recapitalization, tender offer, exchange offer or other similar transaction: (i) in which a party is a constituent entity, (ii) in which a person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) of persons directly or indirectly acquires beneficial or record ownership of securities representing more than 20% of the outstanding securities of any class of voting securities of a party or any of its subsidiaries or (iii) in which a party or any of its subsidiaries issues securities representing more than 20% of the outstanding securities of any class of voting securities of such party or any of its subsidiaries; or

•        any sale, lease, exchange, transfer, license, acquisition or disposition of any business or businesses or assets that constitute or account for 20% or more of the consolidated book value or the fair market value of the assets of a party and its subsidiaries, taken as a whole, other than the sale, divestiture and/or winding down of the Fresh Vine legacy business or the sale, license or other disposition of any or all of the Fresh Vine legacy assets by Fresh Vine.

Notwithstanding the foregoing, before obtaining the applicable approvals of the stockholders of Fresh Vine or Notes Live required to consummate the merger, as applicable,

Fresh Vine may furnish non-public information regarding itself and its subsidiaries (if any) to, and enter into discussions or negotiations with, any person in response to a bona fide written unsolicited acquisition proposal by such person, which Fresh Vine’s board of directors determines in good faith, after consultation with Fresh Vine’s financial advisors and outside legal counsel, constitutes, or is reasonably likely to result in, a Superior Offer (as defined below) (and is not withdrawn) if:

•        neither Fresh Vine nor any directors, officers, employees, agents, attorneys, accountants, investment bankers, advisors or representatives retained by it or any of its subsidiaries shall have breached the no solicitation provisions of the Merger Agreement in any material respect;

•        the board of directors of Fresh Vine concludes in good faith based on the advice of outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the board of directors’ fiduciary duties under applicable law;

•        at least two business days prior to initially furnishing any such nonpublic information to, or entering into discussions with, such person, Fresh Vine gives Notes Live written notice of the identity of such person and of Fresh Vine’s intention to furnish nonpublic information to, or enter into discussions with, such person,

•        Fresh Vine receives from such person an executed confidentiality agreement containing terms not materially less restrictive in the aggregate to the counterparty thereto than the terms of the confidentiality agreement between Fresh Vine and Notes Live, except such confidentiality agreement need not contain any standstill, non-solicitation or no hire provisions; and

•        Fresh Vine furnishes such nonpublic information to Notes Live (to the extent such information has not been previously furnished by Fresh Vine to Notes Live) contemporaneously with providing such nonpublic information to such person. Without limiting the generality of the foregoing, each Party acknowledges and agrees that, in the event any Representative of such Party (whether or not such Representative is purporting to act on behalf of such Party) takes any action that, if taken by such Party, would constitute a breach of this Section 5.4 by such Party, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 5.4 by such Party for purposes of this Agreement

•        and (E) Fresh Vine furnishes such nonpublic information to the Company (to the extent such information has not been previously furnished by Fresh Vine to the Company) contemporaneously with providing such nonpublic information to such person.

A “superior offer” means an unsolicited bona fide written acquisition proposal (with all references to 20% in the definition of acquisition transaction being treated as references to 50% for these purposes) that (a) was not obtained or made as a direct or indirect result of a breach of (or in violation of) the Merger Agreement and (b) is on terms and conditions that the Fresh Vine board of directors determines in good faith, based on such matters that it deems relevant (including the likelihood of consummation thereof and the financing terms thereof), as well as any written offer by Notes Live to amend the terms of the Merger Agreement, and following consultation with its outside legal counsel and financial advisors, if any, are more favorable, from a financial point of view, to Fresh Vine’s stockholders than the terms of the transactions contemplated by the Merger Agreement and is not subject to any financing conditions (and if financing is required, such financing is then fully committed to the third party).

The Merger Agreement also provides that each party will promptly advise the other in writing of such acquisition proposal or acquisition inquiry (including the identity of the person making or submitting such acquisition proposal or acquisition inquiry (subject to any confidentiality restrictions that may be in place between the applicable party and such person as of the date of the Merger Agreement), and a copy of the acquisition proposal or acquisition inquiry, or if the acquisition proposal or acquisition inquiry is not written, a summary of the terms thereof). Each party shall keep the other party reasonably informed with respect to the status and terms of any such acquisition proposal or acquisition inquiry and any material modification or proposed material modification thereto.

Changes in Board Recommendation

As described above, and subject to the provisions described below, (i) the Fresh Vine board of directors recommends that Fresh Vine stockholders vote “FOR” all of the proposals described in this proxy statement/prospectus and (ii) the Notes Live board of directors recommends that Notes Live shareholders vote in favor of the approval of the merger, the Merger Agreement, and the transactions contemplated therein, substantially in accordance with the terms of the Merger Agreement and the other agreements contemplated by the Merger Agreement.

Under the Merger Agreement, subject to certain exceptions described below, Fresh Vine agreed that the Fresh Vine board of directors may not take any of the following actions, each of which are referred to in this proxy statement/prospectus as a Fresh Vine board of directors adverse recommendation change:

•        withdraw or modify (or publicly propose to withdraw or modify) Fresh Vine’s board of directors’ recommendation in favor of the proposals described in this proxy statement/prospectus in a manner adverse to Notes Live; or

•        adopt, approve or recommend (or publicly propose to adopt, approve or recommend) any acquisition proposal

However, notwithstanding the foregoing, at any time prior to the approval of the proposals to be considered at the Fresh Vine special meeting by the required Fresh Vine stockholder vote, if (i) Fresh Vine has received a bona fide written superior offer, or (ii) as a result of a material development or change in circumstances (other than any such event, development or change to the extent related to (A) any acquisition proposal, acquisition inquiry or the consequences thereof or (B) the fact, in and of itself, that Fresh Vine meets or exceeds internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations) that occurs or arises after the date of the Merger Agreement (a “Fresh Vine Intervening Event”), the Fresh Vine board of directors may make a Fresh Vine board of directors adverse recommendation change if, but only if

•        in the case of receipt of and on account of such superior offer, the Fresh Vine board of directors determines in good faith, based on the advice of its outside legal counsel, that the failure to withdraw or modify Fresh Vine’s board of directors’ recommendation would constitute a violation of the Fresh Vine board of director’s fiduciary duties under applicable law; provided that

•        Notes Live receives written notice from Fresh Vine confirming that the Fresh Vine board of directors has determined to change its recommendation during an applicable notice period, which is referred to as the notice period, which notice shall include a description in reasonable detail of the reasons for such Fresh Vine board of directors adverse recommendation change, and written copies of any relevant proposed transaction agreements with any party making a potential superior offer;

•        Notes Live shall be entitled to deliver to Fresh Vine one or more counterproposals to the acquisition proposal and Fresh Vine shall negotiate with Notes Live in good faith (to the extent Notes Live desires to negotiate) to make such adjustments in the terms and conditions of the Merger Agreement so that the applicable acquisition proposal ceases to constitute a superior offer; and

•        in the event of any material amendment to any superior offer (including any revision in price or percentage of the combined company that Fresh Vine’s stockholders would receive as a result of such potential superior offer), Fresh Vine shall be required to provide Notes Live with notice of such material amendment and the notice period shall be extended, if applicable, to ensure that at least two business days remain in the notice period following such notification during which the parties shall comply again with the requirements in this provision and the Fresh Vine board of directors shall not make a Fresh Vine board of directors adverse recommendation change prior to the end of such notice period as so extended (it being understood that there may be multiple extensions); or

•        in the case of a Fresh Vine Intervening Event, Fresh Vine promptly notifies Notes Live in writing, within the notice period before making a Fresh Vine board of directors adverse recommendation change, which notice shall state the material facts and circumstances related to the applicable Fresh Vine Intervening Event and that the Fresh Vine board of directors intends to make a Fresh Vine board of directors adverse recommendation change.

Meetings of Fresh Vine stockholders; Consent of Notes Live stockholders

Fresh Vine is obligated under the Merger Agreement to call, give notice of and hold the Fresh Vine special meeting for the purposes of considering the approval of the proposals that are the subject of the Fresh Vine stockholder vote. Notes Live is obligated under the Merger Agreement to prepare, with the cooperation of Fresh Vine, and cause to be mailed to Note’s Live’s shareholders an information statement, which shall include a copy of this proxy statement/prospectus and include a description of the appraisal rights of the shareholders of Notes Live available under the relevant provisions of the Colorado Business Corporation Act, and to obtain the approval by written consent from the holders of majority of Notes Live’s capital stock entitled to vote on the record date for such written consent for the adoption and approval of the Merger Agreement and the transactions contemplated thereby, or otherwise hold a meeting of its shareholders, for purposes of adopting and approving the Merger Agreement and the transactions contemplated thereby.

Covenants; Conduct of Business Pending the Merger

Except as expressly permitted by the Merger Agreement or any exhibit, certificate, document, instrument or agreement executed in connection with the Merger Agreement and the transactions contemplated thereby, as set forth on a disclosure schedule delivered to Note Live, as required by applicable law, any action taken or not taken by Fresh Vine or Merger Sub in good faith to respond to changes in relationships with officers, employees, agents, independent contractors, suppliers, customers and other business partners, or unless Notes Live shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or conditioned), during the period commencing on the date of the Merger Agreement and continuing until the earlier to occur of the termination thereof and the effective time, or the pre-closing period, Fresh Vine will use commercially reasonable efforts to conduct its business and operations in the ordinary course of business and in material compliance with all applicable laws and the requirements of certain material contracts.

Fresh Vine has also agreed that, except as expressly permitted by the Merger Agreement or any exhibit, certificate, document, instrument or agreement executed in connection with the Merger Agreement and the transactions contemplated thereby, as set forth on a disclosure schedule delivered to Note Live, as required by applicable law, any action taken or not taken by Fresh Vine or Merger Sub in good faith to respond to changes in relationships with officers, employees, agents, independent contractors, suppliers, customers and other business partners, or unless Notes Live shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or conditioned), at all times during the pre-closing period, it will not do any of the following:

•        declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stock (except for the accrual of dividends on the Fresh Vine Preferred Stock pursuant to the Certificate of Designation of Preferences, Rights and Limitations of the Fresh Vine Preferred Stock) or repurchase, redeem or otherwise reacquire any shares of its capital stock or other securities (except for shares of Fresh Vine common stock from terminated employees, directors or consultants of Fresh Vine);

•        except for issuing securities of Fresh Vine in connection with capital raising activities, sell, issue, grant, pledge or otherwise dispose of or encumber or authorize the issuance of any capital stock or other security (except for Fresh Vine common stock issued upon the valid exercise or settlement of outstanding Fresh Vine stock options or warrants, or upon the conversion or exercise of Fresh Vine Preferred Stock, as applicable), any option, warrant or right to acquire any capital stock or any other security, or any instrument convertible into or exchangeable for any capital stock or other security;

•        except as required to give effect to the transactions contemplated by the Merger Agreement, amend the organizational documents of Fresh Vine, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction, except, for the avoidance of doubt, the transactions contemplated under the Merger Agreement;

•        form any subsidiary or acquire any equity interest, or other interest in any other entity, or enter into any joint venture with any other entity, other than in connection with preparation for and engaging in a Fresh Vine legacy transaction;

•        lend money to any person, incur or guarantee any indebtedness for borrowed money, other than in the ordinary course of business, or guarantee any debt securities of others;

•        other than in the ordinary course of business adopt, establish or enter into any Fresh Vine employee plan, cause or permit any Fresh Vine employee plan to be amended other than as required by law or in order to make amendments for the purposes of Section 409A of the Code, (C) any bonus or make any profit-sharing or similar payment to (except with respect to obligations pursuant to any Fresh Vine employee plan), or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its employees, directors or consultants, which increase would continue in effect after the closing, or increase the severance or change of control benefits offered to any current or new employees, directors or consultants;

•        enter into any material transaction outside the ordinary course of business;

•        acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its assets or properties, or grant any encumbrance with respect to such assets or properties, except in the ordinary course of business;

•        make, change or revoke any material tax election; file any material amendment to any tax return or adopt or change any material accounting method in respect of taxes; enter into any material tax closing agreement, settle any material tax claim or assessment, or consent to any extension or waiver of the limitation period applicable to or relating to any material tax claim or assessment, other than any such extension or waiver that is obtained in the ordinary course of business;

•        enter into, amend or terminate certain material contracts; or

•        agree, resolve, or commit to do any of the foregoing.

Notwithstanding any provision in the Merger Agreement to the contrary (including the foregoing restrictions on the conduct of business during the pre-closing period), Fresh Vine will be permitted to engage in the sale, license, transfer, disposition, divestiture or other monetization transaction (e.g., a royalty transaction) or winding down of the Fresh Vine legacy business, pursuant to a Fresh Vine legacy transaction.

Notes Live has agreed that, except as expressly contemplated by the Merger Agreement or any exhibit, certificate, document, instrument or agreement executed in connection with the Merger Agreement and the transactions contemplated thereby or as required by applicable law, or unless Fresh Vine shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or conditioned), Notes Live will, and will cause its subsidiaries to, use commercially reasonable efforts to conduct its and their respective businesses in the ordinary course of business and in material compliance with all applicable laws and the requirements of certain material contracts, and to maintain and preserve intact in all material respects the business organization, assets, properties and material business relations of Notes Live and its subsidiaries taken as a whole.

Notes Live has also agreed that, except as expressly contemplated by the Merger Agreement or any exhibit, certificate, document, instrument or agreement executed in connection with the Merger Agreement and the transactions contemplated thereby or as required by applicable law, or unless Fresh Vine shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or conditioned), at all times during the pre-closing period, it will not do any of the following:

•        amend or otherwise change its articles of incorporation or bylaws or equivalent organizational documents, except to increase its authorized capital to accommodate certain on-going capital raising transactions that may be conducted during the pre-closing period;

•        sell any assets of Notes Live or any subsidiary that would reasonably be expected to have a Notes Live material adverse effect;

•        declare, accrue, set aside, make or pay any dividend or make any other distribution, payable in cash, stock, property or otherwise, with respect to any of its equity interests;

•        reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its equity interests;

•        except in the ordinary course of business, sell, issue, grant, pledge or otherwise dispose of or encumber or authorize the issuance of any capital stock or other security (except for Notes Live common stock issued upon the valid exercise or settlement of Notes Live warrants outstanding on the date of the Merger Agreement), any option, warrant or right to acquire any capital stock or any other security, or any instrument convertible into or exchangeable for any capital stock or other security;

•        (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or substantially all of the assets or any other business combination) any material assets or any entity or any division thereof; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any person, or make any loans or advances, or intentionally grant any security interest in any of its assets, other than (1) intercompany indebtedness among Notes Live and its subsidiaries, (2) indebtedness that is incurred in the ordinary course of business (and, with respect to borrowed money indebtedness, is reasonably necessary to meet any current obligations of Notes Live and its subsidiaries) or (3) bridge financing, indebtedness, or similar line of credit in an aggregate amount not to exceed $20.0 million and incurred for the on-going development and construction of the Sunset Amphitheater located in Colorado Springs, Colorado; or (iii) merge, consolidate, combine or amalgamate with any Person;

•        (i) grant any increase in the compensation, incentives or benefits payable or to become payable to any current or former executive officer of the Company, (ii) enter into any new or materially amend any existing, employment, retention, bonus, change in control, severance, redundancy or termination agreement with any current or former executive officer of Notes Live whose base salary is in excess of $250,000, (iii) accelerate or commit to accelerate the funding, payment, or vesting of any compensation or benefits to any current or former executive officer of Notes Live whose base salary is in excess of $250,000, (iv) establish or become obligated under any collective bargaining agreement, collective agreement, or other contract or agreement with a labor union, trade union, works council, or other representative of executive officers of Notes Live; (v) hire any new executive officers of Notes Live whose base salary is in excess of $250,000; provided, however, that the actions described in clause (i) will be permissible to the extent made in the ordinary course of business (and not to exceed 10% of the base compensation with respect to any such executive officer);

•        adopt, amend and/or terminate any material plan except as may be required by applicable law, that is necessary in order to consummate the transactions contemplated by the Merger Agreement, or health and welfare plan renewals in the ordinary course of business;

•        materially amend (other than reasonable and usual amendments in the ordinary course of business), the accounting policies or procedures, other than as required by GAAP;

•        amend any material tax return, change any material method of tax accounting, make (inconsistent with past practice), change or rescind any material election relating to taxes (including, for the avoidance of doubt, any election that results in Notes Live or any subsidiary being treated as other than a partnership or a disregarded entity for U.S. federal income tax purposes), or settle or compromise any material U.S. federal, state, local or non-U.S. tax audit, assessment, tax claim or other controversy relating to taxes;

•        enter into, amend or terminate certain material contracts;

•        enter into any material transaction outside the ordinary course of business;

•        fail to maintain its leased real property, including the improvements located thereon or used in connection therewith, in substantially the same condition as of the date of the Merger Agreement, except where the failure to maintain such leased real property would not reasonably be expected to have a Notes Live material adverse effect;

•        fail to maintain the existence of, or use reasonable efforts to protect, Notes Live registered intellectual property to the extent that such action or inaction would reasonably be expected to have a Notes Live material adverse effect;

•        permit any item of Notes Live registered intellectual property to lapse or to be abandoned, invalidated, dedicated to the public, or disclaimed, or otherwise become unenforceable or fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Notes Live registered intellectual property to the extent that such action or inaction would reasonably be expected to have a Notes Live material adverse effect;

•        waive, release, assign, settle or compromise any legal proceeding, other than waivers, releases, assignments, settlements or compromises that are solely monetary in nature and do not exceed $500,000 individually or $1,000,000 in the aggregate;

•        take any action or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the transactions contemplated by the Merger Agreement from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations; or

•        agree, resolve or commit to do any of the foregoing.

Other Agreements

Each of Fresh Vine and Notes Live has agreed to use its commercially reasonable efforts to cause to be taken all actions necessary to consummate the merger and the other transactions contemplated by the Merger Agreement. In connection therewith, each party has agreed to:

•        make all filings and other submissions (if any) and give all notices (if any) required to be made and given by such party in connection with the merger and the other transactions contemplated by the Merger Agreement;

•        use reasonable best efforts to obtain each consent (if any) required to be obtained (pursuant to any applicable law or contract, or otherwise) by such party in connection with the merger and the other transactions contemplated by the Merger Agreement;

•        use reasonable best efforts to lift any injunction prohibiting, or any other legal bar to, the merger and the other transactions contemplated by the Merger Agreement; and

•        use reasonable best efforts to satisfy the conditions precedent to the consummation of the Merger Agreement.

Pursuant to the Merger Agreement, Fresh Vine and Notes Live have further agreed that Fresh Vine will use its commercially reasonable efforts to:

•        to maintain its existing listing on NYSE American and to obtain approval of its continued listing on NYSE American immediately following the effective time;

•        to the extent required by the rules and regulations of NYSE American, to prepare and submit to NYSE American a supplemental listing application for the listing of the Fresh Vine common stock to be issued in connection with the merger; and

•        to the extent required by the NYSE American Company Guide, to file an initial listing application for the Fresh Vine common stock on NYSE American and to cause such initial listing application to be approved.

Fresh Vine and Notes Live have agreed to use commercially reasonable efforts to coordinate with respect to compliance with NYSE American rules and regulations, including without limitation entering into one or more amendments to the Merger Agreement, or agreements to agreements contemplated by the Merger Agreement, to the extent that (i) such amendment(s) are necessary for transactions contemplated by the Merger Agreement to be structured in a manner that would allow Fresh Vine to maintain its existing listing on NYSE American pending the closing and/or result in the NYSE initial listing application to be approved by NYSE American, and (ii) the material commercial terms and business objectives of the parties remain intact in all material respects.

Indemnification and Insurance for Directors and Officers

Under the Merger Agreement, from the effective time through the sixth anniversary of the date on which the effective time occurs, each of Fresh Vine and the surviving corporation will, jointly and severally, indemnify and hold harmless each person who is now, or has been at any time prior to the date of the Merger Agreement, or who becomes prior to the effective time, a director or officer of Fresh Vine or Notes Live, respectively, the indemnified parties, against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the indemnified party is or was an indemnified party, whether asserted or claimed prior to, at or after the effective time, in each case, to the fullest extent permitted under applicable law.

Each indemnified party will also be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Fresh Vine and the surviving corporation, jointly and severally, upon receipt by Fresh Vine or the surviving corporation from the indemnified party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Fresh Vine, to the extent then required by applicable law, to repay such advances if it is ultimately determined that such person is not entitled to indemnification.

The Merger Agreement also provides that the provisions of the articles of incorporation and bylaws of Fresh Vine with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Fresh Vine that are presently set forth in the articles of incorporation and bylaws of Fresh Vine shall not be amended, modified or repealed for a period of six years from the effective time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were officers or directors of Fresh Vine, unless such modification is required by applicable law. The articles of incorporation and bylaws of the surviving corporation shall contain, and Fresh Vine shall cause the articles of incorporation and bylaws of the surviving corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the articles of incorporation and bylaws of Fresh Vine.

From and after the effective time, (i) the surviving corporation shall fulfill and honor in all respects the obligations of Notes Live to its indemnified parties as of immediately prior to the effective time pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between Notes Live and such indemnified parties, with respect to claims arising out of matters occurring at or prior to the effective time and (ii) Fresh Vine shall fulfill and honor in all respects the obligations of Fresh Vine to its indemnified parties as of immediately prior to the closing pursuant to any indemnification provisions under Fresh Vine’s organizational documents and pursuant to any indemnification agreements between Fresh Vine and such indemnified parties, with respect to claims arising out of matters occurring at or prior to the effective time.

From and after the effective time, Fresh Vine will maintain directors’ and officers’ liability insurance policies, with an effective date as of the closing date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Fresh Vine. In addition, prior to the effective time,

Fresh Vine shall purchase a six-year prepaid “tail policy” for the non-cancellable extension of the directors’ and officers’ liability coverage of Fresh Vine’s existing directors’ and officers’ insurance policies with terms, conditions, and retentions that are no less favorable than the coverage provided under Fresh Vine’s existing policies as of the date of the Merger Agreement, with respect to claims arising out of or relating to events which occurred on or prior to the effective time (including in connection with the Merger Agreement and the transactions contemplated thereby).

Termination

The Merger Agreement may be terminated at any time prior to the effective time (whether before or after the required Notes Live stockholder vote and the required Fresh Vine stockholder vote have been obtained, unless otherwise specified below):

(a)     by mutual written consent of Fresh Vine and Notes Live;

(b)    by either Fresh Vine or Notes Live if the transactions contemplated by the Merger Agreement shall not have been consummated by July 31, 2024 (subject to possible extension as provided in the Merger Agreement), or the end date; provided, however, that this right to terminate the Merger Agreement shall not be available to any party whose action or failure to act has been a principal cause of the failure of the transactions contemplated by the Merger Agreement to occur on or before the end date and such action or failure to act constitutes a breach of the Merger Agreement, provided further, however, that, in the event that the SEC has not declared effective under the Securities Act the registration statement by the date which is 60 days prior to the end date, then either Notes Live or Fresh Vine shall be entitled to extend the end date to the date that is 60 days after the date that the SEC has declared effective the registration statement under the Securities Act, but in any event no more than 60 days after the original end date, by written notice to the other party;

(c)     by either Fresh Vine or Notes Live if a court of competent jurisdiction or governmental authority shall have issued a final and nonappealable judgment, order, writ, injunction, ruling, decision or decree, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting any of the transactions contemplated by the Merger Agreement;

(d)    by Fresh Vine if the Notes Live has not obtained the required Notes Live shareholder approval within 10 business days after the registration statement has become effective in accordance with the provisions of the Securities Act; provided, however, that once such Notes Live shareholder approval has been obtained, Fresh Vine may not terminate this Agreement pursuant to this provision;

(e)     by either Fresh Vine or Notes Live if the Fresh Vine special meeting (including any adjournments and postponements thereof) shall have been held and completed and Fresh Vine’s stockholders shall have taken a final vote and the proposals seeking approval of the transactions contemplated by the Merger Agreement shall not have been approved at the Fresh Vine special meeting (or at any adjournment or postponement thereof) by the required Fresh Vine stockholder vote; provided, however, that the right to terminate the Merger Agreement under this provision will not be available to Fresh Vine if Fresh Vine’s actions or failure to act has been a principal cause of the failure of Fresh Vine to obtain the required Fresh Vine stockholder vote and such action or failure to act constitutes a material breach by Fresh Vine of the Merger Agreement;

(f)     by Notes Live if:

(i)     either of the following closing conditions fails to be satisfied:

•        the condition that no holders of Notes Live common stock outstanding immediately prior to the effective time shall have validly exercised or remain entitled to exercise appraisal rights for such Notes Live common stock (i.e. that there is an absence of dissenting Notes Live shareholders); or

•        the condition that, in the sole discretion of Notes Live, Notes Live must shall have caused the agreement(s) between Notes Live and all Notes Live shareholders who, as of the date of the Merger Agreement, were subject to leak-out restrictions with respect to their Notes Live common stock, or who became subject to leak-out restrictions between the date of the Merger Agreement and the closing date, to have been amended to cause the leak-out

restrictions to apply to, or otherwise to Notes Live’s satisfaction such leak-out restrictions are be deemed binding upon, the shares of Fresh Vine common stock to be issued in the merger to the Notes Live shareholders; and

(ii)    within two business days of the termination of the Merger Agreement, Notes Live pays to Fresh Vine a nonrefundable termination fee in an amount equal to $1.0 million;

(g)    by Notes Live, upon a breach of any representation, warranty, covenant or agreement set forth in the Merger Agreement by Fresh Vine or Merger Sub (including the inability of Fresh Vine to comply with the closing conditions requiring that the amount of cash, cash equivalent assets or other liquid assets of Fresh Vine at the effective time exceed the Net Cash Target or that Fres Vine shall have completed the Fresh Vine legacy transaction) or if any representation or warranty of Fresh Vine or Merger Sub shall have become inaccurate, in either case, such that certain closing conditions would not be satisfied as of time of such breach or inaccuracy; provided, that Notes Live is not then in material breach of any representation, warranty, covenant or agreement under the Merger Agreement; provided further, that if such breach or inaccuracy is curable by the end date by Fresh Vine or Merger Sub, then the Merger Agreement will not be terminable pursuant to this provision as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30-day period commencing upon delivery of written notice from Notes Live to Fresh Vine of such breach or inaccuracy and Notes Live’s intention to terminate pursuant to this provision and (ii) Fresh Vine or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach following delivery of such written notice (it being understood that the Merger Agreement will not be terminable pursuant to this provision as a result of such particular breach or inaccuracy if such breach by Fresh Vine or Merger Sub is cured prior to such termination becoming effective);

(h)    by Fresh Vine, upon a breach of any representation, warranty, covenant or agreement set forth in the Merger Agreement by Notes Live or if any representation or warranty of Notes Live shall have become inaccurate, in either case, such that certain closing conditions would not be satisfied as of the time of such breach or inaccuracy; provided that Fresh Vine is not then in material breach of any representation, warranty, covenant or agreement under the Merger Agreement; provided, further, that if such breach or inaccuracy is curable by the end date by Notes Live, then the Merger Agreement will not be terminable pursuant to this provision as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30-day period commencing upon delivery of written notice from Fresh Vine to Notes Live of such breach or inaccuracy and its intention to terminate the Merger Agreement pursuant to this provision and (ii) Notes Live ceasing to exercise commercially reasonable efforts to cure such breach following delivery of such written notice (it being understood that the Merger Agreement will not be terminable pursuant to this provision as a result of such particular breach or inaccuracy if such breach by Notes Live is cured prior to such termination becoming effective);

(i)     by Fresh Vine, at any time prior to the required Fresh Vine stockholder vote being obtained, upon the Fresh Vine board of directors authorizing Fresh Vine to enter into a definitive agreement that contemplates or otherwise relates to an acquisition transaction that constitutes a superior offer, or a permitted alternative agreement; provided, however, that Fresh Vine shall not enter into any permitted alternative agreement unless: (i) Notes Live has received written notice from Fresh Vine of Fresh Vine’s intention to enter into such permitted alternative agreement at least four business days in advance, with such notice describing in reasonable detail the reasons for such intention as well as the material terms and conditions of such permitted alternative agreement, including the identity of the counterparty together with copies of the then current draft of such permitted alternative agreement and any other related principal transaction documents, (ii) Fresh Vine has complied in all material respects with its obligations under the no solicitation provisions of the Merger Agreement and the provisions of the Merger Agreement related to Fresh Vine board of directors adverse recommendation changes, and (iii) the Fresh Vine board of directors shall have determined in good faith, after consultation with its outside legal counsel, that the failure to enter into such permitted alternative agreement would be inconsistent with its fiduciary obligations under applicable law; or

(j)     by Fresh Vine or Notes Live, at any time prior to the required Fresh Vine stockholder vote being obtained, if the Fresh Vine board of directors has effected a Fresh Vine board of directors adverse recommendation change.

Termination Fees

Fees payable by Fresh Vine

Fresh Vine must pay Notes Live a termination fee of $1.0 million if:

(i)     the Merger Agreement is terminated by Fresh Vine or Notes Live pursuant to clause (b) above (and the required Fresh Vine stockholder vote has not been obtained by Fresh Vine) or clause (e) above;

(ii)    at any time after the date of the Merger Agreement and prior to the Fresh Vine special meeting, an acquisition proposal with respect to Fresh Vine shall have been publicly announced or disclosed or otherwise communicated to Fresh Vine or the Fresh Vine board of directors (and shall not have been withdrawn); and

(iii)   within 12 months after the date of such termination, Fresh Vine consummates any acquisition transaction (as defined in the section of this proxy statement/prospectus entitled “The Merger Agreement — No Solicitation”) corresponding to such acquisition proposal (with all references to 20% in the definition of acquisition transaction being treated as references to 50% for these purposes).

Fresh Vine will be required to pay such termination fee upon consummation of such acquisition transaction. Fresh Vine will also be required to pay Notes Live a termination fee of $1.0 million within two business days if the Merger Agreement is terminated by Fresh Vine pursuant to clause (i) above.

If the Merger Agreement is terminated by Fresh Vine pursuant to any of clause (f), (g) or (j) above, or if the Merger Agreement is terminated by Fresh Vine pursuant to clause (j) above, Fresh Vine will be required to reimburse Notes Live for all reasonable out-of-pocket fees and expenses incurred by Notes Live in connection with the Merger Agreement and the transactions contemplated thereby, up to a maximum of $500,000.

Fees payable by Notes Live

Notes Live must pay Fresh Vine a termination fee of $1.0 million, and Notes Live shall, at the sole election of Fresh Vine, redeem the $500,000 Fresh Vine Equity Investment at the same price per share as the purchase price paid by Fresh Vine therefor if:

(i)     the Merger Agreement is terminated by Fresh Vine pursuant to clause (b) above (and the required Notes Live shareholder vote has not been obtained by Notes Live);

(ii)    at any time after the date of the Merger Agreement and before obtaining the required Notes Live shareholder vote, an acquisition proposal with respect to Notes Live shall have been publicly announced or disclosed or otherwise communicated to Notes Live or the Notes Live board of directors (and shall not have been withdrawn); and

(iii)   within 12 months after the date of such termination, Notes Live consummates any acquisition transaction (as defined in the section of this proxy statement/prospectus entitled “The Merger Agreement — No Solicitation”) corresponding to such acquisition proposal (with all references to 20% in the definition of acquisition transaction being treated as references to 50% for these purposes).

Notes Live will be required to pay such termination fee upon consummation of such acquisition transaction and such redemption consideration (if applicable) at or prior to the consummation of such acquisition transaction. If the Merger Agreement is terminated by Fresh Vine pursuant to clause (d) above, then Notes Live will be required to pay Fresh Vine a termination fee of $1.0 million within two business days of termination and, at the sole election of Fresh Vine, redeem the $500,000 Fresh Vine Equity Investment at the same price per share as the purchase price paid by Fresh Vine therefor.

If the Merger Agreement is terminated by Notes Live pursuant to clause (f) above, then (y) Notes Live will be required to pay Fresh Vine a termination fee of $1.0 million within two business days of termination, and Notes Live shall, at the sole election of Fresh Vine, redeem the $500,000 Fresh Vine Equity Investment at the same price per share as the purchase price paid by Fresh Vine therefor.

AGREEMENTS RELATED TO THE MERGER

Voting and Support Agreements

In order to induce Fresh Vine to enter into the Merger Agreement, certain officers, directors and certain 10% or greater shareholders of Notes Live (solely in their respective capacities as Notes Live shareholders) are parties to voting and support agreements with Fresh Vine and Notes Live pursuant to which, among other things, each such shareholder has agreed to vote all of his, her or its shares of Notes Live capital stock (i) in favor of the approval of the Merger and adoption of Merger Agreement; (ii) against any action or proposal that would reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of Notes Live contained in the Merger Agreement or any delay in any specified closing conditions set forth the Merger Agreement being satisfied; (iii) in favor of the proposals set forth in any proxy statement or information statement disseminated by Notes Live relating to the merger; (iv) for any proposal to adjourn or postpone the applicable Notes Live special meeting to a later date if there are not sufficient votes for approval of the merger and Merger Agreement and any other proposals related thereto on the dates on which such meetings are held; and (v) against any “Acquisition Proposal,” (as defined in the Merger Agreement). In addition, to the extent a shareholder has a right to demand appraisal of any of the shares of Notes Liven capital stock or a right to dissent from the transactions contemplated by the Merger Agreement , such shareholder fully and irrevocably, to the fullest extent permitted by applicable law (i) waived and agreed not to exercise any such dissenters’ rights (including, under the Colorado Business Corporation Act, as amended) and (ii) agreed not to participate in or voluntarily aid in any way any action to seek dissenters’ rights. The signatories also granted an irrevocable proxy to Fresh Vine and its designee to vote their respective shares of Notes Live capital stock in accordance with the voting and support agreements.

In order to induce Notes Live to enter into the Merger Agreement, certain stockholders of Fresh Vine (solely in their respective capacities as Fresh Vine stockholders) are parties to voting and support agreements with Notes Live and Fresh Vine pursuant to which, among other things, each such stockholder has agreed to vote all of his, her or its shares of Fresh Vine capital stock (i) in favor of any proposal to adopt and approve the transactions contemplated by the Merger Agreement, including any proposal to adopt and/or approve (A) the Merger Agreement, (B) the issuance of the merger consideration and the change of control of Fresh Vine resulting from the merger pursuant to the NYSE American rules; (C) any amendment to Fresh Vine’s Articles of Incorporation to change Fresh Vine’s corporate name, to effect the reverse stock split or to make any other amendment required or contemplated by the Merger Agreement; (D) upon conversion or exchange of the Fresh Vine Preferred Stock, the issuance of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in Fresh Vine’s Certificates of Designation of Preferences, Rights and Limitations of the Series A Convertible Preferred Stock, (E) any liquidation, spinning-out, distribution, or other disposition of the Fresh Vine legacy wine production business or discontinuance there; and (F) any other proposal recommended by Fresh Vine’s board of directors in connection with the transactions contemplated by the Merger Agreement; (ii) against any action or proposal that would reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of Fresh Vine contained in the Merger Agreement or any delay in any specified closing conditions set forth the Merger Agreement being satisfied; (iii) in favor of the proposals set forth in any proxy statement or information statement disseminated by Fresh Vine relating to the merger; (iv) for any proposal to adjourn or postpone the applicable Fresh Vine special meeting to a later date if there are not sufficient votes for approval of the merger and Merger Agreement and any other proposals related thereto on the dates on which such meetings are held; and (v) against any Acquisition Proposal. The signatories also granted an irrevocable proxy to Notes Live and its designee to vote their respective shares of Fresh Vine capital stock in accordance with the voting and support agreements.

As of January 25, 2024, the Notes Live stockholders holding approximately 42% of the outstanding shares of Notes Live capital stock were parties to voting and support agreements. Following the effectiveness of the registration statement of which this proxy statement/prospectus is a part and pursuant to the Merger Agreement, these stockholders will execute a written consent providing for such adoption and approval the Merger Agreement and the transaction contemplated thereby, or will vote in favor of such adoption and approval at a meeting of Notes Live shareholders held for that purpose.

The foregoing descriptions of the voting and support agreements do not purport to be complete and are qualified in their entirety by the full text of the forms of voting and support agreements, which are attached in Annex C and Annex D to this proxy statement/prospectus.

The foregoing descriptions of the voting and support agreements do not purport to be complete and are qualified in their entirety by the full text of the forms of voting and support agreements, which are attached in Annex D and Annex D to this proxy statement/prospectus.

Lock-Up Agreements

Concurrently with the execution of the Merger Agreement, certain officers, directors and stockholders of Fresh Vine (solely in their respective capacities as stockholders) have entered into lock-up agreements pursuant to which, subject to specified exceptions, they agreed not to transfer 95% of their shares of Fresh Vine common stock for periods ranging from six months to one-year following the closing of the merger.

Among other closing conditions, the obligation of Fresh Vine and Notes Live to effect the merger and otherwise consummate the transactions to be consummated at the closing of the merger are subject to the satisfaction or waiver of a closing condition that requires Notes Live to have caused the agreement(s) between Notes Live and all Notes Live shareholders who, as of the date of the Merger Agreement, were subject to any contractual limitations and restrictions related to the amount and timing by which they may sell, transfer or otherwise dispose of their Notes Live common stock (“leak-out restrictions”), or who became subject to leak-out restrictions between the date of the Merger Agreement and the closing date, to have been amended to cause the leak-out restrictions to apply to, or otherwise to Notes Live’s satisfaction such leak-out restrictions must be deemed binding upon, the shares of Fresh Vine common stock to be issued in the merger to the Notes Live shareholders.

Fresh Vine intends to file an initial listing application with the NYSE American pursuant to the NYSE American’s “reverse merger” rules. If such application is accepted, Fresh Vine anticipates that Fresh Vine common stock will be listed on the NYSE American following the closing of the merger under the trading symbol “VENU.” In order to meet the requirements for listing on the NYSE American, the post-merger combined company will be required to satisfy NYSE American’s initial listing requirements, including the financial and liquidity requirements. Certain NYSE American standards require companies seeking to list to demonstrate a minimum “Market Value of Unrestricted Publicly Held Shares” as of the effective time of the closing of a business combination. Under NYSE American listing rules, the “Market Value of Unrestricted Publicly Held Shares” may not include the value of any securities subject to resale restrictions, including the types of restrictions set forth in the lock-up and leak-out agreements discussed above.

MATTERS BEING SUBMITTED TO A VOTE OF FRESH VINE STOCKHOLDERS

Proposal No. 1:    Approval, for purposes of NYSE American Company Guide Section 712(b), the issuance of shares of Fresh Vine common stock to stockholders of Notes Live pursuant to the terms of the Merger Agreement and, for purposes of NYSE American Company Guide Section 713(b), the change of control of Fresh Vine resulting from the merger

At the Fresh Vine special meeting, Fresh Vine stockholders will be asked to consider and vote upon a proposal to approve, for purposes of NYSE American Company Guide Section 712(b), the issuance of shares of Fresh Vine common stock to stockholders of Notes Live pursuant to the terms of the Merger Agreement and, for purposes of NYSE American Company Guide Section 713(b), the change of control of Fresh Vine resulting from the merger.

On a pro forma basis and without adjustment for gross proceeds from the Notes Live Financing or any Net Cash Surplus, pre-merger Notes Live shareholders are expected to own approximately 95.1% of the outstanding shares of capital stock of the combined company and pre-merger Fresh Vine stockholders are expected to own approximately 4.9% of the outstanding shares of capital stock of the combined company.

NYSE American Company Guide Section 712(b) requires a company listed on the NYSE American to obtain stockholder approval prior to the issuance of common stock (or other securities convertible into or exercisable for common stock) in connection with the acquisition of the stock or assets of another company, if (i) the present or potential issuance of common stock (or securities convertible into common stock) could result in an increase in outstanding common shares of 20% or more. The potential issuance of the shares of Fresh Vine common stock in the merger will exceed the 20% threshold under the NYSE American Company Guide. Accordingly, in order to ensure compliance with NYSE American Company Guide Section 712(b), Fresh Vine must obtain the approval of Fresh Vine stockholders for the issuance of these shares of Fresh Vine common stock in the merger.

NYSE American Company Guide Section 713(b) requires a company listed on the NYSE American to obtain stockholder approval prior to an issuance of securities that will result in a “change of control” of the company, including, but not limited to, an issuance that constitutes a “Reverse Merger.” NYSE American considers a Reverse Merger to be a transaction in which a listed issuer combines with, or into, an entity not listed on the exchange, resulting in a change of control of the listed issuer. In determining whether a change of control constitutes a Reverse Merger, NYSE American considers all relevant factors, including, but not limited to, changes in the management, board of directors, voting power, ownership, and financial structure of the listed issuer, as well as the nature of the businesses and the relative size of both the listed issuer and the unlisted entity. Although the NYSE American has not adopted any rule as to what constitutes a “change of control,” the staff of the NYSE American has advised Fresh Vine that NYSE American deems the merger to be a “change of control.” Accordingly, in order to ensure compliance with NYSE American Company Guide Section 713(b), Fresh Vine must obtain the approval of Fresh Vine stockholders for the potential change in control of Fresh Vine resulting from the merger.

The terms of, reasons for and other aspects of the Merger Agreement, the merger, the issuance of shares of Fresh Vine common stock pursuant to the terms of the Merger Agreement and the resulting change of control are described in detail in the other sections in this proxy statement/prospectus. A copy of the Merger Agreement is attached as Annex A to this proxy statement/prospectus.

Vote Required

The affirmative vote of the holders of a majority of the voting power of the shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote on the matter is required for approval of Proposal No. 1. Abstentions will have no effect on Proposal No. 1. Proposal No. 1 is conditioned upon the approval of Proposal Nos. 2, 3, 4, 5 and 6, and the merger cannot be consummated without the approval of Proposal No. 1.

Recommendation of Fresh Vine Board of Directors

THE FRESH VINE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT FRESH VINE STOCKHOLDERS VOTE “FOR” PROPOSAL NO. 1 TO APPROVE, FOR PURPOSES OF NYSE AMERICAN COMPANY GUIDE SECTIONS 712(B) AND 713(B), THE ISSUANCE OF SHARES OF FRESH VINE COMMON STOCK TO STOCKHOLDERS OF NOTES LIVE PURSUANT TO THE TERMS OF THE MERGER AGREEMENT AND THE CHANGE OF CONTROL OF FRESH VINE RESULTING FROM THE MERGER.

Proposal No. 2:    Approval of an amendment to the articles of incorporation of Fresh Vine changing the Fresh Vine corporate name to “Notes Live Holding Corp.”

At the Fresh Vine special meeting, holders of Fresh Vine stockholders will be asked to consider and vote upon a proposal to approve an amendment to the articles of incorporation of Fresh Vine changing the Fresh Vine corporate name from “Fresh Vine Wine, Inc.” to “Notes Live Holding Corp.” by filing an amendment to the Fresh Vine Articles of Incorporation at the closing of the merger. A copy of the proposed amendment to the Fresh Vine Articles of Incorporation is attached as Annex B to this proxy statement/prospectus. The primary reason for the corporate name change is that management believes this will allow for brand recognition of the Notes Live business operations following the merger.

Vote Required

The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record date is required for approval of Proposal 2. Abstentions will have the same effect as votes “AGAINST” Proposal No. 2. Proposal No. 2 is conditioned upon the approval of Proposal Nos. 1, 3, 4, 5 and 6, and the merger cannot be consummated without the approval of Proposal No. 2.

Recommendation of Fresh Vine Board of Directors

THE FRESH VINE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT FRESH VINE STOCKHOLDERS VOTE “FOR” PROPOSAL NO. 2 TO APPROVE THE NAME CHANGE.

Proposal No. 3:    Approval of an amendment to the Fresh Vine Articles of Incorporation to effect the reverse stock split and establish the number of authorized shares of Fresh Vine common stock at 150,000,000 shares

General

At the Fresh Vine special meeting, Fresh Vine stockholders will be asked to consider and vote upon a proposal to approve an amendment to the Fresh Vine Articles of Incorporation to effect a reverse stock split of the issued and outstanding shares of Fresh Vine common stock at a ratio in the range of 1-for-[•] to 1-for-[•], with such ratio and implementation and timing of the reverse stock split to be determined in the discretion of the Fresh Vine board of directors and after consultation with Notes Live at or prior to the closing of the merger, and (b) if and when the reverse stock split is effected, establish the number of authorized shares of Fresh Vine common stock at 150,000,000, in the form attached as Annex C to the accompanying proxy statement/prospectus (the “Reverse Split Proposal”). As contemplated by the Merger Agreement, Fresh Vine intends to effect a reverse stock split at or around the effect date of the merger at a ratio that results in the exchange ratio in the merger being as near to one as reasonably practicable.

Upon the effectiveness of the amendment to the Fresh Vine Articles of Incorporation effecting the reverse stock split, or the split effective time, the issued and outstanding shares of Fresh Vine common stock immediately prior to the split effective time will be reclassified into a smaller number of shares of Fresh Vine common stock, at a ratio in the range of 1-for-[•] to 1-for-[•], with such ratio and implementation and timing of the reverse stock split to be determined in the discretion of the Fresh Vine board of directors and after consultation with Notes Live. If and when the reverse stock split is effected, the amendment to the Fresh Vine Articles of Incorporation will also establish the number of authorized shares of Fresh Vine common stock at 150,000,000.

The approval of this Proposal No. 3 is conditioned upon the approval of Proposal Nos. 1, 2, 4, 5 and 6, and the approval of Proposal Nos. 1, 2, 3, 4, 5 and 6 is a condition to the completion of the merger. If Proposals 1, 2, 3, 4, 5 and 6 are approved but the merger is not ultimately completed, the Fresh Vine board of directors does not intend effect the reverse stock split. If the Fresh Vine stockholders approve Proposal No. 3, and the Fresh Vine board of directors decides to implement it, the reverse stock split will become effective on the date of the filing of the amendment to the Fresh Vine Articles of Incorporation with the Secretary of State of the State of Nevada. The form of amendment to the Fresh Vine Articles of Incorporation set forth in Annex C to this proxy statement/prospectus has been approved by the Fresh Vine board of directors. By approving the reverse stock split, Fresh Vine stockholders also will be approving the form of amendment to the Fresh Vine Articles of Incorporation set forth in Annex C to this proxy statement/prospectus.

Purpose

The Fresh Vine board of directors approved Proposal No. 3 approving the amendment to the Fresh Vine Articles of Incorporation to effect the reverse stock split for the following reasons:

•        The reverse stock split and the related amendment to the Fresh Vine Articles of Incorporation will be required in order to make sufficient shares of Fresh Vine common stock available for issuance to Notes Live stockholders pursuant to the Merger Agreement;

•        The reverse stock split may be necessary to increase Fresh Vine’s stock price to meet NYSE American’s $3.00 minimum bid price requirement upon the closing of the merger;

•        the Fresh Vine board of directors believes effecting the reverse stock split may be necessary to raise the per share trading price of Fresh Vine’s common stock, or the combined company’s common stock following the merger, to regain and maintain compliance with the NYSE American listing rules to remain listed on the NYSE American;

•        the Fresh Vine board of directors believes a higher stock price may help generate investor interest in Fresh Vine (and the combined company following the merger), and help Fresh Vine (and the combined company following the merger) attract and retain employees; and

•        if the reverse stock split successfully increases the per share price of Fresh Vine common stock, the Fresh Vine board of directors believes this increase may increase trading volume in Fresh Vine common stock (and common stock of the combined company following the merger) and facilitate future financings by the combined company.

Reasons for the Reverse Stock Split

Requirement for Completion of Merger

The reverse stock split and the related amendment to the Fresh Vine Articles of Incorporation will be required in order to make sufficient shares of Fresh Vine common stock available for issuance to Notes Live stockholders pursuant to the Merger Agreement. In the absence of the reverse stock split and the related amendment, the total number of issued and outstanding shares of Fresh Vine common stock after the consummation of the transactions contemplated by the Merger Agreement, together with the total number of shares of Fresh Vine common stock then reserved for issuance or obligated to be issued by Fresh Vine pursuant to any agreement or arrangement or otherwise, including the Merger Agreement, will exceed the total number of shares of Fresh Vine common stock then authorized under the Fresh Vine Articles of Incorporation, as amended. Pursuant to the Fresh Vine Articles of Incorporation, Fresh Vine’s The authorized number of shares of Fresh common stock is 100,000,000.

On a pro forma basis and without adjustment for gross proceeds from the Notes Live Financing or any Net Cash Surplus, and based on 15,976,227 shares of Fresh Vine common stock and 10,000 shares of Fresh Vine preferred Stock outstanding as of January 25, 2024 (the date of the Merger Agreement), Fresh Vine estimates that it would need to issue approximately 515,245,629 shares of Fresh Vine common stock (before giving effect to the reverse stock split) in connection with the transactions related to the merger (including shares issuable upon the conversion of the Series A Convertible Preferred Stock (assuming approval of Proposal No. 4) and shares issued in the merger to Note Live shareholders). The number of shares of Fresh Vine common stock to be issued in connection with the transactions related to the merger will be increased in the event additional shares of Fresh Vine capital stock are issued between January 25, 2024 and the effective date of the merger.

Requirements for Listing on NYSE American

Fresh Vine common stock is quoted on the NYSE American under the symbol “VINE,” and Fresh Vine is therefore subject to its continued listing requirements, including requirements with respect to the market value of publicly-held shares, market value of listed shares, minimum bid price per share and minimum stockholder’s equity, among others, and requirements relating to board and committee independence. If Fresh Vine fails to satisfy one or more of the requirements, Fresh Vine may be delisted from NYSE American.

Fresh Vine intends to file an initial listing application with NYSE American to seek listing of the combined company on the NYSE American upon the closing of the merger. According to NYSE American Company Guide Section 341, an issuer must apply for initial listing in connection with a “Reverse Merger.” A “Reverse Merger” is a transaction or series of transactions whereby a listed issuer combines with, or into, an entity not listed on the NYSE American, resulting in a change of control of the listed issuer and potentially allowing the unlisted entity to obtain an NYSE American listing. The staff of NYSE American has advised Fresh Vine that NYSE American deems the merger to be a “change of control.” Accordingly, the listing standards of NYSE American will require Fresh Vine to have, among other things, a $3.00 per share minimum bid price upon the closing of the merger. As of [•], 2024, the closing price of Fresh Vine common stock was $[•] per share. If Fresh Vine stockholders do not approve Proposal No. 3, the merger will not be able to occur because continued listing on the NYSE American is a condition to the closing of the merger.

Potential Increased Investor Interest

Another reason for the reverse stock split would be to generate investor interest in the common stock of the combined company following the merger. On [•], 2024, Fresh Vine common stock closed at $[•] per share. An investment in Fresh Vine common stock may not appeal to brokerage firms that are reluctant to recommend lower priced securities to their clients. Investors may also be dissuaded from purchasing lower priced stocks because the brokerage commissions, as a percentage of the total transaction, tend to be higher for such stocks. Moreover, the analysts at many brokerage firms do not monitor the trading activity or otherwise provide coverage of lower priced stocks. Also, Fresh Vine believes that most investment funds are reluctant to invest in lower priced stocks. Accordingly, the Fresh Vine board of directors believes that a higher stock price may generate investor interest in Fresh Vine common stock and in the common stock of the combined company following the merger.

Criteria to be Used for Determining Whether to Implement the Reverse Stock Split

In determining whether to implement the reverse stock split following receipt of Fresh Vine stockholder approval of Proposal No. 3, Fresh Vine and/or Notes Live (solely in connection with the merger) may consider, among other things, various factors, such as:

•        whether the merger is being consummated;

•        the anticipated number of shares of Fresh Vine common stock that the historical trading prices and trading volume of Fresh Vine common stock;

•        Fresh Vine’s capitalization (including the number of shares of Fresh Vine common stock issued and outstanding and the number of shares of Fresh Vine required to be issued to stockholders of Notes Live in the merger);

•        the then-prevailing trading price and trading volume of the Fresh Vine common stock and the anticipated or actual impact of the reverse stock split on the trading price and trading volume of Fresh Vine common stock;

•        provisions of the Merger Agreement that contemplate Fresh Vine effecting a reverse stock split at a ratio that results in the exchange ratio in the merger being as near to one as reasonably practicable.

•        the ability of Fresh Vine to continue its listing on the NYSE American;

•        potential devaluation of Fresh Vine common stock as a result of the reverse stock split; and

•        prevailing general market and economic conditions.

In the event the Fresh Vine board of directors determines to implement the reverse stock split in connection with the merger, the total number of issued and outstanding shares of Fresh Vine common stock after the consummation of the transactions contemplated by the Merger Agreement, together with the total number of shares of Fresh Vine common stock then reserved for issuance or obligated to be issued by Fresh Vine pursuant to any agreement or arrangement or otherwise, including the Merger Agreement, will not exceed the total number of shares of Fresh Vine common stock then authorized under the Fresh Vine Articles of Incorporation, as amended.

Principal Effects of the Reverse Stock Split

A reverse stock split refers to a reduction in the number of outstanding shares of a class of a corporation’s capital stock, which may be accomplished, as in this case, by reclassifying and combining all of the outstanding shares of Fresh Vine common stock into a proportionately smaller number of shares of Fresh Vine common stock. If the Fresh Vine board of directors decides to implement a 1-for-[•] reverse stock split of Fresh Vine common stock, then a Fresh Vine stockholder holding 10,000 shares of Fresh Vine common stock before the reverse stock split would instead hold [•] shares of Fresh Vine common stock immediately after the reverse stock split.

If approved and implemented, the principal effects of the reverse stock split would include the following, all of which have been considered by the Fresh Vine board of directors in approving the reverse stock split:

•        The number of outstanding shares of Fresh Vine common stock will be reduced and each Fresh Vine stockholder will own fewer shares of Fresh Vine common stock than they currently own.

•        The number of shares of Fresh Vine common stock reserved and available for issuance under Fresh Vine’s equity-based compensation plans and the number of shares of Fresh Vine common stock issuable upon the exercise of outstanding Fresh Vine options and Fresh Vine warrants, will be reduced proportionately based on the ratio selected by the Fresh Vine board of directors, and the exercise price of all outstanding Fresh Vine options and Fresh Vine warrants will be increased proportionately.

•        Except for adjustments that may result from the treatment of fractional shares resulting from the reverse stock split, which are explained below under the section entitled “— Fractional Shares,” each Fresh Vine stockholder will hold the same percentage of Fresh Vine common stock immediately following the reverse stock split as the stockholder held immediately prior to the reverse stock split.

•        The voting rights, rights to dividends and distributions and other rights of Fresh Vine common stock will not be changed as a result of the reverse stock split.

•        The reverse stock split will not affect the number of authorized shares of Fresh Vine preferred stock or the par value of Fresh Vine common stock or preferred stock.

•        The number of authorized shares of Fresh Vine common stock immediately following the reverse stock split will be established at [•]. Authorized shares represent the number of shares of Fresh Vine common stock that Fresh Vine is permitted to issue under the Fresh Vine Articles of Incorporation. Therefore, Proposal No. 3 would have the effect of increasing the number of shares of Fresh Vine common stock available for future issuance after giving effect to the merger.

The reverse stock split will not affect Fresh Vine continuing to be subject to the periodic reporting requirements of the Exchange Act. The reverse stock split is not intended as, and will not have the effect of, a “going private transaction” covered by Rule 13e-3 under the Exchange Act.

The reverse stock split will be effected simultaneously for all outstanding shares of Fresh Vine common stock. The reverse stock split will affect all Fresh Vine stockholders uniformly and will not affect any Fresh Vine stockholder’s percentage interest in Fresh Vine, except for immaterial adjustments that may result from the treatment of fractional shares as described below. Shares of Fresh Vine common stock issued pursuant to the reverse stock split will remain fully paid and nonassessable. The reverse stock split does not affect the total proportionate ownership of Fresh Vine following the merger.

The following table, which is for illustrative purposes only, illustrates the effects of a 1-for-[•] and 1-for-[•] reverse stock split on the Fresh Vine common stock (without giving effect to the treatment of fractional shares):

____________

(1)      These estimates do not reflect the potential effects of the treatment of fractional shares that may result from the proposed reverse stock split.

(2)      Includes outstanding 3,253,969 Fresh Vine warrants, 444,893 Fresh Vine options, 1,091,841 shares of Fresh Vine common stock reserved for future issuance under the Fresh Vine 2021 Equity Incentive Plan and 10,456,004 shares of Fresh Vine common stock issuable upon conversion of 10,000 shares of Series A Convertible Preferred Stock outstanding (assuming a Conversion Price of $0.10 per share, with dividends accrued on the Series A Convertible Preferred Stock through January 25, 2024, and without regard to conversion limitations in the Certificate of Designation of Preferences, Rights and Limitations of the Series A Convertible Preferred Stock), each as of January 25, 2024 (the date of the Merger Agreement).

Certain Risks Associated with the Reverse Stock Split

There are risks associated with the reverse stock split, which have been considered by the Fresh Vine board of directors in recommending to Fresh Vine stockholders the reverse stock split for approval.

The Fresh Vine board of directors has determined, if the reverse stock split is effected, to establish the number of authorized shares of Fresh Vine common stock immediately following the reverse stock split at [•].

Therefore, the implementation of reverse stock split would result in an effective increase in the authorized number of shares of Fresh Vine common stock available for issuance, which could, under certain circumstances, have anti-takeover implications. With respect to authorized but unallocated shares of Fresh Vine common stock available after the consummation of the merger, the combined company could use such shares that are available for issuance in future equity financing transactions, which could result in additional dilution to the stockholders of the combined company, or to oppose a hostile takeover attempt or delay or prevent future changes in control or changes in or removal of management, including transactions that are favored by a majority of such stockholders or in which such stockholders might otherwise receive a premium for their shares of the combined company’s common stock over then-current market prices or benefit in some other manner. Fresh Vine currently has no plans to issue

shares of Fresh Vine common stock, other than in connection with the merger and related transactions and to satisfy obligations under the Fresh Vine warrants and options from time to time as such Fresh Vine warrants and options are exercised for shares of Fresh Vine common stock.

Fresh Vine cannot predict whether the reverse stock split will increase the market price for Fresh Vine common stock. The history of similar stock split combinations for companies in like circumstances is varied. There is no assurance that:

•        the market price per share of Fresh Vine common stock after the reverse stock split will rise in proportion to the reduction in the number of shares of Fresh Vine common stock outstanding before the reverse stock split;

•        the reverse stock split will result in a per share price that will attract brokers and investors who do not trade in lower priced stocks or promote greater liquidity for Fresh Vine stockholders; or

•        that Fresh Vine will meet the requirements of NYSE American for initial listing on the NYSE American, including the $3.00 minimum bid price upon the closing of the merger.

The market price of Fresh Vine common stock will also be based on the performance of Fresh Vine and other factors, some of which are unrelated to the number of outstanding shares of Fresh Vine common stock. If the reverse stock split is effected and the market price of Fresh Vine common stock declines, the percentage decline as an absolute number and as a percentage of the overall market capitalization of Fresh Vine may be greater than would occur in the absence of a reverse stock split. Furthermore, the liquidity of Fresh Vine common stock could be adversely affected by the reduced number of shares of Fresh Vine common stock that would be outstanding after the reverse stock split.

Since the reverse stock split will decrease the number of shares of Fresh Vine common stock held by Fresh Vine stockholders, the reverse stock split may increase the number of Fresh Vine stockholders who hold less than a “round lot,” or 100 shares of Fresh Vine common stock. Typically, the transaction costs to stockholders selling “odd lots” are higher on a per share basis. Consequently, the reverse stock split could increase the transaction costs to existing Fresh Vine stockholders in the event they wish to sell all or a portion of their shares of Fresh Vine common stock.

Procedure for Effecting the Reverse Stock Split and Exchange of Stock Certificates

If Fresh Vine stockholders approve the amendment to the Fresh Vine Articles of Incorporation to effect the reverse stock split, and if the Fresh Vine board of directors still believes that a reverse stock split is in the best interests of Fresh Vine and Fresh Vine stockholders, Fresh Vine will file the amendment to the Fresh Vine Articles of Incorporation with the Secretary of State of the State of Nevada at such time as the Fresh Vine board of directors has determined to be the appropriate split effective time. Beginning at the split effective time, each certificate representing pre-split shares of Fresh Vine common stock will be deemed for all corporate purposes to evidence ownership of post-split shares of Fresh Vine common stock.

The form of amendment to the Fresh Vine Articles of Incorporation set forth in Annex C to this proxy statement/prospectus has been approved by the Fresh Vine board of directors. By approving the reverse stock split, Fresh Vine stockholders also will be approving the form of amendment to the Fresh Vine Articles of Incorporation set forth in Annex C to this proxy statement/prospectus.

As soon as practicable after the split effective time, Fresh Vine stockholders will be notified that the reverse stock split has been effected. Fresh Vine expects that the Fresh Vine transfer agent will act as exchange agent for purposes of implementing the exchange of stock certificates, if any. Holders of pre-split shares of Fresh Vine common stock holding all of their shares electronically in book-entry form with Fresh Vine’s transfer agent do not need to take any action to receive post-split shares. Holders of pre-split shares of Fresh Vine common stock held in certificated form will be asked to surrender to the exchange agent certificates representing pre-split shares of Fresh Vine common stock in exchange for certificates representing post-split shares of Fresh Vine common stock in accordance with the procedures to be set forth in a letter of transmittal to be sent by Fresh Vine. Upon receipt of the holder’s pre-split certificate(s) and the properly completed and executed letter of transmittal, the holder will be issued the appropriate number of shares of Fresh Vine common stock electronically in book-entry form under the Direct Registration System. No new shares in book-entry form will be reflected until the holder surrenders the

holder’s outstanding pre-split certificate(s), together with the properly completed and executed letter of transmittal, to the exchange agent. Any pre-split shares of Fresh Vine common stock submitted for transfer, whether pursuant to a sale or other disposition, or otherwise, will automatically be exchanged for post-split shares of Fresh Vine common stock. Fresh Vine stockholders should not destroy any stock certificate(s) and should not submit any certificate(s) unless and until requested to do so.

Fractional Shares

No fractional shares of Fresh Vine common stock will be issued in connection with the reverse stock split. Fractional shares will not be issued. Instead, Fresh Vine will issue a full share of post-reverse stock split Fresh Vine common stock to any Fresh Vine stockholder who would have been entitled to receive a fractional share of Fresh Vine common stock as a result of the reverse stock split.

By approving the amendment to the Fresh Vine Articles of Incorporation to effect the reverse stock split, Fresh Vine stockholders will be approving the combination of [•] to [•] (or any number in between) outstanding shares of Fresh Vine common stock, as approved by the Fresh Vine board of directors, into one share of Fresh Vine common stock.

Accounting Consequences

The par value per share of Fresh Vine common stock will remain unchanged at $0.001 per share after the reverse stock split. As a result, at the split effective time of the reverse stock split, the stated capital on Fresh Vine’s balance sheet attributable to Fresh Vine common stock will be reduced proportionately based on the ratio, from its present amount, and the additional paid-in capital account will be increased for the amount by which the stated capital is reduced. After the reverse stock split (and disregarding the impact of shares of Fresh Vine common stock issued in the merger), net income or loss per share, and other per share amounts will be increased because there will be fewer shares of Fresh Vine common stock outstanding. In future financial statements, net loss per share and other per share amounts for periods ending before the reverse stock split will be restated to give retroactive effect to the reverse stock split.

Potential Anti-Takeover Effect

Although the increased proportion of unissued authorized shares of Fresh Vine common stock to issued shares of Fresh Vine common stock could, under certain circumstances, have an anti-takeover effect, for example, by permitting issuances that would dilute the stock ownership of a person seeking to effect a change in the composition of the Fresh Vine board of directors or contemplating a tender offer or other transaction for the combination of Fresh Vine with another company, the reverse stock split is not being proposed in response to any effort of which Fresh Vine is aware to accumulate shares of Fresh Vine common stock or obtain control of Fresh Vine, other than in connection with the merger, nor is it part of a plan by management to recommend a series of similar amendments to the Fresh Vine board of directors and Fresh Vine stockholders. Other than the proposals being submitted to Fresh Vine stockholders for their consideration at the Fresh Vine special meeting, the Fresh Vine board of directors does not currently contemplate recommending the adoption of any other actions that could be construed to affect the ability of third parties to take over or effect a change of control of Fresh Vine. For more information, see the section entitled “Description of Fresh Vine Capital Stock — Anti-takeover Effects of our Charter Documents and under Nevada Law” beginning on page 208 of this proxy statement/prospectus.

Material U.S. Federal Income Tax Consequences of the Reverse Stock Split

The following discussion is a summary of the material U.S. federal income tax consequences of the reverse stock split to Fresh Vine U.S. holders. For purposes of this discussion, a “Fresh Vine U.S. holder” is a beneficial owner of Fresh Vine common stock that, for U.S. federal income tax purposes, is or is treated as:

•        an individual who is a citizen or resident of the U.S.;

•        a corporation created or organized under the laws of the U.S., any state thereof, or the District of Columbia;

•        an estate, the income of which is subject to U.S. federal income tax regardless of its source; or

•        a trust that (i) is subject to the primary supervision of a U.S. court and the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code) over all of its substantial decisions or (ii) has a valid election in effect to be treated as a United States person for U.S. federal income tax purposes.

This discussion does not purport to be a complete analysis of all potential tax consequences that may be relevant to Fresh Vine U.S. holders. The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local or non-U.S. tax laws are not discussed. This discussion is based on the Code, Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the IRS, in each case in effect as of the date hereof. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a Fresh Vine U.S. holder. Fresh Vine has not sought and does not intend to seek any rulings from the IRS regarding the matters discussed below. There can be no assurance the IRS or a court will not take a position contrary to that discussed below regarding the tax consequences of the reverse stock split.

This discussion is limited to Fresh Vine U.S. holders that hold Fresh Vine common stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences that may be relevant to a Fresh Vine U.S. holder’s particular circumstances, including the impact of the alternative minimum tax or the Medicare contribution tax on net investment income or the rules related to “qualified small business stock” within the meaning of Section 1202 of the Code. In addition, it does not address consequences relevant to Fresh Vine U.S. holders subject to special rules, including, without limitation:

•        U.S. expatriates and former citizens or long-term residents of the U.S.;

•        Fresh Vine U.S. holders whose functional currency is not the U.S. dollar;

•        persons holding Fresh Vine common stock as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other integrated investment;

•        banks, insurance companies, and other financial institutions;

•        real estate investment trusts or regulated investment companies;

•        brokers, dealers or traders in securities;

•        “controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax;

•        S corporations, partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein);

•        tax-exempt organizations or governmental organizations;

•        persons subject to special tax accounting rules as a result of any item of gross income with respect to Fresh Vine common stock being taken into account in an “applicable financial statement” (as defined in the Code);

•        persons deemed to sell Fresh Vine common stock under the constructive sale provisions of the Code;

•        persons who hold or received Fresh Vine common stock pursuant to the exercise of any employee stock option or otherwise as compensation; and

•        tax-qualified retirement plans.

If an entity treated as a partnership for U.S. federal income tax purposes holds Fresh Vine common stock, the tax treatment of a partner in the partnership will depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding Fresh Vine common stock and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.

IT IS RECOMMENDED THAT FRESH VINE STOCKHOLDERS CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY.

Fresh Vine intends to report the reverse stock split as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Code. In general, and subject to the qualifications set forth below, if the reverse stock split qualifies as a “recapitalization” within the meaning of Section 368(a)(1)(E) of the Code, a Fresh Vine U.S. holder should not recognize gain or loss upon the reverse stock split, except for a Fresh Vine stockholder receiving an additional share of Fresh Vine common stock in lieu of a fractional share (as described below). In addition, provided that the reverse stock split qualifies as a “recapitalization,” a Fresh Vine U.S. holder’s aggregate tax basis in the shares of Fresh Vine common stock received pursuant to the reverse stock split should equal the aggregate tax basis of the shares of Fresh Vine common stock surrendered excluding any portion of such basis that is allocated to any fractional share of Fresh Vine common stock, and such Fresh Vine U.S. holder’s holding period in the shares of Fresh Vine common stock received should include the holding period in the shares of Fresh Vine common stock surrendered. Treasury Regulations provide detailed rules for allocating the tax basis and holding period of the shares of Fresh Vine common stock surrendered, for the shares of Fresh Vine common stock received pursuant to the reverse stock split. Holders of shares of Fresh Vine common stock acquired on different dates and at different prices should consult their tax advisors regarding the allocation of the tax basis and holding period of such shares of Fresh Vine common stock.

A Fresh Vine stockholder who receives one whole share of Fresh Vine common stock in lieu of a fractional share generally may recognize gain in an amount not to exceed the excess of the fair market value of such share over the fair market value of the fractional share to which the Fresh Vine stockholder was otherwise entitled. Such capital gain or loss should be long-term capital gain or loss if the Fresh Vine U.S. holder’s holding period for Fresh Vine common stock surrendered exceeded one year at the effective time of the reverse stock split.

Reservation of Right to Abandon Reverse Stock Split

Notwithstanding approval of this Proposal No. 3 by Fresh Vine stockholders, the Fresh Vine board of directors may, in its sole discretion, abandon the proposed amendments and determine prior to the effectiveness of any filing with the Secretary of State of the State of Nevada not to effect the reverse stock split, as permitted under Section 78.390 of the Nevada Revised Statutes.

Vote Required

The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record date is required for approval of Proposal No. 3. Abstentions will have the same effect as votes “AGAINST” Proposal No. 3. Proposal No. 3 is conditioned upon the approval of Proposal Nos. 1, 2, 4, 5 and 6, and the merger cannot be consummated without the approval of Proposal No. 3.

Recommendation of Fresh Vine Board of Directors

THE FRESH VINE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT FRESH VINE STOCKHOLDERS VOTE “FOR” PROPOSAL NO. 3 TO APPROVE AN AMENDMENT TO THE FRESH VINE ARTICLES OF INCORPORATION TO EFFECT THE REVERSE STOCK SPLIT.

Proposal Nos. 4 and 5:

Proposal No. 4:    Approval, for purposes complying with Section 713(a) and Section 713(b) of the NYSE American Company Guide, the issuance upon conversion or exchange of Fresh Vine Series A Convertible Preferred Stock of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of the Series A Convertible Preferred Stock

Proposal No. 5:    Approval, for purposes complying with Section 713(a) and Section 713(b) of the NYSE American Company Guide, the issuance upon conversion or exchange of Fresh Vine Series B Convertible Preferred Stock of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of the Series B Convertible Preferred Stock

At the Fresh Vine special meeting, Fresh Vine stockholders will be asked to consider and vote upon a proposal to approve, for purposes complying with Section 713(a) and Section 713(b) of the NYSE American Company Guide, the issuance upon conversion or exchange of Series A Convertible Preferred Stock (Proposal No. 4) and Series B Convertible Preferred Stock (Proposal No. 5) of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificates of Designation of the Series A and Series B Convertible Preferred Stock, respectively. The Series A Convertible Preferred Stock and Series B Convertible Preferred Stock are collectively referred to herein as the Fresh Vine Preferred Stock.

Background and Overview

Because the Fresh Vine’s common stock is listed on the NYSE American, Fresh Vine is subject to NYSE American’s rules and regulations. NYSE American Company Guide Section 713(a) requires a company listed on the NYSE American to obtain stockholder approval prior to the issuance of common stock (or other securities convertible into common stock) when the additional shares will be issued in connection with a transaction, other than a public offering, involving the sale, issuance, or potential issuance of common stock (or securities convertible into common stock) equal to 20% or more of the company’s outstanding stock for less than the greater of book or market value of the stock. NYSE American Company Guide Section 713(b) requires a company listed on the NYSE American to obtain stockholder approval prior to an issuance of securities that will result in a “change of control” of the company. Although NYSE American has not adopted any rule as to what constitutes a “change of control,” a change of control may be deemed to occur when an investor or investor group acquires or has the right to acquire 20% or more of a company’s outstanding common stock or voting power and such ownership or voting power would be the largest ownership position. A “change of control” under NYSE American Company Guide Section 713(b) applies only with respect to the application of such rule and does not constitute a “change of control” for purposes of Nevada law, our organizational documents or any other purpose.

On August 2, 2023, Fresh Vine entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) with two accredited investors (the “Purchasers”) pursuant to which Fresh Vine agreed to issue and sell in transaction exempt from registration under the U.S. Securities Act of 1933, as amended (the “2023 Private Placement”), up to 10,000 shares of newly created Fresh Vine Series A Convertible at a per share purchase price equal to $100.00, for total gross proceeds of up to $1.0 million. The Purchasers purchased 4,000 shares of Series A Convertible Preferred Stock at an initial closing (the “Initial Closing”) that occurred on August 2, 2023, purchased an additional 4,000 shares of Series A Convertible Preferred Stock at a second closing (the “Second Closing”) that occurred on September 7, 2023, and purchased the final 2,000 shares of Series A Convertible Preferred Stock at a third closing (the “Third Closing”) that occurred on December 1, 2023. The terms of the Securities Purchase Agreement and the 2023 Private Placement were previously reported in the Form 8-K filed by Fresh Vine on August 2, 2023.

Each share of Series A Convertible Preferred Stock is convertible at the option of the holder thereof into the number of shares of Fresh Vine common stock (“Series A Conversion Shares”) calculated by dividing the “Stated Value” of $100.00 by the Series A Conversion Price (the “Series A Conversion Ratio”), subject to the limitations described below. For such purposes, the “Series A Conversion Price” means $0.10. However, if the Fresh Vine common stock fails to continue to be listed or quoted for trading on a stock exchange, then the “Series A Conversion Price” thereafter will mean the lesser of (i) $0.10, or (ii) the closing sale price of the common stock on the trading day immediately preceding the conversion date; provided that the Series A Conversion Price will not be less than a

“Floor Price” of $0.05 (subject to standard adjustments based stock splits, stock dividends, stock combinations and the like). The Floor Price is also subject to anti-dilution adjustments resulting from future offerings of Fresh Vine common stock (or common stock equivalents) at a price less than the prevailing Series A Conversion Price.

On March 14, 2024, Fresh Vine filed with the Secretary of State of the State of Nevada a Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock, which designated 50,000 shares of Fresh Vine’s undesignated preferred stock as Series B Convertible Preferred Stock and established its rights and preferences. Fresh Vine’s board of directors has approved the issuance and sale of up to 20,000 shares of Series B Convertible Preferred Stock for a purchase price equal to $100.00 per share. As of March 28, 2024, Fresh has received subscriptions from accredited investors for the purchase of a total of 940 shares of Fresh Vine’s Series B Convertible Preferred Stock. The total number of shares of Series B Convertible Preferred Stock that Fresh Vine will issue and sell has not been finally determined.

Each share of Series B Convertible Preferred Stock is convertible at the option of the holder thereof into the number of shares of Fresh Vine common stock (“Series B Conversion Shares”) calculated by dividing the “Stated Value” of $100.00 by the Series B Conversion Price (the “Series B Conversion Ratio”), subject to the limitations described below. For such purposes, the “Series B Conversion Price” means $0.45. However, if the Fresh Vine common stock fails to continue to be listed or quoted for trading on a stock exchange, then the “Series B Conversion Price” thereafter will mean the lesser of (i) $0.45, or (ii) the closing sale price of the common stock on the trading day immediately preceding the conversion date; provided that the Series B Conversion Price will not be less than a “Floor Price” of $0.05 (subject to standard adjustments based stock splits, stock dividends, stock combinations and the like). The Floor Price is also subject to anti-dilution adjustments resulting from future offerings of Fresh Vine common stock (or common stock equivalents) at a price less than the prevailing Series B Conversion Price.

For a further description of the rights and preferences of the Fresh Vine Preferred Stock, see the section of this proxy statement/prospectus entitled “Description of Capital Stock — Preferred Stock.” .

Based on the Series A Conversion Ratio, the Series A Convertible Preferred Stock was deemed to be issued for less than the greater of the book or market value of Fresh Vine common stock on the date of the applicable Securities Purchase Agreement. Also based on the Series A Conversion Ratio, and assuming that the applicable Series A Conversion Price is $0.10, the 10,000 shares of Series A Convertible Preferred Stock issued to the Purchaser in the 2023 Private Placement would have been initially convertible into 10,000,000 shares of Fresh Vine common stock, which would represent 62.6% of Fresh Vine common stock outstanding on the date of the Securities Purchase Agreement. Therefore, the stockholder approval requirements under NYSE American Company Guide Sections 713(a) and (b) would apply the issuance of the Series A Convertible Preferred Stock in the 2023 Private Placement.

Based on the Series B Conversion Ratio, the Series B Convertible Preferred Stock is deemed to be issued for less than the greater of the book or market value of Fresh Vine common stock on the date of the applicable Securities Purchase Agreement. Also based on the Series B Conversion Ratio, and assuming that the applicable Series A Conversion Price is $0.45, the 20,000 shares of Series B Convertible Preferred Stock that have been approved for issuance by the Fresh Vine board of directors would initially be convertible into 4,444,444 shares of Fresh Vine common stock, which would represent approximately 27.8% of Fresh Vine common stock outstanding on the first date on which shares of Series B Convertible Preferred Stock were issued. Therefore, the stockholder approval requirements under NYSE American Company Guide Sections 713(a) and (b) would apply the issuance of the Series B Convertible Preferred Stock.

As a result, in order to comply with NYSE American Company Guide Sections 713(a) and (b), the Certificates of Designation for each of the Series A Convertible Preferred Stock and Series B Convertible Preferred Stock provides that a Fresh Vine Preferred Stock holder’s ability to convert Fresh Vine Preferred Stock to common stock is subject to an “Exchange Share Cap” and an “Individual Holder Share Cap.” Under the Exchange Share Cap applicable to the Series A Convertible Preferred Stock, the total number of shares of Series A Conversion Shares, when added to any shares of Fresh Vine common stock previously issued as a dividend on the Series A Convertible Preferred Stock, may not exceed 3,179,269, which represents 19.9% of Fresh Vine’s issued and outstanding common stock immediately prior to the first issuance of Series A Convertible Preferred Stock on August 2, 2023. Similarly, the Exchange Share Cap applicable to the Series B Convertible Preferred Stock, the total number of shares of Series B Conversion Shares may not exceed 3,179,269, which also represents 19.9% of Fresh Vine’s issued and outstanding common stock immediately prior to the first issuance of Series B Convertible Preferred Stock. Under

the Individual Holder Share Cap, no holder of Fresh Vine Preferred Stock will have the right to receive Conversion Shares if the issuance of Conversion Shares would result in converting holder beneficially owning in excess of 19.9% of the number of shares of Fresh common stock outstanding immediately after giving effect to the issuance. Pursuant to the Certificates of Designation for the Fresh Vine Preferred Stock, the Exchange Share Cap and the Individual Holder Share Cap will not apply if Fresh Vine obtains stockholder approval to issue the shares of Fresh Vine common stock exceeding the applicable cap as required by NYSE American LLC Company Guide Section 713.

Stockholder approval of Proposal Nos. 4 and 5 will constitute stockholder approval for purposes of NYSE American Company Guide Sections 713(a) and (b). If stockholder approval is not obtained, the ability of holders of Fresh Vine Preferred Stock to convert into Fresh Vine common stock will continue to be limited by the applicable Exchange Share Cap and the Individual Holder Share Cap.

Pursuant to the Merger Agreement, the conversion of all outstanding Fresh Vine Preferred Stock into Fresh Vine common stock is a condition to the completion of the merger.

Effect of Approval of Proposal Nos. 4 and 5 on Current Holders of Fresh Vine Common Stock

If Proposal Nos. 4 and 5 are approved, the holders of Fresh Vine Preferred Stock will be able to convert such shares into Fresh Vine common stock without regarding to the Exchange Share Cap and the Individual Holder Share Cap.

As of January 25, 2024, which is the date of the Merger Agreement, assuming that the applicable Series A Conversion Price is $0.10, the 10,000 outstanding shares of Series A Convertible Preferred Stock would be convertible into approximately 10,456,004 Conversion Shares, which would represent approximately 39.6% of Fresh Vine common stock outstanding on a post-conversion basis. If, prior to any conversion, Fresh Vine common stock fails to continue to be listed or quoted for trading on a stock exchange, then the “Series A Conversion Price” thereafter will be the lesser of (i) $0.10, or (ii) the closing sale price of the common stock on the trading day immediately preceding the conversion date; provided that the Series A Conversion Price will not be less than a “Floor Price” of $0.05 (subject to standard adjustments based stock splits, stock dividends, stock combinations and the like). As of January 25, 2024, assuming that the applicable Series A Conversion Price is equal to a Floor Price of $0.05, the 10,000 outstanding shares of Fresh Vine Preferred Stock would be convertible into approximately 21,173,334 Conversion Shares, which would represent approximately 57.0% of Fresh Vine common stock outstanding on a post-conversion basis. The calculations of Series A Conversion Shares above include dividends accrued on the Fresh Vine Preferred Stock through January 25, 2024. Dividends accrue on the Series A Convertible Preferred Stock at the dividend rate of 12% per annum, and the actual number of Series A Conversion Shares will include the amount of accrued and unpaid dividends through the actual conversion date.

Assuming that the applicable Series B Conversion Price is $0.45, the 20,000 shares of Series B Convertible Preferred Stock that have been approved for issuance and sale by Fresh Vine’s board of directors would be convertible into approximately 4,444,444 Conversion Shares, which would represent approximately 21.8% of Fresh Vine common stock outstanding on a post-conversion basis. If, prior to any conversion, Fresh Vine common stock fails to continue to be listed or quoted for trading on a stock exchange, then the “Series B Conversion Price” thereafter will be the lesser of (i) $0.10, or (ii) the closing sale price of the common stock on the trading day immediately preceding the conversion date; provided that the Series B Conversion Price will not be less than a “Floor Price” of $0.05 (subject to standard adjustments based stock splits, stock dividends, stock combinations and the like). Assuming that the applicable Series B Conversion Price is equal to a Floor Price of $0.05, the 20,000 outstanding shares of Fresh Vine Preferred Stock would be convertible into approximately 40.0 million Conversion Shares, which would represent approximately 71.5% of Fresh Vine common stock outstanding on a post-conversion basis.

The issuance of Conversion Shares would result in significant dilution to the current holders of Fresh Vine common stock, and would afford current Fresh Vine stockholders a smaller percentage interest in the voting power, liquidation value and aggregate book value of Fresh Vine or, if the merger is completed, a smaller percentage interest in the combine company. The Floor Price is subject to anti-dilution adjustments resulting from future offerings of Fresh Vine common stock (or common stock equivalents) at a price less than the prevailing Conversion Price. Reductions in the Floor price is below $0.05 would result in further dilution to current holders of Fresh Vine common stock.

Effects of Non-Approval of Proposal Nos. 4 and 5

Full conversion the Fresh Vine Preferred Stock (including the Series A and Series B Convertible Preferred Stock) is a condition to the closing of the merger, and approval of Proposal Nos. 1, 2 and 3 are each conditioned upon the approval of each of Proposal Nos. 4 and 5. Therefore, the merger cannot be consummated without the approval of Proposal Nos. 4 and 5.

If Proposal Nos. 4 and 5 are not approved, the merger will not be completed and the ability of the holders of Fresh Vine Preferred Stock to convert such Fresh Vine Preferred Stock into Fresh Vine common stock will continue to be limited by the applicable Exchange Share Cap and the Individual Holder Share Cap. The shares of Fresh Vine Preferred Stock that remain outstanding will:

•        continue to rank senior to the Fresh Vine common stock with respect to the payment of dividends, distributions and payments upon the liquidation, dissolution and winding up of Fresh Vine;

•        continue to have a liquidation preference that, upon any liquidation, dissolution or winding-up of Fresh Vine, entitles the holders of Fresh Vine Preferred Stock to (i) first receive out of the assets of Fresh Vine available for distribution to the Fresh Vine stockholders an amount equal to 150% times the Stated Value for each share of Fresh Vine Preferred Stock before any distribution or payment shall be made to the holders of any junior Fresh Vine securities, and (ii) then participate in the distribution of remaining assets with the holders of Fresh Vine common stock on an as-if-converted to common stock basis (disregarding for such purposes any conversion limitations under the Certificate of Designations for the Fresh Vine Preferred Stock); and

•        with respect to the Series A Convertible Preferred Stock, continue to accrue dividends at the dividend rate of 12% per annum, which dividends begin to become payable in cash (or in shares of Fresh Vine common stock valued at the lesser of (i) the then applicable Conversion Price, or (ii) 50% of the then current market price of the Fresh Vine common stock) commencing on July 31, 2024.

Considerations of the Fresh Vine Wine Board of Directors

Based on the Fresh Vine’s financial condition, results of operation, cash flow, liquidity, ongoing cash needs and potential alternative sources of capital at the times the 2023 Private Placement was being considered and the Series B Convertible Preferred Stock was created and approved for issuance and sale, the creation, issuance and sale of the Series A and Series B Convertible Preferred Stock presented Fresh Vine with an available opportunity to obtain financing necessary to continue operations and commence and pursue a combination transaction intended to increase stockholder value. After careful consideration of Proposal Nos. 4 and 5, the Fresh Vine board of directors determined that the Proposal Nos. 4 and 5 are advisable and in the best interest of Fresh Vine’s stockholders after considering a number of factors, including:

•        that approval of Proposal Nos. 4 and 5 are conditions to the completion of the merger;

•        the fact that the Fresh Vine Preferred Stock ranks senior to the Fresh Vine common stock as to the payment of dividends, distributions and payments upon the liquidation, dissolution and winding up of Fresh Vine;

•        the rights of the holders of Fresh Vine Preferred Stock upon liquidation, dissolution, winding up of Fresh Vine to (i) first receive out of the assets of Fresh Vine available for distribution to the Fresh Vine stockholders an amount equal to 150% times the Stated Value for each share of Fresh Vine Preferred Stock before any distribution or payment shall be made to the holders of any junior Fresh Vine securities, and (ii) then participate in the distribution of remaining assets with the holders of Fresh Vine common stock on an as-if-converted to common stock basis (disregarding for such purposes any conversion limitations under the Certificate of Designations for the Fresh Vine Preferred Stock);

•        the benefit of having the Fresh Vine Preferred Stock convert into Fresh Vine common stock in connection with the merger, eliminating the obligation to accrue dividends on the Series A Convertible Preferred Stock in the amount of 12% per annum and to commence payment of accrued dividends on July 31, 2024 in cash (or in shares of Fresh Vine common stock valued at the lesser of (i) the then applicable Conversion Price, or (ii) 50% of the then current market price of the Fresh Vine common stock);

•        the fact that, for so long as the Fresh Vine Preferred Stock remains outstanding, the consent of the holders of a majority of the outstanding shares of Fresh Vine Preferred Stock is required to take specified actions, including actions with respect to (i) the creation of class or series of capital stock ranking senior to, or on a parity basis with, the Fresh Vine Preferred Stock as to certain rights;

•        the lack of ability (based on funds available and timing) of Fresh Vine to redeem or force the conversion (other than in connection with the merger following approval of Proposal Nos. 4 and 5) of the Fresh Vine Preferred Stock, and the possibility that the Fresh Vine Preferred Stock could remain outstanding indefinitely;

•        the potential risks associated with the Purchasers’ significant ownership percentage following the conversion of the Fresh Vine Preferred Stock, and the likelihood that the holders of Fresh Vine Preferred Stock would voluntarily convert their shares Fresh Vine Preferred Stock into Fresh Vine common stock prior to the completion of the merger; and

•        the fact that the holders of Fresh Vine common stock who did not participate in the 2023 Private Placement or the issuance and sale of the Series B Convertible Preferred Stock may be diluted and the value of Fresh Vine common stock may be diluted upon the conversion of the Fresh Vine Preferred Stock.

After evaluating these factors, the Fresh Vine board of directors determined that permitting the full conversion of the Fresh Vine Preferred Stock into shares of Fresh Vine common stock is fair, advisable and in the best interest of the Fresh Vine stockholders.

Vote Required

The affirmative vote of the holders of a majority of the shares of Fresh Vine common stock and Series B Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal No. 4. The holders of Fresh Vine Series A Convertible Preferred Stock are not entitled to vote their shares of Fresh Vine Series A Convertible Preferred Stock on Proposal No. 4, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of or as a dividend on Fresh Vine Series A Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of Proposal No. 4.

The affirmative vote of the holders of a majority of the shares of Fresh Vine common stock and Series A Convertible Preferred Stock outstanding on the record date and present in person or represented by proxy and entitled to vote at the Fresh Vine special meeting will be required for approval of Proposal No. 5. The holders of Fresh Vine Series B Convertible Preferred Stock are not entitled to vote their shares of Fresh Vine Series B Convertible Preferred Stock on Proposal No. 5, and the shares of Fresh Vine common stock outstanding on the record date that were issued upon conversion of Fresh Vine Series B Convertible Preferred Stock, if any, will not be taken into account in tabulating the results of Proposal No. 5.

Neither Proposal No. 4 nor 5 is conditioned on the approval of any other proposal. However, Proposal Nos. 1, 2, 3 and 6 are each conditioned upon the approval of Proposal Nos. 4 and 5. Therefore, the merger cannot be consummated without the approval of Proposal Nos. 4 and 5.

Recommendation of Fresh Vine Board of Directors

THE FRESH VINE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT FRESH VINE STOCKHOLDERS VOTE “FOR” PROPOSAL NOS. 4 AND 5 TO APPROVE, FOR PURPOSES COMPLYING WITH SECTION 713(A) AND SECTION 713(B) OF THE NYSE AMERICAN COMPANY GUIDE, THE ISSUANCE UPON CONVERSION OR EXCHANGE OF FRESH VINE PREFERRED STOCK OF SHARES OF FRESH VINE COMMON STOCK IN EXCESS OF THE APPLICABLE “EXCHANGE SHARE CAP” AND “INDIVIDUAL HOLDER SHARE CAP” LIMITATIONS PROVIDED FOR IN THE CERTIFICATES OF DESIGNATION OF THE FRESH VINE PREFERRED STOCK.

Proposal No. 6:    Approval, pursuant to Section 78.565 of the Nevada Revised Statutes, of a sale of the assets comprising the Fresh Vine legacy wine production business, which sale is a condition to the closing of the transactions contemplated by the Merger Agreement and may be considered to be a sale of all of the Company’s property and assets (the “Legacy Business Sale Proposal”).

Pursuant to the Merger Agreement, on or before the closing of the merger, and as a condition to such closing of the merger, Fresh Vine shall have engaged in a sale, license, transfer, disposition, divestiture or other monetization transaction, or winding down of Fresh Vine’s current wine production business, and, in connection therewith, shall have caused any and all known obligations or liabilities associated with the assets or conduct of the Fresh Vine legacy business operations to be satisfied, which we refer to as the Fresh Vine legacy transaction.

Under Section 78.565 of the NRS, a sale, lease or exchange all of a corporation’s property and assets, including its goodwill and its corporate franchises, is required to be approved by the affirmative vote of stockholders holding stock in such corporation entitling them to exercise at least a majority of the voting power. If the Fresh Vine legacy transaction is structured as a sale, license, transfer, disposition or divestiture of Fresh Vine’s current wine production business, such transaction may be considered to be a sale of all of Fresh Vine’s property and assets that would require approval by Fresh Vine’s stockholders. Therefore, at the Fresh Vine special meeting, Fresh Vine stockholders will be asked to consider and vote upon a proposal to approve, pursuant to Section 78.565 of the Nevada Revised Statutes, the sale of the assets comprising the Fresh Vine legacy wine production business.

Although Fresh Vine has engaged in discussions with potential acquirers of the Fresh Vine legacy business, an acquirer has not yet been identified and the terms and conditions on which Fresh Vine may sell or otherwise dispose of the Fresh Vine legacy business have not been established.

If and when an acquirer has been identified and the terms and conditions of a Fresh Vine legacy transaction have been established, Fresh Vine intends to disclose such information, in advance of the Fresh Vine special meeting, so that Fresh Vine stockholders may make an informed decision regarding Proposal 6.

Vote Required

The affirmative vote of the holders of a majority of the voting power of all shares of Fresh Vine common stock and Fresh Vine Preferred Stock outstanding on the record date is required for approval of Proposal 6. Abstentions will have the same effect as votes “AGAINST” Proposal No. 6. Proposal No. 6 is conditioned upon the approval of Proposal Nos. 1, 2, 3, 4 and 5, and the merger cannot be consummated without the approval of Proposal No. 6.

Recommendation of Fresh Vine Board of Directors

IF AND WHEN THE TERMS AND CONDITIONS OF THE FRESH VINE LEGACY TRANSACTION ARE STABLISHED, THE FRESH VINE BOARD OF DIRECTORS EXPECTS THAT IT UNANIMOUSLY RECOMMEND THAT FRESH VINE STOCKHOLDERS VOTE “FOR” PROPOSAL NO. 6 TO APPROVE SUCH FRESH VINE LEGACY TRANSACTION.

Proposal No. 7:    Approval of an amendment to the Fresh Vine 2021 Equity Incentive Plan to increase the total number of shares of Fresh Vine common stock available for issuance under that plan to 5,000,000 shares (after giving effect to the reverse stock split, which amount is in additional to shares reserved for issuance under outstanding awards) (the “Equity Plan Amendment Proposal”);

Background

Fresh Vine’s 2021 Equity Incentive Plan (the “Plan”) was approved by Fresh Vine’s stockholders in December 2021. The number of shares of Fresh Vine common stock initially authorized for issuance under the Plan was 1,800,000. Currently, 69,892 shares of common stock are reserved pursuant to outstanding awards under the Plan and 1,091,841 shares are available for further awards under the Plan.

If the Reverse Stock Split is approved at the Fresh Vine special meeting and implemented within the range contemplated, and the merger is completed, the number of shares of Fresh Vine common stock available under the Plan will be severely limited. The Fresh Vine board of directors believes that the Plan will play an important role in the combined company’s human resource and business strategy by allowing it to continue to appropriately attract, motivate, and retain experienced and highly qualified individuals who are in a position to contribute materially to the success and long-term objectives of the combined company. The Fresh Vine and Notes Live boards of directors believes that stock-based compensation fosters and strengthens a sense of proprietorship and personal involvement in the combined company’s success. By holding a personal stake in the combined company, these individuals are encouraged to devote their best efforts towards the achievement of the combined company’s business objectives and success, thereby advancing the interests of the combined company and its stockholders. With the approval of the proposed amendment to the Plan (the “Amendment”), the combined company will be able to use equity in its compensation arrangements, and will have an array of equity award design alternatives available to use in structuring those arrangements. The combined company is not proposing that any shares be awarded to any specific individuals at this time.

Fresh Vine’s board of directors has approved a proposal to amend the Plan to increase the share reserve by providing that, after giving effect to the Reverse Stock Split (at such ratio as approved by the board of directors in its discretion within the range approved by Fresh Vine’s stockholders (and subject such approval)), the number of shares authorized and reserved for issuance under the Plan for future awards will be 5,000,000. Based on 69,892 shares currently reserved for issuance under existing equity incentive awards, and after giving effect to the Reverse Stock Split based on an assumed reverse split ratio of 1-for-15, the number of shares of Fresh Vine common stock to be authorized as and reserved for issuance under the Plan will be 5,004,660. The actual number of shares of Fresh Vine common stock to be authorized as and reserved for issuance under the Plan will be adjusted to reflect the actual reverse split ratio.

Below is a summary of the Plan, which is qualified entirely by reference to the complete text of the Plan, a copy of which is filed as an exhibit to the registration statement of which this proxy statement/prospects forms a part, and to the proposed amendment to the Plan attached as Annex G to this proxy statement/prospectus.

Description of the Plan

General.    The purpose of the Plan is to increase stockholder value and to advance the Company’s interests by furnishing a variety of economic incentives (“Incentives”) designed to attract, retain and motivate employees, certain key consultants and directors. Incentives may be granted to employees (including officers) of Fresh Vine or its subsidiaries, members of the board, and consultants or other independent contractors who provide services to Fresh Vine or its subsidiaries, in the following forms: (a) incentive stock options and non-statutory stock options; (b) stock appreciation rights (“SARs”); (c) stock awards; (d) restricted stock; restricted stock units and performance awards.

Shares Subject to the Plan.    Subject to adjustment, the number of shares of common stock which may be issued under the Plan pursuant to future awards if the Amendment is adopted shall not exceed 5,000,000 shares (after giving effect to the Reverse Stock Split (at such ratio as approved by the board of directors in its discretion within the range approved by Fresh Vine’s stockholders (and subject such approval)). In addition, the 69,892 shares of Fresh Vine common stock currently reserved for issuance under existing equity incentive awards will also be approved for issuance under the Plan, but will be appropriately reduced to give effect to the Reverse Stock Split. After giving effect to the Reverse Stock Split at an assumed reverse split ratio of 1-for-15, the number of shares of Fresh Vine common stock to be authorized as and reserved for issuance under the Plan will be 5,004,660. The

actual number of shares of Fresh Vine common stock to be authorized as and reserved for issuance under the Plan will be adjusted to reflect the actual reverse split ratio. If an Incentive granted under the Plan expires or is terminated or canceled unexercised as to any shares of Fresh Vine common stock or forfeited or reacquired by Fresh Vine pursuant to rights reserved upon issuance thereof, such forfeited and reacquired shares may again be issued under the Plan pursuant to another Incentive.

Administration.    The Plan is administered by Fresh Vine’s board of directors or by a stock option or compensation committee (the “Committee”) of the Board of Directors. The Committee shall consist of at least one director of Fresh Vine and shall be appointed from time to time by Fresh Vine’s Board of Directors. Each member of the Committee shall be (a) a “non-employee director” within the meaning of Rule 16b-3 of the Securities Exchange Act of 1934 (including the regulations promulgated thereunder, the “1934 Act”) (a “Non-Employee Director”), and (b) shall be independent directors under listing rules of the NYSE American or, if Fresh Vine is no longer listed on the NYSE American, then any national securities exchange on which Fresh Vine’s common stock may be listed. The Committee shall have complete authority to award Incentives under the Plan, to interpret the Plan, and to make any other determination which it believes necessary and advisable for the proper administration of the Plan. If at any time there is no stock option or compensation committee, the term “Committee”, as used in the Plan, shall refer to the Fresh Vine’s Board of Directors. The Committee or the Board of Directors may delegate to one or more officers the authority to do one or both of the following (i) designate employees who are not officers to be recipients of stock options (and, to the extent permitted by applicable law, other Incentives) and, to the extent permitted by applicable law, the terms of such Incentives (which need not be identical), and (ii) determine the number of shares of Fresh Vine common stock to be subject to such Incentives; provided, however, that (y) the Committee or Board of Director resolutions regarding such delegation shall specify the maximum number of shares of Fresh Vine common stock that may be subject to Incentives granted by such officer(s) during any fiscal year, as well as any other limitations on such officer’s authority, and (z) that such officer may not grant an Incentive to himself or herself. Any such Incentives will be granted on the form of Incentive agreement most recently approved for use by the Committee or the Board of Directors, unless otherwise provided in the resolutions approving the delegation authority. The officer(s) shall report each Incentive granted pursuant to such delegation of authority at the first meeting of Fresh Vine’s Board of Directors (or, if applicable, the Committee) following the date of such grant.

Description of Incentives

Stock Options.    The Committee may grant non-qualified and incentive stock options to eligible employees to purchase shares of Fresh Vine common stock. The Plan confers on the Committee discretion, with respect to any such stock option, to determine the term of each option, the time or times during its term when the option becomes exercisable and the number and purchase price of the shares subject to the option. However, the option price per share may not be less than the fair market value of Fresh Vine’s common stock on the grant date, and the term of each option shall not exceed ten years and one day from the grant date. With respect to stock options which are intended to qualify as “incentive stock options” (as defined in Section 422 of the Internal Revenue Code), the aggregate fair market value of the shares with respect to which incentive stock options are exercisable for the first time cannot exceed $100,000. All incentive stock options must be granted within ten years from the earlier of the date of the Plan’s adoption by the Fresh Vine Board of Directors or approval by Fresh Vine’s stockholders.

Stock Appreciation Rights.    A stock appreciation right or “SAR” is a right to receive, without payment to Fresh Vine, a number of shares, cash or any combination thereof, the amount of which is equal to the aggregate amount of the appreciation in the shares of Fresh Vine common stock as to which the SAR is exercised. The Committee has the discretion to determine the number of shares as to which a SAR will relate as well as the duration and exercisability of a SAR. The exercise price may not be less than the fair market value of the Fresh Vine common stock on the grant date.

Stock Awards.    Stock awards consist of the transfer by Fresh Vine to an eligible participant of shares of Fresh Vine common stock, with or without other payment, as additional compensation for services to Fresh Vine. The number of shares transferred pursuant to any stock award is determined by the Committee.

Restricted Stock.    Restricted stock consists of the sale or transfer by Fresh Vine to an eligible participant of one or more shares of Fresh Vine common stock that are subject to restrictions on their sale or other transfer by the participant which restrictions will lapse after a period of time as determined by the Committee. If restricted stock is sold to a participant, the sale price will be determined by the Committee, and the price may vary from time to time

and among participants and may be less than the fair market value of the shares at the date of sale. Subject to these restrictions and the other requirements of the Plan, a participant receiving restricted stock shall have all of the rights of a stockholder as to those shares.

RSUs.    Restricted stock units represent the right to receive one share of Fresh Vine common stock at a future date that has been granted subject to terms and conditions, including a risk of forfeiture, established by the Committee. Dividend equivalents may be granted with respect to any amount of RSUs and either paid at the dividend payment date in cash or in shares of unrestricted stock having a fair market value equal to the amount of such dividends, or deferred with respect to such RSUs and the amount or value thereof automatically deemed reinvested in additional RSUs until the time for delivery of shares pursuant to the terms of the restricted stock unit award. RSUs may be satisfied by delivery of shares of stock, cash equal to the fair market value of the specified number of shares covered by the RSUs, or a combination thereof, as determined by the Committee at the date of grant or thereafter.

Performance Awards.    A performance award is a right to either a number of shares of Fresh Vine common stock, their cash equivalent, or a combination thereof, based on satisfaction of performance goals for a particular period. The right of a participant to exercise or receive a grant or settlement of any Incentive, and the timing thereof, may be subject to such performance conditions as may be specified by the Committee (such an Incentive is referred to as a “Performance Award”). The Committee may use such business criteria and other measures of performance as it may deem appropriate in establishing any performance conditions, and may exercise its discretion to change the amounts payable under any Incentive subject to performance conditions.

Transferability of Incentives.    Incentives granted under the Plan may not be transferred, pledged or assigned by the holder thereof except, in the event of the holder’s death, by will or the laws of descent and distribution or pursuant to a qualified domestic relations order. However, non-qualified stock options may be transferred by the holder thereof to certain family members or related entities.

Duration, Termination and Amendment of the Incentive Plan and Incentives.    The Plan will remain in effect until all Incentives granted under the Plan have been satisfied or terminated and all restrictions on shares issued under the Plan have lapsed.

The Plan shall terminate no later than ten (10) years from the date of the later of (x) December 9, 2021 (the “Effective Date” of the Plan) and (y) the date an increase in the number of shares reserved for issuance under the Plan is approved by Fresh Vine’s Board of Directors (so long as such increase is also approved by Fresh Vine’s stockholders). The Fresh Vine Board of Directors may amend or discontinue the Plan at any time. However, no such amendment or discontinuance may adversely change or impair a previously granted Incentive without the consent of the recipient thereof. Certain Plan amendments require stockholder approval, including amendments which would increase the maximum number of shares of common stock which may be issued to all participants under the 2012 Plan, change the class of persons eligible to receive Incentives under the Plan, or materially increase the benefits accruing to participants under the Plan. Generally, the terms of an existing Incentive may be amended by agreement between the Committee and the participant. However, in the case of a stock option or SAR, no such amendment shall (a) without stockholder approval, lower the exercise price of a previously granted stock option or SAR when the exercise price per share exceeds the fair market value of the underlying shares in exchange for another Incentive or cash or take any other action with respect to a stock option that may be treated as a re-pricing under the federal securities laws or generally accepted accounting principles, or (b) extend the term of the Incentive, with certain exceptions.

Effect of Sale, Merger, Exchange or Liquidation.    Unless otherwise provided in the agreement for an Incentive, in the event of an acquisition of Fresh Vine through the sale of substantially all of Fresh Vine’s assets or through a merger, exchange, reorganization or liquidation or a similar event, the Committee has broad discretion to take any and all action it deems equitable under the circumstances, including but not limited to terminating the Plan and all Incentives and issuing to the holders of outstanding vested options and SARs the stock, securities or assets they would have received if the Incentives had been exercised immediately before the transaction, or other specified actions.

FRESH VINE BUSINESS

Overview

Fresh Vine Wine, Inc. (referred to in this report as “we,” “us,” “our” “Fresh Vine Wine,” “Fresh Vine” and the “Company”) is a premier producer of low carb, low calorie, premium wines in the United States. Founded in 2019, Fresh Vine Wine brings an innovative “better-for-you” solution to the wine market. Offering bold, crisp, and creamy wines that embody health, warmth, and a deeper connection to wellness and an active lifestyle, we offer a unique and innovative collection of today’s most popular varietals. We currently sell seven proprietary varietals: Cabernet Sauvignon, Pinot Noir, Chardonnay, Sauvignon Blanc, Rosé, Sparkling Rosé, and a limited Reserve Napa Cabernet Sauvignon. All varietals have been produced and bottled in Napa, California.

Recent Developments — Anticipated Merger with Notes Live, Inc.

On January 25, 2024, we, FVW Merger Sub, Inc., a Colorado corporation and our wholly-owned subsidiary (“Merger Sub”), and Notes, Live, Inc., a Colorado corporation (“Notes Live”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which, among other things, and subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, Merger Sub will merge with and into Notes Live, with Notes Live continuing as a wholly-owned subsidiary of the Company and the surviving corporation of the merger (the “Merger”).

Notes Live is a Colorado-based live entertainment and hospitality company that currently operates entertainment campuses in both the Colorado Springs, Colorado, and Atlanta, Georgia metropolitan areas. Notes Live is also in the process of developing its crown-jewel, the Sunset Amphitheater collection, a set of luxury outdoor amphitheaters designed to set a new standard in entertainment. The flagship Sunset amphitheater location in Colorado Springs is in development and scheduled to open in August of 2024. Additional amphitheaters have also been announced by Notes Live in Oklahoma City and Broken Arrow, Oklahoma, and it has plans to expand into the North Texas market.

Subject to the terms and conditions of the Merger Agreement, at the closing of the Merger, (i) each then outstanding share of Notes Live common stock (collectively, “Notes Live common stock”) (which comprises all of Notes Live’s outstanding capital stock) will be converted into the right to receive a number of shares of Fresh Vine common stock calculated in accordance with the Merger Agreement (the “Exchange Ratio”), (ii) each then outstanding warrant to purchase Notes Live common stock will be exchanged (or otherwise amended) for a warrant exercisable (at an exercise price adjusted to reflect to the Exchange Ratio) to acquire that number of shares of Fresh Vine common stock equal to the number of warrant shares multiplied by the Exchange Ratio, and (iii) any then outstanding Notes Live promissory note that is convertible into Notes Live common stock will be exchanged, or otherwise amended, such that it will be convertible from and after the Merger into shares of Fresh Vine common stock at a per share conversion price adjusted to reflect the Exchange Ratio. Each share of Fresh Vine common stock and each option and warrant to purchase Fresh Vine common stock that is outstanding at the effective time of the Merger will remain outstanding in accordance with its terms and such shares of Fresh Vine common stock, options and warrants will be unaffected by the Merger (subject adjustment based on the proposed Reverse Stock Split described below).

The Exchange Ratio will be calculated using a formula intended to allocate existing Fresh Vine stockholders and Notes Live shareholders a percentage of the combined company based on agreed upon relative valuations of Fresh Vine and Notes Live in which:

•        the Notes Live valuation is equal to $350,875,464, plus an amount equal to the aggregate gross proceeds received or to be received by Notes Live in a private offering of Notes Live securities being conducted by Notes Live as of the date of the Merger Agreement (the “Notes Live Financing”); and

•        the Fresh Vine Valuation is equal to $18.0 million, plus the amount of any Net Cash Surplus.

For such purposes, “Net Cash Surplus” means the amount by which the cash, cash equivalent assets or other liquid assets of Fresh Vine at the closing of the Merger transaction exceed the Net Cash Target, and the “Net Cash Target” means an aggregate of $3.5 million; provided that the Net Cash Target will be reduced on a dollar-for-dollar basis for the gross proceeds of any equity investments in Notes Live made by Fresh Vine, its affiliates, or persons

directly introduced to Notes Live by Fresh Vine or its affiliates from December 1, 2023 through the effective date of the Merger (but not giving effect to the previously disclosed $500,000 equity investment in Notes Live made by Fresh Vine upon entering into the letter of intent with Note Live for the subject transaction (the “Fresh Vine Equity Investment”)).

On a pro forma basis and without adjustment for gross proceeds from the Notes Live Financing or any Net Cash Surplus, pre-Merger Notes Live shareholders are expected to own approximately 95.1% of the outstanding shares of capital stock of the combined company and pre-Merger Fresh Vine stockholders are expected to own approximately 4.9% of the outstanding shares of capital stock of the combined company.

As contemplated by the Merger Agreement, Fresh Vine intends to effect a reverse stock split at or around the effect date of the Merger at a ratio that results in the Fresh Vine common stock satisfying the initial listing standards of the NYSE American stock exchange (the “NYSE American”) and the exchange ratio in the Merger being as near to one as reasonably practicable (i.e., so that each share of Notes Live capital stock will be exchanged in the Merger for approximately one share of Fresh Vine common stock) (the “Reverse Stock Split”).

At the effective time of the Merger, the board of directors of Fresh Vine is expected to consist of seven members, all of whom will be designated by Notes Live.

Each of Fresh Vine and Notes Live has agreed to customary representations, warranties and covenants in the Merger Agreement, including, among others, covenants relating to (a) the conduct of their respective businesses during the period between the date of signing the Merger Agreement and the closing of the Merger, (b) non-solicitation of alternative acquisition proposals, (c) Fresh Vine filing with the U.S. Securities and Exchange Commission (the “SEC”) and causing to become effective a registration statement on Form S-4 to register the shares of Fresh Vine common stock to be issued in connection with the Merger (the “Registration Statement”), (d) Notes Live obtaining shareholder approval for the adoption of the Merger Agreement and the transaction contemplated thereby, (e) Fresh Vine calling, giving notice of and holding the Fresh Vine Shareholder Meeting (as defined below), (f) Fresh Vine and Notes Live using reasonable best efforts to file or otherwise submit applications, notices, reports and other documents reasonably required to be filed or otherwise submitted to any governmental authority with respect to the transactions contemplated by the Merger Agreement, (g) Fresh Vine using commercially reasonable efforts to maintain the existing listing of Fresh Vine common stock on the NYSE American and to obtain approval of the listing of the combined company’s common stock on the NYSE American, and (h) Fresh Vine and Notes Live using commercially reasonable efforts to coordinate with respect to compliance with NYSE American rules and regulations. In addition, the Merger Agreement requires that, on or prior to the closing of the Merger, Fresh Vine shall engage in a sale, license, transfer, disposition, divestiture or other monetization transaction, or winding down of Fresh Vine’s current wine production business (the “Fresh Vine Legacy Business”), or the sale, license, transfer, disposition, divestiture or other monetization transaction or other disposition of the assets comprising the Fresh Vine Legacy Business and in connection therewith causing any and all known obligations or liabilities associated with such assets and the conduct of the Fresh Vine Legacy Business operations to be satisfied (the “Fresh Vine Legacy Transaction”).

Consummation of the Merger is subject to certain closing conditions, including, among other things, (a) approval by Fresh Vine stockholders of the Fresh Vine Shareholder Matters (as defined below), (b) approval by Notes Live shareholders of, among other things, the adoption of the Merger Agreement, (c) the effectiveness of the Registration Statement, (d) NYSE American’s approval of the listing of the shares of Fresh Vine common stock to be issued in connection with the Merger (under the ticker symbol “VENU”), and, if applicable, NYSE American’s approval of an initial listing application for the combined company, (e) if applicable, the completion of required filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the expiration or termination any waiting period applicable to the consummation of the Merger, (f) the absence of material adverse effects impacting Fresh Vine or Notes Live, (g) Fresh Vine having cash, cash equivalent assets or other liquid assets at the closing of the Merger in an amount that equals or exceeds the Net Cash Target, and having no liabilities on its balance sheet or unpaid or unsatisfied obligations that will require a cash expenditure by Fresh Vine after the effective time of the Merger, (h) the absence of dissenting Notes Live shareholders, and (i) the entry by Notes Live into lock-up and leak-out arrangements with its shareholders to its satisfaction. In addition, the closing of the Merger is conditioned upon Fresh Vine having completed the Fresh Vine Legacy Transaction, or discontinued the Fresh Vine Legacy Business, in a manner reasonably acceptable to Notes Live. Each party’s obligation to consummate the Merger is also subject to other specified customary conditions, including without limitation regarding the accuracy of the

representations and warranties of the other party and the performance in all material respects by the other party of its obligations under the Merger Agreement required to be performed on or prior to the date of the closing of the Merger.

The Merger Agreement contains certain termination rights of each of Fresh Vine and Notes Live. Upon termination of the Merger Agreement under specified circumstances, Fresh Vine may be required to pay Notes Live a termination fee of $1.0 million and/or reimburse Notes Live’s expenses up to a maximum of $500,000, and Notes Live may be required to pay Fresh Vine a termination fee of $1.0 million, reimburse Fresh Vine’s expenses up to a maximum of $500,000, and/or, at the election of Fresh Vine, redeem the Fresh Vine Equity Investment at the same price per share as the purchase price paid by Fresh Vine therefor.

In connection with the Merger, Fresh Vine expects to seek the approval of its stockholders for, among other things, (a) the issuance of the shares of Fresh Vine common stock issuable in connection with the Merger and the change of control of Fresh Vine resulting from the Merger pursuant to the rules of the NYSE American, (b) amendments to the Fresh Vine Articles of Incorporation to change the name of Fresh Vine to “Notes Live Holding Corp.” and, solely if doing so will not violate the rules and regulations of NYSE American, cause its authorized common stock to be divided into two or more separate classes or series, (c) an amendment to the Fresh Vine Articles of Incorporation to effect the Reverse Stock Split; (d) upon conversion or exchange of Fresh Vine Series A Convertible Preferred Stock, the issuance of shares of Fresh Vine common stock in excess of the “Exchange Share Cap” and “Individual Holder Share Cap” limitations provided for in the Certificate of Designation of Preferences, Rights and Limitations of the Series A Convertible Preferred Stock, (e) the liquidation, spinning-out, distribution, or other disposition or discontinuance of the Fresh Vine Legacy Business, and (f) any other proposal to be agreed upon by Fresh Vine and Notes Live in furtherance of the transactions contemplated by the Merger Agreement (collectively, the “Fresh Vine Shareholder Matters” and such meeting, the “Fresh Vine Shareholder Meeting”).

The transactions contemplated by the Merger Agreement are anticipated to close in June 2024, subject to approval by Fresh Vine’s stockholders, and the satisfaction or waiver of various additional closing conditions.

The preceding summary of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which was filed as Exhibit 2.1 to our Current Report on Form 8-K filed January 29, 2024 and which is incorporated herein by reference. The Merger Agreement is not intended to provide factual information about Fresh Vine or Notes Live or to modify or supplement any factual disclosures about Fresh Vine in this report of its other public filings with the SEC. The Merger Agreement includes representations, warranties and covenants of Fresh Vine, Notes Live and Merger Sub made solely for the purpose of the Merger Agreement and solely for the benefit of the parties thereto in connection with the negotiated terms of the Merger Agreement. Moreover, certain of those representations and warranties may not be accurate or complete as of any specified date, may be subject to a contractual standard of materiality different from those generally applicable to SEC filings or may have been used for purposes of allocating risk among the parties to the Merger Agreement, rather than establishing matters of fact. Investors and stockholders are not third-party beneficiaries under the Merger Agreement. Accordingly, investors should not rely on the representations, warranties and covenants in the Merger Agreement or any descriptions thereof as characterizations of the actual state of facts or conditions of Fresh Vine, Notes Live or any of their respective affiliates.

Important Additional Information

In connection with the proposed transaction, Fresh Vine will file materials with the SEC, including a registration statement on Form S-4 (Form S-4), which will include a document that serves as a proxy statement/prospectus of Fresh Vine and an information statement of Notes Live, and other documents regarding the proposed transaction. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THESE MATERIALS, INCLUDING THE FORM S-4 AND THE PROXY STATEMENT/PROSPECTUS, WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES TO THE PROPOSED TRANSACTION. Investors and security holders will be able to obtain the Form S-4, the proxy statement/prospectus and other materials filed by Fresh Vine with the SEC free of charge from the SEC’s website at www.sec.gov or from Fresh Vine at the SEC Filings section of https://ir.freshvinewine.com/invest/.

Our Existing Business

We are a premier producer of low carb, low calorie, premium wines in the United States. Founded in 2019, Fresh Vine Wine brings an innovative “better-for-you” solution to the wine market. Offering bold, crisp, and creamy wines that embody health, warmth, and a deeper connection to wellness and an active lifestyle, we offer a unique and innovative collection of today’s most popular varietals. We currently sell seven proprietary varietals: Cabernet Sauvignon, Pinot Noir, Chardonnay, Sauvignon Blanc, Rosé, Sparkling Rosé, and a limited Reserve Napa Cabernet Sauvignon. All varietals have been produced and bottled in Napa, California.

Our wines are focused on the affordable luxury segment. Importantly, our wines stand out in the luxury wine market because they address the preferences of our target demographic of consumers with moderate to affluent income and with a desire to pursue a healthy and active lifestyles for a low-calorie, low-carb, gluten-free product, while concurrently delivering the quality and taste profile of a premium wine brand. This allows us to position our wines in the “better for you” segment that seeks to appeal to consumers’ emphasis on a healthy lifestyle. While we believe our product offerings have mass appeal among all consumers of affordable luxury wines, we have positioned the Fresh Vine Wine brand as a complement to the healthy and active lifestyles of younger generation wine consumers.

Our core wine offerings are priced strategically to appeal to mass markets and sell at a list price between $15 and $25 per bottle — price points that support a premium product strategy, appeal to mass markets, and allow us to offer significant value across all consumer distribution channels. Given the Fresh Vine Wine brand’s “better-for-you” appeal and overall product quality, we believe that it presents today’s consumers with a unique value proposition within this price category.

As a testament to the quality of our varietals, in September 2022 we announced that The Tasting Panel Magazine and The Somm Journal, two highly regarded wine publications, had awarded Fresh Vine Wine’s California Cabernet Sauvignon, 2020 Vintage, a 92 Rating (out of 100). This is the second of our varietals to receive a 92 Rating during 2022, with our Limited Reserve Napa Cabernet Sauvignon receiving a Rating of 92 from James Suckling, regarded as one of the world’s most influential wine critics, in July. Also, in July 2022, our 2020 California Pinot Noir and California 2021 Rosé varietals were awarded Bronze Medals by TEXSOM. In 2022, Fresh Vine Wine varietals were recognized by various industry authorities with a total of 16 separate awards.

Our wines are distributed across the United States and Puerto Rico through wholesale, retail, and direct-to-consumer (DTC) channels. We are able to conduct wholesale distribution of our wines in all 50 states and Puerto Rico, and we are licensed to sell through DTC channels in 43 states. As of December 31, 2023, we hold active relationships with wholesale distributors in 50 states. We are working with leading distributors, including Southern Glazer’s Wine & Spirits (SGWS), Johnson Brothers, and Republic National Distributing Company (RNDC), to continue and expand our presence across the contiguous United States.

Our DTC channel enables us to sell wine directly to the consumer at full retail prices. Although these prices are consistent with our suggested retail prices (SRPs), we incur two mark-ups of approximately 30% each for our distributor and retail partners when selling wine through our wholesale distribution channel, therefore directly reducing our revenue and margins. Because the DTC channel provides significantly higher margins than sales generated through wholesale distributors, we intend to further invest in DTC capabilities to ensure it remains an integral part of our business. We also believe continued investment in DTC technologies and capabilities are critical to maintaining an intimate relationship with our customers, which is becoming increasingly digital. In addition, we also sell through alternative DTC sales platforms, such as ecommerce marketplaces, product aggregators and virtual distributors, all of which have experienced significant recent growth, as well as sales through home delivery services.

We do not own or operate any vineyards. Instead of cultivating our own grapes, we have used Fior di Sole, a third-party supplier, to source grapes. This allows us to leverage our supplier’s broad network of vendor relationships and purchasing power to negotiate favorable cost structures. Because our supplier procures product inputs on our behalf, including bulk juice, we do not currently engage directly with grape growers (“growers”) or bulk distributors of juice (“bulk distributors”). As a result, we have limited front-end supply chain visibility. This is a strategy by design that we believe provides us with access to diversified growers and large distributors, which reduces our reliance upon any single vendor and mitigates our exposure to droughts, wildfires, spoilage, contamination and other supply side risks common to the wine industry.

Our supplier procures grapes and/or juice for our existing varietals from California. This juice is then stored in Napa until time of production, at which point it is made available for blending and bottling processes at our Napa Valley production and bottling facility. This is significant in that both blending and bottling must occur within Napa to be considered produced and bottled in Napa — a distinctive product attribute that adds significant production value to our brand in the eyes of consumers. However, wine produced by the Company will only be labelled with a Napa Valley appellation of origin if it is produced from grapes grown in the Napa Valley American Viticultural Area (AVA). The labels for the Company’s core wines identify California as the appellation of origin.

Our asset-light operating model allows us to utilize third-party assets, including land and production facilities. This approach helps us mitigate many of the risks associated with agribusiness, such as isolated droughts or fires. Because we source product inputs from multiple geographically dispersed vendors, we reduce reliance on any one vendor and benefit from broad availability/optionality of product inputs. This is particularly important as a California-based wine producer where droughts or fires can have an extremely detrimental impact to a company’s supply chain if not diversified.

Our Strengths

Differentiated Product Offerings — Premium, Napa Valley Wines within the “Better-For-You” Segment

We offer wines that are differentiated from those sold by other wine producers operating within the better-for-you segment of the affordable luxury category based on our premium quality, our association with an award-winning winemaker and our Napa Valley based state of the art production.

•        Premium Wines.    Premium wines are differentiated from other varietals based on consumers’ perception and expectation that they are of exceptional quality. We have developed a proprietary winemaking process that produces superior quality and taste in the affordable luxury wine category based on consumer preferences data, direct consumer feedback and careful market research. Importantly, our current wines stand out in the luxury wine market because they address consumers’ growing preference for a less-calorie, less-carb, less sugar and gluten-free option, while concurrently delivering the quality and taste profile of a premium wine brand.

•        Award-Winning Winemaker.    We conducted an international search to find an accomplished winemaker who shared the Fresh Vine Wine vision and have entered into an agreement with Jamey Whetstone, an established, award winning winemaker from Napa Valley, to develop our wines. Consulting with the Fresh Vine Wine brand compliments Mr. Whetstone’s lifestyle as an active surfer, skier, and all-around outdoorsman. His passion for winemaking is mirrored by his passion for adventure, and he too wanted to create a better-for-you wine that customers can be proud to bring to the table for any occasion. We believe it is unique for a high-profile winemaker like Mr. Whetstone to attach his name and reputation to a brand in the better-for-you wine segment, and we believe that Mr. Whetstone’s association with our brand increases consumer awareness and speaks to the quality of our varietals.

•        Produced and Bottled in Napa Valley.    Importantly, we are able to market our wines as being produced and bottled in Napa Valley, California. We believe that this designation impacts consumption decisions of many wine drinkers, as Napa Valley-produced wines are considered by many to be a sign of superior production quality. However, wine produced by the Company will only be labelled with a Napa Valley appellation of origin if it is produced from grapes grown in the Napa Valley American Viticultural Area (AVA). The labels for the Company’s existing wines identify California as the appellation of origin. Currently, this only applies to our Reserve wine.

Capital-Efficient and Scalable Operational Structure

We have strategically structured our organization and operations to minimize our capital investment requirements while maintaining flexibility to rapidly scale our production capabilities to meet consumer demands. We do this by utilizing internal capabilities while leveraging a network of reputable third-party providers with industry experience and expertise that we use to perform various functions falling outside our internal core competencies.

Production and Bottling on an Alternating Proprietorship Basis

We contracted with Fior di Sole, an industry leading packaging innovation and wine production company based in Napa Valley, California, to serve as a “host winery” and to occupy a portion of its production and warehouse facility and utilize its production equipment on an alternating proprietorship basis. Under this arrangement, we used capacity at Fior di Sole’s production facility at times mutually convenient to us and Fior di Sole to produce and bottle our wines for an initial set-up fee and a recurring monthly fee. Fior di Sole was responsible for keeping its production equipment in good operating order. When the alternating Premises was operated by or used on behalf of our Company, it was operated pursuant to our federal basic permit and California winegrower’s license. Under our agreement with Fior di Sole, we were solely responsible for managing and conducting our own winemaking activities and we made all production decisions relating to our wines. However, we could have requested the use of Fior di Sole’s personnel to perform crush, fermentation, blending, cellar, warehousing, barrel topping and/or bottling services for additional fees. This arrangement had allowed us to commence our operations and build the Fresh Vine Wine brand without having to incur the considerable overhead costs involved with the purchase or full-time lease of a production facility. The term of the agreement commenced in July 2019, had an initial term of one year and automatically renews for additional one-year terms unless either party provides 90 days written notice to the other of its intent to terminate at the end of the then current term. Either party may terminate the agreement upon 30 days written notice if the other party is in violation of any law or regulation that renders it impossible to perform its obligations under the agreement for a period of greater than 30 days, makes an assignment for the benefit of creditors or files for bankruptcy protection, or is in material breach of its obligations under the agreement and such failure to perform is not cured within 30 days of written notice from the other party.

Fior di Sole also provided us with capacity juice and blends, finishes, bottles, stops, labels and packages our wine, which reduced our internal overhead expenses and allowed us to benefit from that company’s increased purchasing power. Fior di Sole provided these services on a purchase order basis, which purchase orders were subject to the parties’ mutual agreement and governed by a Custom Winemaking and Bottling Agreement. This agreement outlined the schedule for placing orders, the responsibility and schedule for delivery of production materials, procedures for establishing the wine bottling date and delivery date. We were required to remit 20% of the amount due for wine produced, bottled and packaged pursuant to this agreement upon our submission of a purchase order. The payment advance was used by Fior Di Sole to reserve or procure materials on our behalf with additional vendors for bottles, boxes, corks, labels, juice, and other inputs. We, or our winemaker on our behalf, oversaw the production at the winery and approved all components and aspects of the production process. The balance of the amount due for wine produced, bottled and packaged (the remaining 80%) was due following our quality review and acceptance of the finished product. This agreement was terminated in December 2023.

Licensing, Tax and Regulatory Compliance

We have contracted with a third-party to manage our regulatory licensing and compliance activities. We maintain licenses that enable us to distribute our wine to all 50 states, and to sell direct-to-consumer from our e-commerce website in 48 states. We currently utilize software tools available to the industry and work with our license compliance service provider to navigate and manage the complex state-by-state tax and other regulations that apply to our operations in the beverage alcohol industry. This has enabled us to reduce the administrative burden of tax compliance, reporting and product registration.

We believe that leveraging our network of supply chain and compliance partners, consultants and service providers enables us to avoid potential costly and lengthy delays on nearly every aspect of our business, from grapes to packaging materials, and will accelerate our return on capital due to our limited need to procure expensive equipment, real estate, and other capital-intensive resources.

Sales and Marketing Strategy

Omni-Channel Marketing Approach

Today’s consumers interact with brands through many channels, from traditional media to social media and other digital channels, and through various in-person and online purchasing methods. In order to build the visibility of our brand and create a grassroots consumer following to support our DTC distribution channel, we have employed a strategic omnichannel marketing approach that we believe allows us to engage with our target consumers on their

terms to expand and deepen their recognition of our brand. In addition to other mass market promotional activities, our marketing strategy also utilizes modern techniques, efficiency measures, and channels not commonly seen in the wine industry, including a combination of social media lifestyle and wine influencer activities, through which brand ambassadors or “influencers” may conduct promotional activities through the Company’s or their own social media channels including, but not limited to, Twitter, Facebook, Instagram, Snapchat, YouTube and Pinterest, among others.

As we expand our marketing presence and drive visibility through traditional and modern marketing methods, we expect to build awareness and name recognition for Fresh Vine Wine in consumers’ minds. Brand awareness will be built substantially through social media channels. Our brand, and to a large extent our direct-to-consumer sales outlet, has historically been dependent on the image and popularity of, and affinity towards, Nina Dobrev and Julianne Hough. Ms. Dobrev and Ms. Hough served as celebrity spokespersons and ambassadors of our company, and actively endorsed our wines on their sizable social media and other outlets pursuant to agreements that granted us licenses to use their pre-approved name, likeness, image, and other indicia of identity, as well as certain content published on their social media and other channels, on and in conjunction with the sale and related pre-approved advertising and promotion of our wine. Such license agreements terminated on September 7, 2023 and, as a result, we will be required to refocus our marketing and brand promotion efforts. See “Risk Factors — We have relied heavily on celebrities to endorse our wines and market our brand pursuant to license agreements which have been terminated.”

Professional Sports Sponsorships

We have previously entered into sponsorship agreements with professional sports organizations and venues spanning all four major United States professional sports leagues, which support our commitment and outreach to consumers focused on active and healthy lifestyles, including agreements with the following organizations and/or their affiliates:

•        Washington Capitals (NHL) and Washington Wizards (NBA)

•        Tampa Bay Rays (MLB)

•        Washington Commanders (NFL)

These sponsorship arrangements generally provide us with advertising placements at the stadiums and arenas during sporting and concert events, as well as specified media and other advertising and promotional benefits, in exchange for our payment of annual sponsorship fees.

We completed our sponsorship agreement with the Tampa Bay Rays in 2023. We intend to reduce or cancel the remaining sponsorships and do not anticipate pursuing new professional sports sponsorships as part of our marketing and brand awareness initiatives going forward since our brand has reached national retail distribution.

Labelling and Innovative Packaging Initiatives

We believe wine labelling can have a big impact on consumers’ purchasing practices. We conduct market research to validate the consistency of our wine labels with our brand narrative. Packaging also continues to be a key driver of brand perception, and we are exploring “active lifestyle packaging” alternatives to traditional bottling that provides an opportunity for our customers to enjoy Fresh Vine Wines in non-traditional settings now and for future years, including bottles with screw-off caps, aluminum cans, and smaller size bottles and cans that can be taken on-the-go and are ideal for in-store point of purchase sales.

Engagement with Industry Experienced Third Party Vendors

In October 2022, we executed a strategy that is aimed at amplifying cash preservation initiatives while continuing to focus on accelerating sales growth. The plan resulted in the termination of ten employees on the Company’s internal sales team and the engagement by the Company of a third party sales and distribution management company positioned to more efficiently and effectively facilitate current and future product sales. In addition, the Company engaged a reputable third party vendor to manage marketing initiatives and drive growth primarily within the Company’s Direct-to-Consumer sales channel.

Related party services

In October 2021, the Company entered into a service agreement with Appellation Brands, LLC, a related party in the wine industry due to common ownership, to provide representation and distribution services. As of June 15, 2022, the original agreement was terminated. Prior to termination, the Company provided access to new markets and retail and wholesale customers to the related party. In exchange for these services, the Company received a management fee of $50,000 per month plus a tiered fee ranging between $5.00 and $6.50 per case of the products sold. For the year ended December 31, 2022, the Company recognized $297,224 in service revenue related to this agreement. In September 2022, the Company entered into a new distribution agreement with Appellation Brands, LLC to purchase approximately $195,000 of wine inventory and sell directly to our customers. Sales associated with the new agreement are recorded within wholesale revenue beginning September 1, 2022. Total sales for the year ended December 31, 2023 associated with the new agreement was approximately $16,000. After our sales of the Appellation Brands, LLC wine inventory was completed, our affiliation with Appellation Brands, LLC ceased altogether.

Our Strategy for Growth

We have been executing the following strategies to gain brand and product visibility and increase sales and market share:

•        Continuing to establish brand visibility, awareness and credibility through mass and micro marketing tactics and association with other strong brands. These range from organic to paid media.

•        Continuing to build grass roots demand through high visibility sales and marketing activities that promote high margin DTC and home delivery sales channels, including continued investment in DTC technologies and capabilities that are critical to maintaining an intimate relationship with consumers.

•        Expanding our U.S.-based wholesale and retail distribution network by leveraging our product and brand differentiation, the emerging better-for-you category and to provide distribution partners with a differentiated value proposition.

•        Pursuing distribution of our wines internationally.

•        Embracing disruptive technologies and customer trends, and exploring and expanding partnerships with other organizations investing in customer-centric technologies, such as home delivery, third party wine clubs and evolving alternative DTC purchasing methods, such as ecommerce marketplaces, product aggregators and virtual distributors.

•        Expanding and strengthening key supply chain relationships, including with current and future juice suppliers, bottlers, materials suppliers, and dry goods suppliers, to establish a diversified portfolio of partners across all areas of our supply chain and to maintain effective capital management.

•        Continuing to add to the Fresh Vine Wine product portfolio by developing new varietals that fit within the better-for-you category and are consistent with our existing brand.

•        Continuing to invest in packaging innovation, including “active lifestyle packaging” alternatives to traditional bottling that provides an opportunity for our customers to enjoy Fresh Vine Wines in non-traditional settings.

•        Capitalizing on upward price mobility — While many other wine companies are experiencing downward price pressure to enter the coveted under $30 category, our wines currently sell for suggested retail prices ranging from $15 to $25 per bottle.

•        Developing additional wine brands by replicating the strategies used to build the Fresh Vine Wine brand via business service line agreements.

With over 500,000 licensed retail accounts (according to Neilson) in the United States, there remains ample opportunity to continue broadening distribution of our wines as well as increasing the volume of wine sold to existing accounts.

Competition

The wine industry and alcohol markets generally are intensely competitive. Our wines compete domestically and internationally with other premium or higher quality wines produced in Europe, South America, South Africa, Australia and New Zealand, as well as North America. Our wines compete on the basis of quality, price, brand recognition and distribution capability. The ultimate consumer has many choices of products from both domestic and international producers. Our wines may be considered to compete with all alcoholic and non-alcoholic beverages.

At any given time, there are more than 400,000 wine choices available to consumers, differing with one another based on vintage, variety or blend, location and other factors. Accordingly, we experience competition from nearly every segment of the wine industry. Additionally, some of our competitors have greater financial, technical, marketing and other resources, offer a wider range of products, and have greater name recognition, which may give them greater negotiating leverage with distributors and allow them to offer their products in more locations and/or on better terms than us. Nevertheless, we believe that our brand offerings, scalable infrastructure and relationships with one of the largest domestic distributors will allow us to continue growing our business.

IT Systems

We rely on various IT systems, owned by us and third parties, to effectively manage our sales and marketing, accounting, financial, legal and compliance functions. Our website is hosted by a third party, and we rely on third-party vendors for regulatory compliance for order processing, shipments, and e-commerce functionality. We believe these systems are scalable to support our growth plans. We recognize the value of enhancing and extending the uses of information technology in our business.

Regulatory Matters

Regulatory framework

We, along with our contract growers, producers, manufacturers, distributors, retail accounts and ingredients and packaging suppliers, are subject to extensive regulation in the United States by federal, state and local government authorities with respect to registration, production processes, product attributes, packaging, labelling, storage and distribution of wine and other products we make.

We are also subject to state and local tax requirements in all states where our wine is sold. We monitor the requirements of relevant jurisdictions to maintain compliance with all tax liability and reporting matters. In California, we are subject to a number of governmental authorities, and are also subject to city and county building, land use, licensing and other codes and regulations.

Alcohol-related regulation

We are subject to extensive regulation in the United States by federal, state and local laws regulating the production, distribution and sale of consumable food items, and specifically alcoholic beverages, including by the TTB and the FDA. The TTB is primarily responsible for overseeing alcohol production records supporting tax obligations, issuing wine labelling guidelines, including grape source and bottle fill requirements, as well as reviewing and issuing certificates of label approval, which are required for the sale of wine through interstate commerce. We carefully monitor compliance with TTB rules and regulations, as well as the state law of each state in which we sell our wines. In California, where most of our wines are made, we are subject to alcohol-related licensing and regulations by many authorities, including the ABC. ABC agents and representatives investigate applications for licenses to sell alcoholic beverages, report on the moral character and fitness of alcohol license applicants and the suitability of premises where sales are to be conducted and enforce California alcoholic beverages laws. We are subject to municipal authorities with respect to aspects of our operations, including the terms of our use permits. These regulations may limit the production of wine and control the sale of wine, among other elements.

Employee and occupational safety regulation

We are subject to certain state and federal employee safety and employment practices regulations, including regulations issued pursuant to the U.S. Occupational Safety and Health Act (“OSHA”), and regulations governing prohibited workplace discriminatory practices and conditions, including those regulations relating to

COVID-19 virus transmission mitigation practices. These regulations require us to comply with manufacturing safety standards, including protecting our employees from accidents, providing our employees with a safe and non-hostile work environment and being an equal opportunity employer. In California, we are also subject to employment and safety regulations issued by state and local authorities.

Environmental regulation

As a result of our wine production activities, we and certain third parties with which we work are subject to federal, state and local environmental laws and regulations. Federal regulations govern, among other things, air emissions, wastewater and stormwater discharges, and the treatment, handling and storage and disposal of materials and wastes. State environmental regulations and authorities intended to address and oversee environmental issues are largely state-level analogues to federal regulations and authorities intended to perform the similar purposes. In California, we are also subject to state-specific rules, such as those contained in the California Environmental Quality Act, California Air Resources Act, Porter-Cologne Water Quality Control Act, California Water Code sections 13300-13999 and Title 23 of the California Administrative Code and various sections of the Health and Safety Code. We are subject to local environmental regulations that address a number of elements of our wine production process, including air quality, the handling of hazardous waste, recycling, water use and discharge, emissions and traffic impacts.

Labelling regulation

Many of our wines are identified by their appellation of origin, which are among the most highly regarded wine growing regions in the world. An appellation may be present on a wine label only if it meets the requirements of applicable state and federal regulations that seek to ensure the consistency and quality of wines from a specific territory. These appellations designate the specific geographic origin of most or all (depending on the appellation) of the wine’s grapes, and can be a political subdivision (e.g., a country, state or county) or a designated viticultural area. The rules for vineyard designation are similar. Although we expect that most of our labels will maintain the same appellation of origin from year to year, we may choose to change the appellation of one or more of our wines from time to time to take advantage of high-quality grapes in other areas or to change the profile of a wine.

Privacy and security regulation

We collect personal information from individuals. Accordingly, we are subject to several data privacy and security related regulations, including but not limited to: U.S. state privacy, security and breach notification laws; the GDPR; and other European privacy laws as well as privacy laws being adopted in other regions around the world. In addition, the FTC and many state attorneys general are interpreting existing federal and state consumer protection laws to impose evolving standards for the online collection, use, dissemination and security of information about individuals. Certain states have also adopted robust data privacy and security laws and regulations. For example, the CCPA, which took effect in 2020, imposes obligations and restrictions on businesses regarding their collection, use, and sharing of personal information and provides new and enhanced data privacy rights to California residents, such as affording them the right to access and delete their personal information and to opt out of certain sharing of personal information. In response to the data privacy laws and regulations discussed above and those in other countries in which we do business, we have implemented several technological safeguards, processes, contractual third-party provisions, and employee trainings to help ensure that we handle information about our employees and customers in a compliant manner. We maintain a global privacy policy and related procedures, and we train our workforce to understand and comply with applicable privacy laws.

Intellectual Property

We strive to protect the reputation of our wine brand. We establish, protect and defend our intellectual property in a number of ways, including through employee and third-party nondisclosure agreements, copyright laws, domestic and foreign trademark protections, intellectual property licenses and social media and information security policies for employees. We have been granted three (3) trademark registrations in the United States for FRESH VINE®, FRESH VINE (Stylized)®, and our FV Logo®, and numerous trademark registrations in other countries for the FRESH VINE mark, and we have filed, and expect to continue to file, trademark applications seeking to protect any newly-developed wine brands. We have also been granted a copyright registration in the first version of our website located at www.freshvine.com. Information contained on or accessible through our website is not

incorporated by reference in or otherwise a part of this report. As a copyright exists in a work of art once it is fixed in tangible medium, we intend to continue to file copyright applications to protect newly-developed works of art that are important to our business.

We also rely on, and carefully protect, proprietary knowledge and expertise, including the sources of certain supplies, formulations, production processes, innovation regarding product development and other trade secrets necessary to maintain and enhance our competitive position.

Seasonality

There is a degree of seasonality in the growing cycles, procurement and transportation of grapes. The wine industry in general tends to experience seasonal fluctuations in revenue and net income, with lower sales and net income during the quarter spanning January through March and higher sales and net income during the quarter spanning from October through December due to the usual timing of seasonal holiday buying. As our operations expand, we expect that we will be impacted by the seasonality experienced in the wine industry generally.

Employees

As of December 31, 2023, we had approximately four full-time employees. All of our employees are employed in the United States. None of our employees are represented by a labor union or covered by a collective bargaining agreement. We consider our relationship with our employees to be good.

Legal Proceedings

We may be subject to legal disputes and subject to claims that arise in the ordinary course of business. Except as set forth below, we are not a party or subject to any pending legal proceedings the resolution of which is expected to have a material adverse effect on our business, operating results, cash flows or financial condition.

Timothy Michaels Lawsuit

The Company was a defendant in a lawsuit styled Timothy Michaels v. Fresh Vine Wine, Inc. filed May 27, 2022 in the Fourth Judicial District Court, Hennepin County, Minnesota. The lawsuit related to a complaint filed by Mr. Michaels resulting from the Company including a restricted “lock-up” legend on shares of the Company’s common stock issued to Mr. Michaels pursuant to a settlement agreement that the Company entered into with Mr. Michaels following termination of his employment and for not removing or directing the Company’s transfer agent to remove such legend. A jury trial commenced on January 23, 2024. During trial, on January 24, 2024, the Company filed a motion for judgement in favor of the Company as a matter of law, which was denied by the Court. On January 25, 2024, the jury in the lawsuit rendered a verdict against the Company awarding damages to Mr. Michaels in the amount of $585,976.25. On February 22, 2024, the Company filed a renewed motion for post-verdict judgment in favor of the Company as a matter of law. On February 26, 2024, the Judge in the lawsuit denied the renewed motion for post-verdict judgment. On March 25, 2024, Mr. Michaels filed a Notice and Application for Taxation of Costs and Disbursements. On March 26, 2024, the Company filed its Notice of Appeal. On March 26, 2024, Mr. Michaels served a motion for Pre-verdict and Prejudgment Interest. On March 27, 2024, a Notice of Entry of Judgment was filed and, on March 28, 2024, a Notice of Docketing of Judgment was entered. Although the Company believes it has legal grounds to appeal the verdict, continued litigation and related actions may be expensive, the outcome of any litigation (including any appeal) is difficult to predict, and the existence of litigation may impact the ability of management to focus on other business matters. Furthermore, the Company may be required to post an appeal bond in order to stay execution of the money judgment pending any appeal. Given the Company’s current financial position, the cost of such an appeal bond is uncertain and may be higher than the typical cost of such a bond or require the Company to provide cash or other collateral.

Website-related Plaintiff’s Lawsuit

On January 26, 2024, the Company was served with a complaint filed in the United States District Court for the Southern District of New York alleging that the Company has failed to design, construct, maintain and operate its Internet website to be fully accessible to and independently usable by blind or visually-impaired persons, thereby denying blind and visually-impaired persons with equal access to the Company’s goods and services in violation of

FRESH VINE MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion and analysis should be read in conjunction with Fresh Vine’s financial statements and related notes included elsewhere in this proxy statement/prospectus. This discussion contains forward-looking statements based upon current expectations that involve risks and uncertainties. Fresh Vine’s actual results and the timing of selected events could differ materially from those anticipated in these forward-looking statements as a result of several factors, including those set out under the section entitled “Risk Factors” beginning on page 23 of this proxy statement/prospectus and elsewhere in this proxy statement/prospectus. See also the section entitled “Cautionary Statement Concerning Forward-Looking Statements” beginning on page 59 of this proxy statement/prospectus. Under this “Fresh Vine Management’s Discussion And Analysis of Financial Condition And Results of Operations,” “we,” “us,” “our” “Fresh Vine Wine,” “Fresh Vine” and the “Company” refer to Fresh Vine.

Overview

Fresh Vine Wine, Inc. is a producer of low carb, low calorie, premium wines in the United States. Founded in 2019, Fresh Vine brings an innovative “better-for-you” solution to the wine market. We currently sell seven varietals: Cabernet Sauvignon, Pinot Noir, Chardonnay, Sauvignon Blanc, Rosé, Sparkling Rosé, and a limited Reserve Napa Cabernet Sauvignon. All varietals are produced and bottled in Napa, California.

Fresh Vine’s wines are distributed across the United States and Puerto Rico through wholesale, retail, and direct-to-consumer (DTC) channels. Fresh Vine is able to conduct wholesale distribution of our wines in all 50 states and Puerto Rico, and it is licensed to sell through DTC channels in 43 states. As of December 31, 2023, Fresh Vine holds active relationships with wholesale distributors in 50 states. Fresh Vine is working with leading distributors, including Southern Glazer’s Wine & Spirits (SGWS), Johnson Brothers, and Republic National Distributing Company (RNDC), to expand our presence across the contiguous United States.

Fresh Vine’s core wine offerings are priced strategically to appeal to mass markets and sell at a list price between $15 and $25 per bottle. Given the Fresh Vine Wine brand’s “better-for-you” appeal, and overall product quality, Fresh Vine believes that it presents today’s consumers with a unique value proposition within this price category. Additionally, Fresh Vine Wine is one of very few products available at this price point that includes a named winemaker, Jamey Whetstone.

Fresh Vine’s marketing activities focus primarily on consumers in the 21-to-34-year-old demographic with moderate to affluent income and on those with a desire to pursue a healthy and active lifestyle.

Fresh Vine’s asset-light operating model allows it to utilize third-party assets, including land and production facilities. This approach helps us mitigate many of the risks associated with agribusiness, such as isolated droughts or fires. Because Fresh Vine sources product inputs from multiple geographically dispersed vendors, it reduces reliance on any one vendor and benefit from broad availability/optionality of product inputs. This is particularly important as a California-based wine producer where droughts or fires can have an extremely detrimental impact to a company’s supply chain if not diversified.

Key Financial Metrics

We use net revenue, gross profit (loss) and net income (loss) to evaluate the performance of Fresh Vine. These metrics are useful in helping us to identify trends in our business, prepare financial forecasts and make capital allocation decisions, and assess the comparable health of our business relative to our direct competitors.

Components of Results of Operations and Trends That May Impact Our Results of Operations

Net Revenue

Our net revenue consists primarily of wine sales to distributors and retailers, which together comprise our wholesale channel, and directly to individual consumers through our DTC channel. Net revenues generally represent wine sales and shipping, when applicable, and to a lesser extent branded merchandise and wine club memberships. For wine and merchandise sales, revenues are recognized at time of shipment. For Wine Club memberships, revenues are recognized quarterly at the time of fulfilment.

We refer to the volume of wine we sell in terms of cases. Each case contains 12 standard bottles, in which each bottle has a volume of 750 milliliters. Cases are sold through Wholesale/Retail or DTC channels.

The following factors and trends in our business have driven our net revenue results and are expected to be key drivers of our net revenue for the foreseeable future:

Brand recognition:    As we expand our marketing presence and drive visibility through traditional and modern marketing methods, we expect to build awareness and name recognition for Fresh Vine Wine in consumers’ minds. Brand awareness will be built substantially through social media channels. Our brand, and to a large extent our direct-to-consumer sales outlet, has historically been dependent on the image and popularity of, and affinity towards, Nina Dobrev and Julianne Hough. Ms. Dobrev and Ms. Hough served as celebrity spokespersons and ambassadors of our company, and actively endorsed our wines on their sizable social media and other outlets pursuant to agreements that granted us licenses to use their pre-approved name, likeness, image, and other indicia of identity, as well as certain content published on their social media and other channels, on and in conjunction with the sale and related pre-approved advertising and promotion of our wine. Such license agreements terminated on September 7, 2023 and, as a result, we will be required to refocus our marketing and brand promotion efforts. See “Risk Factors — We have relied heavily on celebrities to endorse our wines and market our brand pursuant to license agreements which have been terminated.”

Portfolio evolution:    As a relatively new, high-growth brand, we expect and seek to learn from our consumers. We intend to continuously evolve and refine our products to meet our consumers’ specific needs and wants, adapting our offering to maximize value for our consumers and stakeholders.

Distribution expansion and acceleration:    Purchasing by distributors and loyal accounts that continue to feature our wines are key drivers of net revenue.

Seasonality:    In line with industry norms, we anticipate our net revenue peaking during the quarter spanning from October through December due to increased consumer demand around the major holidays. This is particularly true in our DTC revenue channel, where marketing programs will often be aligned with the holiday season and product promotions will be prevalent.

Revenue Channels

Our sales and distribution platform is built upon a highly developed network of distributor accounts. Within this network, we have signed agreements in place with several distributors. While we are actively working with these distributors in certain markets, they operate across the United States, and we intend to grow our geographic/market presence through these relationships. The development of these relationships and impacts to our related product mix will impact on our financial results as our channel mix shifts.

•        Wholesale channel:    Consistent with sales practices in the wine industry, sales to retailers and distributors occur below SRP (Suggested Retail Price). We work closely with distributors to increase wine volumes and the number of products sold by their retail accounts in their respective territories.

•        DTC channel:    Wines sold through our DTC channels are generally sold at SRP, although we do periodically offer various promotions. Our DTC channel continues to grow as a result of a number of factors, including expanded e-commerce sites and social media capabilities.

•        Related party services:    We previously entered into service agreements with related parties in the wine industry to provide representation and distribution services. These services were suspended in June 2022 to allow the Company’s lean team to prioritize the growth and expansion of the Fresh Vine Wine brand.

Wholesale channel sales made on credit terms generally require payment within 30 days of delivery; however our credit terms with Southern Glazer’s Wine & Spirits requires payment within 60 days of delivery. During periods in which our net revenue channel mix reflects a greater concentration of wholesale sales, we typically experience an increase in accounts receivable for the period to reflect the change in sales mix; payment collections in the subsequent period generally reduce our accounts receivable balance and have a positive impact on cash flows.

While we seek to increase revenue across all channels, we expect the majority of our future revenue to be driven through the wholesale channel. We intend to maintain and expand relationships with existing distributors and form relationships with new distributors as we work to grow the Company. With multiple varietals within the Fresh Vine Wine portfolio, we consider ourselves to be a ‘one-stop shop’ for better-for-you wines. We continue to innovate with new products at competitive price points and strive to enhance the experience as we increase revenue with new and existing consumers.

In the DTC channel, our comprehensive approach to consumer engagement in both online and traditional forums is supported by an integrated e-commerce platform. Our marketing efforts target consumers who have an interest in healthy and active lifestyles. We attempt to motivate consumers toward a simple and easy purchasing decision using a combination of defined marketing programs and a modernized technology stack.

Increasing customer engagement is a key driver of our business and results of operations. We continue to invest in our DTC channel and in performance marketing to drive customer engagement. In addition to developing new product offerings and cross-selling wines in our product portfolio, we focus on increasing customer conversion and retention. As we continue to invest in our DTC channel, we expect to increase customer engagement and subsequently deliver greater satisfaction. We also distribute our wines via other wine e-commerce sites such as Wine.com and Vivino.com and plan to continue to add affiliate retail websites.

Net Revenue Percentage by Channel

We calculate net revenue percentage by channel as net revenue made through our wholesale channel to distributors, through our wholesale channel directly to retail accounts, and through our DTC channel, respectively, as a percentage of our total net revenue. We monitor net revenue percentage across revenue channels to understand the effectiveness of our distribution model and to ensure we are employing resources effectively as we engage customers.

Cost of Revenues

Cost of revenues is comprised of all direct product costs such as juice, bottles, caps, corks, labels, and capsules. Additionally, we also categorize boxes and quality assurance testing within our cost of revenues. Fresh Vine expects that cost of revenues will increase as net revenue increases. As the volume of the product inputs increases, Fresh Vine intends to work to renegotiate vendor contracts with key suppliers to reduce overall product input costs as a percentage of net revenue. Based on a proposed sale of inventory at a price below the Company’s cost, the Company completed an evaluation of the net realizable value of our inventory during the year ended December 31, 2023. As a result of this evaluation, the Company recorded a $1.7 million inventory write down to reflect it at its net realizable value at June 30, 2023 and an additional approximately $100,000 was written down by December 31, 2023. This is recorded in cost of revenue in the financial statements. The inventory reserve balance at December 31, 2023 is approximately $112,000.

Additionally, the Company includes shipping fees in all DTC revenues. These fees are paid by end consumers at time of order and subsequently itemized within the cost of each individual sale.

As a commodity product, the cost of wine fluctuates due to annual harvest yields and the availability of juice. This macroeconomic consideration is not unique to Fresh Vine Wine, although we are conscious of its potential impact to our product cost structure.

Gross Profit (Loss)

Gross profit (loss) is equal to our net revenue less cost of revenues.

Selling, General, and Administrative Expenses

Selling, general, and administrative expenses consist of selling expenses, marketing expenses, and general and administrative expenses. Selling expenses consist primarily of direct selling expenses in our wholesale and DTC channels, including payroll and related costs, product samples, processing fees, and other outside service fees or consulting fees. Marketing expenses consist primarily of advertising costs to promote brand awareness, contract fees incurred as a result of significant sports marketing agreements, customer retention costs, payroll, and related costs. General and administrative expenses consist primarily of payroll and related costs.

Equity-Based Compensation

Equity-based compensation consists of the accounting expense resulting from our issuance of equity or equity-based grants issued in exchange for employee or non-employee services. We measure equity-based compensation cost at the grant date based on the fair value of the award and recognize the compensation expense over the requisite service period, which is generally the vesting period. We recognize any forfeitures as they occur.

Results of Operations

Comparison of the Fiscal Years ended December 31, 2023 and 2022

Net Revenue, Cost of Revenues and Gross Profit

We had net revenue in fiscal 2023 of $1,826,190. Net revenue in fiscal 2022 was $2,860,001. The decrease in net revenue was attributable to decreasing sales and marketing spending, the termination of related party sales agreements and increased billbacks. We generated net revenue of $1,328,382 during fiscal 2023 from our wholesale distribution channel and $497,808 of net revenue from our direct-to-consumer sales channel. This revenue distribution represents 73% and 27%, respectively, of our net revenue during the period.

Selling, general and administrative expenses

For the year ended December 31, 2023, selling, general and administrative expenses decreased 45%, compared to the period ended December 31, 2022. Selling, general and administrative expense decreases were largely driven by certain one-time charges associated with the leadership transition in 2022, as well as decreases in general and administrative expenses due to lower staffing headcount and related salaries and less consulting, legal and financial expenses as operational activity decreased from 2022 to 2023. The year-over-year decrease in marketing expenses primarily resulted from decreased advertising, social media marketing, tastings, and other promotion materials and events as selling and marketing expenses are directly related to sale trends.

Cash Flows

Net cash used in operating activities was ($4,809,009) and ($13,528,251) for the years ended December 31, 2023 and December 31, 2022, respectively. Cash used in operating activities decreased in the period ended December 31, 2023 primarily because of one-time selling, general and administrative expenses in 2022 driven by charges associated with the leadership transition, as well as decreases in general and administrative expenses due to lower staffing headcount and related salaries and less consulting, legal and financial expenses as operational activity decreased from 2022 to 2023. The decrease is also due to the fact that no inventory purchases were made in 2023 to maintain our inventory levels to meet demand and reductions in costs for staffing and marketing activities.

Net cash used in investing activities was $500,000 and $0 for the years ended December 31, 2023 and December 31, 2022, respectively. Cash used in investing activities in the 2023 period was from the investment made to Notes Live, Inc, see Note 5.

Net cash provided by (used in) financing activities was $3,565,014 and $(455,355) for the years ended December 31, 2023 and December 31, 2022, respectively. The difference is due to the Rights Offering of $2,615,014 and the issuance of preferred stock for a net of $950,000 during the year ended December 31, 2023.

Liquidity and Capital Resources

Our primary cash needs are for working capital purposes, such as producing or purchasing inventory and funding operating expenses. We have funded our operations through equity and debt financings, as described under the caption “Financing Transactions” below.

We have incurred losses and negative cash flows from operations since our inception in May 2019, including net losses of approximately ($10.6) million and ($15.2) million during the years ended December 31, 2023 and 2022, respectively. As of December 31, 2023, we had an accumulated deficit of approximately $26.5 million and a total stockholders’ deficit of approximately $830,000. We expect to incur losses in future periods as we continue to operate our business and incur expenses associated with being a public company.

As of December 31, 2023, we had $336,340 in cash and restricted cash, accounts receivable of $172,101, inventory of $337,873, and prepaid expenses of $42,943. On December 31, 2023, current assets amounted to approximately $889,000 and current liabilities were $2.1 million resulting in a working capital deficit (with working capital defined as current assets minus current liabilities) of approximately $1.3 million.

Since the commencement of its operations, the Company’s operating and other expenses have significantly exceeded its revenues. The Company put in place cash preservation initiatives in the second half of 2022, including a strategic restructuring plan aimed at cash resources while continuing to focus on accelerating sales growth. That plan resulted in the termination of members of the Company’s internal sales team, the engagement of a third party vendor positioned to more efficiently and effectively facilitate sales, and the engagement of a third party vendor to manage marketing initiatives and drive growth within the Direct-to-Consumer sales channel.

During the second quarter of 2023, the Company undertook a review of the Company’s operations and strategic plans, and took measures aimed at improving the Company’s operational efficiency, curtailing operating expenses and further preserving cash resources. During the year ended December 31, 2023, the Company continued to work to reduce its operating expenses, including reducing its warehousing costs, while continuing to provide customers the opportunity to experience its wine and supporting its current retail customers and those purchasing via the Company’s wine club or from its website.

Commencing in June 2023, the Company has worked aggressively to identify prospective new sources of capital, while working with advisors to assess and improve its liquidity position, including from the sale of existing inventory. Early in the third quarter, the Company entered into purchase orders for the sale of up to 45,000 cases of the Company’s wine to Grocery Outlet, a discount retailer, with sales occurring through the last part of 2023. The Company had sales related to this agreement totaling approximately $829,000 for the year ended December 31, 2023.

On August 2, 2023, the Company entered into a Securities Purchase Agreement with two accredited investors (the “Purchasers”) pursuant to which the Company agreed to issue and sell in a private placement shares of a newly created series of preferred stock designated as Series A Convertible Preferred Stock (the “Series A Stock”). Pursuant to the Securities Purchase Agreement, the Purchasers collectively purchased 10,000 shares of Series A Stock at a per share purchase price equal to $100.00, for total gross proceeds of $1.0 million. See “Financing Transactions” below for a description of the Company’s offering of Series A Stock.

In August 2023, Fresh Vine announced that it had initiated an exploration of strategic opportunities by way of merger, acquisition, or any accretive strategic transaction to enhance stockholder value, which is a focus of the Company’s plan to increase its stockholders’ equity and regain compliance with the NYSE American’s continued listing standards. On January 25, 2024, Fresh Vine entered into the Merger Agreement. See Part I, “Item 1 Business — Recent Developments — Anticipated Merger with Notes Live, Inc.” included elsewhere in this report.

As disclosed under “Fresh Vine Business — Legal Proceedings,” the Company was a defendant in a lawsuit styled Timothy Michaels v. Fresh Vine Wine, Inc. filed May 27, 2022 in the Fourth Judicial District Court, Hennepin County, Minnesota. On January 25, 2024, the jury in the lawsuit rendered a verdict against the Company awarding damages to Mr. Michaels in the amount of $585,976.25. The damages awarded to Mr. Michaels by the trial court are not covered by the Company’s insurance policies. On March 25, 2024, Mr. Michaels filed a Notice and Application for Taxation of Costs and Disbursements. On March 26, 2024, the Company filed its Notice of Appeal. On March 26, 2024, Mr. Michaels served a motion for Pre-verdict and Prejudgment Interest. On March 27, 2024, a Notice of Entry of Judgment was filed and, on March 28, 2024, a Notice of Docketing of Judgment was entered. Although the Company believes it has legal grounds to appeal the verdict, continued litigation and related actions may be expensive, the outcome of any litigation (including any appeal) is difficult to predict and the existence of continued litigation may impact the ability of management to focus on other business matters. Furthermore, the Company may be required to post an appeal bond in order to stay execution of the money judgment pending any appeal. Given the Company’s current financial position, the cost of such an appeal bond is uncertain and may be higher than the typical cost of such a bond or require the Company to provide cash or other collateral.

At the current reduced pace of incurring expenses and without receipt of additional financing, the Company projects that the existing cash balance will be sufficient to fund current operations into the first quarter of 2024. The Company requires additional debt or equity financing to satisfy its existing obligations, sustain existing operations, pay expenses associated with its pending business combination transaction and to satisfy financial related conditions to the closing of such transaction. See “Current Strategy — The Merger” below. Additional financing may not be available on favorable terms or at all. If additional financing is available, it may be highly dilutive to existing

stockholders and may otherwise include burdensome or onerous terms. The Company’s inability to raise additional working capital in a timely manner will negatively impact the ability to fund operations, generate revenues, maintain or grow the business and otherwise execute the Company’s business plan, including its pursuit of its pending business combination transaction, leading to the reduction or suspension of operations and ultimately potentially ceasing operations altogether and initiating bankruptcy proceedings. Should this occur, the value of any investment in the Company’s securities would be adversely affected.

These factors raise substantial doubt about the Company’s ability to continue as a going concern. Our financial statements do not include any adjustments relating to the recoverability and classification of recorded asset amounts or the amounts and classification of liabilities that might be necessary should the Company be unable to continue as a going concern.

Our ability to continue as a going concern in the future will be determined by our ability to generate sufficient cash flow to sustain our operations, raise additional capital in the form of debt or equity financing and/or complete a successful combination transaction with a suitable target company. Our forecast of cash resources is forward-looking information that involves risks and uncertainties, and the actual amount of our expenses could vary materially as a result of a number of factors. We have based our estimates on assumptions that may prove to be wrong, and our revenue could prove to be less and our expenses higher than we currently anticipate. Management does not know whether additional financing will be on terms favorable or acceptable to us when needed, if at all. If we are unable to generate sufficient cash flow to fund our operations and adequate additional funds are not available when required, management may need to curtail its sales and marketing efforts, which would adversely affect our business prospects, or we may be unable to continue operations.

On March 14, 2024, Fresh Vine filed with the Secretary of State of the State of Nevada a Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock, par value $0.001 per share (the “Series B Certificate”). The Series B Certificate designates 50,000 shares of the Fresh Vine’s undesignated preferred stock as Series B Convertible Preferred Stock and establishes the rights and preferences of the Series B Convertible Preferred Stock. Fresh Vine’s board of directors has approved the issuance and sale of up to 20,000 shares of Series B Convertible Preferred Stock for a purchase price equal to $100.00 per share. For a further description of the rights and preferences of the Fresh Vine Preferred Stock, see the section of this proxy statement/prospectus entitled “Description of Capital Stock — Preferred Stock.” As of March 28, 2024, Fresh has received subscriptions from accredited investors for the purchase of a total of 940 shares of Fresh Vine’s Series B Convertible Preferred Stock. The total number of shares of Series B Convertible Preferred Stock that Fresh Vine will issue and sell has not been finally determined.