UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Form 10-K

 

  ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended December 31, 2018

 

OR

 

  TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from_____________ to _____________.

 

Commission file number 000-55572

 

GREY CLOAK TECH

Grey Cloak Tech Inc.

(Exact name of registrant as specified in its charter)

 

Nevada

(State or other jurisdiction of

incorporation or organization)

 

47-2594704

(I.R.S. Employer

Identification No.)

 

10300 W. Charleston

Las Vegas, NV

(Address of principal executive offices)

 

89135

(Zip Code)

 

Registrant’s telephone number, including area code (702) 201-6450

 

Securities registered pursuant to Section 12(b) of the Act:

 

 

Title of each class

 Trading

Symbol(s)

 

Name of each exchange on which registered

     
None   None

 

Securities registered pursuant to Section 12(g) of the Act:

 

Common Stock, par value $0.001

(Title of class)

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes No

 

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes No

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes No

 

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

Yes No

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   Accelerated filer  
Non-accelerated filer   Smaller reporting company  
    Emerging growth company  

 

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 13(a) of the Exchange Act.

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).

Yes No

 

The aggregate market value of the voting and non-voting common equity held by non-affiliates as December 18, 2019 was $942,848, based on the last sale price of $0.03 on June 30, 2019.

 

As of December 18, 2019, there were 121,610,085[1] shares of common stock, par value $0.001, issued and outstanding.

 

Documents Incorporated by Reference

 

None.

 

 

 

 

 

 
 
 
 

GREY CLOAK TECH INC.

 

FORM 10-K ANNUAL REPORT

FOR THE FISCAL YEAR ENDED DECEMBER 31, 2018

 

TABLE OF CONTENTS

  

PART I
     
ITEM 1  BUSINESS 1
ITEM 1A  RISK FACTORS 8
ITEM 1B  UNRESOLVED STAFF COMMENTS 21
ITEM 2  PROPERTIES 21
ITEM 3  LEGAL PROCEEDINGS 21
ITEM 4  MINE SAFETY DISCLOSURES 21
     
PART II
     
ITEM 5  MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES 22
ITEM 6  SELECTED FINANCIAL DATA 23
ITEM 7  MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 24
ITEM 7A  QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK 29
ITEM 8  FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA 30
ITEM 9  CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE 31
ITEM 9A  CONTROLS AND PROCEDURES 31
ITEM 9B  OTHER INFORMATION 32
     
PART III
     
ITEM 10  DIRECTORS,  EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE 33
ITEM 11  EXECUTIVE COMPENSATION 35
ITEM 12  SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS 38
ITEM 13  CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE 39
ITEM 14  PRINCIPAL ACCOUNTING FEES AND SERVICES 40
     
PART IV
     
ITEM 15  EXHIBITS, FINANCIAL STATEMENT SCHEDULES 41

 

 

PART I

 

Cautionary Statement Regarding Forward Looking Statements

 

This Annual Report includes forward-looking statements within the meaning of the Securities Exchange Act of 1934 (the “Exchange Act”). These statements are based on management’s beliefs and assumptions, and on information currently available to management. Forward-looking statements include the information concerning possible or assumed future results of operations of the Company set forth under the heading “Management’s Discussion and Analysis of Financial Condition or Plan of Operation.” Forward-looking statements also include statements in which words such as “expect,” “anticipate,” “intend,” “plan,” “believe,” “estimate,” “consider” or similar expressions are used.

 

Forward-looking statements are not guarantees of future performance. They involve risks, uncertainties and assumptions. The Company’s future results and shareholder values may differ materially from those expressed in these forward-looking statements. Readers are cautioned not to put undue reliance on any forward-looking statements.

 

ITEM 1 – BUSINESS

 

Corporate History

 

We were incorporated on December 19, 2014 in the State of Nevada. Historically, we provided cloud based software to detect advertising fraud on the internet. We abandoned this business in early 2018.

 

On October 17, 2017, we acquired Eqova Life Sciences, a Nevada corporation (“Eqova”). Eqova is a wholly-owned subsidiary through which we conduct our hemp oil product business.

 

On February 4, 2019, we acquired BergaMet NA, LLC, a Delaware limited liability company (“BergaMet”). BergaMet is a wholly-owned subsidiary through which we conduct our nutraceuticals business.

 

Overview

 

Beginning with the acquisition of Eqova, we began to transition away from our software services business and shifted our focus to new lines of business. Eqova is focused on the production and sale of hemp oil products through the medical practitioner market.

 

The addition of BergaMet, an established company that was already generating revenues when we acquired it, has added unique products that will fit nicely with our existing business. We now plan on expanding our product line to other nutraceuticals.

 

Eqova Life Sciences

 

On October 17, 2017, we acquired Eqova through an exchange of shares of our Series A Convertible Preferred Stock for all of the outstanding equity interest of Eqova.

 

Eqova is a medically-focused CBD company that develops clinical grade full spectrum hemp oil products, sold exclusively via partnerships with licensed medical practitioners to use with their patients.

 

BergaMet NA, LLC

 

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On February 4, 2019, we issued and exchanged shares of our common stock for all of the outstanding equity securities of BergaMet.

 

Through the exchange, we were able to secure funds in BergaMet to pay off debt and provide capital for operations. We paid an aggregate of $353,908 and will pay another $164,578 in approximately one (1) year to retire convertible debt. Prior to the exchange, we also entered into agreements with other holders of convertible debt to convert their notes for an aggregate of 806,015 shares of common stock. We also entered into conversion agreements with the holders of our Series A Convertible Preferred Stock whereby all of the outstanding preferred stock was converted for an aggregate of 15,592,986 shares of common stock. The conversion and repayment of the preferred stock and convertible debt have greatly improved our capitalization structure.

 

The acquisition of BergaMet has been extremely beneficial to us. In addition to paying off our convertible debt, we are now able to better position ourselves in the market. BergaMet is an established company that was already generating revenues when we acquired it. BergaMet also has unique products that will fit nicely with our existing business. We now plan on expanding our product line to other nutraceuticals.

 

Discontinued Software Enterprise Platform Services

 

Our prior business, until discontinued, was providing software enterprise platform services. During the year ended December 31, 2017, we sold and marketed a cloud based software to detect advertising fraud on the internet. We had revenues of approximately $128,105 in the year ended December 31, 2017, 100% of which was for these software services and came from a single customer, Take5. In March 2018, we received the last payment from this customer, and discontinued this business to shift our focus solely to sales of our hemp oil and nutraceutical products.

 

The Market

 

Bergamot

 

BergaMet, LLC holds the rights to distribute BergaMet products in the United States and Mexico.

 

Bergamot, or citrus bergamia, is a rare citrus fruit native to the Calabrian region of Southern Italy. Due to sensitivity to the weather and soil conditions, this region accounts for 80 percent of the worldwide production of bergamot. This superfruit has been used for decades in the Calabrian regions for its beneficial effects in promoting overall health - particularly, in support of cholesterol, cardiovascular, and metabolic health[2]. Citrus bergamot contains five unique antioxidant polyphenols in unusually concentrated amounts, which help protect your body’s trillions of cells from free radical damage. The juice and albedo of bergamot has a unique profile of flavanoid and glycosides, such as neoeriocitrin, neohesperidin, naringin, rutin, neodesmin, rhoifolin, and poncirin. Naringin has been shown to be beneficial in animal models of atherosclerosis, while neoeriocitrin and rutin have been found to exhibit a strong capacity to prevent LDL from oxidation. Importantly, bergamot juice is rich in brutieridine and melitidine with an ability to inhibit HMG-CoA reductase, which inhibits the liver’s ability to produce LDL, resulting in reduced cholesterol levels in liver cells.

 


[2] These statements have not been evaluated by the Food and Drug Administration. These products are not intended to diagnose, treat, cure, or prevent any disease.

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BergaMet sells its bergamot products in capsule form on its website and on distribution sites such as Amazon.

 

Hemp Oil and CBD Market

 

Eqova and our hemp oil products are tailored primarily to the medical practitioner market. We believe this market is underserved and that other companies are unable to provide products that match the quality and consistent servings/dosage of our products.

 

Bergamot Products

 

Our bergamot products are sold in capsule form under the following product labels:

 

· BergaMet Pro+
· BergaMet Mega+O
· BergaMet HerHeart
· BergaMet Cholesterol Command
· BergaMet Sport
· BergaMet Ultimate Femme
· BergaMet Ultimate Sport
· BergaMet Ultimate Memory

 

Hemp Oil Products

 

Eqova develops clinical grade hemp oil products, sold primarily to licensed medical practitioners for use with their patients.

 

We produce and offer the following products:

 

· CannaBio Salve – most often used to provide relief to tight or sore muscles and minor skin irritations, this product contains full spectrum hemp oil, menthol and essential oils.
· CannaBio x25 (gel cap and liquid) – provides a daily serving of full spectrum hemp oil and often used to target patients’ GI tract.
· CannaBio MuscleCalm – a topical rub with soothing amounts of menthol, most often used to provide relief to tight or sore muscles.
· CannaBio Optimized – a liquid liposomal full spectrum hemp oil product designed to be fat soluble for a high degree of bioavailability.
· CannaBio Pets – designed and marketed to provide relief to anxious, aging or inflamed pets.[3]

 

Eqova’s products are created using full spectrum hemp oil and other ingredients to achieve standardized dosing. These formulations combine the powerful benefits of cannabinoids in standardized products, which are intended to be distributed to patients under the care of licensed health practitioners. All Eqova products are carefully researched. We require our manufacturers to make our products in cGMP-compliant labs located in the United States.

 


[3] These statements have not been evaluated by the Food and Drug Administration. These products are not intended to diagnose, treat, cure, or prevent any disease.

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Patents and Intellectual Property Rights

 

We have not filed for any intellectual property protection. However, we rely on intellectual property law that may include a combination of copyright, trade secret and confidentiality agreements to protect our intellectual property. Our employees and independent contractors will be required to sign agreements acknowledging that all inventions, trade secrets, works of authorship, developments and other processes generated by them on our behalf are our property, and assigning to us any ownership that they may claim in those works. Despite our precautions, it may be possible for third parties to obtain and use without consent intellectual property that we own. Unauthorized use of our intellectual property by third parties, and the expenses incurred in protecting our intellectual property rights, may adversely affect our business.

 

From time to time, we may encounter disputes over rights and obligations concerning intellectual property. While we believe that our product and service offerings do not infringe the intellectual property rights of any third party, we cannot assure you that we will prevail in any intellectual property dispute. If we do not prevail in such disputes, we may lose some or all of our intellectual property protection, be enjoined from further sales of the applications determined to infringe the rights of others, and/or be forced to pay substantial royalties to a third party.

 

Governmental Controls, Approval and Licensing Requirements

 

Federal laws related to the advertising, distribution and sale of health supplements.

 

We expect that the formulation, manufacturing, packaging, labeling, advertising, distribution and sale (hereafter, “sale” or “sold” may be used to signify all of these activities) of our vitamin and nutritional supplement products will be subject to regulation by one or more federal agencies, primarily the Food and Drug Administration (“FDA”) and the Federal Trade Commission (“FTC”), and to a lesser extent the Consumer Product Safety Commission (“CPSC”), the United States Department of Agriculture, and the Environmental Protection Agency. Our activities are also regulated by various governmental agencies for the states and localities in which our products are sold, as well as by governmental agencies in certain countries outside the United States in which our products are sold. Among other matters, regulation by the FDA and the FTC is concerned with product safety and claims made with respect to a product’s ability to provide health-related benefits. Specifically, the FDA, under the Federal Food, Drug, and Cosmetic Act (“FDCA”), regulates the formulation, manufacturing, packaging, labeling, distribution, and sale of food, including dietary supplements and over-the-counter (“OTC”) drugs. The FTC regulates the advertising of these products. The National Advertising Division (“NAD”) of the Council of Better Business Bureaus oversees an industry-sponsored, self-regulatory system that permits competitors to resolve disputes over advertising claims. The NAD has no enforcement authority of its own, but may refer matters that appear to violate the FTC Act or the FDCA to the FTC or the FDA for further action, as appropriate.

 

Most of the nutritional supplement products that we plan to sell are classified as dietary supplements. The FDA’s revision of nutrition labeling requirements also affects the nutrition labeling of certain dietary supplements.  Our affected manufacturers may have to revise labels on some of their dietary supplements in the next two years. Moreover, these manufacturers may need to reformulate their products to maintain eligibility for certain marketing claims.

 

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The Dietary Supplement Health and Education Act (“DSHEA”) was enacted in 1994, amending the FDCA. Among other things, DSHEA prevents the FDA from regulating dietary ingredients in dietary supplements as “food additives” and allows the use of statements of nutritional support on product labels and in labeling. DSHEA establishes a statutory class of “dietary supplements,” which includes vitamins, minerals, herbs, amino acids and other dietary ingredients for human use to supplement the diet. Dietary ingredients marketed in the United States before October 15, 1994 may be marketed without the submission of a “new dietary ingredient” (“NDI”) premarket notification to the FDA. Dietary ingredients not marketed in the United States before October 15, 1994 may require the submission, at least 75 days before marketing, of an NDI notification containing information establishing that the ingredient is reasonably expected to be safe for its intended use. The FDA has issued final regulations under DSHEA.

 

As required by Section 113(b) of the Food Safety Modernization Act, the FDA published in July 2011 a draft guidance document clarifying when the FDA believes a dietary ingredient is an NDI, when a manufacturer or distributor must submit an NDI premarket notification to the FDA, the evidence necessary to document the safety of an NDI and the methods for establishing the identity of an NDI. Industry strongly objected to several aspects of the draft guidance. In 2016, the FDA issued revised draft guidance on what constitutes an NDI and NDI notification requirements. Regardless of whether the FDA finalizes this draft guidance, the FDA has recently acted more aggressively to remove ingredients from the market that the FDA views as unlawful dietary ingredients. This trend, if it continues, may limit the dietary supplement market. Several bills to amend DSHEA in ways that would make this law less favorable to consumers and industry have been proposed in Congress.

 

The FDA issued a Final Rule on GMPs for dietary supplements on June 22, 2007. The GMPs cover manufacturers and holders of finished dietary supplement products, including dietary supplement products manufactured outside the United States that are imported for sale into the United States. Among other things, the new GMPs: (a) require identity testing on all incoming dietary ingredients, (b) call for a “scientifically valid system” for ensuring finished products meet all specifications, (c) include requirements related to process controls, including statistical sampling of finished batches for testing and requirements for written procedures and (d) require extensive recordkeeping. We have reviewed the GMPs and have taken steps to ensure compliance. While we believe we are in compliance, there can be no assurance that our operations or those of our suppliers will be in compliance in all respects at all times. Additionally, there is a potential risk of increased audits as the FDA and other regulators seek to ensure compliance with the GMPs.

 

On December 22, 2006, Congress passed the Dietary Supplement and Nonprescription Drug Consumer Protection Act, which went into effect on December 22, 2007. The law requires, among other things, that companies that manufacture or distribute nonprescription drugs or dietary supplements report serious adverse events allegedly associated with their products to the FDA and institute recordkeeping requirements for all adverse events (serious and non-serious). There is a risk that consumers, the press and government regulators could misinterpret reported serious adverse events as evidence of causation by the ingredient or product complained of, which could lead to additional regulations, banned ingredients or products, increased insurance costs and a potential increase in product liability litigation, among other things.

 

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All states regulate foods and drugs under laws that generally parallel federal statutes. We are also subject to state consumer health and safety regulations, such as the California Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”). Violation of Proposition 65 may result in substantial monetary penalties and compliance with Proposition 65 is a major focus. Contemplated changes in the Proposition 65 labeling requirements could potentially lead to substantial costs. Current legislation in Massachusetts regarding restrictions on weight loss and sports nutrition products could also impact the marketing of dietary supplements generally. Further, state attorneys general have pressured industry to adopt DNA testing for herbal-based products to assure plant identity, and have taken other actions relating to dietary ingredient status. It is uncertain whether these efforts will have a material impact on the dietary supplement market.

 

Hemp Oil Products

 

A major obstacle to our growth is the public perception that hemp and marijuana are the same thing. This perception drives much of the regulation of hemp products. Although hemp and marijuana are both part of the cannabis family, they differ in cultivation, function, and application. Despite the use of marijuana becoming more widely legalized, it is viewed by many regulators and many others as an illegal product. Hemp, on the other hand, is used in a variety of other ways that include clothing, skin products, pet products, dietary supplements (the use of CBD oil), and thousands of other applications. Hemp may be legally sold, however the inability of many to understand the difference between hemp and marijuana often causes burdensome regulation and confusion among potential customers. Therefore, we are affected by laws related to cannabis and marijuana, even though our products are not the direct targets of these laws.

 

Cannabis is currently a Schedule I controlled substance under the Controlled Substance Act (“CSA”) and is, therefore, illegal under federal law. Even in those states in which the use of cannabis has been legalized pursuant to state law, its use, possession and/or cultivation remains a violation of federal law. A Schedule I controlled substance is defined as one that has no currently accepted medical use in the United States, a lack of safety for use under medical supervision and a high potential for abuse. The U.S. Department of Justice (the “DOJ”) describes Schedule I controlled substances as “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” If the federal government decides to enforce the CSA in Colorado with respect to state-regulated cannabis activities in Colorado and other states, persons that are charged with distributing, possessing with intent to distribute or growing cannabis could be subject to fines and/or terms of imprisonment, the maximum being life imprisonment and a $50 million fine.

 

Notwithstanding the CSA, thirty-three (33) U.S. states, the District of Columbia and the U.S. territories of Guam and Puerto Rico allow their residents to use medical cannabis. Ten (10) of these states and the District of Columbia have legalized cannabis/marijuana for adult recreational use. Such state and territorial laws are in conflict with the federal CSA, which makes cannabis use and possession illegal at the federal level.

 

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Local, state, federal, and international hemp and cannabis/marijuana laws and regulations are broad in scope and subject to evolving interpretations, which could require us to incur substantial costs associated with compliance requirements. In addition, violations of these laws, or allegations of such violations, could disrupt our business and result in a material adverse effect on our operations. In addition, it is possible that cannabinoid-related regulations may be enacted in the future that will be directly applicable to our business. It is also possible that the federal government will begin strictly enforcing existing laws, which may limit the legal uses of the hemp plant and its derivatives and extracts, such as cannabinoids. However, our work in hemp would continue since hemp research, development, and commercialization activities are permitted under applicable federal and state laws, rules, and regulations. Until Congress amends the CSA or the executive branch deschedules or reschedules cannabis under it, there is a risk that federal authorities may enforce current federal law. Enforcement of the CSA by federal authorities could impair our revenue and profit, and it could even force us to cease manufacturing our products. The risk of strict federal enforcement of the CSA in light of congressional activity, judicial holdings, and stated federal policy, including enforcement priorities, remains uncertain.

 

Until such time as the federal government reclassifies marijuana from a Schedule 1 narcotic, we do not intend to pursue any involvement in the marijuana business. At this time, we intend to continue only in the federally legal hemp product business. When Congress approved the 2018 Farm Bill, it defined hemp as an agricultural product and differentiated it from marijuana. This means hemp is not a controlled substance, and may be more broadly cultivated. Hemp-derived products may now be transferred across state lines for commercial purposes. The new law also allows for the sale, transport, or possession of hemp-derived products, so long as those items are produced in a manner consistent with the law. There are several restrictions that apply to those who cultivate hemp and produce hemp-derived products. Key among these restrictions is that hemp cannot contain more than 0.3 percent THC.

 

While the 2018 Farm Bill legalized the cultivation of hemp and removed hemp-derived substances from Schedule 1 of the CSA, it does not legalize CBD generally. The FDA and DOJ continue to exercise control over CBD and there is still some lack of clarity as to exactly how CBD will be regulated going forward.

 

CBD has been deemed relatively safe and, from now on, should not be subject to international illicit drug scheduling according to a World Health Organization (“WHO”) comprehensive review published in July 2018. The WHO has formally submitted its conclusion to United Nations Secretary-General António Guterres, a prelude to this officially becoming the case.

 

On June 25, 2018, the U.S. Food and Drug Administration (“FDA”) approved CBD-based Epidiolex to treat severe forms of epilepsy. This marked the groundbreaking admission by the FDA that cannabis has medical value. On October 1, 2018, the DOJ placed “FDA-approved drugs that contain CBD derived from cannabis and no more than 0.1 percent THC” to Schedule 5 of the CSA. This action is narrowly tailored to reschedule Epidiolex off of Schedule 1 because the DOJ’s ability to remove all restrictions from cannabis extracts, including CDB, is restricted by the Single Convention on Narcotic Drugs, 1961.

 

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Competition

 

Nutritional Supplements

 

We compete with other manufacturers, distributors and marketers of vitamins, minerals, herbs, and other nutritional supplements both within and outside the U.S. The nutritional supplement industry is highly fragmented and competition for the sale of nutritional supplements comes from many sources. These products are sold primarily through retailers (drug store chains, supermarkets, and mass market discount retailers), health and natural food stores, and direct sales channels (network marketing and internet sales).

 

The nutritional supplement industry is highly competitive and we expect the level of competition to remain high over the near term. We do not believe it is possible to accurately estimate the total number or size of our competitors. The nutritional supplement industry has undergone consolidation in the recent past and we expect that trend may continue in the near term.

 

Hemp Oil Products

 

Currently, we face competition from a number of other companies providing hemp-based products. We expect that many other companies will recognize the market potential of hemp products and enter into the marketplace as competitors. As states continue to legalize marijuana and the public gains a better understanding of hemp products, we expect many new companies will enter into the hemp business in the near future.

 

There are many wholesalers and retailers of CBD oil. However, we believe we can continue to distinguish ourselves by targeting the medical practitioner market and providing high-quality products with consistently reliable dosage.

 

Employees

 

As of the date hereof, we do not have any employees other than our officers and directors. Our officers and directors will continue to work for us for the foreseeable future. We anticipate hiring appropriate personnel on an as-needed basis, and utilizing the services of independent contractors as needed.

 

ITEM 1A. – RISK FACTORS.

 

As a smaller reporting company we are not required to provide a statement of risk factors. Nonetheless, we are voluntarily providing risk factors herein.

 

Any investment in our common stock involves a high degree of risk. You should consider carefully the following information, together with the other information contained in this Annual Report, before you decide to buy our common stock. If one or more of the following events actually occurs, our business will suffer, and as a result our financial condition or results of operations will be adversely affected. In this case, the market price, if any, of our common stock could decline, and you could lose all or part of your investment in our common stock.

 

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We are providing services to an industry that is heavily regulated and, in some respects, illegal under federal law and the laws of most states. We face risks in developing our product candidates and services and eventually bringing them to market. We also face risks that our business model may become obsolete. The following risks are material risks that we face. If any of these risks occur, our business, our ability to achieve revenues, our operating results and our financial condition could be seriously harmed.

 

Risk Factors Related to the Business of the Company

 

We have a limited operating history, we are not profitable, and we do not expect to be profitable in the near future. There is no assurance our future operations will result in revenues sufficient to obtain or sustain profitability. If we cannot generate sufficient revenues to operate profitably, we may suspend or cease operations.

We were incorporated on December 19, 2014 and we have not fully developed our proposed business operations and have not yet experienced significant revenue. We have a limited operating history upon which an evaluation of our future success or failure can be made, and we recently shifted focus to a new line of business with the acquisition of Eqova and again with the acquisition of BergaMet. Our ability to continue as a going concern is dependent upon our ability to obtain adequate financing and to reach profitable levels of operations. In that regard we have no proven history of performance, earnings or success. 

 

Our net loss from inception to December 31, 2018, was $10,170,917, of which most is due to interest expense, change in value of derivative instruments and professional fees in connection with our formation and initial stock offering. Based on our cash position of $485 as of December 31, 2018, we will need to raise additional capital from the sale of our stock or debt. Such funding may not be available, or may be available only on terms which are not beneficial and/or acceptable to us. 

 

Our ability to maintain profitability and positive cash flow is dependent upon our ability to attract new customers who will buy our products and services, and our ability to generate sufficient revenue through the sale of those products and services.

 

Based upon current plans, we expect to incur operating losses in future periods because we will be incurring expenses that may exceed revenues. We cannot guarantee that we will be successful in generating sufficient revenues in the future. In the event we cannot generate sufficient revenues and/or secure additional financing, we may be forced to cease operations.

 

Negative press from being in the hemp/cannabis space could have a material adverse effect on our business, financial condition, and results of operations.

 

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The hemp plant and the cannabis/marijuana plant are both part of the same cannabis sativagenus/species of plant, except that hemp, by definition, has less than 0.3% tetrahydrocannabinol (“THC”) content and is legal under federal and state laws, but the same plant with a higher THC content is cannabis/marijuana, which is legal under certain state laws, but which is not legal under federal law. The similarities between these plants can cause confusion, and our activities with legal hemp may be incorrectly perceived as us being involved in federally illegal cannabis/marijuana. Also, despite growing support for the cannabis/marijuana industry and legalization of cannabis/marijuana in certain U.S. states, many individuals and businesses remain opposed to the cannabis/marijuana industry. Any negative press resulting from any incorrect perception that we have entered into the cannabis/marijuana space could result in a loss of current or future business. It could also adversely affect the public’s perception of us and lead to reluctance by new parties to do business with us or to own our common stock. We cannot assure you that additional business partners, including but not limited to financial institutions and customers, will not attempt to end or curtail their relationships with us. Any such negative press or cessation of business could have a material adverse effect on our business, financial condition, and results of operations.

 

Any business-related cannabinoid production is dependent on laws pertaining to the hemp/cannabis industry.

 

Currently, there are (i) 46 states in the United States and the District of Columbia that have legalized hemp, (ii) 33 states and the District of Columbia that allow their citizens to use medical cannabis/marijuana and, (iii) 10 states and the District of Columbia that have legalized cannabis/marijuana for adult recreational use. Many other states are considering similar legislation. Conversely, under the federal Controlled Substance Act (the “CSA”), the policies and regulations of the federal government and its agencies are that cannabis/marijuana has no medical benefit and a range of activities are prohibited, including cultivation, possession, personal use, and interstate distribution of cannabis/marijuana. In the event the U.S. Department of Justice (the “DOJ”) begins strict enforcement of the CSA in states that have laws legalizing medical and/or adult recreational cannabis/marijuana, there may be a direct and adverse impact to any future business or prospects that we may have in the cannabis/marijuana business. Even in those jurisdictions in which the manufacture and use of medical cannabis/marijuana has been legalized at the state level, the possession, use, and cultivation of cannabis/marijuana all remain violations of federal law that are punishable by imprisonment and substantial fines. Moreover, individuals and entities may violate federal law if they intentionally aid and abet another in violating these federal controlled substance laws, or conspire with another to violate them.

 

For example, the California Bureau of Cannabis Control sent 900 warning letters to marijuana shops suspected of operating without a state license. The Bureau also issued a cease-and-desist letter to the operator of an online directory of marijuana dispensaries, products and delivery services. The letter threatened fines and criminal penalties if the company did not remove the listings for unlicensed marijuana businesses. Likewise, if we unknowingly do business with unlicensed entities or list them on our website, we may be subject to similar regulatory action that would halt our operations and affect our financial performance.

 

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Local, state, federal, and international hemp and cannabis/marijuana laws and regulations are broad in scope and subject to evolving interpretations, which could require us to incur substantial costs associated with compliance requirements. In addition, violations of these laws, or allegations of such violations, could disrupt our business and result in a material adverse effect on our operations. In addition, it is possible that cannabinoid-related regulations may be enacted in the future that will be directly applicable to our business. It is also possible that the federal government will begin strictly enforcing existing laws, which may limit the legal uses of the hemp plant and its derivatives and extracts, such as cannabinoids. However, our work in hemp would continue since hemp research, development, and commercialization activities are permitted under applicable federal and state laws, rules, and regulations. We cannot predict the nature of any future laws, regulations, interpretations, or applications, nor can we determine what effect additional governmental regulations or administrative policies and procedures, when and if promulgated, could have on our activities in the legal hemp industry.

 

 Our competitors may develop products that are less expensive, safer or otherwise more appealing, which may diminish or eliminate the commercial success of any potential product that we may commercialize.

If our competitors market products that are less expensive, safer or otherwise more appealing than our potential products, or that reach the market before our potential products, we may not achieve commercial success. The market may choose to continue utilizing existing products for any number of reasons, including familiarity with or pricing of these existing products. The failure of any of our products to compete with products marketed by our competitors would impair our ability to generate revenue, which would have a material adverse effect on our future business, financial condition, results of operations, and cash flows. Our competitors may:

 

· develop and market products that are less expensive, safer, or otherwise more appealing than our products;

 

· commercialize competing products before we or our partners can launch our products; and

 

· initiate or withstand substantial price competition more successfully than we can.

 

In addition, several websites compete with our CBD.co website. Many of these other websites have been around longer than CBD.co and have much higher traffic than CBD.co. Developing a website is relatively inexpensive compared to other business ventures and we may face substantial competition from established websites and other nascent online CBD market platforms. If we are unable to develop CBD.co to rank higher in search results, to be more user friendly and to provide better information and products than our competitors, we may not be able to attract sufficient traffic to achieve significant revenue through product sales or advertising on CBD.co.

 

Our CBD products have high costs and could hurt our profitability.

 

The production of CBD products is expensive. The uncertain regulatory environment and lack of established producers and manufacturers of CBD and CBD products can make it difficult to find CBD at reasonable prices. This industry differs from our software services that we have provided in the past, and the margins are not comparable. If we are not able to manage the costs and find affordable sources of CBD, our results of operations will be adversely affected.

 

Because our officers and directors have other outside business activities and will have limited time to spend on our business, our operations may be sporadic, which may result in periodic interruptions or suspensions of operations.

 

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Because our officers and directors have other outside business activities and will only be devoting between 20-75% of their time, or 8-30 hours per week each, to our operations, our operations may be sporadic and occur at times which are convenient for them. These outside interests may deter from our development. In the event they are unable to fulfill any aspect of their duties, we may experience a shortfall or complete lack of sales resulting in little or no profits and eventual closure of the business.

 

Our auditors have substantial doubt about our ability to continue as a going concern.

 

Our financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. Our auditor’s report reflects that our ability to continue as a going concern is dependent upon our ability to raise additional capital from the sale of common stock and, ultimately, the achievement of significant operating revenues. If we are unable to continue as a going concern, our stockholders will lose their investment. We will be required to seek additional capital to fund future growth and expansion. No assurance can be given that such financing will be available or, if available, that it will be on commercially favorable terms. Moreover, favorable financing may be dilutive to our stockholders.

 

Our controlling stockholders have significant influence over the Company.

 

Our officers and directors own stock representing approximately 34% of shareholder votes. As a result they will possess a significant influence over our affairs and may have the effect of delaying or preventing a future change in control, impeding a merger, consolidation, takeover or other business combination or discouraging a potential acquirer from making a tender offer or otherwise attempting to obtain control of the company, which in turn could materially and adversely affect the market price of our common stock. Our minority shareholders will be unable to affect the outcome of stockholder voting as long as our officers and directors retain a controlling interest.

 

Our current officers and directors may set salaries and perquisites in the future which we are unable to support with our current assets.

 

Although our officers and directors have written employment or services agreements, our officers and directors may decide to award themselves higher salaries and other benefits. We do not have significant revenues, and there is no guarantee that we will have significant revenue in the near future. If we do not increase our revenues, we will be unable to support any higher salaries or other benefits for management, which may cause us to cease operations.

 

We may engage in strategic transactions that fail to enhance stockholder value.

 

From time to time, we may consider possible strategic transactions, including the potential acquisitions or licensing of products or technologies or acquisition of companies, and other alternatives with the goal of maximizing stockholder value. We may never complete a strategic transaction, and in the event that we do complete a strategic transaction, such as the acquisition of ShareRails, implementation of such transactions may impair stockholder value or otherwise adversely affect our business. Any such transaction may require us to incur non-recurring or other charges and may pose significant integration challenges and/or management and business disruptions, any of which could harm our results of operation and business prospects.

 

We may not be able to gain or sustain market acceptance for our products and services.

 

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Failure to establish a brand and presence in the marketplace on a timely basis could adversely affect our financial condition and results of operations. Moreover, there can be no assurance that we will successfully complete our development and introduction of new products and services or that any such products and services will achieve acceptance in the marketplace. We may also fail to develop and deploy new products and services on a timely basis.

 

The market for products and services in the hemp oil business is highly competitive, and we may not be able to compete successfully.

 

The market for our hemp oil products is competitive and evolving. There is no material aspect of our business that is protected by patents, copyrights, trademarks, or trade names, and we face strong competition from larger companies that may offer similar products and services to ours. Many of our current and potential competitors have longer operating histories, significantly greater financial, marketing and other resources and larger client bases than us, and there can be no assurance that we will be able to successfully compete against these or other competitors.

 

Some of our competitors are vertically integrated with their supply chain and can grow, process and market their own products. This may give them more control over pricing and their final products. Some of them also have been mentioned in the national news, have doctor endorsements and a brand presence that we cannot match at this time.

 

Given the rapid changes affecting the global, national, and regional economies generally and the medical marijuana and recreational marijuana industries, in particular, we may not be able to create and maintain a competitive advantage in the marketplace. Our success will depend on our ability to keep pace with any changes in our markets, particularly, legal and regulatory changes. Our success will also depend on our ability to respond to, among other things, changes in the economy, market conditions, and competitive pressures. Any failure by us to anticipate or respond adequately to such changes could have a material adverse effect on our financial condition and results of operations.

 

We have incurred costs in completing the transactions with Eqova Life Sciences and BergaMet, and failure to successfully integrate those businesses into each other and with our own will have an adverse impact on our financial position and prevent us from obtaining the benefits that the transaction would have given us.

 

We have recently completed our acquisitions of Eqova and BergaMet. Our executives have spent considerable time and incurred legal and accounting costs in the acquisitions. If we are unable to fully integrate those businesses into our business or maintain their existing customer base, we will not be able to acquire the technologies, partnerships and potential customers that the transaction was intended given us. The increase in acquisition and integration costs without the corresponding benefit will have an adverse impact on our financial statements and foreclose potential revenue-producing opportunities in the near future.

 

Our success is highly dependent on our ability to penetrate the market for hemp oil products as well as the growth and expansion of that market.

 

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The market for hemp oil products and related services like ours is relatively new, rapidly evolving and unproven. It is difficult to predict customer adoption and renewal rates, customer demand for our products, the size, growth rate and expansion of these markets, the entry of competitive products or the success of existing competitive products. Our ability to penetrate the existing market and any expansion of the emerging market depends on a number of factors, including the cost, performance and perceived value associated with our product, as well as customers’ willingness to adopt new products. Furthermore, many potential customers have made significant investments in other products and may be unwilling to invest in our products. If we are unable to compete and sell our products, our business, results of operations and financial condition would be adversely affected.

 

Our success depends on our ability to sell our products and establish relationships with medical practitioners.

 

We need to establish sales partners with medical practitioners and resellers. To the extent we do identify such partners, we will need to negotiate the terms of a commercial agreement with them under which the partner would distribute our products. We cannot be certain that we will be able to negotiate commercially-attractive terms with any partner, if at all, or convince them of the benefits our products provide. There can be no assurance that our sales partners will comply with the terms of our commercial agreements with them or will continue to work with us when our commercial agreements with them expire or are up for renewal. If we are unable to maintain our relationships with these partners, or these partners fail to live up to their contractual obligations, our business, results of operations and financial condition could be harmed.

 

Economic uncertainties or downturns could materially adversely affect our business.

 

Current or future economic uncertainties or downturns could adversely affect our business and results of operations. Negative conditions in the general economy including conditions resulting from changes in gross domestic product growth, the continued sovereign debt crisis, financial and credit market fluctuations, political deadlock, natural catastrophes, warfare and terrorist attacks on the United States, Europe, the Asia Pacific region or elsewhere, could cause a decrease in business investments.

 

General worldwide economic conditions have experienced a significant downturn and continue to remain unstable. These conditions make it extremely difficult for us to forecast and plan future business activities accurately, and they could cause our potential customers to reevaluate their decisions to purchase our product, which could delay and lengthen our sales cycles or result in cancellations of planned purchases. Furthermore, during challenging economic times our potential customers may tighten their advertising budgets which may impact their spend on local inventory based digital marketing products. To the extent purchases of our products are perceived by potential customers to be discretionary, sales of our products may never occur. Also, customers may choose to seek other methods to achieve the benefits our products provide.

 

We cannot predict the timing, strength or duration of any economic slowdown, instability or recovery, generally or within any particular industry. If the economic conditions of the general economy or industries in which we operate do not improve, or worsen from present levels, our business, results of operations, financial condition and cash flows could be adversely affected.

 

We are dependent on the services of key personnel and failure to attract qualified management could limit our growth and negatively impact our results of operations.

 

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We are highly dependent on the principal members of our management team, including our President, Kevin “Duke” Pitts, and our Chief Financial Officer, William Bossung. At this time, we do not know of the availability of such experienced management personnel or how much it may cost to attract and retain such personnel. The loss of the services of any member of senior management or the inability to hire experienced technical or programing personnel could have a material adverse effect on our financial condition and results of operations.

 

Other companies may claim that we have infringed upon their intellectual property or proprietary rights.

 

We do not believe that our products and services violate third-party intellectual property rights; however, we have not had an independent party conduct a study of possible patent infringements. Nevertheless, we cannot guarantee that claims relating to violation of such rights will not be asserted by third parties. If any of our products or services are found to violate third-party intellectual property rights, we may be required to expend significant funds to re-engineer or cause to be re-engineered one or more of those products or services to avoid infringement, or seek to obtain licenses from third parties to continue offering our products and services without substantial re-engineering, and such efforts may not be successful.

 

In addition, future patents may be issued to third parties upon which our products and services may infringe. We may incur substantial costs in defending against claims under any such patents. Furthermore, parties making such claims may be able to obtain injunctive or other equitable relief, which effectively could block our ability to further develop or commercialize some or all of our products or services in the United States or abroad, and could result in the award of substantial damages against us. In the event of a claim of infringement, we may be required to obtain one or more licenses from third parties. There can be no assurance that we will be able to obtain such licenses at a reasonable cost, if at all. Defense of any lawsuit or failure to obtain any such license could be costly and have a material adverse effect on our business.

 

Our success depends on our ability to protect our proprietary technology.

 

Our success depends, to a significant degree, upon the protection of our proprietary technology, and that of any licensors. Legal fees and other expenses necessary to obtain and maintain appropriate patent protection could be material. Currently, no material aspect of our business is protected by registered patents, copyrights or trademarks. Insufficient funding may inhibit our ability to obtain and maintain such protection. Additionally, if we must resort to legal proceedings to enforce our intellectual property rights, the proceedings could be burdensome and expensive, and could involve a high degree of risk to our proprietary rights if we are unsuccessful in, or cannot afford to pursue, such proceedings.

 

We may also rely on trademarks, trade secrets and contract law to protect certain of our proprietary technology. There can be no assurance that any trademarks will be approved, that such contract will not be breached, or that if breached, we will have adequate remedies. Furthermore, there can be no assurance that any of our trade secrets will not become known or independently discovered by third parties.

 

Our future growth may be inhibited by the failure to implement new technologies.

 

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Our future growth is partially tied to our ability to improve our knowledge and implementation of mobile, AI, machine learning, and other advanced technologies in a retail environment, which is a rapidly changing market. The inability to successfully implement commercially technologies in response to market conditions in a manner that is responsive to our customers’ requirements could have a material adverse effect on our business.

 

Our payment processing merchant is located abroad and this may cause problems in receiving payments for our products.

 

We currently use a payment processing merchant who is located outside of the United States. This merchant often holds our money for weeks before sending it to us. If we are delayed in receiving our funds or the merchant refuses to forward our sales proceeds, our financial condition could be adversely affected. Because the merchant is located abroad, we may not have any way to enforce our arrangement and force the merchant to provide give us our money.

 

Due to recent events regarding COVID-19

 

The COVID-19 outbreak in early 2020 has adversely affected, and may continue to adversely affect economic activity globally, nationally and locally. These economic and market conditions and other effects of the COVID-19 outbreak may adversely affect the Company. At this point, the extent to which COVID-19 may impact the Company's business is uncertain.

 

Risks Related To Our Common Stock

 

The market price of our common stock may be volatile and may be affected by market conditions beyond our control.

 

The market price of our common stock is subject to significant fluctuations in response to, among other factors:

 

  · variations in our operating results and market conditions specific to technology companies;

 

  · changes in financial estimates or recommendations by securities analysts;

 

  · announcements of innovations or new products or services by us or our competitors;

 

  · the emergence of new competitors;

 

  · operating and market price performance of other companies that investors deem comparable;

 

  · changes in our board or management;

 

  · sales or purchases of our common stock by insiders;

 

  · commencement of, or involvement in, litigation;

 

  · changes in governmental regulations; and

 

  · general economic conditions and slow or negative growth of related markets.

 

In addition, if the market for stocks in our industry or the stock market in general, experiences a loss of investor confidence, the market price of our common stock could decline for reasons unrelated to our business, financial condition or results of operations. If any of the foregoing occurs, it could cause the price of our common stock to fall and may expose us to lawsuits that, even if unsuccessful, could be costly to defend and a distraction to the board of directors and management.

 

If we are unable to pay the costs associated with being a public, reporting company, we may be forced to discontinue operations.

 

Our common stock is quoted on the OTC Pink tier of the marketplace maintained by OTC Markets Group, Inc. We expect to have significant costs associated with being a public, reporting company, which may raise substantial doubt about our ability to sell our equity securities and/or continue as a going concern. Our ability to continue as a going concern will depend on positive cash flow, if any, from future operations and on our ability to raise additional funds through equity or debt financing. If we are unable to achieve the necessary product sales or raise or obtain needed funding to cover the costs of operating as a public, reporting company, we may be forced to discontinue operations.

 

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Our common stock is listed for quotation on the OTC Pink tier of the marketplace maintained by OTC Markets Group, Inc., which may make it more difficult for investors to resell their shares due to suitability requirements.

 

Our common stock is currently quoted on the OTC Pink tier of the marketplace maintained by OTC Markets Group, Inc. Broker-dealers often decline to trade in over-the-counter stocks given the market for such securities are often limited, the stocks are more volatile, and the risk to investors is greater. These factors may reduce the potential market for our common stock by reducing the number of potential investors. This may make it more difficult for investors in our common stock to sell shares to third parties or to otherwise dispose of their shares. This could cause our stock price to decline.

 

We recently moved down to the OTC Pink tier from the OTCQB tier. We may be unable to restore eligibility for quotation of our common stock on the OTCQB tier and this will have a negative impact on our market price. The OTC Pink marketplace also does not provide as much liquidity as the OTCQB. Many broker-dealers will not trade or recommend OTC Pink stocks for their clients. Because the OTCQB generally increases transparency by maintaining higher reporting standards and requirements and imposing management certification and compliance requirements, broker-dealers are more likely to trade stocks on the OTCQB marketplace and national exchanges.

 

Our principal stockholders have the ability to exert significant control in matters requiring stockholder approval and could delay, deter, or prevent a change in control of our company.

 

Jay Decker has beneficial ownership of our common stock with over 70% of the shareholder votes. As a result, he has the ability to influence matters affecting our shareholders, including the election of our directors, the acquisition or disposition of our assets, and the future issuance of our shares. Because he controls such shares, investors may find it difficult to replace our management if they disagree with the way our business is being operated. Because the influence by these shareholders could result in management making decisions that are in the best interest of those shareholders and not in the best interest of the investors, you may lose some or all of the value of your investment in our common stock. Investors who purchase our common stock should be willing to entrust all aspects of operational control to our current management team.

 

We do not intend to pay dividends in the foreseeable future.

 

We do not intend to pay any dividends in the foreseeable future. We do not plan on making any cash distributions in the manner of a dividend or otherwise. Our Board presently intends to follow a policy of retaining earnings, if any.

 

Future sales and issuances of our capital stock or rights to purchase capital stock could result in additional dilution of the percentage ownership of our stockholders and could cause our stock price to decline.

 

Future sales and issuances of our capital stock or rights to purchase our capital stock could result in substantial dilution to our existing stockholders. We may sell common stock, convertible securities and other equity securities in one or more transactions at prices and in a manner as we may determine from time to time. If we sell any such securities in subsequent transactions, investors may be materially diluted. New investors in such subsequent transactions could gain rights, preferences and privileges senior to those of holders of our common stock.

 

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In addition, changing laws, regulations and standards relating to corporate governance and public disclosure are creating uncertainty for public companies, increasing legal and financial compliance costs and making some activities more time consuming. These laws, regulations and standards are 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. We intend to invest resources to comply with evolving laws, regulations and standards, and this investment may result in increased general and administrative expenses and a diversion of management’s time and attention from revenue-generating activities to compliance activities. If our efforts to comply with new laws, regulations and standards differ from the activities intended by regulatory or governing bodies due to ambiguities related to their application and practice, regulatory authorities may initiate legal proceedings against us and our business may be adversely affected.

 

We also expect that being a public company and these new rules and regulations will make it more expensive for us to obtain director and officer liability insurance, and we may be required to accept reduced coverage or incur substantially higher costs to obtain coverage. These factors could also make it more difficult for us to attract and retain qualified members of our board of directors, particularly to serve on our audit committee and compensation committee, and qualified executive officers.

 

As a result of disclosure of information in this annual report and in filings required of a public company, our business and financial condition will become more visible, which we believe may result in threatened or actual litigation, including by competitors and other third parties. If such claims are successful, our business and results of operations could be adversely affected, and even if the claims do not result in litigation or are resolved in our favor, these claims, and the time and resources necessary to resolve them, could divert the resources of our management and adversely affect our business and results of operations.

 

The market for penny stocks has suffered in recent years from patterns of fraud and abuse

 

Stockholders should be aware that, according to SEC Release No. 34-29093, the market for penny stocks has suffered in recent years from patterns of fraud and abuse. Such patterns include:

 

  · control of the market for the security by one or a few broker-dealers that are often related to the promoter or issuer;

 

  · manipulation of prices through prearranged matching of purchases and sales and false and misleading press releases;

 

  · boiler room practices involving high-pressure sales tactics and unrealistic price projections by inexperienced salespersons;

 

  · excessive and undisclosed bid-ask differential and markups by selling broker-dealers; and,

 

  · the wholesale dumping of the same securities by promoters and broker-dealers after prices have been manipulated to a desired level, along with the resulting inevitable collapse of those prices and with consequential investor losses.

Our management is aware of the abuses that have occurred historically in the penny stock market. Although we do not expect to be in a position to dictate the behavior of the market or of broker-dealers who participate in the market, management will strive within the confines of practical limitations to prevent the described patterns from being established with respect to our securities. The occurrence of these patterns or practices could increase the volatility of our share price.

 

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Due to the lack of a developed trading market for our securities, you may have difficulty selling your shares.

 

Our stock currently trades on the OTC Pink tier maintained by OTC Markets Group, Inc. There currently is a very limited public trading market for our common stock. The lack of a developed public trading market for our shares may have a negative effect on your ability to sell your shares in the future and it also may have a negative effect on the price, if any, for which you may be able to sell your shares. As a result an investment in the shares may be illiquid in nature and investors could lose some or all of their investment.

 

Our status as an “emerging growth company” under the JOBS Act OF 2012 may make it more difficult to raise capital when we need to do it.

 

Because of the exemptions from various reporting requirements provided to us as an “emerging growth company” and because we will have an extended transition period for complying with new or revised financial accounting standards, we may be less attractive to investors and it may be difficult for us to raise additional capital as and when we need it. Investors may be unable to compare our business with other companies in our industry if they believe that our financial accounting is not as transparent as other companies in our industry. If we are unable to raise additional capital as and when we need it, our financial condition and results of operations may be materially and adversely affected.

 

Our internal controls may be inadequate, which could cause our financial reporting to be unreliable and lead to misinformation being disseminated to the public.

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting. As defined in Exchange Act Rule 13a-15(f), internal control over financial reporting is a process designed by, or under the supervision of, the principal executive and principal financial officer and effected by the board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the company’s assets that could have a material effect on the financial statements. Our internal controls may be inadequate or ineffective, which could cause our financial reporting to be unreliable and lead to misinformation being disseminated to the public.

 

We will incur ongoing costs and expenses for SEC reporting and compliance, without increased revenue we may not be able to remain in compliance, making it difficult for investors to sell their shares, if at all.

 

Going forward, we will have ongoing SEC compliance and reporting obligations. Such ongoing obligations will require us to expend additional amounts on compliance, legal and auditing costs. In order for us to remain in compliance, we will require increased revenues to cover the cost of these filings, which could comprise a substantial portion of our available cash resources. If we are unable to generate sufficient revenues to remain in compliance, it may be difficult for you to resell any shares you may purchase, if at all.

 

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We have the right to issue additional common stock without consent of stockholders. This would have the effect of diluting investors’ ownership and could decrease the value of their investment.

 

We are authorized to issue 2,500,000,000 shares of common stock. Of these authorized shares, 121,610,085 shares are issued and outstanding as of December 18, 2019. Therefore, we are authorized to issue up to an additional 2.3 billion unissued shares of our common stock that may be issued by us for any purpose without the further consent or vote of our stockholders that would dilute stockholders’ percentage ownership of our company.

 

Our officers and directors can sell some of their stock, which may have a negative effect on our stock price and ability to raise additional capital, and may make it difficult for investors to sell their stock at any price.

 

Our officers and directors, as a group, are the beneficial owners of 4,835,966 shares of our common stock, representing approximately 4% of our total issued shares. Each individual officer and director may be able to sell up to 1% of our outstanding stock (currently approximately 1.2 million shares) every 90 days in the open market pursuant to Rule 144, which may have a negative effect on our stock price and may prevent us from obtaining additional capital. In addition, if our officers and directors are selling their stock into the open market, it may make it difficult or impossible for investors to sell their stock at any price.

 

Our common stock is governed under The Securities Enforcement and Penny Stock Reform Act of 1990.

 

The Securities Enforcement and Penny Stock Reform Act of 1990 requires additional disclosure relating to the market for penny stocks in connection with trades in any stock defined as a penny stock. The Commission has adopted regulations that generally define a penny stock to be any equity security that has a market price of less than $5.00 per share, subject to certain exceptions. Such exceptions include any equity security listed on NASDAQ and any equity security issued by an issuer that has (i) net tangible assets of at least $2,000,000, if such issuer has been in continuous operation for three years, (ii) net tangible assets of at least $5,000,000, if such issuer has been in continuous operation for less than three years, or (iii) average annual revenue of at least $6,000,000, if such issuer has been in continuous operation for less than three years. Unless an exception is available, the regulations require the delivery, prior to any transaction involving a penny stock, of a disclosure schedule explaining the penny stock market and the risks associated therewith.

 

The forward looking statements contained in this annual report may prove incorrect.

 

This Annual Report contains certain forward-looking statements, including among others: (i) anticipated trends in our financial condition and results of operations; (ii) our business strategy for expanding distribution; and (iii) our ability to distinguish ourselves from our current and future competitors. These forward-looking statements are based largely on our current expectations and are subject to a number of risks and uncertainties. Actual results could differ materially from these forward-looking statements. In addition to the other risks described elsewhere in this “Risk Factors” discussion, important factors to consider in evaluating such forward-looking statements include: (i) changes to external competitive market factors or in our internal budgeting process which might impact trends in our results of operations; (ii) anticipated working capital or other cash requirements; (iii) changes in our business strategy or an inability to execute our strategy due to unanticipated changes in the biotechnology industry; and (iv) various competitive factors that may prevent us from competing successfully in the marketplace. In light of these risks and uncertainties, many of which are described in greater detail elsewhere in this “Risk Factors” discussion, there can be no assurance that the events predicted in forward-looking statements contained in this annual report will, in fact, transpire.

 

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SPECIAL NOTE ABOUT FORWARD-LOOKING STATEMENTS

 

We have made forward-looking statements in this Annual Report, including the sections entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business,” that are based on our management’s beliefs and assumptions and on information currently available to our management. Forward-looking statements include the information concerning our possible or assumed future results of operations, business strategies, financing plans, competitive position, industry environment, potential growth opportunities, the effects of future regulation, and the effects of competition. Forward-looking statements include all statements that are not historical facts and can be identified by the use of forward-looking terminology such as the words “believe,” “expect,” “anticipate,” “intend,” “plan,” “estimate” or similar expressions. These statements are only predictions and involve known and unknown risks and uncertainties, including the risks outlined under “Risk Factors” and elsewhere in this annual report.

 

Although we believe that the expectations reflected in our forward-looking statements are reasonable, we cannot guarantee future results, events, levels of activity, performance or achievement. We are not under any duty to update any of the forward-looking statements after the date of this annual report to conform these statements to actual results, unless required by law.

 

ITEM 1B – UNRESOLVED STAFF COMMENTS

 

This Item is not applicable to us as we are not an accelerated filer, a large accelerated filer, or a well-seasoned issuer; however, we are voluntarily disclosing that we have not received any written comments from the Commission staff more than 180 days before the end of our fiscal year to which this Annual Report relates regarding our periodic or current reports under the Securities Exchange Act of 1934 and that remain unresolved.

 

ITEM 2 – PROPERTIES

 

We do not currently maintain office space.

 

ITEM 3 – LEGAL PROCEEDINGS

 

We are not a party to or otherwise involved in any legal proceedings.

 

In the ordinary course of business, we are from time to time involved in various pending or threatened legal actions. The litigation process is inherently uncertain and it is possible that the resolution of such matters might have a material adverse effect upon our financial condition and/or results of operations. However, in the opinion of our management, other than as set forth herein, matters currently pending or threatened against us are not expected to have a material adverse effect on our financial position or results of operations.

 

ITEM 4 – MINE SAFETY DISCLOSURES

 

Not applicable.

 

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PART II

 

ITEM 5 - MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

 

Our common stock is quoted on the OTC Pink tier of the marketplace maintained by OTC Markets Group, Inc. under the symbol “GRCK.” Our common stock trades on a limited or sporadic basis and should not be deemed to constitute an established public trading market. There is no assurance that there will be liquidity in the common stock.

 

The following table sets forth the high and low closing price for each quarter within the fiscal years ended December 31, 2018 and 2017, as provided by Nasdaq. The information reflects prices between dealers, and does not include retail markup, markdown, or commission, and may not represent actual transactions. 

 

Fiscal Year

Ended

December 31,

       
      Transaction Prices
  Period   High   Low
2018   Fourth Quarter   $0.035   $0.0051
    Third Quarter   $0.275   $0.022
    Second Quarter   $0.48   $0.10
    First Quarter   $2.13   $0.15
             
2017   Fourth Quarter   $5.60   $0.70
    Third Quarter   $14.73   $2.50
    Second Quarter   $37.45   $10.25
    First Quarter   $32.50   $18.45

 

The Securities Enforcement and Penny Stock Reform Act of 1990 requires additional disclosure relating to the market for penny stocks in connection with trades in any stock defined as a penny stock. The Commission has adopted regulations that generally define a penny stock to be any equity security that has a market price of less than $5.00 per share, subject to a few exceptions which we do not meet. Unless an exception is available, the regulations require the delivery, prior to any transaction involving a penny stock, of a disclosure schedule explaining the penny stock market and the risks associated therewith.

 

Holders

 

As of December 18, 2019, there were 121,610,085 shares of our common stock issued and outstanding and held by 58 holders of record, not including shares held in “street name” in brokerage accounts which is unknown.

 

Dividend Policy

 

We have not paid any dividends on our common stock and do not expect to do so in the foreseeable future. We intend to apply our earnings, if any, in expanding our operations and related activities. The payment of cash dividends in the future will be at the discretion of the Board of Directors and will depend upon such factors as earnings levels, capital requirements, our financial condition and other factors deemed relevant by the Board of Directors.

 

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Securities Authorized for Issuance under Equity Compensation Plans

 

We do not currently have a stock option or grant plan.

 

Recent Issuance of Unregistered Securities

 

The following issuances of unregistered securities occurred after September 30, 2018:

 

Acquisition of BergaMet and the Share Exchange Agreement

 

On February 4, 2019, we entered into a Share Exchange Agreement by and among us, BergaMet NA, LLC, a Delaware limited liability company, and the members of BergaMet, whereby we issued and exchanged 97,409,678 shares of our common stock for all of the outstanding equity securities of BergaMet. Through this exchange of securities pursuant to the Share Exchange Agreement, BergaMet is now our wholly-owned subsidiary. The shares of common stock issued in the exchange are equal to 80.1% of our outstanding common stock immediately following the exchange.

 

Share Conversion Agreements

 

All of the holders of our Series A Convertible Preferred Stock entered into a Preferred Stock Conversion Agreement. Pursuant to the Conversion Agreements, the Preferred Holders converted their shares of preferred stock into common stock, effective as of the exchange as described above. As a result, no shares of our Series A Convertible Preferred Stock are outstanding. An aggregate of 10,860,012 shares were issued to the Preferred Holders. The Preferred Holders agreed to convert each share of Series A Convertible Preferred Stock into eighteen (18) shares of our common stock.

 

The shares of common stock issued pursuant to the Share Exchange Agreement, the Share Conversion Agreements and in the transactions listed above were offered and sold in reliance on an exemption from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended. The investors have acquired the securities for investment purposes only and not with a view to, or for sale in connection with, any distribution thereof. The securities were not issued through any general solicitation or advertisement.

 

ITEM 6 – SELECTED FINANCIAL DATA

 

As a smaller reporting company we are not required to provide the information required by this Item.

 

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ITEM 7 – MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATION

 

Our Management’s Discussion and Analysis contains not only statements that are historical facts, but also statements that are forward-looking (within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934). Forward-looking statements are, by their very nature, uncertain and risky. These risks and uncertainties include international, national and local general economic and market conditions; demographic changes; our ability to sustain, manage, or forecast growth; our ability to successfully make and integrate acquisitions; existing government regulations and changes in, or the failure to comply with, government regulations; adverse publicity; competition; fluctuations and difficulty in forecasting operating results; changes in business strategy or development plans; business disruptions; the ability to attract and retain qualified personnel; the ability to protect technology; and other risks that might be detailed from time to time in our filings with the Securities and Exchange Commission.

 

Although the forward-looking statements in this Annual Report reflect the good faith judgment of our management, such statements can only be based on facts and factors currently known by them. Consequently, and because forward-looking statements are inherently subject to risks and uncertainties, the actual results and outcomes may differ materially from the results and outcomes discussed in the forward-looking statements. You are urged to carefully review and consider the various disclosures made by us in this report and in our other reports as we attempt to advise interested parties of the risks and factors that may affect our business, financial condition, and results of operations and prospects.

 

Summary Overview

 

We were formed in December 2014 and, therefore, have a relatively short operating history. We had revenues of $67,131 in the year ended December 31, 2018 from a variety of customers. We had revenues of $7,605 in the year ended December 31, 2017, 100% of which was from a single customer. In March 2018, we ended our relationship with this customer. In March 2018, we discontinued this business to shift our focus solely to sales of our hemp oil and nutraceutical products.

 

Eqova Life Sciences

 

On October 17, 2017, we acquired Eqova Life Sciences, a Nevada corporation, through an exchange of shares of our Series A Convertible Preferred Stock for all of the outstanding equity interest of Eqova. As part of the Exchange, we have brought on Eqova’s President and Director, Patrick Stiles, to serve as our President and Chief Executive Officer and as a Director on our Board of Directors. Mr. Stiles resigned in September 2018.

 

Eqova is a medically-focused CBD company that develops clinical grade full spectrum hemp oil products, sold exclusively via partnerships with licensed medical practitioners to use with their patients. To date, we know of no other hemp oil company exclusively focuses on the practitioner market, leaving it largely underserved. According to The Hemp Business Journal, CBD products marketplace are projected to grow by 700% by 2020 with annual sales reaching $2.1 billion. With a head start in a growing marketplace, we believe that Eqova provides us with a prime growth opportunity with an established business. Revenues of our hemp oil products from the acquisition of Eqova through December 31, 2017 were $7,605 and for the year ended December 31, 2018 were $64,384.

 

BergaMet NA, LLC

 

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On February 4, 2019, we issued and exchanged shares of our common stock for all of the outstanding equity securities of BergaMet.

 

Through the exchange, we were able to secure funds in BergaMet to pay off some debt and provide capital for operations. We paid an aggregate of $353,908 and are obligated to pay another $164,578 approximately one (1) year later to retire convertible debt. Currently, we are default on these obligations. Prior to the exchange, we also entered into agreements with other holders of convertible debt to convert their notes for an aggregate of 806,015 shares of common stock. We also entered into conversion agreements with the holders of our Series A Convertible Preferred Stock whereby all of the outstanding preferred stock was converted for an aggregate of 15,592,986 shares of common stock. The conversion and repayment of the preferred stock and convertible debt have greatly improved our capitalization structure.

 

The acquisition of BergaMet has been extremely beneficial to us. In addition to paying off our convertible debt, we are now able to better position ourselves in the market. BergaMet is an established company that was already generating revenues when we acquired it. BergaMet also has unique products that will fit nicely with our existing business. We now plan on expanding our product line to other nutraceuticals.

 

Going Concern

 

The accompanying financial statements have been prepared assuming that the Company will continue as a going concern, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. The Company has generated minimal revenues from operations. Since its inception, the Company has been engaged substantially in financing activities and developing its business plan and incurring start up costs and expenses. As a result, the Company incurred accumulated net losses from Inception (December 19, 2014) through the period ended December 31, 2018 of $11,012,899. As of December 31, 2018, the Company had negative working capital of $3,644,237. In addition, the Company’s development activities since inception have been financially sustained through equity financing. These factors, among others, raise substantial doubt of the Company to continue as a going concern. Management plans to seek additional funding through debt and/or equity financing as needed to grow and fund operations and has recently acquired a new company as a wholly owned subsidiary.

 

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Results of Operations for the Years Ended December 31, 2018 and 2017

 

Introduction

 

We had revenues of $67,131 for the year ended December 31, 2018. Our operating expenses were $546,025 for the year ended December 31, 2018, and consisted primarily of salaries and consulting fees paid to related parties and consulting, financing and loan fees, legal and professional fees.

 

Revenues and Net Operating Loss

 

Our revenues, operating expenses, and net operating loss for the years ended December 31, 2018 and 2017 were as follows:

 

    Year Ended December 31, 2018   Year Ended December 31, 2017   Increase/
(Decrease)
             
Revenue   $ 67,131     $ 7,605     $ 59,526  
Cost of Revenue     28,590       4,761       23,829  
                         
Operating expenses:                        
General and administrative     306,944       538,700       (231,756 )
General and administrative –
related party
    239,081       413,224       (174,143 )
Total operating expenses     546,025       951,924       (405,899 )
                         
Net operating loss     (507,484 )     (949,080 )     (441,596 )
Other income/(expense)     (2,815,775 )     (2,694,608 )     (121,167 )
                         
Loss from continuing operations     (3,323,259 )     (3,643,688 )     (320,429 )
Income (loss) from discontinued operations – (net of tax benefit)     (6,258 )     81,613       (87,871 )
                         
Net loss   $ (3,329,517 )   $ (3,562,075 )   $ (232,558 )

 

Revenues

 

We had revenues of $67,131 and $7,605 for the years ended December 31, 2018 and 2017, respectively. A single customer accounted for 100% of the revenue during the year ended December 31, 2017.

 

Cost of Revenue

 

Cost of revenue were $28,590 and $4,761 for the years ended December 31, 2018 and 2017, respectively, and consisted of wholesale product costs and packaging for 2018 and computer programmer and hosting costs for 2017.

 

General and Administrative

 

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General and administrative expense was $306,944 and $538,700 for the years ended December 31, 2018 and 2017, a decrease of $231,756. The decrease was due primarily to normal fluctuations in operations. In the year ended December 31, 2018, general and administrative expense consisted mainly of consulting $3,893, selling expenses of $5,595, salary and wages of $38,335, transfer agent and filing fees of $3,033, and accounting fees of $42,000. In the year ended December 31, 2017, general and administrative expense consisted mainly of consulting $100,496, selling expenses of $6,121, commissions of $6,000, transfer agent and filing fees of $9,907, and accounting fees of $29,000.

 

General and administrative – related party expense was $239,081 and $413,224 for the years ended December 31, 2018 and 2017, a decrease of $174,143. In the year ended December 31, 2018, general and administrative – related party expense consisted of salaries and wages of $105,000, and consulting fees of $129,496. For the year ended December 31, 2018, general and administrative – related party expense consisted of salaries and wages of $99,073 and consulting fees of $304,151. The decrease was due primarily to decline in operations with Eqova and the departure of Patrick Stiles as one of our officers.

 

Net Operating Loss

 

As a result of the items discussed above, our net operating loss was $507,484 and $949,080 for the years ended December 31, 2018 and 2017, respectively, a decrease of $441,596.

 

Other Income and Expense

 

Other expense was $(2,815,775) and $(2,694,608) for the year ended December 31, 2018 and 2017, respectively, an increase of $121,167, and consisted primarily of interest expense, loss on extinguishment of debt in both years, and impairment loss on goodwill and trademark, offset by a change in fair value of derivatives in 2017. The interest is high mainly from the derivatives on the convertible debt and the convertible preferred stock.

 

Discontinued Operations

 

 During the year ended December 31, 2018, we have a loss from discontinued operations of $6,258 compared with $81,613 of income from discontinued operations as the same period ended December 31, 2017.

 

Net Loss

 

Our net loss for the year ended December 31, 2018 was $3,329,517, or $(1.21) per share, and for December 31, 2017 was $3,562,075, or $(15.82) per share, a decrease of $232,558.

 

Liquidity and Capital Resources

 

Introduction

 

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During the years ended December 31, 2018 and 2017, because we generated only nominal revenues, we had negative operating cash flows. Our cash on hand as of December 31, 2018 was $485. Our monthly cash flow burn rate in 2018 was approximately $27,400. Although we have moderate short term cash needs, as our operating expenses increase we will face strong medium to long term cash needs. We anticipate that these needs will be satisfied through the issuance of debt or the sale of our securities until such time as our cash flows from operations will satisfy our cash flow needs. With the acquisitions of Eqova and BergaMet, we expect to see an increase in revenues over the next few years that will help us maintain the cash we need to operate our business. However, we have incurred additional expenses in these acquisitions and the additional costs to be incurred through this expansion of our operations will increase our need for additional cash flow.

 

Our cash, current assets, total assets, current liabilities, and total liabilities as of December 31, 2018 and December 31, 2017 are as follows:

 

    December 31, 2018   December 31, 2017   Change
             
Cash   $ 485     $ 81,653     $ (81,168 )
Total Current Assets     5,747       147,709       (141,962 )
Total Assets     85,768       1,122,743       (1,036,975 )
Total Current Liabilities     3,649,984       2,301,870       1,348,114  
Total Liabilities   $ 3,649,984     $ 2,301,870     $ 1,348,114  

 

Our cash decreased by $81,168 as of December 31, 2018 as compared to December 31, 2017. Our total current assets decreased by $141,962, from $147,709 to $5,747, as a result of decreased sales. Our total assets decreased by $1,036,975, from $1,122,743 to $85,768, for a result of decreased sales and impair goodwill related to Eqova.

 

Our current and total liabilities increased from $2,301,870 as of December 31, 2017 to $3,649,984 as of December 31, 2018. Our total liabilities as of the year ended December 31, 2018 consisted primarily of derivative liabilities of $2,713,319 and convertible debt of $654,453, compared to derivative liabilities of $1,822,568 and convertible debt of $316,781 as of December 31, 2017. The change in derivative liabilities results from the adjustable conversion rate on our convertible debt and warrants.

 

In order to repay our obligations in full or in part when due, we will be required to raise significant capital from other sources. There is no assurance, however, that we will be successful in these efforts.

 

Cash Requirements

 

Our cash on hand as of December 31, 2018 was $485. Our monthly cash flow burn rate in 2018 was approximately $27,400. Although we have moderate short term cash needs, as our operating expenses increase we will face strong medium to long term cash needs. We anticipate that these needs will be satisfied through the sale of our securities until such time as our cash flows from operations will satisfy our cash flow needs.

 

Sources and Uses of Cash

 

Operations

 

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Our net cash used in operating activities for the years ended December 31, 2018 and 2017 was $328,751 and $672,227, respectively, a decrease of $343,476. Our net cash used in operating activities for December 31, 2018 consisted primary of a net loss of $3,329,517, offset by non-cash interest of $1,296,056, a change in fair value on derivative liability of $184,643, loss on extinguishment of debt of $526,481, and impairment loss on goodwill and trademark of $843,632. Our net cash used in operating activities for December 31, 2017 consisted primarily of a net loss of $3,562,075, offset by non-cash interest of $2,727,888, loss on extinguishment of debt of $169,588, and gain in fair value on derivative liability of $111,307.

 

Investments

 

Our cash flow provided by (used in) investing activities for the years ended December 31, 2018 and 2017 was $50,000 and $(41,972), respectively. The increase in 2018 was from the sale of an asset for $50,000.

 

Financing

 

Our net cash provided by financing activities for the years ended December 31, 2018 and 2017 was $197,583 and $771,750, respectively, a decrease of $574,167. The decrease in 2018 was primarily due to the decrease in proceeds received from the issuance of convertible debt.

 

Critical Accounting Policies and Estimates

 

The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts in our consolidated financial statements and related notes. Our significant accounting policies are described in Note 2 to our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2018. Management bases its estimates on historical experience and on various other assumptions it believes to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities. Actual results may differ from these estimates and such differences may be material.

 

Management considers the following policies critical because they are both important to the portrayal of our financial condition and operating results, and they require management to make judgments and estimates about inherently uncertain matters.

 

Use of Estimates

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements. The estimates and judgments will also affect the reported amounts for certain revenues and expenses during the reporting period. Actual results could differ from these good faith estimates and judgments.

 

Recent Accounting Pronouncements

 

Our management has considered all recent accounting pronouncements issued since the last audit of our financial statements. Our management believes that these recent pronouncements will not have a material effect on our financial statements.

 

ITEM 7A – QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

As a smaller reporting company we are not required to provide the information required by this Item.

 

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ITEM 8 - FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

 

Report of Independent Registered Public Accounting Firm F-1 to F-2
   
Consolidated Balance Sheets as of December 31, 2018 and 2017 F-3
   
Consolidated Statement of Operations for the year ended December 31, 2018 and 2017 F-4
   
Consolidated Statement of Stockholders’ Deficit for the year ended December 31, 2018 and 2017 F-5
   
Consolidated Statement of Cash Flows for the year ended December 31, 2018 and 2017 F-6
   
Notes to Consolidated Financial Statements F-7 to F-21

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders of

Grey Cloak Tech, Inc.

 

Opinion on the Consolidated Financial Statements

We have audited the accompanying consolidated balance sheet of Grey Cloak Tech, Inc. (the Company) as of December 31, 2018 and the related consolidated statements of operation, stockholders’ deficit, and cash flows for the year then ended, and the related notes (collectively referred to as the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018, and the results of its operations and its cash flows for each of the year then ended, in conformity with accounting principles generally accepted in the United States of America.

Going Concern

The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As described in Note 3 to the consolidated financial statements, the Company has generated minimal revenues from operations. Since its inception, the Company has been engaged substantially in financing activities and developing its business plan and incurring start-up costs and expenses. As a result, the Company incurred accumulated net losses from Inception (December 19, 2014) through the period ended December 31, 2018 of $11,012,899. As of December 31, 2018, the Company had a negative working capital of $3,644,237 These factors, among others, raise substantial doubt regarding the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 3 to the accompanying financial statements. The accompanying financial statements do not include any adjustments that might result from the outcome of this uncertainty.

Basis for Opinion

These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

Our audit included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audit provides a reasonable basis for our opinion.

 

/s/ Prager Metis CPA's LLC
   
We have served as the Company’s auditor since 2018.
   
 
Hackensack, New Jersey  
March 29, 2020  

  

  

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders of

Grey Cloak Tech, Inc.

Opinion on the Consolidated Financial Statements

We have audited the accompanying consolidated balance sheet of Grey Cloak Tech, Inc. (the Company) as of December 31, 2017 and the related consolidated statements of operation, stockholders’ deficit, and cash flows for the year then ended, and the related notes (collectively referred to as the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2017, and the results of its operations and its cash flows for each of the year then ended, in conformity with accounting principles generally accepted in the United States of America.

Going Concern

The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As described in Note 3 to the consolidated financial statements, the Company has generated minimal revenues from operations. Since its inception, the Company has been engaged substantially in financing activities and developing its business plan and incurring start up costs and expenses. As a result, the Company incurred accumulated net losses from Inception (December 19, 2014) through the period ended December 31, 2017. These factors, among others, raise substantial doubt regarding the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 3 to the accompanying financial statements. The accompanying financial statements do not include any adjustments that might result from the outcome of this uncertainty.

Basis for Opinion

These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

Our audit included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audit provide a reasonable basis for our opinion.

 

/s/ Paritz & Company, P.A.
   
We have served as the Company’s auditor since 2015.
   
 
Hackensack, New Jersey  
June 7, 2018  

  

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GREY CLOAK TECH INC

CONSOLIDATED BALANCE SHEETS

 

    DECEMBER 31,   DECEMBER 31,
    2018   2017
ASSETS                
                 
CURRENT ASSETS                
   Cash   $ 485     $ 81,653  
   Accounts receivable     —         16,000  
   Inventory     500       48,466  
   Accrued interest receivable     4,762       1,590  
Total current assets     5,747       147,709  
                 
   Fixed assets, net of accumulated depreciation of $2,045 and $1,121, respectively     726       1,650  
   Website, net of accumulated amortization of $2,800 and $4,002, respectively     —         50,457  
   Note Receivable     79,295       79,295  
   Trademarks     —         1,650  
   Goodwill     —         841,982  
Total other assets     80,021       975,034  
                 
TOTAL ASSETS   $ 85,768     $ 1,122,743  
                 
LIABILITIES AND STOCKHOLDERS' DEFICIT                
                 
LIABILITIES                
 Accounts payable   $ 57,340     $ 67,364  
 Accounts payable - related party     15,000       4,000  
 Notes payable     63,000       —    
 Notes payable - related party     —         59,810  
 Convertible debt, net of discount of $15,960 and $305,396, respectively     654,453       316,781  
 Convertible debt - related party, net of discount of $30,853 and $23,871, respectively     61,223       6,129  
 Accrued interest payable     83,899       24,059  
 Accrued interest payable - related party     1,750       1,159  
Derivative liabilities     2,713,319       1,822,568  
Total current and total liabilities     3,649,984       2,301,870  
                 
STOCKHOLDERS' DEFICIT                
   Preferred stock, $0.001 par value, 75,000,000 shares authorized,                
     1,333,334 and 1,333,334 shares issued and outstanding, respectively     1,333       1,333  
   Common stock, $0.001 par value, 2,500,000,000 shares authorized,                
     6,455,354 and 898,422 shares issued and outstanding, respectively     6,455       898  
   Additional paid-in capital     7,440,895       6,502,024  
   Accumulated deficit     (11,012,899 )     (7,683,382 )
Total stockholders' deficit     (3,564,216 )     (1,179,127 )
                 
TOTAL LIABILITIES AND STOCKHOLDERS' DEFICIT   $ 85,768     $ 1,122,743  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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GREY CLOAK TECH INC

CONSOLIDATED STATEMENT OF OPERATIONS

FOR THE YEARS ENDED DECEMBER 31, 2018 AND 2017

 

    2018   2017
         
REVENUE   $ 67,131     $ 7,605  
                 
COST OF REVENUE     28,590       4,761  
                 
GROSS PROFIT     38,541       2,844  
                 
OPERATING EXPENSES                
    General and administrative     306,944       538,700  
    General and administrative - related party     239,081       413,224  
                 
Total operating expenses     546,025       951,924  
                 
OTHER INCOME (EXPENSE)                
    Interest expense, net of interest income     (1,266,470 )     (2,635,181 )
    Interest expense - related party     (1,500 )     (1,146 )
    Change in fair value on derivative     (184,643 )     111,307  
    Loss on extinguishment of debt     (526,481 )     (169,588 )
    Gain on sale of asset     6,951       —    
    Impairment of goodwill     (843,632 )     —    
                 
Total other income (expense)     (2,815,775 )     (2,694,608 )
                 
Net loss before income tax provision     (3,323,259 )     (3,643,688 )
                 
Income tax provision     —         —    
                 
Loss from continuing operations     (3,323,259 )     (3,643,688 )
Income (loss) from discontinued operations - (net of tax benefit)     (6,258 )     81,613  
                 
NET LOSS   $ (3,329,517 )   $ (3,562,075 )
                 
Loss per share - basic and diluted:                
  Continuing operations     (1.21 )     (16.18 )
  Discontinued operations     (0.00 )     0.36  
     Loss per shares - basic and diluted   $ (1.21 )   $ (15.82 )
                 
Weighted average number of shares outstanding - basic and diluted     2,747,890       225,210  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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GREY CLOAK TECH INC

CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' DEFICIT

FOR THE YEARS ENDED DECEMBER 31, 2018 AND 2017

 

            Additional        
    Preferred Stock   Common Stock   Paid-In   Accumulated    
    Shares   Amount   Shares   Amount   Capital   Deficit   Total
                             
Balance - December 31, 2016     —       $ —         68,625     $ 69     $ 1,761,819     $ (4,121,307 )   $ (2,359,419 )
                                                         
Cashless exercise of warrants     —         —         89,737       90       29,712       —         29,802  
                                                         
Issuance of common stock for debt conversion     —         —         740,060       741       2,852,586       —         2,853,327  
                                                         
Issuance of warrants and modifications     —         —         —         —         15,379       —         15,379  
                                                         
Issuance of shares for executive bonuses     187,733       187       —         —         137,525       —         137,712  
                                                         
Settlement of convertible debt     —         —         —         —         850,573       —         850,573  
                                                         
Issuance of sharess acquisition of Eqova     1,100,000       1,100       —         —         805,815       —         806,915  
                                                         
Issuance of shares acquisition of website     45,601       46       —         —         48,613       —         48,659  
                                                         
Net loss for the period     —         —         —         —         —         (3,562,075 )     (3,562,075 )
                                                         
Balance - December 31, 2017     1,333,334     $ 1,333       898,422     $ 900     $ 6,502,022     $ (7,683,382 )   $ (1,179,127 )
                                                         
Issuance of common stock for debt conversion     —         —         5,556,932       5,555       920,453       —         926,008  
                                                         
Debt Forgiveness     —         —         —         —         18,420       —         18,420  
                                                         
Net loss for the period     —         —         —         —         —         (3,329,517 )     (3,329,517 )
                                                         
Balance - December 31, 2018     1,333,334       1,333       6,455,354       6,455       7,440,895     $ (11,012,899 )   $ (3,564,216 )

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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GREY CLOAK TECH INC

CONSOLIDATED STATEMENT OF CASH FLOWS

FOR THE YEARS ENDED DECEMBER 31, 2018 AND 2017

 

    2018   2017
Cash Flows from Operating Activities:                
Net Loss   $ (3,329,517 )   $ (3,562,075 )
Adjustments to reconcile net loss to net cash used in operating activities:                
Depreciation and amortization     8,332       3,094  
Warrants issued for services     —         15,379  
Non-cash interest     1,296,056       2,727,888  
Change in fair value on derivative liability     184,643       (111,307 )
Loss on extinguishment of debt     526,481       169,588  
Gain on sale of asset     (6,951 )     —    
Impairment     843,632       —    
Changes in operating assets and liabilities:                
Accounts receivable     16,000       50,000  
Inventory     47,966       862  
Prepaid expenses     —         7,433  
Accrued interest receivable     (3,172 )     (1,590 )
Deposits     —         —    
Accounts payable     (10,024 )     42,822  
Accounts payable - related party     29,420       (15,799 )
Accrued payroll and taxes     —         (6,111 )
Accrued interest payable     67,792       6,943  
Accrued interest payable - related party     591       646  
Net Cash used in Operating Activities     (328,751 )     (672,227 )
                 
Cash Flows from Investing Activities:                
                 
Purchase of fixed assets     —         (1,189 )
Purchase of website     —         (3,000 )
Purchase of note receivable     —         (33,000 )
Cash acquired     —         5,217  
Cash received from sale of asset     50,000       —    
Liabilities assumed     —         (10,000 )
Cash flows provided by (used in) Investing Activities:     50,000       (41,972 )
                 
Cash Flows from Financing Activities:                
                 
Proceeds from issuance of convertible debt,                
     net of discount of $32,917 and $133,000, respectively     194,583       973,000  
Payments for repayment of convertible debt     —         (186,250 )
Proceeds from issuance of noted payable     3,000       —    
Payments for repayment of notes payable - related party     —         (15,000 )
Net Cash provided by Financing Activities     197,583       771,750  
                 
Increase (decrease) in cash     (81,168 )     57,551  
Cash at beginning of period     81,653       24,102  
Cash  at end of period   $ 485     $ 81,653  
                 
Supplemental disclosure of cash flow information of non-cash financing activities:                
Beneficial conversion feature and warrants recognized as a discount   $ —       $ 1,014,500  
Conversion of debt for shares of common stock   $ 18,420     $ 757,323  
Common stock issued in connection with debt conversion   $ 926,008     $ 2,853,327  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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 Table of Contents

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 1 – ORGANIZATION AND DESCRIPTION OF BUSINESS

 

Grey Cloak Tech Inc. (the “Company”) was incorporated in the State of Nevada on December 19, 2014. The Company was formed to provide cloud based software to detect advertising fraud on the internet. The Company has acquired Eqova Life Sciences and is transitioning its business towards marketing and selling CBD oil products. (See Note 9)

 

NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Basis of Presentation

 

The financial statements of the Company have been prepared in accordance with generally accepted accounting principles in the United States of America (GAAP) and are presented in US dollars.

 

Use of Estimates

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements. The estimates and judgments will also affect the reported amounts for certain revenues and expenses during the reporting period. Actual results could differ from these good faith estimates and judgments.

 

Cash

 

Cash includes cash in banks, money market funds, and certificates of term deposits with maturities of less than three months from inception, which are readily convertible to known amounts of cash and which, in the opinion of management, are subject to an insignificant risk of loss in value.

 

Revenue Recognition

 

We recognize revenue when all of the following conditions are satisfied: (1) there is persuasive evidence of an arrangement; (2) the product or service has been provided to the customer; (3) the amount of fees to be paid by the customer is fixed or determinable; and (4) the collection of our fees is probable.

 

The Company will record revenue when it is realizable and earned and the computer programming services or marketing services have been rendered to the customers. Additionally, the Company will record revenue from the sale of its software when the software is delivered to the customer or it will be recognized ratably throughout the term of the contract.

 

The Company records revenue upon shipment of the products to the customers related to the sale of CBD products.

 

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GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)

 

Concentration

 

There is no concentration of revenue for the year ended December 31, 2018. One customer accounted for 94% of total revenue earned during the year ended December 31, 2017. As of December 31, 2017, there was accounts receivable due from one customer.

 

Accounts Receivable

 

Accounts receivable are stated at the amount the Company expects to collect from outstanding balances and do not bear interest. The Company provides for probable uncollectible amounts through an allowance for doubtful accounts, if an allowance is deemed necessary. The allowance for doubtful accounts is the Company’s best estimate of the amount of probable credit losses in the Company’s existing accounts receivable; however, changes in circumstances relating to accounts receivable may result in a requirement for additional allowances in the future. On a periodic basis, management evaluates its accounts receivable and determines the requirement for an allowance for doubtful accounts based on its assessment of the current and collectible status of individual accounts with past due balances over 90 days. Account balances are charged against the allowance after all collection efforts have been exhausted and the potential for recovery is considered remote

 

Income Taxes

 

The Company accounts for income taxes using the asset and liability method in accordance with ASC 740, “Accounting for Income Taxes”. The asset and liability method provides that deferred tax assets and liabilities are recognized for the expected future tax consequences of temporary differences between the financial reporting and tax bases of assets and liabilities and for operating loss and tax credit carry forwards. Deferred tax assets and liabilities are measured using the currently enacted tax rates and laws that will be in effect when the differences are expected to reverse. The Company records a valuation allowance to reduce deferred tax assets to the amount that is believed more likely than not to be realized. As of December 31, 2018, the Company did not have any amounts recorded pertaining to uncertain tax positions.

 

Fair Value Measurements

 

The Company adopted the provisions of ASC Topic 820, “Fair Value Measurements and Disclosures”, which  defines fair value as used in numerous accounting pronouncements, establishes a framework for measuring fair value and expands disclosure of fair value measurements.

 

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GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)

 

The estimated fair value of certain financial instruments, including cash and cash equivalents are carried at historical cost basis, which approximates their fair values because of the short-term nature of these instruments.

 

ASC 820 defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. ASC 820 also establishes a fair value hierarchy, which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. ASC 820 describes three levels of inputs that may be used to measure fair value:

 

Level 1 — quoted prices in active markets for identical assets or liabilities

 

Level 2 — quoted prices for similar assets and liabilities in active markets or inputs that are observable

 

Level 3 — inputs that are unobservable (for example cash flow modeling inputs based on assumptions)

 

The derivative liability in connection with the conversion feature of the convertible debt, classified as a Level 3 liability, is the only financial liability measure at fair value on a recurring basis.

 

The change in Level 3 financial instrument is as follows:

 

Balance, January 1, 2017   $ 2,038,952  
Issued during the year ended December 31, 2018     2,518,163  
Change in fair value recognized in operations     (111,307 )
Converted during the year ended December 31, 2017     (2,623,240 )
Balance, December 31, 2017   $ 1,822,568  
         
Balance, January 1, 2018   $ 1,822,568  
Issued during the year ended December 31, 2018     868,591  
Change in fair value recognized in operations     184,643  
Converted during the year ended December 31, 2018     (162,483 )
Balance, December 31, 2018   $ 2,713,319  

 

Convertible Instruments

 

The Company evaluates and account for conversion options embedded in convertible instruments in accordance with ASC 815 “Derivatives and Hedging Activities”.

 

 F-9

 Table of Contents

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)

 

Applicable GAAP requires companies to bifurcate conversion options from their host instruments and account for them as free standing derivative financial instruments according to certain criteria. The criteria include circumstances in which (a) the economic characteristics and risks of the embedded derivative instrument are not clearly and closely related to the economic characteristics and risks of the host contract, (b) the hybrid instrument that embodies both the embedded derivative instrument and the host contract is not re-measured at fair value under other GAAP with changes in fair value reported in earnings as they occur and (c) a separate instrument with the same terms as the embedded derivative instrument would be considered a derivative instrument.

 

The Company accounts for convertible instruments (when it has been determined that the embedded conversion options should not be bifurcated from their host instruments) as follows: The Company records when necessary, discounts to convertible notes for the intrinsic value of conversion options embedded in debt instruments based upon the differences between the fair value of the underlying common stock at the commitment date of the note transaction and the effective conversion price embedded in the note. Debt discounts under these arrangements are amortized over the term of the related debt to their stated date of redemption.

 

The Company accounts for the conversion of convertible debt when a conversion option has been bifurcated using the general extinguishment standards. The debt and equity linked derivatives are removed at their carrying amounts and the shares issued are measured at their then-current fair value, with any difference recorded as a gain or loss on extinguishment of the two separate accounting liabilities. During the year ended December 31, 2018, the Company recognized a loss on extinguishment of $526,481 from the conversion of convertible debt with a bifurcated conversion option.

Common Stock Purchase Warrants

 

The Company classifies as equity any contracts that require physical settlement or net-share settlement or provide a choice of net-cash settlement or settlement in the Company’s own shares (physical settlement or net-share settlement) provided that such contracts are indexed to our own stock as defined in ASC 815-40 ("Contracts in Entity's Own Equity"). The Company classifies as assets or liabilities any contracts that require net-cash settlement (including a requirement to net cash settle the contract if an event occurs and if that event is outside our control) or give the counterparty a choice of net-cash settlement or settlement in shares (physical settlement or net-share settlement). The Company assesses classification of common stock purchase warrants and other free standing derivatives at each reporting date to determine whether a change in classification is required.

 

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 Table of Contents

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 3 – GOING CONCERN

 

The accompanying financial statements have been prepared assuming that the Company will continue as a going concern, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. The Company has generated minimal revenues from operations. Since its inception, the Company has been engaged substantially in financing activities and developing its business plan and incurring start up costs and expenses. As a result, the Company incurred accumulated net losses from Inception (December 19, 2014) through the period ended December 31, 2018 of $11,012,899. As of December 31, 2018, the Company had negative working capital of $3,644,237. In addition, the Company’s development activities since inception have been financially sustained through equity financing. These factors, among others, raise substantial doubt of the Company to continue as a going concern. Management plans to seek additional funding through debt and/or equity financing as needed to grow and fund operations and has recently acquired a new company as a wholly owned subsidiary.

 

NOTE 4 – RELATED PARTY

 

For the years ended December 31, 2018 and 2017, the Company had expenses totaling $109,585 and $99,073, respectively, to an officer and director for salaries, which is included in general and administrative expenses – related party on the accompanying statement of operations. For the year ended December 31, 2017, the Company issued 146,330 shares of preferred stock valued at $107,342 for a bonus to the officer and director. As of December 31, 2018, there was no accounts payable – related party.

 

For the years ended As of December 31, 2018 and 2017, the Company had expenses totaling $42,000 and $114,000 to a company owned by an officer and director for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2018, there was $15,000 in accounts payable – related party due to an entity owned and controlled by a former officer and director. For the year ended December ,31, 2017, the company issued 41,403 shares of preferred stock valued at $30,371 for a bonus to the officer and director.

 

As of December 31, 2018, there was convertible debt of $61,233 due to an officer and director and accrued interest payable of $1,750 due to an entity owned and controlled by a former officer and director.

 

For the year ended December 31, 2017, the company had expenses totaling $58,473 to an officer and director for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations.

 

On October 17, 2017, the Company granted 1,200,000 warrants as part of convertible debt to an officer and director. The warrants allow the holder to purchase 1,200,000 shares of common stock at an exercise price of $0.25 per share and are exercisable for 3 years

 

NOTE 5 – NOTE RECEIVABLE

 

As of December 31, 2018, the Company had the following:

 

  Unsecured note receivable, due 04/30/2020, 4% interest,
  $ 79,295  
         
TOTAL   $ 79,295  

 

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 Table of Contents

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 6 – CONVERTIBLE DEBT – RELATED PARTY

 

As of December 31, 2018, the Company had the following:

 

Unsecured convertible debt, due 10/17/18, 5% interest, converts at a 50% discount to market price based on the last 3 days trading price
  $ 30,000  
Unsecured convertible debt, due 03/31/19, 10% interest, converts at a 30% discount to market price based on the last 20 days trading price
    62,076  
         
Less: Discount     (30,853 )
TOTAL   $ 61,223  

 

NOTE 7 – NOTES PAYABLE – RELATED PARTY

 

As of December 31, 2018, the Company had the following:

 

Unsecured debt with shareholders of the Company, due 08/20/18, 15% interest, interest due quarterly, convertible into shares of Eqova   $ 60,000  
Unsecured debt with a shareholder of the Company, due 03/25/19, 10% interest, interest due at maturity     3,000  
Less: Discount     —    
TOTAL   $ 63,000  

 

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 Table of Contents

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 8 – CONVERTIBLE DEBT

 

As of December 31, 2018, the Company had the following:

 

Unsecured convertible debt, due 08/24/18, 12% interest, converts at a 50% discount to market price based on the last 25 days trading price   $ 110,000  
Unsecured convertible debt, due 11/01/18, 12% interest, converts at a 50% discount to market price based on the last 25 days trading price     110,000  
Unsecured convertible debt, due 10/04/18, 8% interest, converts at a 55% discount to market price based on the last 20 days trading price     50,000  
Unsecured convertible debt, due 02/02/19, 8% interest, converts at a 55% discount to market price based on the last 20 days trading price     50,000  
Unsecured convertible debt, may borrow up to $300,000, due 10/04/18, 8% interest, converts at a 44% discount to market price based on the last 20 days trading price     24,883  
Unsecured convertible debt, may borrow up to $300,000, due 11/09/18, 8% interest, converts at a 44% discount to market price based on the last 20 days trading price     45,000  
Unsecured convertible debt, may borrow up to $300,000, due 01/08/19, 8% interest, converts at a 30% discount to market price based on the last 20 days trading price     40,000  
Unsecured convertible debt, due 08/17/17, 12% interest, converts at a 45% discount to market price based on the last 20 days trading price     9,500  
Unsecured convertible debt, due 01/23/18, 8% interest, converts at the lower of $0.04 or a 40% discount to market price based on the last 20 days trading price     17,000  

 

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 Table of Contents

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 8 – CONVERTIBLE DEBT (CONTINUED)

 

Unsecured convertible debt, due 10/26/18, 8% interest, converts at a 45% discount to market price based on the last 20 days trading price     10,000  
Unsecured convertible debt, due 06/26/18, 9% interest, converts at a 42% discount to market price based on the last 15 days trading price     22,095  
Unsecured convertible debt, due 03/31/19, 10% interest, converts at a 30% discount to market price based on the last 20 days trading price     22,250  
Unsecured convertible debt, due 12/01/17, 12% interest, converts at a 50% discount to market price based on the last 20 days trading price     66,000  
Unsecured convertible debt, due 06/30/18, 12% interest, converts at a 39% discount to market price based on the average of the lowest 2 trading prices in the last 15 days trading price     8,935  
Unsecured convertible debt, due 07/30/18, 12% interest, converts at a 39% discount to market price based on the average of the lowest 2 trading prices in the last 15 days trading price     43,000  
Unsecured convertible debt, due 10/10/18, 12% interest, converts at a 39% discount to market price based on the average of the lowest 2 trading prices in the last 15 days trading price     35,000  
Unsecured convertible debt, due 01/19/17, 8% interest, default interest at 18%, converts at a 54% discount to market price based on the lowest trading prices in the last 20 days trading price     6,750  
         
SUBTOTAL     670,413  
Less: Discount     (15,960 )
TOTAL   $ 654,453  

 

Some of the convertible promissory notes are in default but will be in compliance upon filing of the 10-K.

 

The Company has determined that the conversion feature embedded in the notes referred to above that contain a potential variable conversion amount constitutes a derivative which has been bifurcated from the note and recorded as a derivative liability, with a corresponding discount recorded to the associated debt.

 

 F-14

 Table of Contents

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 9 – STOCKHOLDERS’ EQUITY

 

Authorized Stock 

 

The Company has authorized 75,000,000 common shares with a par value of $0.001 per share.  Each common share entitles the holder to one vote on any matter on which action of the stockholders of the corporation is sought. During February 2017, the Company increased the authorized number of shares to 500,000,000. Also, the Company increased the authorized preferred stock to 75,000,000 shares and designated 25,000,000 shares of preferred stock to Series A Convertible Preferred Stock. During January 2018, the Company increased its authorized number of common shares to 1,000,000,000. During April 2018, the Company increased its authorized number of common shares to 2,500,000,000. The Board of Directors, in the future, has the authority to increase the authorized capital up to 4,000,000,000 shares based on shareholder approval.

 

The shareholders of the Company approved a reverse stock split at a ratio of between 1-for-100 and 1-for 250. The Company received approval from FINRA for a reverse stock split of 1-for-250, which was effective as of July 23, 2018. All shares and per share information has been retrospectively adjusted to reflect the reverse split for all periods presented in the financial statements.

 

On October 16, 2017, the Company filed an Amended and Restated Certificate of Designation of the Rights, Preferences, Privileges and Restrictions of the Series A Convertible Preferred Stock (the “Amended Certificate”) with the Secretary of State of the State of Nevada. The Amended Certificate reduces the number of preferred shares designated as Series A Preferred Stock from 25,000,000 shares to 1,333,334 shares. The Amended Certificate also changes the conversion and voting rights of the Series A Preferred Stock. The Series A Preferred Stock is now convertible into the number of shares of our common stock equal to 0.00006% of our outstanding common stock upon conversion. The voting rights of the Series A Preferred Stock are now equal to the number of shares of common stock into which the Series A Preferred Stock may convert.

 

Preferred Share Issuances

 

As of December 31, 2018, the preferred stock is convertible into 2,422,425 shares of common stock.

 

During the year ended December 31, 2017, the Company issued 187,733 shares of preferred stock for bonuses for its officers and directors with a fair value of $137,712.

 

During the year ended December 31, 2017, the Company issued 1,100,000 shares of preferred stock for the acquisition of Eqova Life Sciences.

 

During the year ended December 31, 2017, the Company issued 45,601 shares of preferred stock for the acquisition of a website.

 

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 Table of Contents


GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 9 – STOCKHOLDERS’ EQUITY (CONTINUED)

 

Common Share Issuances

 

During the twelve months ended December 31, 2018, the Company issued a total of 5,556,932 shares of common stock for the conversion of debt with a fair value of $926,008 including interest of $9,118 and fees of $18,915, which result in loss on extinguishment of debt of $526,481.

 

During the year ended December 31, 2017, the Company issued a total of 89,737 shares for the cashless exercise of warrants.

 

During the year ended December 31, 2017, the Company issued a total of 740,060 shares for the conversion of debt with a fair value of $2,853,327.

 

During the year ended December 31, 2017, the Company issued warrants and modified the terms of the warrants with a fair value of $15,379.

 

During the year ended December 31, 2017, the Company settled convertible debt with cash payments of $850,573.

 

Warrants

 

As of December 31, 2018, there were 43,585 warrants outstanding, of which 11,585 warrants are fully vested.

 

On October 17, 2017, the Company granted 1,200,000 warrants as part of convertible debt to an officer and director of the Company. The warrants allow the holder to purchase 1,200,000 shares of common stock at an exercise price of $0.25 per share and are exercisable for 3 years.

 

NOTE 10 – ACQUISITIONS

 

On October 17, 2017, the Company entered into a Share Exchange Agreement with Eqova Life Sciences (“Eqova”) and issued 1,100,000 shares of Series A Convertible Preferred Stock in exchange for 100% of Eqova. The shares are convertible into approximately 66% of the total outstanding common stock as of the date of the closing. Of the total shares issued to Eqova only 550,000 shares are vested and the remaining 550,000 shares will vest upon sales of $100,000 for three consecutive months or $300,000 gross sales in any calendar quarter. Any unvested shares as of October 17, 2019, will be repurchased by the Company at a price of $0.01 per share. The Company wanted to position itself to take advantage of the growing hemp based marketplace as it is one of the fastest growing segments in the United States.

 

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 Table of Contents

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 10 – ACQUISITIONS (CONTINUED)

 

In accordance with the acquisition method of accounting, the Company allocated the consideration to the net tangible and identifiable intangible assets based on their estimated fair values.

 

Goodwill represents the excess of the purchase price over the fair value of the underlying net tangible and identifiable intangible assets.

 

The following table presents the consideration of net assets purchased:

 

1,100,000 shares of preferred stock issued   $ 806,915  
Total Purchase Price   $ 806,915  

 

The assets acquired and liabilities assumed as part of our acquisition were recognized at their fair values as of the effective acquisition date, October 17, 2017. The following table summarizes the fair values assigned to the assets acquired and liabilities assumed.

 

Cash   $ 5,217  
Current assets     49,328  
Intangible assets     1,650  
Goodwill     841,982  
Current liabilities     (91,262 )
Net assets acquired   $ 806,915  

 

The following table provides unaudited pro forma results of operations for the fiscal years ended December 31, 2017 and 2016 as if the acquisitions had been consummated as of the beginning of each period presented. The pro forma results include the effect of certain purchase accounting adjustments, such as the estimated changes in depreciation and amortization expense on the acquired intangible assets. However, pro forma results do not include any anticipated cost savings or other effects of the planned integration of the companies. Accordingly, such amounts are not necessarily indicative of the results if the acquisition has occurred on the dates indicated, or which may occur in the future.

 

    (Unaudited)
Pro Forma Results
Year ended December 31, 2017
     
Revenues   $ 128,105  
Loss before income taxes   $ 3,564,115  
         
Fully diluted loss per share   $ 0.07  

 

During the year ended December 31, 2018, the performed an analysis of their goodwill related to the acquisition of Eqova and recorded impairment of goodwill of $841,982.

 

 F-17

 Table of Contents

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 11 – DISCONTINUED OPERATIONS

 

During the year ended December 31, 2018, the management determined to discontinue operations related to its advertising business segment. There were no significant assets or liabilities associated with the discontinued operations. The loss from discontinued operations is comprised of revenue and expenses related to the advertising business.

Components of discontinued operations are as follows:

 

    2018   2017
Revenue - (net of tax)   $ —       $ 120,500  
Cost of Revenue - (net of tax)     (6,258 )     (38,887 )
Income (loss) from discontinued operations - (net of tax benefit)   $ (6,258 )   $ 81,613  

 

 

NOTE 12 – SALE OF ASSET

 

On June 8, 2018, the Company sold its website, CBD.co, to a third party for $50,000. The Company recorded a gain on the sale of $6,951.

 

NOTE 13 – INCOME TAXES

 

The reconciliation of income tax computed at the Federal statutory rate to the provision for income taxes from continuing operations is as follows:

 

    Year Ended   
December 31, 2018
  Year Ended   
December 31, 2017
Federal Taxes (credits) at statutory rates   $ (2,203,000 )   $ (1,246,000 )
State and local taxes, net of Federal benefit     —         —    
Change in valuation allowance     2,203,000       1,246,000  
    $ —       $ —    

   

Components of deferred tax assets are as follows:   December 31,   December 31,
    2018   2017
Deferred Tax Assets;                
Net Operating Loss Carryforwards   $ 666,000     $ 513,000  
Accrued Related Party Expenses     —         —    
Total Deferred Tax Assets     666,000       513,000  
Valuation Allowance     (666,000 )     (513,000 )
                 
Total Deferred Tax Assets net of Valuation Allowance   $ —       $ —    
Deferred Tax Liabilities;     —         —    
Depreciation and Amortization     —         —    
Prepaid Expense     —         —    
Total Deferred Tax Liabilities     —         —    
                 
Net Deferred Tax Assets   $ —       $ —    

 

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 Table of Contents

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 13 – INCOME TAXES (CONTINUED)

 

The Company has approximately $11,013,000 net operating loss carryforwards that are available to reduce future taxable income. Those NOLs begin to expire in 2034. In assessing the realization of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities, projected future taxable income and tax planning strategies in making this assessment. Based on the assessment, management has established a full valuation allowance against all of the deferred tax assets for every period because it is more likely than not that all of the deferred tax assets will not be realized.

 

The Company’s deferred tax liability associated with timing differences related to depreciation and amortization includes $0 of liability resulting from tax depreciation deducted in excess of GAAP depreciation prior to the Company becoming taxed as a C-Corporation.

 

The Company files income tax returns in the U.S. federal jurisdiction, and the state of Nevada.

 

The Company adopted the provisions of FASB ASC 740, Accounting for Uncertainty in Income Taxes. Management evaluated the Company’s tax positions and concluded that the Company had taken no uncertain tax positions that require adjustment to the financial statements to comply with the provisions of this guidance. The Company has no significant adjustments as a result of the implementation of FASB ASC 740.

 

NOTE 14 – SUBSEQUENT EVENTS

 

Stock Issued for Conversion of Convertible Debt

 

During the period from January 1, 2019 through February 14, 2019, the Company issued a total of 996,052 shares of common stock for the conversion of debt totaling $2,817.

 

Stock Issued for Services

 

On January 28, 2019, the Company entered into a marketing and sales consulting agreement with an individual for a period of six months. The Company issued 350,000 shares of common stock as the compensation for this agreement.

 

Acquisition of BergaMet and the Share Exchange Agreement

 

On February 4, 2019, the Company entered into a Share Exchange Agreement with BergaMet NA, LLC, a Delaware limited liability company (“BergaMet”), and the members of BergaMet, whereby the Company issued and exchanged 97,409,678 shares of its common stock for all of the outstanding equity securities of BergaMet (the “Exchange”). Through the Exchange, BergaMet became a wholly-owned subsidiary of the Company. The shares of common stock issued in the Exchange were equal to 80.1% of the Company’s outstanding common stock (post-exchange).

 

 F-19


GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 14 – SUBSEQUENT EVENTS (CONTINUED)

 

In connection with the Exchange, Kevin Pitts resigned as the Company’s President and Chief Executive Officer, and the Company appointed Mr. Pitts as its Chief Operating Officer. The Company appointed Sanjeev Javia to serve as its President and Chief Executive Officer and as a Director on its Board of Directors.

 

Note Satisfaction Agreements

 

Prior to the Exchange, the Company entered into a Note Satisfaction Agreement with each of Auctus Fund, Crown Bridge Partners, LLC, Power Up Lending Group Ltd., GS Capital Partners LLC, Oakmore Opportunity Fund I LP, and Adar Bays, LLC. All of these entities were holders of the Company’s convertible debt, and these Note Satisfaction Agreements terminate their convertible notes unless the Company fails to perform its payment obligations. The Company agreed to pay these note holders an aggregate of $518,486 plus interest. The Company paid an aggregate of $353,908 on or before February 15, 2019, and it will pay another $164,578 plus interest in approximately one (1) year.

 

Various other holders of Convertible Promissory Notes agreed to convert their notes for an aggregate of 806,015 shares of common stock prior to the Exchange. As a result of these transactions, no convertible promissory notes remain outstanding, except for those convertible notes subject to revival if the Company fails to make payments pursuant to the Note Satisfaction Agreements. 

 

Share Conversion Agreements

 

All of the holders of the Company’s Series A Convertible Preferred Stock (the “Preferred Holders”) entered into a Preferred Stock Conversion Agreement. Pursuant to the Conversion Agreements, the Preferred Holders converted their shares of preferred stock into common stock, effective as of the Exchange. As a result, no shares of the Company’s Series A Convertible Preferred Stock are outstanding. An aggregate of 15,592,986 shares of common stock were issued to the Preferred Holders. The Preferred Holders agreed to convert each share of Series A Convertible Preferred Stock into eighteen (18) shares of common stock and agreed to retire a total of 467,057 shares of Series A Convertible Preferred Stock. The Company cancelled the retired shares.

 

COVID-19

 

The COVID-19 outbreak in early 2020 has adversely affected, and may continue to adversely affect economic activity globally, nationally and locally. These economic and market conditions and other effects of the COVID-19 outbreak may adversely affect the Company. At this point, the extent to which COVID-19 may impact the Company's business is uncertain.

 

 F-20

GREY CLOAK TECH INC

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2018 and 2017

 

NOTE 14 – SUBSEQUENT EVENTS (CONTINUED)

 

Promissory Notes

 

On July 31, 2019, the Company received the last of four (4) signed convertible notes issued to various related parties with an effective date of April 19, 2019. The table below shows the effective date of each note, the amount of the note, the interest rate, the maturity date and the purchaser of the note:

 

Date Amount Interest Rate Maturity Date Purchaser
4/19/2019 $150,000 8% 4/19/2020 Jay W. Decker 
4/19/2019 $15,000 8% 4/19/2020 First Capital Properties LLC
4/19/2019 $7,500 8% 4/19/2020 Logan Bryce Decker 
4/19/2019 $7,500 8% 4/19/2020 Shelton Sterling Decker 
         
Total $180,000      

 

Each note bears interest at the rate indicated and is due on the maturity date given above. The notes are convertible into shares of our common stock from the date which is 12 months after the date of the note through the later of (i) the maturity date and (ii) the date of payment of the default amount due upon certain change of control transactions or a default of the note. Conversion of the notes is not allowed to the extent the conversion would result in beneficial ownership by the holder and its affiliates of more than 9.99% of our outstanding shares of common stock. The conversion price of the notes is $0.03 per share.

 

On October 3, 2019, the Company received the last of the three (3) signed convertible notes issued to Jay W. Decker, a related party, each with a different effective date. The table below shows the effective date of each note, the amount of the note, the maturity date and the purchaser of the note:

 

Date Amount Interest Rate Maturity Date Purchaser
6/27/2019 $105,000 8% 6/27/2020 Jay W. Decker 
8/27/2019 $225,000 8% 8/27/2020 Jay W. Decker 
9/20/2019 $45,000 8% 9/20/2020 Jay W. Decker 
         
Total $375,000      

 

Each note bears interest at the rate indicated and is due on the maturity date given above. Conversion of the notes is not allowed to the extent the conversion would result in beneficial ownership by the holder and its affiliates of more than 9.99% of our outstanding shares of common stock. The conversion price of the notes is $0.03 per share.

 

 F-21

ITEM 9 - CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

 

There are no events required to be disclosed under this Item.

 

ITEM 9A - CONTROLS AND PROCEDURES

 

(a)       Disclosure Controls and Procedures

 

We conducted an evaluation, with the participation of our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended, or the Exchange Act, as of December 31, 2018, to ensure that information required to be disclosed by us in the reports filed or submitted by us under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Securities Exchange Commission’s rules and forms, including to ensure that information required to be disclosed by us in the reports filed or submitted by us under the Exchange Act is accumulated and communicated to our management, including our principal executive and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure. Based on that evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that as of December 31, 2018, our disclosure controls and procedures were not effective at the reasonable assurance level due to the material weaknesses identified and described in Item 9A(b).

 

Our principal executive officers do not expect that our disclosure controls or internal controls will prevent all error and all fraud. Although our disclosure controls and procedures were designed to provide reasonable assurance of achieving their objectives and our principal executive officers have determined that our disclosure controls and procedures are effective at doing so, a control system, no matter how well conceived and operated, can provide only reasonable, not absolute assurance that the objectives of the system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented if there exists in an individual a desire to do so. There can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions.

 

(b)       Management Report on Internal Control Over Financial Reporting

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is defined in Rules 13a-15(f) and 15d-15(f) promulgated under the Exchange Act, as amended, as a process designed by, or under the supervision of, our principal executive and principal financial officer and effected by our board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States and includes those policies and procedures that:

 

  · Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect our transactions and any disposition of our assets;

 

  · Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and

 

  · Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on the financial statements.

 

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Because of its inherent limitations, internal control over financial reporting may not prevent or detect all misstatements. Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis. Our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2017 . In making this assessment, our management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated Framework. Based on this assessment, Management identified the following two material weaknesses that have caused management to conclude that, as of December 31, 2018, our disclosure controls and procedures, and our internal control over financial reporting, were not effective at the reasonable assurance level:

 

1.       We do not have written documentation of our internal control policies and procedures. Written documentation of key internal controls over financial reporting is a requirement of Section 404 of the Sarbanes-Oxley Act. Management evaluated the impact of our failure to have written documentation of our internal controls and procedures on our assessment of our disclosure controls and procedures and has concluded that the control deficiency that resulted represented a material weakness.

 

2.       We do not have sufficient segregation of duties within accounting functions, which is a basic internal control. Due to our size and nature, segregation of all conflicting duties may not always be possible and may not be economically feasible. However, to the extent possible, the initiation of transactions, the custody of assets and the recording of transactions should be performed by separate individuals. Management evaluated the impact of our failure to have segregation of duties on our assessment of our disclosure controls and procedures and has concluded that the control deficiency that resulted represented a material weakness.

 

To address these material weaknesses, management performed additional analyses and other procedures to ensure that the financial statements included herein fairly present, in all material respects, our financial position, results of operations and cash flows for the periods presented. Accordingly, we believe that the financial statements included in this report fairly present, in all material respects, our financial condition, results of operations and cash flows for the periods presented.

 

This Annual Report does not include an attestation report of our independent registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by our registered public accounting firm pursuant to the rules of the Securities and Exchange Commission that permit us to provide only our management’s report in this Annual Report.

 

(c)       Remediation of Material Weaknesses

To remediate the material weakness in our documentation, evaluation and testing of internal controls we plan to engage a third-party firm to assist us in remedying this material weakness once resources become available.

 

We also intend to remedy our material weakness with regard to insufficient segregation of duties by hiring additional employees in order to segregate duties in a manner that establishes effective internal controls once resources become available.

 

(d)       Changes in Internal Control over Financial Reporting

No change in our system of internal control over financial reporting occurred during the period covered by this report, fourth quarter of the fiscal year ended December 31, 2017 , that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

ITEM 9B – OTHER INFORMATION

 

None.

 

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PART III

 

ITEM 10 – DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

 

Directors and Executive Officers

 

The following table sets forth the names, ages, and biographical information of each of our current directors and executive officers, and the positions with the Company held by each person, and the date such person became a director or executive officer of the Company. Our executive officers are elected annually by the Board of Directors. The directors serve one-year terms until their successors are elected. The executive officers serve terms of one year or until their death, resignation or removal by the Board of Directors. Family relationships among any of the directors and officers are described below.

 

Name   Age   Position(s)
         
Kevin “Duke” Pitts     60     President, Director (2018)
             
William Bossung     61     Secretary, Chief Financial Officer, Director (2014)
             
Bill Croyle     68     Director (2019)

 

Kevin “Duke” Pitts, age 60, was appointed to our Board of Directors on September 28, 2018, and as our President on September 24, 2019. Mr. Pitts is a proven leader who has 30 years of senior management experience within a technology-driven industry. Mr. Pitts has been the President and Owner of Envision Enterprises, a consumer electronic integration business, where he has worked since 2007. Earlier in his career, Mr. Pitts served as the Director of Direct Marketing at Dish Network, the well-known satellite television provider. His deep experience in senior management and marketing will be of great value to us.

 

William Bossung, age 61, has served as our Secretary, Chief Financial Officer, and a member of our Board of Directors since our inception. Mr. Bossung has a diverse background in Corporate Finance, Insurance and Accounting. From September 2003 to August 2006, Mr. Bossung was a founder of BCF Technology with Mr. Covely, an insurance software company that was ultimately sold to Vertafore in August 2006. From August 2006 through December 2014, Mr. Bossung was the managing partner of Bishop Equity Partners LLC, a small boutique private equity firm that invests in both private and public companies and purchases and restructures debt from companies. During January 2012, Mr. Bossung founded Splash Beverage Group, a beverage distribution company that distributes both alcohol and non-alcohol products, and is currently one of their Directors. From June 2012 through August 2013, Mr. Bossung was the Director of Business Development at Splash Beverage. Mr. Bossung currently holds an Insurance License in various states. He holds a bachelor’s degree in accounting and finance from Bloomsburg State University.

 

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Bill Croyle, age 68, was appointed to our Board of Directors on September 24, 2019. Mr. Croyle is a private investor and an accomplished Senior Executive with more than 40 years of success across the IT, energy, manufacturing, telecommunications, venture capital, and finance industries. His broad areas of expertise include M&A, negotiations, service contracts and delivery, executive development and mentoring, and managing complexities. Since 2009 Bill is has been a founder, owner or executive of EnTX Group, Impact Legacy Partners, FB Oilfield Special Tools and Western Energy Advisors. He is Chairman of the Colorado Chapter of the Marine Corps Scholarship Foundation, and he has served on the boards of Hill City Silica LLC, the University of Colorado Advocates program, the Association for Corporate Growth/Denver, and the Denver Consulting Alliance. Bill served in the Marine Corps 1972-1974. Mr. Croyle holds Certificates in Energy Finance and Management from the University of Denver and International Trade from World Trade Center Denver. He graduated from the University of California, Santa Barbara, with a BA in History and minor in French.

 

Family Relationships

 

There are no family relationships between any of our officers or directors.

 

Other Directorships; Director Independence

 

Other than as set forth above, none of our officers and directors is a director of any company with a class of securities registered pursuant to section 12 of the Exchange Act or subject to the requirements of section 15(d) of such Act or any company registered as an investment company under the Investment Company Act of 1940.

 

For purposes of determining director independence, we have applied the definitions set out in NASDAQ Rule 5605(a)(2). The OTCQB on which shares of common stock are quoted does not have any director independence requirements. The NASDAQ definition of “Independent Officer” means a person other than an Executive Officer or employee of the company or any other individual having a relationship which, in the opinion of the company’s Board of Directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. According to the NASDAQ definition, none of our directors are independent.

 

Section 16(a) Beneficial Ownership Reporting Compliance

 

Section 16(a) of the Securities Exchange Act of 1934 requires our directors and executive officers and persons who own more than ten percent of a registered class of our equity securities to file with the SEC initial reports of ownership and reports of changes in ownership of common stock and other equity securities of the Company. Officers, directors and greater than ten percent shareholders are required by SEC regulations to furnish us with copies of all Section 16(a) forms they file.

 

Except as set forth below, to our knowledge, none of our officers, directors, or beneficial owners of more than ten percent of our common stock failed to file on a timely basis reports required by section 16(a) of the Exchange Act during the most recent fiscal year or prior fiscal years.

 

Board Committees

 

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Our Board of Directors does not maintain a separate audit, nominating or compensation committee. Functions customarily performed by such committees are performed by its Board of Directors as a whole. We are not required to maintain such committees under the applicable rules of the OTCQB. We do not currently have an “audit committee financial expert” since we currently do not have an audit committee in place. We intend to create board committees, including an independent audit committee, in the near future.

 

We do not currently have a process for security holders to send communications to the Board.

 

During the fiscal years ended December 31, 2017 and 2016, the Board of Directors met as necessary.

 

Involvement in Certain Legal Proceedings

 

None of our officers or directors has, in the past ten years, filed bankruptcy, been convicted in a criminal proceeding or named in a pending criminal proceeding, been the subject of any order, judgment, or decree of any court permanently or temporarily enjoining him or her from any securities activities, or any other disclosable event required by Item 401(f) of Regulation S-K.

 

Code of Ethics

 

We have not adopted a written code of ethics, primarily because we believe and understand that our officers and directors adhere to and follow ethical standards without the necessity of a written policy.

 

ITEM 11 - EXECUTIVE COMPENSATION

 

Narrative Disclosure of Executive Compensation

 

For the year ended December 31, 2018, we had expenses totaling $65,496 to Patrick Stiles, our then-Chief Executive Officer, President and Director, for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2018, there was no accounts payable to the related party.

 

For the year ended December 31, 2017, we had expenses totaling $58,437 to Patrick Stiles, our then-Chief Executive Officer, President and Director, for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2017, there was no accounts payable to the related party.

 

For the year ended December 31, 2018, we had expenses totaling $109,585 to Mr. Bossung for salaries, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2018, there was $0 in accounts payable – related party.

 

For the year ended December 31, 2017, we had expenses totaling $99,073 to Mr. Bossung for salaries, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2017, there was $0 in accounts payable – related party. For the year ended December 31, 2017, we issued 146,330 shares of preferred stock valued at $107,342 for a bonus to Mr. Bossung.

 

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For the year ended December 31, 2018, we had expenses totaling $42,000 to a company owned by Fred Covely, our then-Chief Technology Officer and Director, for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2018, there was $15,000 in accounts payable – related party.

 

For the year ended December 31, 2017, we had expenses totaling $114,000 to a company owned by Fred Covely, our then-Chief Technology Officer and Director, for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2017, there was $0 in accounts payable – related party. For the year ended December 31, 2017, we issued 41,403 shares of preferred stock valued at $30,371 for a bonus to Mr. Covely.

 

For the year ended December 31, 2018, we had expenses totaling $22,000 to the wife of an officer and director for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2017, there was $0 in accounts payable – related party.

 

For the year ended December 31, 2017, we had expenses totaling $4,000 to the wife of an officer and director for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2017, there was $4,000 in accounts payable – related party.

 

Stiles Employment Agreement

 

On October 17, 2017, we entered into an Employment Agreement with Patrick Stiles, our Chief Executive Officer. Pursuant to Mr. Stiles’ Employment Agreement, we agreed to pay Mr. Stiles an annual base salary of $140,000, and he may receive employee stock options as determined by the Board of Directors. Mr. Stiles’ employment is “at will” and either party may terminate the agreement at any time. The agreement was terminated on September 28, 2018, when Mr. Stiles resigned his positions.

Bossung Employment Agreement

 

On October 17, 2017, we entered into an Employment Agreement with William Bossung, our Chief Financial Officer. Pursuant to Mr. Bossung’s Employment Agreement, we have agreed to pay Mr. Bossung an annual base salary of $140,000, and he may receive employee stock options as determined by the Board of Directors. Mr. Bossung’s employment is “at will” and either party may terminate the agreement at any time.

If terminated without Cause or as a result of Constructive Termination, Mr. Bossung will receive severance equal to three months’ pay at his most recent Base Salary. If Mr. Bossung is terminated for Cause, Disability or death, or voluntarily resigns, he will not receive any severance, only unpaid salary as of the date of termination and vested benefits. The Employment Agreement includes non-compete and non-solicitation provisions that apply during the term of the Employment Agreement and for a period of one year after Mr. Bossung’s termination. Capitalized terms in this section not defined herein have the meaning given to such term in the Employment Agreement.

 

Mr. Bossung’s Employment Agreement also requires that certain proprietary information of ours be kept confidential. We will be the owner of certain intellectual property conceived or made by Mr. Bossung prior to termination of the Employment Agreement. Mr. Bossung’s Employment Agreement also contains other certain terms and conditions which are common in such agreements, and reference is made herein to the text of the Employment Agreement which is filed herewith as Exhibit 10.32.

 

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Summary Compensation Table

 

The following table sets forth information with respect to compensation earned by our Chief Executive Officer, President, Chief Financial Officer and Chief Technology Officer for the years ended December 31, 2018 and 2017.

 

 

Name and

Principal Position

Year

Salary

($)

Bonus

($)

Stock

Awards

($)

Option Awards

($)

Non-Equity Incentive Plan Compensation ($) Nonqualified Deferred Compensation ($)

All Other

($)

 

 

Total

($)

                   
 Patrick Stiles 2018 -0- -0- -0- -0- -0- -0- -0- -0-
President and CEO 2017 -0- -0- -0- -0- -0- -0- 58,437 58,437
                   
William Bossung 2018 109,585 -0- -0- -0- -0- -0- -0- 109,585
Secretary and CFO 2017 99,073 107,342 -0- -0- -0- -0- -0- 206,415
                   
Fred Covely 2018 -0- -0- -0- -0- -0- -0- -0- -0-
CTO 2017   30,371 -0- -0- -0- -0- 114,000 144,371
                   
Kevin “Duke” Pitts 2018 -0- -0- -0- -0- -0- -0- -0- -0-

 

Director Compensation

 

For the years ended December 31, 2018 and 2017, none of the members of our Board of Directors received compensation for his or her service as a director.

 

Outstanding Equity Awards at Fiscal Year-End

 

We do not currently have a stock option or grant plan.

 

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ITEM 12 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

 

The following table sets forth, as of December 18, 2019, certain information with respect to our equity securities owned of record or beneficially by (i) each of our Officers and Directors; (ii) each person who owns beneficially more than 5% of each class of our outstanding equity securities; and (iii) all Directors and Executive Officers as a group.

 

 

 

Name and Address (1)

 

 

Common Stock Beneficial Ownership

  Percentage of Common Stock Beneficial Ownership (2)
         
Kevin “Duke” Pitts (3)     1,620,000       1.33 %
                 
William Bossung (3)     2,551,296       2.10 %
                 
Bill Croyle (3)(4)     663,670       <1%  
                 
Jay Decker     85,345,862       70.18 %
                 
All Officers and Directors as a Group (3 Persons)     4,835,966       3.98 %

 

  (1) Unless otherwise indicated, the address of the shareholder is c/o Grey Cloak Tech Inc.

 

  (2) Unless otherwise indicated, based on 121,610,085 shares of common stock issued and outstanding. Shares of common stock subject to convertible preferred stock and options or warrants currently exercisable, or exercisable or convertible within 60 days, are deemed outstanding for purposes of computing the percentage of the person holding such options or warrants, but are not deemed outstanding for purposes of computing the percentage of any other person.

 

  (3) Indicates one of our officers or directors.
     
  (4) Includes 663,670 shares of common stock held by BMJ Estate Matters, LLC, of which Mr. Croyle is the controlling party.

 

 

The issuer is not aware of any person who owns of record, or is known to own beneficially, five percent or more of the outstanding securities of any class of the issuer, other than as set forth above. There are no classes of stock other than common stock issued or outstanding.

 

There are no current arrangements which will result in a change in control.

 

We do not currently have a stock option or grant plan.

 

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ITEM 13 - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

 

For the year ended December 31, 2018, we had expenses totaling $0 to a company owned by William Bossung, our Chief Financial Officer and Director, for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2018, there was no accounts payable to the related party.

 

For the year ended December 31, 2017, we had expenses totaling $58,437 to a company owned by William Bossung, our Chief Financial Officer and Director, for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2017, there was no accounts payable to the related party.

 

For the year ended December 31, 2018, we had expenses totaling $109,585 to Mr. Bossung for salaries, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2018, there was $0 in accounts payable – related party.

 

For the year ended December 31, 2017, we had expenses totaling $99,073 to Mr. Bossung for salaries, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2017, there was $0 in accounts payable – related party. For the year ended December 31, 2017, we issued 146,330 shares of preferred stock valued at $107,342 for a bonus to Mr. Bossung.

 

For the year ended December 31, 2018, we had expenses totaling $42,000 to a company owned by Fred Covely, our then-Chief Technology Officer and Director, for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2018, there was $15,000 in accounts payable – related party.

 

For the year ended December 31, 2017, we had expenses totaling $114,000 to a company owned by Fred Covely, our then-Chief Technology Officer and Director, for consulting fees, which is included in general and administrative expenses – related party on the accompanying statement of operations. As of December 31, 2017, there was $0 in accounts payable – related party. For the year ended December 31, 2017, we issued 41,403 shares of preferred stock valued at $30,371 for a bonus to Mr. Covely.

 

On October 17, 2017, we granted 1,200,000 warrants as part of convertible debt to Mr. Covely. The warrants allow the holder to purchase 1,200,000 shares of common stock at an exercise price of $0.25 per share and are exercisable for 3 years.

 

Director Independence

 

For purposes of determining director independence, we have applied the definitions set out in NASDAQ Rule 5605(a)(2). The OTCQB on which shares of common stock are quoted does not have any director independence requirements. The NASDAQ definition of “Independent Officer” means a person other than an Executive Officer or employee of the Company or any other individual having a relationship which, in the opinion of the Company’s Board of Directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. According to the NASDAQ definition, none of our directors are independent.

 

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ITEM 14 – PRINCIPAL ACCOUNTING FEES AND SERVICES

 

Prager Metis CPAs, LLC was our independent registered public accounting firm for the year ended December 31, 2018. Paritz & Company, PA was our independent registered public accounting firm for the year ended December 31, 2017 and had served as our independent registered public accounting firm since our inception.

 

Audit and Non-Audit Fees

 

The following table presents fees for professional services rendered by our independent registered public accounting firm for the audit of our annual financial statements for the years ended December 31, 2018 and 2017.

 

    Years Ended December 31,
    2018 (2)   2017 (3)
Audit Fees (1)   $ 31,000     $ 29,000  
Audit Related Fees     —         —    
Tax Fees     —         —    
All Other Fees     —         —    
Total   $ 31,000     $ 29,000  

 

(1)   Audit fees were principally for audit and review services.

(2)   Fees for services rendered by Prager Metis CPAs, LLC.

(3)   Fees for services rendered by Paritz & Company, PA.

 

Of the fees described above for the years ended December 31, 2018 and 2017, all were approved by the entire Board of Directors.

 

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PART IV

 

ITEM 15 - EXHIBITS, FINANCIAL STATEMENT SCHEDULES

 

(a)(1)       Financial Statements

 

The following financial statements are filed as part of this report:

 

Report of Independent Registered Public Accounting Firm F-1
   
Consolidated Balance Sheets as of December 31, 2018 and 2017 F-2
   
Consolidated Statement of Operations for the year ended December 31, 2018 and 2017 F-3
   
Consolidated Statement of Stockholders’ Deficit for the year ended December 31, 2018 and 2017 F-4
   
Consolidated Statement of Cash Flows for the year ended December 31, 2018 and 2017 F-5
   
Notes to Consolidated Financial Statements F-6 to F-20

 

(a)(2)       Financial Statement Schedules

 

We do not have any financial statement schedules required to be supplied under this Item.

 

(a)(3)       Exhibits

 

Refer to (b) below.

 

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(b)       Exhibits

 

Exhibit No.   Exhibit Description
3.1 (1)   Articles of Incorporation of Grey Cloak Tech Inc.
     
3.2 (1)   Bylaws of Grey Cloak Tech Inc.
     
10.1   Share Exchange Agreement dated February 4, 2019 by and among Grey Cloak Tech Inc., BergaMet NA, LLC, and the Members of BergaMet
     
31.1   Rule 13a-14(a)/15d-14(a) Certification of Chief Executive Officer
     
31.2   Rule 13a-14(a)/15d-14(a) Certification of Chief Financial Officer
     
32.1   Chief Executive Officer Certification Pursuant to 18 USC, Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
     
32.2   Chief Financial Officer Certification Pursuant to 18 USC, Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
     
101.INS   XBRL Instance Document
     
101.SCH   XBRL Schema Document
     
101.CAL   XBRL Calculation Linkbase Document
     
101.DEF   XBRL Definition Linkbase Document
     
101.LAB   XBRL Labels Linkbase Document
     
101.PRE   XBRL Presentation Linkbase Document

 

  (1) Incorporated by reference from our Registration Statement on Form S-1 dated and filed with the Commission on March 6, 2015.

 

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SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  Grey Cloak Tech Inc.
     
     
Dated:   April 1, 2020   /s/ Kevin Pitts
  By: Kevin “Duke” Pitts
  Its: President

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Dated:   April 1, 2020   /s/ William Bossung
  By: William Bossung
  Its: Secretary and Chief Financial Officer

 

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SHARE EXCHANGE AGREEMENT

 

dated as of

 

February 4, 2019

 

by and among

 

Grey Cloak Tech Inc.,

a Nevada corporation (“GCT”),

 

BergaMet NA, LLC,

a Delaware limited liability company (“BergaMet”),

 

and

 

The Members of BergaMet

 

 

SHARE EXCHANGE AGREEMENT

 

This Share Exchange Agreement (this “Agreement”) is entered into on February 4, 2019 (the “Effective Date”) and is by and among Grey Cloak Tech Inc., a Nevada corporation (“GCT”), on the one hand, and BergaMet NA, LLC, a Delaware limited liability company (“BergaMet”), and the members of BergaMet as listed on Exhibit A (each a “BergaMet Member” and collectively the “BergaMet Members”), on the other hand. Each of GCT, BergaMet, and the BergaMet Members may be referred to herein as a “Party” and collectively as the “Parties.”

 

RECITALS

 

WHEREAS, BergaMet is engaged in the business of developing, manufacturing, promoting, selling and distributing nutritional supplement products that include citrus bergamot (the “Business”);

 

WHEREAS, the BergaMet Members are the beneficial and record owners of all of the issued and outstanding equity interests of BergaMet;

 

WHEREAS, the BergaMet Members desire to aquire from GCT, and GCT desires to issue to the BergaMet Members, shares of GCT common stock constituting 80% of all of GCT’s issued and outstanding capital stock immediately following the Closing in exchange for all of the issued and outstanding equity interests of BergaMet (the “Exchange”);

 

WHEREAS, it is the intention of the Parties that upon Closing BergaMet shall become a wholly-owned subsidiary of GCT; and

 

WHEREAS, the Parties intend that the Exchange, as set forth in this Agreement, shall qualify as a tax-free transfer under the provisions of Section 351 of the Internal Revenue Code, as amended (the “Code”).

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

ARTICLE I
THE EXCHANGE

 

1.1              The Exchange of GCT Shares for BergaMet Units.

 

(a)               At the Closing (as defined in Section 1.2) and subject to the terms and conditions set forth herein, each BergaMet Member shall purchase, and GCT shall issue and sell to each BergaMet Member, 2,140.872 shares of GCT’s common stock for each BergaMet Unit held by the BergaMet Member (the “Exchange Ratio”). Such shares of GCT’s common stock shall collectively (i) be referred to as the “Exchange Shares”, (ii) constitute 97,409,678 shares of GCT’s common stock in total, and (iii) constitute 80.1% of the issued and outstanding capital stock of GCT immediately following the Closing (after taking into account the conversions to common stock of any and all of convertible notes and preferred stock, which are contemplated by this Agreement to occur at or prior the Closing).

 

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(b)               At the Closing and subject to the terms and conditions set forth herein, as consideration for the BergaMet Member’s Exchange Shares, each BergaMet Member shall contribute, sell, convey, assign, and transfer to GCT, and GCT shall purchase, acquire and accept from the BergaMet Member, all of the equity interests of BergaMet. Such equity interests of BergaMet shall generally be referred to as the “BergaMet Units”, and shall in the aggregate (i) be comprised of 45,500 Class A Units and (ii) constitute all of the issued and outstanding equity interests of BergaMet.

 

(c)               GCT shall issue the Exchange Shares to the BergaMet Members by delivering (within the time frame set forth in Section 1.3(b)(ii) hereof) a stock certificate to each BergaMet Member registered in the name of the BergaMet Member, or the BergaMet Member’s nominees, evidencing the Exchange Shares (the “Exchange Shares Certificates”).

 

(d)               For federal income tax purposes, the Exchange is intended to constitute a tax-free transfer within the meaning of Section 351 of the Code, and the Parties shall report the transactions contemplated by this Agreement consistent with such intent and shall take no position in any tax filing or legal proceeding inconsistent therewith.

 

1.2              Closing. Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Article V and subject to the satisfaction or waiver of the conditions set forth in Article IV, the closing of the Exchange (the “Closing”) will take place at 5:00 p.m. Pacific Time on the Effective Date. The Closing shall take place at the offices of GCT, unless another date, time, or place is agreed to in writing by GCT and BergaMet.

 

1.3              Deliveries at Closing.

 

(a)               At the Closing, BergaMet must execute and deliver:

 

(i)                 to GCT and each BergaMet Member, a counterpart signature page, executed by BergaMet, to each Joinder Agreement, the form of which is attached hereto as Exhibit D (each “Joinder Agreement”), that has been executed by such BergaMet Member;

(ii)              to GCT, a certificate, dated as of the Effective Date, executed by a manager or an executive officer of BergaMet, in the form attached hereto as Exhibit B (the “BergaMet Representation Certificate”), stating that each of the conditions set forth in Section 4.2, with respect to BergaMet, have been satisfied; and

(iii)            to GCT, a certificate, dated as of the Effective Date, executed by a manager or an executive officer of BergaMet in the form attached hereto as Exhibit C (the “BergaMet Officer’s Certificate”), certifying as to the full force and effect of, and attaching as exhibits to such certificate, (A) the organizational documents of BergaMet; (B) a certificate of good standing, dated as of a date within five (5) days of the Effective Date, from the Secretary of State of the State of Delaware; (C) resolutions of BergaMet’s manager approving the Agreement and the transactions contemplated herein; and (D) resolutions of the BergaMet Members approving the Agreement and the transactions contemplated herein.

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(b)               At the Closing (unless otherwise indicated) GCT must execute and deliver:

 

(i)                 to BergaMet and each BergaMet Member, a counterpart signature page, executed by GCT, to each Joinder Agreement that has been executed by such BergaMet Member;

(ii)              within ten (10) business days of the Effective Date, to the BergaMet Members, the Exchange Shares Certificates;

(iii)            to the BergaMet Members and BergaMet, a certificate dated as of the Effective Date, executed by an executive officer of GCT, in the form attached hereto as Exhibit E (the “GCT Representation Certificate”), stating that each of the conditions in Section 4.3 have been satisfied;

(iv)             to the BergaMet Members and BergaMet, a certificate, dated as of the Effective Date, executed by an executive officer of GCT in the form attached hereto as Exhibit F (the “GCT Officer’s Certificate”), certifying as to the full force and effect of, and attaching as exhibits to such certificate, (A) the organizational documents of GCT; (B) a certificate of good standing, dated as of a date within five (5) days of the Effective Date, from the Secretary of State of the State of Nevada; and (C) resolutions of GCT’s Board of Directors approving the Agreement and the transactions contemplated herein, including the appointments set forth in Section 1.4;

(v)               to Bill Bossung, a promissory note in the principal amount of $61,875.91, in a form acceptable to Bergamet (the “Bossung Note”), with respect to amounts previously advanced to GCT by Bill Bossung (the “Bossung Advance”);

(vi)             to Genuine Partners, a promissory note in the principal amount of $79,666.67, in a form acceptable to Bergamet (the “Genuine Partners Note” and together with the Bossung Note, the “Bossung/Genuine Partners Notes”), with respect to amounts previously advanced to GCT by Tim Brasel and/or Genuine Partners (the “Genuine Partners Advance”, and together with the Bossung Advance, the “Bossung/Genuine Partners Advances”); and

(vii)          to Jay W. Decker, an assumption of Bergamet’s obligations under a promissory note issued by BergaMet to Jay W. Decker in the principal amount of $1,050,000 (the “Decker Note”), in a form acceptable to Bergamet, with respect to amounts previously advanced to BergaMet by Jay W. Decker (the “Decker Advance”).

1.4              Directors and Executives of GCT. Effective at Closing, the parties identified on Exhibit G shall be appointed to GCT’s Board of Directors or as executive officers as indicated.

 

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ARTICLE II
REPRESENTATIONS AND WARRANTIES

 

2.1              Representations and Warranties of BergaMet. BergaMet represents and warrants to GCT as follows as of the Effective Date:

 

(a)               Organization, Standing, and Power. BergaMet is duly organized, validly existing, and in good standing under the laws of the State of Delaware and has the requisite power and authority and all government licenses, authorizations, permits, consents, and approvals required to own, lease, and operate its properties and carry on its business as now being conducted. BergaMet is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed (individually or in the aggregate) would not have a Material Adverse Effect (as defined in Section 7.2) with respect to BergaMet.

 

(b)               Subsidiaries. BergaMet does not own directly or indirectly, any equity or other ownership interest in any company, corporation, partnership, joint venture, or otherwise.

 

(c)               Capital Structure. BergaMet has 45,500 Class A Units issued and outstanding. No other equity securities of BergaMet are issued, reserved for issuance, or outstanding. All issued and outstanding equity interests of BergaMet are nonassessable and not subject to preemptive rights. There are no outstanding bonds, debentures, notes, or other indebtedness, or other securities of BergaMet having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters. There are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements, or undertakings of any kind to which BergaMet is a party or by which they are bound obligating BergaMet to issue, deliver or sell, or cause to be issued, delivered or sold, additional membership interests or other equity or voting securities of BergaMet or obligating BergaMet to issue, grant, extend, or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement, or undertaking. There are no outstanding contractual obligations, commitments, understandings, or arrangements of BergaMet to repurchase, redeem, or otherwise acquire or make any payment in respect of any membership interest of BergaMet. There are no agreements or arrangements pursuant to which BergaMet is or could be required to register Bergamet’s equity interests or other securities under the Securities Act of 1933, as amended and the rules and regulations promulgated thereunder (the “Securities Act”) or other agreements or arrangements with or among any security holders of Bergamet with respect to securities of BergaMet.

 

(d)               Company Authorization. As of the Closing, BergaMet has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by BergaMet and the consummation by BergaMet of the transactions contemplated hereby have been (or at Closing will have been) duly authorized by all necessary action on the part of BergaMet. This Agreement has been duly executed and when delivered by BergaMet shall constitute a valid and binding obligation of BergaMet, enforceable against BergaMet in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity.

 

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(e)               Non-Contravention. The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions hereof will not, conflict with, or result in any breach or violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of or “put” right with respect to any obligation or to a loss of a material benefit under,or result in the creation of any lien upon any of the properties or assets of BergaMet under, (i) BergaMet’s certificate of formation, limited liability company agreement or other organizational or charter documents of BergaMet; (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to BergaMet, its properties or assets (other than any consent of H&AD S.r.l., an Italian corporation (“H&AD”), required with respect to BergaMet’s rights under the Purchase & Supply Agreement dated January 1, 2015 originally executed by DOJS Holding Pty Ltd and H&AD (the “Supply Agreement”)); or (iii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule, regulation or arbitration award applicable to BergaMet, its properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, breaches, violations, defaults, rights, losses, or liens that individually or in the aggregate could not have a Material Adverse Effect with respect to BergaMet or could not prevent, hinder or materially delay the ability of BergaMet to consummate the transactions contemplated by this Agreement.

 

(f)                Governmental Authorization. No consent, approval, order, or authorization of, or registration, declaration or filing with, or notice to, any United States court, administrative agency or commission, or other federal, state, or local government or other governmental authority, agency, domestic or foreign (a “Governmental Entity”), is required by or with respect to BergaMet in connection with the execution and delivery of this Agreement by BergaMet or the consummation by BergaMet of the transactions contemplated hereby, except, with respect to this Agreement, any filings under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

(g)               Financial Statements. BergaMet has previously delivered to GCT BergaMet-prepared financial statements of BergaMet consisting of the balance sheet of BergaMet as of December 31, 2018, and the related statement of income for the year then ended (“Financial Statements”). The Financial Statements have been prepared in accordance with GAAP and are complete and correct and have been prepared from and substantially conform with the books and records of the Business and present fairly the financial condition and results of operations of the Business as of the dates and for the periods indicated in all material respects.

(h)               Absence of Certain Changes or Events. Since December 31, 2018, there has not been any (i) a Material Adverse Effect with respect to BergaMet (which expressly excludes amounts paid or incurred by BergaMet under the Supply Agreement), or (ii) any event or occurrence that would reasonably be expected to prevent the ability of BergaMet to consummate the transactions contemplated by this Agreement.

(i)                 Legal Proceedings. There are no legal proceedings pending or, to BergaMet’s Knowledge, threatened against or by BergaMet (a) relating to or affecting the Business; or (b) that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement; and no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action. There are no outstanding and no unsatisfied judgments, penalties, or awards against, relating to or affecting the Business.

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(j)                 Compliance with Laws. To BergaMet’s Knowledge, the conduct of the Business complies with all statutes, laws, regulations ordinances, rules, judgments, orders, decrees or arbitration awards applicable to BergaMet.

(k)               Taxes. All Tax Returns with respect to the Business required to be filed by BergaMet for any period prior to Closing have been, or will be, timely filed. Such Tax Returns are, or will be, true, complete and correct in all respects. All Taxes due and owing by BergaMet (whether or not shown on any Tax Return) have been, or will be, timely paid. Any deficiencies asserted, or assessments made, against BergaMet as a result of any examinations by any taxing authority have been fully paid. BergaMet is not a party to any Action by any taxing authority. There are no pending or, to BergaMet’s Knowledge, threatened Actions by any taxing authority. There are no Encumbrances for Taxes upon any of BergaMet’s assets nor, to BergaMet’s Knowledge, is any taxing authority in the process of imposing any Encumbrances for Taxes on any of BergaMet’s assets (other than for current Taxes not yet due and payable).

(l)                 Guaranties. BergaMet has not guaranteed any dividend, obligation, or indebtedness of any person.

(m)             Certain Fees. No brokerage or finder’s fees or commissions are or will be payable by BergaMet to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other person with respect to the transactions contemplated by this Agreement.

(n)               Acknowledgement of GCT’s Business. BergaMet acknowledges and understands that GCT operates in the cannabis industry, specifically as it relates to full spectrum hemp oil, and that GCT’s products contain CBD and trace amounts of THC, and any change in current federal or state statutes, regulation or enforcement, or current federal or state statutes, regulation or enforcement may have a Material Adverse Effect on the business of GCT.

 

2.2              Representations and Warranties of GCT. GCT represents and warrants to BergaMet and the BergaMet Members as follows as of the Effective Date and as of the Closing:

 

(a)               Organization, Standing and Power. GCT is duly organized, validly existing and in good standing under the laws of the State of Nevada and has the requisite corporate power and authority and all government licenses, authorizations, permits, consents, and approvals required to own, lease and operate its properties and carry on its business as now being conducted. GCT is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed (individually or in the aggregate) would not have a Material Adverse Effect with respect to GCT.

 

(b)               Subsidiaries. GCT has one wholly-owned subsidiary, Eqova Life Sciences, a Nevada corporation (the “Subsidiary”), and does not otherwise own directly or indirectly, any equity or other ownership interest in any company, corporation, partnership, joint venture, or otherwise. For purposes of Section 2.2(h) through Section 2.2(s), references to GCT shall be deemed to include the Subsidiary.

 

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(c)               Capital Structure of GCT.

 

(i)                 The Exchange Shares will be, when issued, duly authorized, validly issued, fully paid and nonassessable, not subject to preemptive rights, and issued in compliance with all applicable state and federal laws concerning the issuance of securities. The Exchange Shares constitute 80% of the issued and outstanding capital stock of GCT immediately following the Closing (after taking into account the conversions to common stock of any and all of convertible notes and preferred stock, which are contemplated by this Agreement to occur at or prior the Closing). Immediately following the Closing, the capitalization of GCT and ownership thereof will be as set forth in Exhibit H. Except as set forth in Exhibit H, no shares of capital stock or other equity securities of GCT are or will be issued, reserved for issuance or outstanding. All issued and outstanding shares of capital stock of GCT are or will be fully paid and nonassessable and not subject to preemptive rights. Immediately following the Closing, there will be no outstanding bonds, debentures, notes, or other indebtedness or other securities of GCT having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters. Immediately following the Closing, there will be no outstanding securities, warrants, calls, rights, commitments, agreements, arrangements, or undertakings of any kind to which GCT is a party or by which they are bound, obligating GCT to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity or voting securities of GCT. Immediately following the Closing, there will be no outstanding contractual obligations, commitments, understandings, or arrangements of GCT to repurchase, redeem, or otherwise acquire or make any payment in respect of any shares of capital stock of GCT.

(ii)              Only Common Stock Outstanding. Immediately following the Closing, there will be no outstanding shares of GCT’s Series A Convertible Preferred Stock, convertible notes, warrants or any other securities, instruments or rights convertible or exercisable into capital stock of GCT. Immediately following the Closing, shares of GCT’s common stock will be the only class or series of GCT’s capital stock (A) issued and outstanding and (B) authorized for issuance by GCT. Without limiting the generality of the foregoing, as of immediately following the Closing:

1)                  No Series A Convertible Preferred Stock. All holders of GCT’s outstanding Series A Convertible Preferred Stock have converted their shares into GCT common stock.

2)                  Convertible Notes. All convertible notes previously issued by GCT and outstanding immediately prior to Closing have been, or are subject to agreements with GCT for such convertible notes to be, at or prior to the Closing, (A) paid and discharged in full at Closing (such payoffs, the “Closing Note Payoffs”), for which the aggregate payoff does not exceed $353,907.97; (B) converted into GCT capital stock prior to the Closing; (C) amended to be a nonconvertible note on terms and in a form satisfactory to BergaMet (the “Restated-as-Nonconvertible Note”) for which the balance owing at Closing does not exceed $110,000.00; and/or (D) amended on terms satisfactory to BergaMet for a suspension conversion rights that expires after one year if the balance is then unpaid (the “Amended-and-Deferred Note”) for which the balance owing at Closing does not exceed $54,578.00; provided however a single convertible note, for which the note holder cannot be located and for which the balanceowing at Closing does not exceed $6,749.69, plus interest, may continue to remain outstanding at and following the Closing. A complete and accurate written summary of all Closing Note Payoffs, the Restated-as-Convertible Note and the Amended-and-Deferred Note is attached as Section 2.2(c) of the Disclosure Schedules.

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3)                  No Warrants. There are no outstanding stock purchase warrants or other similar rights to acquire capital stock of GCT, other than an aggregate of 42,800 warrants previously disclosed to BergaMet, each with an exercise price of at least $30.00 per share. Each such other warrant or right previously issued by GCT has either been (A) cancelled or (B) exercised prior to the Closing.

As of the Closing, the Company has valid and binding agreements with third parties to ensure that the foregoing will be true and correct immediately following the Closing.

(d)               Corporate Authority. GCT has all requisite corporate and other power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by GCT and the consummation by GCT of the transactions contemplated hereby have been (or at Closing will have been) duly authorized by all necessary corporate action on the part of GCT. This Agreement has been duly executed and when delivered by GCT shall constitute a valid and binding obligation of GCT, enforceable against GCT in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, or other similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity.

 

(e)               Non-Contravention. The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions hereof will not, conflict with, or result in any breach or violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of or “put” right with respect to any obligation or to loss of a material benefit under, or result in the creation of any lien upon any of the properties or assets of GCT under, (i) its articles of incorporation, bylaws, or other charter documents of GCT; (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, or license applicable to GCT, its properties or assets; or (iii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule, regulation, or arbitration award applicable to GCT, its properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, breaches, violations, defaults, rights, losses, or liens that individually or in the aggregate could not have a Material Adverse Effect with respect to GCT or could not prevent, hinder or materially delay the ability of GCT to consummate the transactions contemplated by this Agreement.

 

(f)                Government Authorization. No consent, approval, order or authorization of, or registration, declaration, or filing with, or notice to, any Governmental Entity, is required by or with respect to GCT in connection with the execution and delivery of this Agreement by GCT, or the consummation by GCT of the transactions contemplated hereby, except, with respect to this Agreement, any filings under the Securities Act or the Exchange Act.

 

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(g)               Financial Statements. GCT has previously delivered to BergaMet GCT’s financial statements consisting of the audited balance sheet of GCT’s business operations as of December 31, 2017 and 2016 and the related statements of income and cash flows for the years then ended, and the unaudited balance sheet of GCT’s business operations as of September 30, 2018 and the related statements of income and cash flows for the nine (9) month period then ended (the “GCT’s Financial Statements”). GCT’s Financial Statements have been prepared in accordance with GAAP and are complete and correct and have been prepared from and substantially conform with the books and records of GCT and present fairly the financial condition and results of GCT’s business operations as of the dates and for the periods indicated.

(h)               Undisclosed Liabilities. GCT has no liabilities, whether known or unknown, whether absolute or contingent, whether liquidated or unliquidated and whether due or to become due (“Liabilities”), except (a) the Bossung/Genuine Partners Advances (and the obligation to assume the Decker Note at the Closing); (b) the Restated-as-Nonconvertible Notes; (c) the Closing Note Payoffs; and (d) other payment obligations (including without limitations all legal fees and costs, accounting fees and other third party charges incurred in connection with this Agreement and the transactions contemplated hereby for services performed through the Closing) that do not exceed $53,200 in the aggregate.

(i)                 Absence of Certain Changes, Events, and Conditions. Since September 30, 2018, and except as listed on Section 2.2(i) of the Disclosure Schedules, none of the following has occurred, except that which would not have a Material Adverse Effect:

(i)                 material change in any method of accounting or accounting practice for the Business;

(ii)              entry into any GCT Contract;

(iii)            incurrence, assumption, or guarantee of any indebtedness for borrowed money in connection with GCT’s business operations;

(iv)             transfer, assignment, sale, lien, or other disposition of any of GCT’s assets except in the ordinary course of business;

(v)               cancellation of any debts or claims or amendment, termination, or waiver of any rights of GCT;

(vi)             transfer, assignment, or grant of any license or sublicense of any material rights under or with respect to any of the Intellectual Property;

(vii)          material damage, destruction or loss, or any material interruption in use, of any of GCT’s assets, whether or not covered by insurance;

(viii)        grant of any bonuses, whether monetary or otherwise, or any general wage or salary increases in respect of any employees, other than as provided for in any written agreements or consistent with past practice, or change in the terms of employment for any employee;

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(ix)             loan to, or entry into any other transaction with, any member, manager or employee of GCT; or

(x)               any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.

(j)                 GCT Contracts. Except as reflected in the GCT Financial Statements or in filings by GCT with the Securities and Exchange Commission, there are no Contracts (i) by which any of GCT’s assets are bound or affected; or (ii) to which GCT is a party or by which it is bound in connection with GCT’s assets, excluding the contracts executed in association with this Agreement (any such Contracts listed in Section 2.2(j) of the Disclosure Schedules, the “GCT Contracts”). Any GCT Contract is valid and binding on GCT in accordance with its terms and is in full force and effect. None of GCT or, to GCT’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any GCT Contract. No event or circumstance has occurred that, to GCT’s Knowledge, with notice or lapse of time or both, would constitute an event of default under any GCT Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each GCT Contract (including all modifications, amendments, and supplements thereto and waivers thereunder) have been provided to GCT. There are no disputes pending or, to GCT’s Knowledge, threatened under any GCT Contract.

(k)               Title to, and Sufficiency of, Assets.

(i)                 GCT owns good, marketable title to all of its assets, free and clear of any Encumbrance, title imperfection, or restriction of any kind whatsoever (whether accrued, absolute, contingent, or otherwise), except the Encumbrances reflected in the GCT Financial Statements or in filings by GCT with the Securities and Exchange Commission.

(ii)              GCT’s assets are sufficient for the continued conduct of its operations after the Closing in substantially the same manner as conducted prior to the Closing and constitute all of the rights, property, and assets necessary to conduct GCT’s business operations as currently conducted.

(iii)            The Inventories will be, at the Closing, no less than ninety percent (90%) of the average inventory value for the previous ninety (90) days, consist of a quality and quantity usable and salable in the ordinary course of business, except for obsolete, damaged, or slow-moving items that have been written-off or written-down to fair market value or for which adequate reserves have been established.

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(l)                 Intellectual Property.

(i)                 All required filings and fees related to the Intellectual Property Assets, the lack of which would have a Material Adverse Effect, have been timely filed with and paid to the relevant Governmental Entities and authorized registrars, and all registrations relating to the Intellectual Property Assets, the lack of which would have a Material Adverse Effect, are otherwise in good standing. GCT has provided BergaMet, to BergaMet’s satisfaction at the time of Closing, with true and complete copies of file histories, documents, certificates, office actions, correspondence, and other materials related to all Intellectual Property Assets.

(ii)              GCT owns all rights, title, and interest in and to the Intellectual Property Assets, free and clear of Encumbrances.

(m)             Legal Proceedings.

(i)                 There are no legal proceedings pending or, to GCT’s Knowledge, threatened against or by GCT (a) relating to or affecting GCT’s business operations; or (b) that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement; and no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.

(ii)              There are no outstanding and no unsatisfied judgments, penalties, or awards against, relating to, or affecting GCT’s ability to conduct its business operations.

(n)               Compliance with Laws; Permits.

(i)                 To GCT’s Knowledge, GCT has complied, and is now complying, with all Laws applicable to the conduct of its business operations as currently conducted.

(ii)              All Permits required for GCT to conduct its business operations as currently conducted, the lack of which would have a Material Adverse Effect, have been obtained by GCT and are valid and in full force and effect. All fees and charges with respect to such Permits as of the date hereof have been paid in full.

(o)               Employment Matters.

(i)                 As of the Effective Date and the Closing, (A) GCT has no employees, consultants or contactors, and (B) all commissions and bonuses payable to Employees, consultants, or contractors of GCT for services performed on or prior to the Effective Date and the Closing have been paid in full and there are no outstanding agreements, understandings, or commitments of GCT with respect to any commissions, bonuses or increases in compensation. GCT shall have the right, in its sole discretion, to employ, retain, or contract with any of such persons.

(ii)              GCT is not a party to, or bound by, any collective bargaining or other Contract with a labor organization representing any of its Employees, and to GCT’s Knowledge, there are no labor organizations representing, purporting to represent or attempting to represent any Employee.

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(iii)            To GCT’s Knowledge, GCT is and has been in compliance with all applicable Laws pertaining to employment and employment practices to the extent they relate to the Employees. To GCT’s Knowledge, all individuals characterized and treated by GCT as consultants or contractors of GCT’s business operations are properly treated as independent contractors under all applicable Laws.

(p)               Taxes.

(i)                 All Tax Returns required to be filed by GCT for any period prior to Closing have been, or will be, timely filed. Such Tax Returns are, or will be, true, complete and correct in all respects. All Taxes due and owing by GCT (whether or not shown on any Tax Return) have been, or will be, timely paid.

(ii)              GCT has withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to any Employee, independent contractor, creditor or other party, and complied with all information reporting and backup withholding provisions of applicable Law.

(iii)            No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of GCT.

(iv)             All deficiencies asserted, or assessments made, against GCT as a result of any examinations by any taxing authority have been fully paid.

(v)               GCT is not a party to any Action by any taxing authority. There are no pending or, to GCT’s Knowledge, threatened Actions by any taxing authority.

(vi)             There are no Encumbrances for Taxes upon any of GCT’s assets nor, to GCT’s Knowledge, is any taxing authority in the process of imposing any Encumbrances for Taxes on any of GCT’s assets (other than for current Taxes not yet due and payable).

(q)               Guaranties. GCT has not guaranteed any dividend, obligation, or indebtedness of any person; nor has any person guaranteed any dividend, obligation, or indebtedness of GCT.

(r)                Related Party Arrangements. Other than as contemplated by this Agreement, there are no obligations of GCT to its respective current or former members, shareholders, equity holders, managers, directors, officers, or employees.

(s)                Certain Fees. No brokerage or finder’s fees or commissions are or will be payable by GCT to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank, or other person with respect to the transactions contemplated by this Agreement.

 

(t)                 BergaMet Information. GCT acknowledges that BergaMet has made available to GCT the opportunity to ask questions of and receive answers from BergaMet’s manager and executive officers concerning the terms and conditions of this Agreement and the business and financial condition of BergaMet, and GCT has received to its satisfaction, such information about the business and financial condition of BergaMet and the terms and conditions of the Agreement as it has requested. GCT has carefully considered the potential risks relating to BergaMet and acquiring the BergaMet Units, and fully understands that BergaMet’s Business and the high degree of risk associated therewith.

 

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2.3              Representations and Warranties of the BergaMet Members. Each BergaMet Member, severally and not jointly, represents and warrants to GCT as follows:

 

(a)               Ownership of the BergaMet Units. The BergaMet Member owns the number of BergaMet Units corresponding to the Exchange Ratio and the number of Exchange Shares issued to the BergaMet Member and stated in the BergaMet’s Joinder Agreement, free and clear of all liens, claims, rights, charges, encumbrances, and Security Interests of whatsoever nature or type, and the BergaMet Member represents and warrants that the BergaMet Units represent the entire ownership interest of the BergaMet Member in BergaMet.

 

(b)               Power of BergaMet Member to Execute Agreement. The BergaMet Member has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the BergaMet Member and the consummation by the BergaMet Member of the transactions contemplated hereby have been (or at Closing will have been) duly authorized by all necessary action on the part of the BergaMet Member. This Agreement has been duly executed and when delivered by the BergaMet Member shall constitute a valid and binding obligation of the BergaMet Member, enforceable against the BergaMet Member, as applicable, in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity. The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions hereof will not, conflict with, or result in any breach or violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation, or acceleration of or “put” right with respect to any obligation or to a loss of a material benefit under, or result in the creation of any lien upon any of the properties or assets of the BergaMet Member under, (i) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, or license applicable to the BergaMet Member, its properties or assets; or (ii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule, regulation, or arbitration award applicable to the BergaMet Member, its properties or assets, other than any such conflicts would not prevent the BergaMet Member from consummating the transactions contemplated by this Agreement.

 

(c)               Investment. The BergaMet Member is acquiring the Exchange Shares for BergaMet Member’s own account, and not directly or indirectly for the account of any other person. The BergaMet Member is acquiring the Exchange Shares for investment and not with a view to distribution or resale thereof except in compliance with the Securities Act and any applicable state law regulating securities.

 

(d)               Registration of Securities. The BergaMet Member must bear the economic risk of investment for an indefinite period of time because the Exchange Shares have not been registered under the Securities Act and therefore cannot and will not be sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. GCT has made no representations, warranties, or covenants whatsoever as to whether any exemption from the Securities Act, including, without limitation, any exemption for limited sales in routine brokers’ transactions pursuant to Rule 144 under the Securities Act will become available. Transfer of the Exchange Shares has not been registered or qualified under any applicable state law regulating securities and therefore the Exchange Shares cannot and will not be sold unless it is subsequently registered or qualified under any such act or an exemption therefrom is available. GCT has made no representations, warranties or covenants whatsoever as to whether any exemption from any such act will become available.

 

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(e)               Access to Information. The BergaMet Member acknowledges that GCT has made available to it the opportunity to ask questions of and receive answers from GCT’s management, including its officers and directors, concerning the terms and conditions of this Agreement and the business and financial condition of GCT, and the BergaMet Member has received such information about the business and financial condition of GCT and the terms and conditions of the Agreement as it has requested. The BergaMet Member understands that the Exchange Shares are speculative investments, which involve a high degree of risk of loss of the BergaMet Member’s entire investment.

 

(f)                Sophistication. The BergaMet Member further represents and warrants that the BergaMet Member has such business or financial expertise as to be able to protect the BergaMet Member’s own interests in connection with an investment in the Exchange Securities. The BergaMet Member further represents that it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risk of such investment. The BergaMet Member also represents that it has not been organized for the purpose of acquiring securities.

 

(g)               Acknowledgement of GCT’s Business. The BergaMet Member acknowledges and understands that GCT operates in the cannabis industry, specifically as it relates to full spectrum hemp oil, and that GCT’s products contain CBD and trace amounts of THC, and any change in current federal or state statutes, regulation or enforcement, or current federal or state statutes, regulation or enforcement may have a Material Adverse Effect on the business of GCT.

 

(h)               GCT Information. The BergaMet Member acknowledges that GCT has made available to it the opportunity to ask questions of and receive answers from GCT’s officers and directors concerning the terms and conditions of this Agreement and the business and financial condition of GCT, and the BergaMet Member has received to its satisfaction, such information about the business and financial condition of GCT and the terms and conditions of the Agreement as it has requested. The BergaMet Member has carefully considered the potential risks relating to GCT and acquiring the Exchange Shares, and fully understands that such securities are speculative investments, which involve a high degree of risk of loss of the BergaMet Member and its entire investment.

 

ARTICLE III
ADDITIONAL AGREEMENTS

 

3.1       Confidentiality. The Parties to this Agreement may have disclosed in the past, or may disclose in the future, (verbally, in writing and electronic format) to one or more of the other parties certain financial information, trade secrets, know-how, equipment, standards and specifications, proposed products and services, vendors, business plans, customer lists, prices, market and sales information and plans, and other non-public information about their businesses and operations (“Confidential Information”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each party agrees to receive the Confidential Information in strict confidence and not distribute, disclose, or disseminate any Confidential Information of another party except to its employees and contractors (under at least the same obligation of confidentiality) with a need to know, and to its financial or legal advisors.

 

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3.2       Reasonable Efforts. Upon the terms and subject to the conditions set forth in this Agreement, each Party agrees to use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Exchange and the other transactions contemplated by this Agreement. GCT and BergaMet shall mutually cooperate in order to facilitate the achievement of the benefits reasonably anticipated from the Exchange.

 

3.4       Public Announcements. GCT and BergaMet will consult with each other before issuing, and provide each other the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable law or court process. Each of the Parties hereto agree that the initial press release or subsequent releases to be issued with respect to the transactions contemplated by this Agreement shall be mutually agreed upon prior to the issuance thereof.

 

3.5       Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such expenses.

 

3.6       Financial Statements. Following the Closing, BergaMet will provide GCT with audited and unaudited financial statements, as required by Regulation S-X of the Exchange Act, in a timely manner such that Buyer may meet its filing obligations under the Exchange Act.

 

3.7       Further Issuances of Capital Stock. During the twelve (12)-month period immediately following the Closing, GCT shall not issue any shares of capital stock, or any other securities or rights convertible or exercisable into shares of capital stock, without the written consent of BergaMet Members who were issued a majority of the Exchange Shares issued at the Closing.

3.8       Tax Matters.

 

(a)       The BergaMet Members shall prepare (or cause to be prepared) all Tax Returns of BergaMet for Pre-Closing Tax Periods. If any such Tax Return is required to be filed by BergaMet after the Closing Date, Parent shall timely file such Tax Return. The BergaMet Members shall timely pay (or cause to be paid) to the applicable Governmental Entity all Taxes shown to be due on any Tax Return described in this Section 3.8(a).

 

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(b)       In order to apportion appropriately any Taxes relating to Straddle Periods, the parties hereto will, to the extent permitted by applicable law, elect with the relevant Governmental Entity to treat for all purposes the Closing date as the last day of a taxable period of BergaMet (a “Short Period”). In any case where applicable law does not permit BergaMet to treat the Closing date as the last day of a Short Period, then for purposes of this Agreement, the portion of each Tax that is attributable to the operations of BergaMet for the period which would have qualified as a Short Period if such election had been permitted by applicable law (an “Interim Period”) shall be (i) in the case of any property Tax, ad valorem Tax, or exemption, allowance or deduction that is calculated on an annual basis (including, but not limited to, depreciation and amortization deductions), the total amount of such Tax or item for the period in question multiplied by a fraction, the numerator of which is the number of days in the Interim Period, and the denominator of which is the total number of days in such Straddle Period, and (ii) in the case of any Tax or item not described in clause (i), the Tax that would be due with respect to the Interim Period if such Interim Period were a Short Period determined based upon an interim closing of the books.

 

(c)       Notwithstanding anything to the contrary contained in this Agreement, the BergaMet Members shall have the sole right to control, through counsel of their own choosing, the defense or settlement of any claim or proceeding relating to a Tax matter for Pre-Closing Tax Periods.

 

(d)       Each party hereto agrees to co-operate fully, as and to the extent reasonably requested by the other party, in connection with the filing of any Tax Returns, any audit, litigation or other proceeding with respect to Taxes. The parties further agree, upon request, to use their commercially reasonable efforts to obtain any certificate or other document from any Governmental Entity or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed with respect to the transactions contemplated in this Agreement.

 

(e)       For purposes of this Agreement: (x) “Taxes” shall mean (A) all federal, state, local or foreign taxes, charges, fees, imposts, levies or other assessments, including all net income, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property and estimated taxes, customs duties, fees, assessments and charges of any kind whatsoever, (B) all interest, penalties, fines, additions to tax or additional amounts imposed by any Governmental Entity in connection with any item described in clause (A), and (C) any liability in respect of any items described in clauses (A) or (B) payable by reason of contract, assumption, successor or transferee liability, operation of law, Treasury Regulation Section 1.1502-6(a) (or any similar provision of law) or otherwise; (y) “Tax Returns” shall mean any return, report, claim for refund, estimate, information return or statement or other similar document relating to or required to be filed or actually filed with any Governmental Entity with respect to Taxes, including any schedule or attachment thereto, and including any amendment thereof; and (z) “Pre-Closing Tax Period” means any taxable period ending on or before the Closing date.

 

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ARTICLE IV
CONDITIONS PRECEDENT

 

4.1              Conditions to Each Party’s Obligation to Effect the Exchange. The obligation of each Party to effect the Exchange and otherwise consummate the transactions contemplated by this Agreement is subject to the satisfaction, at or prior to the Closing, of each of the following conditions:

 

(a)               No Restraints. No temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the Exchange shall have been issued by any court of competent jurisdiction or any other Governmental Entity having jurisdiction and shall remain in effect, and there shall not be any applicable legal requirement enacted, adopted, or deemed applicable to the Exchange that makes consummation of the Exchange illegal.

 

(b)               Governmental Approvals. All authorizations, consents, orders, declarations, or approvals of, or filings with, or terminations or expirations of waiting periods imposed by, any Governmental Entity having jurisdiction which the failure to obtain, make or occur would have a Material Adverse Effect on GCT or BergaMet shall have been obtained, made or occurred.

 

(c)               No Litigation. There shall not be pending or threatened any suit, action or proceeding before any court, Governmental Entity or authority (i) pertaining to the transactions contemplated by this Agreement; or (ii) seeking to prohibit or limit the ownership or operation by BergaMet, GCT or any of its subsidiaries, or to dispose of or hold separate any material portion of the business or assets of BergaMet or GCT.

 

(d)               Joinder Agreements. Each BergaMet Member shall have executed and delivered a Joinder Agreement.

 

4.2              Conditions Precedent to Obligations of GCT. The obligation of GCT to effect the Exchange and otherwise consummate the transactions contemplated by this Agreement are subject to the satisfaction, at or prior to the Closing, of each of the following conditions:

 

(a)               Representations, Warranties and Covenants. The representations and warranties of BergaMet and Decker in this Agreement shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or Material Adverse Effect, which representations and warranties as so qualified shall be true and correct in all respects) both when made and on and as of the Effective Date; and BergaMet and the BergaMet Members shall each have performed and complied in all material respects with all covenants, obligations and conditions of this Agreement required to be performed and complied with by each of them prior to the Effective Date.

 

(b)               Consents. GCT shall have received evidence, in form and substance reasonably satisfactory to it, that such licenses, permits, consents, approvals, authorizations, qualifications, and orders of governmental authorities and other third parties as necessary in connection with the transactions contemplated hereby have been obtained.

 

(c)               Cash. BergaMet shall have cash or cash equivalents of at least $800,000.

 

4.3              Conditions Precedent to Obligation of BergaMet and BergaMet Members. The obligation of BergaMet and BergaMet Members to effect the Exchange and otherwise consummate the transactions contemplated by this Agreement is subject to the satisfaction, at or prior to the Closing, of each of the following conditions:

 

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(a)               Representations, Warranties, and Covenants. The representations and warranties of GCT in this Agreement shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or Material Adverse Effect, which representations and warranties as so qualified shall be true and correct in all respects) both when made and on and as of the Effective Date; and GCT shall have performed and complied in all material respects with all covenants, obligations, and conditions of this Agreement required to be performed and complied with by it prior to the Effective Date.

 

(b)               Consents. BergaMet shall have received evidence, in form and substance reasonably satisfactory to it, that such licenses, permits, consents, approvals, authorizations, qualifications, and orders of governmental authorities and other third parties as necessary in connection with the transactions contemplated hereby have been obtained.

 

(c)               GCT Capitalization. There shall be no outstanding shares of GCT’s Series A Convertible Preferred Stock, convertible notes, warrants or any other securities, instruments or rights convertible or exercisable into capital stock of GCT (or there shall be valid and binding agreements to effect the same at the Closing to the satisfaction of BergaMet). GCT’s common stock shall be the only class or series of GCT’s capital stock issued and outstanding or authorized for issuance by GCT. Without limiting the generality of the foregoing:

 

(i)                 Series A Convertible Preferred Stock. All holders of GCT’s outstanding Series A Convertible Preferred Stock shall have converted their shares into GCT common stock (or there shall be valid and binding agreements to effect the same at the Closing to the satisfaction of BergaMet).

 

(ii)              Convertible Notes. With respect to the convertible notes previously issued by GCT and outstanding immediately prior to Closing, GCT and such noteholders shall have entered into an agreement for such convertible notes to be, at or prior to the Closing, (A) paid and discharged in full at the Closing by the Closing Note Payoffs, for which the aggregate payoff does not exceed $353,907.97; (B) converted into GCT capital stock prior to the Closing; (C) amended to be the Restated-as-Nonconvertible Note for which the balance owing at Closing does not exceed $110,000.00; and/or (D) amended to be the Amended-and-Deferred Note for which the balance owing at Closing does not exceed $54,578.00; provided however a single convertible note, for which the note holder cannot be located and for which the balance owing at Closing does not exceed $6,749.69, plus interest, may continue to remain outstanding at and following the Closing.

 

(iii)            Warrants. There shall be no outstanding stock purchase warrants or similar rights to acquire capital stock of GCT, other than an aggregate of 42,800 warrants previously disclosed to BergaMet, each with an exercise price of at least $30.00 per share. Each such other warrant or right previously issued by GCT shall have either been (A) cancelled or (B) exercised prior to the Closing (or there shall be valid and binding agreements to effect the same at the Closing to the satisfaction of BergaMet).

 

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ARTICLE V
TERMINATION, RESCISSION, AMENDMENT, AND WAIVER

 

5.1       Termination.

 

(a)               This Agreement may be terminated:

 

(i)                 by mutual written consent of GCT and BergaMet;

(ii)              by either GCT or BergaMet if any Governmental Entity shall have issued an order, decree, or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the Exchange and such order, decree, ruling, or other action shall have become final and non-appealable;

 

(iii)            on or before the date which is thirty (30) days after the Closing, by either Party if the other Party has breached any representation or warranty in this Agreement, and does not cure such breach within five (5) business days of notice of such breach; or

 

(iv)             by either GCT or BergaMet, if the Closing has not occurred on or before February 28, 2019.

 

5.2       Effect of Termination. In the event of termination of this Agreement by either BergaMet or GCT as provided in Section 5.1, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of GCT, BergaMet, or the BergaMet Members. Nothing contained in this Section shall relieve any Party for any breach of the representations, warranties, covenants, or agreements set forth in this Agreement.

 

5.3       Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of (a) GCT; (b) BergaMet; and (c) BergaMet Members (i) if prior to the Closing, that hold a majority of the BergaMet Units to be exchanged for Exchange Shares pursuant to this Agreement, or (ii) if after the Closing, that held at the Closing a majority of the BergaMet Units were exchanged for Exchange Shares pursuant to this Agreement.

 

5.4       Return of Documents. In the event of termination or rescission of this Agreement for any reason, GCT and BergaMet will return to the other Party all of the other Party’s documents, work papers, and other materials (including copies) relating to the transactions contemplated in this Agreement, whether obtained before or after execution of this Agreement. GCT and BergaMet will not use any information so obtained from the other Party for any purpose and will take all reasonable steps to have such other Party’s information kept confidential.

 

Page 19 of 27

ARTICLE VI
INDEMNIFICATION AND RELATED MATTERS

 

6.1       Expiration and Survival of Representations, Warranties and Covenants.

 

(a)       The representations, warranties and covenants of BergaMet set forth in this Agreement or in any instrument delivered pursuant to this Agreement shall expire at the Closing, and BergaMet shall not have any liability thereafter with respect to any breach or inaccuracy in such representations, warranties or covenants. For the avoidance of doubt, the BergaMet Members shall have no liability or responsibility for the accuracy of the representations, warranties and covenants of BergaMet under this Agreement. The sole and exclusive remedy of GCT with respect to the breach of any representation, warranty or covenant of BergaMet shall be a termination of this Agreement prior to the Closing.

 

(b)       The representations and warranties of GCT set forth in this Agreement or in any instrument delivered pursuant to this Agreement shall survive until twenty four (24) months after the Closing (except for with respect to Taxes which shall survive for the applicable statute of limitations plus ninety (90) days, and covenants that by their terms survive for a longer period).

 

(c)        Except as otherwise provided in this Agreement, covenants set forth in this Agreement to be performed at or following the Closing shall survive the Closing.

 

(d)        The representations and warranties of each BergaMet Member set forth in Section 2.3 of this Agreement shall survive the Closing.

 

6.2       Indemnification.

 

(a)               GCT shall indemnify and hold BergaMet and the BergaMet Members, and their affiliates and assigns, harmless for, from and against any and all liabilities, obligations, damages, losses, deficiencies, costs, penalties, interest, and expenses (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever) (collectively, “Losses”) to which BergaMet, the BergaMet Members, or their affiliates and assigns, may become subject resulting from or arising out of any breach of a representation, warranty or covenant made by GCT as set forth herein.

 

(b)               Each BergaMet Member shall indemnify and hold GCT, and its affiliates and assigns, harmless for, from and against any and all Losses to which GCT, or its affiliates and assigns, may become subject resulting from or arising out of any breach of a representation, warranty, or covenant made by such BergaMet Member.

 

6.3       Notice of Indemnification. Promptly after the receipt by any indemnified Party (the “Indemnitee”) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying Party (the “Indemnifying Party”) pursuant to this Article VI, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VI, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its

Page 20 of 27

own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VI or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitee’s own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VI to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitee’s failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VI, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.

 

6.4       Remedies. If GCT has any indemnification liability to the BergaMet Members under this Agreement, the BergaMet Member shall have the option, but not the obligation, to require that GCT satisfy such indemnification obligation through the issuance of additional GCT common stock having aggregate fair market value equal to the indemnification obligation amount. If the GCT common stock is then publicly traded, its fair market value per share shall be the average closing price for the ten (10) trading day period ending five (5) trading days prior to the date of determination of fair market value. For the absence of doubt, the foregoing remedy shall be cumulative with, and not lieu of, any other remedy at law, equity or otherwise.

 

ARTICLE VII
GENERAL PROVISIONS

 

7.1       Notices. Any and all notices and other communications hereunder shall be in writing and shall be deemed duly given to the Party to whom the same is so delivered, sent or mailed at addresses and contact information set forth below (or at such other address for a Party as shall be specified by like notice). Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be deemed given and effective on the earliest of: (a) on the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:00 p.m. (Pacific Time) on a business day; (b) on the next business day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a business day or later than 5:00 p.m. (Pacific Time) on any business day; (c) on the second business day following the date of mailing, if sent by a nationally recognized overnight courier service; or (d) if by personal delivery, upon actual receipt by the Party to whom such notice is required to be given.

 

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  If to GCT:

Grey Cloak Tech, Inc.

10300 W. Charleston Blvd., Suite 13-378

Las Vegas, NV 89135

Attn: William Bossung

Email: wbossung@yahoo.com

 

with a copy to (which shall not constitute notice):

 

Clyde Snow & Sessions, PC
Attn: Brian A. Lebrecht
201 South Main Street, Suite 1300
Salt Lake City, UT 84111
Email: bal@clydesnow.com

 

If to BergaMet:

BergaMet NA, LLC

11500 Longwater Chase Ct.

Fort Myers, FL 33908

Attn: Jay W. Decker

 

with a copy to (which shall not constitute notice):

 

Fennemore Craig, P.C.

Attn: Aaron Cain

2394 East Camelback Road, Suite 600

Phoenix, AZ 85016

Email: acain@fclaw.com

 

If to the

BergaMet Members:

c/o Jay W. Decker

11500 Longwater Chase Ct.

Fort Meyers, FL 33908

with a copy to (which shall not constitute notice):

 

Fennemore Craig, P.C.

Attn: Aaron Cain

2394 East Camelback Road, Suite 600

Phoenix, AZ 85016

Email: acain@fclaw.com

 

 

Page 22 of 27

7.2       Definitions. For purposes of this Agreement:

 

(a)               an “Affiliate” of any person means another person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person;

 

(b)               Intellectual Property” means all of the following and similar intangible property and related proprietary rights, interests and protections, however arising, pursuant to the Laws of any jurisdiction throughout the world: (a) trademarks, service marks, assumed names, trade names, brand names, logos, trade dress and other proprietary indicia of goods and services, whether registered, unregistered or arising by Law, and all registrations and applications for registration of such trademarks, including intent-to-use applications, and all issuances, extensions and renewals of such registrations and applications; (b) internet domain names, whether or not trademarks, registered in any generic top level domain by any authorized private registrar or Governmental Authority; (c) original works of authorship in any medium of expression, whether or not published, all copyrights (whether registered, unregistered or arising by Law), all registrations and applications for registration of such copyrights, and all issuances, extensions and renewals of such registrations and applications; (d) confidential information, formulas, designs, devices, technology, know-how, research and development, inventions, methods, processes, compositions and other trade secrets, whether or not patentable; (e) patented and patentable designs and inventions, all design, plant and utility patents, letters patent, utility models, pending patent applications and provisional applications and all issuances, divisions, continuations, continuations-in-part, reissues, extensions, reexaminations and renewals of such patents and applications; and (f) any manuals relating to operations, training, employment, including materials provided to any licensees.

 

(c)               Intellectual Property Assets” means all Intellectual Property that is owned by GCT and used in or necessary for the conduct of its business.

 

(d)               Knowledge” shall mean actual then-current knowledge of the applicable Party or any director or executive officer of the applicable Party;

 

(e)               Material Adverse Effect” means, when used in connection with BergaMet or GCT, any change or effect that either individually or in the aggregate with all other such changes or effects is materially adverse to the business, assets, properties, condition (financial or otherwise) or results of operations of such Party and its subsidiaries taken as a whole (after giving effect in the case of GCT to the consummation of the Exchange);

 

(f)                Ordinary course of business” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency);

 

(g)               Permits” means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained, or required to be obtained, from Governmental Entities.

 

(h)               Person” means an individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity;

 

Page 23 of 27

(i)                 Security Interest” means any mortgage, pledge, lien, encumbrance, deed of trust, lease, charge, right of first refusal, easement, servitude, proxy, voting trust or agreement, transfer restriction under any shareholder or similar agreement or any other security interest, other than (i) mechanic’s, materialmen’s, and similar liens; (ii) statutory liens for taxes not yet due and payable; (iii) purchase money liens and liens securing rental payments under capital lease arrangements; (iv) pledges or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other similar social security legislation; and (v) encumbrances, security deposits or reserves required by law or by any Governmental Entity.

 

7.3       Interpretation. When a reference is made in this Agreement to a Section, Exhibit, or Schedule, such reference shall be to a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”

 

7.4       Entire Agreement; No Third-Party Beneficiaries. This Agreement and the other agreements referred to herein constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter of this Agreement. This Agreement is not intended to confer upon any person other than the Parties any rights or remedies.

 

7.5       Governing Law/Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. Except as otherwise required by applicable law, each party hereby irrevocably: (a) submits in any legal proceeding relating to this Agreement to the exclusive jurisdiction of any state or United States court of competent jurisdiction sitting in the State of Nevada and agrees to suit being brought in such courts; and (b) waives any objection it may now or hereafter have to the venue of such proceeding in any such court or that such proceeding was brought in an inconvenient forum.

 

7.6       Assignment. Neither this Agreement nor any of the rights, interests, or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the Parties without the prior written consent of the other Parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.

 

7.7       Enforcement. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any state or federal court located in the State of Nevada, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the Parties hereto (a) agrees that it will not attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave from any such court; and (b) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any state court other than such court.

Page 24 of 27

 

7.8       Severability. Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law but if any provision or portion of any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision in such jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

 

7.9       Counterparts. This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one Party, but all such counterparts taken together will constitute one and the same Agreement. This Agreement, to the extent delivered by means of a facsimile machine or electronic mail (any such delivery, an “Electronic Delivery”), shall be treated in all manner and respects as an original agreement or instrument, and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any Party hereto, each other Party hereto shall re-execute original forms hereof and deliver them in person to all other Parties. No Party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent such defense related to lack of authenticity.

 

7.10       Attorneys’ Fees. In the event any suit or other legal proceeding is brought for the enforcement of any of the provisions of this Agreement, the Parties hereto agree that the prevailing Party or Parties shall be entitled to recover from the other Party or Parties upon final judgment on the merits reasonable attorneys’ fees, including attorneys’ fees for any appeal, and costs incurred in bringing such suit or proceeding.

 

[remainder of page intentionally left blank; signature page to follow]

 


Page 25 of 27

IN WITNESS WHEREOF, the undersigned have caused their duly authorized officers to execute this Agreement as of the date first above written.

 

  GCT
   
  Grey Cloak Tech Inc.,
  a Nevada corporation
   
   
 
  By: Kevin Pitts
  Its: Chief Executive Officer

 

 

  BergaMet
   
  BergaMet NA, LLC,
  a Delaware limited liability company
   
   
 
  By: Jay W. Decker
  Its: Manager

 

 

Page 26 of 27

 

 


EXHIBITS
A BergaMet Members
B Form of BergaMet Representation Certificate
C Form of BergaMet Officer’s Certificate
D Joinder Agreement
E Form of GCT Representation Certificate
F Form of GCT Officer’s Certificate
I Board Members and Officers
J GCT’s Post-Closing Capitalization

 

Page 27 of 27

Exhibit A

 

BergaMet Members

 

Jay W. Decker

Shelton Decker

Logan Decker

Jerry Haase

James Ehrich

Randy Looper

Martin Bridge

Bill Croyle

 

 

Exhibit B

 

Form of BergaMet Representation Certificate

 

(see attached)

 

 

Exhibit C

 

Form of BergaMet Officer’s Certificate

 

(see attached)

 

 

Exhibit D

 

Joinder Agreement

 

(see attached)

  

 

Exhibit E

 

Form of GCT Representation Certificate

 

(see attached)

 

 

Exhibit F

 

Form of GCT Officer’s Certificate

 

(see attached) 

 

 

Exhibit G

 

Members of the Board of Directors

 

GCT’s Board of Directors will consist of the following, effective at Closing:

 

Kevin Pitts (existing), William Bossung (existing) and Sanjeev Javia.

 

Executive Officer Appointments

 

Effective at Closing, the following individuals will be appointed to the positions indicated:

 

Sanjeev Javia – Chief Executive Officer and President

 

Kevin Pitts – Chief Operating Officer

 

William Bossung will remain in his position as GCT’s Chief Financial Officer.

 

Kevin Pitts will resign his positions of Chief Executive Officer and President effective at Closing.

 

 

Exhibit H

 

GCT’s Post-Closing Capitalization

 

 

 

Total Issued and Outstanding     7,097,406       5.84 %
Matthew Grabau     350,000       0.29 %
Crown Bridge Conversion     354,000       0.29 %
Preferred Stock Conversions     15,592,986       12.82 %
Debt Conversions     806,015       0.66 %
BergaMet Members     97,409,678       80.10 %
  Total     121,610,085       100.00 %

 

 

EXHIBIT 31.1

Rule 13a-14(a)/15d-14(a) Certification of Chief Executive Officer

 

I, Kevin “Duke” Pitts, certify that:

 

I have reviewed this Annual Report on Form 10-K of Grey Cloak Tech Inc.;

 

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exhibit Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Dated:   April 1, 2020   /s/ Kevin Pitts
  By: Kevin “Duke” Pitts
    President

EXHIBIT 31.2

 

Rule 13a-14(a)/15d-14(a) Certification of Chief Financial Officer

 

I, William Bossung, certify that:

 

I have reviewed this Annual Report on Form 10-K of Grey Cloak Tech Inc.;

 

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exhibit Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Dated:   April 1, 2020   /s/ William Bossung
  By: William Bossung
    Chief Financial Officer

EXHIBIT 32.1

 

CERTIFICATION PURSUANT TO 18 USC, SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906

OF THE SARBANES-OXLEY ACT OF 2002

 

 

In connection with the Annual Report of Grey Cloak Tech Inc. (the “Company”) on Form 10-K for the year ended December 31, 2018, as filed with the Securities and Exchange Commission on or about the date hereof (the “Report”), I, Kevin “Duke” Pitts, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Sec. 1350, as adopted pursuant to Sec. 906 of the Sarbanes-Oxley Act of 2002, that:

 

(1)        The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

(2)        Information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

Dated:   April 1, 2020 /s/ Kevin Pitts
  By:  Kevin “Duke” Pitts
  Its:  President

 

 

A signed original of this written statement required by Section 906 has been provided to Grey Cloak Tech Inc. and will be retained by Grey Cloak Tech Inc. and furnished to the Securities and Exchange Commission or its staff upon request.

EXHIBIT 32.2

 

CERTIFICATION PURSUANT TO 18 USC, SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906

OF THE SARBANES-OXLEY ACT OF 2002

 

 

In connection with the Annual Report of Grey Cloak Tech Inc. (the “Company”) on Form 10-K for the year ended December 31, 2018, as filed with the Securities and Exchange Commission on or about the date hereof (the “Report”), I, William Bossung, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Sec. 1350, as adopted pursuant to Sec. 906 of the Sarbanes-Oxley Act of 2002, that:

 

(1)        The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

(2)        Information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

Dated:   April 1, 2020 /s/ William Bossung
  By:  William Bossung
  Its:  Chief Financial Officer

 

 

A signed original of this written statement required by Section 906 has been provided to Grey Cloak Tech Inc. and will be retained by Grey Cloak Tech Inc. and furnished to the Securities and Exchange Commission or its staff upon request.